0520170496
01-17-2018
Brenton W.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration (FAA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brenton W.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration (FAA)),
Agency.
Request No. 0520170496
Appeal No. 0120130554
Hearing No. 160-2003-08562X
Agency No. DOT 1-98-1025
DECISION ON REQUEST FOR RECONSIDERATION
Both Complainant and the Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120130554 (June 29, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
Complainant filed an equal employment opportunity complaint (EEO) on November 20, 1997, alleging that he was discriminated against based on his age (49) in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. when:
1. Effective October 31, 1996, he was not hired for the position of Air Traffic Control Specialist, GS-2152-12/13/14 under vacancy announcement AEA-AAE-96-0741106; and
2. The Agency's policy of requiring former Professional Air Traffic Control members (PATCO) reentering employment with the FAA to apply only under recruitment Notice 93-01 had an adverse impact based on the age of the applicants for controller.
Following a hearing, in September 2009, an EEOC Administrative Judge (AJ) issued AJ Decision 1, finding discrimination on issue 1. While applying the McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), three-step disparate treatment analysis to the facts of the case in making this finding, the AJ also set forth some discussion of disparate impact law without applying it to facts. The Agency did not implement AJ Decision 1, and appealed.
In EEOC Appeal No. 0720100009 (June 10, 2011), EEOC found that Complainant pursued his complaint under both the disparate impact and disparate treatment theories of discrimination, and that it "appears" the AJ made her finding of discrimination based on disparate impact. Reasoning that there was no indication that the parties were given the opportunity to produce any statistical or other evidence or argument during the hearing on disparate impact, the decision determined that it was premature to rule on the matter. Accordingly, EEOC remanded Complainant's complaint to the Agency to make a request to an EEOC Hearings Unit for a hearing on his disparate impact claim. EEOC denied Complainant's request for reconsideration of this decision in EEOC Request No. 0520110547 (December 6, 2011).
In September 2012, the AJ interpreted the remand order in Appeal No. 0720100009 to only concern issue 2. After providing Complainant the opportunity to submit evidence on his disparate impact claim, the AJ issued AJ Decision 2 without a hearing, applying a step-by-step disparate impact analysis finding that Complainant failed to prove disparate impact based on age. The AJ wrote that she found discrimination based on disparate treatment in prior AJ Decision 1, and reiterated this three times in AJ Decision 2. The Agency fully implemented AJ Decision 2, and Complainant appealed.
In EEOC Appeal No. 0120130554, the Commission on its own motion reopened Appeal No. 0720100009 and Request No. 0520110547, vacating both decisions. The Commission found that the decision in 0720100009 erroneously assumed that the AJ found discrimination under the theory of disparate impact in AJ Decision 1 when she did so under the theory of disparate treatment, thus extinguishing the AJ's order of remedies and merely directing the Agency to submit a request for a hearing on disparate impact. The Commission further reasoned that these errors were not rectified in 0520110547. The Commission found that the AJ's finding of disparate treatment discrimination on issue 1 was supported by substantial evidence, and ordered the Agency, in part, to retroactively place Complainant into a GS-12 Air Traffic Controller Specialist position effective October 31, 1996, until the date he would have reached mandatory retirement.2
Reasoning that Complainant prevailed on his claim of disparate treatment based on his age, and that no additional remedies were available for him under the disparate impact theory, the Commission declined review the merits of the AJ's finding on disparate impact. Nevertheless, in dicta, for purposes of instruction, the Commission clarified the standards for establishing age discrimination in the federal sector under disparate impact, setting out a comprehensive analysis. In sum, the Commission concluded that "reasonable factor other than age" is not the applicable defense in federal sector disparate impact cases. The instant requests for reconsideration followed.
In his July 26, 2017 request, Complainant argues that the Commission made a clearly erroneous interpretation of fact or law when it recounted that his mandatory retirement age at the Agency was 56, and explains this.
In its August 4, 2017 request, the Agency puts forth various arguments in support of its request that the Commission reverse the finding of age discrimination on issue 1, which we will address below. The Agency further argues that because the Commission explicitly decided not to review the AJ's finding on disparate impact based on age, it was precluded by the Administrative Procedures Act from offering a general interpretation of the ADEA on disparate impact law. Citing cases and analyzing the statutory language of the ADEA, the Agency also argues that the "reasonable factor other than age" defense should be available in federal sector disparate impact ADEA cases.
ANALYSIS
Agency's Request
The Agency argues that the Commission's decision in EEOC Appeal No. 0120130554 to vacate the previous finding that the AJ found discrimination in AJ Decision 1 based on disparate impact violates the doctrine of "law of the case." Under this doctrine, legal or factual determinations once finally made are generally binding in subsequent proceedings on the case. Citing Van Doren v. United States Postal Service, EEOC Request No. 05910526 (July 29, 1991), the Agency argues that reopening "law of the case" decisions requires exceptional circumstances, such as changes in governing law, newly discovered evidence, or manifest error in a previous decision.
