Edward W. Gennetten, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 24, 1999
01973098 (E.E.O.C. Nov. 24, 1999)

01973098

11-24-1999

Edward W. Gennetten, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Edward W. Gennetten, )

Complainant, )

) Appeal No. 01973098

v. ) Agency No. 9066001005

) Hearing No. 340-95-3823X

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Complainant filed a timely appeal from a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of age (49), in violation of the Age Discrimination in Employment

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

claims that he was discriminated against when his application for

employment as an engineer was summarily rejected by the agency in February

1990 because his engineering degree was earned more than one year ago.

The appeal is accepted in accordance with EEOC Order No. 960.001. For the

reasons that follow, the agency's decision is REVERSED AND REMANDED.

At the outset, we note that this case has had a long procedural history.

Complainant, an applicant for employment with the agency's Naval Ocean

Systems Center in San Diego, California, filed his complaint on April

17, 1990, claiming that his non-selection for an engineering position

was motivated by either intentional discrimination based on age,

or, in the alternative, because the agency's hiring policy created a

�disparate impact� on engineering applicants over the age of 40.<2> This

complaint set forth two incidents of discrimination under each theory:

non-selection prior to the agency's January 1990 to April 1991 hiring

freeze under its �manage to payroll� (MTP) program, and non-selection

during the freeze under the New Professional Program (NPP) exception.

Under the disparate impact theory, regarding his non-selection under the

NPP exception, complainant also contends that the NPP exception itself,

as well as the lack of advertising for these positions, and the lack of

�merit� type selection criteria, contributed to the discriminatory impact

against over 40 engineering applicants during the hiring freeze at issue.

The agency investigated the complaint<3>, and complainant eventually

presented his case at a hearing before an Equal Employment Opportunity

Commission (EEOC) Administrative Judge (AJ). Following the hearing,

the AJ issued a Recommended Decision (RD), dated April 29, 1993,

finding discrimination in the agency's NPP, based on complainant's

disparate impact theory.<4> The agency issued a FAD (FAD 2), adopting

the AJ's disparate treatment holding, but rejecting his finding of

discrimination under the disparate impact theory, remanding the case

for supplemental development of this issue. Complainant appealed the

agency's determination, and this Commission affirmed FAD 2, finding

that the AJ erred in his statistical analysis and that remand for

supplemental information was warranted. Specifically, we found that the

AJ erred by analyzing only the NPP data, and that the correct analysis

required a comparison of the ages of all engineers hired by the agency

during the freeze under all exceptions and waivers<5> with the ages

of all engineering applicants during the hiring freeze. See Gennetten

v. Department of the Navy, EEOC Appeal No. 01934253 (June 27, 1994).

The agency completed this remand action, which consisted of responding to

complainant's requests for statistics, and then requested a rehearing,

which was conducted on May 14, 1996. The AJ's RD (RD2) concluded that

complainant failed to establish a prima facie case of disparate impact

discrimination based on age because he was unable to present adequate

statistical evidence that the NPP resulted in an adverse impact on the

hiring of over 40 engineering applicants to a degree sufficient to create

an inference of discrimination under this theory. In reaching this

conclusion, the AJ held that the agency had not retained its records

on engineering applicants during the hiring freeze, and that lacking

this evidence, complainant was precluded from establishing a prima

facie case. On the other hand, the AJ permitted the agency to instead

present data on the engineers hired before and during the freeze, and

found that based on this data, and the testimony of the agency's expert

statistical witness based only on this data, the NPP exception did not

have a disparate impact on the number of over 40 engineering candidates

hired by the agency during the 15 month hiring freeze. Therefore, the

AJ found no discrimination, and the FAD (FAD3) adopted the AJ's RD2.

Complainant now appeals this determination.

A disparate impact action asserts that the employment practice, although

neutral on its face, operates to exclude members of a protected class.

International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335

n. 15 (1977). In order to prove disparate impact, complainant must carry

the initial burden of establishing a prima facie case of discrimination

by showing "that the facially neutral standard in question affects those

individuals [within the protected group] in a significantly discriminatory

pattern." See Kimble v. Department of Commerce, EEOC Request No. 05950838

(June 20, 1997) (citing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977)).

Specifically, complainant must: (1) identify the specific practice or

policy challenged; (2) show a statistical disparity; and (3) show that

the disparity is linked to the challenged policy or practice. See Condra

v. Department of Transporation, EEOC Appeal No. 01963760 (August 27,

1998) (citing Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988);

Griggs v. Duke Power Co., 401 U.S. 424 (1971)).

