"Another Report on AGE DISCRIMINATION"

"Another Report on AGE DISCRIMINATION"
by
Gregory Vernon Boulware
6.26.6
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Age discrimination is difficult to prove.

Are you over the age of Fifty (50)? Have you been searching for work, a job, credit, a home, a car, and recognition? If you have experienced the symptomatic discrimination and/or separation from the job market, credit allocation, and or many other things that have suddenly become allusive, you are a subject of Age Discrimination. The following researched and documented information, for which I received a high grade in college, an “A”, and a hit with anyone who has experienced and/or discussed said ridicule, may be of value to you. I have experienced many occasions of age discrimination since I have surpassed the age of fifty. Enclosed is a couple of cases (excerpts from my original report) that may interest anyone who has or is currently going through a similar ordeal…read on!

(A Case Example):

The appellant was demoted during a temporary appointment. On appeal, he claimed among other things, that the demotion was based on age discrimination and a violation of his rights as a veteran. The administrative judge dismissed the appeal for lack of jurisdiction. However, the full Board found that it may have jurisdiction under USERRA and remanded the case to the administrative judge.

In determining the extent of its jurisdiction under USERRA (The Uniformed Services Employment and Reemployment Rights Act), the Board examined the language of 38 USC Chapter 43 and the legislative history, and found that the statute limits the Board's authority in pure USERRA cases to determining whether the agency has violated USERRA. (According to the Board, pure USERRA cases are those involving personnel actions that are not otherwise appealable to the Board.)

The Board pointed out that pure USERRA cases are not appeals of personnel actions. Rather, they are petitions for remedial action like Special Counsel petitions for corrective action and individual right of action (IRA) cases. It said that the Board may adjudicate (adjudication - to resolve legally – investigation and enforcement of rules – rule making) an allegation that the agency has not complied with USERRA and, if the Board determines that the complainant has proved this allegation, order remedial action. As remedial action, the Board may only order the agency to comply with USERRA and provide back pay. The statute does not authorize the Board to adjudicate claims outside the USERRA complaint or order remedial action on any basis other than a USERRA violation. Thus, the Board may not consider non-USERRA discrimination claims in pure USERRA cases.

The Board pointed out that veterans with pure USERRA claims who also believe that their agency committed prohibited discrimination against them on a basis other than their military service may seek redress from the EEOC.

This decision is important because it limits the Board's jurisdiction in USERRA cases involving actions that would not otherwise be appealable, such as demotions during temporary appointments. It clarifies that in such cases, if the employee alleges discrimination based on prior military service, the Board may adjudicate the issue.

However, if the employee alleges a non-USERRA discrimination claim, such as age discrimination, the Board may not consider it.

A dispute then arose in the circuits. The Fifth Circuit affirmed the EEOC's authority to award compensatory damages in Fitzgerald v. Dept. of Veterans Affairs, 121 F.3d 203 (CA5 1997). The Eleventh and Seventh Circuits found otherwise in Crawford v. Babbitt, 148 F.3d 1318 (CA11 1998) and the instant case, Gibson v. Brown, 137 F.3d 992 (CA7 1998).

In 1991, Congress amended Title VII in the Compensatory Damages Amendment (CDA), which, among other things, permits victims of intentional discrimination to recover compensatory damages awards in discrimination suits against Federal agencies. The Equal Employment Opportunity Commission (EEOC), thereafter, granted compensatory damages in a number of cases, relying on the enforcement authority Congress had expressly given it in prior amendments.

The Seventh Circuit noted that the section granting the EEOC enforcement authority named only equitable remedies. It then found that the award of damages by an administrative tribunal was inconsistent with the language saying compensatory damages may be recovered in an "action," since this word normally refers to judicial cases, while the word "proceedings" is the preferred term for administrative cases. It also found significant conflict with the provision granting a jury trial to "any party" on request. If damages are awarded to a complainant by the EEOC, the law gives the agency no access to court for its guaranteed jury trial. Finally, the court noted that waivers of sovereign immunity must be very narrowly construed, and one therefore cannot stretch the actual language of the statute to accomplish Congressional intent.

The Supreme Court granted certiorari (a review/appeal) to resolve the issue, and by a five-to-four margin, dispatched all of the Seventh Circuit's arguments. It found the equitable remedies listed in subsection 717(b) of Title VII are explicitly not the only remedies available, and the language must be read in the light of later amendments, including the CDA (Compensatory Damages Amendment). It acknowledged that "the word 'action' often refers to judicial cases, not to administrative 'proceedings,'" but found the meaning in this context was best construed by determining Congressional intent, through a reading of the whole section. The majority's reading produced no evidence that Congress intended to deprive the EEOC of authority.

