Brenton W.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120130554 Hearing No. 160-2003-08562X Agency No. DOT-1-98-1025 DECISION Complainant filed an appeal from the Agency's October 19, 2012, final order 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. Our current review of the Agency's October 19, 2012, final order requires us to address and correct errors in EEOC Appeal No. 0720100009 and EEOC Request No. 0520110547. Consequently, the Commission reopens Appeal No. 0720100009 and Request No. 0520110547 on our own motion. For the reasons that follow, Appeal No. 0720100009 and Request No. 0520110547 are hereby VACATED, and the Commission MODIFIES the Agency's October 19, 2012, final order. ISSUES PRESENTED The issues presented are whether substantial evidence supports the EEOC Administrative Judge's (AJ's) September 30, 2009, finding that Complainant had proved that he was subjected to disparate treatment because of his age; whether the AJ properly issued a decision without a hearing on September 28, 2012, with respect to Complainant's disparate impact claim; and whether, in that decision, the AJ properly found that Complainant had not proved that the Agency's hiring policy disparately impacted applicants based on age. BACKGROUND Procedural History This complaint has a lengthy procedural history, which we briefly recount herein. Complainant, who had been employed by the Agency as an Air Traffic Control Specialist (ATC), GS-14, and other ATCs were removed from employment by Presidential Order during the PATCO strike of 1981. In 1993, the prohibition against re-hiring ATCs who had participated in the PATCO strike was lifted. Complainant and other ex-PATCO ATCs applied for vacant career-ladder positions at the GS-12/13/14 level, but the Agency had instituted a separate hiring process for these individuals in which it would consider them for re-hire only at the GS-9 level. On April 9, 1997, the Agency hired Complainant for a GS-9 ATC position, which he accepted. On November 11, 1997, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him because of his age (born in 1947) when the Agency did not select him for the position of Air Traffic Control Specialist, GS-2152-12/13/14, under vacancy announcement AEA-AAE-96-0741106. Appeal Nos. 01983671 and 01A04166 On November 11, 1997, the Agency dismissed Complainant's complaint on the basis that it failed to state a claim and was initiated by untimely EEO Counselor contact. In an appellate decision, the Commission reversed the Agency's dismissal and remanded the complaint to the Agency for an investigation. Complainant v. Dep't of Transportation, EEOC Appeal No. 01983671 (June 7, 1999). However, on April 28, 2000, the Agency again dismissed Complainant's complaint on the basis that it failed to state a claim. In a second appellate decision, the Commission again reversed the Agency's dismissal and remanded the complaint to the Agency for an investigation. Complainant v. Dep't of Transportation, EEOC Appeal No. 01A04166 (Aug. 20, 2002). AJ's Decision dated June 29, 2004 After the investigation, Complainant requested a hearing before an EEOC AJ. On June 29, 2004, the AJ issued summary judgment in favor of the Agency. Specifically, the AJ found no age discrimination under both disparate impact and disparate treatment theories. The AJ determined that, during the relevant time period, the Agency had a policy to recruit ex-PATCO applicants only through Recruitment Notice 93-01, and Complainant therefore was not subjected to disparate treatment because of his age. The AJ also determined that the Agency's recruitment was consistent with business necessity, and that Complainant could not challenge that practice under the doctrine of "unclean hands" because he was terminated for participation in an illegal strike. In an appellate decision dated December 28, 2007, the Commission found that summary judgment was inappropriate and remanded the case to an AJ for a hearing. Complainant v. Dep't of Transportation, EEOC Appeal No. 0120046045 (Dec. 28, 2007). AJ's Decision dated September 30, 2009 After a hearing, the AJ first noted that in order "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 v. Green, 411 U.S. 792 (1973)." The AJ then found that Complainant had established a prima facie case of age discrimination, and the Agency had articulated legitimate, non-discriminatory reasons for its actions by explaining that its selection choices were based on the following considerations: 1) uniformity in the hiring of PATCO controllers; 2) fairness in treating all PATCO controllers the same; 3) centralizing the process of hiring from among thousands of PATCO controllers to make the process more efficient; and 4) allaying the concerns of the flying public about the qualification of PATCO controllers, many of whom had not controlled air flight in years. Regarding evidence of pretext, the AJ found that an internal memorandum clearly indicated that age was considered when the Agency initially decided to rehire PATCO controllers only at the GS-9 level. The memorandum, entitled "Questions and Answers on Rehiring Fired Controllers," stated that, although a rule was instituted that provided that applicants for initial employment as an ATC in a tower or "en route" center must not have reached his or her 31st birthday, this age limit did not apply to ex-PATCO controllers because they were employed before the age limit went into effect. The memorandum further stated that ex-PATCO controllers would be hired at the normal entry level, or the GS-9 level. The memorandum also stated that the Agency recognized that many former controllers had not controlled air traffic for more than a decade, and employing them at the GS-9 level provided them with an opportunity to learn changes to the system that had occurred, which assured them of the maximum opportunity to succeed in reaching the full performance level. The AJ determined that Complainant and other ex-PATCO applicants were not seriously considered for employment at the GS-12 level and were placed on a separate list. The AJ noted that ex-PATCO applicants were not marked "eligible" by the Agency during the review of the applications. As such, the AJ found that there was only uniformity in not hiring ex-PATCO controllers at the GS-12 level because the Agency merely placed their names on a list but did