Daniel R. Morse, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, (U.S. Customs Service) Agency.

Equal Employment Opportunity CommissionJun 10, 1999
01973403 (E.E.O.C. Jun. 10, 1999)

01973403

06-10-1999

Daniel R. Morse, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (U.S. Customs Service) Agency.


Daniel R. Morse v. Department of the Treasury

01973403

June 10, 1999

Daniel R. Morse, )

Appellant, )

) Appeal No. 01973403

v. ) Agency Nos. 94-4139

) 94-4144

Robert E. Rubin, ) 94-4227

Secretary, ) Hearing Nos. 340-95-3435X

Department of the Treasury, ) 340-95-3436X

(U.S. Customs Service) ) 340-95-3437X

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision

("FAD") concerning his equal employment opportunity ("EEO") complaint

of unlawful employment discrimination on the bases of race (Black),

color (Black), and reprisal (prior EEO activity), in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. Appellant alleges he was discriminated against when:

(1) he was temporarily and then later permanently reassigned to the

Resident Agent in Charge, Office of Enforcement, Los Angeles Airport

("RAC, LAX"); and (2) he was not provided a temporary acting assignment

to the position of Director of Intelligence. This appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the agency's decision is AFFIRMED.

The record reveals that appellant, a GS-1811-13 Senior Special Agent

at the agency's RAC, LAX, filed three formal EEO complaints with the

agency in 1994, alleging that the agency had discriminated against him as

referenced above. At the conclusion of the consolidated investigation,

appellant requested a hearing before an Equal Employment Opportunity

Commission ("EEOC") Administrative Judge ("AJ"). Following a hearing,

the AJ issued a Recommended Decision ("RD") finding no discrimination.

With regard to his opportunity to serve as Acting Director of

Intelligence, the AJ concluded that appellant failed to establish a prima

facie case of race or color discrimination because he was not similarly

situated to the selectee in that the selectee was a current supervisor

laterally assigned into the position. The AJ also held that appellant

failed to establish a prima facie case of reprisal because there was

no credible evidence demonstrating that the responsible agency official

("RO") had actual knowledge of appellant's prior EEO activity. As to his

temporary and permanent reassignments, the AJ concluded that appellant

failed to establish a prima facie case of race or color discrimination

concerning the reassignments because similarly situated employees not

in his protected classes were also reassigned during the same period

as appellant. However, the AJ concluded that appellant established a

prima facie case of reprisal discrimination concerning his permanent

reassignment to the RAC, LAX, because the RO executed the reassignment

within two weeks of being contacted by appellant's EEO counselor. The AJ

then concluded that the agency articulated legitimate, nondiscriminatory

reasons for the reassignment, namely, that the RO stated that appellant

was being wasted in his prior position and that the greater need for

appellant's skills was with the RAC, LAX. Finally, the AJ concluded that,

in reviewing all of the evidence, appellant did not establish that more

likely than not, the agency's articulated reasons were a pretext to mask

unlawful discrimination or retaliation. The agency's FAD adopted the

AJ's RD.

On appeal, appellant contends that the AJ erred by failing to properly

weigh and consider all of the evidence. The agency responds by restating

the position it took in its FAD, and requests that we affirm its FAD.

After a careful review of the record in its entirety, including the

statements submitted on appeal, the Commission finds that the AJ's RD

sets forth the relevant facts and properly analyzes the appropriate

regulations, policies and laws. We find that the AJ properly analyzed

the relevant evidence and correctly determined that appellant failed

to present sufficient, credible evidence demonstrating discrimination

or reprisal. Therefore, we discern no basis upon which to overturn the

AJ's finding of no discrimination in this matter. In this regard, the

AJ made specific credibility findings which are entitled to deference

due to the AJ's first-hand knowledge, through personal observation,

of the demeanor and conduct of the witnesses. See Esquer v. United

States Postal Serv., EEOC Request No. 05960096 (September 6, 1996);

Willis v. Department of the Treasury, EEOC Request No. 05900589 (July

26, 1990). Accordingly, it is the decision of the Equal Employment

Opportunity Commission to AFFIRM the agency's final decision which

adopted the AJ's finding of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

June 10, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations