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November 29, 1991


The opinion of the court was delivered by: Newman, Senior Judge of the United States Court of International trade, sitting as a United States District Court Judge by designation:



Dr. Leonard Naphtali ("Naphtali"), 58 years of age at the time of his application for a position with the United States Environmental Protection Agency ("EPA"), brings this employment discrimination action against the EPA alleging "disparate treatment" on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), as amended, 29 U.S.C. § 621-634 (1967). Jurisdiction over this particular federal question is predicated upon 29 U.S.C. § 633a.

Naphtali demands a wide spectrum of relief, including reinstatement, back pay, pension credits and attorneys' fees, to redress the EPA's perceived failure to appoint Naphtali to a permanent position within the EPA, failure to appoint him to any supervisory positions and failure to renew Naphtali's temporary appointment.

Further, Naphtali contends that his prior status as a permanent employee within the United States Department of Energy (the "Energy Department") survived Naphtali's subsequent decision to accept a temporary position with the EPA. As a result, the EPA's adverse personnel action denying renewal of Naphtali's temporary appointment purportedly violates Naphtali's procedural rights as a statutory "employee" within the meaning of the Civil Service Reform Act (5 U.S.C. § 7511(a)(1)(A) (1978) for purposes of adverse personnel actions) entitled to, prior to termination, the procedural protection afforded to permanent employees of the federal government. See 5 U.S.C. § 7513.

Opposing these allegations the EPA responds that any adverse personnel action taken against Naphtali resulted solely from his inadequate performance and the superior qualifications of other candidates. In addition, notwithstanding Naphtali's former position in the Energy Department, the plain fact that Naphtali's appointment within the EPA was temporary prevented him from qualifying as a statutory "employee" entitled to procedural protection prior to non-renewal of his temporary appointment by the EPA. See 5 U.S.C. § 7511(a)(1)(A), 7513. Accordingly, the EPA requests dismissal of the complaint.

Following a five day bench trial on the foregoing issues, the court determined that Naphtali was only hired pursuant to a temporary appointment, and was in fact discharged as a result of his inadequate performance rather than illegal age discrimination (Tr. 706). Consequently, Naphtali's claims were dismissed with prejudice, although without costs (Tr. 709).

For purposes of assisting the court in supplementing its oral decision, however, the litigants were advised to submit post-trial memoranda (Tr. 710). Upon extensive consideration of counsels' thorough post-trial memoranda, the testimony at trial, the stipulated facts and all of the documentary exhibits the court adheres to its trial ruling dismissing the complaint, and makes the following Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) Fed. R.Civ.P.


Naphtali, born August 6, 1927, possesses a broad background in the field of chemical engineering. He has earned an undergraduate degree in chemical engineering from Cooper Union and masters and doctorate degrees from the University of Michigan. Thereafter, Naphtali obtained numerous years of experience both as a professor of chemical engineering as well as a developer of computer software in the private sector.

In April and May, 1985, Naphtali contacted by telephone and also met with Conrad Simon ("Simon"), Chief of the Air and Waste Management Division ("AWMD") of Region II of the EPA in New York*fn1. Having met Simon briefly and but once approximately 14 years earlier, in 1971, when Naphtali worked for the City of New York, Naphtali inquired of Simon regarding any available positions within the EPA (Tr. 33-36, 508). Simon informed Naphtali that he would necessarily be required to proceed through the merit procedure in order to obtain a position in the EPA at the GS-13 or GS-14 level. Consequently, Simon explained, the only positions Naphtali was eligible to apply for in the AWMD were at grade GS-12 or below, but assuming he was interested in such a position Naphtali could submit an appropriate application (Tr. 508-09). Shortly thereafter, Naphtali submitted a Form SF-171 application for employment with the federal government, indicating on the Form in response to Item 15 that he was seeking to fill a permanent slot.

Simon indicated that Stanley Siegel ("Siegel"), chief of the Compliance and Enforcement Section of the Solid Waste Branch of the AWMD, had positions and would contact Naphtali to arrange a future interview (Tr. 37). Siegel's group was primarily responsible for ensuring compliance with the regulatory program mandated by the Resource Conservation and Recovery Act ("RCRA") to oversee facilities generating or disposing of hazardous wastes (Tr. 318-19).