The Court determined that the guarantee of a jury trial can be read to refer only to cases where the parties actually get to court and, overall, that the criteria for waiving sovereign immunity are met. "For these reasons, we conclude that the EEOC possesses the legal authority to enforce § 717 through an award of compensatory damages."

There was never much dispute in these legal arguments about Congressional intent, and the Court's ruling probably serves primarily to render further legislation unnecessary.

Practitioners will understand, of course, that the Court's decision applies to other administrative proceedings as well, such as those before the Merit Systems Protection Board.

Comment

It has been an ongoing practice of employers to continually seek to control and/or dictate the rights, destinies, and principles of the average working person. One such practice is demonstrated within the information submitted at the beginning and the end of this report; (Robert J. Bodus v. Department of the Air Force CH3443970520-1-1, June 16, 1999, and Gregory V. Boulware v. Commonwealth of Pennsylvania Department of Public Welfare Norristown State Hospital – 200503331-EEOC No. 17FA660961, June 16, 2006-Prima Facie – burden of proof - Failure).

It serves me well to know that some age discrimination cases are being won with valid information and evidence. What would happen to the average working person should special agencies such as the EEOC and the Pennsylvania Human Relations Commission not exist?

This writer has no other choice than to carry on with the career (employment) game that is dealt, and encourages any and all members of the so-called “protected class” (and those that are not) to challenge and fight for their rights as citizens and tax–payers (supporters/contributors to society) of this United States.

The so-called “higher food chain personnel” should be made to realize that the average worker, especially those aged over fifty, have as much right to fair dealings (equity), and the pursuit of life, liberty, property ownership, and equal protection of the laws within the jurisdiction of the United States of America, federal and local; (The Fourteenth Amendment to the United States Constitution).

Age discrimination is difficult to prove based on the preponderance of evidence. The report(s) herein, demonstrate cases of overwhelming numbers of age discrimination as well as the number of cases that have been defeated in court.

Compensatory damages may be awarded in administrative proceedings.

COURT DECISIONS

DISCRIMINATION ... COMPENSATORY DAMAGES

West, Secretary of Veterans Affairs v. Gibson, 119 SCt 1906, June 14, 1999.

Discrimination

Based on age: The Age Discrimination Act of 1967 prohibits employment Discrimination on the basis of age against individuals forty years of age or older.

Procedures for bringing a case under Title VII, The Civil Rights Act of 1964.

Remedies: If a plaintiff proves that unlawful discrimination occurred, he or she may be awarded reinstatement, back pay, and retroactive promotions. Damages (both compensatory and punitive) may be awarded for “Intentional Discrimination.”

This reporter agrees with the courts decision and acknowledges the bureaucratic devices set forth; to make it difficult for the average working person to get a “fair deal” within the employment and legal sovereignty in many Unites States Jurisdictions, i.e.:

In 1991, Congress amended Title VII in the Compensatory Damages Amendment (CDA), which, among other things, permits victims of intentional discrimination to recover compensatory damages awards in discrimination suits against Federal agencies. The Equal Employment Opportunity Commission (EEOC), thereafter, granted compensatory damages in a number of cases, relying on the enforcement authority Congress had expressly given it in prior amendments.

Summary of the Law as Cited Above

Discrimination

Based on age: The Age Discrimination Act of 1967 prohibits employment Discrimination on the basis of age against individuals forty years of age or older. Procedures for bringing a case under Title VII, The Civil Rights Act of 1964.

Remedies: If a plaintiff proves that unlawful discrimination occurred, he or she may be awarded reinstatement, back pay, and retroactive promotions. Damages (both compensatory and punitive) may be awarded for “Intentional Discrimination.”

The appellant was demoted during his tenure of employment to a temporary assignment.

Why?

The appellant claimed that his demotion was based on age discrimination. The administrator judge dismissed the appeal for lack of jurisdiction. The USERRA may have jurisdiction over this type of case. The case was remanded by administrator judge to the USERRA.

The USERRA examines languages of 38 USC Chapter 43 and the legislation history – statute limits board’s authority in pure USERRA cases – pure USERRA cases are those involving personnel actions are otherwise appealable to the board – they are petitions for remedial action, i.e., individual right of action (IRA) cases. The board may only order compliance with USERRA statutes and/or mandates, and provide back pay as remedial action.

The board pointed out that the statute does not authorize the board to adjucate claims outside the USERRA complaints or order remedial action on any basis other than a USERRA violation. The appellant may seek redress from the EEOC (Equal Employment Opportunity Commission).

