[Redacted], Arthur L., 1 Complainant,v.Rostin Benham, Acting Chairman, Commodity Futures Trading Commission, Agency.

Equal Employment Opportunity Commission

Sep 21, 2022

Appeal No. 2021003800 (E.E.O.C. Sep. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arthur L.,1 Complainant, v. Rostin Benham, Acting Chairman, Commodity Futures Trading Commission, Agency. Appeal No. 2021003800 Agency No. CFTC-EEO-FY20-05 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 21, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Industry Economist, CT-0110-14, within the Agency’s Division of Market Oversight (DMO) in Washington, D.C. On September 1, 2020 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and in reprisal for prior protected EEO activity when: 1. since December 2018, management failed to promote Complainant to CT-15, even though he is performing duties comparable to those of a similarly situated CT-15 employee, who is white; and 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. 2021003800 2 2. on November 17, 2020, Complainant received an email notification with the Subject: Product Review Rotation Announcement, to prevent DMO employees from reclassifying his current position as the similarly situated CT-15 employee. Complainant is an Assistant Director for the Product Review Branch (PRB). The record reveals that the CT-15 employee referenced above is Complainant’s first-level supervisor (S1). S1 is the Associate Director for PRB and identifies as white. Claim (1) Complainant is supervisor of the Energy and Metals Unit (EMU), one of two divisions within PRB. The other division, the Financial and Agriculture Unit (FAU), was supervised by another coworker (CW1) at the CT-14 level. CW1 identified as a white person. Both Complainant and CW1 supervised other CT-14 Economists but did not receive increased pay for supervising their respective Unit. In December 2018, CW1 relinquished supervisory responsibilities and became a staff Economist within FAU. In the absence of a supervisory CT-14, S1 directly supervised the FAU Economists, while maintaining supervisory oversight over Complainant and the EMU. S1 acknowledged that the increased responsibilities were “a little bit overwhelming. It’s a lot.” According to S1, his supervisor (S2) suggested that Complainant could be elevated to CT-15 so that he could report directly to S2. S1 acknowledged that Complainant’s promotion did not happen. S1 further explained that, as a CT-15, he supervises other supervisory CT-14 employees while supervisory CT-14 employees do not share the same responsibilities and only supervise CT- 14 employees or below. Specifically, S1 still supervises Complainant. In an effort to advance to the CT-15 level, Complainant requested a desk audit. The Agency’s Human Resources Department retained an independent contractor who conducted a desk audit by interviewing Complainant, reviewing Complainant’s position description, and receiving completed questionnaires from Complainant’s supervisors. The contractor concluded that Complainant’s classification as CT-14 was appropriate and the Human Resources Department accepted the contractor’s report. Complainant met with representatives from Human Resources in July 2019, to seek clarification of the desk audit results. On August 12, 2019, a Human Resources Specialist (HRS) informed Complainant that he had the right to appeal the results of the desk audit. Complainant did not appeal. Complainant argued that the Agency is discriminating against him by failing to promote him to CT-15 because he is performing the same exact duties as S1. Complainant argued that the desk audit result was flawed and misrepresented the nature and scope of his work within EMU. Complainant said he decided not to appeal the results of the desk audit. 2021003800 3 The record contains the Position Description for Complainant’s position. Therein, it states that CT-14 is the position at full performance level. HRS testified that the position does not have promotional potential to CT-15. Complainant continued to raise his concerns with S1 and S2. After S2 retired, Complainant raised his concerns with S2’s replacement (S2a), but Complainant was not been promoted to CT-15. S2a provided testimony in which she observed that Complainant and S1 did not quite perform the same duties. Specifically, S1 performed the duties of an Associate Director, while Complainant did not. Claim (2) On November 17, 2020, PRB announced that CT-14 Economists would be provided the opportunity for a 60-day rotation into a CT-14 supervisory position in FAU. Complainant argued that the rotations harmed him by depriving him of employees, which adversely impacted the EMU’s ability to efficiently perform its duties. Complainant protested that PRB has never before had a rotational program and asserted that his EEO complaint was the impetus for implementing the program. Complainant acknowledged, however, that he did not know whether S2a or S3 were aware of his EEO activities at the time the program was announced. S2a testified that she previously worked in another branch of DMO, in which a supervisory position had become vacant. During her time in the Data and Reporting Branch, S2a observed management offered a rotational opportunity to any eligible staff within the branch, and four out of five eligible employees completed an eight-week rotation. This gave non-managerial staff “the opportunity to prioritize projects, direct the team’s work, and coordinate with other [DMO] branches and [Agency] divisions and offices.” When S2a observed a similar vacancy in PRB, she believed a similar rotational opportunity would benefit PRB staff. S2a sought to minimize the disruptive impact on EMU. Two employees from EMU expressed interest in the rotation, and S2a assigned them the first and third slots. When another employee had scheduling issues with his slot in the rotation, the employees discussed and resolved the matter internally without S2a’s involvement. S3 testifies that she concurred with S2a’s desire to create the rotational opportunity, and that it was to ensure that a CT-14 could lead the FAU under a CT-15 and provide those employees opportunity for growth. 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). 2021003800 4 In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected him to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant reiterates his belief that the desk audit was flawed and contained factual misrepresentations. Complainant argues that the “failure to consider [him] for the promotion he seeks is a stifle to his advancement and his performance.” Complainant further speculates that his supervisory skills would be adversely impacted as a result of having fewer employees to supervise during the rotational program. 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant 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 Constr. Corp. 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. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In this case, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. 2021003800 5 Regarding Claim (1), PRB management adequately explained that they supported Complainant’s promotion to CT-15, but that the decision rested solely with Human Resources which denied the reclassification request based on the contractor’s desk audit. The record further demonstrates that Complainant’s position did not have promotion potential past the CT-14 level. In Claim (2), S2a explained that, in light of the vacancy created by CW1’s move away from supervision, S2a sought to both relieve the burden that S1 assumed through directly supervising FAU economists and supervising Complainant as EMU supervisor, and to give staff economists supervisory experience. For those reasons, S2a created the rotational program. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted based on discriminatory or retaliatory animus. The focus of a pretext analysis is on whether the Agency’s actions were motivated by discriminatory animus. A complainant cannot establish the existence of pretext merely by asserting that a decision was arbitrary, unfair, a mistake, or an error in judgment. Nor is it enough for complainant to disagree with or question the Agency’s actions. A complainant must show that discrimination was the real reason for the Agency’s actions. He must provide evidence and facts that would enable a fact finder to conclude that the reasons given by the Agency are a sham to cover up its real and unlawful motive. Here, Complainant simply does not provide evidence of discrimination or pretext. 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. 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. 2021003800 6 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). 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. 2021003800 7 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 September 21, 2022 Date