0120071558
03-19-2009
Kevin Muszynski, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Kevin Muszynski,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120071558
Hearing No. 170200600087X
Agency No. 050238SSA
DECISION
On February 5, 2007, complainant filed an appeal from the agency's January
1, 2007 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the agency's final
order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Disability Consultant at the agency's Philadelphia, Pennsylvania office.
On April 20, 2005, complainant filed an EEO complaint alleging that he was
discriminated against on the basis of age (53 at the relevant time) when,
on February 17, 2005, he learned that he was not selected for the position
of Supervisory Social Insurance Specialist, (Disability Processing
Section Chief), GS-105-13, under Vacancy Announcement No. SSA-2005-003.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On October 16, 2006, the AJ held the hearing
and subsequently issued a decision on November 6, 2006. The AJ found
that the agency articulated a legitimate, nondiscriminatory explanation
for complainant's non-selection and complainant failed to establish the
agency's explanation was a pretext for age discrimination. Specifically,
the AJ found that the selectee was chosen for the position because of
her experience in the Leadership Development Program, as well as her
interpersonal skills and general qualifications. Although complainant
introduced evidence that showed the agency was aware that a large
part of its workforce was nearing retirement eligibility, the AJ found
insufficient evidence that the selecting officials took the documents
into consideration. Even so, the AJ found the documents only showed the
agency's need to recruit new employees, and that the evidence did not
support a finding that the agency was encouraging its current employees
to retire in order to do so.
On January 1, 2007, the agency issued a final order adopting the AJ's
finding that complainant failed to prove that he was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted a brief on appeal. In response, the agency argues
the brief was not timely filed, and accordingly, the appeal should be
dismissed.
ANALYSIS AND FINDINGS
As an initial matter, we agree with the agency that complainant's brief
was untimely filed, but decline to dismiss the appeal. The record reveals
complainant filed his appeal on February 5, 2007. Complainant submitted
a brief and certified that it was mailed to the agency on March 9, 2007.
Any statement or brief in support of the appeal must be submitted to the
Commission within 30 days of filing the appeal. 29 C.F.R. � l614.403(d).
Because the record does not reflect that complainant sought an extension
of time for filing his brief, the Commission declines to consider
complainant's brief filed March 9, 2007.
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 110, Chapter 9, � VI.B. (November 9, 1999).
After a careful review of the entire record, we find there is substantial
evidence in the record to support the AJ's finding of no discrimination.
Although complainant established a prima facie case of discrimination
because the selectee was substantially younger than he was, complainant
failed to provide persuasive evidence that the agency's reasons for
complainant's non-selection were a pretext for age discrimination.
Indeed, the preponderance of the evidence in the record reveals the
selecting official chose the selectee for legitimate reasons; namely,
the selectee's experience in a national leadership development program,
which provided her with a variety of leadership and management experience.
The selecting official also received a favorable recommendation for the
selectee from another management official. Although complainant contended
that he was more qualified, he failed to establish his qualifications
rendered him plainly superior to those of the selectee.
Employers generally have broad discretion to set policies and to
carry out personnel decisions, and should not be second guessed
by the reviewing authority absent evidence of unlawful motivation.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Here, the agency was filling a supervisory position, and
as such, has even greater discretion. See Hickman v. Department of
Justice (Drug Enforcement Agency), EEOC Appeal No. 01A11797 (December
20, 2001)(citing Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)).
The record reveals complainant failed to produce sufficient evidence
that agency officials harbored a discriminatory motive against him.
Accordingly, the Commission finds that complainant failed to establish
by a preponderance of the evidence that the agency discriminated against
him on the basis of his age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 19, 2009
Date
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0120071558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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