Debra K. Wierman, Complainant,v.Dr. Dale E. Klein, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity CommissionMay 12, 2009
0120091104 (E.E.O.C. May. 12, 2009)

0120091104

05-12-2009

Debra K. Wierman, Complainant, v. Dr. Dale E. Klein, Chairman, Nuclear Regulatory Commission, Agency.


Debra K. Wierman,

Complainant,

v.

Dr. Dale E. Klein,

Chairman,

Nuclear Regulatory Commission,

Agency.

Appeal No. 0120091104

Agency No. NRC-08-05

DECISION

On December 5, 2008, complainant filed an appeal from the agency's October

31, 2008 final decision concerning her equal employment opportunity (EEO)

complaint alleging employment discrimination in violation of Title VII of

the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is

accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,

the Commission AFFIRMS the agency's final decision.

At the time in question, complainant was not a Federal employee,

but rather an applicant for Federal employment with the agency as a

GG-07/08/09 Mail Services Assistant. In a formal EEO complaint dated

February 7, 2008, complainant alleged that the agency discriminated

against her on the bases of race (White), sex (female), and age (over 40)

when (1) in November 2007, the agency failed to hire her for employment

as a Mail Services Assistant by rescinding its July 2007 job offer.

Later, complainant amended her complaint to add that the agency

discriminated against her when (2) in August 2007, it failed to return

her Official Personnel Folder (OPF) to the National Archives and Records

Administration in a timely manner and cost her employment opportunities

with other Federal agencies. The agency accepted complainant's claims

for investigation.

During the agency investigation, a Division Director (S1) stated that

she selected complainant based on recommendations from the interviewers

for the position. S1 stated that Mail Services positions require

security clearance so complainant's application package was forwarded

to Human Resources (HR), and HR issued an offer letter to complainant

on July 30, 2007. S1 explained that she did not hear any more about

complainant's application until she learned that complainant was charged

with driving under the influence (DUI) around August 2007. S1 stated

that she and the Mail Services Branch Chief (S2) spoke with complainant

during a conference call following her informing HR of the DUI, and were

concerned about her inconsistent explanations and blaming of the police

officer involved. S1 stated that she conferred with HR, Security,

and the Office of General Counsel and determined that the agency had

to rescind the job offer because complainant lacked credibility, the

Mail Services position required driving and almost immediate incumbency,

and success with and the length of time for the security clearance were

questionable. S1 stated that she is unsure if complainant's application

was then forwarded to Security for review. She added that there were

two available positions and one was awarded to another top candidate who

is male. S1 stated that it was her understanding that Security could not

complete complainant's security clearance until the DUI was resolved by

the courts. A Senior HR Specialist (S3) stated that, in September 2007,

she informed complainant that the agency was rescinding the job offer

and complainant asked that she ask S1 to reconsider. S3 stated that S1

finalized her decision in November 2007. As to claim (2), S3 stated that

she requested complainant's Official Personnel Folder to determine her

start date and benefits based on prior government employment and forgot

that she still had the folder. S3 stated that it was returned to NARA

in February 2008 immediately after she learned she still had it.

At the conclusion of the agency investigation, complainant was provided

with a copy of the report of investigation and notice of the right to

request a hearing before an EEOC Administrative Judge (AJ). In accordance

with complainant's request, the agency issued a final decision pursuant

to 29 C.F.R. � 1614.110(b). In its October 31 final decision, the agency

concluded that complainant failed to prove that the agency discriminated

against her as she alleged. The agency found that complainant failed

to establish pretext. The instant appeal from complainant followed,

without subsequent appellate brief.

As this is an appeal from a decision issued without a hearing, pursuant

to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo

review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management

Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that

the de novo standard of review "requires that the Commission examine

the record without regard to the factual and legal determinations of

the previous decision maker," and that the EEOC "review the documents,

statements, and testimony of record, including any timely and relevant

submissions of the parties, and . . . issue its decision based on the

Commission's own assessment of the record and its interpretation of the

law.")

To prevail in a disparate treatment claim such as this, complainant must

satisfy the three-part evidentiary scheme fashioned by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must

generally establish a prima facie case by demonstrating that she was

subjected to an adverse employment action under circumstances that

would support an inference of discrimination. Furnco Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry

may be dispensed with in this case, however, since the agency has

articulated legitimate and nondiscriminatory reasons for its conduct.

See U. S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs

v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of Veterans

Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka

v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).

In the instant matter, we find that complainant failed to present evidence

that the agency's actions were motivated by discriminatory animus toward

her protected classes. We find that complainant failed to show pretext.

Based on a thorough review of the record, we AFFIRM the final agency

decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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

May 12, 2009

__________________

Date

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0120091104

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091104