0120073907
04-23-2010
Dennis R. Potocki, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Dennis R. Potocki,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120073907
Hearing No. 520-2007-00222X
Agency No. NY-06-1984-SSA
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. In his complaint, complainant,
a full-time Management Support Specialist, alleged discrimination on
the basis of age (60) when:
1. On June 22, 2005, complainant's application was improperly scored
for the New York Regional Leadership Development Program (RLDP),
GS-301-13/14, under Vacancy Announcement No. ROII 167-05NY, thereby
disqualifying complainant from the Best Qualified List (BQL) and selection
consideration.
2. On January 24, 2006, complainant was not selected for the position
of Assistant District Manager (ADM), GS-102-12, which was filled under
Vacancy Announcement ROII 046-06NY.
On July 6, 2007, an EEOC Administrative Judge (AJ) issued a decision
without a hearing. As to claim 1, the AJ dismissed the claim pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor Contact. As to
claim 2, the AJ found that there was no genuine issue of material fact
in dispute, and concluded that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut.
On August 24, 2007, the agency issued a decision dismissing claim 1 and
finding no discrimination as to claim 2. The agency fully implemented the
AJ's decision. Complainant now appeals from that decision. Complainant
admits the decision to dismiss claim 1 was proper and is only appealing
claim 2.
On appeal, complainant contended that the minimal age difference between
himself and the selectee, when considered with "additional circumstances,"
demonstrated a prima facie case of age discrimination.
In response to complainant's appeal, the agency argued that the AJ's
decision must be upheld because it was supported by substantial evidence.
The agency claimed that the facts cited by complainant as probative of
discrimination were merely complainant's uncorroborated assertions,
or were his subjective characterizations of the facts. In sum, the
agency asserted that complainant's facts do not create an inference of
age discrimination.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
Upon review, we find summary judgment was appropriate as no genuine issues
of material fact exist. We find that the agency articulated legitimate,
nondiscriminatory reasons for its nonselection. The Area Director (AD)
said that she was the selecting official for the ADM position at issue.
The AD stated that complainant met the qualifications for the position
because his name was on the BQL. The AD claimed that no panels
were convened and no interviews were conducted for the ADM position.
The AD asserted that she selected the selectee for the ADM position
because the selectee was completing a one-year assignment as a temporary
Assistant Manager in Buffalo, and that he was doing an outstanding job.
The AD articulated that the selectee was knowledgeable in all programs
administered by the agency. The AD added that the Buffalo office was
primarily T16, which was the selectee's background, and that the selectee
was also strong in T2 programs. The AD stated that the selectee was
also a computer specialist and was an outstanding trainer on technical
and systems workloads. The AD noted that the selectee worked and was
experienced in workloads, such as Employment Support Representative,
Plan to Achieve Self-Support Unit, the Area Disability Unit, etc.,
and workloads of which he would be responsible supervising as an ADM.
The AD said that the selectee conducted Public Information/Public
Relations for both offices within the district. The AD claimed that
the selectee became a Management Support Specialist in approximately
December 2001 and an Operations Specialist in December 2003, while the
AD was the District Manager. The AD asserted that she was the selectee's
second-line supervisor from approximately March 2002 through June 2004.
With respect to complainant, the AD sated that complainant's background
was T2, but that she did not recall complainant having a T16 background.
The AD claimed that complainant may have basic knowledge, but that
he was not as technical in policy or systems in T16 as the selectee.
The AD asserted that the selectee held positions and had more personal
on-hands experience on issues that were unique to the Buffalo office.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons its actions.
Furthermore, the Commission finds that complainant failed to show that his
qualifications for the Assistant District Manager position were plainly
superior to the selectee's qualifications or that the agency's actions
were motivated by discrimination. Moreover, the Commission finds that
complainant failed to show, by a preponderance of the evidence, that he
was discriminated on the basis of age.
The agency's decision finding no discrimination as to claim 2 is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
April 23, 2010
__________________
Date
2
0120073907
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013