Clarence L. Johnson, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionAug 2, 2000
01986468 (E.E.O.C. Aug. 2, 2000)

01986468

08-02-2000

Clarence L. Johnson, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Clarence L. Johnson v. Department of the Navy

01986468

August 2, 2000

Clarence L. Johnson, )

Complainant, )

) Appeal No. 01986468

v. ) Agency No. 96-00187-015

) Hearing No. 120-97-4438X

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On August 20, 1998, Clarence L. Johnson (hereinafter referred to as

complainant) initiated an appeal to the Equal Employment Opportunity

Commission (Commission) from a final decision of the agency concerning

his complaint of discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The

final agency decision was dated July 29, 1998. Accordingly, the appeal

is timely filed, and is accepted in accordance with 64 Fed.Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

The issue on appeal is whether complainant proved, by a preponderance of

the evidence, that he was discriminated against on the basis of his age

(52) when he was not selected for the position of Firefighter, GS-081-4/5,

in March 1996.

The record reveals that complainant, formerly a Firefighter with the

Department of the Army, was one of more than 100 applicants for the

position in question. The agency compiled two hiring certificates,

one for selection pursuant to noncompetitive procedures, and one for

competitive selection. Complainant was one of 12 applicants included on

the former certificate.<2> The former Disaster Preparedness Officer/Fire

Protection Specialist (Specialist) reviewed the applications and contacted

the individuals' most recent supervisors. He then forwarded the names

of four or five individuals to the Selecting Official. Subsequently,

another candidate (Selectee; age 31) was chosen for the position.

Additionally, four individuals (all under 40) were chosen pursuant to

the competitive selection process.

Complainant asserted that he was told by the Fire Chief at the Air Force

facility where he served as a Reservist that the Specialist contacted

him, expressed concern about complainant's age, and asked how long he

believed complainant would work if he was hired. Nevertheless, both the

Specialist and the Fire Chief did not recall having such a conversation.

The Specialist averred that since the agency cannot hire anyone over 35

years of age for a Firefighter position, he likely did not speak with any

of complainant's references. Nevertheless, the Specialist acknowledged

that the agency can hire individuals who are �already in the system.�

Furthermore, the Specialist asserted that he did not recall anything

specific regarding complainant's application. The Specialist concluded

that he did not know why anyone would hire complainant for the position,

given the fact that Firefighters face mandatory retirement at age 55.

The record includes a copy of a Department of Defense Directive (the

Directive) regarding Firefighter and Law Enforcement positions which,

consistent with the ADEA, establishes a maximum age of 35 for individuals

entering the service. Individuals over 35 can be appointed to a covered

position if previously employed in the federal service. A Firefighter

who is otherwise eligible for retirement shall be separated from the

service at age 55, or at the time the individual completes 20 years of

service if over that age.

The agency complied with all procedural and regulatory prerequisites, and

on May 29, 1998, an EEOC Administrative Judge (AJ) issued a recommended

decision, without a hearing, finding that complainant had been subjected

to age discrimination.<3> The AJ initially determined that complainant

established a prima facie case, and that the agency failed to articulate

a legitimate, nondiscriminatory reason for complainant's nonselection.

The AJ noted that the agency admitted the Specialist erroneously excluded

complainant from consideration because he determined that complainant

was beyond the maximum age for appointment. Thus, the AJ concluded

that complainant's age was the determining factor in his nonselection.

Nevertheless, the AJ found that complainant would not have been selected

for the position even absent the discrimination, because of his prior

disciplinary record. Specifically, the AJ noted that the Approving

Official asserted that he would not have approved complainant's selection

due to his prior removal from a Firefighter position in the Army for

making false and malicious statements.<4>

After a careful review of the record, the Commission finds that the AJ

correctly determined that complainant was subjected to age discrimination

with regard to his nonselection. We therefore discern no basis to disturb

the AJ's finding of discrimination. The AJ correctly determined that

the agency's decision not to select complainant was, at the time it was

made, based upon complainant's age. While the agency asserted that the

Specialist's decision was merely based on an erroneous interpretation

of the Directive, the Specialist acknowledged that individuals over

35 could be hired if they had prior federal employment. Furthermore,

we find the Specialist's statements concerning complainant's age to be

indicative of bias. Nevertheless, we agree with the AJ that complainant

would not be entitled to retroactive placement into the position, as the

agency has shown that, even absent the discrimination, complainant would

not have been selected for the position because of his prior termination.

CONCLUSION

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

the decision of the Commission to reverse the agency's final decision

in this matter.

ORDER

The agency is ORDERED to post at the Naval Surface Warfare Center,

Dahlgren, Virginia, copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative, shall

be posted by the agency within thirty (30) calendar days of the date

this decision becomes final, and shall remain posted for sixty (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 at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

__08-02-00_____ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify

that the decision was mailed to claimant, claimant's representative

(if applicable), and the agency on:

_________________________ __________________________

Date

1On 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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.

2Complainant, who was eligible for reinstatement, was included on only

the noncompetitive certificate, because he submitted one application.

3Pursuant to the EEOC Regulations in effect at the time, the agency had

the option of accepting, rejecting, or modifying the decision of the AJ.

The current regulations, however, provide that the decision of an AJ is

binding, subject to appeal by the parties. 64 Fed.Reg. 37,644, 37,657

(1999) (to be codified at 29 C.F.R. � 1614.109(i)).

4It is noted that complainant's termination was affirmed by the Merit

Systems Protection Board, and complainant did not file a petition for

review of that decision with the Commission.