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

Equal Employment Opportunity Commission

Jan 12, 2021

Appeal No. 2020005280 (E.E.O.C. Jan. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilfred M.,1 Complainant, v. General Paul M. Nakasone, Director, National Security Agency, Agency. Appeal No. 2020005280 Agency No. 19-020 DECISION On September 17, 2020, 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 September 14, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Industrial Production Control Specialist, GG-12, at the Agency’s Printing Services facility in Fort Meade, Maryland. On August 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability when, on June 11, 2019, a supervisor (Chief) informed him that his promotion package was not being forwarded for further consideration and he would not be promoted to GG-13. The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: 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. 2020005280 2 Complainant was diagnosed with cerebral palsy at birth. His disability impacted his mobility and he used an electric scooter at work and quad canes at home. He attested that his disability did not limit his ability to perform the duties of his job and he had not requested a reasonable accommodation. When asked how management treated him compared to others in the organization without a disability, Complainant attested that he was treated pretty much the same as everyone else. Management generally attested that Complainant’s physical disability was observable because he used a mobility chair. They explained that Complainant’s workspace had been modified to accommodate his disability and enable him to exit quickly in case of an emergency, but there was no indication his disability affected his ability to do his job and he performed the essential functions of his job in a satisfactory manner. Complainant attested that he timely submitted his Performance Review Package (PRP) for consideration for promotion to a GG-13 to his first-line supervisor (Supervisor1). He attested that his promotion package listed all of his major accomplishments required for the GG-13 level. He attested that, on June 11, 2019, he was informed by the Chief that his nomination for promotion was being discontinued. He attested that the Chief told him that his PRP did not have the complexity or expertise for the GG-13 level. Complainant believed that his disability was a major factor in his non-selection for the promotion because he had been trying for 19 years to get promoted. He also attested that, with over 38 years of experience in the same organization and 19 years of trying to get promoted, he believed his accomplishments and experience were at the GG- 13 level. Management explained the promotion process for employees pursuing promotion to the GG-13 level. They generally attested that supervisors were instructed to review all the PRPs that they received, send their manager the packages that they deemed promotable, and supply a nomination statement. However, where the candidate and his or her supervisor were the same grade level, the PRP was to be submitted directly to their manager. The Chief attested that the supervisors forwarded the PRPs of their nominated candidates for promotion to the GG-13 level, he reviewed them, and forwarded his recommendations to his supervisor, who then reviewed those packages and send his recommendations to the board. The Chief attested that Complainant’s package came directly to him because Complainant and his immediate supervisor were the same grade. He attested that he received 8 PRPs for promotion from GG-12 to GG-13, 5 of which he forwarded to his supervisor, who forwarded 3 of the 5 to the board, and, ultimately, 3 candidates were promoted. The Chief attested that he used scoring criteria to evaluate each candidate’s PRP. He attested that Complainant scored in the average range. He attested that Complainant was competing against two very strong leaders who were responsible for supervising 9 and 16 personnel, respectively, and a degreed graphic artist who was responsible for creating the Agency web page and designing Nuclear Command and Control code books. He attested that Complainant’s PRP was not moved forward because the other packages were stronger and supported a promotion to PRP. 2020005280 3 He attested that the candidates he moved forward in the process displayed decision-making skills, trouble-shooting skills, experience leading projects and/or people, whereas Complainant did not display such skills. He also attested that management gave Complainant feedback following prior promotion cycles as to what he could do to be more competitive for promotion. On June 11, 2019, the Chief notified Complainant that he was not moving forward in the process. The Deputy Chief also attested to Complainant’s and the selectees’ qualifications for the promotion. She attested that one selectee had a bachelor’s degree in graphic design, many years of graphic design experience as a contractor and government employee, was cross-trained to fulfill graphic design functions in the non-crypto branch when required, redesigned the Agency webpages, and led the revision of many of the code books, due to her software design skills. She attested that the other selectees had been supervisors of numerous employees, whereas Complainant had not been a supervisor. The Deputy Chief also attested that management had been advising Complainant for 15 years that he needed to expand his skills, but Complainant always felt it was his supervisor’s responsibility to supply him with projects to move his career along. Complainant’s PRP is of record and generally indicates excellent and successful performance ratings and performance awards. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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, 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”). Complainant alleged the Agency treated him disparately in not selecting him for promotion to a GG-13 level because of his disability. Complainant’s disability is not in dispute. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020005280 4 For a complainant to prevail, he must first establish a prima facie case 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 at n.13; 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions, as discussed above. The Agency explained that Complainant was not selected for promotion because other candidates’ packages were stronger and better supported their promotion, particularly as theirs demonstrated decision-making and troubleshooting skills and experience leading projects and/or people, whereas Complainant’s lacked such skills and experience. In the absence of evidence of a discriminatory motivation, the Agency generally has discretion to choose among equally qualified candidates. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 259. In addition, the Agency has the discretion to choose among applicants who have different but equally desirable qualifications. See Canhan v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Here, Complainant has not produced sufficient evidence to dispute the selectees’ qualifications or establish that he has superior qualifications to them. See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). We recognize that Complainant had served as an Industrial Production Control Specialist for 19 years and had been passed over for promotion multiple times. However, length of service in a position, in and of itself, is not sufficient to establish that one is a superior candidate for promotion. We also note that Complainant attested that management treated him the same as employees without a disability. Therefore, we find that, although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non- discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to this claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2020005280 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). 2020005280 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 January 12, 2021 Date