01A33171
03-22-2004
Russell L. Moore, Complainant, v. John W. Snow, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Russell L. Moore v. Department of the Treasury
01A33171
March 22, 2004
.
Russell L. Moore,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 01A33171
Agency No. TD962319R
Hearing No. 310-A2-5513X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on the
basis of sex (male), in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., on the basis of
disability,<1> in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and on the
basis of age (D.O.B. 10/09/43), in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., when:
(1) he was not selected for promotions pursuant to Vacancy Announcement
Numbers: 90-M0229, 90-M00230, 93-J0079B; 93-J0098B; 95-J0221B;
he did not receive recognition for identifying a criminal fraud case
and referring it to the Criminal Investigation Division; and
in May 1995, he was not selected for reassignment to the district
controlled large case program.<2>
On appeal, complainant contends that the investigation was inadequate.
Complainant additionally takes issue with several aspects of the AJ's
handling of the hearing. As to complainant's complaint of an inadequate
investigation, we find that the investigative file (supplemented by
the hearing transcript) contains sufficient information upon which to
determine whether or not the complained-of agency actions were the
result of an unlawful discriminatory motive. The requirement that
an agency investigate complaints of discrimination is codified at 29
C.F.R. � 1614.108. This regulation requires the agency to develop an
impartial and appropriate factual record upon which to make findings on
the claim or claims raised in the complaint. Id. � 1614.108(a).
As to complainant's complaints about the AJ's conduct of the hearing,
we note that Administrative Judges have broad discretion in the conduct
of hearings. See 29 C.F.R. � 1614.109(e); Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110) at 7-8 to
7-14 (revised November 9, 1999); Bennett v. Department of the Navy,
EEOC Request No. 05980746 (September 19, 2000). In the instant case,
we discern no abuse of discretion on the part of the AJ.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the final agency order because
the Administrative Judge's ultimate finding, that unlawful employment
discrimination was not proven by a preponderance of the evidence, is
supported by the record.
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
March 22, 2004
__________________
Date
1 We note that the AJ issued a partial decision without a hearing,
pursuant to the agency's Motion, as to complainant's disability
claim only. The AJ first found that none of complainant's physical
conditions caused him to qualify as an individual with a disability,
pursuant to the Rehabilitation Act. The AJ further determined that
the complaint concerning the agency's failure to properly implement
the Veteran's Affirmative Action Program or to implement the settlement
agreement is not a claim which can be brought under the EEOC's federal
sector complaint process. The AJ proceeded to hear evidence concerning
the age and sex claims. On appeal, complainant does not dispute the
AJ's issuance of a partial decision without a hearing in favor of the
agency concerning the disability claim. Therefore, this decision will
be limited to the claims of age and sex-based discrimination.
2 Additional issues were initially raised by complainant, but he
subsequently withdrew them during the investigative stage.