01972539
10-30-1998
Neville Cramer, Appellant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Neville Cramer v. Department of Justice
01972539
October 30, 1998
Neville Cramer, )
Appellant, )
) Appeal No. 01972539
v. ) Agency No. I-94-6516
)
Janet Reno, )
Attorney General, )
Department of Justice )
(Immigration and Naturalization )
Service), )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e et seq. The appeal is
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency discriminated against appellant
on the basis of religion (Jewish) when he was removed as the Federal Law
Enforcement Training Center's representative to the agency's Firearms
Review Board.<1>
BACKGROUND
Appellant filed a formal complaint on July 5, 1994, alleging
discrimination based on religion (Jewish) with regard to the issue set
forth above. Following an investigation, the agency notified appellant
of his right to request either a hearing or an immediate final decision.
Appellant did not request a hearing and the agency issued a final decision
(FAD) dated January 3, 1997, finding no discrimination. It is from that
decision that appellant now appeals.
During the period in question, appellant was employed as the
Chief of the Immigration Officer Academy, Federal Law Enforcement
Training Center (the Center), in Glynco, Georgia. In this capacity,
appellant's immediate supervisor was the agency's Director of Training
(the Responsible Official, RO). The record reveals that, in June 1994,
the RO removed appellant as the Center's representative to the agency's
Firearms Review Board (FRB). The RO offered two reasons for this action.
First, he stated that appellant was using his position as representative
to the FRB to advocate transferring the RO's position to Washington
and getting the RO downgraded into a lower-level position. Second,
the RO noted that the Weapons Inventory Control System (WICS) had been
transferred to headquarters, which made it beneficial to have the Center's
FRB representative knowledgeable with regard to WICS. The RO indicated
that appellant was not knowledgeable with regard to WICS and noted that,
in contrast, the individual who replaced appellant was a WICS expert.
In arguing that his removal from the FRB was discriminatory, appellant
alleges that, a year prior to his removal, he heard the RO state in a
telephone conversation that "[appellant] is a typical Jew." Appellant
also alleges that the RO often refers to his German ethnicity and work
ethic and he states that the RO's management style is "Nazi-like."
The RO acknowledged making comments about his German heritage and work
ethic, but noted that he did so out of pride. In response to the
allegation that he had referred to appellant as a "typical Jew," the
RO stated, "I do not recall making such a comment nor could I imagine
making such a statement." In this regard, we note that the RO denied
being anti-Semitic and none of the witnesses interviewed had ever heard
the RO make comments which would indicate such a bias. According to a
Staff Assistant (SA), he recalled an instance in 1993 when the RO related
to him that a third party had referred to appellant as a "typical Jew."
The SA speculated that appellant overheard this conversation and concluded
that the RO was making the comment about appellant.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Appellant has the initial burden
of establishing a prima facie case of discrimi-nation. If appellant
meets this burden, then the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Appellant must then prove, by a prepon-derance of the evidence, that
the legitimate reason articulated by the agency was not its true reason,
but was a pretext for discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Assuming that appellant can establish a prima facie case based
on religion, we find that the agency articulated legitimate,
nondiscriminatory reasons for appellant's removal from the FRB.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Specifically, the RO stated that appellant was removed from the FRB
because he was using his position to advocate the transfer of the RO's
position to Washington and the downgrade of the RO into a lower-level
position. The RO also stated that he wanted the Center's representative
to the FRB to be an expert with regard to WICS, noting that appellant
did not possess such expertise.
At this point, appellant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination.
Appellant can do this either directly, by showing that a discrimi-natory
reason more likely motivated the agency, or indirectly, by showing that
the agency's proffered explanation is unworthy of credence. Id. at 256.
In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Supreme
Court held that a fact finder is not required, as a matter of law, to
find discrimination whenever it finds that the employer's explanation is
not credible. The Court further made clear that a fact finder may find
discrimination in such circumstances. The critical factor is that a fact
finder must be persuaded by the complainant that it was discrimination
that motivated the employer to act as it did. According to the Court,
it is not sufficient "to disbelieve the employer; the fact finder must
believe the plaintiff's explanation of intentional discrimination."
Id. at 519 (emphasis in original).
As discussed, appellant's primary contention is that he overheard the RO
refer to him as a "typical Jew." Although this is clearly a disturbing
and offensive comment, the evidence of record supports a finding that,
if such a comment was made by the RO, he was simply repeating what
another individual had said about appellant. While even repeating such
a comment may not have been appropriate, it does not support a finding
that the RO held that view of appellant.
For that reason, and absent any evidence that the RO had ever made similar
comments about appellant, the Commission finds that the aforementioned
evidence does not establish that the decision to remove appellant from
the FRB was based on his religion.
In considering the credibility of the RO's articulated reasons, we note,
as the agency did in the FAD, that the first reason appears to be more
credible than the second. Specifically, it appears that the RO may
have justified his actual reason for removing appellant, i.e., because
he believed appellant was advocating his transfer and/or downgrade,
with the more palatable reason that appellant had limited knowledge
of WICS. Even if this is true, however, we note that there is nothing
discriminatory about the first reason. Accordingly, we find appellant
has not established that he was discriminated against as alleged.
CONCLUSION
Based on a review of the record and for the reasons cited above, it is
the decision of the Commission to AFFIRM the FAD and find appellant has
not established that the agency discriminated against him as alleged.
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:
OCT 30, 1998
DATE Ronnie Blumental, Director
Office of Federal Operations
1 The agency's final decision also addressed whether appellant had been
discriminated against with regard to his performance ratings. Although
appellant mentioned his performance ratings in his complaint, we find
that they were cited as background information rather than as a separate
allegation of discrimination. Moreover, even if the reference were
construed as a separate allegation, we note that the agency neither
accepted it for investigation nor investigated it. For these reasons,
and because appellant has never challenged the manner in which the agency
characterized his complaint, this decision shall not address his
performance ratings.