The Agency argues that the Commission's decision to reopen 0720100009/0520110547 did not meet this demanding standard. It reasons in part that the decisions 0720100009/0520110547 did not remand Complainant's complaint to the AJ to clarify AJ Decision 1, and the AJ's remarks in AJ Decision 2 that she found discrimination based on disparate treatment in AJ Decision 1 was an after-the-fact disagreement with 0720100009/0520110547, not a proper basis for reconsideration.
As an initial matter, we find that the EEOC's decision in 0720100009, which was upheld in 0520110547, was not as unequivocal as the Agency argues. The EEOC found that it "appears" the AJ made her discrimination finding based on the disparate impact theory, and remanded the complaint to the Agency to request a hearing on disparate impact to give the parties an opportunity to produce evidence thereon. The decision in 0720100009 did not rule on the merits of Complainant's disparate treatment claim, nor explicitly foreclose the AJ on remand from ruling on the merits thereof. Given this, the AJ's observation in AJ Decision 2 that she previously found disparate treatment discrimination on issue 1 in her prior decision is not surprising.
Be that as it may, we find that there was manifest error in 0720100009/0520110547, for the reasons found by the Commission in EEOC Appeal No. 0120130554. Specifically, in finding discrimination on issue 1, the AJ used a step-by-step disparate treatment analysis in AJ Decision 1, and by failing to acknowledge this disparate treatment finding in 0720100009/0520110547, the AJ's order of relief was extinguished. We agree with the assessment in the previous decision that when the AJ set out the law of disparate impact in the conclusion section of AJ Decision 1, without applying this law to facts, she made "what appears to be a scrivener's error."
Next, the Agency argues that in the interest of fairness, the Commission in its previous decision should not have decided the issue of disparate treatment on the merits without giving the Agency an opportunity to brief the issue. We disagree. While arguing in its 2009 appeal from AJ Decision 1 that the AJ wrongly found discrimination based on disparate impact, the Agency also argued on the merits in ten pages of text that to the extent the AJ found disparate treatment discrimination, this was not supported. Further, in its 2012 argument in opposition to Complainant's appeal from AJ Decision 2, the Agency wrote that Complainant's appeal argument inappropriately focused on disparate treatment, and again argued against a disparate treatment finding on the merits. The Agency had the opportunity to brief on the issue of disparate treatment, and did so.
The Agency now argues that the Commission made clearly erroneous factual findings and legal conclusions in determining Complainant proved disparate treatment discrimination on issue 1. In so doing, the Agency disputes how the Commission weighed the evidence.
For example, the Agency argues that in inferring discriminatory intent, the AJ and the Commission cited to a "Questions and Answers on Rehiring Fired Controllers" (Q&A) document that it characterizes as being prepared by the FAA's Office of Public Affairs. The topic of the Q&A was on the rescission of the ban on re-hiring former PATCO members who were fired for striking. The AJ, and the Commission, recited the Q&A passage of:
Q5: Isn't it true that someone's ability to control traffic declines with age? Can these former controllers do the job? What about the fact that they haven't controlled aircraft for over a decade?
These may be issues. Therefore, the FAA plans to hire these controllers just above the normal entry level (GS-9 level). They will have to satisfactorily pass the same training and proficiency requirements for promotion and retention as any other controller.
The Commission found that in this passage the Agency states that the age of ex-PATCO applicants justifies its decision to only hire them at the GS-9 level, which glaringly contradicts the ADEA's mandate that all personnel actions in the federal sector shall be free from and discrimination based on age. The Agency characterizes the Q&A as merely informal guidance from the FAA's Office of Public Affairs in answering questions from the media about the rescission of the ban on re-hiring of former PATCO members, and argues it is not evidence of discriminatory intent by hiring decision-makers, none whom worked in the Public Affairs department. But at the hearing before the AJ an FAA Supervisory Human Resource Management Specialist testified that the Q&A document was generated by the people putting together the whole rehiring process for the controllers. Hearing Transcript (HT), at 74.
Both the AJ and the previous decision found that Complainant established a prima facie case of age discrimination in part because most or all the five applicants who were chosen were substantially younger than Complainant. In assessing whether the Agency's action was actually based on age, the Commission found that the known average age of non-PATCO applicants who were considered for the GS-12/13/14 slots was 33, whereas the average age of the ex-PATCO applicants, all of whom the Agency declined to consider as a matter of policy for GS-12/13/14 controller positions, was age 50, and the Q&A reflects that the Agency was keenly aware of the overall disparity in age between the ex-PATCO and other applicants. Characterizing this as a statistical analysis, the Agency argues that such generic employment statistics are insufficient to establish pretext. We disagree with the premise of this argument. The previous decision referenced the ages of the applicants simply to show it was consistent with what the Q&A already showed.
