Scott J.,1 Complainant,v.John F. Lansing, Director, Broadcasting Board of Governors, Agency.

Equal Employment Opportunity Commission

May 6, 2020

2019003519 (E.E.O.C. May. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scott J.,1 Complainant, v. John F. Lansing, Director, Broadcasting Board of Governors, Agency. Appeal No. 2019003519 Agency No. OCR 18-09 DECISION On May 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 April 17, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether Complainant was discriminated against based on sex (male) and/or national origin (Peoples Republic of China or P.R. China), when on November 17, 2017, he discovered that following the June 7, 2017 Benchmark Survey, he would not be promoted to GS-13 when similarly situated employees, in grade and function, were promoted. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an International Broadcaster at the Agency’s China Branch, East Asia and Pacific Division facility in Washington, D.C. 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. 2019003519 2 On March 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (P.R. China) and sex (male) when: 1. On November 17, 2017, Complainant discovered that, following the June 7, 2017 Benchmark Survey (Survey), he would not be promoted to GS-13, as similarly situated employees in grade and function were promoted. In April 2017, the Agency conducted a Survey that required immediate supervisors to complete questionnaires for each International Broadcaster (IB) under their supervision. The questionnaire included the following three parts: Part I: Content Preparation, which contained seven Yes/No questions; Part II: Indicators, with three Yes/No questions; and Part III: Attestation by Immediate Supervisor. After the Survey, four of 31 IBs received promotion from GS-12 to GS-13. The Survey’s benchmarks were established and, based on Office of Personnel Management (OPM) Classification Standards, were used for classifying all IB positions. Report of Investigation (ROI) Ex. 7 at 98. Two of the individuals who received promotions were IB1 and IB2, both Taiwanese females. The other two individuals were IB3 (unspecified national origin, male) and IB4 (unspecified national origin, female). The Survey was used to provide the Office of Director and Office of Human Resources with information necessary to determine whether the work of the employees warranted classification as an IB at the GS-13 level. In Survey: Part I, Complainant received six No responses, and one Yes. Part I: Content Preparation included the following possible answers and questions: YES. (All parts of this question are TRUE of this employee.) NO. (One or more parts of this question are NOT TRUE of this employee.) 1. Does the employee make assignments of news-related program content and/or independently conceive and execute complex writing assignments, and/or approve editing and lineups of the day’s program content in one or more VOA program media (Radio/TV/Web-Social Media) AND is the employee’s written news material considered a model? 2. Does the employee assign topics for feature stories and/or independently conceive and execute complex writing assignments, and/or approve and determine usage of final features-related products in one or more VOA program media (Radio/TV/Web-Social Media) AND is the employee’s written material and his/her production considered a model? 3. Is the employee responsible for editorial content of a daily programming block in one or more VOA program media (Radio/TV/Web-Social Media), including assignment of reporter/stringer reports and assessment of reporter/stringer performance AND does the content and continuity of the programming over which the employee has editorial responsibility flow effectively AND is the programming over which the employee has editorial responsibility flow effectively AND is the 2019003519 3 programming for which the employee has editorial responsibility comprehensive, appealing, and free of all but the occasional minor error? 4. Does the employee make assignment of reporters, anchors, producers and/or videographers covering news events and news and/or feature stories for use in one or more VOA program media (Radio/TV/Web-Social Media) AND do these assignments generate a significant portion of the weekly coverage content AND is the resulting finished original material accurate and well-written, including sophisticated production when required, and free from all but the occasional minor error? 5. Does the employee participate in the development of regularly scheduled programming in one or more VOA program media (Radio/TV/Web-Social Media) AND does the employee approve final product and determine its usage AND do the assignments selections reflect complete comprehension of VOA’s mission, as well as audience needs and staff capabilities AND does the employee demonstrate skill in analyzing material, as well as skill in requiring, explaining, and guiding re- writes while maintaining productive working relationships? 6. Does the employee participate in the development of special programming in one or more VOA program media (Radio/TV/Web-Social Media) AND does the employee assign and generate special events coverage within the Service or Branch AND do the assignment selections reflect complete comprehension of VOA’s mission, as well as audience needs and staff capabilities AND does the employee demonstrate skill in analyzing material, as well as skill in requiring, explaining, and guiding re-writes while maintaining productive working relationships? 