01971829
03-13-2000
Todd W. Van Alstyne, Complainant, Bruce Babbitt, Secretary, Department of the Interior, Agency.
Todd W. Van Alstyne v. Department of the Interior
01971829
March 13, 2000
Todd W. Van Alstyne, )
Complainant, )
) Appeal No. 01971829
) Agency No. FNP-95-020
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
INTRODUCTION
On December 21, 1996, Todd W. Van Alstyne (complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated November 25, 1996, concerning
his complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �621
et seq.<1> The Commission hereby accepts the appeal in accordance with
EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on age.
BACKGROUND
Complainant was employed by the agency (National Park Service) as a
temporary/seasonal Park Ranger, GS-025-5. On July 19, 1994, he applied
for conversion to permanent status under the Outstanding Scholar Program.
In late July 1994, complainant was told that he would be converted, as of
August 7, 1994, to permanent status. On August 11, 1994, complainant was
informed that there was a problem with his conversion to permanent status
because of his "age and the newly-enacted 6c Enhanced Annuity Retirement
age restrictions." Complainant was, therefore, denied conversion
to permanent status. Also on that date, complainant was told that a
verbal exception to the age restriction (which he had been told had been
obtained in his case) would not suffice, and that he would have to get a
written authorization. According to complainant, an official request for
a waiver to the maximum age requirement was drafted and submitted to the
Chief of Ranger Activities in the Washington office on August 12, 1994.
Complainant initiated EEO Counseling on August 12, 1994. He filed a
formal complaint on November 23, 1994, alleging discrimination on the
basis of age (DOB: April 4, 1951) when on August 11, 1994, his employment
contract was violated and he was not converted to the permanent position
of Law Enforcement Park Ranger GS-025-7 (the Position) at the Grand Canyon
National Park. The agency accepted the complaint for investigation
and processing. At the conclusion of the investigation, the agency
issued a copy of its investigative report and notified complainant of
his right to request an administrative hearing. After complainant did
not request a hearing, the agency issued its FAD on November 25, 1996.
In its FAD, the agency found that the complainant had failed to
establish a prima facie case of age discrimination because he was
unable to demonstrate that he was treated differently than similarly
situated employees not in his protected age class. The legitimate,
nondiscriminatory reason articulated by the agency for its decision not
to hire complainant into the desired Position was the implementation at
that time of the National Park Service Guidelines for Law Enforcement
Positions. Those regulations established a maximum age limit of 37 for Law
Enforcement personnel, which the Park Ranger position is classified as.
The agency concluded that complainant had not shown that age was a
factor in his not being converted to a permanent Park Ranger Position,
and that he had not been discriminated against based on age.
This appeal followed. Complainant submitted documentation which verified
that in March 1996 he was granted a waiver, effective in April 1996,
that allowed him to assume 6(c) Law Enforcement status as a permanent
employee. He requested that the Commission review his appeal in order
to make a determination on any back wages and benefits that he may be
entitled to for the period of time when the position was denied him.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides that an agency
shall dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �1614.107(a)(1)). An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, national origin, age
or disabling condition. 29 C.F.R. �1614.103; �1614.106(a).
The provisions of 5 U.S.C. �3307(d) create an exception to the Age
Discrimination in Employment Act of 1967 (ADEA) by permitting agencies
to set maximum age limits for original appointments to "law enforcement
positions." The Commission has previously held that a complaint that is
challenging the maximum age limit set for law enforcement personnel will
fail to state a claim. Campbell v. Department of Justice, EEOC Request
No. 05960550 (April 17, 1997). Therefore, to the extent that complainant
is challenging the age limit set for the law enforcement position that
he desired to hold, we find that he has failed to state a claim.
To the extent, however, that complainant is arguing that the original
denial of his request for a waiver, and the subsequent delay in ultimately
receiving that waiver, is discriminatory, we find that he has stated a
claim. Complainant's formal complaint alleged that he was discriminated
against when his employment contract was violated, as well as when he was
not converted to permanent employment status, and the agency accepted
that statement as the issue for processing and investigation. In the
record, complainant refers to the verbal waiver approval and subsequent
withdrawal of that waiver as the violation of his employment contract.
We find, however, that there is not enough information presently contained
in the record to allow us to make a determination on the merits of
the waiver denial. Complainant claimed that an official request for
a waiver was drafted and submitted on August 12, 1994. The record
reveals that a waiver request was drafted, but it does not appear to
have been officially submitted. The request is neither signed nor dated,
although it appears to have been drafted sometime in 1994. Complainant
received a waiver in March 1996. That waiver request was drafted on
February 26, 1996, and approved on March 5, 1996. The record contains
information on one other employee who was affected by the age limit.
That employee (DOB: October 15, 1956) was granted a waiver on May 18,
1995, approximately 10 months before complainant received his waiver.
The record also reveals that on February 22, 1995, the agency issued
guidance on making exceptions to the maximum age limit. On remand,
the agency shall investigate whether the waiver for complainant was
discriminatorily denied or delayed, as detailed below.
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER
The agency is ordered to conduct a supplemental investigation on the
issue of whether a waiver to the age limit was discriminatorily delayed
or denied for complainant. The agency shall include evidence regarding
their policy or practice on how the waiver process works and how long
it should take to receive a waiver. A copy of the materials obtained
during the investigation should be sent to complainant within 90 days
of the date this decision becomes final. The complainant shall have an
opportunity to respond to the agency's submission of the above information
within 30 days.
The agency also shall notify complainant of the appropriate rights at
the time it issues the investigative file to the complainant, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the new FAD, and copies of the supporting documentation from
the investigation, as ordered above, must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant also has
the right to file a civil action to enforce compliance with the
Commission's order prior to or following an administrative petition
for enforcement. See 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),
and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the
right to file a civil action on the underlying complaint in accordance
with the paragraph below entitled "Right to File A Civil Action."
29 C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or
a civil action on the underlying complaint is subject to the deadline
stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 13, 2000
_________________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.