not consider them. The AJ concluded that the Agency was unprepared for the lifting of the ex-PATCO ban and disinterested in rehiring ex-PATCO employees as controllers near or at their former grade levels. The AJ found that the Agency's fairness argument was negated by the fact that most of the ex-PATCO applicants who were eventually hired at the GS-9 level were the younger cohort of ex-PATCO controllers. Regarding allaying the concerns of the flying public about the qualifications of PATCO controllers, the AJ found that it was unreasonable to assume Complainant was unqualified for the job in question, or that he might not be familiar with new technology. The AJ noted that Complainant worked in air traffic controlling throughout his career after he was terminated by the Agency in 1981. The AJ concluded that if the ban were "truly lifted," and Complainant had been truly considered based on his qualifications, interview, and such, this case would not likely exist. "It is in (sic) the creation of this separate but so-called equal means of consideration that prevented equal employment opportunity for complainant," the AJ stated. In a closing section entitled "Conclusion," the AJ stated that "complainant was discriminated against because of age, as alleged." The AJ further noted that cases brought under the ADEA can raise a claim of disparate impact, and that complainants do not need to present evidence of motive or discriminatory intent in disparate impact cases.2 Additionally, the AJ ordered the Agency to review Complainant's application, along with other qualified applicants, for the GS-12/13/14 position to determine if Complainant would have been selected. The AJ further ordered that, if the Agency determined that Complainant would have been selected, the Agency was to offer Complainant the position at the GS-12 level with all appropriate benefits until the time of his retirement. The AJ additionally ordered the Agency to provide EEO training to all related personnel, to review its policy of rehiring ex-PATCO applicants, and to post a notice of the finding of discrimination. Appeal No. 0720100009 and Request No. 0520110547 The Agency did not implement the AJ's decision, and appealed the matter to the Commission. The Agency maintained that the AJ erred in her disparate treatment analysis, and that the parties were not given the opportunity to present evidence of disparate impact. Complainant challenged the AJ's ordered remedies on appeal. In an appellate decision dated June 10, 2011, the Commission determined that Complainant pursued his complaint under both a disparate treatment and disparate impact theory of discrimination. Complainant v. Dep't of Transportation, EEOC Appeal No. 0720100009. The Commission further determined that "it appears that the AJ's finding of discrimination was based on a disparate impact theory of discrimination." However, the Commission found that there was no indication that the parties were given the opportunity to produce any statistical evidence or other evidence concerning disparate impact during the hearing. Therefore, the Commission concluded that it would be premature to rule on the matter and remanded the complaint for a hearing so that the parties could be given an opportunity to produce evidence concerning the disparate impact claim. Accordingly, the Commission vacated the Agency's final order and remanded the complaint to the Hearings Unit for a hearing on the disparate impact claim. Complainant requested reconsideration of that decision, but the Commission denied Complainant's request on December 16, 2011. Complainant v. Dep't of Transportation, EEOC Request No. 0520110547. AJ's Decision dated September 28, 2012 On June 12, 2012, the Agency filed a motion for summary judgment on Complainant's disparate impact claim, to which Complainant responded on June 21, 2012. Complainant submitted evidence from an expert who argued that his analysis supported the conclusion that the Agency's hiring policy had an adverse impact on candidates over 40 years old. On September 28, 2012, the AJ issued a summary judgment decision. In that decision, the AJ first noted that her September 30, 2009, decision found that Complainant proved age discrimination on the theory of disparate treatment. The AJ's 2012 decision analyzed Complainant's complaint only under a disparate impact theory of discrimination. The AJ noted that that statistical data prepared by Complainant's expert analyzed data contained in the Report of Investigation (ROI) but did not consider any other selection data for the Agency. The AJ concluded that the expert analysis provided support only for her prior finding that Complainant was subjected to disparate treatment based on age. With respect to disparate impact, the AJ found that the Agency proved that its hiring policy was based on business necessity because the policy promoted uniformity in ex-PATCO hiring; fairness in treatment of ex-PATCO applicants; centralized the process of hiring among ex-PATCO applicants; and allayed the concerns of the public about the qualifications of ex-PATCO controllers. The AJ also found that Complainant's statistical data did not address the fact that nearly 74 percent of all hires for ATC in 1996 were more than 40 years old and, therefore, Complainant did not provide any evidence that the Agency's selection policy disparately impacted applicants over 40 years old. In a final order dated October 19, 2012, the Agency fully implemented the AJ's September 28, 2012, decision. Complainant then appealed this matter to the Commission. Factual History The record reflects that after being removed from employment following the PATCO strike, Complainant worked abroad as an ATC for several years. Thereafter, Complainant was employed as an ATC by the Department of Defense, reaching the GS-12 level. In late 1993, after the prohibition on rehiring ex-PATCO ATCs removed for striking was lifted, the Agency issued a recruitment notice that advertised vacancies at the GS-2152-09 level for reinstatement and transfer-eligible applicants who were separated from the Agency as a result of the PATCO strike. This notice was known as the "PATCO Rehire Program" and was open only to ex-PATCO employees. Additionally, the Agency issued Order 3300.30, which established employment procedures to be used for former ATCs who had been