7. Does the employee function as executive producer for the Service or Branch for a VOA Radio or TV program, giving out dialing production assignments AND does he/she make significant creative contributions to overall sound and/or video quality of programs, and is the feel for media-applicable factors such as sets, lighting, camera configurations, switching, pacing, timing, and use of varied production elements excellent? Complainant received a “YES” on question five, and “NO” on the other six question prompts. IB1 received “NO” on questions four and seven, and “YES” answers for the other five question prompts; IB2 received a “NO” on question seven and “YES” on questions one through six; IB3 received seven “YES” answers; and IB4 received “NO” answers on questions three, four, and seven, and “YES” answers on the remaining question prompts. 2019003519 4 Part II: Indicators included the following possible answers and questions: Accurate concerting [sic] employee’s responsibilities, and are performed on a regular and continuing basis, requiring a substantial portion (at least 25%) of employee’s time on a weekly basis Not accurate concerning the employee’s responsibilities INDICATOR A: The employee has full editorial responsibility for directing the development and production of a substantial block of complex programming of major importance to VOA in one or more VOA program media (Radio/TV/Web-Social Media), including responsibility for the content, style, and tone of the program. INDICATOR B: This employee demonstrates a mastery of one or more VOA program media (Radio/TV/Web-Social Media) principles, practices, and techniques. INDICATOR C: Does the employee, because of demonstrated programming need, give evidence of the ability to target the program in one or more VOA program media (Radio/TV/Web-Social Media) to audience, and does the employee conceive, develop, and apply fresh, new approaches to programming, including new program formats AND does the employee constantly adapt and re-create the programming to present additional materials in an effective and balanced manner and to attract and retain audiences? In Survey: Part II, Complainant received three “NO” answers, whereas IB1, IB2, IB3, and IB4 all received three “YES” answers. Survey, Part III: Attestation by Immediate Supervisor stated that the individual, “attest to the accuracy of each statement [they] have checked above. [They] understand that the purpose of these statements is to assist in determining the appropriate grade level of work being performed by the employee whose name appears at the top of page one of this form. [They] further understand that [their] statements in response to these questions will be used for statutory purposes relating to the grade and pay level assigned to this employee and the payment of public funds.” ROI Ex. 12 at 125-129. 2019003519 5 Complainant received a “NO,” and the four other IBs received “YES,” responses. The Survey noted for both the GS-12 and GS-13 positions that the, “responsibilities must be performed at the level described on a regular and continuing basis, requiring a substantial portion (at least 25%) of the employee’s time on a weekly basis.” ROI Ex. 15 at 140. Complainant received a letter dated June 7, 2017, informing him of his non-promotion. Complainant stated that he was initially disappointed, but it was not until November 2017, that he discovered that his two coworkers, IB1 and IB2, were promoted. Complainant stated that IB1 and IB2 share the same position description and performed the same or similar duties, yet they were both promoted, and he was not. Complainant’s duties were summarized as him being: “the anchor/host of a daily one hour Mandarin Service television show … [and that] this show is developed for broadcasting in the afternoon at VOA, morning in China. He also was instrumental in developing this show in 2016 after Congress mandated that … an hourly program [be added] in Mandarin. During this show, he has complete editorial responsibility for a 15 minute [one on one] interview segment.” ROI Ex. 19 at 176. Complainant stated that his immediate supervisor did not fill out the Survey, and the individual who did fill out the Survey did not speak with Complainant about his duties, or with Complainant’s immediate supervisor. The Senior Advisor to the Director (SA) (from the United States, male) stated that it was his understanding that the Survey was to be filled out by the employee’s supervisor, but that it was not necessary to discuss the questionnaire with the employee. ROI Ex. 9 at 113. The Managing Editor, who was Complainant’s former first-level supervisor (FS1) (China, male) for years, was tasked with completing the Survey, allegedly based on his prior experience working with Complainant. At the time of the Survey, FS1 stated that Complainant was one of the employees under his supervision. ROI Ex. 8. FS1 stated that his immediate supervisor was the Mandarin Service Chief (MSC)(unknown national origin, female), who is the individual who assigned FS1 to complete the Survey for Complainant, and who is no longer with the Agency and was not interviewed during the investigation. FS1 and MSC worked together on the responses for the Survey. ROI Ex. 8. Complainant’s immediate supervisor (S1) (Republic of China - Taiwan, female) testified that Complainant was her immediate employee. She was aware of the Survey, but she did not take part in the survey. ROI Ex. 10 at 2. S1 also stated that she was the executive producer of the show Complainant hosted, and that she knew Complainant for 10 to 15 years. In response to the question of whether Complainant’s position description was identical to and that he performed identical or similar duties to IB1 and IB2, who were both promoted from GS-12 to GS-13, she stated: “[Complainant] had performed the exact same duties as a morning talk show host before joining the newly established afternoon TV show in September 2016. In the afternoon TV show, he conducted live interviews, crafted graphics ideas, show elements, camera shots, and participated in editorial decisions, which were as complicated as morning talk show host duties.” Id. at 3. 2019003519 6 When S1 was asked whether Complainant’s sex and/or national origin were a factor when he was not promoted, S1 stated that she had no comment. Id. On July 14, 2017, Complainant appealed his non-promotion, at which time Complainant had an opportunity to submit documentation to support his argument for advancement through a classification appeal. As part of his classification appeal, Complainant pointed to a 15-minute program that he produced during the larger, 60-minute program. ROI at 153. In response to Complainant’s appeal, human resources (HR) conducted a Classification Review of Complainant’s position through a desk audit. An HR specialist (HRS) (American, male) conducted the review of Complainant’s position, appeal of the Survey results, as well as conducting an interview of Complainant’s supervisor.2 HRS stated that, based on a comparison of Complainant’s duties and responsibilities to those of the OPM Position Classification Standards, Complainant did not meet the criteria for a GS-13. The HR Director (HRD) (European, female) averred that the criteria used to determine the promotion of IBs was based on the OPM Position Classification Standards used for all IB positions. HRD stated that the assessment of Complainant’s duties was based on what Complainant’s supervisor stated his duties and responsibilities were, as HR would not have any knowledge of what tasks an individual performs. Additionally, HRD testified that HR would not know who Complainant’s immediate supervisor was, and that the Agency’s East Asia and Pacific Division would have that information. On February 2, 2018, HR presented Complainant with a denial letter upholding the decision not to promote him to a GS-13. In its February 2, 2018 memorandum to Complainant, HR stated that the 15-minute segment of a 60- minute program was not a major daily block, and his, “tasks do not involve ‘full editorial responsibility for a substantial block of complex programming.’” ROI at 153. Complainant initiated an informal complaint of discrimination on November 21, 2017. The complaint was not resolved, and he was issued a Notice of Right to File a formal Complaint of Discrimination on February 28, 2018. Complainant filed a formal complaint on March 5, 2018, and it was accepted for investigation on September 17, 2018. 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 Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his appeal brief, Complainant alleged that discrimination occurred when two colleagues in identical positions who performed the same or very similar duties were promoted to GS-13, while he was not. Complainant stated that S1 confirmed that Complainant performed the exact same duties as a morning talk show host, and that Complainant’s duties on the afternoon TV show were as complicated as morning show host duties. 2 It is unclear from the record which supervisor was interviewed during the classification appeal. 2019003519 7 Complainant averred that the SA, who was a previous upper level supervisor to Complainant, stated that, during those previous years, Complainant did very similar work as two of the individuals who were promoted. Complainant argues that the Survey did not meet the Agency’s requirement that the Survey be conducted by the employee’s immediate supervisor. Complainant stated that SA supported his assertion that the Survey was required to be conducted by the employee’s supervisor. On appeal, the Agency contended that it assessed employees using the Survey’s benchmarks established by OPM. The Agency stated that four out of thirty-one IBs (Mandarin) employees in the Agency’s China Branch, East Asia and Pacific Division were promoted from GS-12 to GS-13. The Agency further states that two of the four promoted individuals are of a different sex and national origin than Complainant. The Agency reiterated that, while the evidentiary burden shifts from Agency to Complainant, it is ultimately Complainant who must demonstrate that the Agency intentionally discriminated against him. The Agency argued that it has articulated a legitimate, nondiscriminatory reason for its action. Namely, the Agency used OPM’s criteria in its Survey to determine whether or not an employee would be promoted. The Agency stated that using the Survey, Complainant did not qualify to be promoted from GS-12 to GS-13, and Complainant did not provide any evidence that the Agency’s articulated reasons are pretext for unlawful discrimination. 