U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Pasquale D.,1
Complainant,
v.
Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120182252
Agency No. HHSCDC02362017
DECISION
On June 20, 2018, 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
May 23, 2018, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.
ISSUES PRESENTED
Whether the Agency’s final decision (FAD) correctly determined that Complainant failed to prove
that he was subjected to discrimination based on his color, race, and national origin when:
1. On January 24, 2017, during a Performance Management Appraisal Program (PMAP)
meeting, his supervisor made derogatory comments about his request for promotion.
2. Between the dates of January 24, 2017 - March 21, 2017, management did not promote
him to the grade level of a GS-0110-15 Economist.
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.
0120182252
2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Economist, GS-
0110-14 at the Agency’s Community Guide Branch (CGB), Division of Public Health Information
Dissemination (DPHID), Center for Surveillance Epidemiology and Laboratory Sciences (CSELS)
at the Center for Disease Control and Prevention (CDC) facility in Atlanta, Georgia. On May 16,
2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on
the bases of race (Asian), national origin (India), and color (Brown) as set forth above.
Claim 1
Complainant alleged that the Branch Chief, his then first-level supervisor (S1A), made derogatory
remarks during his 2016 annual PMAP meeting after he raised the issue of not being promoted to
GS-15. Complainant stated that he explained to her the problems he was having because he had
not been promoted. He stated that his low grade and low salary, both accessible online, were
incompatible with his reputation as an accomplished and respected Economist and was
humiliating. Complainant asserted that S1A responded by lecturing him about public health,
commenting on his culture, and telling him she knew that in his culture, money was very important.
Complainant maintained that the 2016 PMAP was the latest in a series of meetings with S1A dating
back to 2007, in which he raised the issue of promotion; and that each time S1A provided different
reasons why he could not be promoted.
He pointed out that during S1A’s meeting with the EEO counselor regarding the instant complaint,
she stated that she would write him an excellent letter of recommendation to use for applying for
jobs outside the Branch and Division. Complainant questioned why S1A was willing to write him
a “glowing” recommendation for external vacancies but was reluctant to write a similarly
supportive recommendation advocating that higher-level management promote him within his own
position. Complainant acknowledged that he raised a concern about the accessibility of his salary
information online, explaining that he did so because of the “indignities” he experienced as a result
of the information being so readily available. He stated that it was humiliating for his colleagues
to know his “low” grade and salary, compared to other comparably accomplished and esteemed
professionals.
S1A denied making derogatory remarks about Complainant’s color, culture or nationality during
his 2016 PMAP annual meeting. She stated that Complainant brought up the issue of money and
let her know that he was upset because a Google link showed his salary when someone searched
for his name. She added that Complainant understood that the salary information for federal
employees was a matter of public record, but he wanted CDC to pay to have the Google link
removed. She stated that Complainant explained that someone from India appeared to be searching
for Indian expatriates online, saw his salary, and then contacted him trying to get him to contribute
to a cause in India.
0120182252
3
She asserted that in addition to being upset about the availability of his salary information,
Complainant also did not want people to readily see that his salary was not as high as he thought
it should be; and that when Complainant raised the issue of promotion, she explained to him that
the Branch did not have a GS-15 Economist position and therefore, she did not have authority to
promote him non-competitively.
S1A denied lecturing Complainant about public health, noting that she recently hired S1C, who is
from India, to fill the position of Systematic Review Science (SRS) Team Lead, a position
equivalent to a deputy director of science. She stated that following the PMAP meeting with
Complainant, she met with the Deputy Branch Chief to discuss the issues of promotion and the
availability of Complainant’s salary information, asserting that the two of them met that same day
with the Division Deputy Director for Management and Operations to see if there was a way to
address the issues raised by Complainant but they were unable to find any non-competitive route
to promote Complainant to GS-15 within the Branch or Division.
In rebuttal to S1A’s testimony, Complainant asserted that his January 2017 PMAP meeting with
her was not the first time she denied him promotion, contending that S1A had never taken proactive
measures to advance his promotion to higher levels of management.
Claim 2
Complainant stated that he raised the issue of a promotion during his January 24, 2017 PMAP
meeting with S1A, explaining that he had been eligible for a promotion for many years. He
testified that he applied for a GS-15 Economist positions multiple times in the past, but those
positions were outside the Branch, were not in his specific area of expertise, and/or were not based
in Atlanta. He thought that a promotion to GS-15 within his own position was long overdue,
explaining that he was the principal economic advisor for the U.S. Community Preventive Services
Task Force, was listed as a Thomson Reuters Highly Cited Researcher, was the only social scientist
from CDC to be in this group, and provided other examples of his experience and qualifications to
support his request for a promotion.
Complainant identified three other Economists as being treated differently than he was treated.
