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.