Kerry S.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Nov 23, 2018

0120172922 (E.E.O.C. Nov. 23, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kerry S.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120172922

Hearing No. 531-2015-00215X

Agency No. 14-0091-HQ-SC

DECISION

On August 29, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 31, 2017 final order concerning an 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.

BACKGROUND

During the period at issue, Complainant worked as a General Engineer, GS-801-15, at the
Agency’s Office of Project Assessment (OPA), Office of Science, Department of Energy (DOE)
Headquarters in Germantown, Maryland.

On September 10, 2014, Complainant filed a formal EEO complaint claiming the Agency
discriminated against her based on race (Asian), national origin (Burma-Myanmar), sex (female),
color (Asian), and age (over 40) when she was not selected for the position of Director, Office of
Project Assessment.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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After the investigation, Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ). The AJ conducted a hearing on December 15, 2015. Following the hearing, the AJ
issued a decision finding no discrimination on the cases of race, national origin, sex and color.2

The AJ based this decision on the following facts developed during the investigation and hearing:

Complainant worked as a General Engineer for 12 years. During the relevant period,
Complainant’s first line supervisor was the Acting Director of Office of Project Assessment and
her second line supervisor was the Deputy Director for Science Programs. Following the former
Director of Office of Project Assessment’s retirement, the Deputy Director appointed the General
Engineer as the Acting Director until the Agency selected the next Director.

On February 10, 2014, the Agency posted a vacancy announcement for the position of Director,
Office of Project Assessment, advertised under Vacancy Announcement Number 14-SEC-SC-HQ-
002. The core functions of the subject position required experience in construction management,
project management, engineering and budget relations.

On March 6, 2014, Complainant submitted her application for the subject position. A three-
member selection panel rated Complainant’s application as “Superior” and referred the application
to the selecting official for an interview. The interview panel consisted of nine members, including
the selecting official. At that time, the selecting official requested and received permission from
Human Resources Specialist to interview six candidates, including Complainant, for the subject
position.

During the week of April 21, 2014, the interview panel conducted interviews lasting approximately
45 minutes with each candidate. The questions asked of each candidate was the same. The selecting
official asked the panel to rank the candidates in order of preference. This preference ranking was,
however, for “informational purposes” only and did not determine the ultimate selection. The
panel ranked the selectee (white, American male), who was the Acting Director of the Office of
Project Assessment, as the top candidate. Complainant was tied with another candidate for second
place.

The Deputy Director for Science Programs (white, European female) was the selecting official for
the position of Director, Office of Project Assessment (OPA). The selecting official asked the
interview panel to provide her “a rank ordering of their candidates. And sometimes I learn some
interview things…in this particular case, three people rose to the top. Two people were eliminated
and one took himself out of consideration because of family issues.”

The selecting official stated that she chose the selectee for the subject position because he was
deemed the best qualified. The selecting official acknowledged she had personal knowledge of
the selectee prior to the selection process because her husband, then the Director at the National

2 The record reflects that during the hearing, Complainant withdrew age as a basis.

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Science Foundation, recruited the selectee to the Physics Division to work underground mine
projects. She stated that the selectee had the longest and most diverse experience with construction
project management in private and public sectors. The selecting official also noted that the selectee
demonstrated extensive knowledge of federal budget and policy processes.

The selecting official stated that, during his interview, the selectee offered fresh views of the
OPA’s role and was the only candidate who articulated a compelling strategic vision for the office.
The selecting official stated that the selectee spoke about the OPA reviews “which go out and
formally assess a project, its cost, its schedule, the technical parameters, and the management.
And so, this can be a very dry process. The review committee comes back and says, ‘you’re on
cost, you’re behind schedule or whatever.’ But [selectee] said was a little different. He said, this
is actually more than just coming back with the results of the review…and I didn’t fully before
that understand that an OPA review can be more than just a dry review. It’s actually a training
process and by going through dozens of these [every] year, you are essentially touching
construction project managers at all of the Department of Energy laboratories.”

Further, the selecting official stated that the selectee was correct that the process of OPA reviews
which trains everybody in the system “to understand the level of excellence that’s required by the
Office of Science. I had never thought about it this way, and when he started talking about this I
said, ‘you know, why hadn’t I thought of that before?’ And very, very few other interview
candidates over the 20 years or so have come up with something like that that said, oh, I never
thought about that.”

The selecting official stated that she did not select Complainant for the subject position because
the selectee was more qualified than her. Specifically, the selecting official stated while
Complainant demonstrated knowledge of DOE project management policies and procedures, she
lacked as much experience in construction project management. The selecting official stated that
she felt that Complainant needed additional experience and “broadening” to assume a higher role
in OPA.

