0720060088
02-20-2009
Daryl R. Monke, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Daryl R. Monke,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0720060088
Hearing No. 160a60056x
Agency No. 420M04014
DECISION
Following its August 29, 2006 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection
of an EEOC Administrative Judge's (AJ) finding of discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ. For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
Complainant (aged 56 at the time) was an applicant for employment with
the agency at the time of the events in question. He worked as an Air
Traffic Controller (ATC) for the Federal Aviation Administration (FAA)
Department of Transportation (DOT) from 1968 until 1970, and then from
1972 until approximately 1981, when he left federal service.1 During
that time, complainant was covered under the Civil Service Retirement
System (CSRS). Following his departure from the DOT, complainant worked
in various jobs. In December 2002, he began working as an air traffic
controller in the private sector. There is no dispute in the record
that complainant worked for the DOT prior to May 16, 1972.
In 2004, complainant applied for the position of Air Traffic Control
Specialist at Westover Air Force Base. After his application was
reviewed, it was determined complainant was ineligible for the position
because of his age. This complaint followed.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On March 3, 2006, complainant filed a Motion for
a Decision Without a Hearing. On March 11, 2006, the agency filed a
Motion to Dismiss or in the alternative, a Motion for a Decision Without
a Hearing. On March 31, 2006, the agency responded to complainant's
Motion for a Decision Without a Hearing.
Finding no dispute of material fact, the AJ assigned to the case
issued a decision for complainant. Specifically, the AJ found that
although federal sector employees are covered under the ADEA, there are
exceptions for a few classes of jobs, including air traffic controllers.
Specifically, 5 U.S.C. � 8335(a) provides for mandatory separation for
air traffic controllers on the last day of the month in which he becomes
56 years of age. The AJ noted, however, that there was an exception to
that rule. Pursuant to Section 8 of Pub.L. 92-297, 5 U.S.C. � 8335(a)
was amended to provide that the mandatory separation age of 56 does not
apply to a person who was employed as an air traffic controller with
the DOT on the date of enactment (May 16, 1972). Because complainant
worked for the DOT prior to that date, the AJ found he was covered under
the exception, and not subjected to the mandatory retirement age of 56.
The AJ found that the agency's own regulations setting a maximum entry
age for air traffic controllers did not supersede the congressionally
approved exception for those employed as an air traffic controller prior
to May 16, 1972.
The AJ found complainant established a prima facie case of age
discrimination, and determined there was no dispute that the agency's
legitimate, nondiscriminatory reason for not hiring complainant was
a pretext. Although the agency argued that it was entitled, pursuant to
5 U.S.C.� 3307(b) to establish its own maximum entry age for air traffic
controllers, the AJ found this was a pretext to discriminate against him
on the basis of his age, and that as a former DOT employee, he is not
subject to the mandatory separation rules. According to the AJ, the
exception to the age restrictions for individuals employed by the DOT
as ATC's prior to May 16, 1972, are not superseded by DOD regulations
setting out minimum age entry requirements and delegating authority
to approve waivers of entry age and retirement age. The AJ found the
agency's attempts to distinguish between original appointment and reentry
to be pretextual; i.e., complainant exceeded the DOD's maximum age for
a first time appointment (30 years) and if he was considered reentry,
he exceeded the DOD's maximum age for reinstatement as an ATC (56 years).
The AJ found complainant should be placed into an air traffic controller
position, and awarded back pay.
On August 29, 2006, the agency issued a final action not implementing
the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, the agency argues that the AJ erred in finding that the ADEA
applied to this employment action. Specifically, 5 U.S.C. � 3307(b)
provides for the Secretary of Defense to establish a maximum age limit for
original appointment to an air traffic controller position. The agency
maintains that several courts have found that � 3307(d), which provides
for a maximum appointment age for law enforcement personnel, was an
exception to the ADEA.2 Because complainant was seeking an "original
appointment" into an ATC position, the agency acted appropriately
in applying 3307(b), which rendered complainant ineligible for hire.
Furthermore, complainant's prior employment in another agency does not
change the fact that he was applying into an "original appointment"
with the Department of Defense (DOD). The agency also contends that
even if complainant was not considered an "original appointment," he was
still subject to agency regulations which state that former civilian
air traffic controllers shall not be reappointed or reinstated after
they have reached the mandatory separation age of 56.
Furthermore, the agency contends it was an error for the AJ to find
that Pub.L. 92-297, which provides an exception to � 8335 for air
traffic controllers employed by the FAA prior to May 16, 1972, applied
to complainant. The agency notes that it did not make sense for Congress
to make a law which permitted air traffic controllers to leave employment
with the FAA, work in the private sector, and then work for another
agency twenty years later, under the protection of this section.
