Herbert W. Hauschild, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01970165 (E.E.O.C. Oct. 3, 2000)

01970165

10-03-2000

Herbert W. Hauschild, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Herbert W. Hauschild v. Department of the Navy

01970165

October 3, 2000

.

Herbert W. Hauschild,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01970165

Agency No. 94-60701-004

DECISION

On October 1, 1996, the complainant timely initiated an appeal from

a final decision of the agency dated September 12, 1996 concerning

his complaint of unlawful employment discrimination in violation of

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq., and � 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted under 29

C.F.R. � 1614.405.<2>

The issue presented is whether the complainant was discriminated against

on the bases of his age (born November 19, 1922) and disabilities (neck

and circulation) when his position was abolished in 1994.

The complainant filed an EEO complaint alleging the above issue. Following

an investigation, the agency notified the complainant of his right to

request a hearing before an Equal Employment Opportunity Commission

Administrative Judge, and the complainant requested a final agency

decision.

The complainant formerly worked for the agency as a Chemist, GS-11,

at its Naval Weapons Station, Seal Beach, California. He worked in

the Organic Systems & Component Repair Department, Quality Evaluation &

Sciences Division, Materials Sciences & Engineering Branch.

The department head affirmed that the complainant's division was

downsizing due to funding reductions, so he asked the complainant's

division head to identify positions affected by applicable RIF criteria.

The department head stated that the complainant's position was abolished

because it was no longer funded by the division project sponsors.

After the complainant was notified that his position would be abolished,

the agency gave him the options of receiving a reduction-in-force (RIF)

separation notice or separating "voluntarily with separation incentive

pay." In August 1994, the complainant chose the latter.<3>

The division head stated that sometime prior to the RIF, the complainant

was fully engaged doing asbestos and chemistry laboratory analysis

for the short duration tasks of the Departments of Energy and Navy.

The division head stated that it was believed that a new and substantial

workload from the Department of Energy was imminent and would continue

into the foreseeable future, which would replace the short term tasks.

The division head affirmed that because the expected Department of

Energy workload did not materialize, he had no choice but to identify the

complainant's position for elimination consistent with the directions by

the department head to eliminate unfunded positions that did not have a

viable workload. He stated a position in the chemistry laboratory had

to be eliminated due to funding levels.

The division head stated that there was no other Chemist, GS-11 position

to which the complainant could be reassigned. The division head stated

that prior to the Station being aware of the impending RIF, two GS-12

Chemists (born August 20, 1941 and April 16, 1953) were permanently

moved out of the department due to lack of work. He stated that special

in-house chemistry services were provided under contract. According to

the counselor's report, the division head said the contract chemists

worked on obtaining Environmental Protection Agency (EPA) certifications

for analyzing hazardous material.

The complainant averred that between 1991 to 1993, five young contract

chemists came on board, and two left in 1994. He stated the contract

chemists were assigned most of the work he began doing in 1989.

He affirmed that from 1989 until 1994, he was very much involved in EPA

tasks, and when EPA certifications became a possibility in the lab in

1993, he did certification tasks, and there was much work. At another

point, the complainant stated that when the lab initially attempted to

become certified for environmental analysis, he "assigned myself" to

do a hazardous material analysis for the initial environmental testing

certification, and continued to do analyses.

The complainant argues that when the expected Department of the

Energy workload did not materialize, the contractor workload should

have been decreased rather than eliminating three government chemists.

The complainant contends that the five contractors were employed to do

his work and perhaps a little more, which resulted in an increase of

personnel. He contends he was assigned "short duration tasks" because

he was viewed as old and disabled.

With regard to disability, according to the counselor's report, the

complainant stated that from 1992 to 1994, he was hospitalized three

times for neck and pacemaker problems. The counselor wrote that the

complainant stated that thereafter, he was restricted from standing

long periods of time and needed to elevate his legs periodically, which

was accommodated. According to the counselor's report, the division

head stated the complainant was able to perform his job satisfactorily,

and his medical condition played no role in the decision to abolish

his job. According to the counselor's report, the division head stated

the complainant was not involved in EPA certification tasks.

