Michael H. Nelson, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01982892 (E.E.O.C. Aug. 2, 2000)

01982892

08-02-2000

Michael H. Nelson, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Michael H. Nelson v. Department of the Treasury (Internal Revenue

Service)

01982892

August 2, 2000

.

Michael H. Nelson,

Complainant,

v.

Lawrence H. Summers,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 01982892

Agency No. 96-4060

Hearing No. 350-97-8011X

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 (Title VII), as amended, 42 U.S.C. � 2000e et seq.; and

Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended,<1> 29 U.S. C. � 791 et seq.<2> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405).

Complainant alleges he was discriminated against on the bases of religion

(Latter Day Saints/Mormon), color (White), mental disability (perceived

mental impairment), sex (male), and retaliation for prior EEO activity

when he was not selected for a GS-334 Computer Specialist Position on

April 28 and June 23, 1995. For the following reasons, the Commission

AFFIRMS the agency's final decision.

The record reveals that complainant, a GS-7 Computer Operator at

the agency's Ogden, Utah Service Center facility, filed a formal EEO

complaint with the agency on December 12, 1995, 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). Finding no genuine disputes of material fact on the dispositive

issues and no genuine issues of credibility to be determined, the AJ

issued a decision without a hearing, finding no discrimination.

The AJ did not rule on whether complainant established a prima facie

case of discrimination, since she found that the agency had already

articulated a legitimate, nondiscriminatory reason for not selecting

complainant: his name was not referred by the rating officials to the

selecting official to begin with, because his application was not ranked

high enough for complainant to make the best qualified list (BQL) from

which all selectees were chosen.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reason was a pretext to mask unlawful

discrimination or retaliation. In reaching this conclusion, the AJ found

that complainant's pretext argument, that his supervisor discriminatorily

kept his performance appraisal too low so that he would not be competitive

in the selection process, was inadequate for two reasons: First,

the issue of complainant's 1994 performance appraisal, on which the

rating officials relied, was not properly before the AJ, since the time

to have challenged its validity was when it was first issued in 1994.

Second, the actions and motivations under scrutiny in this case were

those of the rating officials, since it was their motivations which had

to be addressed to determine whether discrimination occurred. The AJ

noted that complainant did not contend that any of the persons involved

in the rating process were biased against him and did not present any

evidence to link their actions to the alleged biases of the supervisors.

Hence, the AJ found that there was insufficient evidence to sustain

complainant's burden of proving pretext by a preponderance of the

evidence. The agency's final decision adopted the AJ's recommended

decision (RD) finding no discrimination.

On appeal, complainant contends that the AJ erred when she stated that

he did not challenge the 1994 performance appraisal at the time it was

issued. He notes that as a result of a union grievance, an agreement

was signed which, if followed, would have allowed him to raise his

appraisal to a higher level, and repeats his argument that his supervisor

discriminated against him by making his performance appraisal too low.

He also points out that the RD stated that �The

complainant has raised a genuine issue of material fact.� Thus, a hearing

would be warranted. The agency did not reply to complainant's arguments

on appeal.

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced

the appropriate regulations, policies, and laws.<3> We note that

complainant failed to present evidence that any of the agency's

actions were in retaliation for complainant's prior EEO activity or

were motivated by discriminatory animus toward complainant's religion,

color, sex or mental disability. We further point out that according

to complainant's supervisor, the agreement entered into as a result of

complainant's union grievance did not specify that complainant could

raise the rating on his 1994 performance appraisal, but only that he

�would be afforded the opportunity to improve and raise the rating�

to a �5" in the future. Hence, we find that the AJ was correct in

ruling that the issue of complainant's 1994 performance appraisal

was not properly before the Commission, since the appraisal remained

valid, it was therefore properly relied upon by the rating officials as

complainant's most recent performance appraisal at the time he applied

for the computer specialist position, and the instant complaint dealt

only with the issue of nonselection to this position. We thus discern

no basis to disturb the AJ's decision. Therefore, after a careful

review of the record, including complainant's contentions on appeal,

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

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:

______________________________

Carlton M. Hadden, Acting Director

Office of Federal Operations

August 2, 2000

Date

1The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

2 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.

3In this regard, we agree with the agency's final decision, which assumed

that the RD's statement in �Conclusions of Law� that the complainant had

raised a genuine issue of material fact was obviously a typographical

error. For the AJ to issue an RD without a hearing, as is the case here,

the AJ must have found that there were no issues of material fact in

the complaint, as she in fact stated in the �Procedural Background� at

the beginning of the RD.