In conducting his prima facie case analysis, the AJ declined to draw

an adverse inference against the agency for not retaining its engineer

applicant records from the hiring freeze, noting that �the issue before

the Commission involved the hiring freeze.�<6> The AJ further explained

that the agency admitted that without this data it could not show that

its general engineer hiring practices did or did not adversely impact

over 40 engineers, but that the available data (i.e. successful applicant

data before and during the freeze) could establish that using the NPP

exception during the hiring freeze did not have the adverse impact

claimed by complainant.

EEOC regulations provide that an adverse inference may be taken against

the party failing to provide requested information or testimony unless

"good cause" is shown for the failure to fully and timely respond to

the request. See 29 C.F.R.�1614.108(c)(3) and 64 Fed. Reg. 37644,37655,

(1999) (to be codified at 29 C.F.R. �1614.109(f)(3); see also King

v. United States Postal Service, EEOC Request No. 05940441 (February 2,

1995). The Commission has long held that once an EEO complaint is filed

in connection with a non-selection, the agency is obligated to retain

all relevant records concerning the selection process for that position.

Sampson v. Department of Justice, EEOC Request No. 05960435 (August 13,

1998) (citing Ramirez v. United States Postal Service, EEOC Request

No. 05920839 (March 4, 1993); and Colquitt v. Dep't of Veterans Affairs,

EEOC Request No. 05870528 (June 14, 1988)).

We find that the AJ erred in not drawing an adverse inference against the

agency. In his April 1990 complaint, complainant set forth a disparate

impact theory, so that the agency was on notice to retain all relevant

records, and had a duty to do so at least from the date complainant filed

his complaint, if not sooner (i.e. when the EEO counselor contacted

the responsible management officials about complainant's claims of

discrimination). Furthermore, we find that the agency has failed to

set forth a �good cause� as to why it did not retain this any of this

data, simply testifying that the Navy does not retain applicant records,

without further explanation. Additionally, as noted above, we find that

the reason set forth by the AJ is insufficient to excuse the agency's

obligation in this regard. Although the AJ attempts to do so, we find

that the absence of this data, which was mandated by the prior Commission

decision, cannot be cured by a substitute analytical model, and we find it

compelling that the AJ, agency, and complainant, all concur that this data

is the only means by which complainant may establish a prima facie case.

Even the testimony of an expert witness on behalf of the agency cannot

remedy the lack of this data in this respect.

Accordingly, we draw an adverse inference against the agency and find

that this data, had it been available, would have permitted complainant

to establish a prima facie case of age discrimination under a disparate

impact theory as set forth by the legal authority cited above.

Upon establishing a prima facie case of disparate impact, the agency

has the opportunity to show that the employment practice at issue did

not cause the disparate impact or that such practice is "job related for

the position and consistent with business necessity." Civil Rights Act

of 1991, Section 105(a), 42 U.S.C. �2000e-2(k) (1) (b) (ii). Proof of

business necessity includes a showing that no acceptable policies or

practices are available which would serve the employer's interests without

such disproportionate impact upon a particular group. See Gregory

v. Department of Interior, EEOC Appeal No. 01965917 (June 29, 1998)

(citing Robinson v. Lorillard, 444 F. 2d 791 (4th Cir. 1971)). Should the

agency be successful in proving a business necessity for the disputed

practice, complainant can still prevail if he can show that there is a

less restrictive alternative available which would reduce or eliminate the

disparate impact. See Thomas v. Department of Transportation, EEOC Appeal

01945798 (December 12, 1996); Stiles v. Department of Transportation,

EEOC Appeal No. 01945782 (December 12, 1996).

In its response to complainant's appeal, the agency sets forth the

following �business necessity� justifications for operating its NPP

during the hiring freeze: the agency's need for recent graduates, even

during a hiring freeze; the need for engineers with recent experience

in current technologies; the need for recent engineering graduates who

have a great deal of understanding in the most up-to-date technology;

NPP was established in 1940's allowing latest scientific and engineering

knowledge to be brought into the Navy's labs; NPP exception needed

during the freeze so that relationships with colleges and universities

is not cut-off; NPP allows recent graduates to rotate through different

departments and receive different assignments.

In rebuttal<7>, complainant first challenges the agency's recency of

education justifications, arguing that older experienced engineers have

many means available to keep up with the ever changing state-of-the-art

in engineering, and that this level of knowledge is not exclusive to the

�world of recent graduates.� In support of this contention, complainant

references testimony from a number of witnesses who identify a multitude

of continuing education courses and training available to engineers.

