01974743
06-22-1999
Wayne Kratzer, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (U.S. Custom Service), Agency.
Wayne Kratzer v. Department of the Treasury
01974743
June 22, 1999
Wayne Kratzer, )
Appellant, )
) Appeal No. 01974743
v. ) Agency Nos. 94-4025; 94-4164
) Hearing No. 340-96-3787X
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(U.S. Custom Service), )
Agency. )
)
DECISION
Appellant filed a timely appeal with this Commission from a final agency
decision ("FAD") concerning his complaints of employment discrimination
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. In his two
complaints, appellant alleged that: (1) he was discriminated against
on the bases of race (Caucasian), sex (male), and age (DOB: 9/17/40)
when he was not selected for the one of several of Senior Special Agent
positions advertised in two separate agency vacancy announcements; and
(2) he was discriminated against on the bases of age and reprisal (prior
EEO activity) when he was suspended for four days between January 25,
and 28, 1994. This appeal is accepted in accordance with the provisions
of EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
The record reveals that appellant, a GS-12 Special Agent at the agency's
Office of the Special Agent in Charge, Los Angeles, California, filed
formal EEO complaints with the agency on October 18, 1993 and March 8,
1994, alleging discrimination as referenced above. At the conclusion
of the investigation, appellant requested a hearing before an Equal
Employment Opportunity Commission ("EEOC") Administrative Judge ("AJ").
Determining that there was no genuine dispute of material fact and
pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
("RD") Without a Hearing finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of discrimination regarding the selections for the Senior Special Agents
positions because he failed to present evidence that would give rise to
an inference of discrimination. As for the four-day suspension, the AJ
concluded that appellant failed to establish a prima facie case of age
or reprisal discrimination because he failed to demonstrate that younger
employees were treated differently under similar circumstances and failed
to show that his supervisor was aware of his EEO activity when he rendered
the suspension. As a result, the AJ concluded that appellant did not
establish that he was subject to unlawful discrimination or retaliation.
The agency's FAD adopted the AJ's RD.
On appeal, appellant contends that the AJ erred by: (1) not compelling
the agency to comply with certain discovery requests; and (2) rendering
a decision without a hearing when the case had unresolved issues of
material fact. The agency responds by restating the position it took
in its FAD and requests that we affirm its FAD.
After a careful review of the record, consisting of the investigative
file, the RD, the FAD, and the parties' statements on appeal, the
Commission concludes that the AJ accurately set forth the facts giving
rise to the complaint and the law applicable to the case. In this regard,
the Commission notes that an AJ may issue a decision without a hearing
when there is no genuine issue of material fact. Such a decision is
appropriate if, after adequate investigation, appellant has failed to
establish the essential elements of his case. Spangle v. Valley Forge
Sewer Auth., 839 F.2d 171, 173 (3d Cir. 1988). We agree with the AJ and
find that appellant failed to demonstrate that there were genuine issues
of material fact requiring a hearing. We also conclude that appellant
failed to establish a prima facie case of race, sex, age or reprisal
discrimination. Specifically, we find that appellant failed to present
any credible evidence indicating that the selection panel for the Senior
Special Agent positions considered his race, sex or age in its selections.
Likewise, we find that appellant, who was charged with insubordination,
failed to demonstrate that any similarly situated employee outside his
protected classes was treated more favorably under similar circumstances.
Accordingly, it is the decision of the Commission to AFFIRM the FAD
which adopted the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
June 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations