01A34040
07-26-2004
Raymond J. Malloy, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Raymond J. Malloy v. Social Security Administration
01A34040
July 26, 2004
.
Raymond J. Malloy,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A34040
Agency No. 00-0447-SSA
Hearing No. 310-A1-5197X
DECISION
Complainant timely initiated an appeal from the Administrative Judge's
(AJ) decision<1> concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission AFFIRMS the AJ's decision.
The record reveals that complainant, an Administrative Law Judge
(hereinafter "ALJ") at the agency's Dallas (North) Office of Hearings
and Appeals facility, filed a formal EEO complaint on July 24, 2000,
alleging that the agency had discriminated against him on the basis
of age (D.O.B. 05/06/28) when: (1) pursuant to a pattern and practice
of selecting and promoting younger, less experienced ALJs, agency
management did not appoint him to fill the position of Hearing Office
Chief Administrative Law Judge (hereinafter "HOCALJ") at the agency's
Las Vegas, Nevada office (�facility�), appointing a younger individual to
that position instead; and (2) management denied his subsequent request
to be transferred to another ALJ assignment at that office, opting again
to appoint a younger individual to that position.
The record reveals that following a public announcement that the agency
would open an office in Las Vegas, Nevada, complainant applied for an
ALJ position at the facility on September 17, 1999. On October 15, 1999,
he also filed an application for appointment to the facility's HOCALJ
position. Following review of complainant's applications and background,
the agency notified him that other individuals had been selected to fill
both positions. Each of these individuals is substantially younger in
age than complainant.<2>
Believing he was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complainant.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC AJ.
Following a hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
age discrimination, as the selectees for the HOCALJ and ALJ at the
facility were substantially younger than complainant and thus outside
his protected group. However, the AJ further found that the agency
articulated legitimate, nondiscriminatory reasons for not selecting
complainant for either the HOCALJ or ALJ positions. In so finding, the
AJ noted the statements of agency management that he was not selected
for either position due to: (1) an unforeseen reduced workload in the
region the facility was located in (Region IX); (2) complainant's past
discipline for federal fund misuse; and (3) his peers' negative image
of him. The AJ then found that complainant failed to proffer evidence
which established that it was more likely than not that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ found that the agency had justifiably
based its actions in not selecting complainant upon its articulated
reasons. The agency's final order implemented the AJ's decision.
On appeal, complainant contends that the AJ erred when she did not find
that 1) the agency's basis of its decision upon subjective criteria
was not discriminatory; 2) the agency improperly considered his past
discipline; 3) the agency improperly considered management's personal
impressions of him; and 4) the agency's alleged workload concerns were
not legitimate reasons for its actions.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, regardless of whether a hearing was held.
In order to establish a prima facie case for age discrimination, a
complainant must show that the comparison employee is "substantially
younger" than he is. O'Connor v. Consolidated Coin Caterers Corp.,
519 U.S. 1040 (1996). Once the complainant has done so, the agency
bears the burden of rebutting the prima facie case by setting forth a
legitimate, non-discriminatory reason for its actions. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248 (1981). If the agency establishes such a reason,
the complainant may prevail only by showing, through a preponderance of
the evidence, that the agency's articulated reason is pretextual, either
by persuading the court that the agency's action more likely than not
resulted from discriminatory motives or that the articulated reason is
unworthy of credence. United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711 (1983); May v. United States Postal Service,
EEOC Appeal No. 01853225 (June 11, 1987).
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies and laws. The Commission
initially concurs with the AJ's finding that complainant established a
prima facie case of age discrimination, as the selectees are substantially
younger than he is. We further concur with the AJ's finding that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
In so finding, we note the AJ found that agency management credibly
testified that: (1) neither complainant nor any other ALJ from outside
of Region IX were considered for these positions due to an unexpected
shortage of work; (2) complainant failed to demonstrate to the agency
any hardship or other reason why he deserved preferential consideration
for these positions; (3) complainant's deportment impacted management
negatively; and (4) both positions' ultimate selectees were simply
stronger candidates than was complainant. We further concur with the
AJ's finding that complainant failed to present substantial evidence that
the agency's articulated reasons were a pretext for age discrimination.
In so finding, we note that at the time that the instant claim arose,
an 85 year old individual held a Region IX HOCALJ position, and the
agency appointed a 73 year old individual to serve as a Region IX ALJ.
Investigative File (IF) at 439-40. Additionally, we note management's
contention that all of its past HOCALJ appointees were older than 55
years of age. IF at 538-39. Lastly, we note management's assertion that
an ALJ's length of service to the agency is not in itself an essential
factor in determining whether he or she is worthy of a promotion or
transfer. IF at 581. As a result, we discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including Complainant's contentions on appeal and arguments and evidence
not specifically addressed in this decision, we AFFIRM the AJ's decision.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
July 26, 2004
__________________
Date
1 We note that complainant filed his appeal with the Commission after
the agency did not issue a final agency decision more than forty (40)
days after the issuance of the Administrative Judge's (AJ) decision.
As a result, the Commission will review the AJ's decision.
2 The record reflects that the selectee for the HOCALJ position was 55
years old (D.O.B. 12/14/44), and the selectee for the ALJ position was
48 years old (D.O.B. 10/8/51), while complainant at the time of the
selections was roughly 71 years old.