Richard T. Cook, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionJan 30, 2002
01993136 (E.E.O.C. Jan. 30, 2002)

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