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.