01982246
12-27-1999
Victor Karcich, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Victor Karcich v. Department of Justice
01982246
December 27, 1999
Victor Karcich, )
Complainant, )
) Appeal No. 01982246
v. ) Agency No. I-94-6561
) Hearing No. 340-96-3765X
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of race (Caucasian) 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.<1> For the
following reasons, the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
preponderant evidence, that the agency discriminated against him on the
bases of race and reprisal when it counseled him on two occasions.
BACKGROUND
The record reveals that complainant, a Border Patrol Agent (BPA) at
the agency's Calexico Station facility. On July 18, 1994, complainant
was counseled by his second-line supervisor for failing to follow
instructions given by his immediate supervisor and failure to maintain
area integrity.<2> On July 28, 1994, complainant was issued a second
counseling by his immediate supervisor and second-line supervisor for
failure to stop at a stop sign, exceeding the speed limit, failure
to yield to police officer's emergency lights, and going to a private
residence without notifying his supervisor rendering complainant unable
to respond to alien traffic.<3> Complainant filed a formal EEO complaint
with the agency on November 28, 1994, alleging that the agency had
discriminated against him on the bases of race (Caucasian) and reprisal
when he was counseled these two occasions. As relief, complainant
requested that the counseling letters be removed from his personnel file,
that the agency transfer him, and that he receive compensatory damages.
By letter dated February 14, 1995, complainant was advised that his
complaint had been accepted and his allegations would be investigated.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ) by letter dated March 13, 1996.
On October 31, 1996, the agency filed a Motion for Decision on the Record.
Complainant did not respond to the agency's Motion. The AJ found that
there were no issues of material fact to be decided in this case and
issued his recommended Findings of Fact and Conclusions of Law based on
the written record on October 3, 1997.
The AJ concluded that complainant failed to establish a prima facie case
of racial discrimination because he failed to demonstrate that similarly
situated employees not in his protected classes were treated differently
under similar circumstances wherein the same supervisors failed to
impose like or similar discipline. The AJ further stated that even if
complainant established a prima facie case of racial discrimination,
the agency demonstrated legitimate, nondiscriminatory reasons for its
actions. As to complainant's allegation of reprisal discrimination, the
AJ found that complainant did establish a prima facie case of reprisal
discrimination by providing evidence that he participated in prior EEO
activity, that his supervisors were aware of his activity, and that he
was disciplined in close time to his protected activity. However, the AJ
held that the agency articulated legitimate, non-retaliatory reasons for
the agency to counsel complainant. Accordingly, the AJ concluded that
complainant failed to carry his burden of proof to establish his claim
of racial and reprisal discrimination by a preponderance of the evidence.
The agency's FAD implemented the AJ's recommended findings of fact and
conclusions of law.
On appeal, complainant makes no new contentions but reiterates his
accusations of a history of retaliatory and discriminatory acts committed
by the agency.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
After a careful review of the record, we find the AJ properly determined
that there was no genuine issue of material fact in this case.
Specifically, we find that complainant failed to set forth sufficient
facts showing that there was a genuine issue still in dispute. Moreover,
complainant failed to respond to the agency's Motion for Decision on
the Record and failed to provide in this appeal any evidence or argument
that material issues are in dispute. Therefore, we concur in the AJ's
determination and find that summary judgment was appropriate in this
case.
Based on our careful de novo review of the entire record before us,
the Commission finds that the AJ's recommended findings and conclusions
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We conclude that complainant failed to
establish by preponderant evidence that any of the agency's actions were
in retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race. Accordingly, we
discern no basis to disturb the AJ's recommended findings and conclusions
or the agency's adoption of the AJ's decision.
CONCLUSION
Therefore, after a careful review of the record, we AFFIRM the agency's
FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 27, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
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.
2 Complainant allegedly noticed aliens running through border
traffic. However, instead of pursuing the aliens, complainant allegedly
remained where he was standing, conversing with another individual.
3 The written counseling document was prepared on July 28, 1994, but
complainant was not orally counseled until August 2, 1994.