Norman Johnson, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01980226 (E.E.O.C. Mar. 24, 2000)

01980226

03-24-2000

Norman Johnson, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Norman Johnson v. Department of the Interior

01980226

March 24, 2000

Norman Johnson, )

Complainant, )

)

v. ) Appeal No. 01980226

) Agency No. FNP-93-133

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

______________________________)

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final decision of the agency concerning

complainant's claim that the agency violated 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. The appeal is accepted in accordance with 64 Fed.Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).<1>

The issue on appeal is whether the agency discriminated against

complainant on the bases of race (Black), national origin (Panamanian),

and age (46) when he was not selected for the position of Laborer Foreman,

WS-4749-2, advertised via Vacancy Announcement No. 93-47.

Complainant filed a formal EEO complaint raising the issue stated above,

and the complaint was investigated. Complainant initially requested

an EEOC hearing but later withdrew this request and asked for a final

agency decision (FAD). The FAD was issued and found no discrimination.

The record shows that complainant applied for the Position but was

not selected in favor of another individual (the selectee), (Black,

national origin unknown, 45 or 46 years of age). The agency found

that complainant failed to establish a prima facie case of race or age

discrimination because the selectee was a member of the same protected

classes. The agency found that complainant established an inference

of national origin discrimination because the national origin of the

selectee was unknown.

The agency also concluded that it articulated a legitimate,

nondiscriminatory reason for its decision, that the selectee was the

best qualified applicant for the Position. The agency noted that the

selectee's experience was in areas more relevant to the duties of the

Position, that he had supervisory experience, and that he had functioned

well in a supervisory role. The agency also noted that there were some

concerns regarding complainant's past performance and attitude.

The agency also determined that complainant failed to prove pretext. The

agency rejected complainant's contention that he was more qualified than

the selectee because he had more experience as a laborer than the selectee

and he (complainant) had attained a higher grade level. The agency

noted that the selectee had ten years of experience to complainant's

eleven years of experience. The agency also concluded that nothing in

the record suggested favoritism in the selection process as complainant

contended. In this regard, the agency noted that the selectee was not the

first, but the fourth, choice for the position. Finally, the agency

observed that the National Park Service does not maintain records on

the national origin of employees and that the selecting officials were

not aware of complainant's national origin.

Complainant's complaint constitutes a claim of disparate treatment and

the agency analyzed it under the three-tiered analytical framework

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas

Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981);

Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979).

Applying these legal standards, the Commission finds that the agency

correctly concluded that complainant failed to prove, by a preponderance

of the evidence, that he was discriminated against based on his race,

national origin, or age. While complainant was fully qualified for

the Position, the record fails to support complainant's contention

that he was better qualified than the selectee. We note also that

the reasons for complainant's nonselection were articulated in detail

by complainant's direct supervisor and the selecting official, and

complainant offered no evidence which adequately rebutted these reasons.

There is no record evidence that complainant's race, national origin,

or age influenced the selection process. Accordingly, after carefully

considering the record we find that complainant failed to prove that

he was discriminated against based on his race, national origin, and age.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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:

March 24, 2000

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:

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 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.EEOCGOV.