Phyllis F.,1 Complainant,v.John J. Sullivan, Acting Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Apr 11, 2018

0120161135 (E.E.O.C. Apr. 11, 2018)

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

Phyllis F.,1
Complainant,

v.

John J. Sullivan,
Acting Secretary,
Department of State,
Agency.

Appeal No. 0120161135

Agency No. DOS011815

DECISION

On February 18, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 19, 2016, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-14 Interior
Designer Design Coordinator at the Agency’s Overseas Building Operations facility in
Arlington, Virginia. The Agency sought to fill a GS-15 Interior Designer Supervisory position
and published two vacancy announcements for the same position; one for the public and the
other for Merit Promotion government-wide. Both announcements mentioned the dual
publication and encouraged federal applicants to apply under both. Neither vacancy
announcement required any specific educational degree or specialization. Complainant applied
under both announcements and was placed on the Certificate of Eligibles for both. The Agency
selected a White, female in her mid-50s.

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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On May 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), national origin (African-American), color
(black), and age (42) when:

1. On November 10, 2014, she was not selected or interviewed after making the
official certification for GS-15 Interior Designer Supervisory position (Job
announcement number HRSC/OB0-2015-0001); and
2. On November 10, 2014, she was not selected or interviewed after making the
official certification for GS-15 Interior Designer Supervisory position (Job
announcement number HRSC/OB0-2015·0015).

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination.

The Agency found that Complainant failed to establish that its reasons for her nonselection were
a pretext for discrimination. The Agency found that the Human Resources Division Chief had all
personal information redacted from the applications of those on the Certificate of Eligibles
before they were given to the Interview Panel. The Interview Panel determined who received an
interview based on these redacted documents and, after selecting who would be interviewed,
were informed of the names of the candidates. Complainant was not selected for an interview.
The Agency issued a decision finding no discrimination.

ANALYSIS AND FINDINGS

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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 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”).

Complainant does not refute the Agency’s assertion that the names of the interviewees were
redacted from the applications and that the Interview Panel had no knowledge of who they
selected for interviews. Complainant’s assertion that no African-American or black candidates
were interviewed is negated by evidence that an African-American candidate was interviewed
for the position. We find that Complainant failed to establish that the Agency’s legitimate,
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nondiscriminatory reasons were a pretext for discrimination. Complainant failed to show that
discrimination motivated the Agency’s selection.

CONCLUSION

The Commission AFFIRMS the Agency’s decision finding no discrimination.

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).

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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.
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

April 11, 2018
Date