Issue Briefs

Following is a recent summary from the EEOC on the law barring age discrimination and how that law has been interpreted in cases involving federal employees.

The Age Discrimination in Employment Act (ADEA)1 protects individuals who are 40 years of age or older from employment discrimination based on age. The law forbids discrimination with regard to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment.2 It is also unlawful to harass a person because of his or her age or retaliate against a person for raising a claim of age discrimination.3 Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.4

In general, claims of disparate treatment based on age are examined under a three-part analysis. A complainant must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination.5 That is, the complainant must show that age was a factor in the adverse employment action.6 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions.7 If the agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the agency’s reasons were a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason.8

The Commission has long held that the rules set forth by the U.S. Supreme Court in McDonnell Douglas Corp. in proving a Title VII claim are also applicable in proving an age discrimination claim.9 In Gross v. FBL Financial Services, Inc.,10 the Supreme Court reviewed the statutory language of the ADEA’s prohibition of discrimination “because of” age which applies to private sector employers. Based on this language, the Court concluded that for a plaintiff to ultimately prevail in a private-sector ADEA claim, he or she must demonstrate that the alleged discriminatory employment action would not have occurred “but for” the plaintiff’s age.

However, another section of the ADEA applies to the prohibition of age discrimination in the federal sector.11 Contrary to the holding in Gross, Fuller v. Gates, Secretary of Defense12 concluded that Gross applied to private-sector employment and not to employment by the federal government. The Court in Fuller found that the different language in the two sections of the ADEA demonstrated that Congress intended different meanings. Further, the Court determined that based on its plain meaning “free from any” must be construed as being broader than “because of,” such that the “mixed motive analysis” continues to apply in age discrimination claims against the federal government.13 The Commission has applied the rationale articulated in Fuller in its decisions addressing age discrimination in the federal sector.14

Recent Commission Decisions

Complainant in Enriqueta T. v. Dep’t of the Army,15 worked for a staffing firm serving the Agency as an Instructor in its Training and Development Branch. Complainant filed a complaint alleging, among other things, that the Agency discriminated against her based on her age when it did not give her a pay raise after her 90-day performance review. On appeal, the Commission reversed the Agency’s finding of no discrimination. While an Agency manager asserted that Complainant did not receive a raise because her performance was mediocre, Complainant proved that was not true and that it was proffered as pretext to mask age discrimination. The Agency conceded that certain information in the manager’s declaration, particularly with respect to performance was not supported by the record, and hence called into question the credibility of his statements in general. Thus, the Commission concluded that the Agency discriminated against Complainant based on her age when it did not recommend to her staffing firm that she get a raise following her 90-Day performance review.

In Donna W. v. Dep’t of Transp.,16 the AJ held a hearing, and found that the Agency discriminated against Complainant on the basis of age when it did not select her for a Program Director position. The Commission affirmed the AJ’s finding on appeal. The Agency did not dispute that Complainant performed the functions of the position for 12 years. Pursuant to a Congressional funding directive, the position was subsequently abolished and replaced with a two-year term position. Complainant was initially placed into the position for two years, after which time a younger employee was selected for the subsequent two-year term. The Commission stated that the Agency’s contentions regarding the AJ’s characterization of the position unnecessarily focused on semantics. The Agency’s assertions were not sufficient to disturb the AJ’s findings, and ignored Complainant’s vastly superior qualifications. The Commission found that the Agency failed to meet its burden of showing that the AJ’s factual determinations were not supported by substantial evidence or that the AJ made legal determinations contrary to law.

In Geraldine G. v. U.S. Postal Serv.,17 the Commission affirmed the AJ’s finding of age discrimination when Complainant was not selected for a Team Leader position. The Commission agreed with the AJ’s finding that the Selecting Official’s asking Complainant at the beginning of the interview how many years she had left before mandatory retirement was direct evidence of age discrimination. The Commission also agreed with the AJ’s finding that the Selecting Official demonstrated age bias by asking another applicant about his years before mandatory retirement, responding favorably to the applicant’s reply of 9 years, and commenting that he wondered if applicants close to retirement were motivated by a move to another location at the agency’s expense and not the good of the agency. The Commission found that Complainant was better qualified for the position than the selectee because she had more experience, more upper-level experience and scored better on her application. Therefore, the Agency’s articulated reason for the non-selection, that the selectee was better qualified, was a pretext for age discrimination. The Agency was ordered, among other things, to offer Complainant the position or a substantially equivalent position with appropriate back pay and benefits.

In Kristy D. v. Dep’t of the Interior,18 the Commission affirmed the AJ’s finding that the Agency discriminated against Complainant on the basis of age when it compelled her, on penalty of termination, to accept a reassignment. The Commission rejected the Agency’s argument that Complainant failed to show that she was subjected to adverse treatment or that she was treated differently from similarly situated employees outside her protected classes. According to the record, Complainant was involuntarily reassigned from a position in which she had worked nearly her entire career and had developed expertise to a position where she had very little experience. The Commission noted that an adverse action merely required a tangible change in the duties or working conditions constituting a material employment disadvantage. Further, the Commission determined that Complainant was the only person involuntarily reassigned to a less desirable position, which was sufficient to show others outside of her protected groups were treated more favorably. The AJ stated that it was “implausible” that the Agency could respect Complainant’s leadership skills as greatly as it asserted and yet risk losing her services by threatening her with termination if she did not accept a reassignment it knew she did not want. The Commission affirmed the AJ’s finding that the Agency’s explanation for its action was unworthy of belief, and therefore, Complainant’s reassignment was found to be discriminatory.

