[Redacted], Todd P., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020001188 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Todd P.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020001188 Agency No. DOS-0058-19 DECISION On November 1, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 2, 2019 final decision 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 Senior Passport Specialist, GS-11, at the at the U.S. Passport Agency in Dallas, Texas. On February 8, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on age (over 40) and in reprisal for prior protected EEO activity when: Claim 1.a. Complainant was not selected for Vacancy Announcement CA-2018-0137 applied for on October 17, 2018; Claim 1.b. Complainant was not selected for Vacancy Announcement CA-2018-0197 applied for on November 28, 2018; 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. 2020001188 2 Claim 1.c. Complainant was not selected for Vacancy Announcement CA-2019-0026 applied for on November 30, 2018; and Claim 2. Because of his age and in reprisal for prior EEO activity, he was subjected to disparate impact discrimination when the Department chose not to consider GS-11 applicants for the positions above. Following an investigation, Complainant requested that the Agency issue a final decision. The Agency issued the instant final decision on October 2, 2019, finding no discrimination.2 This appeal followed. ANALYSIS AND FINDINGS Disparate Treatment: Claims 1.a. - 1.c. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she 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 adverse employment action. See 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. See 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). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1.a., Complainant asserted that he was not selected for Vacancy Announcement CA-2018-0137 applied for on October 17, 2018. The Supervisory Program Manager, Charleston Passport Center in Charleston, South Carolina explained that there was a panel of three Agency officials, including herself. After interviewing eight candidates’ resumes and interviews, the panel recommended a named male candidate for the subject position to the selecting official. 2 The Agency reiterated that it had properly dismissed eight claims for untimely EEO Counselor contact, in April 2019. This matter was not expressly contested and will not be addressed further herein. 2020001188 3 Specifically, the Supervisor Program Manager stated that the panel was confident in the recommended candidate’s ability to manage and develop the anti-fraud program regarding training and oversight of the government contract staff, and work with the other three Fraud Managers. The Supervisory Program Manager stated that while she does not know Complainant personally, Human Resources determined Complainant met the minimum qualifications for the GS-12 level. However, the panel decided not to interview Complainant for the subject position. The Assistant Director (over 40) stated that she was part of the three-member panel. Following the interviews, the Assistant Director stated that the panel discussed who was their top candidates and they later narrowed down to the selectee. She stated that the most important criteria was the selectee’s experience and his ability to expand how the experience would benefit the Fraud office. Furthermore, the Assistant Director explained that Complainant was not recommended because there were several highly qualified candidates on the GS-13 certificate. Complainant was not listed on the GS-13 certificate. Regarding claim 1.b., Complainant alleged that he was not selected for Vacancy Announcement CA-2018-0197 applied for on November 28, 2018. The Human Resources (HR) Specialist (over 40), U.S. Department of State in Washington D.C., explained that Complainant did not make the cutoff to be referred to the selecting official. Specifically, she noted that Complainant’s self-assessment score was 89.64 based on how he answered the questions. The HR Specialist stated that the cut-off self-assessment score was 95.46. In addition, the HR Specialist noted that there were 52 candidates with self-assessment scores below 95.46 and 34 G-12 candidates and 26 GS-13 candidates with a score above the cut- off. She determined the cut-off assessment for the subject position was 52. Regarding claim 1.c., Complainant alleged that he was not selected for Vacancy Announcement CA-2019-0026 applied for on November 30, 2018. The Adjudication Manager/Supervisory Passport Specialist, Dallas Passport Office (over 40), also Complainant’s second level supervisor, stated that she was part of the 3-member panel. She stated that the panel interviewed three candidates, including Complainant. The Adjudication Manager stated that the candidate with the highest score was selected for the subject position, and that Complainant had the lowest score of the three candidates. The Director, Dallas Passport Office, also Complainant’s fourth level supervisor (over 40), stated that following the review of the candidates’ resumes and interviews, she stated that she found the selectee best qualified because he presented himself professionally, spoke clearly and concisely, provided thought out answers to the questions and demonstrated a proven track record as a citizenship subject matter expert. Furthermore, the Director stated that she did not view Complainant’s answers to the questions adequately address the interview questions. 2020001188 4 In sum, we conclude after a review of the evidence of record that Complainant has failed to prove that the legitimate, non-discriminatory reasons for the selection decisions made in Claims 1.a - 1.c were a pretext designed to mask discrimination. There is simply no evidence that Complainant’s age or prior EEO activity played any role in the selections made. Disparate Impact: Claim 2 Complainant asserted that due to his because of his age and in reprisal for prior EEO activity, he was subjected to disparate impact discrimination when the Agency chose not to consider the candidates of GS-11 applicants for the above-mentioned positions. To the extent that Complainant’s assertions can be construed, as determined by the Agency, to be a claim of discrimination due to disparate impact, we agree with the Agency findings on this matter. In general, to establish a prima facie case of disparate impact, the Complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class through presentation of statistical evidence that demonstrates a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994 (1988) (the petitioner must present statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion). Specifically, the Complainant must: (1) identify the specific policy or practice challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on the complainant to show that the facility neutral standard in question affects those individual within the protected group in a significantly discriminatory pattern. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Kimble v. Department of Commerce, EEOC Request No. 05950838 (June 20, 1997). Here, the record contains insufficient evidence to show that the practice identified had a disproportionate impact on older candidates or those who had engaged in prior protected activity. Without such evidence, Complainant is unable to show legally significant statistical disparities. Therefore, Complainant failed to establish a prima facie case of disparate impact discrimination. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2020001188 5 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. 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). 2020001188 6 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 May 19, 2021 Date