removed from the Agency as a result of the PATCO strike but could now apply for any Agency position. Further, the Order stated that there were "no guarantees of employment, nor are eligible former controllers entitled to any preference in consideration of selection." In 1996, the Agency advertised its intent to fill several ATC positions at the GS-2152-12/13/14 level at its Leesburg, Virginia location (Washington Center). Complainant applied for a GS-14 position. The selecting official (SO) was the Manager of the Washington Center. Fifty-eight bid packages were received in response to the vacancy announcement. The bids were separated into two groups: non-PATCO applicants and ex-PATCO applicants. All twenty-five non-PATCO applicants were deemed "eligible" for the position. There were thirty-three ex-PATCO applicants for the positions, none of whom the Agency deemed eligible for this vacancy announcement. Ex-PATCO applicants were processed for consideration through a separate, centralized process that reviewed only ex-PATCO applicants. The ages of 19 out of 25 non-PATCO applicants are available. The average age of this group was 33 years old at the time of the selection. The applicants ranged from 24 years old to 54 years old.3 During the relevant time period, 13 of the 25 non-PATCO applicants were under 40 years old, six were over 40 years old, and six were of an unknown age. Of the 33 ex-PATCO applicants, 31 were over 40 years old, and two were of unknown age. The Agency selected five non-PATCO applicants, who were 27, 30, 32, and 36. One selectee's age was unknown but presumed to be at least 40 years old in the Report of Investigation (ROI). Complainant (ex-PATCO) was not selected for a GS-12/13/14 position. Subsequently, the Agency issued referral list 97-0002 to fill vacancies in accordance with Recruitment Notice 93-01. All selections through this list were made at the GS-9 level. Complainant was hired as an ATC, GS-9, pursuant to this list. About one year after accepting the GS-9 position, Complainant resigned from the Agency. CONTENTIONS ON APPEAL4 Complainant contends that the Eastern Region was incorrectly rehiring ex-PATCO applicants only under a specific rehire program for ex-PATCO applicants. Complainant contends that the AJ's decision on disparate treatment did not provide him with the proper remedies with respect to his disparate treatment claim, in that the AJ ordered the Agency to review Complainant's application to determine whether he would have been selected for a GS-12/13/14 position and, if so, to place him in a GS-12 position. He maintains that there is clear and convincing evidence that he would have been selected for the position because the SO had stated that it was probable that she would have selected Complainant for a "non-rehire" position if his name had appeared on any list presented to her. Complainant contends that additional review of applications is not required and serves no purpose in this case. Complainant also notes that he applied for a GS-14 position. He maintains that Department of Defense controllers hired for this position were immediately promoted one grade upon selection, and that because he was a GS-12 controller who previously held a GS-14, Step 5 controller position with the FAA, he met all requirements for selection at the GS-14 level. Complainant further maintains that, regardless of the grade at which he was hired, he would have been fully qualified and promoted to GS-14, and continued his career with the Agency until retiring, absent the discrimination.5 Complainant also maintains that he should receive back pay plus interest. Regarding disparate impact, Complainant argues, inter alia. that the exclusion of ex-PATCO applicants resulted in age discrimination. Complainant contends that Order 3300.30 did not require the Agency to consider him only via the ex-PATCO rehire program, and that the focus of this case should be upon the fact that no former ex-PATCO controllers were considered for the relevant position even though they met all job requirements. Complainant further argues that, as shown by the report prepared by his expert witness, the selection process had an adverse impact on applicants over the age of 40. The Agency maintains that disparate impact is the only claim remaining in this case, but that Complainant's appeal inappropriately focuses on an alleged disparate treatment claim. The Agency maintains that the Commission's June 2011 decision (EEOC Appeal No. 0720100009) recognized only Complainant's disparate impact claim, and that disparate impact is the only theory the parties addressed when the matter was subsequently remanded to an AJ. Regarding Complainant's disparate impact claim, the Agency argues that Complainant failed to provide statistical evidence that reflected a disparity linked to a specific practice. The Agency maintains that Complainant's expert report failed to establish a prima facie case of disparate impact because: 1) it fails to analyze the total selection process, as required by the Uniform Guidelines on Employee Selection Procedures; and 2) its findings do not suggest or support a finding of disparate impact for the one selection that the report analyzed. The Agency notes that the Uniform Guidelines on Employee Selection Procedures provide that when analyzing adverse impact, one must analyze the total selection process, and when there is more than one route to entry for a particular selection, the total selection process encompasses the combined results of all routes. The Agency maintains that when, as here, there are many different vacancy announcements applicable to ATC hiring (as in 1996), an adverse-impact analysis must evaluate the impact of the total selection process. The Agency contends that Complainant's expert's report therefore is "necessarily distorted and utterly meaningless." The Agency further notes that 74 percent of all ATC hires in 1996 were ex-PATCO controllers, most or all of whom were 40 years of age or older at the time of hire. The Agency further argues that Complainant's expert did not consider in his report the applicants who were actually considered for this vacancy. The Agency maintains that, if Complainant's expert had done so, he would have found that, of the 25 non-PATCO applicants who were considered for the five selections filled by this vacancy announcement, six