01A05847
09-26-2002
Kelly D. Cook, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Kelly D. Cook v. Department of the Treasury
01A05847
09-26-02
.
Kelly D. Cook,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A05847
Agency No. 98-2230, 99-2003
Hearing No. 330-98-8186X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final order.
The record reveals that complainant, a Criminal Investigator (Special
Agent), GS-12, at the agency's U.S. Customs Service facility, filed formal
EEO complaints on June 16, 1998 and October 2, 1998, alleging that the
agency had discriminated against him on the bases of race (Caucasian)
and disability (allergy related asthma) when:
(1) in June of 1997, he received a proposed seven day suspension;
in December 1997, he was removed from the Alpine Drug Enforcement Agency
Task Force; and
in March 1998, he was reassigned from Alpine, Texas to El Paso Texas.
The record reflects that complainant was stationed at an outpost with
few employees. The primary duty of the outpost was to work with other
federal and state agencies in drug interdiction cases. At the time of
the events in question, complainant was working on a Task Force with
the Drug Enforcement Administration (DEA), the Border Patrol, the Texas
Department of Public Safety and the Brewster County Sheriffs Office.
With respect to his work with the Task Force, complainant was involved in
several incidents. In the first incident, complainant was charged with
unauthorized absences that adversely impacted an enforcement action.
Complainant allegedly left a fellow officer (a DEA employee) with five
hundred pounds of marijuana, alone for thirty minutes outside the DEA
building before the contraband was secured. The second charge leading
to the proposed suspension was negligence or careless performance of
assigned duties. Based on these allegations, a seven day suspension
was proposed. In December 1997, complainant was removed from the
Alpine Drug Enforcement Agency, allegedly because of his inability to
work with the officers from other agencies, but this left complainant
few assignments. Finally, in March 1998, complainant was ordered
to report to El Paso, Texas for reassignment due to the fact that he
could not effectively work with the agents of other federal agencies.
With respect to the above incidents, complainant maintained that he was
disciplined for his actions while a Hispanic Special Agent was not.
At the conclusion of the investigation, complainant received a copy
of the investigative reports and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case
of race discrimination because a similarly situated employee, not in
complainant's protected class, was treated differently than complainant.
The AJ concluded however, that the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that its actions were
based on complainant's performance. The agency maintained that the named
Hispanic officer had never been accused of leaving his post or leaving a
fellow officer in a dangerous position so there was no need for the same
disciplinary measures. Further, the agency maintained that there was no
evidence that other agencies had requested that the Hispanic officer be
removed from the Task Force. The AJ also found that: the record showed
that the proposed suspension was rescinded; complainant on June 30,
1997, had originally requested to be reassigned from the DEA Task Force
because he was afraid that he would not be appropriately supported by
the other officers in the performance of his duties; and finally, after
he was taken off of the Task Force there was �nothing much for him to
do� so the reassignment was suggested. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reasons were a pretext to mask unlawful race discrimination. The AJ
did not address complainant's disability complaint.
The agency's final order implemented the AJ's decision. Complainant makes
no new contentions on appeal.<1>
After a careful review of the record, the Commission finds that the
granting of summary judgment was appropriate, as no genuine dispute of
material fact exists. We find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws. Moreover, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's race.
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
___09-26-02_______________
Date
1 Complainant does not raise the disability
issue on appeal and, accordingly, the Commission deems that he waived
the issue.