They were C1, who worked outside of his unit; C2, who also worked outside of his unit; and C3,
who held a position as a General Health Scientist, not an Economist. Complainant asserted that all
three had received non-competitive promotions to GS-15 level: C1 and C2 in 2009; and C3 in
2011. Complainant stated that all three of these individuals were white males born in the United
States. He noted that C1 and C2 did not become branch chiefs or supervisors when they were
promoted but held non-supervisory Economist positions. Complainant claimed that S1A did not
provide him with any acceptable reason why he could not similarly achieve a non-competitive
promotion to GS-15 within his own position.
Complainant stated that S1A informed him that she could not promote him to a GS-15 Economist
position, asserting that she told him that the Branch did not have a GS-15 vacancy to fill.
0120182252
4
Complainant stated that she did not provide him with any other justification, noting that he asked
her if it was because the Branch did not have the money; and she replied that it was not because
the Branch did not have the money, but the lack of a GS-15 Economist position in the Branch.
Complainant stated that two months after the meeting with S1A, he went to S1B, explaining that
he told S1B about his request for a promotion and his salary information being readily available
on the Internet, and other issues he had raised with S1A during his PMAP meeting in January. He
stated that S1B asked him how C1, C2, and C3 received non-competitive promotions; and that he
told her about an email he received from C2, which indicated that if he had a person who wanted
to make it happen, it will happen. Complainant indicated that C2 had disclosed that S1B was
instrumental in helping with his promotion.
Complainant stated that he forwarded the email from C2 to S1B; and that S1B suggested he request
a desk audit from Human Resources (HR). He asserted that he waited three weeks, expecting to
hear something back from S1B about being promoted, and when she did not respond as he
expected, he initiated the instant EEO complaint. Complainant alleged that he has been
discriminated against since 2006, asserting that all of his requests for promotion, which he made
to S1A or S1B, the previous SRS Team Lead, have been denied.
Management denied withholding an available promotion from Complainant; and both S1A and
S1B insisted that Complainant occupied a non-career ladder position with no promotion potential
above the GS-14 level. They noted that the only GS-15 position in the Branch, is that of the Chief,
S1A’s position, because it is a supervisory position; and that S1B, who is the Deputy Chief, is a
GS-14 and the SRS Team Leader, to whom Complainant reports for supervision, is also a GS-14.
S1A and S1B stated that no amount of supporting Complainant or persuading higher-level
management to non-competitively promote him to GS-15 could make it happen and insisted that
Complainant was simply not eligible for a non-competitive promotion in his current position; and
his only path to GS-15 was by competing for vacant GS-15 positions.
S1A stated that she and Complainant discussed his request to be promoted to GS-15 during the
PMAP meeting on January 24, 2017; and that he provided a number of reasons why he should be
promoted, including being a Thomson Reuters highly-cited researcher, the only CDC employee in
the social science area to receive this distinction. She affirmed that he has been a GS-14 for a long
time and that other Economists, including some he had trained, had been promoted to a GS-15;
and that he mentioned three white males who had been promoted to the GS-15 level and told her
that if he did not receive a promotion, he would bring up the issue of race.
She also stated that she told Complainant there was not, nor had there ever been, a GS-15
Economist position in the Branch. According to S1A, Complainant was not eligible for a
promotion within the CGB because there were no GS-15 positions within the Branch other than
the Branch Chief. She noted that Complainant was in a GS-14 position based on the complexity
of the work he performed, asserting that there were no GS-15 Economist positions at the Branch
or Division level. She stated that even given these facts, she told Complainant that she would
nevertheless look into his request for a promotion; and that she asked S1B to follow up.
0120182252
5
S1A stated that Complainant informed her that he might have to go outside the Branch, outside
the Center or even outside the CDC, to find a GS-15 position. She stated that she acknowledged
this and told Complainant that sadly, other employees have left in order to be promoted when they
“topped out” in their positions within the Branch; and that Complainant was upset that people he
had supervised in the past had been promoted to GS-15, but he was still a GS-14.
S1A affirmed that Complainant had made requests for a promotion in the past to either herself or
to S1C, asserting that she had not promoted any other employees to GS-15; and that she had no
knowledge of how C1, C2, or C3 were promoted to GS-15 Economist positions. She disagreed
with Complainant’s assertion that he had not been promoted because of his color, race or national
origin, noting that she is an active member of the Diversity and Inclusion Committee for her
Division.
S1B affirmed that Complainant sent her an email requesting a meeting; that they met to discuss
his request for a promotion; and that Complainant’s email mentioned his PMAP meeting with S1A
and his request for promotion to GS-15. S1B explained that Complainant contacted her because
he did not want to bother S1A due to a death in her family, adding that S1A had informed her that
Complainant was seeking a promotion and recommended he talk to her. She also affirmed that
prior to her meeting with Complainant, she and S1A had a conversation with the Division Deputy
Director for Management and Operations, who stated that Complainant’s position was graded at
the GS-14 level with no promotion potential to GS-15.
