05a10632
09-19-2001
Harrison Sherwood, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Harrison Sherwood v. Department of Commerce
05A10632
09-19-01
.
Harrison Sherwood,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Request No. 05A10632
Appeal No. 01A02863
Agency No. 97-55-0219
Hearing No. 100-98-7483X
DECISION
On May 14, 2001, Harrison Sherwood (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Harrison Sherwood v. Donald L. Evans,
Secretary, Department of Commerce, EEOC Appeal No. 01A02863 (March
30, 2001). EEOC regulations provide that the Commission may, in
its discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved a clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices or operation of
the agency. 29 C.F.R. � 1614.405(b). For the reasons set forth below,
the complainant's request is denied.
Complainant claimed discrimination on the basis of age (DOB 1-5-33)
when he was not selected as the Commercial Representative in Dusseldorf,
Germany, in February 1997. An EEOC Administrative Judge (AJ) held a
hearing and issued a decision finding no discrimination. The previous
decision affirmed the AJ's decision and the agency's final action.
Complainant applied for the position at issue, but was not selected in
favor of a younger applicant (47). The agency explained that it chose
the selectee because he had more recent experience with the German economy
and business operations in and around Dusseldorf. Complainant contended
that he was the more qualified candidate and points to the agency's
evaluation of the candidates that ranked him above the selectee. The AJ
found that complainant and the selectee were both qualified candidates and
that the complainant failed to demonstrate that the agency's reasons for
its selection decision were a pretext for age discrimination or that the
statements cited by complainant evidenced age bias on the part of agency
officials. The previous decision also stated that where the candidates
are equally qualified, so long as the agency's decision was not based on
unlawful criteria, i.e., age, the Commission will not second guess the
agency's assessment of the candidates' qualifications for the position.
Complainant has filed a request asserting that he was the more qualified
candidate and that the agency's failure to follow its ranking order
of candidates demonstrated discrimination. In order to merit the
reconsideration of a prior Commission decision, the requesting party
must submit written argument that tends to establish that at least one
of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990).
Applying the shifting burdens of the tripartite analysis set out in
McDonnell Douglas Corporation v. Green, it is complainant's ultimate
burden to persuade the fact finder by a preponderance of the evidence that
the reason offered by the agency was not the true reason for its selection
decision or that the decision was a pretext or sham for discrimination.
411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993). The record herein does not demonstrate that complainant's
qualification were so far superior to the qualifications of the selectee
so as to conclude that the agency's selection decision was based on
prohibited considerations of age, notwithstanding that the agency's
initial evaluation ranked him above the selectee. Brown v. Department
of the Army, EEOC Appeal No. 01970189 (February 25, 2000).
CONCLUSION
After a review of the complainant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the complainant's request fails to meet any
of the criteria of 29 C.F.R. � 1614.405(b), and it is the decision
of the Commission to deny the complainant's request. The decision of
the Commission in EEOC Appeal No. 01A02863 (March 30, 2001) remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
___09-19-01_______________
Date