01991721
05-31-2000
Joseph J. Mancuso, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Joseph J. Mancuso, )
Complainant, )
) Appeal No. 01991721
v. ) Agency No. 96-1140
) Hearing No. 100-97-7006X
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal from the agency's final decision
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.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the Commission affirms the agency's final decision.
Complainant alleges he was discriminated against on the bases of race
(White), sex (male) and age (DOB: 6/25/49) when:
(1) on November 17, 1995, he was denied a temporary promotion with pay
to the position of Manager, GS-14, Warehouse Management Division;
(2) in 1995, he was denied the opportunity to work on the New Warehouse
Lease project;
(3) he was denied the opportunity to act with pay in his supervisor's
absence;
(4) he was denied an opportunity to attend the Paperless Warehouse course
in Atlanta, Georgia;
(5) he was not offered the opportunity to be a Technical Team Leader.<2>
The record reveals that complainant, a GS-13 Engineer in Office of
Inventory and Management at the agency's Bureau of Engraving and Printing,
filed a formal EEO complaint on March 6, 1996, alleging that the agency
had discriminated against him as referenced above. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of discrimination on all of his alleged bases with the exception of
establishing a prima facie case of race discrimination in regard to the
claim that on November 17, 1995, he was denied a temporary promotion with
pay to the position of Manager, GS-14, Warehouse Management Division.<3>
In reaching this conclusion, the AJ found that complainant failed to prove
similarly situated employees outside of his protected groups received more
favorable treatment with the exception of the employee who was selected
for the temporary promotion with pay. The AJ found that the agency
articulated legitimate and nondiscriminatory reasons for its selection,
namely that the selectee had stronger experience in the operation areas
required by the position and had sufficient supervisory experience to
substitute for the detailed manager. The AJ concluded that complainant
failed to prove pretext because he was not observably better qualified
than the selectee; his contention that his second line supervisor, who
was also White, favored minorities was unsupported; and complainant was,
in fact, temporarily promoted to the position in May 1996. The agency's
final decision implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she declined to
hold a hearing and thereby prevented him from establishing that "the
Agency had been driven by the declared state of manifest imbalance of
women and minorities in management and efforts to rectify their supposed
deficient representation." See Complainant's Brief in Support of Appeal,
pgs. 4-5, (emphasis in the original). In response, the agency noted
that complainant continued to raise issues which had been properly
dismissed and allege that by tracking EEO statistics and setting goals
for diversity, the agency was engaged in unlawful employment practices.
The agency argues that complainant's appeal represents mere disagreement
with the FAD.
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We find, based on a review of the agency's motion for summary
judgment and complainant's response in opposition to it, that the AJ
correctly determined, despite complainant's voluminous objections to
the contrary, there were no genuine issues of material fact in dispute.
We note that complainant failed to present probative evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's race, sex or age or to support his general claim
that the agency was on a mission to promote and advance minorities at
the expense of older, White males. We discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 this decision. 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 (Z1199)
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:
May 31, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Although complainant continues to raise claims previously dismissed by
the agency, the Commission finds that the agency properly complied with
our remand order in Mancuso v. Department of the Treasury, EEOC Appeal
No. 01965250 (April 28, 1997) and accepted only the above five claims
for investigation.
3 The AJ determined that the fact that the selectee, who was a Black
male over forty years of age and five months younger than complainant,
was insufficient to raise an inference of age discrimination.