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.