0120103494
01-07-2011
Theresa L. Apodaca, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Theresa L. Apodaca,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120103494
Agency No. 09-0081-AL
DECISION
On July 14, 2010, Complainant filed an appeal from the Agency's July 6,
2010, 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. The Commission deems the appeal timely and accepts it pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly determined that
Complainant did not establish that the Agency discriminated against her
on the basis of reprisal when she was not selected for the position
of Lead Information Program Specialist, NQ-0301-03/03, under Vacancy
Announcement 09-0019-NNSASC.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Industrial Property Management Specialist, GS-1103-12/Pay Band
NQ-1103-02, in the Office of Business Services, Field Acquisition
Department, at the Agency's National Nuclear Security Administration
Service Center (the facility) in Albuquerque, New Mexico.
On September 15, 2009, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the basis of reprisal for prior
protected EEO activity (arising under Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act of 1967, and Section
501 of the Rehabilitation Act of 1973) when, on April 9, 2009, she was
notified that she was not selected for NNSA Vacancy 09-0019-NNSASC,
Lead Information Program Specialist, NQ-0301-03/03. The position was
located in the Office of Public Affairs at the facility, and the selectee
would function as a team leader for a team which provided support for
the Freedom of Information Act (FOIA) and Privacy Act (PA) programs.
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 EEOC Administrative Judge (AJ). In accordance
with Complainant's request, the Agency issued a final decision on the
record pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
In its final decision, the Agency found that Complainant had previously
filed EEO complaints against the Agency on the bases of national origin,
age, physical disability, and retaliation for engaging in EEO activity.
Complainant applied for the position and made the list of certified
eligibles. She was interviewed by an interview panel consisting of four
voting members; the panel also included two non-voting members, an EEO
Observer and an observer from the Office of Human Capital Management
Services. Two other applicants were also interviewed, one of which was
the selectee.
The Agency found that Complainant had established a prima facie
case of retaliation, in that she had prior protected EEO activity,
the selecting official was aware of Complainant's prior EEO activity
(as a named responsible management official), and Complainant was not
selected for the position. Complainant's prior EEO activity was close in
time to the non-selection. However, the Agency concluded that there were
legitimate, nondiscriminatory reasons for Complainant's non-selection.
The process for filling the vacancy consisted of a three-part process,
including an electronic rating and ranking of the applications, an
application panel rating and ranking, and then the interview panel rating
and ranking. Following the completion of the process, Complainant was
ranked third among the candidates. Testimony of the interview panel
members indicated that the selectee was considered more qualified than
Complainant, and that in her interview, the selectee gave more complete
and knowledgeable answers and demonstrated a "greater professional grasp
of the skills required for the position." Although Complainant attempted
to demonstrate that those reasons were pretext for discrimination by
asserting that she was the superior candidate, by virtue of her years of
experience in the FOIA/PA programs (a position she held until May 2007),
the Agency concluded that the panel members' evaluation of the candidates
carried more weight than "Complainant's perception of her qualification."
The Agency found that Complainant's non-selection was not motivated by
retaliation for her previous EEO activity.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions in support of her appeal.
The Agency did not submit any statement in opposition to Complainant's
appeal.
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. (Nov. 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). 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, nondiscriminatory 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,
143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We find that there is evidence in the record to support the Agency's
determination that Complainant established a prima facie case of
reprisal discrimination. Complainant can establish a prima facie case
of reprisal by showing that: (1) she engaged in protected activity;
(2) the Agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the Agency; and (4) a nexus
exists between the protected activity and the adverse treatment. Whitmire
v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Complainant had previous EEO activity, the selecting official was aware
of the previous activity in that she was the named responsible management
official, Complainant was not selected for the position in question,
and the non-selection was close in time to Complainant's previous EEO
complaints.1
However, the Agency offered legitimate, nondiscriminatory reasons for
its decision to choose the selectee for the position of Lead Information
Program Specialist. The interview panel members testified that the
selectee demonstrated a clearer grasp of the position and professional
responsibilities, and that Complainant did not provide specific examples
in response to some of the interview questions. The panel unanimously
concluded that the selectee was the superior candidate. The record
contains the contemporaneous notes from the interview panelists for
each of the three interviewees. Uniformly, the notes taken regarding
the selectee's responses to the questions asked in the interview (each
interviewee being asked the same questions) indicated more complete
answers, and the assessment of the panel members of the quality of
each answer.
Complainant asserted that she was the superior candidate for the position
in that she worked in the Office of Public Affairs for 16 years, and had
experience performing similar duties to those of the position. We note
that the selectee also worked in the Office of Public Affairs and had 14
years of experience in FOIA and PA matters. We decline to substitute our
judgment as to the relative merits of each candidate for the judgment
of the interview panel members and that of the selecting official.
We conclude that Complainant failed to show that the Agency's reasons
for its actions were pretext for discrimination.
CONCLUSION
Based on a thorough review of the record and, in the absence of
contentions on appeal, we AFFIRM the Agency's final decision and its
finding of no discrimination.
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
January 7, 2011
Date
1 Complainant's previous EEO complaints were adjudicated by the Commission
on appeal in Apodaca v. Dep't of Energy, EEOC Appeal No. 0120092448
(Oct. 28, 2010), and a subsequent complaint was the subject of Apodaca
v. Dep't of Energy, EEOC Appeal No. 0120103041 (Nov. 3, 2010).
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0120103494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103494