In support of the finding that the Agency negatively considered the age of the ex-PATCO controllers, the Commission in EEOC Appeal No. 0120130554 cited the antidotal evidence that the selecting official acknowledged that she heard, discussed or thought about whether ex-PATCO controllers would stay very long if rehired because most of them would be nearing normal retirement age very soon, if they had not already reached it. The Agency argues that there is no support for the conclusion that the selecting official made such an acknowledgment, and the record squarely refuted it. We disagree. In her signed responses to Complainant's interrogatories, the selecting official wrote that "I recall hearing/discussing/thinking about opinions on whether ex-PATCO controllers would stay very long if rehired, since most of them would be nearing normal retirement age very soon, if not already there." Complainant's Response to Notice of Intent to Issue Decision Without a Hearing, May 8, 2004, at Exh. C, � 4.
While we have not addressed all the arguments the Agency makes in its request for reconsideration on the merits of Complainant's disparate treatment claim, we find that the Agency has not shown that the Commission in its previous decision was clearly erroneous in finding that the AJ's finding of disparate treatment discrimination on issue 1 was supported by substantial evidence.
The Agency's request to reconsider the Commission's dicta clarifying the law on disparate impact in the federal sector also fails to meet the criteria for reconsideration. Since the clarification was not used to adjudicate any part of Complainant's case, the Agency was not affected in its role as a party. Accordingly, its request that the Commission reconsider such dicta does not meet the criteria for reconsideration.
Complainant's Request
In his request for reconsideration, Complainant argues that the mandatory retirement age of 56 at the Agency does not apply to him since he was hired before May 16, 1972, the date the law setting forth the mandatory retirement age of 56 passed, and there is no mandatory retirement age for him so long as he is covered by the Civil Service Retirement System (CSRS). Complainant submits an FAA Human Resources Manual section supporting this argument. He writes that he worked elsewhere as an Air Traffic Controller until deciding to retire at age 62, and it is reasonable to assume that absent disparate treatment discrimination he would have worked at the Agency as a controller until age 62.
In his application for the position in question, Complainant wrote that he was hired by the FAA as a controller in 1969. Report of Investigation (ROI), Exh. F5C. At the hearing before the AJ, the FAA Supervisory Human Resource Management Specialist testified that the mandatory separation age of 56 was grandfathered, so for individuals hired before the law passed, the mandatory retirement age did not apply to that person. H.T., at 77 - 78. We add that the referenced Q&A document provides that former controllers over age 56 can be hired if they were employed in terminals or en route facilities before May 16, 1972, and are exempt from the mandatory separation provision. On there being a mandatory retirement age for Complainant, the Commission in its previous decision made a clearly erroneous interpretation of material fact or law. Accordingly, Complainant's request to reconsider is granted to the extent that the previous decision limited his reinstatement remedy until he reached the mandatory retirement age of 56. Complainant concedes he would have retired, in any event, at age 62. The Order below will take this into account.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request does not meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission DENY its request. Therefore, with the exception of the Order, the decision in EEOC Appeal No. 0120130554 remains the Commission's decision. As a result of Complainant's request for reconsideration, the Order is MODIFIED as stated below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER
1. The Agency shall retroactively place Complainant into the GS-12 Air Traffic Controller Specialist position effective October 31, 1996, until the date he turned age 62 or the date he retired, at age 62, elsewhere as an Air Traffic Controller, whichever is later.
2. The Agency shall tender to Complainant back pay, with interest, for the difference between the salary he received during the period, and the salary he would have received if he had been placed in a GS-12 position retroactive to October 1, 1996, until the date he turned age 62 or the date he retired elsewhere as an Air Traffic Controller, at age 62, whichever is later. Complainant is entitled to any benefits to which he would have been entitled but for the discrimination, as well as expected promotions throughout the period, i.e., step increases and grade increases. Complainant is further entitled to an adjustment to his retirement benefits if it increases them to give him the same benefits he would have received had he been employed by the Agency through the date he turned age 62 or the date he retired elsewhere as an Air Traffic Controller, at age 62, whichever is later.
3. The Agency shall provide eight hours of in-person EEO training to the Washington Center Personnel Management Specialist and selecting official referenced in the previous decision, with an emphasis on age discrimination. If they have left the Agency's employ, the Agency shall furnish documentation of their departure date(s).
4. The Agency shall post the enclosed notice in accordance with the Order set forth below entitled "Posting Order."
POSTING ORDER (G0617)
The Agency is ordered to post at its all its facilities with ACTS copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 17, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In EEOC Appeal No. 0120130554, the Commission observed that Complainant maintained that regardless of the grade at which he was hired, he would have been fully qualified and promoted to GS-14, and continued his career with the Agency until retiring, absent discrimination. In footnote 5, the Commission wrote that when Complainant first raised this contention, he was employed by the Department of Defense (DoD), and he requested that his eventual pension, upon retirement from DoD at age 62, be adjusted to reflect service with the Agency through the mandatory retirement age of 56.
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