07a50036
03-29-2005
Patrick Kenney, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Patrick Kenney v. Social Security Administration
07A50036
March 29, 2005
.
Patrick Kenney,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 07A50036
Agency No. 03-0291-SSA
Hearing No. 260-04-00133X
DECISION
The agency issued a Notice of Final Action dated December 27,
2004, declining to implement the decision of an EEOC Administrative
Judge finding that the agency discriminated against complainant and
simultaneously filed the present appeal.<1>
ANALYSIS
During the relevant time, complainant was employed as an Attorney Advisor,
GS-12, with the agency's Milwaukee Office of Hearings and Appeals (OHA).
The record reveals that complainant earned his law degree in 1984 and
began working with the agency in 1985 as an Attorney Advisor for the
agency's Chicago South Office. In 1987, complainant transferred to the
Milwaukee Hearing Office. Complainant received a temporary promotion in
July 1995 to the position of Senior Attorney Advisor, GS-13. When this
temporary position ended in July 1998, complainant returned to his GS-12
Attorney Advisor position.
In May 2002, the Hearing Office Director of the Milwaukee Hearing
Office (Hearing Office Director) sent out an electronic mail message
asking the hearing employees if anyone was interested in a temporary
detail to a Group Supervisor position. Three individuals applied and
Person A, a paralegal writer, was selected.<2> In July 2002, a Group
Supervisor position, GS-13, was posted and thirteen individuals applied,
including complainant and Person A. In December 2002, the Hearing Office
Director selected Person B, a non-attorney and the youngest applicant.
In December 2002, the Hearing Office Director selected Person C to fill a
temporary detail to a Group Supervisor position, which was not posted.<3>
The promotion was non-competitive and no applications were solicited
for the detail. Person C started the detail to the Group Supervisor
position on December 29, 2002. A Supervisory Attorney Advisor position
was posted from January 20, 2003, to February 12, 2003, for which
complainant applied. In December 2002, an Administrative Law Judge
(ALJ) from the Detroit Office transferred to the Milwaukee Office
and was assigned as the Hearing Office Chief ALJ. The Chief ALJ was
the selecting official for the Supervisory Attorney Advisor position.
Complainant and five other applicants were put on the best qualified
list which was issued February 27, 2003. On March 4, 2003, the Chief
ALJ selected Person C, the youngest applicant for the position. On the
same day, the Regional Chief ALJ concurred with the Chief ALJ's selection.
Complainant filed a formal complaint dated May 12, 2003, alleging that he
was subjected to discrimination on the basis of age (52) when: on March
4, 2003, complainant was not selected for the position of Supervisory
Attorney Advisor. Following the completion of the investigation of his
complaint, complainant requested a hearing before an EEOC Administrative
Judge (AJ) on his complaint.
Complainant's complaint was forwarded to the EEOC's Milwaukee District
Office and assigned to an AJ. A hearing was held on March 18, 2004,
with testimony from complainant and six other witnesses. The AJ found
that complainant established a prima facie case of age discrimination in
that he is over 40, applied for and was qualified for the Supervisory
Attorney Advisor position, and was rejected for that position in favor
of a significantly younger candidate (under 40 years of age).
The AJ noted that the agency presented several legitimate
non-discriminatory reasons for choosing the selectee over complainant.
The Hearing Office Director testified that while the selectee was new
to the Milwaukee Office, he had excellent credentials, had supervisory
experience, had shown initiative in volunteering to participate in a
voice-recognition software training, and had better interpersonal skills
than complainant.
The AJ found that complainant established that the agency's reasons for
his non-selection were pretext for discrimination. The AJ found that
complainant was extremely qualified for the position at issue. The AJ
noted complainant had superior performance, was considered by many of the
agency's Milwaukee judges to be the best decision writer in the office,
and assisted others in questions they had. The AJ noted that the selectee
was an agency employee since 1997 and that complainant had been employed
with the agency since 1985 and during that time complainant had gained
relevant experience.
