Todd W. Van Alstyne, Complainant, Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 13, 2000
01971829 (E.E.O.C. Mar. 13, 2000)

01971829

03-13-2000

Todd W. Van Alstyne, Complainant, Bruce Babbitt, Secretary, Department of the Interior, Agency.


Todd W. Van Alstyne v. Department of the Interior

01971829

March 13, 2000

Todd W. Van Alstyne, )

Complainant, )

) Appeal No. 01971829

) Agency No. FNP-95-020

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

)

DECISION

INTRODUCTION

On December 21, 1996, Todd W. Van Alstyne (complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated November 25, 1996, concerning

his complaint of unlawful employment discrimination in violation of the

Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �621

et seq.<1> The Commission hereby accepts the appeal in accordance with

EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly determined that

complainant had failed to prove that the agency discriminated against

him based on age.

BACKGROUND

Complainant was employed by the agency (National Park Service) as a

temporary/seasonal Park Ranger, GS-025-5. On July 19, 1994, he applied

for conversion to permanent status under the Outstanding Scholar Program.

In late July 1994, complainant was told that he would be converted, as of

August 7, 1994, to permanent status. On August 11, 1994, complainant was

informed that there was a problem with his conversion to permanent status

because of his "age and the newly-enacted 6c Enhanced Annuity Retirement

age restrictions." Complainant was, therefore, denied conversion

to permanent status. Also on that date, complainant was told that a

verbal exception to the age restriction (which he had been told had been

obtained in his case) would not suffice, and that he would have to get a

written authorization. According to complainant, an official request for

a waiver to the maximum age requirement was drafted and submitted to the

Chief of Ranger Activities in the Washington office on August 12, 1994.

Complainant initiated EEO Counseling on August 12, 1994. He filed a

formal complaint on November 23, 1994, alleging discrimination on the

basis of age (DOB: April 4, 1951) when on August 11, 1994, his employment

contract was violated and he was not converted to the permanent position

of Law Enforcement Park Ranger GS-025-7 (the Position) at the Grand Canyon

National Park. The agency accepted the complaint for investigation

and processing. At the conclusion of the investigation, the agency

issued a copy of its investigative report and notified complainant of

his right to request an administrative hearing. After complainant did

not request a hearing, the agency issued its FAD on November 25, 1996.

In its FAD, the agency found that the complainant had failed to

establish a prima facie case of age discrimination because he was

unable to demonstrate that he was treated differently than similarly

situated employees not in his protected age class. The legitimate,

nondiscriminatory reason articulated by the agency for its decision not

to hire complainant into the desired Position was the implementation at

that time of the National Park Service Guidelines for Law Enforcement

Positions. Those regulations established a maximum age limit of 37 for Law

Enforcement personnel, which the Park Ranger position is classified as.

The agency concluded that complainant had not shown that age was a

factor in his not being converted to a permanent Park Ranger Position,

and that he had not been discriminated against based on age.

This appeal followed. Complainant submitted documentation which verified

that in March 1996 he was granted a waiver, effective in April 1996,

that allowed him to assume 6(c) Law Enforcement status as a permanent

employee. He requested that the Commission review his appeal in order

to make a determination on any back wages and benefits that he may be

entitled to for the period of time when the position was denied him.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides that an agency

shall dismiss a complaint which fails to state a claim pursuant to 29

C.F.R. �1614.103. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. �1614.107(a)(1)). An agency

shall accept a complaint from any aggrieved employee or applicant for

employment who believes that he or she has been discriminated against

by that agency because of race, color, religion, national origin, age

or disabling condition. 29 C.F.R. �1614.103; �1614.106(a).

The provisions of 5 U.S.C. �3307(d) create an exception to the Age

Discrimination in Employment Act of 1967 (ADEA) by permitting agencies

to set maximum age limits for original appointments to "law enforcement

positions." The Commission has previously held that a complaint that is

challenging the maximum age limit set for law enforcement personnel will

fail to state a claim. Campbell v. Department of Justice, EEOC Request

No. 05960550 (April 17, 1997). Therefore, to the extent that complainant

is challenging the age limit set for the law enforcement position that

he desired to hold, we find that he has failed to state a claim.

To the extent, however, that complainant is arguing that the original

denial of his request for a waiver, and the subsequent delay in ultimately

receiving that waiver, is discriminatory, we find that he has stated a

claim. Complainant's formal complaint alleged that he was discriminated

against when his employment contract was violated, as well as when he was

not converted to permanent employment status, and the agency accepted

that statement as the issue for processing and investigation. In the

record, complainant refers to the verbal waiver approval and subsequent

withdrawal of that waiver as the violation of his employment contract.

We find, however, that there is not enough information presently contained

in the record to allow us to make a determination on the merits of

the waiver denial. Complainant claimed that an official request for

a waiver was drafted and submitted on August 12, 1994. The record

reveals that a waiver request was drafted, but it does not appear to

have been officially submitted. The request is neither signed nor dated,

although it appears to have been drafted sometime in 1994. Complainant

received a waiver in March 1996. That waiver request was drafted on

February 26, 1996, and approved on March 5, 1996. The record contains

information on one other employee who was affected by the age limit.

That employee (DOB: October 15, 1956) was granted a waiver on May 18,

1995, approximately 10 months before complainant received his waiver.

The record also reveals that on February 22, 1995, the agency issued

guidance on making exceptions to the maximum age limit. On remand,

the agency shall investigate whether the waiver for complainant was

discriminatorily denied or delayed, as detailed below.

Accordingly, the decision of the agency is REVERSED and REMANDED for

further processing in accordance with this decision and the proper

regulations.

ORDER

The agency is ordered to conduct a supplemental investigation on the

issue of whether a waiver to the age limit was discriminatorily delayed

or denied for complainant. The agency shall include evidence regarding

their policy or practice on how the waiver process works and how long

it should take to receive a waiver. A copy of the materials obtained

during the investigation should be sent to complainant within 90 days

of the date this decision becomes final. The complainant shall have an

opportunity to respond to the agency's submission of the above information

within 30 days.

The agency also shall notify complainant of the appropriate rights at

the time it issues the investigative file to the complainant, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the new FAD, and copies of the supporting documentation from

the investigation, as ordered above, must be sent to the Compliance

Officer as referenced below.

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:

March 13, 2000

_________________ __________________________________

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:

_________________________ __________________________

1 On 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.