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.