01A21330_r
04-17-2003
Jerilyn Carr, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Jerilyn Carr v. Department of Housing and Urban Development
01A21330
April 17, 2003
.
Jerilyn Carr,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A21330
Agency No. FW-00-01
Hearing No. 330-A0-8203X
DECISION
Complainant appeals to the Commission from the agency's final order
dated February 13, 2002, finding no discrimination. Complainant alleged
that the agency had discriminated against her on the bases of race
(African-American), and age (over 40), and reprisal for prior EEO activity
when, on June 16, 1999, she was not selected for the position of Project
Manager Trainee. The agency investigated complainant's complaint and
thereafter referred the matter to an EEOC Administrative Judge (AJ),
who held a hearing and issued a decision finding no discrimination on
October 10, 2001. The agency issued its final order on February 13,
2002, in which it adopted the AJ's decision.
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).
The AJ found that all seven members of the panel that conducted the
interviews had ranked the selectees as the two top candidates, and
had recommended to the selecting official that the selectees be chosen.
The panel members testified that they ranked the two selectees at the top
based on the selectees' responses to the interview questions, and that
they each ranked complainant somewhere in the middle. While complainant
was rated higher on her application package than the selectees by the
personnel office in its initial determination of the best-qualified
candidates, the AJ found that all candidates who made the best-qualified
list were considered equally qualified, and that the interview panelists
never saw the candidates' score sheets from the personnel office. The AJ
found that the agency had articulated a legitimate and nondiscriminatory
reason for choosing the selectees over complainant, and that complainant
failed to show that this reason was a pretext for discrimination.
The Commission finds that complainant has failed to show that its failure
to select complainant for the Project Manager Trainee position in June
1999 was in any way motivated by discrimination.
The agency's decision finding no discrimination is therefore AFFIRMED.
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 (S0900)
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 (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
April 17, 2003
__________________
Date