01A11881
07-08-2002
Leanore R. Back, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Leanore R. Back v. Department of the Treasury
01A11881
July 8, 2002
.
Leanore R. Back,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11881
Agency No. 00-4001
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. At the time of
the agency actions at issue in her complaint, complainant was employed
as a Taxpayer Service Specialist with the Internal Revenue Service,
Customer Service Division, in Portland, Oregon. Complainant alleged in
her complaint that she had been subjected to unlawful discrimination on
the bases of her race (Hispanic), national origin (Mexican), sex, color
(Brown), and age (date of birth October 30, 1957) when, in August, 1999,
after serving as an uncertified training instructor, the agency did not
certify her as a training instructor. At the conclusion of the agency's
investigation into the complaint, complainant was informed of her right to
request a hearing before an EEOC Administrative Judge or, alternatively,
to receive a final decision by the agency. Complainant requested that
the agency issue a final decision. The agency complied with this request,
and issued a FAD finding no discrimination had occurred.
In its FAD, the agency assumed for purposes of its decision that
complainant had established a prima facie case of discrimination on
all bases alleged except sex, as another female training instructor
(of undisclosed race, national origin, color, or age) had been certified
during the relevant time period. The agency also found, however, that it
had articulated legitimate, nondiscriminatory reasons for complainant's
noncertification�that complainant had not met the requirement for
certification that she prepare her lesson plans independently�and that
she had failed to present any evidence that the agency's decision was
related to her race, national origin, sex, color, or age.
Our examination of the record on appeal reveals that the agency
properly determined that complainant had not established that she
had been subjected to unlawful discrimination as claimed. The record
reflects that the decision to not certify complainant as an instructor
was based upon her performance while serving as an uncertified training
instructor, and there is no indication that the noncertification decision
was based on any prohibited criteria. While complainant contends that
there existed a bias against her before she was appointed to serve as
a training instructor in 1999, the record shows that any such bias was
based upon her previous performance as an uncertified training instructor.
Accordingly, as complainant has not met her ultimate burden of persuading
the Commission that the agency intentionally discriminated against her,
see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000),
we cannot conclude that the agency's decision finding no discrimination
was error.
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, it is the decision of the
Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 8, 2002
Date