The AJ noted that the Hearing Office Director stated that she believed
the selectee was superior because he had shown initiative in volunteering
to participate in a voice-recognition software training. The AJ noted,
however, that the agency's records suggest that the selectee attended
the voice-recognition training after he was selected for the Supervisory
Attorney Advisor position. Further, the Hearing Office Director testified
that she recommended the selectee because he had prior supervisory
experience during his detail as a Group Supervisor. However, the AJ noted
that the selectee was chosen for this detail on a non-competitive basis
by the Hearing Office Director. Additionally, the AJ recognized that
complainant served as temporary Senior Attorney Adviser from July 1995,
though July 1998, which he stated was apparently not given any weight
by the Hearing Office Director when she made her recommendation.
Further, the AJ noted that the Hearing Office Director gave complainant an
unfavorable recommendation for the position at issue because she believed
he had poor interpersonal skills, had an abrasive manner, was not willing
to work with management to achieve goals, was not willing to participate
in anything and did not interact with the rest of the staff. The AJ
found the Hearing Office Director's testimony regarding complainant's
interpersonal skills was not credible. The AJ noted that the testimony at
the hearing revealed that complainant was well liked by his co-workers,
socialized with them out of work, and was sought after to help resolve
office conflicts. Further, the AJ noted that the Hearing Office Director
contradicted her statement that complainant had poor interpersonal skills
as attested to by the fact that she asked complainant to act as the
office's EEO Counselor, just prior to the selection decision at issue.<4>
The AJ found that the Hearing Office Director was not credible in that she
tried to distance herself from complainant's non-selection and claimed
that her only role in the selection was over casual conversations that
she and the Hearing Office Chief Administrative Law Judge (ALJ), the
selecting official, had over coffee. However, the AJ noted that the
Chief ALJ, stated that his involvement in the selection was very limited
because he was new to the Milwaukee Office at the time. He stated
that he did not know the candidates and relied almost exclusively on
the recommendations of the Assistant District Manager. Finally, the AJ
found that the manner in which complainant was rejected in favor of the
selectee, installs no confidence in the decision-making process. The AJ
noted that no interviews were held with any of the candidates and that
neither the Chief ALJ or the Regional Chief ALJ the concurring official,
discussed the applicants' qualifications with their supervisors or the
ALJs with whom they worked. The AJ found that the Hearing Office Director
was the decision-maker for the position at issue and not the Chief ALJ
nor the Regional ALJ. Thus, based on complainant's qualifications,
the falsity of the agency's stated non-discriminatory reasons for its
decision, and the Hearing Office Director's lack of credibility, the AJ
found that complainant's non-selection was based on age.
The agency issued a Notice of Final Action dated December 27, 2004,
declining to implement the AJ's decision finding discrimination based on
age and simultaneously filed the present appeal. In its appellate brief,
the agency argued that the AJ lacked substantial evidence to support
her factual findings that complainant was superior to the selectee, that
the selecting and concurring officials were not credible, and that the
agency's legitimate non-discriminatory reasons were pretext. The agency
stated that complainant did not have any agency or other supervisory
experience while the selectee had supervisory experience with the agency
and formal teaching experience outside the agency. The agency claimed
that while complainant had a longer tenure with the agency than the
selectee, there is no evidence in the record to support a finding that
his qualifications for a supervisory position were clearly superior
to the selectee. The agency acknowledged complainant's three-year
detail but pointed out that the position as a Supervisory Attorney
Advisor required different skills than the Attorney Advisor position.
The agency claimed that complainant's promotion as a Senior Attorney
Advisor required him �to perform substantially the same duties as he had
performed as an Attorney-Advisor.� The agency claimed complainant did
not have relevant experience with the remainder of duties which comprise
the majority of the supervisory job, such as performing clerical functions
and overseeing and ensuring production. The Agency noted that complainant
�rebelled when management required him to perform clerical duties� and
with regard to the introduction of the use of voice recognition software
�objected� to its implementation and �even after one year after voice
recognition software was introduced . . . was still not using it as
much as his supervisors wanted.� In contrast, the agency noted that
the selectee volunteered to attend voice recognition software training.
