Mark Drinks, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 20, 2000
01996751 (E.E.O.C. Dec. 20, 2000)

01996751

12-20-2000

Mark Drinks, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Mark Drinks v. Department of the Interior

01996751

December 20, 2000

.

Mark Drinks,

Complainant,

v.

Bruce Babbitt,

Secretary,

Department of the Interior,

Agency.

Appeal No. 01996751

Agency No. FNP-95-081

Hearing No. 170-97-8408X

DECISION

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

(FAD) 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. �

1614.405. Complainant alleges he was discriminated against on the bases

of race (Black), color (Black) and age (50) when, in March of 1995, he

was not selected for the position of Air Conditioning Equipment Mechanic,

WG-5306-10. For the following reasons, the Commission AFFIRMS the FAD.

The record reveals that in March of 1995, the agency posted a job

announcement for two Air Conditioning Equipment Mechanic positions,

WG-5306-10 at the agency's Independence Historical National Park (�Park�)

in Philadelphia, Pennsylvania. Complainant, who was not employed by

the agency at the time, timely applied for the position with eight

(8) other applicants and was referred to the Selecting Official (SO).

Two of the candidates, including one of the selectees, were referred to

the SO as Promotion Eligibles currently employed at the Park. Of the

remaining candidates, six were referred to the SO as Other Eligibles as

they worked for other government agencies, and in complainant's case,

referred under Veterans Readjustment Act status. On March 16, 1995,

agency personnel officials were informed that a freeze on hiring from

outside the agency would be effective, and all hiring outside the agency

would be suspended. On March 20, 1995, the SO submitted a copy of the

Certificate of Referred Candidates, indicating his selection of a WG-8

HVAC Mechanic from within the Park for one of the positions at issue.

A WG-10 HVAC Mechanic from another agency was not marked as a selectee

on the Certificate of Referred Candidates, but apparently was laterally

transferred into one of the positions before the hiring freeze.

Believing he was the victim of discrimination, complainant filed a

formal EEO complaint with the agency on May 23, 1995. 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 initially found that complainant failed to establish a prima

facie case of race and color discrimination, as although he is a member

of protected groups, there was no evidence that the SO was aware of

complainant's race and color when he was reviewing the applications.

In so finding, the AJ noted that complainant was an outside candidate and

did not know the SO or anyone else at the Park. Further, the AJ found

there was no information in any of complainant's application materials

which indicated his race or color. The AJ concluded that complainant

established a prima facie case of age discrimination, as one of the

selectees was 38 and thus outside of complainant's protected class, and

the other selectee (age 42) was substantially younger than complainant

so as to create an inference of age discrimination.

The AJ further concluded that the agency articulated legitimate,

nondiscriminatory reasons for its actions. In so finding, the AJ noted

the testimony of the SO in which he stated that based on the position

applications, the selectees exhibited more knowledge of and experience

with the types of equipment used at the Park. The SO further stated that

complainant's application and experience statement did not reflect work

or usage of relevant commercial or industrial air conditioning equipment

and systems. In contrast, the AJ noted that the SO stated that the

selectees had experience in the full range of equipment used at the Park.

The AJ found that complainant did not establish that more likely than

not, the agency's articulated reasons were a pretext to mask unlawful

discrimination. In reaching this conclusion, the AJ was not persuaded

that complainant's qualifications were plainly superior to those of

the selectees, and rather found that the selectees were more qualified

than complainant based on the depth and recency of their experience as

HVAC Mechanics. The AJ further found that the equipment complainant had

experience with is not similar to the equipment and systems utilized by

the agency, based on complainant's hearing testimony that most of the

repair and maintenance work he had performed was commercial, while the

work at the Park was of a non-commercial nature. Finally, the AJ found

that notwithstanding the inconsistencies between the testimony of the SO

and other agency personnel specialists, there was no connection between

complainant's age and his nonselection. The agency's final decision

implemented the AJ's decision. On appeal, complainant restates arguments

previously made at the hearing. In response, the agency restates the

position it took in its FAD, and requests that we affirm its final

decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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 regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We note that complainant

failed to present evidence that any of the agency's actions were motivated

by discriminatory animus toward complainant's race, color or age.

We agree with the AJ's finding that complainant failed to establish

a prima facie case of race or color discrimination, as there is no

evidence in the record that the SO or other agency personnel officials

were aware of complainant's race or color when the selectees were chosen

for the positions at issue. In addition, regarding the allegation of

age discrimination, we agree with the AJ's finding that complainant

failed to demonstrate that the agency's articulated reasons for his

non-selection were pretextual in nature. In reaching this conclusion,

we note that complainant did not come forward with any evidence to

indicate that his qualifications were observably superior to those of

the selectees. See Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981);

Williams v. Department of Education, EEOC Request No. 05970561 (August 6,

1998) (In a non-selection case, a complainant may demonstrate pretext

by showing that his qualifications are observably superior to those of

the selectee). A review of the applications of complainant and the

selectees does not suggest that complainant had any clearly superior

qualifications and, in fact, indicates that the selectees had more

experience as HVAC Mechanics working on similar types of commercial

and industrial equipment as used and maintained by the Park than did

complainant. Moreover, complainant did not provide any evidence to

suggest that his age was a factor in his nonselection, other than the

fact that he was 50 at the time of the nonselection, while the selectees

were 38 and 42. This is insufficient to establish that but for his age,

complainant would have been selected for one of the positions in question.

We thus discern no basis to disturb the AJ's decision.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the agency's

final decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 20, 2000

__________________

Date

1 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.