Joseph Kozloski, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMay 2, 2000
01980738 (E.E.O.C. May. 2, 2000)

01980738

05-02-2000

Joseph Kozloski, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Joseph Kozloski v. Department of the Navy

01980738

May 2, 2000

Joseph Kozloski, )

Complainant, )

) Appeal No. 01980738

v. ) Agency No. DON 96-00177-009

) Hearing No. 120-97-4189X

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) 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 Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405).<2> Complainant alleges he was

discriminated against on the bases of race (American Indian), national

origin (American Indian) and physical handicap (left knee) when the agency

did not promote him to a Supervisory Engineering Technician position in

September 1995.

The record reveals that complainant, a Planner and Estimator at

the agency's Public Works Center in Norfolk, Virginia, filed a

formal EEO complaint on March 19, 1996, alleging that the agency had

discriminated against him as referenced above.<3> 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 decision finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of discrimination on any of his alleged bases. The AJ found that

neither the selecting official nor the recommending panel members were

aware of complainant's American Indian heritage or his disability.<4>

The agency's final decision implemented the AJ's decision. On appeal,

complainant contends that the selection process was designed to favor

one individual, and he attempts, through the submission of a Report of

Investigation concerning an unnamed employee, to discredit some of the

agency's witnesses.<5> In response, the agency restates its position

and requests that we affirm its final decision.

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).

We do not reach the issue of whether or not the AJ correctly held that

complainant is not a qualified individual with a disability within the

meaning of the Rehabilitation Act. Based on our review of the record,

we find that even assuming arguendo complainant is a "qualified individual

with a disability, we discern no basis to disturb the AJ's finding of no

discrimination. We find that complainant failed to present any evidence

from which we could possibly infer that his non-selection was motivated by

discriminatory animus. We also note that even if complainant could have

established a prima facie case of discrimination, he was ranked eight out

of the ten candidates for the position, and there is no evidence that his

qualifications were superior to those of the selectee. Therefore, after

a careful review of the record, we AFFIRM the agency's final decision.

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:

May 2, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.

2 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.

3 Complainant had been temporarily promoted to an Engineering Technician

position at the time of the alleged discrimination.

4 Notably, the AJ found that they were all under the general impression

that complainant, like the selectee, was White, and some panels members

assumed that he was Polish.

5 Complainant attempts to raise age discrimination and retaliation

on appeal. We note that at the hearing, the AJ specifically asked

complainant if he wanted to add those additional bases, and he declined

to do so.