Ervin A.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 9, 2017

0120150155 (E.E.O.C. Mar. 9, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ervin A.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150155

Agency No. 200P-0756-2012104860

DECISION

The Commission accepts Complainant’s appeal from the September 10, 2014, final Agency
decision (FAD) concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Addictions
Therapist at the Agency’s VA Outpatient Clinic in El Paso, Texas. Complainant is a Licensed
Chemical Dependency Counselor in Texas and a Licensed Alcohol and Drug Abuse Counselor
in New Mexico. Complainant received his Master's Degree in Counseling and Educational
Psychology in 1985 from New Mexico State University. On August 13, 2012, Complainant
spoke to a Human Resources Specialist to inquire about applying for a Licensed Professional
Mental Health Counselor (LPMHC) position announced under Vacancy Announcement F1-
12MRo663782-R19. The Human Resources Specialist informed Complainant that he did not
meet the qualifications standard for the position because he received his Master’s degree in
mental health counseling or a related field from an institution which was not certified by the
Council for Accreditation of Counseling and Related Educational Programs (CACREP) at the
time of his graduation.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On November 13, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of age (55) when on August 13, 2012, and ongoing, he
has been subjected to adverse impact concerning selection and promotional opportunity for the
position of a Licensed Professional Mental Health Counselor, Vacancy Announcement FI-12-
MRo-663782-R19, when the Agency required CACREP credentials that were not a recognized
standard or credential during the time older applicants would typically have obtained their
educational degrees.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI). The Agency subsequently conducted a supplemental
investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not respond
within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant
to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency initially acknowledged that Complainant alleged that the Agency’s
qualification requirements for LPMHCs have a disparate impact based on age. Specifically,
Complainant claimed that the requirement that LPMHCs have received their Master’s degree
in mental health counseling or a related field from an institution which was certified by
CACREP at the time of their graduation has an adverse impact because CACREP credentials
were not a recognized standard or credential during the time older applicants would typically
have obtained their educational degrees.

The Agency determined that Complainant failed to establish a prima facie case of disparate
impact discrimination as he failed to establish that the identified policy resulted in a statistical
age disparity. The Agency then assumed arguendo that Complainant had established a prima
facie case of adverse impact discrimination and determined that it had established that the
CACREP requirement was justified by a reasonable factor other than age. Namely, the
Agency explained that Licensed Professional Counselors are licensed mental health
professionals who provide counseling and therapy. As passed in 2010 with respect to the
Agency, Public Law 111-163’s authorization of the occupation of LPMHC, a hybrid Title 38
position, necessitated the development of qualification standards. The Agency has the
authority under 38 U.S.C. § 7402 to write its own qualification standards for Title 38
positions. The qualification standard for Licensed Professional Mental Health Counselors was
approved by the Assistant Secretary for Human Resources and Administration.

The qualification standard, 38 U.S.C. § 7402(11), states that to be appointed to a Licensed
Professional Mental Health Counselor position, a person must: “(A) Hold a master's degree in
mental health counseling, or a related field from a college or university approved by the
Secretary; and (B) Be licensed or certified to independently practice mental health counseling.”
The qualification standard committee, however, was concerned that there was extensive
variability in training programs for professional counseling programs and wanted a national
body accrediting the training program for LPMHCs. Since other Mental Health Professions
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include a requirement for educational accreditation by a national accreditation body, the
committee thought the accreditation requirement for LPMHCs should not differ from other
mental health professions which have national accrediting. The subject matter experts and
Program Office identified the Council for Accreditation of Counseling and Related Educational
Programs requirement as being the industry standard necessary to ensure the best patient care
to veterans. At the time, CACREP was the only certifying body for this occupation recognized
by the Council for Higher Education Accreditation.

The qualification standard was published in the Agency Handbook on September 28, 2010.
Specifically, applicants for the position of LPMHC must hold a Master’s degree in mental
health counseling or a related field, from a program accredited by CACREP.

According to the Team Leader of the Title 38 Staffing Policy Team, Office of Human
Resources Management, Recruitment and Placement Policy Service, the Agency’s policy on
grandfathering provides that if the qualification standards of an existing Title 5 occupation are
changed as a result of conversion to Title 38, all Agency employees in the Title 5 occupation at
the time of the conversion are considered to have met the basic qualifications of the new
Agency Title 38 qualification standard, and may remain employed at their current grade and
step. Since the LPMHC occupation was new to the Agency, and there were no current
Agency employees in the occupation, a grandfather provision was not added to the
qualification standard. The Team Leader added that if the Agency requested revision of a
qualification standard and the qualification standard is revised, the new criteria would only
apply to new appointments.