In response, complainant argues that Congress intended to give a safe
harbor to air traffic controllers employed prior to the enactment of
� 8335. He cites to prior EEOC AJ decisions which have found the May 16,
1972 exception applies to other applicants for ATC positions with the Air
Force, and states that there are many instances where individuals over
the age of 56 have been selected for positions despite the age limits.3
Complainant argues that the agency's reliance on case law dealing with law
enforcement officers is misplaced, as the statute clearly showed Congress
intended to carve out an exception for air traffic controllers.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the agency's final order adopting them,
de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on
an appeal from an agency's final action shall be based on a de novo
review . . ."); see also EEOC Management Directive 110, Chapter 9,
� VI.B. (November 9, 1999) (providing that an administrative judge's
"decision to issue a decision without a hearing pursuant to [29 C.F.R. �
1614.109(g)] will be reviewed de novo"). This essentially means that we
should look at this case with fresh eyes. In other words, we are free
to accept (if accurate) or reject (if erroneous) the AJ's, and agency's,
factual conclusions and legal analysis - including on the ultimate fact
of whether intentional discrimination occurred, and on the legal issue
of whether any federal employment discrimination statute was violated.
See id. at Chapter 9, � VI.A. (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to
the factual and legal determinations of the previous decision maker,"
and that EEOC "review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission's own assessment
of the record and its interpretation of the law").
Under the ADEA, it is "unlawful for an employer...to fail or refuse to
hire or to discharge any individual or otherwise discriminate against
any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's age." 29
U.S.C. � 623(a)(1). When a complainant alleges that he or she has been
disparately treated by the employing agency as a result of unlawful
age discrimination, "liability depends on whether the protected trait
(under the ADEA, age) actually motivated the employer's decision."
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)
(citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). "That is,
[complainant's] age must have actually played a role in the employer's
decision making process and had a determinative influence on the
outcome." Id.
Complainant applied for an ATC position, but was denied eligibility
because of his age. The agency's Human Resources Specialist averred
that complainant was rated ineligible for the position because he
did not meet the age requirement of being under 31, and also, he had
reached the maximum separation age of 56. The agency also adds that
complainant was considered an "original appointment" regardless of his
prior federal service, and therefore, was subject to the maximum age
limit of 30 on appointment.
The agency argues that 5 U.S.C. � 3307(b) provides for an exception to
the ADEA, and that it acted appropriately in enforcing its own regulations
(DOD Guidelines 1400.25M, Subchapter 331) which implement this exception.
Specifically, relevant agency policy at the time stated:
It is DOD policy under DOD Directive 1400.25 that 30 years is the maximum
age for entry into the covered civilian air traffic controller positions.
Persons who have reached their 31st birthday shall not be originally
appointed to air traffic controller positions. Appointment or other
action placing a person age 31 or older in a covered position is
permitted only if he or she previously held a civilian air traffic
controller position. However, former civilian air traffic controllers
shall not be reappointed or reinstated after they have reached mandatory
separation age...
5 U.S.C. 3307(b), upon which the guidelines are based, provides:
(b) The Secretary may, with the concurrence of such agent as the President
may delegate, determine and fix the maximum limit of age within which
an original appointment as an air traffic controller may be made.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. After a review of the record, and Commission precedent
and caselaw dealing with the analogous section regarding the maximum
age limits of law enforcement officers, we agree with the agency, and
find that the statutes operate as exceptions to the ADEA. See Stewart,
et. al. v. Smith, 673 F.2d. 485 (D.C. Cir. 1982)(holding section 3307(d)
operated as an exception to the ADEA). Indeed, the Commission has
previously recognized the validity of a statutory exception to the ADEA
in its federal sector cases and has consistently held that complaints
challenging statutorily created exceptions to the ADEA fail to state a
claim. See Campbell v. Department of Justice, EEOC Request No. 05960550
(April 17, 1997)(upholding dismissal for failure to state a claim of
challenge to agency's maximum age requirements).
Furthermore, the agency's treatment of complainant as an "original
appointee," despite his prior federal service, has already been
found to be a reasonable interpretation of 5 U.S.C. � 3307(b). See
DiLuglio v. Department of Defense, EEOC Appeal No. 01961597 (July 27,
1998)(concluding that agency's interpretation of "original appointment"
as meaning an initial hire in the agency was reasonable; finding that
the age requirement prepared under the authority of 5 U.S.C. � 3307(d)
applied to complainant; and therefore that complainant failed to state
a claim of age discrimination); Francke v. United States Department of
Treasury, 721 F.Supp. 47 (S.D. N.Y. 1989)(application was for an "original
appointment" even though applicant had prior law enforcement experience;
holding that 5 U.S.C. � 3307(d) creates a statutory exception to ADEA
and claim fails as a matter of law).
