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:
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
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
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
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.
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
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,
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
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 ...