0520110577
12-16-2011
Tera S. Yoon, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Tera S. Yoon,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520110577
Appeal No. 0120093297
Agency No. ARHMPHRYS08MAY02141
DENIAL
Complainant timely requested reconsideration of the decision in Tera
S. Yoon v. Department of the Army, EEOC Appeal No. 0120093297 (May
27, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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).
The previous decision affirmed the Agency’s finding of no discrimination
in Complainant’s complaint in which he had alleged discrimination
based on national origin and age when he was not hired for a position
with the Agency. It found that the Agency had cancelled the vacancy
announcement in order to place a Senior Service College graduate into
the position, pursuant to an Agency program for developing civilian
leadership candidates. The decision concluded that Complainant had not
shown the Agency’s reasons to be pretext for discrimination.
In his request for reconsideration, Complainant argues that the Agency
had not disproven his prima facie case, and had not shown that it had
followed its own policies and practices in placing the Senior Service
College graduate into the position. Complainant argues that this failure
should dictate a finding in his favor. In its brief, the Agency urges
the Commission to deny Complainant’s request for reconsideration.
We find that Complainant has not shown that the previous decision
involved a clearly erroneous interpretation of material fact or law,
or that it would have a substantial impact on the policies, practices or
operations of the Agency. Complainant misunderstands the burden-shifting
framework contained in the line of cases growing out of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The Agency’s burden is merely
to articulate a legitimate, nondiscriminatory reason. It does not have
to disprove Complainant’s prima facie case. Rather Complainant is
required to show that the Agency’s articulated reasons are unworthy of
belief and are a pretext for discrimination. We find that Complainant
has not done so.
After reviewing 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. 0120093297 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 16, 2011
Date
2
0520110577
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110577