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.