David L. Kinney, Petitioner,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionJun 2, 2004
02a30005_r (E.E.O.C. Jun. 2, 2004)

02a30005_r

06-02-2004

David L. Kinney, Petitioner, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


David L. Kinney v. Social Security Administration

02A30005

June 2, 2004

.

David L. Kinney,

Petitioner,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Petition No. 02A30005

DECISION

Pursuant to 29 C.F.R. � 1614.401(d) and 1614.405, the Commission accepts

petitioner's appeal from the decision of the agency in the above-entitled

matter. Petitioner initiated a proceeding in accordance with the agency's

negotiated grievance procedure. The issue on appeal is whether petitioner

has established that the agency discriminated against him when he was not

promoted to the position of Supervisory Paralegal Specialist, GS-950-13,

which was posted under vacancy announcement number 06-02.<1>

During the period in question, petitioner worked as a Paralegal Specialist

at the agency's Office of Hearings and Appeals (OHA) in New Haven,

Connecticut.

According to the record, on May 3, 2002, petitioner through his union

steward, filed a step one grievance concerning his non-selection.

Therein, petitioner stated that agency management violated Articles 1,

3, 19 and 26 of the collective bargaining agreement between SSA and

AFGE and potential violations of Article 18 and �the EEO Regulations

contained in CFR Part 1614, and any other article, law, rule, regulation

or applicable provision," when it did not select him for the position of

Supervisory Paralegal Specialist, GS-950-13. Petitioner further stated

that management failed to conduct the selection process in a "fair and

equitable" manner by not interviewing candidates for the subject position.

Petitioner also claimed that the selectee was preselected for the subject

position. The record reveals that on May 7, 2002, petitioner's union

steward waived petitioner's step 1 grievance and elected to proceed to

step 2 grievance procedure.

The record reveals that a step 3 grievance decision was issued on

September 24, 2002. Therein, a Regional Management Officer (RMO), stated

that he was named as a designee by a named Regional Chief Administrative

Law Judge to carry out responsibilities in the grievance process in

the instant matter. The RMO found that the agency did not violate

the National Agreement or Personnel Policy Manuel by not selecting

petitioner for the subject position. The RMO noted that there was no

requirement to interview candidates for the subject position but stated

that there was "great value to be gained by offering interviews" and that

he would encourage selecting officials to interview future candidates.

Furthermore, the RMO found that the candidates were treated fairly and

equitably during the selection process. With respect to petitioner's

claim that the selectee was preselected for the subject position, the

RMO determined that petitioner failed to provide evidence to support his

contentions. Therefore, the RMO denied petitioner's step 3 grievance.

When a petitioner relies on circumstantial evidence to prove an agency's

discriminatory intent or motive, there is a three step, burden-shifting

process. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The initial burden is on petitioner to establish a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802. The burden then

shifts to the agency to articulate some legitimate, nondiscriminatory

reason for its challenged action. Id. If the agency is successful,

petitioner must then prove, by a preponderance of the evidence, that the

legitimate, nondiscriminatory reason articulated by the agency is merely

pretext for its discrimination. McDonnell Douglas, 411 U.S. at 804.

The burden of persuasion always remains with petitioner.

We find that the agency articulated a legitimate, nondiscriminatory reason

for petitioner's non-selection. The record contains an attachment from

the Hearing Office Director (HOD). Therein, the HOD stated that there

had been no violation of the labor management contract, as the subject

position is not a bargaining unit position. The HOD further stated

that it was the selecting official's determination not to interview

candidates for the subject position. The HOD further stated that there

were no requirement that any or all of the candidates be interviewed.

Regarding petitioner's claim that the selectee was preselected, the

HOD stated that the selecting official did not preselect the selectee.

The HOD further stated that all candidates were treated the same during

the selection process.

Now, we proceed to determining whether petitioner satisfied his burden

of showing pretext. Petitioner may do this in one of two ways, either

directly, by showing that a discriminatory reason more likely motivated

the agency, or indirectly, by showing that the agency's proffered

explanation is unworthy of credence. Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 256 (1981). Upon review, the Commission finds

that petitioner failed to meet his burden. In reaching this conclusion,

we note that petitioner merely argued that the selectee was preselected

for the subject position; however, petitioner failed to proffer sufficient

evidence to corroborate these statements. Additionally, we note that

petitioner failed to provide any evidence that the articulated reasons

were a pretext to mask prohibited discrimination. Petitioner failed to

rebut the agency's articulated reason.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to AFFIRM the agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination occurred.

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 (S0900)

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 (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

June 2, 2004

__________________

Date

1The record in the instant case contains a copy

of the agency's letter dated April 22, 2002, to petitioner notifying him

of the nonselection to the position of Supervisory Paralegal Specialist,

GS-950-13.