Margarito D.,1 Complainant,v.Patrick M. Shanahan Acting Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120180612 (E.E.O.C. Apr. 26, 2019)

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

Margarito D.,1
Complainant,

v.

Patrick M. Shanahan
Acting Secretary,
Department of Defense
(Office of the Secretary of Defense),
Agency.

Appeal No. 0120180612

Hearing No. 570-2014-00953X

Agency No. 2013-PFPA-029

DECISION

On November 29, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a final Agency
order dated October 27, 2017, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Police Officer, AD-0083-07, with the Pentagon Force Protection Agency (PFPA), Pentagon
Police Operations Division at the Pentagon in Washington, DC. He started this job in February
2009.

Complainant applied to be a Criminal Investigator, GS-1811-07, in PFPA in Falls Church,
Virginia, under job announcement PFP-13-779125-MP.

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 March 28, 2013, he filed an EEO complaint alleging that the Agency discriminated against
based on his age (43) when, on January 7, 2013, it was determined he was ineligible for the job he
applied for because he exceeded the maximum age limit.

Following an EEO investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
issued a decision on summary judgment without a hearing finding no discrimination.

The AJ found as follows. The Defense Logistics Agency (which provided human resources
services for PFPA) determined Complainant was ineligible to be a Criminal Investigator because
he exceeded the maximum age limit (the Agency) established therefor (age 37). To be eligible, the
Agency required that with his application Complainant show he was below age 37, submit a
Notification of Personnel Action (SF-50) showing he had previous service in a Federal Law
Enforcement Retirement System covered by special civil service retirement which included early
or mandatory retirement, or submit documentation that he was a preference eligible veteran
(DD214 form). Complainant conceded that he was not a veteran and did not have five years of
creditable law enforcement experience that would enable him to retire by age 57, with 20 years of
experience. Under 5 USC § 3307(d), an agency head may establish a maximum age for an original
appointment to a law enforcement position. Complainant failed to proffer evidence which proved
that the Agency’s maximum age limitation was inapplicable to him because he was not seeking an
“original appointment.” Therefore, Complainant failed to prove age discrimination under the
ADEA.

The Agency issued a final order adopting the AJ’s decision. The instant appeal followed.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a
decision without holding a hearing is not appropriate.
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Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact.

As recounted by the AJ, under 5 USC § 3307(d), an agency head may establish a maximum age
for an original appointment to a law enforcement position. This refers to law enforcement positions
covered by the mandatory retirement provision of 5 USC § 8335 and the liberalized retirement
benefit provisions of §§ 8336(c) and 8339(d). Keval v. Dep’t of the Navy, EEOC Appeal No.
01821819 (Nov. 23, 1982).

Department of Defense Instruction No. 1400.25, Volume 336 (administratively reissued on April
6, 2009), requires that the maximum entry age for covered primary law enforcement positions is
37. Those past age 37, but who previously served in a covered primary law enforcement position,
may re-enter one if they are able to complete a total of 20 years of covered service as a law
enforcement officer by the last day of the month in which they become age 37. Id. ROI, Ex. F.2.c,
Bates No. 403. This tracks the mandatory retirement language in 5 USC § 8335(b)(1).

The Supervisory Human Resource Specialist with the Defense Logistics Agency who determined
Complainant was ineligible stated that he did not indicate he previously served in a federal law
enforcement retirement system position covered by special civil service retirement including early
or mandatory retirement. ROI, Ex. F.2.c at 4, Bates No. 396. Complainant does not contest this.

On appeal, Complainant argues that a physical examination is better suited than an arbitrary age
to determine qualifications. Regardless, this does not overcome the statutory scheme recounted
above. On appeal, Complainant also argues, in essence, that by applying to be a Criminal
Investigator, he implicitly asked the Agency to waive the maximum age requirement. While the
Agency has the authority to waive the mandatory age requirement, Department of Defense
Instruction No. 1400.25, Volume 336 indicates this is rare. Specifically, each waiver must be in
writing and signed by the Head of the Department of Defense component, and this authority may
not be delegated. The Instruction also requires that waivers be extremely rare and based on a
compelling hardship to the Department of Defense Component mission, i.e., made only to
overcome a recruitment shortage. The large number of eligible applicants for the job in question
strongly suggests there was no recruitment shortage. Complainant did not show he was disparately
treated regarding waivers.

Complainant has failed to prove a violation of the ADEA, and the final order is AFFIRMED.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (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.

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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

April 26, 2019
Date