Jerilyn Carr, Complainant,v.Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionApr 17, 2003
01A21330_r (E.E.O.C. Apr. 17, 2003)

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