On appeal, the complainant argues the merits of his case.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) provides

the analytical framework for proving employment discrimination in

cases in which disparate treatment is alleged and no direct evidence of

discrimination has been presented. Although McDonnell Douglas is a Title

VII case, its analysis is also applicable to disparate treatment cases

brought under the Rehabilitation Act and the ADEA. See, respectively,

Prewitt v. U.S. Postal Service, 662 F.2d 292, 305 n. 19 (5th Cir. 1981)

and Sutton v. Atlantic Richfield Co., 646 F.2d 407, 411 (9th Cir. 1981).

McDonnell Douglas requires the complainant to first establish a prima

facie case. If the complainant succeeds, the agency's burden then is

to articulate some legitimate, nondiscriminatory reason for its action

in order to rebut the prima facie case of discrimination. Finally,

the complainant has the opportunity to show, by a preponderance of the

evidence, that the agency's stated reason is a pretext for discrimination.

The ultimate burden of proof that discrimination took place is on

the complainant. Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981).

Since the agency articulated legitimate, nondiscriminatory reasons for

abolishing the complainant's position, as set forth below, we may proceed

directly to whether he demonstrated by a preponderance of the evidence

that the agency's reason was merely a pretext to hide discrimination.

United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-714 (1983).

The agency explained that it abolished the complainant's job because

it was no longer funded by the division project sponsors, and there was

insufficient funds to maintain his position.

For purposes of analysis, we will assume, without finding, that the

complainant is a qualified individual with a disability under 29 C.F.R. �

1630.2.<4>

The complainant argues that the agency's articulated reasons for

abolishing his position were pretext to mask age and disability

discrimination. The complainant's arguments, however, are unpersuasive.

There is no evidence in the record indicating that the agency's decision

to use contract chemists starting in 1991 was motivated by discriminatory

reasons. Absent evidence of discrimination, the Commission will not

second guess such management decisions. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 259 (1981). The complainant contended,

contrary to the statement of the division head, that he performed EPA

certification tasks, the work assigned to the contract chemists. The

complainant's statement was not corroborated by evidence in the record.

Further, the complainant did not state such work constituted more than

a minor part of his workload. Further, there is no indication in the

record that the complainant was assigned short term tasks by outside

sponsors for discriminatory reasons. The agency explained that it expected

these tasks would be replaced with a new long term Department of Energy

workload, but it never materialized.

The record does not show that the agency's reason for abolishing the

complainant's position was pretextual. The complainant failed to

establish discrimination on the bases of age or disability.

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it

is the decision of the Commission to AFFIRM the final decision of the

agency which found that the complainant was not discriminated against

when his position was abolished in 1994.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

October 3, 2000

__________________

Date

1The complainant did not check off the basis of disability in his

EEO complaint form. After the investigation was completed and prior

to the instant appeal, the complainant wrote the Deputy EEO Officer

that he believed his job was abolished because he was considered "old

and handicapped." As there is sufficient information in the record to

address the basis of disability discrimination, we shall do so here.

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-466 (5th Cir. 1970).

2On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3The Merit Systems Protection Board (MSPB) has jurisdiction over mixed

case complaints which allege discrimination based, among other things,

on disability with regard to a constructive discharge if the MSPB

finds a separation was a constructive discharge (5 C.F.R. � 1201.3).

The agency's final decision provided appeal rights to the EEOC, not

the MSPB. Since the complainant's complaint has been pending in the EEO

process for several years, and it is not clear whether he is alleging

constructive discharge, the Commission will assume jurisdiction over his

case. The complainant's complaint is firmly enmeshed in the EEO forum,

and it would better serve the interests of judicial economy to address

his complaint at this time rather than remand it for consideration to

the MSPB process. See Burton v. Department of Agriculture, EEOC Appeal

No. 01932449 (October 28, 1994).

4The Rehabilitation Act was amended in 1992 to apply the standards in the

Americans with Disabilities Act (ADA) to complaints of discrimination by

federal employees or applicants for employment. The ADA regulations

set out at 29 C.F.R. Part 1630 apply to complaints of disability

discrimination. These regulations can be found on EEOC's website:

www.eeoc.gov.