0120151637
08-28-2015
Complainant, v. Beth F. Cobert, Acting Director, Office of Personnel Management, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Beth F. Cobert,
Acting Director,
Office of Personnel Management,
Agency.
Appeal No. 0120151637
Hearing No. 550-2015-0008X
Agency No. OPM2014027
DECISION
Complainant filed a timely appeal with this Commission concerning her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for an Administrative Law Judge position advertised by the through USAJobs (Vacancy Announcement #ALJ2013-847661).
On June 9, 2014, Complainant sought EEO counseling and on June 29, 2014, filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of age when, on May 1, 2013, she was informed she was rated ineligible for the position because she did not provide sufficient licensure information. Complainant filed an administrative appeal with the Agency. Her EEO complaint also raised a claim regarding the length of time it was taking the Agency to process her appeal regarding her ineligibility. Specifically, Complainant challenged the Agency's policy and practice of not starting to process any administrative appeals until after the entire ALJ examination process is complete. Complainant argues that the lengthy appeals process has an "obvious disparate impact . . . upon older workers" because it may "preclude older workers from securing employment or qualifying for service-related benefits, including wage hikes, promotions and retirement benefits."
The Agency dismissed Complainant's claim concerning her actual ineligibility rating, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact, and accepted the claim regarding the duration of the appeal process for investigation.
Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency filed a motion to dismiss, and the AJ granted the Agency's motion.
First, the AJ affirmed the Agency's earlier determination that Complainant's claim concerning her May 1, 2013 ineligibility rating was untimely raised with an EEO counselor. The AJ then concluded that Complainant's claim that the Agency's administrative appeals process had a disparate impact on older workers failed as a matter of law. The AJ noted that Complainant conceded that the Agency's policy for handling appeals is a neutral policy that was applied equally to all ALJ applicants regardless of age and same consequences for all applicants. The AJ also determined that the relationship between the asserted impact and the challenged policy was too speculative and attenuated to constitute an adverse impact as Complainant's theory was based on the premise that her appeal would be successful,1 that she would then pass the remaining portions of the ALJ examination, that her score would be high enough to be place in a position on the ALJ register where she would be reachable be a hiring agency, and that she would be offered a position in an acceptable geographic location. Finally, the AJ found that Complainant incorrectly assumed that age was a proxy for anticipated duration of federal service.
When the Agency did not issue a final Agency decision on the matter, the AJ's decision became the final decision. The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1 - May 1, 2103 Ineligibility Rating
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. With respect to being deemed ineligible, the record discloses that the alleged discriminatory event occurred on May 1, 2013, but Complainant did not initiate contact with an EEO Counselor until June 9, 2014, which is well beyond the forty-five (45) day limitation period. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
Claim 2 - Duration of the Appeals Process
To establish a prima facie case of disparate impact, a complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (complainant must present "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion"). Specifically, a complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on a complainant to show that "the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern". Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also, Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000).
We agree with the AJ's finding that Complainant's disparate impact theory cannot succeed and so was properly dismissed for failure to state a claim. It is undisputed that the timing of the appeals process is applied exactly the same to all applicants regardless of age. Complainant has not offered any evidence, including statistical evidence, of a different impact on older applicants. We also agree that the relationship between the neutral appeals policy identified by Complainant and the asserted impact is too speculative and attenuated to establish an adverse impact. Finally, we concur that, beyond her bare assertions, Complainant failed to establish that age is a proxy for anticipated duration of federal service.
Accordingly, the AJ's decision dismissing Complainant's complaint, which became the Agency's final order, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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 77960, Washington, DC 20013. 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 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 (S0610)
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 (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 Complainants 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
August 28, 2015
__________________
Date
1 In a footnote, the AJ noted that Complainant admitted that she failed to put her bar license number into a specific text box required in the questionnaire responses. Thus, it was not clear that Complainant would successfully appeal her ineligibility rating.
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