Complainant,v.Dr. Rebecca Blank, Acting Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120120866 (E.E.O.C. May. 22, 2013)

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

,
Complainant,

v.

Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120120866

Hearing No. 451-2011-00118X

Agency No. 10-54-02461

DECISION

On December 8, 2011, Complainant filed an appeal from the Agency’s October 31, 2011,
notice of final order 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND

The record reveals that from February 1999 to May 2008, Complainant was employed as a
Hydrometeorological Technician, GS-1341, with the Agency’s National Oceanic and
Atmospheric Administration (NOAA) National Weather Service (NWS)/Southern Region,
Weather Forecast Office located in Lubbock, Texas. During that time, Complainant’s first-
level supervisor was Person A, Meteorologist-In-Charge. Complainant’s second-level
supervisor was Person B, Southern Region Regional Director. Complainant voluntarily retired
from the Agency in May 2008.

In February 2010, the Agency posted a vacancy announcement for a Meteorological
Technician (Observing Program Leader), GS-1341-12, advertised under Vacancy
Announcement NWS-SR-2010-0119. A panel of four members was convened to review eight
to ten applications. The panel consisted of the Science and Operations Officer (Panel Member
1), the Senior Service Hydrologist (Panel Member 2), the Warning Coordination Meteorologist
(Panel Member 3), and the Observing Program Leader (Panel Member 4). Person A was the
selecting official. The panel reviewed and rated the applications and then gave Person A the
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names of their top recommendations. Complainant applied for and was found qualified for the
position; however, he was not selected.

Complainant filed an EEO complaint dated June 14, 2010, alleging that the Agency
discriminated against him in reprisal for prior protected EEO activity when: Complainant was
not selected for the position of Meteorological Technician (Observing Program Leader), GS-
1341-12, advertised under Vacancy Announcement NWS-SR-2010-0119.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing. The AJ issued a decision without a hearing on September 29, 2011.

In her decision, the AJ noted that Complainant argued that he should have an opportunity to
question Panel Member 4, who failed to submit an affidavit to be included in the Report of
Investigation. The AJ stated, however, that Panel Member 4 retired in 2008, and the
Commission lacks the authority to subpoena Panel Member 4, or to otherwise compel his
affidavit or appearance at a hearing. The AJ noted Complainant claimed that Panel Member 4
once told him that if he ever applied for a position, he would give Complainant the “worst
referral.” The AJ recognized that Complainant offered no evidence to support his claim that
Panel Member 4 was the “most influential” in the subject selection process, or that Panel
Member 4’s animosity towards Complainant was based on Complainant’s prior EEO activity.
The AJ noted Complainant also argued that witnesses should be required to testify under oath.
In response, the AJ stated that witnesses’ affidavits constitute testimony, and each affidavit is
sworn to under penalty of perjury. Thus, the AJ found the witnesses had provided statements
under oath. The AJ noted that although Complainant alleged that there are “untruths and
misrepresentations” in witnesses’ statements, he failed to identify what they may be.

In addition, the AJ noted Complainant alleged that an Administrative Support Assistant had
commented to a co-worker that Complainant “would be dreaming” if he thought he would get
selected for the position. The AJ noted that the Administrative Support Assistant was not on
the selection panel, and there is no evidence that she was involved in, or had any influence in,
the selection process. Furthermore, the AJ found there was no evidence that the
Administrative Support Assistant made the statement based on Complainant’s prior EEO
activity, as opposed to other factors.

The AJ recognized that Complainant alleged that the Selectee “misrepresented his resume.”
However, the AJ found Complainant failed to identify what these misrepresentations may have
been and failed to allege or establish that those involved in the selection process were aware of
any alleged misrepresentations.

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The AJ also noted that Complainant complained that he has applied, but failed to be selected,
for 22 previous vacancies. The AJ recognized that the previous non-selections in and of
themselves, did not demonstrate discrimination or reprisal.

The AJ noted Complainant alleged that management refused to select him because “95 percent
of male Caucasians” were complaining about Complainant’s original selection to management,
and/or that management was concerned that a co-worker would file a complaint for “reverse
discrimination” if Complainant was selected. The AJ found Complainant failed to provide
evidence to support these claims. In addition, the AJ noted that the alleged comments were not
made by anyone involved in the current selection process and that some of the alleged
comments were made 10 to 17 years before the non-selection at issue in the subject case.