In Cletus W. v. Dep’t of the Treasury,19 the AJ found, after a hearing, that the Agency discriminated against Complainant on the basis of age when it did not select him for a Trainee program. Complainant received the fifth highest score from the ranking panel, but the Selecting Official, who did not conduct interviews, selected eight other applicants for the position. The AJ found that the Agency’s reason for not selecting Complainant were a pretext for discrimination, and the Commission found that the AJ’s analysis and conclusions were supported by substantial evidence in the record. Specifically, at least one of the selectees did not have the knowledge or experience that Complainant had. Further, the AJ found that the Agency failed to produce certain information during discovery and at the hearing, and made decisions during the selection process which were inconsistent with its policies. The Commission found that substantial evidence supported the AJ’s conclusion that age was a motivating factor given the fact the Selecting Official was aware of Complainant’s age, and no applicant in Complainant’s age bracket was selected for the program.

In Bryan T. v. Dep’t of Homeland Sec.,20 the Commission found that Complainant was subjected to harassment because of his age, and discriminated against when he was not selected for two positions. Specifically, a co-worker made derogatory comments about Complainant’s age during public briefings, including referring to Complainant as “the old guy,” asking Complainant if he could find his way to a meeting, and asking Complainant whether he remembered things. Several witnesses corroborated Complainant’s claims of harassment, and indicated that the co-worker frequently made derogatory statements about Complainant’s age. Complainant repeatedly contacted an EEO Counselor to complain about the harassment, and complained to an Agency manager, but the preponderance of the evidence revealed that instead of ceasing, the harassment increased in frequency. Therefore, the Commission determined that the Agency was liable for the co-worker’s conduct because it failed to exercise reasonable care to prevent and correct the harassing behavior. The Commission further found that the Agency failed to articulate a legitimate, nondiscriminatory reason for not selecting Complainant for two positions. The Agency merely provided vague, subjective reasons for the non-selections which, when considered in light of the pervasive and offensive name calling which existed at the facility, were a pretext for discrimination.

In Alton F. v. Dep’t of Def.,21 Complainant alleged discrimination based on age (59) when he was not selected for a Contract Price/Analyst positions. On appeal, the Commission noted that Complainant was qualified for the one of the positions, and appeared on the best-qualified list. He was not selected in favor of a substantially younger selectee (41). The Commission found that, although the Selecting Official stated that he did not know Complainant’s age when making his selection, the Selecting Official had reviewed Complainant’s resume, from which it could be discerned that Complainant was above age 40. The Commission found that the Agency met its burden of production to articulate legitimate, nondiscriminatory reasons for its selection, that is that the selectee had a strong resume in contract/pricing, proposal, and subcontractor experience; had Bachelor of Arts and Masters degrees; and had strong reference checks. Nevertheless, the Commission found that Complainant’s qualifications and experience as related to the position at issue were plainly superior to those of the selectee. The Commission noted that Complainant had more experience than the selectee as a Contract Price/Cost Analyst for the Agency. Complainant also possessed an MBA, while the selectee had only a BA in business administration. Complainant, unlike the selectee, had received many awards from the Agency, and Complainant had significantly more overall experience relevant to the position at issue. Therefore, the Commission found that the Agency’s assertions about Complainant’s qualifications and non-selection were “suspiciously thin” and unworthy of belief. The Commission concluded that Complainant proved that the Agency discriminated against him on the basis of age when it did not select him for a Contract Price/Cost Analyst position.

1 29 U.S.C. § 621, et seq.

2 See Facts About Age Discrimination available on the Commission’s website at

3 Id.

4 Id.

5 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016) (applying the analytical framework described in McDonnell Douglas to an ADEA disparate treatment claim).

6 Id.

7 Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

8 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

9 Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Cova v. Coca-Cola Bottling Co., 574 F.2d 958 (8th Cir. 1978).

10 557 U.S. 167 (2009).

11 See 29 U.S.C. § 633a(a) (all personnel actions in federal employment “shall be made free from any discrimination based on age”).

12 See Fuller v. Gates, Secretary of Defense, 2010 WL 774965 (E.D. Tx. March 1, 2010).

13 Id.

14 See, e.g., Geraldine G. v. U.S. Postal Serv., EEOC Appeal No. 0720140039 (June 3, 2016).

15 EEOC Appeal No. 0120143049 (Sept. 2, 2016).

16 EEOC Appeal No. 0720160002 (Aug. 17, 2016), request for reconsideration denied EEOC Request No. 0520160522 (Dec. 13, 2016).

17 EEOC Appeal No. 0720140039 (June 3, 2016).

18 EEOC Appeal No. 0720160003 (Aug. 10, 2016).

19 EEOC Appeal No. 0720160008 (Aug. 3, 2016) .

20 EEOC Appeal No. 0120122110 (March 18, 2016).

21 EEOC Appeal No. 0120140428 (April 3, 2014) .