Orville D.,1 Complainant,v.Kristine L. Svinicki, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity Commission

Apr 11, 2017

0120150334 (E.E.O.C. Apr. 11, 2017)

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

Orville D.,1
Complainant,

v.

Kristine L. Svinicki,
Chairman,
Nuclear Regulatory Commission,
Agency.

Appeal No. 0120150334

Agency No. NRC 14-06

DECISION

On October 27, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s October 2, 2014, final decision concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in violation of 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 finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nuclear Systems
Engineer, GG-801/1301-13, for Region IV (RIV) Office of Regional Administrator (ORA),
Response Coordination Branch (RCB), in Arlington, Texas. Complainant’s positon was also
referred to as Regional Operations Officer (ROO). On July 2, 2013, Complainant was notified
he would be temporarily promoted to GG-14 Senior ROO for a period not to exceed 90 days to
fill in for Employee X who was being deployed to active duty.

During the relevant time, Complainant’s supervisor was the temporary Acting Branch Chief
for the RCB in Region IV (Person A). After receiving notification of Employee X’s
deployment, Person A sought to fill Employee X’s position. Thereafter, from July 10 - 26,
2013, the Agency posted Vacancy Announcement Number R-IV-2013-0008 for a temporary

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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Nuclear Systems Engineer/Scientist, GG-801/1301-14, ROO position, not to exceed two years,
with the option to become permanent without further competition (temporary position). The
Vacancy stated that only Region IV employees were eligible to apply. Complainant applied for
the GG-14 ROO position.

Person A was the Selecting Official for the temporary GG-14 ROO position. The Candidate
Evaluation, Certification and Selection Record (Selection Certificate) contained five
candidates. Two of the candidates were GG-14 reassignment eligible (Candidate 1 and
Candidate 2), one was a GG-14 re-promotion eligible (Complainant), and two were on the best
qualified candidates listing (the ultimate Selectee and Candidate 5). Person A reviewed the
application packages for all five candidates and rated them based on the response in their
applications. Additionally, Person A conducted interviews with all five candidates. Person A
asked each candidate the same nine interview questions. The interview questions focused on
the candidate’s ability to collect, assess, and communicate complex information, often in
stressful environments, as well as on the subjects related to teamwork and working with
individuals with diverse style and backgrounds. The record reveals the application response
questions weighting constituted 35% of the total scoring and the interview responses weighting
constituted 65% of the total scoring. The Selectee received the highest score on the
interviews. On September 19, 2013, Person A informed the Selectee that he was chosen for
the position. On the same day, Person A informed Complainant that he was not selected for
the position.

Ultimately, Complainant assumed a permanent Nuclear Systems Engineer, GG-14 position on
March 9, 2014 (permanent GG-14 position). The permanent position is the same description,
series, and grade as the temporary position for which Complainant was not selected.

On January 14, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of age (56) when:

On September 19, 2013, Complainant was notified by Person A, Acting Chief,
Response Coordination Branch (RCB), Office of the Regional Administrator (ORA),
Region IV, that he was not selected for the position of Nuclear Systems
Engineer/Scientist, GG801/1301-14, under Vacancy Announcement Number R-IV-
2013-0008, and a younger person was selected.

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). In accordance with Complainant’s
request, 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 found Complainant established a prima facie case of age
discrimination. The Agency articulated legitimate, nondiscriminatory reasons for selecting the
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Selectee. Person A stated that he chose the Selectee based on the information submitted in his
application and on his responses to the nine interview questions. In elaborating on why
Complainant’s interview question responses were rated lower than those of the Selectee,
Person A stated that Complainant provided short, somewhat incomplete answers, and he had to
ask Complainant follow-up questions to clarify or expound on several of Complainant’s
responses. Person A stated he had to prompt Complainant more than the other interviewees.
The Agency noted the record showed that the Selectee provided more detail regarding his
specific experiences both in the Navy and at the Agency which demonstrated his ability to
handle stressful situations and written/verbal communication skills, in accordance with KSAs
four and five. The Agency noted that Person A’s interview notes contained in the record also
support his contention that the Selectee provided more thorough and detailed responses, and
that the Selectee explained the impact on outcomes relevant to Questions 2-6 and 8.

The Agency determined Complainant did not demonstrate that its stated reason was a pretext
for discrimination based on age. The Agency noted Complainant claimed he should have been
selected because he was the only candidate who was formally qualified to perform the duties of
the position and because his responses to the application and interview questions demonstrated
his technical background, experience, and ability to perform the duties of the position. The
Agency stated that contrary to Complainant’s assertion, Person A explained, and the record
showed, that in comparing Complainant’s application and interview question responses with
that of the Selectee, Complainant provided a less-complete demonstration of his knowledge of
Agency functions and ability to work with a wide range of individuals than the Selectee. The
Agency noted that Complainant’s responses included limited detail and failed to explain how he
accomplished activities and how his KSAs positively impacted outcomes. The Agency noted
that Person A stated that Complainant’s application responses were similar to the information
included in his resume, covering positions he had encumbered and contained limited
descriptions of his functions in the positions related to the specific KSA questions. The
Agency found that Complainant admitted that he left out detail in his application question
responses because, during his MBA degree studies, he was taught that application answers
should be brief and to leave gaps in details for the interview.