The selecting official acknowledged that during her interview, Complainant did well and
“answered all the questions well, she came prepared with a PowerPoint file that described her own
background and what her vision was and so forth.” The selecting official stated that Complainant’s
interview “did leave a favorable impression with me and the others...But I didn’t have the sense
of, you know, taking a step beyond where we were now into a new era.”

With respect to Complainant’s allegation that the selectee was preselected prior to the
announcement of the vacancy announcement, the selecting official stated that there was no
preselection. The selecting official asserted that the selectee’s Acting Director did not provide him
an advantage in the selection process because he did not occupy the acting position long enough
to make substantial changes or develop supervisory experience.

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The General Engineer (“Panelist 1”) (white, American male) stated that he was one of the interview
panelists. Panelist 1 stated that there was a list of questions that were given to each candidate and
a specific panel member was responsible for asking one question, the same question for all
candidates. Panelist 1 stated that both Complainant and the selectee had experience working in
the OPA “so they knew the ‘ins and outs’ of the office as opposed to the other candidates who
didn’t work directly in that office and weren’t familiar with exactly what the office does. So, they
definitely had the most knowledge.”

Panelist 1 noted that the selectee was nervous while Complainant was very well prepared and had
a good answer to the questions. Panelist 1 further stated that he ranked the selectee higher than
Complainant because of his managerial experience. Panelist 1 stated that the selectee had
“additional management experience in other places, office.”

The Director of Facilities Division on the Advanced Scientific Computing Research Program in
the Office of Science (“Panelist 2”) (white, American female) stated that she was a member of the
interview panel. Panelist 2 stated that during his interview, the selectee was nervous but she did
not view it negatively. Specifically, Panelist 2 stated she “viewed that as [selectee] was really - -
it was really important to him to do well and so he was nervous about that. So, I thought it was
more of a positive than a negative that he really cared about this position.”

Further, Panelist 2 noted that the selectee shared what his vision was for the future, “he was going
to involve education and organizational learning-type things which really stood out to me. And
he also commented that we review the facilities too much and that actually caught - - I had been
planning to do a read team review of a project coming up to make sure that we did well in an
upcoming review. And at that point, I decided that we probably were reviewing our facilities too
much and changed my approach to how we do those.”

Panelist 2 stated that she thought Complainant “performed satisfactorily at her interview.
However, she was the only one of the interviewees that used slides during the interview so one
could not access how she would have done without them.” Panelist 2 stated that she asked
Complainant a question after her slide presentation “but often she would refer back to her slides
for the responses…in my perception it wasn’t as interactive as perhaps the selectee was.”

The Agency, in its final order, adopted the AJ’s finding of no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record.3

3 The witnesses testified by the telephone at the hearing held by the AJ. In Louthen v. U.S. Postal
Service, EEOC Appeal No. 01A44521 (May 17, 2006), the Commission held that the taking of
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Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board,
340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982).
An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing
was held.

Complainant, on appeal, argues that, that AJ’s decision was “not based on substantial evidence,
and the analysis of the administrative judge is incorrect and incomplete, and is not based on the
facts as they were developed in the report of investigation, the discovery preceding the hearing
and the record developed at the evidentiary hearing itself.”

Complainant has offered no persuasive arguments on appeal regarding the AJ’s findings on the
merits. The AJ’s decision as addressed in detail above, is well-reasoned, and the assessment that
the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven
to be pretextual, is abundantly supported by the record, as referenced above. Beyond her bare
assertions, Complainant does not point to evidence of record sufficient to prove that the reasons
proffered were a pretext designed to mask the true discriminatory motivation.

In particular, Complainant has not shown that the alleged disparities in qualifications between her
and the selectee are “of such weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper
v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct.
1195, 1197-1198 (2006). Substantial evidence of record supports that AJ’s conclusions that the
selection was based on the high performance of the selectee at the interview and the fact that the
application package of the selectee more effectively highlighted his strengths and
accomplishments relevant to the position in question.

We AFFIRM the Agency's final order because the AJ’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported by
the record.

telephone testimony requires either a finding of exigent circumstances or a joint and voluntary
request by the parties with their informed consent. When assessing instances of telephonic
testimony, the Commission will determine whether an abuse of discretion has occurred by
considering the totality of the circumstances. The Commission will consider factors such as
whether there were exigent circumstances, whether a party objected to the taking of telephonic
testimony, whether the credibility of any witnesses testifying telephonically is at issue, and the
importance of the testimony given telephonically. Further, where telephonic testimony is
improperly taken, the Commission will scrutinize the evidence of record to determine whether the
error was harmless. Here, we find, after careful review of the record, that no harm resulted from
the taking of telephone testimony from the witnesses.
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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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 (S0610)

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.

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RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 23, 2018
Date