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