01974343
12-08-1999
Frank J. Lynch, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Frank J. Lynch v. Department of the Interior
01974343
December 8, 1999
Frank J. Lynch, )
Complainant, )
)
v. ) Appeal No. 01974343
) Agency No. FNP-95-069
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
On May 7, 1997, the complainant initiated an appeal with the Equal
Employment Opportunity Commission (Commission) from a final decision
of the agency dated April 10, 1997 concerning his 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.<1> The appeal is
timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29
C.F.R. �1614.402(a)), and is accepted under 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified as 29 C.F.R. �1614.401(a)).
ISSUE PRESENTED
Whether the complainant was discriminated against on the bases of his
race and sex (white male) when he was not selected for a competitive
promotion to the position of Engineering Equipment Operator Supervisor,
WS-10, in 1995.
BACKGROUND
The complainant filed an EEO complaint alleging the above issue.
Following an investigation, the agency notified the complainant of his
right to request a hearing, which he waived. Thereafter, the agency
issued a final decision finding no discrimination.
The agency solicited applicants for the position at issue, which was
located with the Grand Teton National Park, Division of Maintenance,
in Wyoming. According to the vacancy announcement, the job involved
supervision and direction of road maintenance, including planning annually
recurring functions and day to day operations, planning and procuring
personnel, equipment, and materials, care of equipment, scheduling
and assigning work, explaining and demonstrating work methods, writing
position descriptions and performance standards, evaluating employees,
and preparing reports. It also included supervising the maintenance of
a snowmobile trail.
Prior to the selection, the complainant worked as an Engineering
Equipment Operator, WG-10, with the Grand Teton National Park, Division
of Maintenance. He served two 60 day details in the supervisory position
in question.
In 1995, the complainant's second level supervisor recommended the
selectee (white female) for selection. The complainant's third level
supervisor, who was new to the job, deferred to the recommendation
and chose the selectee. Prior to being selected, the selectee was an
Engineering Equipment Operator, WG-10, with the Glacier National Park,
Division of Maintenance, in Montana.
ANALYSIS AND FINDINGS
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides
the analytical framework for proving employment discrimination in
cases in which disparate treatment is alleged and no direct evidence
of discrimination has been presented. McDonnell Douglas requires the
complainant to first establish a prima facie case of discrimination.
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its action. Finally, the complainant has
the opportunity to show, by a preponderance of the evidence, that the
agency's stated reason is a pretext for discrimination. The ultimate
burden of proof that discrimination took place is the complainant's.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981).
Since the agency articulated legitimate, nondiscriminatory reasons
for not selecting the complainant, as set forth below, we may proceed
directly to whether he demonstrated by a preponderance of the evidence
that the agency's reasons were merely a pretext to hide discrimination.
United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).
The second level supervisor explained that he recommended the selectee
because she was the best merit candidate for the job. He explained that
the criteria he used were (1) people skills, (2) supervisory experience,
(3) equipment operation experience, (4) and multi-dimensional experience.
He stated the selectee's people skills were highly praised by her
superiors. In response to a question regarding the selectee's ability
to work harmoniously with others, the selectee's supervisor wrote it
was excellent, stating she was very cooperative and a team player.
In response to the same question, a higher level superior exclaimed
"Yes!." When asked to provide other comments, the selectee's supervisor
wrote the selectee was very intelligent, good in front of people, and
would make an excellent supervisor, adding "really, really." The higher
level superior wrote the selectee was the best operator he had and the
agency could not do much better.
The complainant's second level supervisor stated that his observations
of the complainant were that he did fairly well in people skills.
He added, however, that he got mixed reviews when talking with staff,
inmate crew leaders, rangers, and others regarding the complainant's two
60 day details in the position in question in 1994 and early 1995, and
that the complainant needed to establish a stronger leadership role.
