Bryce A., Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Mar 1, 2016

0120140043 (E.E.O.C. Mar. 1, 2016)

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

Bryce A.,
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120140043

Agency No. DOS-F-022-09

DECISION

Complainant filed an appeal from the August 15, 2013 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission
AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Economist/Anti-Corruption Officer in the Agency’s Office of Monetary Affairs in Washington,
D.C. The Foreign Service Act of 1980 provides that promotions in the Foreign Service are based
on the recommendations and rankings of Selection Boards. Based on their review of
performance records, the Boards rank the employees according to demonstrated potential and
ability to serve successfully at higher levels. The Selection Boards determine the merit for
promotion of employees by using the criteria listed in the Decision Criteria for Tenure and
Promotion. The criteria are grouped into six skill sets: leadership, managerial, interpersonal,
communication and foreign language, intellectual and substantive knowledge. The 2008 Foreign
Service Selection Board reviewed the performance record of Complainant and others for
promotion to grade FS-0l. The Class-Wide Board reviewed 426 FS-02 officers for 55 promotion
opportunities and the Conal (Political) Board considered 245 FS-02 officers in the Political cone
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.

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for 12 promotion opportunities. The Boards only rank order those who are actually
recommended for promotion. The Class-Wide Board subsequently recommended 90 employees
for the promotion opportunities and the Conal Board recommended 36 political officers.
Complainant was not ranked highly enough for him to be recommended for promotion by either
the Conal Board or the Class-Wide Board in 2008.

On November 26, 2008, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the basis of national origin (Hispanic) when he was not promoted
to the FS-0l level by the 2008 Foreign Service Selection Board.2

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, in 2008, there were only 67 promotion
opportunities from FS-02 to FS-01 available. The Class-Wide Foreign Service Selection Board
reviewed the performance records of 426 employees who were competing for one of those
promotion opportunities. Out of those 426, the Class-Wide Board recommended for promotion
only the top 90 candidates. The Conal Board, after reviewing performance records of 245 FS-02
officers in the Political Cone, recommended 36 for promotion. The individuals who actually
received the 67 promotions were the top 55 candidates ranked by the Class-Wide Board and the
top 12 candidates recommended by the Conal Board. Complainant was mid-ranked by the 2008
Conal Board and denied consideration by the 2008 Class-Wide Board. Mid-ranked employees
are not rank-ordered for promotion consideration. In other words, while Complainant’s record
was reviewed by both Boards, he was neither among the 90 individuals the Class-Wide Board
recommended for promotion, nor was he among the 36 individuals the Conal Board
recommended. Through testimony of its agents, management demonstrated that it applied the
same criteria to consideration of Complainant's promotion candidacy that it applied to all others.

In attempting to establish that management’s reasons for its actions were pretextual,
Complainant argued that it defied logic that he was deemed ready for greater responsibilities in
2004 and 2005 by the Multifunctional Board, which was the predecessor to the 2008 Class-Wide
2 Complainant initially filed a class complaint on behalf of himself and similarly-situated
Hispanic employees alleging that the Agency “engaged in systemic discrimination in the
promotion and retention of Hispanic Foreign Service Officers.” On June 29, 2012, the Equal
Employment Opportunity Administrative Judge assigned to the matter dismissed the class
complaint because the Class Agent (Complainant) failed to satisfy the requirements of
commonality, typicality, and numerosity. Complainant v. Dep’t of State, EEOC Hearing No.
570-2009-00287X. The Agency subsequently issued a final order fully implementing the AJ’s
decision and began processing the complaint as an individual complaint of discrimination.

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Board, and which in 2004 recognized his achievements and deemed him qualified to assume
responsibilities required at the FS-01 level, as did the 2005 Conal Board, and yet in 2008, he was
not considered ready. In addition, Complainant maintained he was recommended for immediate
promotion by three different supervisors when he assumed greater responsibilities after 2005.
The Agency noted that the fact that Complainant was deemed ready for promotion and qualified
to assume the responsibilities in 2004 and 2005 does not imply that he should have been ranked
highly enough to be reached for promotion in 2008. This is because there is no evidence that the
competition for promotion in 2004 and 2005 was the same, or as stiff as that in 2008. Further,
Complainant has not proven that his qualifications were plainly or demonstrably superior to
those of the individuals selected for promotion and rank-ordered above the midlevel.
Accordingly, the Agency determined that Complainant failed to show that management’s reasons
for its actions were pretext for unlawful discrimination.

