01A61114
06-13-2006
James Redmond, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
James Redmond,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A61114
Agency No. 05-0067-SSA
Hearing No. 160-2005-00521X
DECISION
Complainant appeals to the Commission from the agency's November 29, 2005
decision finding no discrimination. Complainant alleges discrimination on
the basis of age (date of birth: September 19, 1956) when, on August 15,
2004, complainant was not selected for the position of Social Insurance
Administrator (District Manager), GS-105-13, which was filled under Vacancy
Announcement No. ROII 157-04NY.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision on
November 9, 2005, finding that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut.
On November 29, 2005, the agency issued a decision finding no
discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that decision.
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.
We find that the agency articulated a legitimate, nondiscriminatory reason
for the nonselection. The Area Director, the Selected Official (SO),
stated that she sought the recommendation of the Rochester Field Office
Manager (Manager), who had responsibility for the Greece Field Office where
the vacancy existed. The Manager said that he wanted someone to promote
change because he was instituting a new work sharing plan. The Manager
asserted that he did not recommend any of the candidates who worked in the
Rochester Field Office, which included the Greece Field Office where the
complainant worked, because those candidates opposed the work sharing plan.
The Manager argued that he did not recommend complainant because he was a
part of the Greece Field Office, and the Manager did not believe that
complainant's participatory or consensus management style was conducive to
making the necessary changes. SO stated that she agreed with the Manager
that complainant's management style was not ideal for the Greece Field
Office at that time. SO stated that complainant's participatory management
style coupled with his friendship with the Greece Field Office staff, with
whom he had worked for many years, could jeopardize the work sharing plan.
The Manager stated that the selectee's success in running a busy front end
operation demonstrated the type of skills the Manager wanted to see in the
ideal candidate. The selectee supervised the reception area of the
Syracuse Field Office, which was one of the largest operations in the
country and selectee's supervisor raved about her performance.
Complainant has failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Additionally,
complainant has failed to show that his qualifications for the Social
Insurance Administrator (District Manager) position were plainly superior
to the selectee's qualifications or that the agency's actions were
motivated by discrimination. Moreover, complainant has failed to show, by
a preponderance of the evidence that he was discriminated against on the
basis of age. Furthermore, the Commission finds that the AJ's decision is
supported by substantial evidence.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests and
arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C.
20036. 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head or
department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil action
will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The
grant or denial of the request is within the sole discretion of the Court.
Filing a request for an attorney does not extend your
time in which to file a civil action. Both the request and the civil
action must be filed within the time limits as stated in the paragraph
above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 13, 2006
__________________
Date