01a23240_r
08-28-2002
Jose S. Ramirez, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jose S. Ramirez v. Department of the Treasury
01A23240
August 28, 2002
.
Jose S. Ramirez,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A23240
Agency No. 99-2135
Hearing No. 150-99-8727X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final action concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. �621 et seq. In his complaint, complainant alleged
that he was discriminated against based on race (Hispanic), sex (male),
and age (43) when on September 23, 1998, he was not selected for the
position of Supervisory Customs Inspector GS 1890-13 position under
Vacancy Announcement Number SOFLA/98-022 JLG. The record indicates that
at the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The AJ, after a hearing,
issued a bench decision finding no discrimination.
The AJ determined that complainant established a prima facie case of
discrimination on the bases of race, sex, and age. The AJ further
concluded that the agency articulated a legitimate, nondiscriminatory
reason for its action. A selecting official testified that when the
selection panel members, consisting of himself and three other officials,
discussed complainant's application, they considered complainant's
judgment, prior discipline, and absenteeism. Complainant had received a
five-day suspension in 1990 for being under the influence of alcohol and
using foul language while on duty, and in uniform. In 1994, complainant
committed the most egregious law enforcement offense, when he planted
narcotics on a suspect in order to facilitate an arrest. The selecting
official testified that under these circumstances, in good conscience,
he could not select complainant to the alleged position. The AJ found
that the agency articulated a legitimate, non-discriminatory reason for
its action. The AJ also found that complainant did not establish that
more likely than not, the agency's articulated reason was a pretext to
mask unlawful retaliation. The agency's final action implemented the
AJ's decision. Complainant raises no persuasive contentions on appeal.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the agency's final action is
hereby AFFIRMED because a preponderance of the record evidence does not
establish that discrimination occurred.
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
August 28, 2002
__________________
Date