[Redacted], Maximo S., 1 Complainant,v.General Paul M. Nakasone, Director, National Security Agency, Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2021002998 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo S.,1 Complainant, v. General Paul M. Nakasone, Director, National Security Agency, Agency. Appeal No. 2021002998 Hearing No. 531-2019-00063X Agency No. 15-017 DECISION On April 26, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 12, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant period, Complainant worked for the Agency as a GG-14 assigned to SCB2 as a Subject-Matter Expert at Fort Meade, Maryland. On June 26, 2015, Complainant a formal EEO complaint alleging the Agency discriminated against him based on age (over 40) when he was not selected for promotion to GG-15 by the S2B2 organization during the 2015 promotion cycle. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Thereafter, the AJ held a hearing on March 25, 2019. 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. 2021002998 2 Following the hearing, the AJ issued a decision finding no discrimination.2 In its March 12, 2021 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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 - that a prohibited consideration was a factor in the adverse employment action. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. Where, as here, 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 2 Complainant initially filed a class action complaint, as well as an individual complaint of age discrimination. A named Administrative Judge (“AJ1”), who originally presided over Complainant’s case, considered Complainant’s request to certify his class action complaint. After receiving additional information from Complainant, AJ1 issued a decision on June 13, 2017, denying Complainant’s request for class certification and dismissing the class complaint. Thereafter, Complainant’s case proceeded as an individual complaint and the case was subsequently assigned to a different AJ, which is the subject of the instant appeal. 2021002998 3 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). In her decision, the AJ determined that the following relevant evidence was presented during the investigation into the formal complaint and at the hearing, which established that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. During the relevant period, Complainant was a GG-14, Step 08 assigned to S2B2 as a Subject Matter Expert (“SME”). Complainant had served in this position as a GG-14 since June 2004, and he continues to serve in this position through the present. The S2B2 office conducted signal intelligence analysis and production under NSA’s previously named Signals Intelligence Directorate, prior to a reorganization of NSA. Following the Agency- wide reorganization (often referred to as “NSA21”), S2B2 became known as X32, but largely retained its structure, with only a few NSA21-recommended changes. Complainant’s remained in S2B2 as a “floating subject matter expert.” Complainant’s chain of command during the 2015 promotion cycle consisted of the Chief, the identified Responsible Management Official (RMO) for the accepted claim, Global Capabilities Manager, the Deputy Director, and the Director. For the 2015 promotion cycle, S2B2 followed a “Chain-of-Command” promotion process. Chain-of-Command promotions are decisions made by an employee’s chain of command, without use of a management board. A manager is designated to review each employee’s Promotion Review Package (PRP). In most instances, the employee’s supervisor will conduct the first level promotion review. If organizations have additional levels of managers between the first level and the final selection level, those managers will review nominated candidates. Finally, the manager at the final selection level will review the list of nominated candidates forwarded by the subordinate supervisor, along with any employees who submitted a PRP and were not reviewed by a lower level manager in order to prepare a final promotion recommendation list. For the 2015 promotion cycle, the Agency’s promotion criteria to GG-15 included the following factors, as identified in the Work Level Assessment Table: (1) work involves an extraordinary degree of specialized knowledge or expertise; (2) work involves highly complex and ambiguous assignments that normally require integration and synthesis of a number of unrelated disciplines and disparate concepts; (3) components rely on employees at this level for the accomplishment of critical mission goals and objectives; (4) employees make final determinations on how to plan and accomplish their work; (5) employees create formal networks involving coordination among groups across the IC and other external organizations; (6) employees may lead the activities of 2021002998 4 other seniors and expert employees, teams, projects or task forces; and (7) employees set priorities goals, and deadlines. In addition, during the 2015 promotion cycle, the Associate Directorate for Human Resources (“ADHR”) provided a Manager Promotion Guide in order to help NSA managers “make accurate, defensible promotion decisions via a standardized and transparent process.” The Manager Promotion Guide provided assistive questions to identify and frame promotion readiness of the employee in terms of “work complexity, independent action, working relations, span of authority, and responsibility, scope, and impact decisions.” Per the 2015 promotion guidelines and chain-of-command process, Complainant timely submitted his PRP to his direct supervisor to be considered for promotion to GG15. Complainant’s supervisor (over 40) testified that the promotion to GG-,15 is very competitive. She stated approximately 6 to 10 percent of applicants get promoted “so it comes down to a very tight competition, unfortunately.” During the 2015 cycle, the supervisor reviewed seven PRPs of GG-14 employees seeking promotion to GG-15 within S2B2. Out of seven PRPs, the supervisor forwarded only one employee for promotion consideration to the next level (Global Capabilities Manager). Specifically, the supervisor stated that a named employee’s (Employee 1) “package hit every criteria. He was doing things that not only benefited our division but the next level office, and then even he had some roles where he was representing the Agency on compliance issues. So he was mentoring others. He had a vast scope of decision-making authority because he was the tech director. So, he made decisions independently. He just - - had all the criteria. I didn’t know him very well, and I was really blown away by his package.” The supervisor stated that Complainant was “at the top of the middle area.” The supervisor explained that Complainant had a tendency to consult with her “a lot and double-checked his direction. Can I do this? Should I do that? And that was something that Employee 1 did not. That was just a level of independence that for whatever reason occurred at that time.” Moreover, the supervisor stated that Complainant’s age was not a factor in Complainant’s non-promotion. In her bench decision, the AJ determined that Complainant failed to prove by a preponderance of the evidence that the Agency unlawfully discriminated against him based on his age when it did not forward his PRP for promotional review next level consideration for the 2015 promotion cycle. The AJ found that the supervisor credibly testified that Complainant’s PRP was at the top of the middle area. The AJ further noted that while the supervisor found Complainant had provided a complete PRP, “she did not find it as competitive as others…[supervisor] testified that she gave a very heavy weight to employees who showed that they were actively mentoring, sharing information, and creating documentation.” Furthermore, the supervisor noted that Complainant only mentored one individual and that mentoring one individual is not sufficient to satisfy the promotional criteria. 2021002998 5 Based on this evidence, the AJ concluded that Complainant failed to prove, by a preponderance of the evidence, that management’s articulated reasons for its actions were pretext. Complainant has offered no persuasive arguments on appeal regarding the AJ’s findings on the merits. The AJ’s decision, following a hearing where witness credibility could be assessed, is well-reasoned, and the conclusion that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by substantial evidence in the record, as referenced above. Beyond his bare assertions, Complainant did not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation. CONCLUSION We AFFIRM the Agency’s final order because the Administrative Judge’s ultimate finding, that unlawful age was not proven by a preponderance of the evidence, is supported by substantial evidence of record. 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, 2021002998 6 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. 2021002998 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 September 2, 2021 Date