Anthony Guido, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionOct 21, 2003
05A30976 (E.E.O.C. Oct. 21, 2003)

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