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
4
0120091104