05A40435
07-29-2004
Jerome Bennett, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Jerome Bennett v. Equal Employment Opportunity Commission
05A40435
July 29, 2004
.
Jerome Bennett,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,
Agency.
Request No. 05A40435
Appeal No. 01A23290
Agency No. 0-0000060-B1
DENIAL OF REQUEST FOR RECONSIDERATION
Jerome Bennett (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Jerome Bennett v. Equal Employment Opportunity Commission,
EEOC Appeal No. 01A23290 (January 23, 2004). 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).
Complainant filed a formal EEO complaint on June 19, 2000, alleging
that the agency had discriminated against him on the bases of race
(African-American), disability (post-traumatic stress disorder, anxiety,
depression, rheumatoid arthritis multiple joints), and age (DOB:
12/24/58) when: (1) he was not referred for an interview or selected
for a GS-1810-7/9, EEO Investigator position;
(2) his reinstatement eligibility as a former civil service employee
and his rights under the Veterans Readjustment Act (VRA) (30 % or more
disabled veteran appointment) were not considered; and (3) his application
was not considered under the competitive process and he was not awarded
a 10-point veteran's preference under Office of Personnel Management
(OPM) standards. Complainant also alleged that the agency's treatment of
Outstanding Scholar Program (OSP) and VRA applicants resulted in review
and referral practices that have a disparate impact based on age.
The EEOC Administrative Judge (AJ) held a hearing in the instant case
and found while complainant established a prima facie case of race and
age discrimination, the agency articulated legitimate, nondiscriminatory
reasons for not selecting him. Further, the AJ found that complainant
failed to establish that he was a qualified individual with a disability
under the Rehabilitation Act. In addition, the AJ further concluded
that complainant did not establish that the agency's application
review and referral practices had disparate impact on the basis of age.
Specifically, the AJ noted that fully half of the selections made included
individuals as old or older than complainant.
The agency's final order implemented the AJ's decision. On appeal,
complainant contended, among other things, that the AJ erred when he
adopted the agency's positions which are not supported by the relevant
substantial evidence. Complainant also contended that the AJ failed
to properly sanction the agency when the administrative officer at the
time, but now retired, refused to testify. The Commission affirmed
the AJ's decision, finding that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory
animus toward complainant's race, age or disability. In his request for
reconsideration, complainant restates the numerous arguments that he made
on appeal before the Commission, and alleges that our previous decision
involved a clearly erroneous interpretation of material fact or law.
However, 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. The decision
in EEOC Appeal No. 01A23290 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
July 29, 2004
__________________
Date