01993016
06-07-2002
Arnold J. Kazmer, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury (Customs Service), Agency.
Arnold J. Kazmer v. Department of the Treasury (Customs Service)
01993016
06-07-02
.
Arnold J. Kazmer,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Customs Service),
Agency.
Appeal No. 01993016
Agency No. TD 97-3306
Hearing No. 210-98-6265X
DECISION
On March 1, 1999, Arnold J. Kazmer (hereinafter referred to as
complainant) filed a timely appeal from the February 19, 1999,
final decision of the Department of the Treasury (Customs Service)
(hereinafter referred to as 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.
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision finding no discrimination is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
him on the bases of race (white) and national origin (non-Hispanic)
when he was not selected for the position of Group Supervisor, Chicago,
Illinois, in June 1997.
Complainant filed his formal complaint on September 30, 1997. Following
an investigation, he requested a hearing before an EEOC Administrative
Judge (AJ). The AJ conducted a hearing and issued a decision on December
17, 1998, finding no discrimination. In its final decision, the agency
adopted the AJ's decision.
As described in more detail in the AJ's decision, complainant applied
for the position at issue but was not selected in favor of an Hispanic
employee (E1). A manager (M1) testified extensively about the selection
decision, referring to the assessment of the candidates and stating that
E1's qualifications met a strong need in the Chicago office. In the
recommendation to the selecting officials in Headquarters, the M1 stated,
in part:
Based on our assessment of the candidates, listed in the Selection
Register provided by your office, and the need to diversify the workforce
in the SAC Chicago office, I recommend [E1].... [emphasis supplied]
AJ's Decision, p. 5.
The AJ discussed whether the statement in the memorandum making reference
to E1's national origin constituted direct evidence of discrimination.<1>
She found that the memorandum was not direct evidence and, applying the
McDonnell-Douglas analysis, found that the agency did not discriminate
against complainant. On appeal, complainant repeated arguments made
before the AJ, that M1's statement was direct evidence of discrimination
and one of two reasons for selection of E1; that the statement
demonstrated a bias against complainant; and that the AJ's statement
that �complainant presents evidence that, on its face, [the memorandum]
appears to contain direct evidence that minority status was a factor in
the selection process� required a finding of discrimination.
Pursuant to 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 regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). After an
independent review of the record and hearing testimony in its entirety,
including consideration of all statements submitted on appeal, it is the
decision of the Commission that the AJ accurately stated the facts and
correctly applied the pertinent principles of law and that her decision
is supported by substantial evidence in the record.
We note in addition that the AJ's examination of M1's motivations at
the time of the selection to determine if M1's statement constituted
direct evidence was proper and in accord with Commission precedent.
See Turner v. Department of Veterans Affairs, EEOC Request No. 05950960
(January 30, 1998). Upon finding that M1's statement did not constitute
direct evidence of discrimination, she properly applied the tripartite
analysis of McDonnell-Douglas. Based on our review, we agree with
the AJ's decision and find that the agency did not discriminate against
complainant when he was not selected for the position of Group Supervisor
in Chicago.
Complainant argued that M1's statement constituted direct evidence of
discrimination. As stated, above, the AJ's decision on this matter was
proper, and the legal analysis was consistent with Commission precedent.
With regard to the statement referred to by complainant, we find that, in
light of the rest of her decision, it was merely an awkward introduction
to her consideration of whether direct evidence existed and, as it was
stated in the subjunctive tense, was not, in itself, a finding that
direct evidence existed or required a finding of discrimination.
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____06-07-02______________
Date
1If the AJ found that M1's statement constituted direct evidence,
the traditional burden-shifting analysis of McDonnell Douglas
Corp. v. Green, would not apply. 411 U.S. 792 (1973); Transworld Air
Lines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); see Recent Developments
in Disparate Treatment Theory, EEOC Notice No. 915.002, p. 11 & n. 11
(July 14, 1992). Direct evidence of discrimination is "evidence, which,
if believed, proves the existence of the fact in issue without inference
or presumption." Randle v. LaSalle Telecommunications, Inc., 874 F.2d
563, 569 (7th Cir. 1989).