Complainant,v.Penny Pritzker, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Mar 20, 2014

0120131272 (E.E.O.C. Mar. 20, 2014)

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

,
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120131272

Agency No. 54-2011-00248

DECISION
On February 13, 2013, Complainant filed an appeal from the Agency’s February 5, 2013, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 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, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for
employment for the position of Electronics Technician at the Agency’s National Oceanic and
Atmospheric Administration (NOAA), National Weather Service (NWS). The record reveals
that previously Complainant had been employed with the National Aeronautics and Space
Administration (NASA) for over 30 years. Complainant retired from NASA as a GS-11
Electronics Technician on February 5, 2010.

Vacancy #1
In March 2011, the Agency posted Vacancy Announcement Number NWS-SR-2011-0139 for
the position of Electronics Technician, GS-0856-10/11, located in Key West, Florida. This
vacancy was posted under the Delegated Examining (DE) unit authority, available to public,
non-status applicants, and was open from March 22, 2011, to April 4, 2011. According to the
vacancy announcement, the selectee would be expected to serve as a technical specialist,
"providing highly specialized support and maintenance of equipment used to observe, collect,
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convert, and communicate data/information for meteorological and hydrological warnings,
forecasting, and data warehousing.”

The Agency also advertised the same position under Vacancy Announcement Number NWS-
SR-2011-0137 under Merit Assignment Procedures (MAP). The announcement specified the
area of consideration as current federal civilian employees, former federal employees with
reinstatement eligibility, CTAP/ICTAP (Interagency Career Transition Assistance Program)
eligibles, applicants under special hiring authorities, and veterans who were preference
eligibles. The MAP announcement was also open to applicants from March 22, 2011, through
April 4, 2011, and the skills listed were identical to that of the DE announcement.

Complainant applied and was considered for the Electronics Technician position in Key West,
Florida under both the DE and MAP vacancy announcements. Complainant was considered
under both the MAP and DE announcements at the GS-10 and GS-11 levels. There was no
selection made under Vacancy Announcement Number NWS-SR-2011-0139 (DE). There was
no selection made under NWS-SR-2011-0137 (MAP) at the GS-10 level. However, Selectee 1
was chosen for the GS-11 Electronic Technician position in Key West, Florida under Vacancy
Announcement NWS-SR-2011-0137 (MAP).

Vacancy #2
The Agency posted Vacancy Announcement Number NWS-PR-2011-0019 for the position of
Electronics Technician, GS-0856-9/10/11, located in Barrigada, Guam. The announcement
specified the area of consideration as current federal civilian employees, former federal
employees with reinstatement eligibility, CTAP/ICTAP eligibles, applicants under special
hiring authorities, and veterans who were preference eligibles. The vacancy was posted under
a MAP and open to applicants from April 15, 2011, to April 28, 2011. According to the
announcement, the selectee would be expected to serve as a technical specialist, “providing
highly specialized support and maintenance of equipment used to observe, collect, convert, and
communicate data/information for meteorological and hydrological warnings, forecasting, and
data warehousing.”

Complainant applied and was considered for the Electronics Technician position in Barrigada,
Guam at the GS-9, GS-10, and GS-11 levels. There was no selection made at the GS-9 or GS-
10 levels. However, Selectee 2 was chosen at the GS-11 level.

On July 7, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of disability (deaf) and age (58) when:
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Complainant was not selected for the position of Electronics Technician, GS-0856-
10/11, as advertised under Vacancy Announcement Numbers NOAA-NWS-SRO-2011-
0139 and NWS-PR-2011-0019.1

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). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b).

In its final decision, the Agency found Complainant was a qualified individual with a disability.
Specifically, the Agency noted that Complainant stated he was born and raised permanently
deaf. The Agency noted Complainant provided two letters issued by Virginia's Department of
Rehabilitative Services, dated September 8, 2010 and August 16, 2011, which certified that he
was “an individual with a documented disability of Deafness.” Thus, the Agency determined
that Complainant's permanently being deaf substantially limits the major life activity of
hearing. The Agency noted it provided legitimate, nondiscriminatory reasons for its actions.

The Agency noted that the Human Resources Specialist, Workforce Management (WFMO),
located in Boulder, Colorado issued Vacancy Announcements NWS-SR-2011-0139, NWS-SR-
2011-2037, and NWS-PR-2011-0019, and she conducted eligibility and qualification
determinations of candidates. The Human Resources Specialist stated she referred eligible
candidates, via a certificate of eligibles to the selecting officials.

Vacancy #1
The Human Resources Specialist noted that Vacancy Announcement Number NWS-SR-2011-
0139 was under a DE, and that Complainant applied under this particular announcement, but
was not referred to the Selecting Official (SO 1) for consideration. She says that at the GS-
10/11 grades, she only referred preference eligible veterans in the "gold" category, noting that
Complainant, a non-veteran, was in the “silver” category. She explained that gold, silver, or
bronze categorization was determined by the answers of the candidates to the questions they
were provided. She further explained that a non-veteran cannot be selected over a veteran.
The record reveals that SO1 did not make a selection from Vacancy Announcement Number
NWS-SR-2011-0139.

The record reveals that a selection was made from Vacancy Announcement Number NWS-SR-
2011-0137, which was the MAP announcement. The Human Resources Specialist noted that
Complainant also applied under this announcement and was referred to SO 1 for consideration.
She states that candidate scores were not identified on the certificate and that the candidates

1 Although Complainant does not claim that he applied for the position under Vacancy
Announcement Number NWS-SR-2011-0137 (MAP), the record reveals that Complainant
applied for and was not selected under this vacancy announcement.
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were listed in alphabetical order. The Agency noted that SO 1 and Person A, a panel member,
were involved in the selection.

