See Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 73-74 (1st Cir. 2011) (declining to reach the issue where, “even under the less rigorous ‘mixed motive’ burden,” a plaintiff could not overcome summary judgment); see also Sanchez-Bonilla v. Shinseki, 11-cv-1322-CCC, 2013 WL 496097, at *2-3 (D.P.R. Jan. 31, 2013) (same). This Court has required that age be established as the but-for cause of the federal personnel action, see Joyce, 2013 WL 300754, at *12-13, and other courts have questioned the applicability of a “mixed-motive” burden of proof to actions under 29 U.S.C. § 633a, see Reynolds v. Tangherlini, 737 F.3d 1093, Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 18 of 23 PageID #: 359 18 First, in order to establish a prima facie case, Plaintiff must prove he was disabled, qualified to perform the essential functions of the job, and that the DLA took adverse action against him because of his disability. Rios-Jimenez v. Principi, 520 F.3d 31, 40-41 (1st Cir. 2008); see also Gillen, 283 F.3d at 30 (“the plaintiff first must establish a prima facie case by proving by a [preponderance of the evidence that []he applied for an available position for which []he was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.”)

Id. (citing 29 U.S.C. §§ 633a(b), (c)). Plaintiff has not used either avenue to administratively exhaust his retaliatory hostile work environment claim.

Smith v. City of Jackson, 544 U.S. 228, 240-41 (2005). Plaintiffs’ rejoinder may be that, however persuasive such views might be to Congress, the statutory language authorizing an RFOA defense is in the private-sector version of the ADEA, 29 U.S.C. § 623(f)(1), and is not also set forth in the public- sector ADEA provision, 29 U.S.C. § 633a. The better view, however, is that the business necessity test should indeed have no place in ADEA disparate-impact cases, and that the RFOA defense available to private employers in ADEA cases is also available to federal agency defendants.

Privacy Act Notice Privacy Act Notice. The collection of this information is authorized by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a; the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794a; and Executive Order 11478, as amended. This information will be used to adjudicate complaints of alleged discrimination and to evaluate the effectiveness of the EEO program.

Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008).1 The Supreme Court’s holding, however, limited any retaliation claim under the federal-sector ADEA to be one based on complaints or oppositions to age discrimination. See id.; Mathirampuzha v. Potter, 548 F.3d 70, 74 n.3 (2d Cir. 2008) (“The Supreme Court recently clarified that the federal-sector provision of the [ADEA], 29 U.S.C. § 633a(a), prohibits retaliation based on the filing of an age discrimination complaint[.]”).

Both Plaintiffs’ and Defendants’ experts agree that the statistical evidence proves that there was a disparate impact. Because this is a federal sector age discrimination case under 29 U.S.C. § 633a, which holds the government to a more rigorous standard than the private sector, the Defendants, in order to defend against this uncontroverted demonstration, must show that the disparate impact was caused by a business necessity. They have attempted to do so, claiming the disparate impact to be caused by the need to lower costs and to comply with the President’s Management Agenda.

of 1967. as amended, 29 U.S.C.633a; The Rehabilitation Aci o/ 1973, a.s amended, 29 U.S.C. 794a; and Executive Order 1 H78, as amended. This lnfom,ation win be used to adjudicate complaints ot alleged discrimination and to evaluate !

as amended. 29 U.S.C. § 633a: the Rehabilitation AC1 of 1973. as amended, 29 U.S.C. § 794a: and Executive Order 11478.

While the ADEA provision prohibiting discrimination in the private sector permits employers to assert a RFOA as a defense, the provision prohibiting discrimination in the federal sector does not provide for that defense. Compare 29 U.S.C. § 623a (2012), with 29 U.S.C. § 633a (2012). Whatever Congress intended federal agencies to assert as their defense to claims under section 633a, plainly it did not intend to permit the defense of a RFOA.14 14 Notwithstanding the Supreme Court’s authority that Congress patterned Section 633a after Title VII, a district court judge has found otherwise.

In making this statement, I understand Section 1001, Title 18 of the U.S. Code which states: "Whoever, in any manner within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme or device a material fact, or makes any false, fictitious or fraudulent statements or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both." Privacy Act Notice Privacy Act Notice: The collection of this information is authorized by The Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000e-16; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.633a; The Rehabilitation Act of 1973, as amended, 29 U.S.C. 794a; and executive Order 11478, as amended. This information will be used to adjudicate complaints of alleged discrimination and to evaluate the effectiveness of the EEO program.