05A11039
04-23-2002
James W. McLemore, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
James W. McLemore v. Department of the Army
05A11039
April 23, 2002
.
James W. McLemore,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Request No. 05A11039
Appeal No. 01984287
Agency No. BXJCF09509F0150
Hearing No. 100-97-7725
DENIAL OF REQUEST FOR RECONSIDERATION
James W. McLemore (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in James W. McLemore v. Department of the Army, EEOC Appeal
No. 01984287 (July 20, 2001). Complainant filed an EEO complaint alleging
that the agency discriminated against him on the bases of race (Negro),
color (black), and age (46) when he was not referred for consideration
for a Supervisory Recreation Specialist position in or about March 1995.
The AJ determined that complainant failed to establish a prima facie case
of race or color discrimination since half of the applicants referred for
consideration were the same race and color as complainant. In addition,
the AJ noted that the majority of non-referred applicants were white.
Moreover, the AJ found no evidence in the record to support an inference
of race or color discrimination.
With respect to complainant's age discrimination claim, the AJ determined
that complainant established a prima facie case of age discrimination
since all the referred applicants were under the age of 40. However,
the AJ found no argument or evidence in the record which would support a
finding that the non-discriminatory reason articulated by the agency was
pretexual. Specifically, the responsible management official explained
that complainant was not referred to the selecting official due to an
administrative error. Specifically, the record shows that complainant
submitted two different applications which were evaluated by two different
personnel specialists. One application was deemed �not qualified� by
a personnel specialist, and for this reason complainant's name was
not included on the referral list dated March 27, 1995. The second
application was deemed �qualified� by a different personnel specialist
and complainant's name was included in an automatic referral list dated
April 20, 1995. However, management selected from the March 27, 1995
referral list which did not include complainant's name.
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).
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.<1> The decision
in EEOC Appeal No. 01984287 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
April 23, 2002
__________________
Date
1 We find nothing in complainant's Request for Reconsideration sufficient
to show that complainant raised an issue of pretext, or otherwise raised
a genuine issue of material fact with respect to his race, color or age
discrimination claims during the investigative process. In addition,
complainant attempts to argue that the AJ erred in rendering his summary
decision because he did not have time to answer the agency's propounded
interrogatories and requests for production of documents. We find
this argument unpersuasive since the agency could have sought summary
judgment without seeking additional information from complainant since
the investigative file was completed prior to complainant's request for
a hearing. Complainant had an opportunity to raise an issue of pretext
well before the hearing stage but failed to do so.