were 40 years or older, and one of the six was selected. The Agency contends that these numbers show no adverse impact using the standards under "Fisher's Exact Test" for statistical analysis.6 The Agency contends that its selection process met the "business necessity" standard. The Agency further contends that its selection process was based on a "reasonable factor other than age." The Agency maintains that, under established Agency policy, ex-PATCO controllers had to apply for ATC positions under a specific process, pursuant to Recruitment Notice 93-01 and Order 3300.30. The Agency further maintains that Agency personnel understood Order 3300.30 to mean that ex-PATCO members could only be hired into ATC jobs under Recruitment Notice 93-01, not under regional office vacancy announcements. The Agency contends that it is undisputed that the SO for the position understood that ex-PATCO controllers were not eligible for vacancy announcement AEA-AAT-96-074-11006 and did not consider ex-PATCO controllers for this particular vacancy because she understood that no method of rehiring was permitted for ex-PATCO controllers beyond Recruitment Notice 93-01. The Agency urges that it was reasonable for it not to exempt ex-PATCO controllers with Department of Defense experience (such as Complainant) from its policy because it did not expect there would be many, if any, ex-PATCO controllers working for the Department of Defense. The Agency contends that ex-PATCO controllers had been banned not only from the Agency, but also from the Department of Defense; therefore, there was no reason to expect or assume that there would be significant numbers of ex-PATCO controllers who had gone to work for the Department of Defense. ANALYSIS AND FINDINGS Appeal Nos. 0720100009 and 0520110547 As an initial matter, we note that in EEOC Appeal No. 0720100009, the Commission determined that the AJ's September 2009 finding of discrimination apparently was based on a disparate impact theory of discrimination. Upon remand, the AJ who decided the September 2009 case explicitly stated that her previous decision found discrimination under a disparate treatment theory, not disparate impact. Further, in her initial decision the AJ included the phrase "to prevail in a disparate treatment claim such as this" and cited the McDonnell Douglas disparate treatment framework. The AJ then found that Complainant established a prima facie case of age discrimination because he was not chosen for one of the positions and some of the selectees were under 40 years old; and that the Agency articulated legitimate, non-discriminatory reasons for not selecting him. The AJ concluded that Complainant proved pretext by presenting an internal memorandum indicating that age was considered when the Agency decided to rehire PATCO controllers only at the GS-9 level. As such, the AJ's analysis reflects a disparate treatment analysis. However, we note that the end of the AJ's decision curiously references disparate impact theory. For example, the closing paragraph of the decision notes that cases brought under the ADEA can raise a claim of disparate impact, and that a complainant need not present evidence of motive or discriminatory intent in disparate impact cases. Additionally, the decision's final footnote sets forth the general elements of a prima facie disparate impact case. This disparate impact language at the end of the decision is inexplicable, but taken in context with the totality of the decision, appears to be a scrivener's error. Nevertheless, our decision in Appeal No. 0720100009 assumed that the AJ had found discrimination under a disparate impact theory. Our assumption was erroneous. Further, by failing to acknowledge the AJ's finding of disparate treatment, Appeal No. 0720100009 extinguished the AJ's order of remedies associated with a finding of disparate treatment discrimination. Our Order in Appeal No. 0720100009 merely directed the AJ to hold a hearing on the disparate impact claim. These errors were not rectified in Request No. 0520110547, wherein the Commission denied Complainant's request for reconsideration. Our current review of the Agency's October 19, 2012, final decision requires us to address and correct the errors in Appeal No. 0720100009 and Request No. 0520110547. Consequently, the Commission reopens Appeal No. 0720100009 and Request No. 0520110547 on our own motion. Decision with a Hearing: Disparate Treatment As noted above, after a hearing, the AJ found that Complainant was subjected to disparate treatment because of age. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). Initially, we note that the federal sector statutory language requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a) (emphasis added). This language is a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices," and is not patterned on the narrower language of § 623(a), which applies to non-federal employers. Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition of age discrimination in § 633a(a) prohibits retaliation by federal agencies). As such, § 633a(a)'s broad requirement that "all personnel actions . . . be made free from any [age] discrimination," means that federal sector ADEA liability is established if age is a motivating factor for the disputed personnel action, even if the employer proves that it would have taken the same action absent the discrimination. Consequently, the Commission has held that the Supreme Court's decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) requiring that age be proven as a "but for" cause of disparate treatment in the private sector instead of a "motivating factor" does not apply to federal sector ADEA claims. See Nita H. v. Dep't of the Interior, EEOC Appeal No. 0320110050 (July 16, 2014). The Commission generally applies the McDonnell Douglas framework to prove discrimination in cases alleging harm by a federal government employer under the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 633a(a). See Spencer v. U.S. Postal Serv., EEOC Appeal No. 0120042065 (Aug. 6, 2008) (applying McDonnell Douglas to ADEA claim); Carver v. Dep't of Justice, EEOC Appeal No. 07A30025 (Aug. 8, 2005) (same); Jones v. Bernanke (Federal Reserve System), 557 F.3d 670, 673 (D.C. Cir. 2009) (explaining in federal sector ADEA retaliation claim that "[w]hether brought under Title VII