01972421
04-19-1999
Harry P. Magee, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.
Harry P. Magee, )
Appellant, )
) Appeal No. 01972421
v. ) Agency Nos. SSA 110-95
) SSA 0404-95
Kenneth S. Apfel, ) Hearing Nos. 120-95-6652X
Commissioner, ) 120-96-5135X
Social Security Administration,)
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision (�FAD�)
concluding he had not been discriminated against in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.; and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. Appellant alleges that he was discriminated
against on the basis of age (59) when he was reassigned from his
Branch Chief position to a Program Advisor position, and that he was
discriminated against on the bases of race (Caucasian), sex (male) and
reprisal (prior EEO activity) when: (1) he was not given the opportunity
to temporarily act as Executive Officer and (2) he was not given work
assignments within his position description. This appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that during the fall of 1994, the agency's Office
of Program Integrity and Reviews (�OPIR�) was directed to reorganize
and streamline pursuant to the National Performance Review. Prior to
the reorganization, appellant was one of eight Branch Chiefs within
the Office of Assistance and Insurance Program Quality (�OAIPQ�).
As a result of the reorganization, the eight Branch Chief positions
within OAIPQ were to be consolidated into four Deputy Director positions.
The remaining four former Branch Chiefs were to become Program Advisors,
non-supervisory utility positions working under the Director of OAIPQ
and serving as experts in different areas. The Associate Commissioner of
OPIR (�AC�) (male, Caucasian, age 46, no prior EEO activity) stated that
after consulting his Deputy Associate Commissioner (�DAC�) (female,
African-American, age 50, no prior EEO activity) and weighing the
relative abilities of the individual Branch Chiefs, he made the decision
to reassign appellant to the position of Program Advisor because he had
less management skills suited for the Deputy Director position but more
technical proficiency to be a productive Program Advisor.
In October 1994, the position of Executive Officer (�EO�) within
OPIR became vacant. Initially, at the suggestion of the DAC, the AC
temporarily appointed one of the Program Advisors (female, Caucasian, age
45, no prior EEO activity) to the position. After she left the position,
the AC filled the position with a female from the Career Development
Program<1>. While appellant did not directly seek an appointment to
the EO position, he nevertheless asserted that he was not afforded an
opportunity to serve in the position. Appellant also asserted that
during this time period, the DAC failed to assign him work within his
new Program Advisor position description (�PD�).<2>
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed formal complaints on November 30,
1994 and June 1, 1995. In his first complaint, appellant alleged that
his reassignment was the result of age discrimination, in that individuals
selected for the Program Advisor positions were older than those selected
for the Deputy Director positions. Appellant's second complaint alleged
generally that the agency's actions concerning the Executive Officer
position and work assignments were based on his race, sex and prior EEO
activity. At the conclusion of the investigation, appellant received
a copy of the investigative reports and requested a hearing before an
EEOC Administrative Judge (�AJ�). Following a consolidated hearing,
the AJ issued a Recommended Decision (�RD�) finding no discrimination.
The AJ concluded that appellant established a prima facie case of age
discrimination concerning his reassignment. However, the AJ concluded
that appellant had failed to establish a prima facie case of race,
sex or reprisal discrimination concerning the agency's failure to
consider him for the Executive Officer position or his work assignments
as a Program Advisor. The AJ found that appellant was not similarly
situated to the Career Development Program selectee because he was not
in the career enhancement program, and that there was a lack of credible
evidence demonstrating that he specifically sought the EO position or
received improper work assignments. The AJ then concluded that the agency
articulated legitimate, nondiscriminatory reasons for placing appellant
in the Program Advisor position, namely, that the AC stated he placed the
Branch Chiefs in the positions he felt would best benefit the agency.
In her pretext analysis, the AJ found that appellant had failed to
present sufficient evidence demonstrating that age was the determinative
factor in his nonselection for one of the Deputy Director positions.
Finally, the AJ found that appellant had failed to link age, race,
sex or reprisal to any of the management decisions.
On appeal, appellant asserts that the AJ erred in reaching her ultimate
decision of no discrimination. The agency responds by restating the
position it took in its FAD, and requests that we affirm its FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's RD
sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Nothing proffered by appellant on
appeal differs significantly from the arguments presented at the hearing
and given full consideration by the AJ. As a result of our review,
we discern no basis upon which to overturn the AJ's finding of no
discrimination in this matter. In this regard, the AJ made specific
credibility findings which are entitled to deference due to the AJ's
first-hand knowledge, through personal observation, of the demeanor and
conduct of the witnesses. See Esquer v. United States Postal Serv.,
EEOC Request No. 05960096 (September 6, 1996); Willis v. Department of
the Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
April 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The Career
Development Program was a career enhancement
program which provided its participants with
temporary assignments to management positions.
2 Appellant asserted that while his PD stated his assignments were to
come from the Office Director, all of his assignments came from one
of the sub-Directors. The DAC, who was temporarily serving as the
Office Director, agreed with the wording of the PD, but stated that
since she assigned appellant and the other Program Advisors to assist
the sub-Directors, she at all times remained the Program Advisors'
day-to-day supervisor.