In June or July, 1985, Naphtali was interviewed by Siegel. Although Siegel observed Naphtali to be "articulate, friendly and rather intelligent" during the interview, Siegel's overall impression of their meeting was negative in that Siegel perceived Naphtali to be without genuine interest or motivation with respect to employment in this section. Indeed, Siegel expressed his "reservations" to Simon concerning Naphtali's ability to be an appropriate staff person in Siegel's group (Tr. 322). Despite Siegel's reluctance, Simon believed that Naphtali's strong backgound entitled him to an opportunity to prove his ability to perform. On that basis, Simon suggested that Siegel consider hiring Naphtali under a temporary one-year appointment (Tr. 323-24, 509-10).

Naphtali was expressly apprised of the EPA's offer of a one-year temporary appointment as a chemical engineer with region II of the EPA, by letter dated August 5, 1985, which read in relevant part:

  This is to confirm our offer of a Chemical Engineer
  position GS-819-12 step 10, with a salary of $41,105
  per annum. This position is temporary, not to exceed
  one year . . . (emphasis supplied).

Simon recalled discussing the temporary nature of the appointment with Naphtali (Tr. 511). Also, in addition to receiving the letter described above, Naphtali was sent a Form SF 50-B Notification of Personnel Action which clearly states that the appointment was not to exceed August 29, 1986 and that "[e]mployment terminates when the limitation . . . is reached. There is no authority to pay for service therefrom without appropriate personnel action." Moreover, even Naphtali himself admitted that when he received this offer from the EPA, he knew it was an offer for a temporary appointment (Tr. 100).

After accepting these conditions in early September 1985, Naphtali began his temporary appointment within the Compliance and Enforcement Section, under Siegel's supervision (Tr. 43-46, 49, 324).


Initially, Naphtali was assigned duties encompassing geographical areas within New York State. His primary responsibility was to coordinate with state agencies concerning facilities in those areas, and to conduct inspections of facilities therein. Each engineer or scientist in the Compliance and Enforcement Section was responsible for conducting a certain number of inspections in the geographical areas to which they were assigned. Siegel convincingly detailed his routine of conveying the importance of conducting inspections to his staff during weekly meetings and discussions with Siegel (Tr. 326-27).

The requirement mandating inspections was also set forth in the Performance Agreement which was given to Naphtali, on March 27, 1986. Naphtali and Siegel executed the document for the purpose of acknowledging that they discussed the critical job elements and performance standards covered in the Performance Agreement. It indicated that Naphtali was required to complete at least eighteen (18) inspections in fiscal year 1986.

Naphtali was also assigned to work on a new initiative for waste oil enforcement due to his experience with energy resources, and given responsibility for tracking the training needs of staff members within the Compliance and Enforcement Section (Tr. 324-25).

Within the first few months of Naphtali's employment, Siegel voiced dissatisfaction at the pace which Naphtali completed inspections. Siegel expressed the need for serious improvement if Naphtali intended to fulfill the required quota of eighteen inspections for fiscal year 1986 (Tr. 327). Consequently, Siegel's mid-year evaluation of Naphtali, on April 30, 1985, reflected an unsatisfactory rating for the part of his job responsibilities relating to completing inspections (Tr. 330-31); Naphtali's overall score of 255 corresponded to an adjective rating of "minimally satisfactory," inclusive of Naphtali's duties involving the waste oil initiative and tracking of staff training.

In response to Siegel's alarming concerns, Naphtali devoted more attention to inspections, and completed his quota for fiscal 1986. Siegel noted Naphtali's improvement in Siegel's end-of-year performance evaluation of Naphtali, whereby he attained a score of 315, and was rated "fully successful." Even this rating, however, represented the lowest numerical evaluation issued by Siegel to any of the scientists or engineers he supervised in that division (Tr. 336).

Naphtali inquired about openings for permanent positions in other divisions in Region II for which he believed himself to be qualified. He subsequently applied for a number of supervisory positions at the GM-13 and GM-14 levels, which were being announced under a merit promotion system.

One of these positions was for section chief of the Site Compliance and Investigations Branch of EPA, part of the SuperFund program organized pursuant to the Environmental Response Compensation and Liability Act providing for cleanup of toxic waste sites (Tr. 272). John Czapor ("Czapor"), a former EPA official, testified concerning the selection of section chiefs. Czapor interviewed all the candidates, including Naphtali, and selected three individuals for the positions (Tr. 276-77, 279). Chief among the criteria for selection was a thorough knowledge of the SuperFund program, and each of the three candidates selected had extensive experience in the SuperFund program (Tr. 276-79). Comparing Naphtali's experience with that of the individuals selected for the positions, Czapor stated:

  Mr. Naphtali had government experience, he had
  extensive government experience. He certainly
  presented himself well, was very articulate. He was
  relatively new to the Environmental Protection
  Agency and very new, and also did not have a
  particularly thorough understanding of the SuperFund
  program. And ...

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