Nathanial E.,1 Complainant,v.Jim Bridenstine, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120172122 (E.E.O.C. Dec. 12, 2018)

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

Nathanial E.,1
Complainant,

v.

Jim Bridenstine,
Administrator,
National Aeronautics and Space Administration,
Agency.

Appeal No. 0120172122

Hearing No. 570-2016-00578X

Agency No. NCN-15-HQ-00045

DECISION

On May 30, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 26, 2017, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
to the position of Workforce Planning Specialist, Vacancy Announcement No. HQ15B0012, at the
Agency’s Headquarters.

On June 25, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race, sex, age, disability, and in reprisal for prior protected EEO activity
when:

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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He was not selected for the Workforce Planning Specialist position advertised under
Vacancy Announcement No. HQ15B0012.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ
denied the hearing request on the grounds that Complainant failed to timely file his hearing request.
The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

In its final decision, the Agency noted that when contacted by the investigator, Complainant was
non-responsive to her interrogatories. The Agency noted, instead, Complainant submitted a bevy
of documents that were unrelated to his complaint. The documents provided to the investigator
referenced several incidents and accusations some of which occurred over 20 years ago, and had
nothing to do with the nonselection at issue. After repeated failed attempts by the investigator to
obtain more specific responses from Complainant, the investigation was closed.

The Agency found Complainant did not satisfy his prima facie burden of proof on any of his bases
raised in his complaint. The Agency also proceeded to analyze his complaint as if he met his initial
burden. The Human Resources (HR) Specialist explained that she scored and referred applicants
for the Workforce Planning Specialist position at issue. According to the HR Specialist, the
Agency employs an automated tool called Staffing and Recruiting System (STARS), which sorts
applicants for a given position into rating categories. The three categories were: (a) the 90 category
for highly qualified candidates; (b) the 80 category for well qualified candidates; and (c) the 70
category for minimally qualified candidates. Based on the results of the categorization, those
candidates who were grouped in the 90 and 80 category were deemed eligible for referral. Those
candidates who fell into the 70 category, were typically not referred, unless the candidate was a
Veteran and was eligible for a Veteran’s Preference. According to the HR Specialist,
Complainant’s application was placed in the 70 category by STARS. Therefore, he was not
referred for further evaluation.

The HR Specialist indicated that Complainant’s resume contained none of the specialized
experiences that would have qualified him for the position. Complainant’s resume indicated he
had experience as a computer consultant, a systems development specialist, and a statistical
analyst. None of those experiences or skills were relevant to the position at issue.

The HR Specialist explained that STARS was computer based, and cannot distinguish between
sex, race, age, or prior EEO activity. She stated that even if a candidate were to include
demographic information in their resume, it was not considered by the STARS algorithm. Thus,
there was no nexus between STARS categorization of candidates and the candidates’ race, sex,
age, or prior protected EEO activity.
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The HR Specialist noted the STARS does notate persons with disabilities, but it does not calibrate
qualifications in any different manner for those with or without disabilities.

The Agency noted Complainant provided no perceptible rebuttable statement or documents in
response to management’s legitimate, nondiscriminatory explanation. All the record contained,
was the plethora of incomprehensible documents, cases, statements already provided in support of
his case. These documents failed to address either Complainant’s prima facie burden or his burden
of proof for pretext. The Agency determined Complainant did not establish that the reasons
proffered by management were pretext.

On appeal, Complainant claims he was been subjected to injustice by the Agency and various other
state and federal agencies since the 1980s.

In response to Complainant’s appeal, the Agency argues Complainant has offered no evidence to
demonstrate he was discriminated against as alleged. The Agency notes Complainant’s
submission did not specifically address his nonselection to the positon at issue and why his sex,
race, disability, age, and retaliation were the reasons for his nonselection.

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”).

Upon review, we find the record is adequately developed. We note that on appeal Complainant
does not challenge the Agency’s definition of the claim raised in his complaint. Complainant also
does not challenge the AJ’s dismissal of his hearing request.

In the present case, the Agency articulated a legitimate, nondiscriminatory reason for his
nonselection. Complainant’s application was placed in the 70 category (minimally qualified) by
the Agency’s automated STARS system. The record revealed that applicants in the 70 category
were not reviewed by HR Staff as they were determined not qualified. The only time an applicant
in the 70 category would be referred is if the candidate was a Veteran and was eligible for a
Veteran’s Preference. As Complainant was placed in the 70 category by STARS and did not claim
Veteran’s Preference, he was not referred for further evaluation. Complainant failed to establish
that the Agency’s actions were a pretext for discrimination or retaliation.

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CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.

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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:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 12, 2018
Date