or the ADEA, . . . claims based on circumstantial evidence . . . trigger the familiar burden-shifting framework of McDonnell Douglas"). Specifically, the first step of the McDonnell Douglas burden-shifting framework requires a complainant to establish a prima facie case of age discrimination. To do so, the complainant generally must raise an inference of discrimination by showing: 1) he was 40 years of age or older; 2) he was subjected to an adverse employment action; 3) he was qualified for the job; and 4) there is some reason to infer that the action was related to age, such as ageist statements showing bias by the decisionmaker, or evidence that he was replaced by someone substantially younger or otherwise was treated less favorably than someone substantially younger. The burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this McDonnell Douglas analysis, the Supreme Court has long recognized that after the employer establishes a legitimate nondiscriminatory motive, the plaintiff/complainant "must be afforded 'an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim) (quoting Burdine, 450 U.S. 248, 253). In this case, Complainant was 50 years old during the relevant time period. Complainant was qualified and applied for the pertinent ATC position advertised under vacancy announcement number AEA-AAE-96-0741106. The Agency did not consider Complainant for the position, but selected substantially younger applicants who were 27, 30, 32, and 36. One selectee's specific age is unknown, but he was at least 40 years old when selected. Consequently, we find that Complainant established a prima facie case of age discrimination. We further find that the Agency provided legitimate, non-discriminatory explanations for its actions. Specifically, the Agency stated that Complainant was excluded from the eligibility list for the vacancy announcement because Eastern Region officials thought that ex-PATCO controllers such as Complainant could only be hired at the GS-9 level from a separate ex-PATCO list, pursuant to Recruitment Notice 93-01. At the hearing, the Washington Center Personnel Management Specialist (PS) testified that New York management told her that ex-PATCO controllers could only be reemployed through a centralized process that was headed by personnel in Oklahoma City, Oklahoma. The PS further testified that the Supervisory Personnel Management Specialist (SPS) issued an email that informed the PS that ex-PATCO controllers could only be picked up through the central system in Oklahoma City. The PS also testified that the SPS told her that ex-PATCO employees could apply for positions that were not Air Traffic Control positions as long as the vacancy announcement included current and former federal employees. The PS further testified that she prepared the best-qualified list for the relevant vacancy announcement by reviewing the candidates' application packages. She stated that she placed Complainant's and other ex-PATCO candidates' applications in a "separate file" because they "were not eligible to apply." Hearing Transcript (HT), p. 100. The PS testified that all of the people selected under the vacancy announcement were non-PATCO applicants. The PS further testified that, in approximately November 1996, she received new guidance that stated that ex-PATCO applicants could be considered for any job for which they were eligible, which meant that they could be hired beyond Recruitment Notice 93-01. However, The PS testified that this new guidance was issued after the selections for the vacancy announcement at issue had occurred. The PS further testified that Complainant was among more than a dozen ex-PATCO applicants hired by the Agency at Washington Center pursuant to this new guidance. The SO for this position stated that the eligibility list she received did not contain ex-PATCO applicants. The SO stated that she recalled that ex-PATCO applicants were not considered because there was already a process set up to rehire ex-PATCO controllers under "amnesty," regardless of age. HT, p. 22. The SO also stated that she recalled hearing and discussing whether ex-PATCO controllers could return after so many years and be successful, but this was not a discussion about age; instead, it was about the fact that things had really changed a lot over the many years since the strike, and so it would be very difficult for them to "check out again." HT, p. 21. Additionally, the SO stated that she recalled hearing and discussing whether controllers would stay very long if rehired because most of them would be nearing retirement. The SO further stated that "it is probable that I would have selected the Complainant if his name had appeared on any list presented to me." HT, p. 16. The Agency also gave policy explanations that apply both generally to the Agency's treatment of ex-PATCO applicants as well as specifically to Complainant's non-selection. In particular, the Agency stated that it established a centralized system in Oklahoma City whereby ex-PATCO controllers could be reemployed, and a national list of these ex-PATCO applicants was made available to Agency air traffic control facilities throughout the country for hiring purposes. The Agency stated that it hired ex-PATCO controllers at the GS-9 level, with "quick" promotions and training. The Agency articulated the following reasons for this policy: 1. The Agency did not want to hire ex-PATCO controllers at their former grades after they had been out of the career for so long because they had a high risk of failing in that circumstance; 2. The Agency was concerned about the perception of the flying public that the returning controllers were not fully qualified for their jobs; 3. In the interest of equity, the Agency decided to issue a single recruitment announcement limited to ex-PATCO controllers and centralize the process for ranking in the Agency's Aviation Careers division in Oklahoma City; and 4. There was concern that, if individual regions were left to themselves to handle the recruitment and ranking of applicants, the returning ex-PATCO controllers would have difficulty competing against other applicants with more current experience. The AJ found that, although the Agency cited concern over uniformity in hiring as a justification for its hiring policy, ultimately it practiced uniformity only in not hiring ex-PATCO