The agency stated that assuming arguendo, that performing well as an
Attorney Advisor translates into performing well as a supervisor, the
selectee was a superior Attorney Advisor over the selectee. The agency
cites the nine awards earned by the selectee in his seven years working
with the agency versus the four awards earned by complainant in his
nineteen year tenure with the agency. The agency also argues that
complainant's application shows his deficiencies as a candidate in that
it is typewritten and contains typographical errors while the selectee's
application was digitally generated.
Additionally, the agency argues that the AJ erred in failing to evaluate
the credibility of the selecting and concurring officials and ignoring
their stated legitimate non-discriminatory reasons for choosing the
selectee over complainant. The agency argues that the AJ incorrectly
found the Hearing Office Director the decision-maker for the supervisory
position, despite her testimony and documentary evidence that she played
no formal role in the decision-making process. The agency argues that
the AJ's credibility assessment of the Hearing Office Director was not
based on substantial evidence. However, the agency states that even if
deference is given to the AJ's credibility assessment of the Hearing
Office Director, the AJ failed to make a credibility finding of the
concurring official who stated that he found the selectee had supervisory
experience and was personally familiar with the selectee's supervisory
abilities. The agency also argues that the AJ ignored the testimony of
the selecting official, who stated he relied upon factors other than the
Hearing Office Director's recommendation. The agency notes that the
selecting official stated that the selectee's background was clearly
laid out in his application, including his past work activities, his
assistance to co-workers in helping them perform their jobs better, and
his other efforts in supervisory and teaching functions while complainant
presented no such qualifications on his application. The agency also
argues that the AJ incorrectly found that neither the selecting or
concurring officials discussed the applicants' qualifications with their
supervisors. The agency states that the selecting official testified
that he discussed complainant's qualifications with the Hearing Office
Director, complainant's second-line supervisor. The agency notes that
neither the selecting nor concurring officials were required to discuss
the candidates' qualifications with all the ALJs in the Milwaukee Office.
Finally, the agency argues that the AJ's credibility determination of
the Hearing Office Director was not supported by substantial evidence.
With regard to the Hearing Office Director's testimony regarding the
voice recognition software training that she �was quite sure that
[the selectee] had volunteered for this training even before he began
his temporary detail as supervisor� the agency argues that its records
show her recollection was correct. The agency produces November 2002 and
February 2003 electronic mail messages in support of its position. First,
the agency provides a series of electronic mail messages from November
2002, on the subject of �SURVEY OF INTERESTED SPEECH RECOGNITION USERS�
which indicates the selectee is interested in speech recognition use.
Additionally, the agency provided, for the first time on appeal, a
series of electronic mail messages from February 2003, regarding Speech
Recognition Training indicating that a two-day train-the-trainer training
session is scheduled for February 25, 2003.
In response, complainant contends that the AJ's decision correctly
summarized the facts and reached the appropriate conclusions of law.
First, complainant argues that the AJ's findings with regard to his
experience for the position at issue were supported by substantial
evidence. Specifically, complainant notes that he and the selectee both
advanced to the GS-12 level within the same period of time. He also
notes that on his resume he identified two previous positions held with
non-agency employers containing relevant experience for the supervisory
position at issue in this case. Complainant contends that the only
supervisory experience the selectee had was for the few months he had the
temporary group supervisor position, which he obtained non-competitively
from the Hearing Office Director. Further, complainant argues that
the agency inappropriately minimized his temporary promotion to Senior
Attorney Advisor, a GS-13 level position, which he held for three years.
Complainant states that the Senior Attorney Advisor position involved
greater responsibility and coordination with office staff. With regard
to the agency's argument that complainant obtained less awards than the
selectee over his longer tenure with the agency, complainant states that
he simply chose to identify only his most recent awards on his application
and even failed to mention his most recent award, which the Hearing Office
Director herself awarded him. Additionally, complainant notes that the
agency failed to mention that prior to the mid 1990's, if an individual
received an �outstanding� performance appraisal he would get an early
and immediate step increase in pay, in lieu of any performance award.