Finally, to the extent that Complainant alleged that the Agency’s promotional practices had a
disparate impact on Hispanic employees, the Agency concluded that Complainant failed to
establish a prima facie case under that theory. The Agency determined that Complainant failed
to prove management’s facially-neutral policy or practice had a significant statistical impact on
his protected class. Complainant’s allegations, without corroborating support from statistical
information introduced into the record, fall short of meeting Complainant’s burden to establish a
prima facie case of disparate impact discrimination. Thus, the Agency determined that
Complainant’s disparate impact claims were too vague and incomplete to establish that
institutional bias against Hispanic employees was the reasons he was not promoted to a grade
FS-0l position in 2008. As a result, the Agency found that Complainant had not been
discriminated against as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency gave inconsistent and changing reasons for its
employment decision. Further, Complainant challenges the board members’ statements that they
all applied the same criteria of consideration to each candidate. Complainant alleges that the
2004 and 2005 boards evaluated his record and “de facto concluded and certified” that he met all
the requirements to be promoted to a FS-01 officer. In addition, Complainant presents evidence
he claims shows that the Agency’s promotional practices disparately impact Hispanics.
Complainant claims that Hispanics are underrepresented in all ranks at the Agency, but
especially at the mid and senior ranks. Complainant alleges that the Agency’s present promotion
policy is to each year require new promotion boards to conduct a de novo review of any
unsuccessful candidate's performance file, and there is no business necessity to do it this way.
Accordingly, Complainant requests that the Commission reverse the FAD.

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ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of
a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, assuming arguendo that he established a prima facie case of discrimination,
Complainant failed to present evidence to rebut the Agency's legitimate, non-discriminatory
reasons for its actions. Specifically, the record shows that the Agency selected individuals for
promotion based on the recommendations and rankings of Selection Boards. ROI, at 79. The
Selection Boards reviewed the performance records of employees and were composed of career
Foreign Service members and private citizens who serve as Public Members. Id. Based on their
review of performance records, the Boards rank the employees relative to each other according
to demonstrated potential and ability to serve successfully at higher levels. Id. In making this
decision and in relatively ranking the employees, Selection Boards use the following criteria:
leadership, managerial, interpersonal, communication and foreign language, intellectual and
substantive knowledge. Id. The primary objective of these criteria is to select and advance the
best-qualified employees, and separate at an early stage those who are unsuited for the Service.
Id.

The Deputy Director of Human Resources explained that Complainant was in the Political cone,
where competition is very stiff and that there were not many opportunities for promotion. ROI,
at 21. The record shows that the Class-Wide Board had 55 promotion opportunities while the
Conal/Political Board had 12 promotion opportunities. Id. at 80. The Deputy Director added
that over the past four years, Complainant had been getting “dinged” on various issues, which
led to him being either low or mid-ranked. Id at 21. Based on the review of Complainant’s
performance records, he was mid-ranked by the 2008 Political/Conal Board, and denied
consideration by the Class-Wide Board. Id. at 72, 81. Mid-ranked employees are not rank-
ordered for promotional consideration. Id. at 81. As a result, Complainant was not
recommended or selected for promotion by the 2008 Selection Boards.

In attempting to show that the Agency’s reasons for not promoting him are pretextual,
Complainant argued that he was previously deemed ready for promotion in 2004 and 2005, and
that he has assumed greater responsibilities since 2005. While Complainant may have been

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ranked high enough for promotion in previous years, it does not necessarily follow that he
automatically should have been ranked as such in 2008. In the absence of evidence of unlawful
discrimination, the Commission will not second guess the Agency's assessment of the candidates'
qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Beyond Complainant's
bare assertions and subjective beliefs, the Commission finds that there is no evidence in the
record that Complainant’s national origin played a role in the Agency's promotion decisions or
the selection process.

Disparate Impact

In addition, Complainant alleges that the Agency’s promotional practices disparately impact his
protected class. To establish a prima facie case of disparate impact, a complainant must show
that an agency practice or policy, while neutral on its face, disproportionately impacted members
of the protected class. This is demonstrated through the presentation of statistical evidence that
establishes a statistical disparity that is linked to the challenged practice or policy. Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (complainant must present “statistical
evidence of a kind and degree sufficient to show that the practice in question has caused the
exclusion”). Specifically, a complainant must: (1) identify the specific practice or practices
challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the
challenged practice or policy. Id. The burden is on a complainant to show that “the facially
neutral standard in question affects those individuals [within the protected group] in a
significantly discriminatory pattern”. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see
Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000).

Complainant alleges that the Agency use of promotion boards each year to conduct a de novo
review of any prior unsuccessful candidate’s performance disparately impacts Hispanics. In so
arguing, Complainant points out that no Hispanics were promoted by the 2008 Selection Boards,
and that he was recommended for promotion in 2004 and 2005, yet not promoted in 2008. After
careful consideration of the entire record, the Commission finds that Complainant, who carries
the initial burden of proof, has failed to provide sufficient evidence to establish a prima facie
case of disparate impact in this matter. The statistics provided by Complainant were generalized,
vague and insufficient to show that an identified practice of the Agency caused the exclusion of
members of his protected class. Moreover, Complainant did not identify the particular aspect(s)
of the Agency’s use of Selection Boards allegedly responsible for any observed statistical
disparity as required in the first and third steps of the prima facie case of disparate impact.
Simply identifying the Selection Board program, without more specificity, does not meet
Complainant’s prima facie burden. Furthermore, the gross statistics offered by Complainant are
too broad to draw appropriate statistical conclusions that there was a relevant statistical disparity
in this case.

Therefore, the Commission finds that Complainant was not subjected to discrimination as
alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 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, 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

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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 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

March 1, 2016
Date