[Redacted], Kirby S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2021000482 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kirby S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021000482 Hearing No. 570-2019-01387X Agency No. FBI-2018-00239 DECISION On October 24, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 1, 2020 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisory Special Agent at the Agency’s Criminal Investigative Division (CID) in Washington, D.C. 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. 2021000482 2 On August 8, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on race (African American/Asian), age (DOB 1969), and in reprisal for prior EEO activity when: Claim 1. (a) in or about April 2018, he discovered he was not selected for an interview for the position of Assistant Legal Attaché (ALAT), Lagos, Nigeria, Job #2018-0392; and (b) on April 4, 2018, he learned he was not selected for the position of ALAT, Dakar, Senegal, job #2018-0334. Claim 2. On May 7, 2018, a Deputy Assistant Director (DOD) told him, “I had a couple EEOs and they rolled off my back.” After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ issued a Notice of Proposed Summary Judgment. Both Complainant and the Agency responded to the Notice. On August 24, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its October 1, 2020 final order, the Agency adopted 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. 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 has failed to establish such a 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. 2021000482 3 Non-Selections The Commission reviews disparate treatment claims, such as this one, by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant 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 Agency’s employment actions. See 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 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us 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); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). 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. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we concur with the AJ’s conclusion that the responsible management officials articulated legitimate, non-discriminatory reasons for the selection decision and Complainant failed to prove, by a preponderance of the evidence, that these reasons were pretext designed to mask discriminatory or retaliatory motivation. In January 2018, the FBI’s International Operations Division posted a position for an Assistant Legal Attaché (ALAT) in Lagos, Nigeria, Job posting #2018-0392. Five candidates applied for the position. The Local Career Board (LCB) reviewed the applications and selected some candidates for interviews. The LCB members stated that, based on their review of Complainant’s application, he was not “ranked” and therefore not selected for an interview or further consideration. They explained that Complainant was not ranked because this application did not indicate that he had any skilled ratings in the primary or secondary competencies or more than two sub-skills in the primary competencies as described for the position. A Supervisory Special Agent (“selectee”) (African American, age not identified in the record) was the highest ranked candidate and selected for the position. The selectee was rated as “skilled” in one of the primary competencies, as well as a secondary competency, described in the job posting. She was a supervisor in the FBI’s Cyber Division. 2021000482 4 A review of the selectee’s application shows she cited numerous cyber-skills and certifications obtained at the FBI, including as adjunct faculty in cyber matters and as a Digital Extraction Technician (DExT). The LCB members provided statements during the EEO investigation. LCB Member 1 (African American, over 40) stated that she served as a Legat2 for approximately two years in Abuja, Nigeria, and served as an LCB voting member for the Job #2018-0392. The LCB Member 1 stated that she reviewed the application packages and scored each applicant’s on their package. She said that when she reviewed Complainant’s package she “thought it would have been a stronger application. In my opinion, an individual like [Complainant] who had served as Legat and an ALAT would have been able to provide more substantive information in the competency examples. I expected more from [Complainant’s application] but I did not get what I expected.” LCB Member 2 (Caucasian, over 40) in the Abuja Legal Attaché Office stated he also served as a voting member of the LCB. At that time, he did not know Complainant. LCB Member 2 stated that he knew that there was a need for a Special Agent who had an understanding of complex cyber-crimes, including hands-on experience as certified Digital Evidence Extraction Technician because a substantial amount of the Office’s work involved complex financial fraud cases relating to internet use. Therefore, the selectee’s cyber experience was considered highly desirable for the position. Regarding claim 1(b), Complainant alleged that on April 4, 2018, he learned he was not selected for the position of ALAT Dakar, job #2018-0334. For this position, the LCB members reviewed packages for seven candidates. Complainant was ranked third by the LBC. The top three candidates moved forward for a final interview. During his interview, Complainant highlighted his experience working overseas. The selecting official was alleged by Complainant to have commented that Complainant had “been around the block.” Complainant believed this may have been a comment about his age. However, the selecting official asserted that it was not a disparaging comment, but was instead a compliment, reflecting that Complainant was a seasoned veteran with the Agency. Following the interviews, the selecting official did not make any changes to the rankings by the LCS and as a result, the selectee (Caucasian, age not identified) was the top-ranked candidate by the LCS. The LCS members indicated that the selectee was ranked first because he received two skilled ratings in the primary competencies and one skilled rating in the secondary competency. Complainant had competent ratings in the primary competencies and one skilled rating in the second competencies. 2 A Legat is an official representative or emissary. 2021000482 5 After careful review of the record, we conclude that the weight of the evidence supports the AJ’ determination that Complainant did not prove, by preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. Beyond his bare assertions, Complainant failed to produce adequate evidence to prove that his race, age, and in reprisal for EEO activity played any role in the selection decisions. With regard to the selection for the Lagos position, Complainant believes he was more qualified because he had previously served in the position on a temporary duty assignment. However, as explained by members of the LCB, they were looking for a candidate with a cyber background, particularly one who possessed strong competencies in complex cyber-crime. Complainant has not shown, and the record does not provide, evidence that he met these specific criteria, and if he did, that his background in cyber-crime was plainly superior to that of the selectee. With regard to the position in Dakar, Complainant asserted he should have been selected because he had many more years of experience than the selectee and spoke French. However, as explained by selection panel members, during the interview Complainant failed to highlight his strengths and did not articulate how his experience tied to each job competency. In comparison, the panel members stated that the selectee provided strong, articulate answers to the questions that demonstrated his expert knowledge in each of the job competencies and his accomplishments. In sum, Complainant did not produce evidence sufficient to overcome the non-discriminatory reasons proffered by the Agency officials involved in the selections. The Assistant Director’s Comment Regarding claim 2, Complainant alleged that on May 7, 2018, the Deputy Assistant Director (“DAD”), who had also been involved in the non-selections above, told him, “I had a couple EEOs and they rolled off my back.” DAD stated that Complainant requested to meet with him. He said that he had never met Complainant prior to this occasion. DAD stated that almost immediately, Complainant became agitated, belligerent, insubordinate, and unprofessional. DAD said that instead of requesting feedback, Complainant told him there was no better candidate in the FBI than him. DAD stated that in his career, he never had been spoken to or treated by anyone in the manner in which Complainant behaved. He said that in the midst of the heated encounter, he observed that Complainant had the right to pursue whatever recourse he felt appropriate relating to the non- selections. Here, even assuming the DAD made the remark as alleged by Complainant, we conclude that this single isolated incident, while inappropriate on the part of DAD, was not sufficient to create a chilling effect that would deter Complainant or others from pursuing the EEO complaint process or rise to the level of severity or pervasiveness necessary to state a claim of actionable harassment. 2021000482 6 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation. 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). 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. 2021000482 7 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. 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 February 7, 2022 Date