Abou-Bakr K. Ibrahim, Complainant,v.Richard A. Meserve, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity CommissionFeb 25, 2004
01A40211_r (E.E.O.C. Feb. 25, 2004)

01A40211_r

02-25-2004

Abou-Bakr K. Ibrahim, Complainant, v. Richard A. Meserve, Chairman, Nuclear Regulatory Commission, Agency.


Abou-Bakr K. Ibrahim v. Nuclear Regulatory Commission

01A40211

February 25, 2004

.

Abou-Bakr K. Ibrahim,

Complainant,

v.

Richard A. Meserve,

Chairman,

Nuclear Regulatory Commission,

Agency.

Appeal No. 01A40211

Agency Nos. NRC-02-10 & NRC-03-02

Hearing No. 120-2003-00178X

DECISION

Complainant filed an appeal with this Commission concerning his

complaint of unlawful employment discrimination. In the first complaint

(Agency No. NRC-02-10), complainant alleges discrimination on the

bases of national origin (Egyptian), age (date of birth: April 15,

1938) and reprisal for prior EEO activity when he was not selected

for the position of Senior Staff Engineer/Scientist, GG-15 position

in the Advisory Committee on Reactor Safeguards/Advisory Committee

on Nuclear Waste (ACRS/ACNW), under Vacancy Announcement No. 0213001.

In the second complaint, (Agency No. NRC-03-02), complainant alleges

discrimination on the bases of national origin (Egyptian), age (date

of birth: April 15, 1938) and reprisal for prior EEO activity when he

was not selected for the position of Senior Staff Engineer/Scientist,

GG-801/1301-15 ACRS/ACNW under Vacancy Announcement 0213006.

On August 15, 2003, an EEOC Administrative Judge (AJ) issued a decision

without a hearing finding that there was no genuine issue of material

fact in dispute, and concluded that complainant had not been discriminated

against. Specifically, the AJ found that the agency presented legitimate,

nondiscriminatory reasons for its actions, which complainant failed

to rebut.

On September 17, 2003, the agency issued a decision finding no

discrimination. The agency fully implemented the AJ's decision.

Thereafter, complainant filed the instant appeal.

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the

summary judgment procedure set forth in Rule 56 of the Federal Rules of

Civil Procedure. The U.S. Supreme Court has held that summary judgment

is appropriate where a court determines that, given the substantive

legal and evidentiary standards that apply to the case, there exists

no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,

a court's function is not to weigh the evidence but rather to determine

whether there are genuine issues for trial. Id. at 249. The evidence of

the non-moving party must be believed at the summary judgment stage and

all justifiable inferences must be drawn in the non-moving party's favor.

Id. at 255. An issue of fact is "genuine" if the evidence is such that

a reasonable fact finder could find in favor of the non-moving party.

Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital

Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"

if it has the potential to affect the outcome of the case. If a case

can only be resolved by weighing conflicting evidence, summary judgment

is not appropriate. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

We find that the agency has articulated a legitimate, nondiscriminatory

reason for the nonselections. Regarding Agency No. NRC-02-10, the

Associate Director stated that he selected the selectee for the position

because of his wider based experience and comprehensive knowledge of

high-level radioactive waste management, which included such issues as

Site-Specific Regulations for Yucca Mountain, HLW Siting Guidelines for

DOE, HLW Issue Resolution, and Technical Exchanges with DOE. Moreover,

the Associate Director commented that the selectee had received favorable

consideration for his technical leadership on scenarios for the Total

System Performance Assessment. As to Agency No. NRC-03-02, the Associate

Director reported that, since the position dealt particularly with

proposed high level waste repository located in Nevada, he was looking,

specifically, for someone with intimate knowledge of the site and who

would be comfortable in dealings with the State of Nevada and relevant

stakeholders. The Associate Director expressed that the selectee had

spent much of 2002 on a rotational assignment serving as an On-Site

Representative in the agency's Las Vegas office and gaining experience

as liaison between the agency, DOE, State of Nevada, affected counties,

and other stakeholder for the Yucca Mountain High-Level Waste site.

The Associate Director remarked that he selected the selectee because

the selectee had served as an on-site representative and had direct

knowledge of the situation. The Associate Director mentioned that

the selectee had organized public meetings with stakeholders and had

more experience in interacting with members of the oversight Boards.

The Associate Director indicated that the selectee had taken courses

that were directly germane to the Committee's needs.

Complainant has failed to show that the agency's reasons are pretext for

discrimination. Complainant has failed to show that his qualifications

for the positions were plainly superior to the selectees' qualifications

or that the agency's action was motivated by discrimination. We find

that complainant has failed to show, by a preponderance of the evidence,

that he was discriminated against on the bases of national origin,

age or reprisal.

The agency's decision finding no discrimination is AFFIRMED.

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

February 25, 2004

__________________

Date