The board (of appeals) cannot/may not consider age discrimination Claims. However, the board may consider demotions during temporary Appointments and/or discrimination based upon military service (see Fitzgerald v. Dept. of Veterans Affairs, 121 F. 3d 203).

Upon further review, the Seventh Circuit Court noted that the section granting the EEOC enforcement authority named only equitable remedies.

The Seventh Circuit Court, according to accessible information, found that the award of damages by an administrative tribunal was inconsistent with the language that states compensatory damages may be received in an “action”, since the word normally refers to judicial cases, while the word “proceedings” is the preferred term for administrative cases.


Significant conflict may arise with the provisions granting a jury trial to “any party” on request. The information further states, if damages are awarded to a complainant by the EEOC, the law gives the agency (the employer) no access to court for its guaranteed jury trial. Sovereign immunity must be very narrowly construed, and therefore cannot stretch the actual language of the statute to accomplish congressional intent.

Ceritori to resolve the issue was granted by a five–to-four margin by the Superior Court. The Superior Court dispatches all of the Seventh Circuit Courts’ arguments. Equitable Remedies listed in subsection 717 (b) of Title VII are not the only remedies available. The language is said to be explicit and the language must be read in light of later amendments that include the CDA.

The court determined that the guarantee of jury trial can read to refer only to cases where the parties actually get to court, and overall. that the criteria for waiving sovereign (independent) immunity are met “for those reasons, we (the Seventh Circuit Court) conclude that the EEOC possesses the legal authority to enforce & 717 through an award of compensatory damages.

Definition / Explanation

Appellant: The appellant is the party that appeals a case to another court or jurisdiction from the court or jurisdiction in which the case was originally brought.

USERRA: Uniformed Services Employment and Redemption Rights Act: Employee eligibility and job entitlements, employer obligations, benefits, and the Veterans Employment and Training Service.

Judicial / Person am Jurisdiction / Jurisdiction: Before a court can have a lawsuit, certain requirements must first be met. These requirements relate to jurisdiction, venue, and standing to sue. As the branch of government entrusted with interpreting the laws, the judiciary can decide, among other things, whether the laws or actions of the other two branches are constitutional. The process for making such a determination known as judicial review. The power of judicial review enables the judicial branch to act as a check on the other two branches of government. In line with the check-and-balances system established by the U.S. Constitution.

Remedial Action: (Remedy) The relief given to an innocent party to Enforce a right or compensate for the violation of a right. The act of doing (action); capable of serving as a basis of a lawsuit (actionable).

Protected Class: A group of persons protected by specific laws because of the group’s defining characteristics. Under laws prohibiting employment discrimination, these characteristics include race, color, religion, national origin, gender, age, and disability.

Statute: The body of law enacted by the legislative bodies. Federal Statutes are laws that are enacted by the U. S. Congress and the state statutes are enacted by State Legislatures.

Adjucate: To render a judicial decision. In the administrative process, the proceedings in which an administrative law judge hears and decides on issues that arise when an administrative agency charges a person or a firm with violating a law or regulation enforced by the agency.

Redress: Relief from distress; means or possibility of seeking a remedy; compensation for wrong of less: Reparation, Retribution, or Correction.

Equitable Remedy: Equity refers to a branch of the law, founded in justice and fair dealing that seeks a fairer and more adequate remedy when no remedy is available at law. Two District Court Systems were created, each having a different set of judges and a

different set of remedies. Today, in most states, the courts of law and equity are merged; the distinction between the two courts had largely disappeared. A remedy is the means given to a party to enforce a right or to compensate for the violation of a right.

Tribunal: A platform for magistrates; a court or forum of justices; something that decides or determines (the court of public opinion).

Compensatory Damages: A money award equivalent to the actual value of injuries or damages sustained by the aggrieved party.

Action: A proceeding in a court of justice by which one demands or enforces one’s right; the manner or method of performing; an act of will; a thing that is done.

Proceedings: (Procedural Law). Law that establishes the methods of enforcing the rights established by substantial law; a legal action; to come forth from a source; to continue after a pause or interruption; to go on in an orderly regulated way; an official record of things said or done.

Jury Trial: (See the 6th and 8th Amendments). The Sixth Amendment guarantees the right to a speedy trial, the right to jury trial, the right to a public trial, the right to confront witnesses, and the right to counsel. The Eight Amendment prohibits excessive bail and fines, and cruel and unusual punishment. A jury consists of a body of persons sworn to give a verdict according to the evidence; a committee for judging and awarding prizes at a contest, hearing, trial, or exhibition. A trial is the formal examination before a competent tribunal of the matter in issue in a civil or criminal cause in order to determine such issue.


