Judge loses discrimination argument at Fourth Circuit

RICHMOND, Va. – An administrative law judge who alleged his suspension for making false entries on time sheets was because of his race and age has failed on his appeal to the U.S. Court of Appeals for the Fourth Circuit. The case came to the Fourth Circuit on appeal from the United States District Court for the Southern District of West Virginia. Judges Paul V. Niemeyer, Dennis W. Shedd and G. Steven Agee issued the per curiam opinion on Dec. 27. Sixty-nine year old African-American Administrative Law Judge Algernon W. Tinsley was suspended by the Social Security Administration, Office of Disability Adjudication and Review in Huntington in March 2008. He was alleged to have made false entries on the SSA’s Serial Time and Attendance Rosters, known as “time sheets," on four separate occasions. He challenged the 30-day suspension before the Merit Systems Protection Board, alleging that he was treated in a disparate manner because of his race and age. Tinsley also raised an affirmative “whistleblower” defense alleging that his suspension was retaliation for making “certain disclosures to the Office of the Inspector General against the SSA.” After a hearing in August 2008, a MSPB administrative law judge upheld Tinsley’s suspension for good cause, finding the “Tinsley had ‘failed to establish that he was treated differently based on age or race.’” The judge also found that “there simply was no evidence” supporting Tinsley’s Whistleblower Protection Act claims. According to the opinion, “At the hearing, the SSA called three witnesses, all of whose testimony was uncontested. Tinsley called no witnesses and did not testify, asserting his Fifth Amendment right against self-incrimination.” Tinsley filed a complaint with the Southern District of West Virginia after exhausting his administrative remedies. He again raised race and age discrimination, along with the whistleblower action against the SSA. The district court granted summary judgment to SSA on each of the issues and Tinsley appealed to the Fourth Circuit. “We conclude that the district court properly granted summary judgment to the SSA on Tinsley’s race and age discrimination claims. Tinsley has failed to demonstrate a prima facie case of discriminatory discipline based on his thirty-day suspension," the opinion says. “Tinsley cannot show that any comparable employee was treated differently based on race. Nor can he show that anyone outside the protected age class was treated differently. “Turning to Tinsley’s whistleblower claim, we conclude that the district court properly granted summary judgment to the SSA and denied summary judgment to Tinsley. “Tinsley has presented no evidence to support his claim of discrimination based on protections afforded by the Whistleblower Protection Act. Tinsley waived his right to testify about his whistleblower affirmative defense when he asserted his Fifth Amendment privilege at his MSPB deposition and the administrative hearing. “At the hearing, Tinsley presented no witnesses on his behalf, and his counsel made no mention of the whistleblower claim during closing argument. “Accordingly, we affirm the judgment of the district court.”

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