The Agency concluded that the CACREP requirement is justified by a reasonable factor other
than age. As a result, the Agency found that it had not violated the ADEA. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s CACREP requirement adversely affects
him and others over 40. Complainant argues that the CACREP certification only existed a few
years prior to his graduation and was not recognized as important at the time. Complainant
believes that the intended purpose of the policy was to ensure basic minimal qualification;
however, the policy ultimately defeats its purpose by eliminating candidates without other
eligibility considerations. Accordingly, Complainant requests that the Commission reverse the
FAD. The Agency submitted a statement in opposition to Complainant’s appeal in which it
argues that its FAD was correctly decided and urges that the Commission to affirm its
decision.

ANALYSIS AND FINDINGS

The ADEA was enacted to guarantee older workers equal employment opportunity.
Complainant may proceed on a disparate impact theory in order to establish his claim of
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discrimination under the ADEA. Smith v. City of Jackson, Mississippi, 544 U.S. 228, 125 S.
Ct. 1536 (2005). In general, to establish a prima facie case of disparate impact, Complainant
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). Specifically
Complainant must: 1) identify the specific practice or policies challenged; 2) show statistical
disparities; and 3) show that the disparity is linked to the challenged practice or policy. Id. If
Complainant successfully establishes a prima facie case, in an ADEA case the burden is then
on the Agency to show the adverse impact was attributable to a “reasonable” factor other than
age. The reasonableness inquiry does not ask “whether there are other ways for the employer
to achieve its goals that do not result in the disparate impact on the protected class.” Smith v.
City of Jackson, Mississippi, 544 U.S. 228, 239 & 243 (2005); Carpenter v. Dep’t of Transp.,
EEOC Appeal No. 0120091464 (Sep. 30, 2011).

The Commission finds that Complainant failed to establish a prima facie case of disparate
impact discrimination. More specifically, Complainant failed to demonstrate that a statistical
disparity existed that was linked to the challenged practice or policy. The record reveals that
neither party was able to produce information regarding the number of applicants for LMPHC
positions and their ages because such information is not part of the application process. The
record shows, however, that as of January 2014, four applicants for an LPMHC position had
their offers of employment rescinded due to lack of educational accreditation by CACREP.
Supp’l ROI, at 218-220. Three of the applicants were over the age of 40. Id. Nonetheless,
the record discloses that the Agency employed 85 LPMHCs nationally as of January 2014. Id.
at 139-40. The average age of those LPMHCs is 41.5. Id. at 141-43. Thus, the record
supports the Agency’s finding that Complainant failed to establish statistical disparities linked
to the challenged practice or policy.

Moreover, assuming arguendo that Complainant established a prima facie case of disparate
impact discrimination, the Agency has presented evidence that its qualification standard was
based on reasonable factors other than age. Namely, around 2009, the Agency began
developing the qualification standard for the LPMHC position. Supp’l ROI, at 98. Subject
matter experts and a Human Resources Technical Advisor were part of a committee which
gathered information on industry standards and practices regarding licensure, certification, and
educational/training requirements. Id. at 98, 99. The committee recommended the credentials
needed to ensure the best possible care would be provided to veterans. Id. The committee
wanted accreditation to maintain similar standards as other mental health professions. Id. at
82, 99. Based on their research, the committee recommended that graduation from an
educational program recognized by CACREP was necessary to meet the standard of academic
preparation needed to be employed as a LPMHC at the Agency. Id. CACREP was the only
certifying body for this occupation recognized by the Council for Higher Education
Accreditation. Id. at 98. The Agency did not include a “grandfather” clause because it was a
new occupation to the Agency. Id. at 308.

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Accordingly, the Commission concludes that the Agency has presented several reasonable
factors other than age for its CACREP accreditation qualification standard. As a result, the
Commission finds that Complainant failed to establish that the CACREP accreditation
qualification standard created disparate impact age discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Commission AFFIRMS the FAD.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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).

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 9, 2017
Date