Erika H.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120171923 (E.E.O.C. Nov. 2, 2018)

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

Erika H.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120171923

Hearing No. 570-2014-00860X

Agency No. DOSF03213

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 12, 2017
final order concerning her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Technical
Information Specialist - Research Analyst, GG-12 at the Agency’s United Nations Plaza facility
in New York, New York.

On December 7, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of race (African-American) when: (1) her nomination for
the Innovation in the Use of Technology Award was not passed to the Chief of Mission for
endorsement, prior to the April 30, 2010 deadline, and (2) in October 2011, she discovered that
two of her colleagues were promoted to higher grade levels and she was not.

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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The Agency accepted the complaint and conducted an investigation.

The evidence developed during the investigation established that, on March 25, 2010, the
Agency announced the 2010 Innovation in Use of Technology Award, which recognized the
suggestion, planning, development, or implementation of an innovative use of technology that
substantially contributed to the efficiency and effectiveness of the Department. The award
included a certificate signed by the Secretary of the Agency and $10,000. Anyone could
nominate an eligible employee, provided the nominator possessed the requisite knowledge of the
nominee’s achievements. All nominations were required to include an endorsement by either the
Chief of Mission or Principal Officer at posts abroad, or of the head of a bureau or other
appropriate senior officer in the Department.

In March or April 2010, Complainant’s co-worker nominated her for the Award based on her
work on the Sydney Plus/ACES project. However, his nomination did not include an appropriate
endorsement. Complainant’s first and second line supervisors declined to endorse her
nomination. Complainant’s managers informed Complainant that it would be inappropriate to
advance her nomination for the award considering her 2009 performance appraisal of “not
successful” and because she was one of a number of individuals who participated in the project
at issue. They also declined to forward her nomination to the Chief of Mission or another
appropriate officer.

In October 2011, Complainant learned that two of her colleagues, who were also technical
information specialists-research analysts, received noncompetitive career ladder promotions
during 2010 and 2011. On October 10, 2010, one colleague (Caucasian) was promoted from GG-
12 to GG-13. She had received a performance rating of “outstanding” for 2009. Another
colleague (Asian) began working for the organization in June 2008 as a GG-11 and received
back to back promotions to GG-12 and GG-13 after only three (3) years of employment. He also
had received performance ratings of “outstanding” for both 2009 and 2010.

Complainant had been promoted to her current rank of GG-12 in October 2008, as a
noncompetitive, career ladder promotion. She did not receive a promotion since that time. She
received performance ratings of “not successful” for 2009 and 2010. The Agency’s policy on
noncompetitive career ladder promotions stipulates that such promotions are dependent on the
continued presence of available work at the higher level and on the employee meeting
qualification requirements, receiving recommendations from cognizant supervisors, and
receiving at least a fully successful performance rating.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ).

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Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the
case granted the Agency’s November 2, 2015, motion for a decision without a hearing and issued
a decision without a hearing on March 6, 2017. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

The instant appeal followed.

On appeal, Complainant asserts that her key argument is that the Agency discriminated against
her when they blocked her nomination for the Award. She argues that she met the criteria for the
Award and was nominated by a colleague who was familiar with her work. She further indicates
that the criteria for the Award did not indicate that management could block a nomination, or
that a “fully successful” or higher performance rating was required.

In response, the Agency asserts that there are no issues of material, disputed facts or issues of
credibility as to preclude summary judgment. It argues that Complainant has not presented, and
the record is devoid of, factual evidence that would give rise to such an inference of race-based
discrimination. It notes its witnesses have established legitimate, nondiscriminatory reasons for
its actions that Complainant has not shown were pretext for discrimination. Thus, the Agency
asks that we uphold the AJ’s grant of summary judgment.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact.
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Complainant was given ample notice of the Agency's motion for a decision without a hearing, a
comprehensive statement of the allegedly undisputed material facts, the opportunity to respond
to such a statement, and the chance to engage in discovery. We find that, even assuming all facts
in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below.
Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S.
502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination based on
race, her claim ultimately fails, as we find that the Agency articulated legitimate, non-
discriminatory reasons for its actions. Complainant’s nomination for the Award at issue was
submitted without the requisite endorsement. Complainant’s supervisors explained that they
declined to endorse her nomination because she had received a “not successful” rating on her
2009 performance appraisal and, furthermore, she was one of several employees who had
contributed to the successful implementation of the project for which she was nominated. We
note that the record does not establish that Complainant’s supervisors were required to pass
along her nomination for the Award to other senior officials for consideration of their
endorsement.

With respect to the matter of promotions, the record establishes that Complainant received a
rating that was less than “fully successful” for 2009 and 2010. According to the Agency’s policy,
such performance ratings would preclude her promotion to a higher grade. The two employees
she cites as comparators, by contrast, both had “outstanding” ratings in the period prior to their
promotion. Complainant has not established by a preponderance of the evidence, that the
legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful
discrimination or motivated by some unlawful discriminatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency's final order.

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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
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.
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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

November 2, 2018
Date