Sovereign: One that is dominant; one that exercises supreme authority within a limited sphere; absolute; independent; free; one possessing or held to posse’s sovereignty; a separate and individual jurisdiction.

Ceritori: “The Rule of Four”; an order issued by the Supreme Court to a lower court requiring the latter to send it the record of the case for review. The court will not issue a writ unless at least four of the nine justice panel approve of it.

The Supreme Court: The highest appellate court in a state is usually called the Supreme Court but may be called the Court of Appeals in some jurisdictions. The decisions of each state’s highest court on all questions of state law are final. Only when issues of federal law are involved can a decision made by a state’s highest court be overruled by the United States Supreme Court.

E.E.O.C. : The Equal Employment Opportunity Commission. The commission may file suit in an employees behalf should there be a claim filed against the employer based on discrimination.

Prima Facie: A case in which the plaintiff has produced sufficient evidence of his of her conclusion that the case can go to a jury; a case in which the evidence compels the plaintiff’s conclusion if the defendant produces evidence to disprove it.

The 14th Amendment: The 14th Amendment includes four sections. The most prevalent section, in this writers mind, is the 1st one: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

Probable Cause: Reasonable grounds to believe the existence of facts Warranting certain actions, such as the search or arrest of a person.

CDA: Commonwealth Decency Act of 1996: This act was designed to Address online obscenity. A significant problems facing the courts and lawmakers today is how to control obscenity and child pornography that is disseminated via the Internet. The act was challenged by Civil Liberties Groups as an unconstitutional restraint on speech.

Should you encounter any of the difficulties outlined in this report, i suggest the use of the content herein. Age Discrimination is a terribly difficult case to prove as it relates to all of us whom are over the age of fifty and denied certain types of employment and/or other gainful endeavors.

It is with high hope that this initial research article will lend assistance to all and any that are engaged in the never-ending trek to securing well-earned contentment with respect to who we (the older generation) are and the initiatives set forth in our contributions and sacrifices endowed to those who follow.

OK youngsters, had enough? If you are not aged forty and over it is hopeful that you all live long enough to reach the so-called “Middle Age.” Take heed! The next time you refer to that older gentleman and lady as “Old- Heads”, age discrimination is lying in wait for you. “For Whom the Bell Tolls?” “It may very well toll for Thee.”

Enjoy it while you can, the older you get, the faster it goes. Smell the roses any one?


Source Acknowledgements:

The FLRA is an independent administrative federal agency that was created by Title VII of the Civil Service Reform Act of 1978 (also known as the Federal Service Labor-Management Relations Statute) (the Statute).

The Statute allows certain non-postal federal employees to organize, bargain collectively, and to participate through labor organizations of their choice in decisions affecting their working lives.

The primary statutory responsibilities of the FLRA include: (1) resolving complaints of unfair labor practices, (2) determining the appropriateness of units for labor organization representation, (3) adjudicating exceptions to arbitrator's awards, (4) adjudicating legal issues relating to duty to bargain/negotiability, and (5) resolving impasses during negotiations.

United States Office of Personnel Management


Significant Cases

Number 132 November 1999

Court Decisions
FLRA
MSPB

Robert J. Bodus v. Department of the Air Force, CH3443970520-1-1, June 16, 1999.

West, Secretary of Veterans Affairs v. Gibson, 119 SCt 1906, June 14, 1999.

This report covers selected decisions and other actions of the

Federal Labor Relations Authority (Authority or FLRA) under the Federal Service Labor-Management Relations Statute (FSLMRS), the Merit Systems Protection Board (Board or MSPB), the courts, and other authorities whose actions affect Federal employee and labor-management relations.

Selection is based generally on whether a case creates or modifies precedent or provides insights that are of interest to a wider spectrum of agency management than only the parties to the cases themselves.

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA). USERRA does not authorize the Board to adjudicate claims outside a USERRA complaint or order remedial action on any basis other than a USERRA violation.

Thus, in USERRA cases involving personnel actions that are not otherwise appealable, the Board may not consider non-USERRA discrimination claims. Robert J. Bodus v. Department of the Air Force, CH3443970520-1-1, June 16, 1999.

UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)

Robert J. Bodus v. Department of the Air Force, CH3443970520-1-1, June 16, 1999.

Business Law #262 – C.C.P. Research Project 2006, Fundamentals of Business Law, Roger LeRoy Miller, Gaylord A. Jentz, 6th Edition, C.C.P. of Philadelphia, Business Law Review, and the C.C.P. Law Library.

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Posted Tuesday, August 12th 2008 at 7:02PM by: Gregory Boulware
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