Complainant also argues that a direct assessment of an applicant's

knowledge of current technologies, under a competitive merits selection

program, exclusive of when the engineering degree was earned, would

have been a less restrictive alternative to the NNP exception during the

hiring freeze.<8> Furthermore, in addressing the benefits to the agency

from its university ties, complainant disputes that either temporarily

suspending NPP hiring during the freeze, or using a less restrictive

alternative as an exception to the hiring freeze, would have had a

detrimental affect in this regard. In making this argument complainant

stated that the only effect identified by the agency was trivial, noting

that an agency witness merely opined that it might be �upsetting� to

some placement offices and to some students who had received interviews.

Regarding the office rotation justification, complainant points out

that this is more for the benefit of the new hire than the agency, and

that there is nothing to prevent a newly hired experienced engineer from

being rotated to different assignments.

After carefully reviewing the entire record of evidence, we find that

complainant has successfully rebutted the justifications set forth by

the agency, and also concur with his assessment that a less restrictive

alternative was available to the agency. As complainant notes, it is

not the agency use of the NPP exception during the freeze he objects

to, which obviously served a business necessity, but rather the way

in which it operated to completely and summarily exclude the typically

older engineering applicant who had the requisite up-to-date training

and education, but simply earned an engineering degree more than one

year before application to the agency.

Accordingly, it is our decision to REVERSE the FAD. We find that

complainant has proven discrimination, to be remedied as set forth in the

following Order. In this regard, we note that complainant's only claimed

basis of discrimination is age, and that neither compensatory damages

nor attorney's fees are available remedies under the ADEA. See Falks

v. Department of Treasury, EEOC Request No. 05960250 (September 5, 1996).

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision

becomes final, the agency must place complainant into the type of

engineering position he applied for, or a comparable position agreeable

to complainant. Additionally, the agency is ordered to award complainant

back pay, with interest, as well as any other benefits lost due to the

non-selection.

2. Within thirty (30) calendar days of the date this decision becomes

final, the agency must reimburse complainant for any costs he incurred,

exclusive of compensatory damages or attorney's fees.

3. The attached notice must be signed by the Commander of the Naval

Ocean Systems Center in San Diego, California and posted within thirty

(30) calendar days of the date this decision becomes final. It must

remain posted for sixty (60) consecutive days, in conspicuous places,

including all places where notices to employees are customarily posted.

The agency must take reasonable steps to ensure that these 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.

4. The agency shall provide training in the obligations and duties

imposed by the ADEA to all managerial officials responsible for agency

actions in this case as well as those responsible to creating or

implementing special hiring and recruitment programs for engineering

candidates.

5. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Naval Ocean Systems Center in San

Diego, California, 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 (M1199)

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). 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

November 24, 1999

___________ ___________________________________

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 complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.

2The Commission has ruled that a complainant can state a claim of

discrimination using the disparate impact theory under the ADEA.

See Parker, et al v. Department of the Navy, EEOC Request No. 05970486

(March 25, 1999).

3The agency at first accepted and investigated complainant's

complaint, and then issued a FAD (FAD 1), rejecting the complaint on

procedural bases. Complainant appealed this determination, and this

Commission ordered the agency to reinstate the complaint. See Gennetten

v. Department of the Navy, EEOC Appeal No. 01913697 (December 26, 1991).

The agency's Request for Reconsideration was granted by this Commission,

dismissing the MTP issue due to untimely counselor contact, but affirming

the reinstatement of the NPP issue. See Gennetten v. Department of the

Navy, EEOC Request No. 05920360 (May 29, 1992).

4The AJ found that complainant failed to prevail on his disparate

treatment theory. Complainant has not contested this determination.

5The NPP was only one of several exceptions to the hiring freeze permitted

by the agency. The NPP permitted the agency to recruit engineering

graduates from colleges and universities, and excluded all applicants who

had not earned their most recent engineering degree within the past year.

6Although this is the AJ's stated reason, we must concede that we fail

to see how this relieved the agency of its record-keeping obligations.

7Complainant's statement on appeal refers to his closing arguments

as setting forth his rebuttal that the agency could have used a less

restrictive alternative to the NPP program.

8Complainant also sets forth a second alternative suggesting that a

certain percentage of new hires should be reduced. However, without

a more complete explanation of how and why this is a less restrictive

alternative, we find that complainant has not prevailed in this instance.