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.