Virgilio M.,1 Complainant,v.David L. Bernhardt, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120181635 (E.E.O.C. Sep. 27, 2019)

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

Virgilio M.,1
Complainant,

v.

David L. Bernhardt,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120181635

Agency No. DOI-NPS-17-0319

DECISION

On April 20, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 28, 2018, final decision 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Police Officer, SP 8,
Park Police, Gateway District, New York Field Office.2

On April 11, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of age (43) when:

In February 2017, the current Physical Efficiency Battery (PEB) Policy required Officers
who are 40 to 50 years of age to achieve the same score of 450 as Officers who are 20 years
of age in order to earn a Time Off Award.

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.
2 Complainant’s position is also referred to as a Patrol Officer.
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The record reveals that the Agency’s PEB Policy measures the physical fitness standards of
incumbent officers. The PEB components are: (1) Percent of body fat – measured by a skinfold
pinch; (2) Cardiovascular endurance - measured by a 1.5-mile walk/run; (3) Flexibility – measured
by a sit and reach test; (4) Agility – measured by negotiating a timed sprint obstacle course; and
(5) strength – measured by a maximal repetition bench press. Officers are required to maintain
appropriate levels of fitness throughout their careers and are tested on a semi-annual basis. The
standard for each of the PEB measurements is weighted differently for the different age groups
ranging from 20-29 years, 30-39 years, and 40-50+ years. The standards are lowered for the
officers in the 40-50+ age group. For example, in order for a male to receive an Efficiency Score
of 100 on the 1.5 mile run standard, a male in the 20-29 year age group would have to run the
distance in 9:00 minutes while a male in the 40-50+ age group would have to complete the 1.5
mile run in 11:00 minutes to achieve the same Efficiency Score of 100. In order to receive a Time
Off Award (TOA), Patrol Officers must complete a PEB exam and achieve a total score of 450
points or higher.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

At the outset, we find the record in the present case was adequately developed. We note on appeal
Complainant does not challenge the Agency’s definition of the complaint.

Complainant alleged that the Agency’s policy of requiring police officers to achieve a score of 450
on the PEB test in order to be eligible for a time off of work award discriminates against officers
over the age of 40 because such officers are held to the same physical fitness standards of those
under the age of 40. At the time he filed his complaint, Complainant was 43 and stated he had
only been able to attain scores of 415 - 425 on the PEB within the past three years. He stated that
at an age over 40, a park police officer has to work harder to maintain the same fitness and weight
levels as a younger officer.

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The Physical Fitness Specialist who oversees the physical fitness program stated that TOAs are
offered as an incentive for officers to improve and maintain their fitness. He stated that a TOA is
time off equal to one workday for achieving a 450 score on the combination of all five measured
components with a minimum score of 70 in each component. The Physical Fitness Specialist noted
that alternatively, an officer could earn a TOA by achieving an overall improvement of 50 points
from one regularly scheduled PEB to the next. He specified that all officers are required to achieve
the same score of 450, regardless of age, in order to earn a TOA. However, he noted the standards
are age adjusted. Further, he stated that TOAs are handled at the Field Office level.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978).

The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

To establish a prima facie case of age discrimination, Complainant must show that he was over
forty years of age, that he was subjected to an adverse employment action, and that he was treated
less favorably than other similarly situated employees younger than himself, i.e., he was accorded
treatment different from that given to persons who are considerably younger than he. See Reeves,
supra; O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).

In the present case, Complainant has failed to show that he was treated less favorably than his
younger comparators. Rather, the record reveals that Complainant was held to a less demanding
physical standard than his younger colleagues. Specifically, the record revealed that the standards
are lowered for the officers in the 40-50+ age group as compared to the officers in the younger age
groups. Apparently, Complainant is requesting an even less demanding physical standard than his
younger colleagues. We are unaware of any authority supporting Complainant’s claim that he is
entitled to preferential treatment because of his age. Orval T. v. Dep’t of Energy, EEOC Appeal
No. 0120161688 (Sept. 14, 2018), req. for recons. den., EEOC Request No. 2019000707 (Mar. 28,
2019).

To establish a prima facie case of disparate impact, a 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.
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Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (complainant must present
“statistical evidence of a kind and degree sufficient to show that the practice in question has caused
the exclusion”). Specifically, a complainant must: (1) identify the specific practice or practices
challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the
challenged practice or policy. Id. The burden is on a complainant to show that “the facially neutral
standard in question affects those individuals [within the protected group] in a significantly
discriminatory pattern.” Dothard v, Rawlinson, 433 U.S. 321, 329 (1977); see also, Complainant
v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000).

To the extent that Complainant’s complaint could be viewed as a claim of disparate impact, we
find Complainant has not provided any evidence demonstrating that a statistical disparity existed
that is linked to the challenged Agency practice or policy. Moreover, we note the Agency asserts
the workforce profile for the Park Police, Explosive Detection Unit, Canine Unit, New York Field
Office, for the period between February 2015 – February 17, 2017, revealed that five of the ten
officers received TOAs during that time frame and their ages ranged from 42 to 51.

As a result, the Commission finds that Complainant has not established that he was subjected to
discrimination as alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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.
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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.
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.

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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

September 27, 2019
Date