01973233
06-21-1999
Reginald W. Harrell, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (United States Customs), Agency.
Reginald W. Harrell v. Department of the Treasury
01973233
June 21, 1999
Reginald W. Harrell, )
Appellant, )
) Appeal No. 01973233
v. ) Agency No. 95-2175
) Hearing No. 360-95-8516X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(United States Customs), )
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 Rehabilitation Act of 1973, as amended,
29 U.S.C. � 701 et seq. Appellant alleges discrimination based upon race
(Black) and disability (colon cancer) when he was not selected for a
GS-1890-5/7/9, Custom Inspector position, which he applied for under
the Veterans Readjustment Act. The appeal is accepted in accordance
with EEOC Order No. 960.001.
On March 14, 1995, appellant filed a Complaint alleging discrimination as
referenced above. Appellant's complaint was accepted for processing.
An investigation was conducted and on October 10, 1995, appellant
requested a hearing before an EEOC Administrative Judge (AJ), but later
rescinded that request, through counsel, by filing a Motion for Findings
and Conclusions Without a Hearing on December 8, 1995. The agency
responded to appellant's motion and filed a cross-motion for Findings and
Conclusions Without a Hearing on December 20, 1995. On January 28, 1997,
the AJ rendered a recommended decision of no discrimination without a
hearing, pursuant to the requests of both parties.
The undisputed facts are as follows: Appellant retired from the United
States Air Force on August 7, 1991, after having served for 23 years.
On February 14, 1994, appellant applied for a Custom Inspector position
with the agency under the Veterans Readjustment Act (VRA).<1> Appellant
appeared for an interview in Del Rio, Texas on February 23, 1994.
During the interview process the two-member interview panel used a
previously prepared set of eight questions to evaluate the various
applicants' qualifications. The interview panel rated each applicant's
responses to the questions by assigning a plus (+) to indicate a favorable
impression, a minus (-) to indicate an unfavorable impression, and
a zero (0) to indicate neither a favorable or unfavorable impression.
According to both members of the interview panel, they were not impressed
with appellant's interview. In addition, the panel members summarized
appellant's responses by indicating that they did not believe appellant
possessed the qualities needed to make a good custom's inspector. Three
individuals who received much higher interview ratings were recommended
for hire and were ultimately selected by the District Director.
Prima Facie Case of Discrimination
It his recommended decision the AJ found that appellant established a
prima facie case of race discrimination. Specifically, the AJ noted that
appellant was qualified for the position and non-blacks were selected.
However, the AJ did not find that appellant presented a prima facie case
of disability discrimination. Specifically, the AJ noted that the mere
fact that appellant had colon cancer in the past, which was in remission,
was not sufficient to show that he was disabled within the meaning of
the Rehabilitation Act. In addition, the AJ noted that there was no
evidence that the interview panel knew of appellant's colon cancer until
the very end of the interview after appellant had been rated.
Agency's Response
The AJ found that the agency articulated a legitimate, non-discriminatory
reason for its employment action. Specifically, the members of the
interview panel explained that appellant appeared to lack self-confidence
or make eye contact. In addition, both panel members testified that
appellant was unwilling to be placed in several possible locations which
presented the appearance of inflexibility. Lastly, the interview panel
testified that they recommended the best qualified individuals to the
District Director.
Pretext
The AJ did not find that appellant established a showing of pretext
or that the agency was motivated by race or disability discrimination
in its employment decision. Specifically, the AJ noted that appellant
alleged that he was better qualified than at least one of the selectees.
Appellant further asserted that his military background with customs
experience during the years 1974 to 1978 indicated his superior
qualifications. However, it is important to note that appellant did
not specifically dispute the ratings of the interview panel or address
his performance during the interview. Appellant also asserted that
approximately 30 Custom Inspectors were hired in Laredo District from
January, 1994 through September, 1994 and none were black. The AJ found
that appellant did not prove qualification superior to other applicants.
In addition, the AJ found the interview questions were significantly
correlated with the important elements of the job duties at issue.
Lastly, the AJ found that while no black applicants were hired as Custom
Inspectors during the period January, 1994 through September, 1994, the AJ
did not find this fact sufficient to prove pretext. The AJ specifically
noted that appellant failed to indicate how many blacks applied for
such positions during the relevant time period. The AJ also noted that
the record indicated a racial make-up of blacks in the area of 1.4%.
Accordingly, the AJ did not find appellant to have sufficiently proven
age or disability discrimination.
On February 26, 1997, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding no discrimination. It is
from this decision that appellant now appeals.
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); Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n. 19 (5th
Cir. 1981). The Commission concludes that, in all material respects,
the AJ accurately set forth the relevant facts and properly analyzed the
case using the appropriate regulations, policies, and laws. Based upon
the evidence of record, the Commission discerns no basis to disturb the
AJ's finding of no discrimination.
We specifically note that appellant places great weight in the EEO
Counseling Report where it is indicated that one of the members of the
interview panel told the EEO Counselor that "[appellant] was a disabled
veteran with cancer and that customs was not interested in a person
like that." Appellant asserts that such a statement is direct evidence
of disability discrimination. We disagree. There is no independent
confirmation of the purported information contained in the EEO Counselor's
report. There is no indication in the record that the individual who
purportedly made the statement was given an opportunity to review the EEO
Counselor's report and confirm its accuracy. Furthermore, the witness'
sworn affidavit does not confirm the EEO Counselor's report, but rather
denies all allegations of discrimination. Given the circumstances of the
purported statement, we find that the EEO Counselor's report, being the
sole allegation of discriminatory animus is not sufficiently reliable
to carry appellant's burden of proving disability discrimination.<2>
It is also important to note that the informal EEO Counseling process is
designed to encourage early resolution of complaints through informal
fact gathering which is not necessarily subject to strict scrutiny.
To rely solely upon such information, without independent confirmation,
may likely discourage both the agency and complainant from supplying
such necessary information, and accordingly, restrict the likelihood of
early resolutions.
In addition, appellant argues on appeal that the AJ erred in not finding
evidence which establishes that the interview panel "regarded" appellant
as disabled. In support of his contention, appellant alleges that
the record shows that the interview panel had access to information
which indicated that appellant was honorably medically discharged
from the military. While there is no evidence which indicates that
the interview panel knew of appellant's honorable medical discharge,
such factor alone does not sufficiently prove that the interview panel
regarded appellant as disabled. In addition, the undisputed record
indicates that the interview panel became aware of appellant's colon
cancer after they rated appellant's interview. Accordingly, we do not
find this information sufficient to prove disability discrimination.
For the reasons stated above, and for reasons not specifically addressed
herein, 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:
6/21/99
_______________ ____________________________________
DATE Carlton M. Hadden, Acting Director
1There is no record of employment for appellant between his retirement
and his application for the Custom Inspector position.
2If appellant found this information compelling, it behooved him to
develop the record on this issue at a hearing which he expressly choose
to forgo.