05A30976
10-21-2003
Anthony Guido, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Anthony Guido v. Social Security Administration
05A30976
October 21, 2003
.
Anthony Guido,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Request No. 05A30976
Appeal No. 07A10004
Agency Nos. 980060SSA, 980188SSA
Hearing Nos. 100-99-7574X, 100-99-7548X
DENIAL OF REQUEST FOR RECONSIDERATION
The Social Security Administration (agency) timely initiated a
request to the Equal Employment Opportunity Commission (EEOC or
Commission) to reconsider the decision in Anthony Guido v. Social
Security Administration, EEOC Appeal No. 07A10004 (May 29, 2003).
EEOC Regulations provide that the Commission may, in its discretion,
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 complaints, complainant alleged that the agency had
discriminated against him in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
on the basis of his age (70 at the relevant time), when he was not
selected for the position of Administrative Law Judge (ALJ) in March,
June, August and October 1997. Following a hearing, the AJ found that
complainant established a prima facie case of age discrimination, and that
the agency failed to articulated a legitimate, nondiscriminatory reason
for its actions. The AJ therefore concluded that the agency failed to
rebut the inference of discrimination established by complainant and
concluded that the non-selections were motivated by complainant's age.
The agency's final order rejected the AJ's decision, and the agency argued
on appeal that because complainant was not an active member of the Bar,
he was not qualified for the ALJ position. The Commission concurred with
the AJ's finding of age discrimination. As to remedies, the Commission
ordered that the agency provide complainant with back pay from earliest
date on which other applicants were selected, to the date on which the
agency received notification that complainant was an inactive member
of the Bar. The Commission also remanded for a hearing the issue of
whether complainant's inactive status, had it been known by the agency
at the time the selections were made, would have prevented complainant's
selection even absent discrimination.
In its request for reconsideration, the agency initially contends that
the Commission erred in finding that complainant established a prima
facie case of age discrimination. We find, however, that this argument
was fully addressed below and we remind the agency that a �request
for reconsideration is not a second appeal to the Commission.� Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614,
at 9-17 (rev. November 9, 1999). The agency also contends that even if
the finding of discrimination is upheld, complainant is not entitled
to the relief granted by the Commission. The agency argues that ALJ
appointments are contingent upon the results of an investigation by the
Office of Personnel Management (OPM), and therefore even if the agency
had selected complainant for an ALJ position, complainant's inactive Bar
membership would have come to light during the ensuing OPM investigation
and complainant would not have been appointed. We find, however, that the
agency's argument regarding what an OPM investigation would have uncovered
is mere speculation and is not supported by the evidence of record.
Further, we find that the issue of whether complainant's inactive status
would have prevented his selection had it been known by the agency at
the time the selections were made, has been remanded for a hearing.
After a review of the agency's request for reconsideration, 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. 07A10004 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
ORDER
The agency is ordered to take the following remedial action:
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The initial back pay period
shall be from March 1997, the earliest date on which other applicants
were selected, to the date on which the agency received notification
from the Indiana Bar that complainant was in inactive status from June
1995 through January 1999. The complainant shall cooperate in the
agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall provide a minimum of eight (8) hours of training in
the obligations and duties imposed by the ADEA to RO.
The agency shall post the attached notice.
4. The issue of whether complainant's inactive status, had it been known
by the agency at the time the selections were made, would have prevented
complainant's selection even absent discrimination is REMANDED to the
Washington D.C. Field Office for a hearing. If the AJ determines that
complainant's inactive status would not have prevented his selection, the
AJ shall award appropriate remedies, including retroactive appointment
and back pay beginning in March 1997, the earliest date on which other
applicants were selected. The back pay period shall continue through
the date on which complainant is offered and either accepts or rejects
the position. If the AJ determines that complainant's inactive status
would have prevented his selection, had the agency been aware of it
at the relevant time, no further remedies shall be awarded, with the
exception detailed in paragraph 1, supra.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Headquarters in Baltimore, Maryland
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
October 21, 2003
__________________
Date