0120141952
10-10-2014
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury, Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120141952
Hearing No. 570-2012-00527X
Agency No. SIGTARP-11-0392-F
DECISION
On May 5, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated April 4, 2014, implementing an EEOC AJ's decision dismissing his complaint of unlawful 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 an applicant for the position of Criminal Investigator (Senior Special Agent) with the Agency's Special Inspector General for the Troubled Asset Relief Program (SIGTARP) for vacancies located in the Washington, DC metropolitan area and New York, New York.
On April 4, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his age (49) when he was not considered for the above position, which he applied for under vacancy announcement 11-SIGTAR-032DH, because he did not meet the maximum entry age requirement.
Following an investigation, an EEOC AJ dismissed the complaint for failure to state a claim. The AJ found that Complainant did not meet the maximum entry adjusted age of 37. Responding to Complainant's contention that the Agency did not have authority to subject the posted job to the maximum entry age and mandatory retirement age, the AJ cited cases showing that the EEOC has consistently held that complaints challenging Agency actions authorized by the statutorily created exceptions to the ADEA fail to state a claim.
On appeal Complainant argues that the Agency has not shown that the Office of Personnel Management (OPM) concurred with the Agency's decision to impose a maximum entry age to the Criminal Investigator position. In opposition to the appeal the Agency argues that it met all the regulatory requirements to set a maximum entry age for the law enforcement position of Criminal Investigator.
ANALYSIS AND FINDINGS
The Commission has consistently held that complaints challenging statutorily created exceptions to the ADEA fail to state a claim. This has been applied in cases regarding law enforcement positions at the Department of the Treasury. Garrett v. Department of the Treasury (Internal Revenue Service), EEOC Appeal No. 01991598 (Feb. 8, 2002). Such is the case here.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 10, 2014
__________________
Date
2
0120141952
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141952