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.