01971901
03-05-1999
Daniel J. O'Bryan, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Daniel J. O'Bryan v. Department of the Treasury
01971901
March 5, 1999
Daniel J. O'Bryan, )
Appellant, )
) Appeal No. 01971901
v. ) Agency No. 96-3083
) Hearing No. 240-96-5107X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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
(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is accepted
by the Commission in accordance with EEOC Order 960.001.
Appellant filed a formal EEO complaint on January 17, 1996, alleging
discrimination on the bases of age (DOB 11-13-47), national origin
(American Indian), and reprisal (prior EEO participation)<1> when he
was non-selected for the position of Criminal Investigator, GS-1811-12.
Following the agency's investigation, appellant requested a hearing;
however, at the hearing stage, the agency requested a recommended
decision without a hearing and appellant did not respond. Thereafter, an
administrative judge (AJ) issued a recommended decision without a hearing,
pursuant to 29 C.F.R. � 1614.109(e)(1), and found no discrimination.
The agency subsequently adopted the AJ's findings and recommendation of
no discrimination. It is from this decision that appellant now appeals.
The record reveals that, at the time of the complaint, appellant
was employed as a Criminal Investigator GS-1811-13, with the United
States Department of Treasury, Office of Inspector General, Office
of Investigations, Chicago, Illinois. In or about September, 1994,
appellant applied for the position of Criminal Investigator, GS-1811-12,
with the Internal Revenue Service, Criminal Investigation Division,
Indianapolis District. Appellant and other applicants were interviewed
by a panel of individuals who asked each applicant the same questions.
Each panel member rated each applicant individually and then the panel
jointly recommended a selectee to the selecting official (SO). Appellant
was not jointly recommended by the interview panel to the SO. The SO made
his selection based upon the recommendation of the interview panel.
The AJ assumed that appellant established a prima facie case
of discrimination, but found that he failed to present a genuine
issue of material fact on his ultimate evidentiary burden of proving
intentional discrimination. Specifically, the AJ determined that
the agency articulated a legitimate non-discriminatory reason for its
non-selection of appellant; that the SO did not select appellant because
he was not recommended by the interview panel based upon the interview.
The AJ also found that appellant failed to show that the agency's reason
for its decision was pretextual and that the true reasons were based
upon discriminatory motives.
Specifically, with respect to the age discrimination allegation,
the AJ noted that: (1) the interview panel did not jointly recommend
appellant for further consideration by the SO; (2) two of the four panel
members were slightly older than appellant; (3) one of the panel members
expressly encouraged appellant to apply for the position; (4) the record
is devoid of any specific probative evidence that the SO influenced
the recommendations of the interview panel; (5) it is undisputed that
the SO relied upon the interview panel's recommendation; (6) the SO
was the same age as appellant; (7) the SO was not required to include
external applicants, such as appellant, but specifically chose to do so;
(8) despite appellant's assertions, the record does not indicate that
appellant's qualifications were observably superior to the recommended
applicants.
With respect to the national origin allegation the AJ specifically noted
that: (1) the interview panel did not jointly recommend appellant for
further consideration by the SO; (2) the evidence reflects that only
one interview panel member was aware of appellant's national origin and
that member is of the same national origin as appellant; (3) the record
is devoid of any specific probative evidence that the SO influenced the
recommendations of the interview panel; (4) it is undisputed that the
SO relied upon the interview panel's recommendation; (5) the SO was
not required to include external applicants, such as appellant, but
specifically chose to do so; (6) the record is devoid of any specific
probative evidence to support appellant's belief that his long hair was
a factor in his non-selection; (7) even assuming that appellant's long
hair was a factor, the record is devoid of specific probative evidence
that the interview panel members or the SO associated appellant's long
hair with his national origin.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision properly analyzed appellant's
complaint as a disparate treatment claim. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 253-56 (1981); Loeb v. Textron Inc., 660 F.2d 1003 (1st
Cir. 1979). The Commission concludes that, in all material respects,
the AJ accurately set forth the facts giving rise to the complaint and
the law applicable to the case. We further find that the AJ correctly
determined that appellant failed to establish discrimination based on
age or national origin. As appellant offered no additional evidence in
support of his claim on appeal, we discern no legal basis to reverse the
agency's finding of no discrimination. Accordingly, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision finding no discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
___March 5, 1999___ _______________________
DATE Ronnie Blumenthal, Director
1Appellant later withdrew the reprisal claim from his complaint.