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 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2019003519 8 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). When determining whether Complainant has established his prima facie case of disparate treatment we first look to see if Complainant was subjected to an adverse employment action. Complainant was not promoted from a GS-12 to a GS-13; therefore, he has demonstrated that he was subjected to an adverse employment action. We next see whether that adverse employment action occurred under circumstances that would support an inference of discrimination. Three of the four individuals who were promoted from the GS-12 to GS-13 were female and Complainant’s sex is male; therefore, they were outside of Complainant’s protected class. Additionally, two out of four of the promoted individuals were also outside of Complainant’s national origin of P.R. China, as their national origin was Taiwan. We find that Complainant has established his prima facie case of disparate treatment. The burden now shifts to the Agency to articulate a legitimate, nondiscriminatory rationale for its actions. The Agency’s articulated legitimate, nondiscriminatory reasons for not promoting Complainant were the plainly superior Survey results of IB1, IB2, IB3, and IB4. It is Complainant’s burden to demonstrate that the Agency’s legitimate, nondiscriminatory rationale is a pretext for discrimination based on Complainant’s sex and/or national origin. Complainant averred that FS1 attempted to hide his intention to discriminate against Complainant. Complainant alleged that his evidence of discrimination is the promotion of IB1 and IB2, who he alleged performed the same or very similar duties to him. Complainant cites to his immediate supervisor to substantiate this claim. Complainant argues that the fact that his immediate supervisor was not the one to conduct his Survey, as required, was further evidence of the Agency’s discriminatory conduct. Finally, Complainant stated that the Survey should have been based on what an employee does, and not how well he does it. While Complainant demonstrated that the Agency did not adhere to the guidelines it set out in conducting the Survey to determine who would be promoted from GS-12 to GS-13, he has not demonstrated that the lack of adherence was motivated by Complainant’s sex and/or national origin. The Agency was supposed to have the immediate supervisors of the IBs complete the Survey questionnaires. Instead of S1 completing the Survey, his previous immediate supervisor, FS1 did. Complainant contends that because his current, immediate supervisor was not the one to fill out the Survey, the questionnaire was not filled out accurately. He contends that this was done because of his sex and/or national origin. The rationale for not having Complainant’s immediate supervisor conduct the Survey is unclear from the record, but Complainant does not put forth any evidence to indicate that the decision was connected to his sex and/or national origin. Complainant also averred that his work was the same as IB1 and IB2, and they were promoted while he was not. However, Complainant does not provide any evidence, beyond the mere assertion, that his sex and/or national origin were the basis for his non-promotion. Complainant asserted that he performed the same duties as IB1 and IB2. 2019003519 9 Complainant does not provide any evidence to corroborate his allegation that he and IB1 and IB2 all performed the same or significantly similar duties, and therefore he should have received the same amount of “Yes” responses on the Survey as those two individuals. Only four of thirty-one IBs were promoted, and the determination to make those promotions was made based on each individual’s Survey results. While a desk audit was conducted on Complainant’s work, and we have his survey results and those of IB1 and IB2, there is not enough information between those items, or any other information in the record, to establish that Complainant was entitled to receive the same number of “Yes” responses, and therefore that he should have received the promotion as IB1 and IB2 did. The record indicates that the four individuals who were promoted all had superior Survey results compared to Complainant, and that one of the four is a male, and two of the four were of unknown national origin. The record does not support Complainant’s assertion that he received more “No” responses based on his sex and/or national origin. Instead, the record indicates that Complainant’s FS1 and MSC worked together to provide the best Survey responses. Additionally, as noted previously, a desk audit was conducted, again using the OPM Classification Standards and an interview of Complainant’s supervisor by HR, and it was determined that Complainant’s work met the GS-12, and not the GS-13 standards. This audit was done by individuals who were not involved in the original decision, who were not aware of Complainant’s national origin, and Complainant has not demonstrated that the desk audit was conducted in error or that the findings were erroneous. We affirm the findings of the FAD of no discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD and find there is no unlawful discrimination. 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). 2019003519 10 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. 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. 2019003519 11 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 6, 2020 Date