[Redacted], Don F., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 14, 2021

Appeal No. 2020004214 (E.E.O.C. Oct. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don F.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020004214 Agency No. DOS-0435-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated May 19, 2020, finding no discrimination concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On July 26, 2019, Complainant filed his complaint, which was later amended, alleging discrimination based on race (Hispanic), national origin (Puerto Rico), sex (male), age (over 40), and in reprisal for prior EEO activity when he was not selected for the following Personal Services Contract (PSC) positions: 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. 2020004214 2 1. On May 6, 2019, PSC-19-009-INL (International Narcotics and Law) (CNC (Counternarcotic) Advisor for Santo Domingo); 2. On May 8, 2019, PSC-20-INL (CNC Program Coordinator for Mexico); 3. On May 8, 2019, PSC-19-031-INL (INL Coordinator for Ecuador); 4. On May 31, 2019, PSC-19-038-INL (Law Enforcement Program Officer for Panama); 5. On August 30, 2019, PSC-19-068-INL (Program Coordinator for Dominican Republic, later clarified as Coordinator for El Salvador); and 6. On September 5, 2019, PSC-19-056-INL (Coordinator for San Jose Costa Rica). After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. The Agency found no discrimination. The record reflects that Complainant retired as a Foreign Service Officer from the Agency in November 2002. He then went back to work for the Agency from November 2002 to January 2008, as an independent contractor and CNC Project Management Consultant and from January 2008 to November 2009, as an INL Regional Director in Bolivia. Since November 2009, Complainant worked as a Border Security Coordinator at the Agency’s INL, Mexico City, Mexico until his termination on February 6, 2015. This termination is not at issue. From April 2015 to May 2018, Complainant was self-employed as a consultant; and from June 2018 to March 2019, he worked as a Project Manager/Subject Matter Expert with the Department of Defense. Complainant applied for the positions at issue with the Agency but was not selected. Complainant indicated that he was not aware who was selected for the positions at issue. Regarding claim 1, the Agency convened a Technical Evaluation Panel (TEP) to evaluate candidates for the position at issue. The TEP evaluated candidates based on five factors related to the position, i.e., interdiction or eradication operations, program design and implementation, program management and administration, liaison and communication, and past performance. The TEP indicated that during his interview, Complainant was less comfortable in discussing how he would ensure his programming would fit into the larger mission priorities. The Agency selected a selectee who received the highest score of 289 points (out of 300) whereas Complainant received a score of 274 (ranked third out of five interviewees) by the TEP because the selectee had work experience in Dominican Republican. Regarding claim 2, the Agency indicated that the position was canceled because fifteen applicants, including Complainant, did not meet the requirements for the position and one applicant, who met the requirements, did not meet the threshold for an interview. 2020004214 3 Complainant did not meet the minimum qualification for ten years of senior level management, i.e., at least five years of the ten years performed at GS-15 or equivalent. Complainant’s highest level of performance was at GS-14. Regarding claim 3, the Agency indicated that 28 candidates, including Complainant, applied for the position at issue. The TEP rated the candidates for the position at issue based on four factors, i.e., work experience, program experience, management and communication experiences, and past performance. The TEP agreed to interview candidates who receive a total score of 255 or above out of 300. Three candidates received a score higher than 255, i.e., each received 292, 277, and 266, and were referred for an interview. A selectee received the highest score of 292. Complainant received a total score of 203, ranked seventh, and was not referred for an interview. The TEP indicated that Complainant did not score well because his work experience was not related to foreign assistance rather more operational; he had not worked in INL since 2015; and his application had typographical errors, indicating a lack of attention to detail. The selectee’s qualification far exceeded Complainant’s since the selectee was a current INL Coordinator and intimately knowledgeable about INL’s policies and programs. Regarding claim 4, the Agency indicated that the TEP rated candidates for the position at issue based on four factors, i.e., program management, communication and coordination, relevant experience, and past performance. Complainant was interviewed by the TEP. The TEP indicated that in his interview, Complainant did not always answer the questions asked and rambled for many of the answers. Specifically, Complainant’s interview was 30% longer than other interviews due to his lengthy answers to questions but his answers lacked substance. Complainant’s overall score was 459 out of 600 points (300 points for the interview and 300 points for the evaluation factors) and ranked third. The Agency selected a selectee who received an overall score of 533. The TEP noted that the selectee answered questions directly and concisely with substantive examples during his interview. Regarding claim 5, the Agency indicated that the TEP rated candidates for the position at issue based on four factors, i.e., coordination and collaboration, development/implementation, knowledge and ability, and program management. Complainant was interviewed but was not selected for the position. The TEP stated that during his interview, Complainant did not demonstrate a clear plan or ability to build consensus and provided verbose responses which made it difficult to discern the key information in his response. Complainant received a score of 79 out of 100 point. The TEP noted that Complainant did not have experience in Central America or El Salvador. The TEP recommended a selectee who received the highest score of 93 and demonstrated experience in high-level coordination and consensus building and his ability to communicate effectively. The TEP noted that the selectee possessed significant INL and Central America experience. The Agency selected the selectee based on the TEP’s recommendation. Regarding claim 6, the Agency indicated that 34 candidates, including Complainant, applied for the position at issue. 2020004214 4 Nine applicants, including Complainant, met the minimum qualifications for the position and the TEP rated them for the position at issue based on four factors, i.e., work experience, program experience, international experience, and management and communication experience. The top four ranked candidates, scores ranged from 176 points to 198 points (out of a possible 210 points) were referred for an interview. Fifth to ninth ranking candidates scores ranged from 156 to 169. Complainant was given a score of 160 was ranked eighth and was not referred for an interview. A selectee received the highest score of 198 and was referred for an interview along with three other candidates. The selectee (Hispanic, Puerto Rican, male, two years older than Complainant) had extensive and recent experience serving as the administrative/financial lead for rule-of-law programs overseas whereas Complainant lacked those experiences and had a three or four-year gap since his most recent relevant work experience. Complainant appealed the Agency’s final decision. 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 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (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). Complainant must initially establish a prima facie case by demonstrating that he or 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2020004214 5 Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reason for not selecting Complainant for the positions at issue. The selectees for the positions at issue received higher scores than Complainant based on their applications and/or their interviews. Complainant did not have extensive work experience related to the positions and/or did not perform well during his interviews. Further, Complainant has not been working at the Agency since his termination in 2015. The Agency canceled one position because no candidate, including Complainant, met the requirements thereof and/or threshold for an interview. We find that Complainant failed to show that his qualifications for the positions were plainly superior to the selectees’ qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Further, we find that Complainant did not establish discriminatory animus or retaliatory intent. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020004214 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004214 7 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 October 14, 2021 Date