0120110770
02-23-2012
Elisha L. Demerson, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Elisha L. Demerson,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120110770
Agency No. 090119AL
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 13, 2010 final decision concerning
his 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
At the time of events giving rise to this complaint, Complainant worked as
a Nuclear Materials Manager at the Agency’s National Nuclear Security
Administration, Pantex Site Office in Amarillo, Texas. On February 17,
2010, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American),
color (Black), age (58), and reprisal for prior protected EEO activity
under Title VII when: 1) On September 30, 2009, he was not selected
for the position of Assistant Manager for Oversight and Assessment, EN
801/130104/04, Vacancy Number 09-0995-EN-NAT, for which he had applied;
and 2) On November 17, 2009, he received a Fully Meets Expectations
(FME) overall rating on his FY 2009 Performance Evaluation, although he
believes that he should have been rated Significantly Exceeds Expectations
(SEE). Complainant maintains that his previous supervisor rated him
SEE at mid-year, and he would have received a SEE at year-end had his
current supervisor followed Agency requirements for consulting with the
outgoing supervisor.
The record reflects that the position at issue was posted twice.
The record also reflects that Complainant applied each time.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge. Complainant requested
a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency
determined that, even if Complainant could establish a prima facie
case, management had recited legitimate, nondiscriminatory reasons for
its actions. Specifically, the application review and interview panel
members stated that Complainant rated second highest on the consolidated
scoring and was referred for interview. The interview panel then gave
the names in application and interview cumulative order respectively
to the selecting official with the recommendation that the top scoring
individual be selected. While Complainant contends that the initial
application review panel was prejudiced in their finding that the
applications were not qualified for interview and in recommending that
the selecting official re-announce the position, this point is rendered
moot in that Complainant was afforded the opportunity to reapply the
second time.1 And by the second panel's individual affidavits and
Complainant's own affidavit, Complainant rated second among individual
as well as consolidated scoring at the application review stage.
Members of the interview panel stated that Complainant's race, color,
age, and previous EEO activity were not factors in their scoring of the
interviews. The selecting official for the vacancy stated that he took
the recommendation of the interview panel to select the individual who
scored highest on the applications and interviews. The EEO Observer to
the interview process stated that the process was fair and equitable to
all interviewed, including Complainant. The EEO Observer stated that she
was present during all interviews and during all interview deliberations.
Concerning Complainant's performance rating, the Agency noted that its
performance manual makes no statement on a requirement for consultation
among supervisors. The manual specifically states that the departing
supervisor, in the first nine (9) months of the performance cycle,
shall evaluate the employees of the work unit prior to departure. These
appraisals will serve as advisory evaluations for the use of the
supervisor of record at the end of the performance cycle. Complainant's
2009 Performance Evaluation shows that the mid-year performance review
was conducted and signed by the out-going supervisor on May 12, 2009.
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 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 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 United
States 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 Department 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).
On appeal, Complainant mainly challenges the credibility of Agency
witnesses in this matter. However, beyond his bare assertions,
Complainant has not produced evidence to show that the Agency’s
explanations are a pretext for discrimination.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
February 23, 2012
__________________
Date
1 The Agency also notes in its appeal response that Complainant argues
that he was the most qualified for the position during the first selection
process and therefore, should have been selected. In support of this
assertion, Complainant states that the application he submitted for
both the first and second announcement were “virtually the same.”
However, a comparison of Complainant's first and second application
clearly shows that the second application was much more detailed,
provided more examples, and was not virtually the same as the first
application. Moreover, there were different panel members who evaluated
the applications for each announcement, and thus variances in their
ratings are to be expected.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110770
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110770