With regard to supervision, the second level supervisor stated the
only formal supervisory experience the complainant had was the two
60 day details. He noted the selectee was detailed to supervise
a masonry crew on a technical rock work project and snow blasting,
and both the complainant and the selectee served as informal work
leaders. The complainant's application revealed that he completed
annual performance appraisals when he acted, and completed evaluations
for seasonal employees. The selectee did not indicate such activity.
The applications of both the complainant and the selectee indicated they
had substantial experience supervising many aspects of road maintenance
and other projects. The second level supervisor approvingly noted that
the selectee had approximately twice as much federal course supervisory
training as the complainant.
With regard to equipment operation experience, the second level supervisor
stated that the complainant and the selectee had a similar career
progression. He added, however, that snow removal was more technically
difficult and dangerous where the selectee worked. The second level
supervisor indicated that the selectee distinguished herself and was more
qualified because she attended a vocational technical school where she
received formal training on heavy equipment operation and maintenance,
welding, and surveying. The selectee's application papers reflect that
she went to this school over a period of about nine months in 1991 and
1992 as part of a co-op program with the Glacier National Park, and out
of 1,500 students was student of the year.
The second level supervisor's affidavit reflected that he looked to
multi-dimensional experience as a way to assess whether a candidate
took the initiative to put oneself on a supervisory track and to measure
supervisory potential. To this end, the second level supervisor referred
to the selectee's college degree in recreation resource management
and vocational technical training, serving as a contracting officers'
representative involving procurement for construction, being an EEO
Committee Chair, her community service activities, speaking engagements,
and work on a nationally recognized Essential Competencies group
developing equipment operator standards. The second level supervisor
added that the selectee had the enhancing skills of surveying and
blasting [snow], which would save his division costs because it could
avoid bringing in outside specialists to do this work.
The second level supervisor stated that while the complainant had some
similar experience and training, it was less so. He noted the complainant
had no contracting officer representative assignments, which were part of
the job in question, no blasting experience, listed no community service,
less public speaking, and had no activity with national recognition.
The second level supervisor recognized, however, that the complainant
served as an EEO counselor for several years.
Finally, the second level supervisor stated that while the quality of the
complainant's application papers were good, the selectee's were excellent,
which reflected better on the selectee. The second level supervisor
explained that the complainant's application contained spelling, syntax,
grammar and punctuation errors, and was extremely wordy, while the
selectee's looked professional.
The complainant argues that the agency's reasons for choosing the
selectee were pretext to mask discrimination. First, he contends that
the second level supervisor hired the selectee to meet female diversity
goals. The complainant points to a 1995 work plan which states that his
organization had the goal of actively recruiting minorities and women for
roads and trails jobs. The second level supervisor explained, however,
that while he was required to seek out females and minorities to compete
for vacant positions, he was prohibited from giving them preferential
selection rights and did not do so in this case. He stated he chose
the selectee based on her merit.
Next, the complainant took issue with the second level supervisor's
characterization of his people/supervisory skills. First, he states
the selectee was never an acting supervisor. Her application indicates
otherwise, but without the full constellation of supervisory duties.
For example, she provided input for evaluations but did not do them.
She did, however, write justifications for fast track awards. Both the
complainant and the selectee had substantial experience in many aspects
of supervisory work.
The complainant submitted statements from five co-workers who indicated
he had excellent people skills, showed initiative, and was a leader.
The co-workers who specifically referred to the complainant's performance
in the acting supervisor job were highly complimentary of his work.
The former incumbent of the job in question retired in April 1994. After
he retired, the complainant and Co-worker 1 acted in the job in rotating
60 day stints. The EEO counselor interviewed one identified co-worker who
reportedly stated that he had nothing good to say about the complainant's
leadership when he was acting. This co-worker explained the operation
lacked organization, that there was a lack of communication, people did
not know when others were on leave or other duties. The former incumbent
stated that relative to employees saying the complainant did not give
good direction when he was acting, two employees were bitter about the
complainant's career advancement. The complainant stated that only the
employee identified by the counselor had negative comments, and they were
personal since the complainant was selected for a promotion over him.