S1B stated that during her meeting with Complainant, he told her his salary information was
available on the internet and he was receiving emails from people in India requesting money from
him; and that she responded that she had no control over his salary information being available
online. She also stated that Complainant cited his twenty-year tenure at the GS-14 level and told
her other Economists in other Centers within CDC had been promoted to GS-15, noting that he
mentioned C1, C2, and C3 as similarly situated individuals who were promoted to GS-15
Economist positions non-competitively. She stated that she responded by telling him she had no
information of how the others had been promoted; and that Complainant forwarded the email he
received from C2 but he did not provide any specific information about how C2 or the others
achieved promotions.
S1B asserted that she explained to Complainant that as far as she knew, there had to be a vacant
GS-15 position in the Branch for him to be promoted; and that she told him there was not a GS-15
Economist position in their Branch. She also affirmed that the only GS-15 position was the Branch
Chief, S1A, explaining that there was not a non-competitive path to promotion within their Branch.
She stated that she did not provide Complainant with a formal denial to his request for a promotion,
but she advised him to look for an open GS-15 level position to apply. She also affirmed that she
suggested that he request a desk audit of his position, whereby Human Resources (HR) would
assess his work and responsibilities to determine if they matched his grade level, adding that it was
her opinion that Complainant’s assertion that he had not been promoted due to his race, color or
national origin was incorrect.
0120182252
6
Complainant stated that he appreciated S1B’s desire to help him with his promotion request by
suggesting the possibility of a desk audit by HR to determine if he was working at a higher level;
and he wondered why S1A never mentioned this opportunity in the past, noting that he decided
not to take advantage of the desk audit option. He stated that S1B wanted to find out more about
how the three other Economists had been promoted to GS-15, reiterating that he forwarded her the
email from C2. He stated that he was waiting for further instructions from S1B about how to
proceed with his promotion request; that he did not know she wanted him to follow up with more
information about how those promotions were accomplished; and that he thought S1B could find
out more information through her own sources. He asserted that after he waited three weeks
without a response from her, he assumed she lost interest in his case.
Regarding S1B’s statement that he was incorrect in his assertion that he was not promoted due to
his race, color or national origin, he stated that she had only been with the Branch for a short time
and may not have complete information about his entitlement for promotion. Complainant
asserted that it is not S1A’s inability to promote him that stood in his way, but her lack of desire
to want to promote him. He reiterated that he had observed that three other GS-14 Economists
had receive non-competitive promotions, and that a fourth Economist received a non-competitive
promotion to GS-14. He also insisted that S1A knew that she could promote any staff at any time
without having an open position.
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. 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). The decision concluded that Complainant failed to prove
that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the contentions that were set forth above, and maintains that
management’s explanations lack credibility.
The Agency did not submit a statement on appeal.
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”).
0120182252
7
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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 Constr. 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, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, national origin, and color; we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged management actions.
Regarding Claim 1, S1A denied making derogatory remarks about Complainant’s color, culture or
nationality, asserting that it was Complainant who had raised the issue of money during his PMAP
meeting when he disclosed the results of a non-work related public Google search he claimed had
been conducted for his name in India; and that Complainant understood that salary information of
federal employees was a matter of public record but wanted the Agency to pay to have the Google
link removed. Complainant did not refute these denials and assertions. Rather, he contended,
without supporting evidence, that S1A could promote any staff within the Branch but never took
proactive measures to promote him.
Regarding Claim 2, management did not dispute Complainant’s expertise in his field. Rather, they
explained that Complainant was not promoted to the grade level of a GS-15 Economist because he
occupied a non-career ladder position with no promotion potential above the GS-14 level. Again,
Complainant did not refute management’s explanation; he instead insisted that S1A knew she can
promote any staff at any time without having an open position.
In an effort to show pretext, Complainant contended that S1A had never taken proactive measures
to advance his promotion to higher levels of management and asserted that his 2016 PMAP
meeting with her was not the first time she denied him promotion. However, S1A explained, and
S1B confirmed after S1A brought the matter to her attention, that S1A lacked the authority to
promote Complainant non-competitively to a GS-15 because the only position at that level was the
Branch Chief, S1A’s position. Complainant disagreed with management’s explanations but that
disagreement, without other evidence, does not demonstrate that his non-promotion within the
Branch was motivated by discriminatory animus.
0120182252
8
Besides, S1A’s statement that she hired S1C, a supervisory employee from India buttresses
management’s assertion that Complainant’s non-career ladder position with no promotion
potential, not his protected classes, was the reason for his non-promotion. Complainant also
contended that he could be non-competitively promoted from GS-14 to GS-15 within his own
position. As comparators, he identified C1 and C2 in 2009, and C3 in 2011, as having received
non-competitive promotion. However, the record indicates that C3 is a General Health Scientist,
not an Economist; and C1 and C2 hold positions outside of Complainant’s Branch.
We find no persuasive evidence of pretext. Moreover, as Complainant did not request a hearing,
we do not have the benefit of an Administrative Judge’s credibility determinations; therefore, we
can only evaluate the facts based on the weight of the evidence presented to us. We therefore find
that Complainant has failed to demonstrate by a preponderance of the evidence that discrimination
occurred or that the Agency subjected him to disparate treatment as alleged.
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 FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
0120182252
9
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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
August 30, 2019
Date
