David L. Kegel, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, (U.S. Customs Service), Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01974382 (E.E.O.C. Jul. 17, 2000)

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.