Kevin Muszynski, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 19, 2009
0120071558 (E.E.O.C. Mar. 19, 2009)

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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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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