The AJ noted that Complainant claimed that Panel Member 2 commented to an anonymous
employee that in his opinion, Complainant was “too much involved in EEO activities.” The
AJ noted that Panel Member 2 ranked Complainant third out of the top ranked candidates. The
AJ noted that Panel Member 1, who was unaware of Complainant’s previous EEO activity,
ranked Complainant fourth or fifth out of the top rated candidates.

The AJ determined that the Agency articulated legitimate, non-discriminatory reasons for
choosing the Selectee over Complainant for the position at issue. The AJ noted that Panel
Member 1 ranked the Selectee so highly because in his previous position, he had gained
experience as a program leader in the Cooperative Observed Program. The AJ noted that
Panel Member 1 stated the Selectee’s application was very thorough and complete while
Complainant’s application was incomplete. The AJ noted that Panel Member 3 stated that he
ranked the Selectee first and Complainant fourth or fifth. The AJ stated that Panel Member 3
stated the Selectee was ranked first because he had been successfully performing the duties of
the position in his previous job. The AJ noted the position’s incumbent was required to be a
leader for the Cooperative Observer Program, and the Selectee had established the Cooperative
Observer Program in Melbourne, Florida. The AJ noted that management officials in
Melbourne had also highly recommended the Selectee.

Finally, the AJ noted that the Selecting Official stated that the position required the incumbent
to be the leader of the Hydrometeorolgical Technician Unit (HMT), and be in charge of the
Cooperative Observer Program at NWS Lubbock. The AJ noted the Selectee had been an
HMT in Melbourne and had successfully developed the Cooperative Observer Program there
“from scratch.” The AJ noted the Selecting Official stated that each of the four recommending
officials had recommended the Selectee, and that he took their recommendations into account
when he chose the Selectee.

The AJ recognized that Complainant had particular talents and strengths in operational
meteorology, including making “probing” telephone calls, calibrating radar, providing
assistance to forecasters, and being “very good during severe weather episodes.” However,
the AJ found that the Agency determined the Selectee’s strengths more closely aligned with the
duties of the position at issue.
0120120866

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The Agency subsequently issued a notice of final order on October 31, 2011. The Agency’s
final order fully implemented the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

On appeal, Complainant claims that his two witnesses were not given the opportunity to
present their testimony to the court since a hearing was not held. Complainant claims that
there testimony is crucial because he states it will show that a few of the affidavits are not
truthful. In addition, Complainant claims that the testimony of Panel Member 4 is crucial and
he states Panel Member 4 is hiding behind his retirement.

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. (November 9, 1999) (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”).

Generally, 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; Fumco 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).

Upon review, we find the AJ’s issuance of summary judgment was appropriate as there are no
genuine issues of material fact in dispute. Additionally, we find the record in the present case
0120120866

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was fully developed. With regard to Complainant’s contention that two of his witnesses were
denied the opportunity to testify because there was no hearing, we find Complainant failed to
identify who the two witnesses were or indicate what relevant testimony they could have
provided. Although Complainant stated that these two witnesses’ testimony would show that
some affidavits were not truthful, we note he fails to identify which affidavits were allegedly
untruthful.

Moreover, with regard to his contention that the testimony of Panel Member 4 was crucial to
his case, we note the record reveals that Panel Member 4 retired in 2008. The record reveals
the investigator contacted Panel Member 4 during the investigation of Complainant’s
complaint; however, Panel Member 4 declined to participate. We note the AJ correctly
determined that neither the Agency nor the EEOC has the power to compel testimony from a
witness who no longer works for the Agency.

In the present case, we find the Agency has articulated legitimate, non-discriminatory reasons
for its actions. Specifically, the Agency stated that the Selectee was chosen because of his
prior work as an HMT and as a result of his work in establishing and serving as a leader in a
Cooperative Observer Program. In the present case, Complainant failed to show that his
qualifications were plainly superior to those of the Selectee. Upon review, we find
Complainant failed to show that the Agency’s articulated reasons were a pretext for retaliation.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
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Commission, P.O. Box 77960, Washington, DC 20013. 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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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

May 22, 2013
Date