Complainant's primary argument, however, is with respect to the mandatory
separation age policy. To reiterate, the agency's policy above states
that former civilian air traffic controllers, like complainant, shall
not be reappointed or reinstated after they have reached mandatory
separation age. (SC331.4.1).
The agency relies on 5 U.S.C. � 8335 (a), which states in pertinent
part:
An air traffic controller shall be separated from the service on the
last day of the month in which he becomes 56 years of age or completes
the age in service requirements for annuity....The Secretary, under
such regulation as he may prescribe, may exempt a controller having
exceptional skills and experience as a controller from the automatic
separation provisions of this subsection until that controller becomes
61 years of age.
Despite this, complainant argues that Section 8 of Pub.L. 92-297, which
amended 5 U.S.C. � 8335(a), applies to him. That section provides that:
the mandatory separation provisions of 8335(a) do not apply to a person
appointed as an air traffic controller by the Department of Transportation
before the enactment of this Act [May 16, 1972].
The mandatory separation provision found at � 8335 operates as
an exception to ADEA. Yap v. Slater, 128 F.Supp.2d 672 (D. Hawaii
2000)(holding mandatory retirement for air traffic controller did not
violate ADEA); Bowman v. Department of Justice, 510 F.Supp. 1183, 1186
(E.D. Va. 1981), aff'd 679 F.2d 876 (4th Cir. 1982), cert. denied, 459
U.S. 1072 (law enforcement officers). However, in this case, the AJ found
complainant was not subject to the mandatory separation age because he
was employed by the FAA prior to May 16, 1972, and thus, covered under
the exception listed in � 8335(a). Accordingly, there was no legitimate,
nondiscriminatory reason not to hire him for the position.
However, we disagree, and find the agency was reasonable in construing
complainant as not included in the May 16, 1972 former FAA employee
exception. As the agency points out, nothing in the statute suggests that
this exception was meant to apply to an individual such as complainant who
was included in the CSRS while working for the FAA, left federal service,
and then reapplied with another agency.4 To follow complainant's line
of reasoning, an individual could leave the FAA and 20 years later,
reapply to another agency and avoid the mandatory separation age
enacted by Congress. The AJ's own analyses of the legislative history
of Pub.L. 92-297 supports the notion that this amendment was intended
to support FAA personnel, not former FAA personnel. "The intent of
the amendments to 5 U.S.C. 8335 (a) was 'to improve the conditions
of employment for individuals employed as air traffic controllers in
the Department of Transportation by offering preferential retirement
benefits, job training and improved appeal procedures for controllers
removed from control work, and the establishment of maximum recruitment
and retention ages for controllers.'" AJ Decision at p. 10 (citing
S.Rep. 92-774 P.L. 92-297, Air Traffic Controllers-career Program Senate
Report No. 92-774 May 1, 1972.) Moreover, in decisions of this kind,
we note that agencies are to be afforded a very high degree of deference
when it comes to interpreting their own laws and regulations. See Chevron
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).5
CONCLUSION
Accordingly, we find that the complaint fails to state a claim upon which
relief can be granted. Based on a thorough review of the record and the
contentions on appeal, including those not specifically addressed herein,
we AFFIRM the agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 20, 2009
Date
1 No explanation was provided as to the circumstances surrounding
complainant's departure from federal service.
2 5 U.S.C � 3307(c), (d), (e), (f), and (g), provide similar exceptions
for U.S. Park Police, law enforcement and firefighters, nuclear materials
couriers, and customs and border protection officers, respectively.
3 See William E. Clements v. Department of the Air Force, EEOC Hearing
No. 150-2004-00088X and Franklin R. Hill v. Department of the Air Force,
EEOC Hearing No. 150-2004-00112X. In those cases, the AJ granted
complainants' Motion for Summary Judgment, noting that the agency did
not respond or otherwise oppose the complainants' Motion in those cases.
4 In a footnote in Yap, the court stated that the record revealed
that an FAA employee who was covered under the May 16, 1972 exception
would lose coverage, if he switched from CSRS to the new benefit plan,
Federal Employee Retirement System (FERS).
5 To be sure, there was confusion within the agency's Personnel Office
when processing applications of Air Traffic Controllers, and the agency
concedes that any mistakes, if made, would be investigated. See ROI at
p. 98, Volpe-Proctor Affidavit.
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0720060088
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0720060088