0520080711
03-13-2009
Michael J. Sullivan, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration,1 Agency.
Michael J. Sullivan,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,1
Agency.
Request No. 0520080711
Appeal No. 0120070367
Hearing No. 120-2005-00429X
Agency No. 040093SSA
DENIAL
Complainant timely requested reconsideration of the decision in Michael
J. Sullivan v. Social Security Administration, EEOC Appeal No. 0120070367
(June 26, 2008). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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 complaint, complainant alleged that the agency
subjected him to unlawful discrimination, 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 (ADEA), as amended,
29 U.S.C. � 621 et seq., on the bases of his sex, race (Caucasian), and
age (55 at the relevant time) when during the Spring of 2003 management
did not select him for the position of Deputy Assistant Associate
Commissioner for Management and Operations Support, posted under vacancy
announcement number F-751. At the conclusion of the investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The AJ assigned to the case found that, after viewing the evidence in
a light most favorable to complainant, a decision without a hearing
was appropriate as there were no genuine issues of material fact in
dispute. The AJ concluded that complainant failed to establish that he
was subjected to discrimination as alleged. The agency's final order
adopted the AJ's finding of no discrimination. On appeal, the Commission
affirmed the agency's final order. Specifically, the Commission found
that complainant failed to show that his qualifications for the position
at issue were observably superior to those of the selectee.
In his request for reconsideration, complainant contends that the
Commission erred in affirming the agency's final order. Specifically,
complainant reiterates his contention that the agency failed to
articulate legitimate, nondiscriminatory reasons for its actions because
it did not provide any contemporaneous interview notes for the position
at issue. We find, however, that complainant failed to show that any
such interview notes existed, and we further find that this argument
was fully considered on appeal. Therefore, after reconsidering 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. 0520080711 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z0408)
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
March 13, 2009
Date
1 We note that, as the result of a clerical error, the agency in EEOC
Appeal No. 0120070367 was incorrectly identified as the Small Business
Administration.
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2
0520080711
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520080711