controllers at the GS-12 level. The AJ opined that it would have been much more reasonable to allow ex-PATCO applicants to compete openly with other applicants; evidence indicated that the Agency was unprepared for the lifting of the rehiring ban and, once it was lifted, was uninterested in rehiring ex-PATCO controllers at or near their former grade levels. The AJ further determined that the Agency's claim that its hiring practice was based on its interest in fairness and equity was undermined by the fact that the ex-PATCO controllers who eventually were hired at the GS-9 level generally were younger ex-PATCO controllers. Additionally, the AJ noted that Complainant worked as an ATC until he was rehired by the Agency, and therefore, it was unreasonable to assume that he was unqualified for the job in question or away from the job so long that he was unfamiliar with new technology. The AJ determined that there were means of determining qualifications and employment desirability that were more acceptable and fairer than the Agency's methods, including resume review, personal interviews, and contacting job-related references. The AJ further determined that there was no evidence in the record to support the Agency's contention that there was public outcry of concerns about the qualifications of ex-PATCO controllers to return to air traffic controlling. Upon review of this matter, we concur with the AJ's determinations regarding the Agency's explanations. Additionally, the AJ found that there was compelling evidence that the Agency's explanations were pretexts for unlawful discrimination. Specifically, the AJ cited the following portion of an Agency Eastern Region memorandum entitled "Questions and Answers on Rehiring Fired Controllers" as evidence of pretext: Q5: Isn't it true that someone's ability to control traffic declines with age? Can these former controllers do the job? What about the fact that they haven't controlled aircraft for over a decade? These may be issues. Therefore, the FAA plans to hire these controllers just above the normal entry level (GS-9 level). They will have to satisfactorily pass the same training and proficiency requirements for promotion and retention as any other controller. Exhibit F. We note that instead of using the Q & A as an opportunity to disavow age as a legitimate basis for Agency selection decisions, the Q & A states that the age of ex-PATCO applicants justifies the Agency's decision to only hire them at the GS-9 level. As such, this Q & A glaringly contradicts the ADEA's mandate that all personnel actions in the federal sector "shall be free from any discrimination based on age."7 Additionally, the Agency's policy of excluding ex-PATCO employees from consideration for the GS-12/13/14 positions almost exclusively affected workers who were 40 years of age or older. In fact, the average known age of non-PACTO applicants who were considered for the GS-12/13/14 positions was 33 years old, whereas the average age of the ineligible ex-PACTO cohort in which Complainant was placed was 50 years old. Only one person in Complainant's ex-PATCO cohort was below 40 years old. This Q & A reflects that the Agency was keenly aware of the overall disparity in age between ex-PACTO applicants and other applicants. Further, although the SO and the PS contended that they thought they could only hire Complainant at the GS-9 level because he was an ex-PATCO employee, the Agency official who drafted Agency Order 3300.30 acknowledged that the national inventory created pursuant to Recruitment Notice 93-01 did not preclude regional or local managers from using other hiring vehicles, such as recruiting ex-PATCO controllers from other agencies. Moreover, although the SO stated that she did not recall seeing any Agency guidance prohibiting the selection of older ex-PATCO controllers, she acknowledged that she had heard, discussed, or thought about whether ex-PATCO controllers would stay very long if rehired because most of them would be nearing normal retirement age very soon, if they had not already reached it. Further, another ex-PATCO controller stated that, prior to submitting his application for a position in 1996, he had a conversation with the SO in which she mentioned that the Agency had "some age concerns" about ex-PATCO controllers. As such, at the very least, selecting officials acknowledged that ex-PATCO controllers' proximity to "retirement age" was considered relevant to the selections at issue here. However, "the ADEA commands that 'employers are to evaluate [older] employees ... on their merits and not their age.'" Hazen Paper Co. v. Biggins, 507 U.S. 605, 611 (1993), quoting Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 422 (1985). In this case, we are persuaded that the Agency used ex-PATCO status as a proxy for age, which ultimately resulted in Complainant's nonselection for a GS-12 ATC position. Consequently, the AJ properly found that the Agency's non-discriminatory reasons are pretexts for age discrimination, and the AJ's finding that Complainant was subjected to disparate treatment because of his age is supported by substantial evidence. Decision without a Hearing: Disparate Impact The AJ issued summary judgment in favor of the Agency with respect to Complainant's disparate impact claim. Because Complainant prevails on the claim that he was subjected to disparate treatment because of age, and no additional remedies would be available for him under a disparate impact theory, we exercise our appellate discretion and decline to review the merits of the AJ's finding with respect to disparate impact. Nevertheless, for purposes of instruction, we clarify herein the standards for establishing age discrimination in the federal sector under a disparate impact theory. The Supreme Court initially recognized disparate impact as a valid theory of employment discrimination under Title VII in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and International Bhd., 431 U.S. 324 (1977). In Smith, et al. v. City of Jackson, Mississippi, et al., 544 U.S. 228 (March 30, 2005), and in Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008), the Supreme Court held that the ADEA also authorizes recovery against private sector employers under a disparate impact theory. Additionally, the Commission has held that a claim of disparate impact discrimination