Harmon L. Loy, Jr., Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01971717 (E.E.O.C. Jan. 15, 1999)

01971717

01-15-1999

Harmon L. Loy, Jr., Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Harmon L. Loy, Jr. v. Department of the Treasury

01971717

January 15, 1999

Harmon L. Loy, Jr., )

Appellant, )

) Appeal No. 01971717

v. ) Agency No. 95-1095

) Hearing No. 140-96-8032X

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

(Internal Revenue Service), )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision

(FAD) concerning his equal employment opportunity (EEO) complaint

of unlawful employment discrimination on the bases of sex (male),

and age (DOB March 1, 1949), 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 he was discriminated against when on or

around September 9, 1994, the agency failed to certify him for readiness

for the GS-1167-13 Supervisory Revenue Officer 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 during the relevant time, appellant was employed

as a Revenue Officer at the agency's Asheville, North Carolina facility.

Appellant had previously resigned from a supervisory position within the

agency in 1991, and though he did not take any action at that time, he now

alleges that management forced him to resign from a management position

when they accused him of altering official documents. Subsequently,

appellant applied for, but was not certified as ready for, the Supervisory

Revenue Officer, and a younger female employee was selected.

Believing he was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a formal complaint on December

23, 1994. At the conclusion of the investigation, appellant received a

copy of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). Pursuant to 29 C.F.R. � 1614.109, the AJ

issued a Recommended Decision (RD) without a hearing, finding no

discrimination.

The AJ concluded that appellant established a prima facie case of

discrimination because he was qualified for, but a younger female

employee was selected for, the above-referenced position. In reaching

this conclusion, the AJ considered appellant qualified based on his having

previously been a supervisor at the agency. The AJ then concluded that

the agency articulated legitimate, nondiscriminatory reasons for its

action, namely, that appellant's past performance as a supervisor,

and questions about his interpersonal skills, resulted in his not

being certified as ready, and therefore not being considered for the

Supervisory Revenue Officer position. In reaching this conclusion, the

AJ noted that the agency's Chief, Western Field Branch, stated that he

rated appellant's interpersonal skills as needing improvement because

of serious management deficiencies when he was a supervisor, which

included allegations that he altered official documents. The AJ found

that appellant did not establish that more likely than not, the agency's

articulated reason as a pretext to mask discrimination. The agency's

FAD adopted the AJ's RD. On appeal, appellant contends that he should

have had a hearing. The agency requests that we affirm the FAD.

After a careful review of the record, and applying the standards

set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), The

Commission finds that the AJ's RD summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. We agree

with the AJ's conclusion, and note that appellant failed to present

any evidence that the agency's decision was motivated by discriminatory

animus toward appellant's age or sex. We discern no basis to disturb

the AJ's findings of no discrimination which was based on a detailed

assessment of the record. Therefore, after a careful review of the

record, including appellant's contentions on appeal, and 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:

Jan 15, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations