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