may be made under the ADEA against federal agency employers. See Carpenter v. Dep't of Transportation, EEOC Appeal No. 0120091464 (2011); Eller v. Dep't of the Army, EEOC Appeal No. 0120092803 (Nov. 30, 2010); Cameron v. U.S. Postal Serv., EEOC Appeal No. 07A40130 (Sept. 20, 2005), request for reconsideration denied, EEOC Request No. 05A60099 (Dec. 22, 2005); Brown v. Dep't of Defense, EEOC Petition No. 03A50040 (Sept. 15, 2005); see also Lujan v. Walters, 813 F.2d 1051 (10th Cir. 1987), and Palmer v. U.S., 794 F.2d 534, 536 (9th Cir. 1986) (allowing disparate impact claims in federal sector cases). A complainant may also establish liability under ADEA § 633a by showing that a neutral policy had a disparate impact on older applicants or employees. See Carpenter v. Lahood, EEOC Appeal No. 0120091464 (2011); Eller v. McHugh, EEOC Appeal No. 0120092803 (Nov. 30, 2010); Witkowsky v. Dep't of the Interior, EEOC Petition No. 03970122 (Jan. 30, 1998): see also Lujan v. Walters, 813 F.2d 1051 (10th Cir. 1987) and Palmer v. US, 794 F.2d 534, 536 (9th Cir. 1986) (allowing disparate impact claims in federal sector cases). 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) (Complainant must present "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion"). This holding recognizes that the federal sector provisions of the ADEA provide broader coverage than the private sector provisions of the ADEA. For example, the federal sector provision's mandate states that "all personnel actions . . . be made free from any [age] discrimination." We determine that this reflects an intention to outlaw all types of age discrimination in the federal sector, including disparate impact. See Lagerstrom v. Mineta, 408 F.Supp.2d 1207, 1212 (D.Kan.2006)( "The term 'discrimination' does not refer to one method of analysis over another, instead, it is the destination for two different pathways of proof."). In comparison, the private sector's § 623(a) enumerates specific practices such as failing to hire, segregating, or discharging employees which cannot be done because of an individual's age. However, despite the narrower prohibition on age discrimination in the ADEA's private sector provisions, the Supreme Court in Smith and Meachum has held that employees and applicants may proceed under a disparate impact theory under the ADEA in the private sector. In light of the broader language of the federal sector ADEA provisions, it simply would be illogical to conclude that the ADEA prohibits fewer forms of age discrimination in the federal sector than it does in the private sector. Accordingly, we find that the disparate impact analysis may be used to establish a violation of the ADEA. See Breen v. Peters, 474 F.Supp.2d 1, 6-7 (D.D.C.2007)(finding that the provision of the ADEA applicable to federal employers "encompasses both disparate treatment and disparate impact cases, as both methods of proof seek redress for illegal discrimination"). With regard to an employer's defense for disparate impact under ADEA, in Smith, the Supreme Court noted that §623(f)(1) of the private sector ADEA provisions provides that it shall not be unlawful for an employer to take any action otherwise prohibited under § 623(a)(1) "where the differentiation is based on reasonable factors other than age [discrimination]." Smith, 544 U.S. at 239. However, the Supreme Court has held that the provision containing this private sector statutory defense, §623(f)(1), does not apply to federal sector disparate impact claims because federal sector's ADEA § 633a is "self-contained and unaffected by other sections" of the statute. Gomez-Perez v. Potter (U.S. Postral Serv.), 533 U.S. 474, 489 (2008) (quoting Lehman v. Nakshian, 453 U.S. 156, 168 (1981)). Consequently, "reasonable factor other than age" is not the applicable defense in federal sector disparate impact cases. Instead, we find that an agency may avoid liability under disparate impact theory by establishing that the policy was job-related and consistent with business necessity. Remedies When discrimination is found, an agency must provide the complainant with full, make-whole relief to restore him as nearly as possible to the position he would have occupied absent the discrimination. See Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. Postal Service, EEOC Appeal No. 01933395 (July 21, 1994). However, we note neither compensatory damages nor attorney's fees are available remedies under the ADEA. See Donna W. v. Dep't of Transportation, EEOC Appeal No. 0720160002 (Aug. 17, 2016); Falks v. Department of Treasury, EEOC Request No. 05960250 (September 5, 1996). The AJ found that, because Complainant had been subjected to disparate treatment because of his age, the Agency must review Complainant's application, along with other qualified applicants, for the GS-12/13/14 position to determine if Complainant would have been selected. The AJ further found that, if the Agency determined that Complainant would have been selected, it must offer Complainant the position at the GS-12 level with all appropriate benefits until the date of his retirement. The AJ also ordered the Agency to provide EEO training to all related personnel, to review its policy of rehiring ex-PATCO applicants, and to post a notice of the finding of discrimination. Upon review, we find that the AJ's remedy for Complainant's nonselection is not supported by substantial evidence. Specifically, we note that the SO acknowledged that "it is probable that I would have selected the Complainant [for a bid GS-12/13/14 position under AEA-AAT-96-074-11006] if his name had appeared on any list presented to me." Additionally, Complainant was hired by the Department of Defense as a GS-11 Air Traffic Controller in July 1989, and was subsequently promoted to the GS-12 level in 1996. Further, the record reveals that the Agency hired GS-11 Department of Defense ATCs and immediately promoted them to the GS-12 level upon selection under bid AEA-AAT-96-0740-11006. Additionally, a Personnel Management Specialist testified that Agency policy provided that Department of Defense ATCs should be hired at their Department of Defense grade levels, unless the selecting official determined that the applicant could not perform at that grade. HT, p. 69. As such, we find that the evidence overwhelmingly reflects that Complainant was highly qualified