01971937
06-09-1999
David M. Sity, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
David M. Sity, )
Appellant, )
) Appeal No. 01971937
v. ) Agency No. 96-4011
) Hearing No. 260-96-8080X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision
(FAD) concerning his Equal Employment Opportunity (EEO) complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. Appellant alleges that he was discriminated
against on the bases of sex (male), age (DOB: 5/20/53) and in reprisal
for prior EEO activity when he was not selected for a GS-12 Internal
Revenue Agent position. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that appellant, a GS-11 Internal Revenue Agent at the
agency's facility in St. Paul, Minnesota, filed a formal EEO complaint on
October 10, 1995, alleging discrimination as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination on the bases of age
or reprisal.
The AJ found that appellant failed to establish a prima facie case of
reprisal discrimination because there was no causal connection between
appellant's prior EEO activity and his non-selection. The AJ further
found that although appellant established a prima facie case of age
discrimination when two younger applicants were selected, appellant was
not selected because he was not one of the best qualified applicants
referred for consideration. The AJ concluded that appellant failed
to produce evidence that the agency's legitimate, nondiscriminatory
explanation for his non-selection was a pretext for age discrimination.
The agency's FAD adopted the AJ's finding of no discrimination in regard
to age and reprisal.<1> Recognizing that the RD failed to address
appellant's allegation of sex discrimination, the FAD found that although
appellant established a prima facie case of sex discrimination when two
women were selected, he failed to present evidence that the agency's
legitimate, nondiscriminatory reason for not selecting him was a pretext
for sex discrimination. It is from this decision appellant now appeals.
Appellant did not submit a statement in support of his appeal. The agency
requests that we affirm the FAD.
Initially, we note that appellant applied for two GS-12 positions. As a
result of the applicants' backgrounds, the procedure used to rank the
applicants for the first opening was different from the procedure used
to rank applicants for the second opening. Under neither procedure did
appellant achieve a sufficient score to make the best qualified list,
and as a result, he was not interviewed for either GS-12 position.
Although appellant asserts that he had far more experience than
the considerably younger selectees and that local management was
under a directive to place more women in GS-12 positions, there is no
evidence to support a finding that the ranking procedures were conducted
improperly, were in violation of agency guidelines, or were influenced
by a discriminatory motive. Furthermore, there is no evidence that
appellant's failure to make the best qualified list had any connection
to his sex, age or prior EEO activity. Rather, the evidence indicates
the ranking which rendered appellant less competitive was the result of
his performance appraisal.
In conclusion, we agree with the agency that appellant failed to present
evidence that the agency's legitimate, nondiscriminatory reason for not
selecting appellant was a pretext for discrimination. Although the RD
did not specifically consider sex based discrimination, the AJ properly
addressed the relevant statutes, regulations and policies, and we discern
no basis to disturb the AJ's findings as modified by the FAD. Therefore,
after a careful review of the record, including arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
June 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 In regard to age discrimination,
the FAD noted that the RD did not apply the standards set forth in
Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979). In applying
those standards, the FAD found that appellant failed to establish
that age was a determinative factor in his non-selection.