Michael J. Sullivan, Complainant,v.Michael J. Astrue, Commissioner, Social Security Administration,1 Agency.

Equal Employment Opportunity CommissionMar 13, 2009
0520080711 (E.E.O.C. Mar. 13, 2009)

0520080711

03-13-2009

Michael J. Sullivan, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration,1 Agency.


Michael J. Sullivan,

Complainant,

v.

Michael J. Astrue,

Commissioner,

Social Security Administration,1

Agency.

Request No. 0520080711

Appeal No. 0120070367

Hearing No. 120-2005-00429X

Agency No. 040093SSA

DENIAL

Complainant timely requested reconsideration of the decision in Michael

J. Sullivan v. Social Security Administration, EEOC Appeal No. 0120070367

(June 26, 2008). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).

In his underlying complaint, complainant alleged that the agency

subjected him to unlawful discrimination, in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq., on the bases of his sex, race (Caucasian), and

age (55 at the relevant time) when during the Spring of 2003 management

did not select him for the position of Deputy Assistant Associate

Commissioner for Management and Operations Support, posted under vacancy

announcement number F-751. At the conclusion of the investigation,

complainant requested a hearing before an EEOC Administrative Judge (AJ).

The AJ assigned to the case found that, after viewing the evidence in

a light most favorable to complainant, a decision without a hearing

was appropriate as there were no genuine issues of material fact in

dispute. The AJ concluded that complainant failed to establish that he

was subjected to discrimination as alleged. The agency's final order

adopted the AJ's finding of no discrimination. On appeal, the Commission

affirmed the agency's final order. Specifically, the Commission found

that complainant failed to show that his qualifications for the position

at issue were observably superior to those of the selectee.

In his request for reconsideration, complainant contends that the

Commission erred in affirming the agency's final order. Specifically,

complainant reiterates his contention that the agency failed to

articulate legitimate, nondiscriminatory reasons for its actions because

it did not provide any contemporaneous interview notes for the position

at issue. We find, however, that complainant failed to show that any

such interview notes existed, and we further find that this argument

was fully considered on appeal. Therefore, after reconsidering the

previous decision and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 0520080711 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

RIGHT TO REQUEST COUNSEL (Z0408)

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

March 13, 2009

Date

1 We note that, as the result of a clerical error, the agency in EEOC

Appeal No. 0120070367 was incorrectly identified as the Small Business

Administration.

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0520080711

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0520080711