The complainant also averred that he was somewhat undermined by the second
level supervisor when he acted in his two 60 day stints. He stated
the second level supervisor would pass on information to Co-worker 1,
and not him, creating problems and rush situations. Co-worker 2 added
that when someone would inquire about a task not being performed when the
complainant was in charge, the complainant would learn from Co-worker 1
that Co-worker 1 was informed of the assignment and forgot to pass it on.
The complainant's contention that he was a strong leader is corroborated
by a number of his co-workers. The second level supervisor stated,
however, that opinions by those who worked with the complainant when he
acted as a supervisor were mixed, referring to a lack of leadership.
Based on the evidence in the record alone, which did not contain a
hearing, we do not find that the supervisor's statement regarding the
complainant's leadership was an excuse to cover up choosing the selectee
based on her sex. The supervisor had some corroboration, and also gave
a number of other reasons for choosing the selectee.
With regard to equipment operation experience, the complainant states he
was a permanent employee with years more experience, and the selectee was
a seasonal employee. The record reflects, however, that the selectee has
been working for the agency since 1983, and had been operating equipment
since that time. According to the complainant, when he complained about
the selectee being chosen, the second level supervisor stated training was
more important than experience. The second level supervisor indicated
that in light of the fact that both the complainant and the selectee
had substantial equipment operation experience, he felt the selectee's
education was an additional enhancement. The complainant also noted that
the roads he plowed were treacherous. However, the former incumbent of
the position in question stated that a road in the selectee's park was
more so.
The complainant took issue with the relevance of some of the selectee's
multi-dimensional experience raised by the second level supervisor.
According to the complainant, the second level supervisor continually
raised that the selectee had a blasting certificate. While the second
level supervisor's affidavit indicated he considered the selectee's
blasting and surveying skills to be enhancing, it does not indicate it
was his primary reason for the selection. The complainant opined these
skills were irrelevant. He stated that since being with the agency in
1982, there has been no blasting or surveying done by the position in
question, and specialists are brought in to do this work. He stated
the blasting specialist was a Grand Teton National Park employee. This
does not undermine the second level supervisor's statement that such
skills were a plus because they would be useful in light of reductions
in budget and personnel.
The complainant averred that the selectee's degree in recreation resource
management was irrelevant to maintenance, and recreation and resource
were handled by other departments. The second level supervisor, however,
considered the degree to be evidence of the selectee's initiative to
prepare herself for management. The complainant contended that he
applied several times to take a course in first line management, but
was denied. The complainant stated, however, that the second level
supervisor was not aware of this.
The complainant also stated that the second level supervisor's
characterization of some of his multi-dimensional experience was
inaccurate. He referred to speaking engagements and computer skills.
However, his application papers did not reflect the breadth of computer
skills and speaking engagements discussed in his EEO investigative
affidavit. The complainant contended in a rebuttal statement that the
second level supervisor was aware of his speaking engagements. While the
speaking engagements the complainant discusses appear to be more frequent
than suggested by the second level supervisor, the supervisor noted a lack
of community speaking unrelated to work, and the complainant did not give
examples of doing this. In any event, this matter does not undermine
the second level supervisor's general assessment of the candidates.
Finally, the complainant denies that his application papers were full of
spelling and grammatical errors. However, the application contained a
number of such errors, especially in descriptions of older experience,
starting most recently with his Heavy Duty Motor Vehicle Operator job
from November 1987 to November 1991.
Under Title VII, an employer has discretion to choose among equally
qualified candidates, so long as the decision is not based on unlawful
criteria. In the absence of such evidence, the Commission will not second
guess the agency's assessment of the candidates' qualifications. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
The complainant's qualifications are not such that his nonselection
suggests discrimination, and there is no other evidence of pretext.
The agency's finding of no discrimination is affirmed.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which found that the complainant was not discriminated against
when he was not selected for promotion in 1995.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
Dec. 8, 1999
_________________________ ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On 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.