01993136
01-30-2002
Richard T. Cook, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Richard T. Cook v. Department of Interior
01993136
January 30, 2002
.
Richard T. Cook,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01993136
Agency No. FNP-97-116
Hearing No. 170-98-8308X
DECISION
Complainant timely initiated an appeal from the final agency 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. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges
he was discriminated against on the basis of race (Caucasian) when
on July 3, 1997, his temporary appointment as Park Ranger, GS-025-07,
was terminated, and he was not converted to a permanent position.
BACKGROUND
The record reveals that complainant, a temporary appointment as a
Park Ranger, GS-025-7 at the Independence National Historical Park,
Philadelphia, Pennsylvania, filed a formal EEO complaint with the
agency on September 19, 1997, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie case
of race discrimination. Specifically, the AJ found that complainant
failed to demonstrate that similarly situated employees not in his
protected classes were treated differently under similar circumstances.
The AJ noted that complainant cited a Black employee, as a comparison,
however, that employee was not a temporary employee and he did not
fail either of the qualifying tests for the position of Park Ranger.
The comparison employee was a permanent employee who did not pass the
background check for Dispatcher, and was reassigned to a position in
maintenance which had no background check requirement.
The AJ further concluded that assuming arguendo that complainant had
established a prima facie case, the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
was one of seven White Park Rangers hired on a temporary basis, with
the possibility of a 30-day extension. The AJ noted that all of
them were required to pass a drug test, Physical Efficiency Battery
(PEB), firearms proficiency test, and a background investigation as
a condition of permanent employment. The AJ noted that complainant
failed his second attempt at the PEB, and the firearms test, and that
complainant's temporary employment was terminated.
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 found that
complainant's temporary appointment would have expired on July 17, 1997,
and that complainant had not passed the mandatory testing and there was
no reason to keep him onboard when he could not perform his job duties.
The agency's final decision implemented the AJ's decision.
On appeal, complainant contends that the AJ failed to consider
complainant's allegations that special preferences were accorded to Black
employees in various aspects of employment. Complainant also contends
that it is not realistic or fair to limit the comparison employees to
the extremely limited pool of temporary employees. Complainant further
alleged that the AJ erred when she issued a decision without a hearing.
Specifically, complainant contends that at an evidentiary hearing,
he would have established that the agency's articulated reasons were
pretextual, by showing that Black employees were given latitude,
were excused from discipline for serious misconduct and were generally
treated in a permissive fashion, while he was treated in a strict and
unforgiving fashion.
ANALYSIS AND FINDINGS
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment a court does not
sit as a fact finder. Id. The evidence of the non-moving party must be
believed at the summary judgment stage and all justifiable inferences
must be drawn in the non-moving party's favor. Id. A disputed issue
of fact is "genuine" if the evidence is such that a reasonable fact
finder could find in favor of the non-moving party. Celotex v. Catrett,
477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F. 2D
103, 105 (1st Cir. 1988). A fact is "material" if it has the potential
to affect the outcome of the case. If a case can only be resolved by
weighing conflicting evidence, summary judgment is not appropriate. In
the context of an administrative proceeding under Title VII, an AJ may
properly consider summary judgment only upon a determination that the
record has been adequately developed for summary disposition.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Reeves v. Sanderson Plumbing Products, Inc., 120
S.Ct 2097 (2000); Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981) (applying McDonnell Douglas to disability cases);
and Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to reprisal cases), the Commission concurs
with the AJ's finding that complainant did not establish a prima facie
case of discrimination based on race, since he did not demonstrate that an
employee outside of his protected group was treated more favorably under
similar circumstances. We find that the Black employee complainant cited
as a comparison, was not similarly situated to complainant. We note that
complainant was a temporary employee and the comparator was a permanent
employee. Nor did complainant present any other evidence from which an
inference of discrimination could be drawn.
In conclusion, after a de novo review of the record, we find that there
are no genuine issues of material fact in dispute. The Commission finds
that the AJ correctly decided that summary judgment was appropriate
in this case, and the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws. We
discern no basis to disturb the AJ's decision, therefore, we AFFIRM the
agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
January 30, 2002
__________________
Date