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