01972730
03-10-1999
Rodney Haberman, Appellant, v. Bruce Babbitt, Secretary, U.S. Department of Interior, Agency.
Rodney Haberman v. U.S. Department of Interior
01972730
March 10, 1999
Rodney Haberman, )
Appellant, )
)
v. ) Appeal No. 01972730
) Agency No. FNP-95-060
Bruce Babbitt, ) EEOC No. 370-96-X2453
Secretary, )
U.S. Department of Interior, )
Agency. )
___________________________________)
DECISION
Appellant timely appealed the agency's final decision that it had not
discriminated against him in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq, and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The
Commission accepts the appeal in accordance with EEOC Order No. 960.001.
Appellant filed a formal EEO complaint alleging discrimination on the
bases of race (Native American) and physical disability (open heart
surgery and pacemaker), when he was not apprized of the opportunity
to compete for a Veteran's Adjustment Act (VRA) conversion to a full
time permanent position at Redwood National Park on December 3, 1994.
Following the agency's investigation, appellant requested a hearing
before an EEOC administrative judge (AJ). Finding that there were
no material facts in dispute, on October 24, 1996, the AJ issued a
Recommended Decision pursuant to 29 C.F.R. �1614.109(e)(3), finding no
discrimination.
In her decision, the AJ found that appellant had failed to establish
a prima facie case of discrimination based on race or disability, in
that he failed to show that he was treated less favorably than similarly
situated individuals outside of his protected classes. Specifically, the
AJ found that appellant was not similarly situated to his comparatives in
that the comparative's were occupying positions identified as permanent
when the comparatives were converted to permanent (career-conditional)
status, whereas appellant occupied a temporary ("fill-in") position.
The AJ also found that appellant failed to present sufficient evidence to
indicate that he was not converted to permanent status because of his
disability.
As appellant's complaint constitutes a claim of disparate treatment,
the agency properly 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 Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);
Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981).
Applying this legal standard to appellant's complaint, assuming arguendo,
that appellant raised an initial inference of discrimination, we find
that the agency successfully rebutted this inference by articulating
a legitimate, nondiscriminatory reason for its action. Specifically,
appellant was not converted to a career appointment through the VRA when
his temporary appointment expired because his "fill-in" position was no
longer needed after previously displaced long-term temporary employees
were re-employed in permanent positions.
After a careful review of the record, the Commission finds that
appellant failed to establish that the agency's reasons for its action
were pretext for discrimination. We note appellant has not filed any
new contentions on appeal. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
that it did not discriminate against appellant, as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 10, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations