05A30437
11-14-2003
Mary J. Wilkerson, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Mary J. Wilkerson v. Department of Housing and Urban Development
05A30437
November 14, 2003
.
Mary J. Wilkerson,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Request No. 05A30437
Appeal No. 01A15356
Agency No. CH-98-11
Hearing No. 210-AX-6262X
DENIAL OF REQUEST FOR RECONSIDERATION
Mary J. Wilkerson (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
its decision in Mary J. Wilkerson v. Department of Housing and Urban
Development, EEOC Appeal No. 01A15356 (Nov. 12, 2003). EEOC Regulations
provide that the Commission may, in its discretion, 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 her complaint, the complainant alleged (in relevant part) that she had
been subjected to unlawful discrimination, in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), 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 her race (Black),
sex, and age (date of birth November 26, 1938) when, in or about March,
1998, she was not selected for one of seven Community Builder/Community
Resource positions open in Chicago, Illinois. After a hearing before
an EEOC Administrative Judge (AJ), the AJ entered a decision finding
no discrimination. The AJ found that despite establishing a prima
facie case as to her claim, and despite evidence of irregularities in
the selection process, the complainant failed to establish that the
agency's articulated reasons for her nonselection were merely pretext
for unlawful discrimination. On appeal, the Commission upheld the
AJ's decision, finding that the decision was supported by substantial
evidence in the record�that is, such relevant evidence as a reasonable
mind might accept as adequate to support the conclusion. See EEOC
Management Directive 110, Ch. 9, p. 16 (Nov. 9, 1999), available
at http://www.eeoc.gov/federal/md110/chapter9.html (describing the
substantial evidence standard of review).
After a review of complainant's request for reconsideration, 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. While the complainant
argues that discrepancies in testimony by one of the management officials,
the aforementioned irregularities in the selection process, and a
lack of documentation from that process, are sufficient to establish
pretext, we disagree that this argument identifies any clear error in
the AJ's decision. In claims presented, as here, under either Title
VII or the ADEA, it is the complainant's burden to prove that she
was subjected to unlawful discrimination, and, while a finder of fact
(here, the AJ) may infer the ultimate fact of discrimination from the
falsity of the employer's explanation, such an inference is permissible,
not mandatory. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143, 147 (2000). It is not enough, however, that the finder of fact
simply disbelieve the employer�rather, �the factfinder must believe the
[complainant's] explanation of intentional discrimination.� Id. at 147
(citation omitted). Here, the AJ noted the evidentiary problems with
the employer's explanation for its selection decision, and nevertheless
determined that the complainant had failed to carry her ultimate burden
of proof. As noted in the Commission's previous decision, the AJ's
decision on this ultimate issue was supported by substantial evidence
in the record, and was therefore entitled to affirmance on appeal.
The complainant's arguments do not establish for the purposes of this
request that the Commission's previous decision involved a clearly
erroneous interpretation of material fact or law, or that it will
have a substantial impact on the policies, practices, or operations
of the agency. Accordingly, the decision in EEOC Appeal No. 01A15356
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
November 14, 2003
Date