05A20545
07-15-2002
Edward S. Houchin, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Edward S. Houchin v Department of Housing and Urban Development
05A20545
July 15, 2002
.
Edward S. Houchin,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Request No.05A20545
Appeal No. 01994494
Agency Nos. DE-95-03, DE-96-01
Hearing Nos. 320-96-8424X, 320-97-8448X
DENIAL OF REQUEST FOR RECONSIDERATION
Edward S. Houchin (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Edward S. Houchin v. Mel R. Martinez, Secretary,
Department of Housing and Urban Development, EEOC Appeal No. 01994494
(Feb. 14, 2002). 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 contends in his request that he presented �significant
new evidence� on appeal �regarding an on-going pattern and practice
of discrimination and retaliation by the agency.� This new evidence
consisted of allegations that the agency continued to unlawfully
discriminate against him, in the same manner as complained of previously,
by subsequently not selecting him for positions within the agency.
We noted in our prior decision that, as a general matter, we do not
consider new evidence on appeal, see Houchin v. Department of Housing
& Urban Dev., EEOC Appeal No. 01994494, at n.2 (Feb. 14, 2002), and
complainant has not presented in his request for reconsideration any
argument in support of his post-hearing proffer. However, even assuming
for the sake of this request that complainant had shown that admission
of the new evidence on appeal would have been appropriate, the evidence
offered�that he was again not selected for certain positions within
the agency to which he applied�does not, of itself or in conjunction
with the record on appeal, establish that the thirteen complained-of
nonselections at the heart of his original complaints were the result of
unlawful agency discrimination. We recognized in our previous decision
that the agency proffered legitimate, nondiscriminatory reasons for its
nonselection decisions, which complainant failed to prove were pretext for
unlawful discrimination. Complainant, with or without his new evidence,
has not proven his claim that the agency was unlawfully motivated by
a discriminatory animus against his race, sex, color, national origin,
or disability status.
Complainant also renews in his request for reconsideration his claim
that the record on appeal contained sufficient evidence to show that the
decisionmaking process in the complained-of nonselections was tainted
by an incorrect agency analysis of EEOC directives and regulations,
resulting in a selection process which had a disparate impact upon
white males. The AJ addressed this allegation in his decision, finding
that the evidence did not support complainant's claim. In his request
to reconsider, complainant simply renews this claim without showing
how the AJ, or the Commission on appeal, erred in examining the claim.
Accordingly, complainant has not met his burden in this request of
demonstrating that the appellate decision involved a clearly erroneous
interpretation of material fact or law.
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. 01994494 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 15, 2002
Date