01A11223
05-21-2002
___________________, Complainant, v. Richard A. Meserve, Chairman, Nuclear Regulatory Commission, Agency.
_____________ v. Nuclear Regulatory Commission
01A11223
May 21, 2002
.
___________________,
Complainant,
v.
Richard A. Meserve,
Chairman,
Nuclear Regulatory Commission,
Agency.
Appeal No. 01A11223
Agency No. NRC 99-16A
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a GG-13, Reactor Engineer at the agency's Region 1 facility.
On February 16, 1999, the agency posted Vacancy Announcement No. 9957008,
for the position of GG-14, Senior Reactor Engineer. Complainant applied
for the position. The record reflects that all application packages
were forwarded to the ratings panel, which consisted of three members
selected by complainant's second line supervisor (S2). The record
also reflects that S2 was not aware that complainant had engaged in
prior protected activity. Of the three panel members, only one (P1),
was aware that complainant had engaged in prior protected activity; a
second rating panel member (P2) was aware that complainant had an EEO
related concern regarding his 1994 performance appraisal but she did
not know that complainant had filed a formal complaint in the matter.
The record evidence shows that each of the panel members reviewed the
applicants' packages separately, comparing them to the ratings criteria,
and assigning a preliminary rating for each factor. The panel then met
to determine the final ratings. The panel members specifically noted
that they could use only the information contained in the applicants'
packages to determine the applicants' ratings and could not rely on their
personal knowledge of any of the applicants. The panel members discussed
each applicant and, if the members' individual ratings were in agreement,
the members discussed the basis for the rating to confirm that they had
applied the ratings criteria accurately. If the members' individual
ratings were not in agreement, the members reviewed the information
in the package and discussed the rating factors until a consensus was
reached for each factor.
The record reflects that complainant was rated a �B� candidate in four of
the five rating factors � engineering knowledge; assessment; communication
and leadership. Complainant was rated as an �A� candidate on one factor
� ability to perform inspections. The letter grades for each ratings
factor were converted to numerical points and averaged to obtain a total
score for each applicant. Any applicant with a score ranging between 2.8
and 3.0 (the highest score obtained) was included on the BQL. The record
establishes that complainant scored 2.2 and was not included on the BQL.
The applicant selected for the position was a White male.
Complainant sought EEO counseling and subsequently filed a formal
complaint on September 2, 1999, alleging that he was discriminated
against on the bases of national origin (Spanish) and reprisal for prior
EEO activity when:
(1) he was eliminated from selection consideration when he failed to make
the best qualified list (BQL) for the GG-14, Reactor Engineer position,
in Region 1, posted February 16, 1999 to March 5, 1999, under Vacancy
Announcement No. 9957008; and
subsequent to filing his formal complaint on September 2, 1999, his
work was scrutinized and meticulously and systematically criticized by
his supervisor (S1: male) and as a result, his summary rating on his
performance appraisal for FY99 was downgraded to Fully Satisfactory
from a summary rating of Excellent for FY 98.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant established a prima
facie case of national origin discrimination. Specifically, the agency
found that complainant: (1) applied and was qualified for the GG-14,
Reactor Engineer position; (2) is a member of a protected class; and (3)
the selectee was a White male. The FAD also concluded that the agency
articulated a legitimate, non-discriminatory reason for its actions.
In particular, the agency found that complainant's knowledge, skills and
abilities as reflected in his application materials were not sufficient
to meet the standards required for an A rating.
The agency also concluded that complainant failed to establish a
prima facie case of reprisal. Specifically, the agency found that
complainant failed to show that relevant officials were aware of his prior
protected activity. The FAD also noted that even assuming, arguendo, that
complainant established a prima facie case of reprisal discrimination, the
agency articulated a legitimate, nondiscriminatory reason for its actions.
The agency further concluded that complainant did not show that any of
the agency's reasons were a pretext for discriminatory animus and/or
retaliatory motive.
In regard to complainant's claim that his performance rating was lowered
based on his national origin, the agency concluded that, assuming
that complainant established a prima facie case of discrimination or
reprisal, the agency articulated legitimate, nondiscriminatory reasons
for its actions. The agency found that complainant did not show that
the agency's reasons were a pretext for discriminatory animus and/or
retaliatory motive.
Complainant makes no new contentions on appeal. The agency requests
that we affirm its FAD.
Although the initial inquiry of discrimination in a discrimination case
usually focuses on whether the complainant has established a prima facie
case, following this order of analysis is unnecessary when the agency
has articulated a legitimate, nondiscriminatory reason for its actions.
See Washington v. Department of the Navy, EEOC Petition No. 03900056 (May
31, 1990). In such cases, the inquiry shifts from whether the complainant
has established a prima facie case to whether s/he has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
After a careful review of the record, we find that the FAD correctly
concluded that the agency did not discriminate against complainant on
the bases of national origin and/or reprisal when he was not selected for
the Reactor Engineer position. In a non-selection case, pretext may be
demonstrated in a number of ways, including a showing that complainant's
qualification are observably superior to those of the selectee.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an
employer has the discretion to choose among equally qualified candidates.
Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). However,
in the instant case, we find that complainant has presented no evidence
that his qualifications were �observably superior� or even equal to the
individual selected for the position.
In finding no discrimination, the FAD relied on the undisputed evidence
regarding the fact that complainant did not sufficiently meet the
standards required for an A rating. The record shows, for example,
that in regard to engineering knowledge, complainant's experience was
limited to a temporary assignment as a resident inspector; thus, he did
not meet the requirement of four years of experience in such a position.
The record evidence also shows that complainant's application did not
demonstrate an understanding of nuclear power plant operations.
The Commission also finds that the FAD correctly concluded that the
agency did not discriminate against complainant on the bases of national
origin and/or reprisal when he received a rating of Fully Successful.
Complainant did not provide sufficient evidence of co-workers that were
rated more favorably by S1 and/or S2. Other than disagreeing with his
rating, complainant presented no evidence that the performance rating
was based on his national origin and/or in reprisal for prior protected
activity. The record shows that complainant erroneously stated in a
report for Peach Bottom that he had a significant finding. In point
of fact, after his supervisors reviewed the report, it was determined
that no such significant finding existed and that such imprecision could
bring discredit to the agency. Accordingly, we find that the agency has
articulated legitimate, nondiscriminatory reasons for its actions and
complainant failed to meet his burden to show that the proffered reasons
were a pretext for discriminatory animus and/or retaliatory motive.
Accordingly, we find that complainant has failed to present sufficient
evidence to show that any of the agency's actions were a pretext for
discriminatory animus or retaliatory motive. Therefore, after a careful
review of the record, including complainant's contentions, and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
May 21, 2002
__________________
Date