01974382
07-17-2000
David L. Kegel, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, (U.S. Customs Service), Agency.
David L. Kegel v. Department of the Treasury
01974382
July 17, 2000
David L. Kegel, )
Complainant, )
) Appeal No. 01974382
v. ) Agency Nos. 92-2332; 96-2038; 96-2058
) Hearing Nos. 360-96-8757X; 360-96-8658X;
Lawrence H. Summers, ) 360-96-8698X
Secretary, )
Department of the Treasury, )
(U.S. Customs Service), )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaints of
unlawful employment discrimination on the bases of race (Caucasian),
color (White), religion (perceived to be Jewish), sex (male), national
origin (German), age (DOB 3/21/54) 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> Complainant initially
alleged (claim number 92-2332) he was discriminated against when, on June
7, 1995, he was not selected for a GS-1890-11 Customs Inspector position.
Complainant then filed a second complaint (claim number 96-2038) when
he was not selected for a Customs Inspector position on August 20, 1995.
Finally, complainant filed a third complaint (claim number 96-2058) when
he was not selected for a Customs Inspector position on September 18,
1995, and when he received an �Excellent� rating on his annual appraisal
for the period from June 1, 1994 through May 31, 1995. The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405). For the following reasons, the Commission
AFFIRMS the agency's FAD.
The record reveals that during the relevant time, complainant was
employed as a GS-1890-09 Customs Inspector at the agency's San Antonio,
Texas, facility. Believing he was a victim of discrimination, complainant
sought EEO counseling and, subsequently, filed formal complaints on August
23, 1995, October 26, 1995 and November 13, 1995. At the conclusion
of the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination.
The AJ initially concluded that complainant established a prima facie case
of discrimination on all bases regarding the rating of �Excellent� on his
performance appraisal, as the circumstances surrounding this appraisal,
if left unexplained, raised an inference of discrimination. Regarding
complainant's three nonselections at issue, the AJ noted complainant's
contention that a female selectee not in his protected group had a lower
graded application score but was nevertheless selected. The AJ found
that these circumstances, if left unexplained, raised an inference of
discriminatory animus and thus complainant established a prima facie
case of discrimination as to the nonselections. In addition, the AJ
found that complainant established a prima facie case of retaliation
regarding the nonselections and the appraisal.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. In so finding, the AJ
credited the testimony of the Selecting Official (SO) that he asked the
selection panel to rate the supervisory and managerial capabilities of
the applicants in addition to their application scores. The AJ also
noted the testimony of the Supervisory Customs Inspector (SCI), who
stated that complainant was rated consistently by the selection panels,
and had been given the second highest score by at least one panel,
but he did not score high enough to be recommended to the SO for any
of the available positions at issue. The AJ further found that based
on the testimony of the SO and SCI, there was insufficient evidence to
conclude that the sole female selected for one of the Customs Inspector
positions at issue was selected due to her sex. In so finding, the AJ
found credible that although the female candidate's application score was
lower than complainant's, the selection panel made its recommendation
to the SO based not only on her application scores but also due to her
highly rated leadership skills and abilities to manage.
Regarding the appraisal, the AJ credited the SCI's testimony that
complainant did not demonstrate an �Outstanding� performance during the
rating period, as he had been inconsistent and there had been complaints
about complainant regarding his allegedly telling customers to �learn
English,� but that his job performance had nevertheless qualified for
a rating of �Excellent.� In addition, the AJ noted the testimony of
another SCI who testified that those Customs Inspectors who are rated
as �Outstanding� had a high number of searches and recovered liquidated
damages and had also initiated new programs, but complainant did not meet
any of these criteria, and as a result both SCI agreed that complainant's
performance warranted an �Excellent� rating.
The AJ further found that complainant did not establish that more
likely than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination and/or retaliation. In reaching this conclusion,
the AJ found that complainant presented insufficient evidence that any
individual involved in the rating or selection process had a propensity to
discriminate based on race, religion, color, sex, national origin, age or
prior EEO activity. Furthermore, the AJ found that the agency's failure
to keep written records of its rating and ranking procedures involved in
the selection process was insufficient to lead to an adverse inference,
and that the selection of the Customs Inspector position at issue was
based on objective consideration of �nonquantifiable� skills and abilities
by the recommending panel in addition to application scores. Similarly,
the AJ found that while complainant disagreed with his appraisal rating,
there was no evidence to suggest that there was a discriminatory motive
involved. The agency's FAD implemented the AJ's RD. Complainant makes
no new contentions on appeal, and the agency requests that we affirm
its FAD.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's finding that
complainant failed to meet his burden of establishing that the agency's
actions in not selecting him for a GS-11 Customs Inspector position
and giving him an �Excellent� performance appraisal in 1995 were more
likely than not motivated by discriminatory or retaliatory animus
toward complainant's age, race, sex, color, national origin, religion
or prior EEO activity. We thus discern no basis to disturb the AJ's RD.
Therefore, after a careful review of the record and including arguments
and evidence not specifically addressed in this decision, we affirm the
agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.