Complainant,v.Cheryl A. LaFleur, Acting Chairman, Federal Energy Regulatory Commission, Agency.

Equal Employment Opportunity Commission

Sep 4, 2014

0120131431 (E.E.O.C. Sep. 4, 2014)

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

Complainant,

v.

Cheryl A. LaFleur,
Acting Chairman,
Federal Energy Regulatory Commission,
Agency.

Appeal No. 0120131431

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated February1,
2013, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final
decision finding of no discrimination.

BACKGROUND
In his complaint, dated August 16, 2010, Complainant alleged discrimination based on race
(Asian), national origin (Taiwanese-American), sex (male), and age (over 40) when he was not
selected for the position of Environmental Protection Specialist (Headwater Benefits Lead),
GS-0028-14/14. After completion of the investigation of the complaint, Complainant initially
requested a hearing but later withdrew such and requested a final Agency decision without a
hearing. The Agency then issued its final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.

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. (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”).
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After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period at issue, Complainant
was employed as a Civil Engineer, GS-0810-13, at the Agency’s Engineering and Jurisdiction
Branch, Division of Hydropower Administration and Compliance. A Selecting Official (SO),
who was also Complainant’s first level supervisor, stated that he received the certificate of
eligible candidates from the Human Resources Office and it had two names, Complainant and a
selectee (female, white, and 26 years old), an Environmental Protection Specialist, GS-13.
The SO indicated that he convened two senior staff members in the division to review the
applications and score them under the four criteria which correspond to the knowledge, skills,
and abilities. The SO stated that he selected a selectee for the position at issue, i.e., the
Environmental Protection Specialist, GS-14, because the selectee received a higher score of 35
whereas Complainant received 32 from the reviewers. The SO also indicated that
Complainant’s experience with headwater benefits analysis was not current as he stopped
working on it twenty years ago in the 1980, whereas, the selectee had current and relevant
headwater benefits work experience, including the leadership and communication skills in that
area. The SO stated that the selectee also had pertinent experience with evaluating
hydrokinetic power projects and regulatory issues and Complainant did not have that
experience.

Complainant claimed that he had 28 years of relevant experience and held a PhD degree in
Engineering whereas the selectee had a BS degree in Integrated Science and Technology.
However, the Agency stated that the position at issue did not require an engineering degree or
a PhD degree or numerous years of service. The record indicates that the selectee had been
employed at the Agency since July 2002, and was transferred to her Environmental Protection
Specialist position in October 2007. After a review of the record, we find that Complainant
failed to show that the Agency’s articulated reasons were a mere pretext for discrimination.
Furthermore, Complainant failed to show that his qualifications for the position were plainly
superior to the selectee’s qualifications or that the Agency’s action was motivated by
discrimination. See Wasser v. Department of Labor

, EEOC Request No. 05940058
(November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

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:

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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
0120131431

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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

Date
September 4, 2014