01970215
02-14-2000
Willard Jenkins, Sr., Complainant, v. Bruce Babbitt, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
Willard Jenkins, Sr. v. Department of the Interior
01970215
February 14, 2000
Willard Jenkins, Sr., )
Complainant, )
)
v. )
) Appeal No. 01970215
Bruce Babbitt, ) Agency No. WBR-92024
Secretary, ) Hearing No. 370-93-X2287
Department of the Interior )
(Bureau of Reclamation), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), national origin (African), color (black), sex
(male), age (date of birth: February 10, 1940), and physical disability
(10% disabled veteran), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et
seq.<1> Complainant alleges that he was discriminated against when,
beginning in 1989, he was not selected for a variety of positions for
which he had applied. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
BACKGROUND
The record reveals that complainant, a Vietnam-era veteran of the United
States Air Force, submitted approximately 30 applications for a variety
of vacant positions at the agency's Bureau of Reclamation between 1989
and 1991.<2> He was not selected for any of the positions. Believing
himself to be a victim of discrimination, he sought EEO counseling and,
subsequently, filed a formal complaint on September 18, 1991, alleging
that the agency had discriminated against him as referenced above.<3>
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 Recommended Decision
(RD) finding no discrimination.
The AJ concluded, with respect to three of the positions in question,<4>
that complainant failed to establish a prima facie case of discrimination
because he did not demonstrate that he met the minimum qualifications
for the position. With respect to two of the positions,<5> the AJ found
that the agency had articulated a legitimate, nondiscriminatory reason
for complainant's nonselection, which reason complainant had been unable
to prove to be a pretext for discrimination. Finally, the AJ concluded
with respect to the remaining positions,<6> that complainant could not
prove discrimination because there was no evidence that complainant had
submitted separate applications for each of those positions as he was
required to do under the applicable regulations.
The agency's FAD adopted the AJ's RD. From the FAD, complainant brings
the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We note that complainant's principal
contention with respect to all of the positions at issue was that,
as a veteran entitled to certain statutorily prescribed preferences,
the agency was obliged to treat him more deferentially than it did.
Whatever the merits of complainant's argument, it is not a matter that
can be adjudicated before this Commission. As we observed in another
case involving the same parties, "veteran's preference is not a basis
for filing an EEO complaint and, thus, such complaints are not within
the purview of EEOC regulations." Jenkins v. Department of the Interior,
EEOC Request No. 05940284 (March 3, 1995) citing Doulette v. Veterans
Administration, EEOC Request No. 05930475 (February 17, 1994).
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge 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). Here, we discern no basis upon which
to disturb the AJ's factual findings which were based on a detailed
assessment of the record and the AJ's assessment of the witnesses'
credibility.
In addition, we concur with the AJ's ruling that it would be inappropriate
to draw any adverse inference from the failure of the agency to preserve
the merit promotion package records relating to Vacancy Announcement
MP-89-98. At the time the agency disposed of the documents in question,
it had not yet been put on notice that the documents might be relevant to
complainant's claims in this matter because complainant's formal complaint
did not specifically identify this position as one for which he had
applied and been nonselected. The specific position was not identified
until approximately two years after the filing of the formal complaint.
By that time, the agency had disposed of the merit promotion package
records in the normal course of business. Under these circumstances,
it is not proper to draw any adverse inference concerning the contents
of the records.
CONCLUSION
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
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 (3O) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (2O) 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:
2-14-00
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 after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date ________________________
Equal Employment Assistant
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.
2The types of positions complainant applied for varied widely, running
the gamut from computer specialist to illustrator to biological aide.
3The complaint contained two additional allegations which we do not here
discuss, the merits of those allegations having been addressed elsewhere.
Those allegations and the complex procedural history of this matter
are described in detail in these earlier Commission decisions: Jenkins
v. Department of the Interior, EEOC Appeal No. 01940353 (March 3, 1995),
Jenkins v. Department of the Interior, EEOC Appeal No. 01932801 (November
16, 1993) aff'd EEOC Request No 05940284 (March 3, 1995) and Jenkins
v. Department of the Interior, EEOC Appeal No. 01922528 (July 22, 1992).
4These positions were announced in the following vacancy announcements:
MP-91-088; MP-91-116; and MP-91-092.
5These positions were announced in the following vacancy announcements:
MP-91-090 and MP-89-98.
6These positions were announced in the following vacancy announcements:
MP-91-083; MP-91-049; MP-91-085; MP-91-067; MP-91-086; MP-91-045;
MP-91-084; MP-069; MP-91-083; MP-91-110; MP-91-119; MP-91-125; MP-91-131;
MP-91-134; MP-91-003; MP-91-031; MP-92-048AHC; MP-92-049; MP-92-114TL;
and MP-92-003.