01996072
04-18-2001
Thomas DiVita, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Thomas DiVita v. U.S. Department of Justice
01996072
April 18, 2001
.
Thomas DiVita,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01996072
Agency No. M98-0019
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated June 29, 1999, dismissing his complaint of unlawful
employment discrimination brought pursuant to the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
According to the record, complainant was a Deputy U.S. Marshall with
the agency's Marshall Service at the time he filed the instant EEO
complaint against the agency. In that complaint, complainant claimed
that the agency violated the ADEA when it forced him to retire on October
31, 1997, at the age of 57.
In its decision, the agency dismissed this complaint on the grounds of
failure to state a claim. Specifically, in pertinent part, the agency
determined that complainant's retirement as a Deputy U.S. Marshall was
properly implemented under a specific statutory exception to the ADEA
(5 U.S.C. � 8335), which Congressionally mandates that federal law
enforcement officers be retired at the age of 57.<1>
The instant appeal followed.
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. The Commission 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). Moreover, the Commission has specifically found that
both 5 U.S.C. � 8335, which sets forth the mandatory retirement ages
for federal law enforcement officers and firefighters, as well as its
companion statute 5 U.S.C. � 3307 (d), which mandates age limits for
original appointments to federal law enforcement positions, are valid
statutory exceptions to the ADEA.<2> See DiLuglio v. Department of
Defense, EEOC Appeal No. 01964785 (July 27, 1998); Sobko v. Department
of the Treasury, EEOC Request No. 05920106 (March 12, 1992). Therefore,
we conclude that an agency may implement mandatory separations under the
provisions of 5 U.S.C. � 8335 without resulting in an actionable claim
under the ADEA.<3>
Accordingly, we find that the agency properly dismissed the instant
complaint for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1), and we AFFIRM the agency's decision in this case.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 18, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1A law enforcement officer is defined as an employee in the civil
service, who investigates, apprehends, or detains individuals suspected
or convicted of federal crimes. See 5 U.S.C. �� 2105(a),8331(20).
2The legislative history of 5 U.S.C. �3307(d) and 5 U.S.C. � 8335
demonstrates that Congress sought to create a special exception to the
ordinary prohibition against age-based determinations under the ADEA;
specifically, where a young work force was necessary due to the nature
of the work, and where law enforcement officers would receive especially
generous retirement benefits as an offset to a shorter work life.
3However, a complaint alleging that the agency implemented a separation
under this statute in a discriminatory manner may state an actionable
claim of age discrimination. See Campbell, Id.