Domingo M.,1 Complainant,v.W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

0120181242 (E.E.O.C. Aug. 13, 2019)

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

Domingo M.,1
Complainant,

v.

W. Thomas Reeder,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Appeal No. 0120181242

Hearing No. 570-2015-00953X

Agency No. 15-007-F

DECISION

On February 2, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s February 2, 2018 final order concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Actuary, GS-12, at the Agency’s Benefits
Administration and Payment Department, Actuarial Services Division in Washington, D.C.

On January 30, 2015, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him based on race (African-American), sex (male), color
(black), and in reprisal for prior EEO activity when, on September 18, 2014, he was denied a
career ladder promotion to the position of Actuary GS-1510-13.

After an investigation of the complaint, Complainant was provided a copy of the investigative
file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the

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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Agency filed a Motion for a Decision Without a Hearing. On January 18, 2018, the AJ issued a
decision by summary judgment in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

During the relevant period, Complainant worked as a GS-12 Actuary at the Agency’s Benefits
Administration and Payment Department (“BAPD”). Sixty actuaries apply the law to provisions
of pension plans to determine the amount of the guaranteed benefit each plan participant is
legally entitled to receive. Complainant was originally hired by the Agency as a GS-9 actuary in
August 2004, in a career ladder position that goes to GS-13. In BAPD, Complainant was
assigned to Trusteeship Processing Division 4 (“TPD-4”).

Complainant’s first and second level supervisors, respectively, were the Associate Division
Manager and Employee Benefits Manager. Both supervisors were not actuaries and had no
actuarial education of training. In TPD-4, after one year at GS-9, Complainant was promoted to
GS-11 in August 2005. One year later, Complainant was promoted to GS-12 on August 6, 2006.

The requirements to obtain a Career promotion from GS-12 to GS-13 were as follows: (1) 52
weeks of specialized experience at the GS-12 level; (2) a current rating of record at Level 3
“Meets Expectations” or higher; (3) demonstrated ability to perform at the GS-13 level; and (4)
sufficient work available at the GS-13 level.

The AJ noted these requirements are in the Agency’s existing collective bargaining agreement
with the union and in its Merit Promotion Plan Directive. In 2014, these criteria were outlined in
a Standard Operating Procedure for the Office of Benefits Administration.

During 2014, the Agency determined that Complainant met the first two criteria for obtaining a
career ladder promotion to the GS-13 level. The Agency determined, however, that Complainant
was struggling with the requirement that he demonstrate the ability to perform at the GS-13
level. The Associate Division Manager assigned Complainant to a certain case informing him
that the assignment would give him the opportunity to demonstrate his readiness for the GS-13
leave. Complainant could not complete the work on the subject case by the targeted due date
because he fell behind on his other work. Eventually, the subject case had to be reassigned for
the division to meet its goal.

In early 2014, the BAPD partially completed a reorganization to improve the efficiency of its
governmental mission, by creating the Actuarial Services Division (“ASD”) within BAPD. The
Agency negotiated over the impact of the reorganization on bargaining unit employees with the
union representing them, resulting in a Memorandum of Agreement dated May 21, 2014. The
reassignment of actuaries, including Complainant, to ASD occurred in early October 2014.

Due to the reorganization, Complainant was reassigned to Actuarial Services Processing Section
C within ASD. The Supervisory Actuary became his first-level supervisor, and the Chief
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Valuation Actuary became his second-level supervisor. Immediately before this reassignment,
pursuant to Paragraph 3 of the ASD, Memorandum of Agreement, on September 18, 2014, all
actuaries within ASD who had not been promoted to the next grade level, including
Complainant, received a memorandum explaining “why they ha[d] not been promoted to the next
career-ladder grade.” In Complainant’s case, the memorandum stated that his current supervisor,
the Associate Division Manager, communicated that Complainant had not demonstrated the
ability to work on the more complex plans to reach the next grade level.

Thereafter, pursuant to Paragraph 4 of the ASD Memorandum of Agreement, via a memorandum
dated May 29, 2015, the Supervisory Actuary informed all his actuaries who had not been
promoted to the next grade level, including Complainant, of the remaining items each needed to
complete to be promoted. One such requirement was submitted regarding a “write-
up…summarizing how you have demonstrated these criteria” referring to criteria listed in the
memorandum, taken from the GS-13 position description. The record reflects that approximately
six months later, Complainant submitted a document titled “GS-13 Justification Memorandum”
to Supervisory Actuary. Afterwards Complainant and Supervisory Actuary met and discussed
the remaining items to be completed for Complainant’s potential promotion to GS-13.

Following a review of Complainant’s memorandum and their discussion regarding potential
promotion, Supervisory Actuary informed Complainant that once he completed a review of an
in-house plan, Complainant, Chief Valuation Actuary, and he would discuss Complainant’s
promotion.

The Associate Division Manager (African-American, black female, unknown prior protected
activity), also Complainant’s first level supervisor, stated that in 2013, she began discussion with
Complainant concerning “the quality of the work he submitted. I never directly said that he
would not be promoted. However, based on the discussions I held with him, one could surmise
that he would not be promoted since I had informed him that his performance was not
satisfactory enough to grant him his within grade increase. I explained to the Complainant that
his work required a significant back and forth exchange between him and the reviewer, which
demonstrated a lack of submitting a work product that was of good quality.”

Further, the supervisor noted that Complainant was assigned a case “that normally goes to a GS-
13. It was stated to the Complainant that [named case] was assigned to him to give him the
opportunity to demonstrate his readiness for the next level. The supervisor stated, however,
Complainant could not complete the case because he was behind his other work...”as such, based
on lack of time management, submission of poor quality work, and not being able to complete a
GS-13 level case, the Complainant was not qualified to be promoted.”

The record reflects that because the supervisor observed that Complainant could not work at the
GS-13 level, and Complainant never actually requested a promotion to the GS-13 or submitted a
memorandum detailing how he had demonstrated the ability to perform at the next level,
Complainant never received a promotion to GS-13.

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Moreover, the supervisor stated that she did not discriminate against Complainant based on his
race, sex, color and prior protected activity.

The Employee Benefits Manager (African-American, colored female, unknow prior protected
activity), also Complainant’s second level supervisor, stated that at that time Complainant was
eligible to be promoted to the GS-13 level one year after his promotion to GS-12. The Manager
stated however, Complainant “did not demonstrate his ability to work on large complex cases,
reviewing the work of other actuaries at the journey level or below to ensure all rules and
regulations are followed and providing the necessary feedback on their work products as well as
mentoring and training the actuaries.”

The Manager also noted that Complainant lacked the understanding of technical knowledge “in
completing cases at his current grade level. I conveyed to the [Manager of the Actuarial Services
Division] that the Complainant has not demonstrated the ability to work on more complex plans
to reach to the next grade level.” Moreover, the Manager stated that Complainant’s race, sex,
color and prior protected activity were not factors in Agency management’s decision not to
promote him to a career ladder promotion to an Actuary GS-13.

Based on this evidence, the AJ concluded no discrimination or unlawful retaliation was
established. The Agency issued its final action adopting the AJ’s decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
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dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the non-selections.
Complainant did not prove, by a preponderance of the evidence, that these proffered reasons
were a pretext designed to mask discrimination or unlawful retaliation.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
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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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

August 13, 2019
Date