The Agency explained in contrast, Person A determined that the Selectee provided more details
and more comprehensive and complete responses in both his application and interview question
responses, focusing on how his KSAs and actions positively impacted the outcome of the
situations. The Agency stated the Selectee provided more clear and focused answers. The
Agency stated the Selectee’s responses included situations, tasks at hand, his actions to resolve
each, and clear outcomes. The Agency noted the Selectee’s strongest answers pertained to
team work and working in stressful situations, which were two attributes Person A sought in
the ideal candidate.

The Agency acknowledged Complainant had worked for the RCB longer than the Selectee.
The Agency stated that more experience does not necessarily make an individual more
qualified to meet the needs of the operation.

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The Agency noted Complainant claimed the Selectee did not have the security clearance
required to perform the tasks of the temporary GG-14 ROO position at the time of his
selection. Person A stated that although the prior supervisor did not follow through on the
Selectee’s security clearance upgrade, Person A timely resolved the issue while he was Acting
Chief of the RCB. The Agency noted that the position description for the temporary GG-14
ROO position and the Vacancy Announcement do not state that the selectee must have the
required security clearance at the time of selection.

The Agency noted Complainant claimed he was the best qualified candidate because he was
formally qualified as both a ROO and a HOO (Headquarters Operations Officer). However,
the Agency stated that neither ROO nor HOO qualifications were required in the position
description or in the Vacancy Announcement for the temporary GG-14 ROO position. The
Agency also stated that the position descriptions were neither outdated nor wrong. The
Agency recognized while the GG-13 positions within the RCB were later converted to GG-14
positions, the position descriptions have not changed since Complainant’s non-selection.

The Agency noted Complainant also cited his designation as an “excepted status” employee
during the government shutdown that took place in October 2013. However, the Agency noted
the government shutdown occurred after the September 2013 non-selection and thus, could not
have been considered in the evaluation of candidates for the temporary ROO position. The
Agency also noted that Complainant’s status as “excepted” during the government shutdown
did not indicate that other employees were not qualified for the position as nothing in the
vacancy announcement or position descriptions mandates that the individual encumbering the
position must or will be deemed as “excepted” in the event of a government shutdown.

The Agency noted that Person A affirmed that when he notified Complainant of his non-
selection, he stated that Complainant “didn’t want it bad enough.” The Agency noted that
Person A explained that in contrast to Complainant’s interview, the Selectee provided, without
prompting or need for follow up questioning, more detailed responses demonstrating how his
actions positively impacted outcomes. The Agency found no evidence to support
Complainant’s argument that Person A’s comment evidenced age discrimination.

The Agency noted that Complainant argued that Person A should have given greater weight to
his personal knowledge of his background and accomplishments. The Agency noted Person A
made it clear that he intended to make the decision as if he did not know the candidates, and
thus would rely on the application materials and answers to the interview questions to make the
selection.

Finally, the Agency noted that Complainant stated Person A was aware of his age based on
their discussions of Complainant’s ability to retire given his age. The Agency stated that
knowledge of a complainant’s age is, without more, insufficient to establish pretext. The
Agency determined Complainant did not show that his non-selection was based on his age.

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The Agency decision also noted that Complainant alleged that the ADR process was “corrupt.”
The Agency noted that the Office of Small Business and Civil Rights (SBCR) investigated
Complainant’s allegation as a “spin-off” complaint and issued a determination on March 5,
2014. The record reveals the Agency determined there was no evidence to sustain an
allegation of corruption within the ADR process. The final decision noted the March 5, 2014
determination was incorporated by reference into its final decision.

Complainant did not submit a statement or brief in support of his 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. (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”).

As Complainant did not raise the issue of his spin-off complaint on appeal, the Commission
will not address that allegation on appeal.

Claims of disparate treatment are examined under the tripartite analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found,
for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S.
567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 715-16 (1983).

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In the present case, Complainant established a prima facie of age discrimination because he is
over 40, was qualified for and denied a position at the Agency, and a younger employee was
selected.

In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its action.
The Agency chose the Selectee to fill the position based on his more detailed application and
interview responses. Complainant has not shown that his qualifications were plainly superior
to those of the Selectee. Upon review, we find Complainant failed to establish by a
preponderance of evidence that the Agency’s actions were a pretext for discrimination based on
his age.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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
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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 (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

April 11, 2017
Date