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

Equal Employment Opportunity Commission

Mar 17, 2021

Appeal No. 2019004949 (E.E.O.C. Mar. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Richard A.,1 Complainant, v. General Paul M. Nakasone, Director, National Security Agency, Agency. Appeal No. 2019004949 Agency No. 18-022 DECISION On July 23, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 1, 2019, final decision concerning his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented concerns whether Complainant has established that he was subjected to sex and age discrimination when he was not selected for promotion to the GG-14 level. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Desktop Technician/Science Technology, Engineering, and Math (STEM) Technical Leader, GG-13 at the Agency’s Enclave Services in Ft. George G. Meade, Maryland. 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. 2019004949 2 On July 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (sexual orientation) and age (over 40) when, on April 20, 2018, Complainant was notified that he was not promoted. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding that Complainant was not selected for promotion due to his less competitive qualifications, rather than discrimination. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that “there was not an impartial review of all the promotion packages at [his] grade level, which were evaluated by the members of the board in the complaint.” Complainant asserts that when he asked management “this question” during the EEO interview, management told him that this information would be part of the formal investigative process. The Agency did not file any contentions in response to Complainant’s appellate brief. STANDARD OF REVIEW 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, at Chapter 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”). ANALYSIS AND FINDINGS For Complainant to prevail in a claim of disparate treatment, he 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 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. 2019004949 3 In the non-selection context, Complainant may establish a prima facie case of sex and age discrimination by showing that: 1) he is a member of a protected class; 2) he was qualified for the position; 3) he was not selected for the position; and 4) he was accorded treatment different from that given to persons otherwise similarly situated who are members outside of his protected group. Williams v. Dep’t of Educ., EEOC Request No. 05970561 (Aug. 6, 1998). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming, arguendo, that Complainant established a prima case of discrimination, we find that the Agency has articulated a legitimate, nondiscriminatory reason for not selecting Complainant for promotion to GG-14; namely, that the selectees were more qualified than Complainant. In this regard, our review of the record here shows that Complainant was one of 54 candidates who sought promotion to GG-14. ROI at 213. Although Complainant’s immediate supervisor (S1) wrote a Nomination Justification Statement recommending Complainant for promotion, the members of the Promotion Review Board found Complainant’s qualifications and experience to be less competitive than the nine selectees. Id. at 70. Complainant ultimately ranked 24th out of the 54 candidates based on the Agency’s promotion criteria because he had lower Annual Contribution Evaluation (ACE) scores than the selectees and provided generic and vague responses in his Employee Promotion Assessment. Id. at 197, 215, 223, 242, and 264. In their affidavits, the members of the Promotion Review Board emphasized that they made their decisions without with regard to Complainant’s sexual orientation and age, as they did not know Complainant personally and were unaware of his protected characteristics. Id. at 118, 211, 219, 238, 243, and 260. The Promotion Review Board members also emphasized that Complainant was offered the opportunity to receive feedback regarding his promotion package, but he declined the opportunity. As the Agency has articulated a legitimate, nondiscriminatory reason for not selecting Complainant for promotion, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Complainant v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). In non-selection cases, Complainant can demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141712 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2019004949 4 In arguing pretext, Complainant contended that such explanation was pretextual because a younger heterosexual male in his organization received a promotion to GG-14 despite having disciplinary issues and lower credentials than him. In comparison, Complainant stated, he had higher educational attainment, diverse experience, leadership experience, additional certifications, and ACE scores in excess of 3.9. ROI at 21. Complainant also noted that 25 percent of his team was promoted this cycle, and that he had been mentored by two senior executives. Id. He attributed the discrimination, in part, to S1, who was allegedly biased against him. In this regard, Complainant explained that S1 often asked heterosexual employees about their spouses but did not ask him about his spouse. Complainant reasoned that the disparate treatment occurred “because [S1] did not agree with [his] lifestyle, therefore [S1] did not engage in additional conversation with [him].” Id. at 63. As for his allegation of discrimination based on age, Complainant asserted that everyone in his office was well aware of age because he frequently discussed his plans to retire in two years. Id. at 21. After careful consideration of the record, we find that Complainant has not shown that his non- promotion was due to his protected characteristics. The record in this case shows that the Agency identified relevant competencies for the GG-14 position and scored the candidates based on these criteria. Complainant scored in the middle of the pack, placing 24th out of 54 candidates. Ultimately, the nine candidates with the highest scores were promoted to GG-14. We find no persuasive evidence to show that S1 was biased against Complainant. To the contrary, the record clearly shows that S1 recommended Complainant for promotion, but the Promotion Review Board, which was comprised on individuals who did not personally know Complainant, found Complainant’s qualifications to be less competitive than the selectees. Having reviewed the record, we conclude that preponderant evidence fails to show any discriminatory animus on the part of S1 or the members of the Promotion Review Board. In reaching this conclusion, we considered Complainant’s contention that “there was not an impartial review of all the promotion packages at [his] grade level.” However, we are unable to ascertain how the Promotion Review Board failed in this regard. As discussed above, we find no evidence that the promotion selection process was tinged with discriminatory animus. With regard to Complainant’s comparator, we are mindful that the Agency promoted a non-supervisor in Complainant’s unit to the GG-14 level; however, we find that this individual was not similarly situated to Complainant because the comparator had different duties that were more technical in nature and highly visible to upper management. Id. at 74. As for S1’s failure to ask Complainant about his spouse, we find Complainant’s attempt to infer discriminatory motive to be speculative and uncorroborated, as the record clearly shows that S1 recommended Complainant for promotion. We also find no evidence that Complainant’s non-selection for promotion to GG-14 was due to his age. For these reasons, we find that Complainant’s allegations of discrimination must fail. 2019004949 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not established that the Agency’s proffered explanation for his non-promotion to be pretext for sex and age discrimination. Accordingly, we AFFIRM the Agency’s final decision. 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. 2019004949 6 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 March 17, 2021 Date