Vickie P., Complainant,v.Dr. Ernest Moniz, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120143047 (E.E.O.C. Feb. 25, 2016)

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

Vickie P.,
Complainant,

v.

Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120143047

Agency No. 13-0118-OR

DECISION

On September 8, 2014, Complainant filed an appeal from the Agency’s August 8, 2014, 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 General Engineer at
the Agency’s Oak Ridge Office of Environmental Management in Oak Ridge, Tennessee. On
November 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of her sex (female) and age (50) when on or about August 6, 2013,
Complainant learned that management did not select her for the position of Program Analyst
(retitled as Executive Officer), under vacancy announcement number 13-MMOR-MP-3619.

At the conclusion of 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
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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that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On
appeal, Complainant reiterates her contention that she was the best qualified candidate for the
position at issue and that the Agency subjected her to unlawful 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”).

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially 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). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411
U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-
discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of sex and
age discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for
its actions. The record shows that Complainant applied for the position of Executive Officer and
was among the nine applicants interviewed for the position. The interviews were conducted by a
three-member interview panel, and the panel members asked each of the applicants the same set
of nine questions. At the conclusion of the interview process, the panel members compared their
individual scores of each candidate’s responses to the questions, and the candidates with the top
three overall scores were recommended to the selecting official (SO). Complainant was not
among the candidates with the top three scores following the interviews and was, therefore, not
selected for the position at issue.

Although Complainant contends that her qualifications were clearly superior to those of the
selectee, we do not find that the evidence of record supports this contention. Specifically, the SO
stated that the position was reorganized prior to being announced, with greater emphasis being
placed on public affairs and external communications, and less on human resources
responsibilities. Additionally, the panel members stated that although Complainant had excellent

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technical experience, she did not have much recent relevant experience at the management level.
In contrast, the panel members stated that the selectee had extensive public affairs experience,
having worked with television, newspapers, and various other public media forums, and that he
gave much more comprehensive answers to the interview questions than Complainant. Finally,
the SO stated that the selectee had many valuable contacts with the media and the local
community, he had a demonstrated ability to keep his composure in high stress situations, and
had proven his ability to represent the Agency “to the media, high-ranking officials and
stakeholders, and other members of the public.” We find that Complainant failed to show that
her qualifications for the position at issue were clearly superior to those of the selectee or that the
Agency’s articulated reasons for its actions were pretextual.

CONCLUSION

Based on the foregoing, we AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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), 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, 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).

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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:

______________________________ C
Carlton M. Hadden, Director
Office of Federal Operations

February 25, 2016
Date