03A30044
06-25-2003
Bruce A. Boyles, Petitioner, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Bruce A. Boyles v. Department of the Army
03A30044
June 25, 2003
.
Bruce A. Boyles,
Petitioner,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Petition No. 03A30044
MSPB No. SE-0752-01-0141-I-2
DECISION
On April 14, 2003, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Petitioner,
a Lead Firefighter, GS-0081-07, at an agency's Fort Lewis, Washington
facility, alleged that he was discriminated against on the bases of age
(42) and reprisal (protected activity under the ADEA) when he was removed
from employment.
The record reflects the following development of the case at bar.<1>
Petitioner filed a formal EEO complaint alleging, inter alia, that
the agency discriminated against him based on age when he was required
to obtain certification as an Emergency Medical Technician (EMT) as a
requirement to hold his position. Petitioner subsequently amended and
clarified his EEO complaint to allege that the imposition of the EMT
certification requirement disparately impacted Firefighters over the
age of 40, and that the agency engaged in reprisal for his initiating
the complaint by detailing him to an unclassified set of duties pending
his removal for failure to obtain EMT certification.
While the EEO complaint was pending, the agency removed petitioner
from employment. Petitioner appealed his removal to the MSPB.
Petitioner requested a hearing on his EEO complaint. Because the claims
at issue in the EEO complaint were factually related to the removal
claim, the EEOC Administrative Judge (AJ) granted the agency's motion to
dismiss the EEO complaint so that the claims could be consolidated before
the MSPB. The MSPB AJ, however, declined to consolidate the claims,
noting that the MSPB does not have plenary jurisdiction, and that only
petitioner's removal claim was properly before him.
The MSPB AJ upheld petitioner's removal. As part of the determination,
the MSPB AJ found that the agency had both the authority and a legitimate
reason to institute the requirement that all Firefighter personnel obtain
EMT certification; to wit, Firefighter personnel frequently were the first
responders to medical emergencies at Fort Lewis, often by some minutes,
and therefore it was in the interest of the community being served to
ensure that all Firefighters were certified EMTs.
To establish a prima facie case of disparate impact, petitioner must
show that an agency practice or policy, while neutral on its face,
disproportionately impacted members of the protected class. This is
demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged
practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977,
994 (1988); see Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also
Gaines v. Department of the Navy, EEOC Petition No. 03990119 (August
31, 2000).
Assuming for the sake of argument that a prima facie case of disparate
impact has been shown, the agency may rebut the prima facie case by
showing 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); Van De Car v. Department
of Veterans Affairs, EEOC Appeal No. 01971656 (August 17, 2000). Here,
the agency has established that the EMT certification requirement is both
job-related and consistent with business necessity; to wit, Firefighter
personnel are frequently the first responders to medical emergencies in
the community served, often arriving some minutes ahead of an ambulance.
Petitioner might still prevail if he can show that there is a less
restrictive alternative available which would reduce or eliminate the
disparate impact. Griggs v. Duke Power, 401 U.S. 424 (1971); Watson
v. Fort Worth Bank and Trust, 487 U.S. 977 (1988). However, petitioner
does not assert, nor does the record support, the existence of a less
restrictive alternative available that would reduce or eliminate the
alleged disparate impact.
With regard to petitioner's removal, the Commission notes that in the
course of adjudicating the removal claim, the MSPB AJ of necessity
determined that the agency's imposition of the EMT certification
requirement did not constitute disparate impact age discrimination.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to CONCUR with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
However, because of jurisdictional considerations, the MSPB AJ did
not address petitioner's claim that the agency engaged in reprisal
by detailing him to a set of unassigned duties pending his removal.
When the MSPB has denied jurisdiction, the Commission has held that
there is little point in continuing to view the matter as a "mixed case"
as defined by 29 C.F.R. �1614.302(a). Thus, the case will be considered
a "non-mixed" matter and processed accordingly. See generally Schmitt
v. Department of Transportation, EEOC Appeal No. 01902126 (July 9, 1990);
Phillips v. Department of the Army, EEOC Request No. 05900883 (October
12, 1990); 29 C.F.R. �1614.302(c)(2)(i) and (ii). The record reflects
that petitioner had requested a hearing on this claim. Accordingly,
the claim of reprisal in connection with the detail to unassigned duties
will be remanded to the agency to offer petitioner a hearing or, if he
now so desires, an immediate final agency decision.
ORDER
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to petitioner that it
has received the remanded claim within thirty (30) calendar days of the
date this decision becomes final, and shall advise petitioner that he may
either renew his request for a hearing before an EEOC Administrative Judge
or instead may request an immediate final agency decision. If petitioner
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of petitioner's request.
A copy of the agency's letter of acknowledgment to petitioner and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
June 25, 2003
__________________
Date
1The procedural history of petitioner's case is somewhat more tortuous
than appears herein. In the interest of judicial economy, only those
events directly impacting on the disposition of the case are recounted.