The Agency noted that SO 1 for this position was the Meteorologist in Charge in Key West,
Florida. SO 1 stated that candidates from both the DE and MAP were considered, and that
interviews took place on May 4, 2011, with final selections being made on May 9, 2011. He
stated that after considering and reviewing applicants from both the DE and MAP certificates,
he made a selection from the MAP Certificate. SO 1 stated that he considered approximately
60 applicants, which he ranked based on criteria he developed considering relevant training,
Electronics Technician experience in NWS operations, AWIPS (Advanced Weather Interactive
Processing System) experience, experience with Microsoft Windows, problem-solving,
understanding hardware and software, and computer network experience. SO 1 selected his
top 10 candidates and compared them to Person A’s top 10 candidates, discussing the pros and
cons of each. Then they developed their top four candidates, whom they interviewed. SO 1
noted that Selectee 1 was a “radar guru” who had previously worked in the Agency’s radar
help desk, who others would call on as an expert. He noted that Selectee 1 had more than a
decade of weather radar problem-solving skills and experience, as well as experience repairing
and installing software relating to radar. SO 1 also stated that Selectee 1 had all required
education and a broad background regarding current and future systems. SO 1 noted
Complainant was not among the top 10 candidates and thus, was not interviewed.

Person A confirmed that he participated on a panel with SO 1. He stated that he ranked four
candidates and placed Selectee 1 at the top. Person A noted that Selectee 1 had been working
at the Radar Operations Center of NWS, which monitored all radars throughout the United
States. He noted Selectee 1 had a lot of radar experience through the Agency’s help line as
well as through field modifications in which has involved. Person A stated that they sought
candidates with NWS electronics experience or weather equipment experience. Person A
indicated that while two of the candidates they interviewed did not have NWS experience, they
had experience working with weather equipment in the private sector or military.

Vacancy #2
With regard to Vacancy Announcement Number NWS-PR-2011-0019, located in Guam, the
Human Resources Specialist noted that she referred Complainant for consideration. She noted
that the candidates were listed in alphabetical order, but that candidates’ scores were not
identified.

The Human Resources Specialist noted that candidates with disabilities on Schedule A were
considered, and she explained that Schedule A was considered a non-competitive appointment.
She stated that she referred Complainant along with all other non-competitive candidates. The
Human Resources Specialist stated that Schedule A candidates were special appointments and
were referred non-competitively because the Agency can hire non-competitive candidates
separately from the certificate. The Human Resources Specialist stated Complainant was not
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identified as a Schedule A candidate on the certificate, but was instead referred in alphabetical
order with other non-competitive candidates.

The Agency noted that the Meteorologist in Charge in Barrigada, Guam was the Selecting
Official (SO 2) for this position and Person B was also involved in the selection process. SO 2
confirmed that Complainant’s name was forward by WFMO. SO 2 stated that Complainant
was not interviewed and SO 2 explained that they were looking for a person with current
experience troubleshooting electronic systems, understanding of wire diagrams, and capable of
training field personnel. SO 2 noted that Complainant’s resume did not demonstrate these
attributes. SO 2 also stated that Selectee 2 was one of four candidates interviewed. SO 2
noted that the Selectee’s resume demonstrated solid and steady experience in his field, and that
he interviewed very well, having come across as knowledgeable and capable of facing the
unique challenges of the position. SO 2 stated that Selectee 2 had technical experience of at
least 10 years, knowledge of theory, and training. SO 2 stated that Person B was instrumental
in deciphering the electronics background of the applicants.

Person B, Senior Electronics Technician in Barrigada, Guam, stated that he advised SO 2
regarding the technical aspects of the position under Vacancy Announcement Number NWS-
PR-2011-0019. Person B noted that all candidates were initially reviewed and that four were
chosen for an interview because of their recent experience with system troubleshooting and use
of schematic diagrams, which he stated were “critical to this position” and aspects on which he
placed high value. He stated that Selectee 2’s resume and interview demonstrated that he was
qualified and had an aptitude for the position. Person B cited Selectee 2’s 11 years of current
system troubleshooting experience and related matters. Person B also noted the strength of
Selectee 2’s interview wherein he exhibited confidence, a proactive mindset on maintenance,
and intellect relating to team and work dynamics, which Person B stated led to a higher
likelihood of successful integration. Moreover, Person B noted that Selectee 2 had previously
been to the island and knew what to expect.

The Agency claimed that Complainant failed to show that its articulated reasons were a pretext
for discrimination. The Agency stated that it did not disagree with Complainant’s statement
that he was a “good qualified candidate.” However, the Agency noted that Complainant's
qualifications were certainly not so observably superior to that of Selectees 1 and 2 that no
reasonable and impartial person could have chosen them.

In addition, the Agency stated that Complainant failed to demonstrate that any of the Agency
officials involved in the selections held any discriminatory animus based on either his age or
disability. The Agency noted that at best, Complainant speculated that he is “not sure if
NOAA did not want to deal with someone who had a disability.” The Agency noted
Complainant did not even speculate regarding whether the Agency might not want to hire an
individual his age.

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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”).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
The prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S.Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the agency’s explanation is
a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the
Navy

, EEOC Request No. 05950351 (December 14, 1995).
In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its
actions. Upon review, we find Complainant failed to show by a preponderance of evidence
that the Agency’s articulated reasons for its actions was a pretext for discrimination.
Moreover, we note Complainant did not show his qualifications were plainly superior to those
of either Selectee 1 or Selectee 2.

CONCLUSION
Accordingly, the Agency’s final decision 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:
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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 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 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
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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

Date
March 20, 2014