for the Agency's ATC position and, absent discrimination, likely would have been selected at the GS-12 level, with promotion shortly thereafter. Consequently, in order to make Complainant whole, he must be retroactively promoted to a GS-12 position. Additionally, on appeal, Complainant contends that he would have continued to work for the Agency until he reached the age of mandatory retirement (56 years old), or nine years after his non-selection. We note that the record reflects that CP retired from subsequent employment at the Department of Defense at the age of 62. Therefore, we find that Complainant is entitled to back pay from the date of his nonselection for a GS-12 position, until the date of his 56th birthday, offset by any other pay and benefits he received during that time period. We further find that Complainant is entitled to an adjustment to his current retirement benefits to account for the effects of the Agency's discrimination. Finally, we note that in McCollum, et al. v. Dep't of Transportation (FAA), EEOC Appeal No. 07A60055 (Oct. 26, 2006), the Commission certified a pending class complaint consisting of more than 3,000 ex-PATCO applicants. The class is defined as addressing "whether the agency discriminated against PATCO Inventory applicants on the basis of age when they are not selected for Air Traffic Control Specialist vacancies on September 16, 2003, and thereafter." Complainant's complaint cannot be subsumed into this class complaint because it concerns matters that predate the defined class. 8 CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ's decision with respect to Complainant's disparate treatment claim and find that Complainant established that he was subjected to disparate treatment because of his age.9 The Commission REMANDS this matter to the Agency to take further actions consistent with this decision and the ORDERS set forth below. ORDER Within one hundred and twenty days (120) days of the date this decision is issued, the Agency shall undertake the following actions. 1. The Agency shall retroactively place Complainant into the GS-12 Air Traffic Controller Specialist position effective October 31, 1996, until the date on which he would have reached mandatory retirement. 2. The Agency shall tender to Complainant back pay, with interest, for the difference between the salary he received during the period, and the salary he would have received if he had been placed in a GS-12 position retroactive to October 1, 1996, until his mandatory retirement date. Complainant is entitled to any benefits to which he would have been entitled but for the discrimination, as well as expected promotions throughout the period, i.e., step increases and grade increases. Complainant is further entitled to an adjustment to his retirement benefits to give him the same benefits he would have received had he been employed by the Agency through the date on which he reached mandatory retirement. 3. The Agency shall provide eight hours of in-person EEO training to the PS and the SO, with an emphasis on age discrimination. If the PS and the SO have left the Agency's employ, the Agency shall furnish documentation-of their departure date(s). 4. The Agency shall post a notice in accordance with the Order set forth below entitled "Posting Order." The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G1016) The Agency is ordered to post at its all its facilities with ATCs copies of the enclosed notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you fib 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: _____________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat 6-29-2017 __________________ Date 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 But see our discussion in the text at "Analysis and Findings," infra, regarding scrivener's error in the AJ's decision. 3 The known ages of these applicants are 24, 25, 27, 28, 28, 29, 32, 32, 32, 35, 36, 36, 39, 41, 41, 41, 41, 43, and 54 years old. ROI, Exhibit F7. 4 We refer to contentions raised on appeals throughout the processing of this matter. 5 We note that, at the time Complainant first offered this contention, he was still employed (by the Department of Defense), and requested that his eventual pension, upon retirement from DoD at age 62, be adjusted to reflect service with the Agency through the mandatory retirement age of 56. 6 Fisher's Exact Test is used to examine the significance of the association between two kinds of classification; here, age over 40 and age under 40. The difference between the expected number and the actual number obtained is statistically significant when the Fisher's Exact Test probability value is less than 0.05. EEOC Compliance Manual, Number 915.003, Section 10: Compensation Discrimination (Dec. 5, 2000), available online at: http://www.eeoc.gov/policy/docs/compensation.html. 7 Arguably, this document could be considered direct evidence of discrimination. Direct evidence" is either written or verbal evidence that, on its face, demonstrates bias and is linked to an adverse action. Pomerantz v. Dep't of Veterans Affairs, EEOC Appeal No. 01990534 (Sept. 13, 2002). Where there is direct evidence of discrimination, there is no need to prove a prima facie case or facts from which an inference of discrimination can be drawn. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Moreover, where the trier of fact finds that there is direct evidence of discrimination, liability is established. Guidance on Recent Developments in Disparate Treatment Theory, No. 915.002, July 14, 1992, Section III; EEOC Compliance Manual § 604.3, "Proof of Disparate Treatment," at 6-7 (June 1, 2006). But because we find that Complainant prevails on his disparate treatment claim through a circumstantial evidence analysis, we decline to also address whether this document constitutes direct evidence of age discrimination. 8 At the time the instant decision is being issued, the case was pending before an AJ. The Commission takes no position on the claims raised in that class action. 9 As previously noted, we declined to address the issue of whether Complainant established disparate impact discrimination. Accordingly, neither do we address the AJ's finding thereon. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120130554 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 20 0120130554