Buster D.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 15, 2016

0120142162 (E.E.O.C. Nov. 15, 2016)

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

Buster D.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120142162

Agency No. 13-65540-00765

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated April 23,
2014, finding no discrimination concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision
finding no discrimination.

BACKGROUND

In his complaint, dated February 10, 2013, Complainant alleged discrimination based on sex
(male) and age (over 40) when on November 28, 2012, he was not selected for the
Engineer/Scientist (Technical Expert) position under announcement number NE2XXXX-15-
747474QS411037.2 After completion of the investigation of the complaint, Complainant
requested a final Agency decision without a hearing. The Agency issued its final Agency

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.
2 In his complaint, Complainant also alleged discrimination in reprisal for prior EEO activity.
The Agency dismissed that basis because his prior grievance, as he claimed, did not concern
any discrimination protected by EEO laws. Since Complainant does not contest this dismissal,
we will consider the claim of reprisal as abandoned.
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decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which
Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period at issue, Complainant
was employed as a Chemical Engineer, GS-0893-13, in the Agency’s Naval Surface Warfare
Center, Carderock Division, Philadelphia, Pennsylvania. Complainant claimed that he applied
and was qualified for the Engineer/Scientist (Technical Expert), GS-
0806/0819/0830/0893/1301/1320-14 position, with promotional potential to GS-15, but was
not selected.

The Agency stated that in July, 2012, it announced the position at issue which was located in
the Solid Waste & Hazardous Material In-Service Engineering Branch within the Environment
Quality Division, Naval Sea Systems Command, Philadelphia, Pennsylvania. The position was
the Agency’s senior technical expert in Hazardous Material Control & Management
(HMC&M), Pollution Prevention (P2), and Shipboard Oil/Hazardous Substances (OHS) Spill
Prevention and Response. This position had influence over major projects, proposals, and the
direction of work for the knowledge area. In order to qualify for the position, candidates were
required, among other qualifications, to have sufficient experience and/or education,
knowledge, skills, and abilities, to perform the position duties and to have experience in
providing expertise on HMC&M, P2, and/or Shipboard OHS Spill Prevention and Response to
management, engineers, scientists, and support personnel.

The Agency indicated that seven candidates, including Complainant, were ranked qualified for
the position and referred to three interview panelists. The panelists indicated that after
reviewing the resumes of the candidates, they recommended five of the seven candidates for
the interview. The panelists stated that they then conducted the interviews which were arranged
by the Human Resource Advisor. The panelists stated that during the interviews each candidate
was asked the same questions related to the position and they scored their responses. The
candidates were ranked by their scores which were weighted 1/3 for the resume and 2/3 for the
interview. The ranking sheets were then transmitted to the Selecting Official (SO).
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The SO indicated that he was looking for a candidate with technical competency in HMC&M,
pollution prevention equipment and/or oil/hazardous substance spill prevention, and response
and leadership skills. The SO stated that he initially selected a candidate, GS-15, male, over
40 years of age, who received the highest ranking with final score of 0.944 (the scores ranged
from the highest, 0.944, to the lowest 0.570) but he declined the GS-14 position at issue.
Then the SO selected a selectee, GS-14, female, 39 years old, who received the second highest
ranking score of 0.917. Complainant received the score of 0.700 (ranking the fourth of five
candidates). The record indicates that the selectee was a Technical Area Leader, GS-830-14,
in Naval Surface Warfare Center, Philadelphia, Pennsylvania; she had been in that position
since May, 2008; and had been with the Agency since 1995. The SO indicated that the
selectee had oil pollution prevention equipment experience and she was the technical expert in
that area.

Complainant indicated that he had been in his Chemical Engineer, GS-13 position since
October, 2011, and had been with the Agency since 1987. Specifically, Complainant claimed
that he had extensive experience in HAZMAT (Hazardous Material) Minimization Centers,
HAZMAT locker and stowage space requirements, and HMC&M, but the selectee did not
have experience in these areas that were required for the position at issue. The SO indicated
that the selectee met the qualification for the position at issue since she had experience as the
technical expert in the Oil Pollution Control Equipment. The SO also stated he followed the
proper selection procedures under the Agency policy and he selected the selectee because she
received the highest scores for her resume and interview, after the GS-15 candidate declined
the position as described above.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed
to show that his qualifications for the position were plainly superior to the selectee’s
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s
action was motivated by discrimination as he alleged.

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:

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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
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
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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

November 15, 2016
Date