Complainant notes that his performance evaluations in the late 1980's and
early 1990's, makes it clear that he received a number of step increases
because of outstanding evaluations. Complainant also argues that he
has greater educational experience than the selectee.
Additionally, complainant argues that the AJ's finding of pretext is
supported by substantial evidence. Specifically, complainant notes that
the Regional Chief ALJ testified of his �personal� experience with the
selectee which came from a one or two-day visit to the Milwaukee Office
in February 2003. Complainant argues that it was clear that the Regional
Chief ALJ was �rubber-stamping� the selection. Complainant states that
the AJ correctly found the Hearing Office Director lacked credibility.
Specifically, complainant reiterates that the Hearing Office Director's
reliance on the selectee's volunteering for voice recognition software
training was misplaced as the training did not occur until after the
selection was made. Finally, complainant notes that the November 2001
and February 2003 electronic mail messages supplied by the agency on
appeal do not establish that this training occurred prior to Person C's
selection for the position at issue. Thus, complainant requests that
the Commission uphold the decision of the AJ.
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.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that agency failed to present evidence to disturb the AJ's credibility
determination as to the testimony of the Hearing Office Director.
We discern no basis to disturb the AJ's decision. We find that the AJ
correctly determined that complainant established his prima facie case
of age discrimination, that the agency reasons for its actions were
pretextual, and that the agency's action were motivated by discrimination
on the basis of age. The Commission finds no reason to alter the relief
provided by the AJ and we order the agency to comply with the relief as
reprinted and modified below in the Order.
Accordingly, we REVERSE the agency's final action and REMAND the complaint
to the agency for compliance with the Order herein.
ORDER
Within 30 days of the date this decision becomes final, the agency shall
take the following actions:
The agency shall immediately promote complainant to the position of
Supervisory Attorney Advisor or a substantially equivalent position.
The agency shall determine the appropriate amount of back pay, interest,
and other benefits due complainant pursuant to 29 C.F.R. � 1614.501,
from the date he would have been selected had no discrimination occurred.
The agency shall post a copy of the attached NOTICE TO EMPLOYEES POSTED
BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION in accordance
with the provision herein entitled POSTING ORDER.
The agency shall provide appropriate EEO training to all responsible
agency officials.
The agency shall consider taking appropriate disciplinary action
against the responsible management official. The Commission does not
consider training to be disciplinary action. The agency shall report
its decision to the compliance officer. If the agency decides to take
disciplinary action it shall identify the action taken. If the agency
decides not to take disciplinary action, it shall set forth the reason(s)
for its decision not to impose discipline. If any of the responsible
management officials have left the agency's employ, the agency shall
furnish documentation of their departure date(s).
Documentation of compliance with provisions 1 - 5 of this Order must
be sent to the Compliance Officer as referenced herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Milwaukee Office of Hearings and
Appeals facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated _____________________ ,which
found that a violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq. has occurred at the Milwaukee Office
of Hearings and Appeals, Milwaukee, Wisconsin (hereinafter �facility�).
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL OR MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against an
individual on the basis of age. The agency has been ordered to remedy
the discrimination by: retroactively promoting complainant; paying
back pay, interest and other benefits due; and providing training to
all officials involved in the case. The facility will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all Federal equal
employment opportunity laws.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
___________________________
Name and Title
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 16141The record contains a Notice of Appeal/Petition filed
by complainant in which he specifically states that he is not appealing
the AJ's decision but is �simply responding to the agency's rejection of
that decision and its brief in support of their appeal of that decision.�
2The record reveals complainant did not apply for this position.
3Person C earned his law degree in 1996 and began working for the agency
as an attorney in 1997 with the Charlotte Hearing Office. In August
2002, Person C transferred to the OHA, Milwaukee Hearing Office as a
GS-12 Attorney Advisor.
4We note that during the hearing complainant testified that the Hearing
Office Director asked him to act as the office's EEO Director; however,
the Hearing Office Director testified that she did not recall this
incident.