01A05531_r
03-29-2001
Charles R. Brumbaugh, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Charles R. Brumbaugh v. U.S. Department of the Army
01A05531
March 29, 2001
.
Charles R. Brumbaugh,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A05531
Agency No. AFDEFO-0003-A0-470
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated April 12, 2000, dismissing his complaint of unlawful
employment discrimination brought under 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.
After careful consideration, and for the reasons stated herein, the
Commission AFFIRMS the agency's dismissal of the instant complaint for
failure to state a claim.
Complainant, a non-dual status military technician with the Army Reserve,
filed an EEO complaint claiming that the agency violated the ADEA when
he was forced to retire on April 3, 2000, under the newly enacted
provisions of 10 U.S.C. � 10218.<1> Complainant contends that these
provisions, which mandate separation of all non-dual status military
technicians<2> who are eligible for an unreduced retirement annuity,
violate the ADEA, and that his removal under these provisions constitutes
age discrimination.
In its decision, the agency dismissed this complaint for failure to state
a claim, finding that the provisions of 10 U.S.C. � 10218 were lawfully
mandated by Congress, and that complainant was properly separated under
these provisions. See 29 C.F.R. � 1614.107(a)(1). Furthermore, the
agency also found that complainant's challenge of the legality of this
Congressionally enacted statutory amendment is not within the purview
of the Commission's regulations, and dismissed the complaint for this
reason as well. See 29 C.F.R. � 1614.103.
Complainant now appeals the agency's decision. In response, the agency
outlines the legislative history of 10 U.S.C. � 10218, and argues that
while it is true that the separations mandated by 10 U.S.C. � 10218 can
and do result in age discrimination, it is �lawful� because Congress
passed this law with the purpose of sustaining a �youthful and vigorous
military technician force.� The agency also again argues that this
matter is not within the scope of the Commission's regulations.
EEOC Regulations 29 C.F.R.� 1614.103; � 1614.106(a) provide that an agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he has been discriminated against by that
agency because of race, color, religion, national origin, age or disabling
condition. More specifically, under the ADEA, an agency shall accept
a complaint of discrimination on the basis of age when the aggrieved
individual is at least forty years of age. See 29 C.F.R. � 1614.103(a).
As noted above, the agency dismissed the instant complaint for failure
to state a claim, finding that complainant's separation was properly
implemented pursuant to 10 U.S.C. � 10218, and that this statute lawfully
permits age discrimination in the mandatory separation of non-dual status
military technicians who qualify for unreduced retirement annuities.<3>
In essence, we find that the agency is arguing that Congress enacted
10 U.S.C. � 10218 as an statutory exception to the prohibitions against
age discrimination in the ADEA in the national interest of maintaining
a �youthful and vigorous military technician force.�
Although the ADEA bars mandatory retirement for most employees, there
are a few well established exceptions, such as those concerning public
safety officers and airline pilots. Furthermore, the Commission has
specifically recognized the validity of a statutory exception to the ADEA
in its federal sector employment discrimination cases. In Campbell
v. Department of Justice, EEOC Request No. 05960550 (April 17, 1997),
the Commission held that Public Law 93-350 creates an exception to the
protections afforded by the ADEA by permitting federal agencies to set
maximum age limits for original appointments to law enforcement positions.
The Commission further determined that complaints challenging the
maximum age limit set for law enforcement personnel under this statute
will fail to state a claim. See Campbell, supra. Therefore, although
Campbell addressed only the validity of a statutory exception to the
ADEA concerning original appointments, and not mandatory retirement,
we nonetheless find that Campbell allows the Commission to generally
recognize statutorily created exceptions to the ADEA in federal sector
employment age discrimination cases. Therefore, the issue before us is
whether 10 U.S.C. � 10218 may be deemed a statutory exception to the
protections afforded by the ADEA.
In Strawberry v. Department of State, No. 96-5221 (D.C. Cir. 1997), a
federal employee filed suit against the agency under the ADEA, claiming
age discrimination in his forced retirement at age 65 under the mandatory
retirement provisions of the Foreign Service Act. In that case, the court
held that the mandatory retirement provisions of the Foreign Service Act
must be given �full force and effect� and that the ADEA cannot be read to
prohibit their implementation. In reaching this conclusion, the court
relied on the well-established tenet of statutory interpretation that
unless there is a clear statement of Congressional intent to the contrary,
a specific statute will not be controlled or nullified by a general
statute, particularly when the specific statute was enacted after the
general statute.<4> In commenting on this case, the Commission observed
that the court looked at both statutes and concluded that Congress knew
what it was doing in keeping the mandatory retirement provisions in place
even when it otherwise outlawed mandatory retirement for most employers
under the ADEA.<5> See EEO Update: EEO Vol. 5, No. 7 (July 1, 1997).
Applying this same principle to the instant case, we find that because
Congress enacted 10 U.S.C. � 10218 (a specific statute) after the ADEA (a
general statute), with full knowledge of the provisions of both statutes,
we must conclude that Congress did not intend that the ADEA's general
prohibitions against age discrimination should operate to bar the agency
from implementing the provisions of 10 U.S.C. � 10218. Moreover,
in decisions of this kind, we note that agencies are to be afforded a
very high degree of deference when it comes to interpreting their own
laws and regulations. See Chevron Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Therefore, we conclude that the
provisions of 10 U.S.C. � 10218 create a statutory exception to the ADEA,
permitting the agency to implement the mandatory separation of non-dual
status military technicians who are eligible for unreduced retirement
annuities, without resulting in an actionable claim under the ADEA.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 29, 2001
__________________
Date
1On October 5, 1999, Congress enacted the National Defense Authorization
Act for Fiscal Year 2000 (Public Law 106-65), which amended Chapter
1007 of Title 10, United States Code, by adding 10 U.S.C. � 10218 as a
new section.
210 U.S.C. � 10217 defines a non-dual status military technician as
a civilian employee of the Department of Defense hired as a military
technician before the date of enactment of the National Defense
Authorization Act for Fiscal Year 1998, who as of the date of the
enactment of that Act, is not a member of the Selected Reserve, or after
such date ceased to be a member of the Selected Reserve.
3Eligibility for an unreduced annuity is determined under statutory
civil service criteria, based on both age and length of service, as
set forth in Title 5 of the United States Code. Therefore, although
not based on age alone, both parties agree that application of this
criteria nevertheless results in the mandatory separation of non-dual
status military technicians over forty years of age.
4In Strawberry, the court found that Congress enacted amendments to the
mandatory retirement provisions of the Foreign Service Act in 1980 and
1986, which post-date the ADEA.
5One distinguishing factor between Strawberry and the instant complaint,
is that in Strawberry the complainant changed positions, requiring
an election between two retirement plans, and voluntarily chose the
one having a mandatory retirement age. By contrast, in the instant
complaint, complainant had always been under the same retirement plan,
and had never been required to make an election. Therefore, although
the court in Strawberry points to the complainant's voluntary election
as a factor in its decision, we find that this is not relevant to our
determination because the complainant in the instant case was not required
to make a similar election.