U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gwendolyn G.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 2019005389 Hearing No. 570-2017-01485X Agency No. DOS-0007-17 DECISION On July 31, 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 July 1, 2019, final order concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was as a Foreign Service Officer, FS-03, on Leave Without Pay status as the “trailing member” of a tandem couple composed of two Foreign Service officers, one of whom was assigned to a foreign post. On November 29, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when: 1. On September 1, 2016, Complainant was not among those selected for promotion from FS-03 to FS-02. 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. 20190053892 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on May 22, 2019. Specifically, the AJ found that Complainant failed to establish a prima facie case of either disparate treatment or disparate impact. The AJ found that, of the 185 candidates reviewed for promotion within Complainant’s career “cone”, or specialty (Public Diplomacy), 60 were deemed promotable and of that total, 37, or almost 62%, were female. Hence, the AJ concluded Complainant failed to establish a prima facie case of discrimination based on sex. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Disparate Treatment Complainant maintains that she has not been promoted “in spite of clearly achieving the required criteria for promotion while other officers with similar or less demonstrated skill and potential have been promoted.” Complainant further argues that the reason she was not promoted is because gender identifiers are included in the materials reviewed by the Promotion Boards and unconscious bias results in candidates with female-sounding names being evaluated more harshly than 20190053893 candidates with identical qualifications and experience but with male-sounding names. While such an argument is in essence a claim alleging disparate impact, we shall nevertheless also address Complainant’s claim under a disparate treatment analysis. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of disparate treatment. We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action. We note initially that the record shows that Complainant was mid-ranked by the board and so was not considered for promotion. The various board members who evaluated the 185 FSOs within Complainant’s “cone” of Public Diplomacy consisted of four women and two men. Each member averred that they had no recollection of Complainant but that they evaluated the records of all 185 candidates and selected those for promotion based on the candidates’ personnel files and not based on sex. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet this burden. In non- selection cases, pretext may be found where the complainant's qualifications are demonstrably superior to those of the selectee or selectees. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the discretion to choose among equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). Complainant maintains that her own qualifications were deserving of a promotion, but she has not shown her qualifications were demonstrably superior to those of any of the male FSOs from her Public Diplomacy Cone who 20190053894 were promoted. While Complainant may not have access to the personnel files of her colleagues, we note that she has not provided affidavits or any other evidence showing that colleagues were aware of at least one male FSO who was promoted and whose achievements were less impressive than those of Complainant. Instead, Complainant merely surmises that her own file was so impressive that the likelihood of her achievements being less impressive than that at least one promoted male FSO is so unlikely as to satisfy her level of proof. We are unpersuaded by Complainant’s argument, however, and note in this regard that one member of the board averred that "some employees - including some very good ones - did not make the cut this year, just as some good ones do not make it every year." Finally, we note that Complainant herself agrees that the board members did not intentionally discriminate based on sex. We therefore find that Complainant has not shown that she was subjected to disparate treatment. Disparate Impact In general, to establish a prima facie case of disparate impact, a 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 complainant 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 facially neutral standard in question affects those individuals 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). The AJ found that Complainant failed to establish a prima facia case of disparate impact. We agree. We first note that Complainant has identified the Agency policy of using employees’ names and gender-identifying pronouns in their personnel records, which, Complainant maintains, leads to unconscious discrimination against female candidates due to implicit bias. Complainant has submitted voluminous scholarly articles attesting to the existence of implicit bias and showing that removing gender-identifying information from a candidate’s record results in female candidates being evaluated more highly than would otherwise be the case with the gender-identifying information present. We therefore find Complainant has satisfied step one of the Watson three- step test. We further find, however, that she has not satisfied step two. Complainant has submitted statistical evidence showing that 265 Foreign Service generalists were promoted from FS-03 to FS-02 in 2016, and that 56.6% of them had names that were “clearly identifiably male”, while only 31.8% had names that were “clearly identifiably female.” Complainant further identifies an additional 11.6% of candidates who had names that were neither clearly identifiably male or female. Complainant argues that “even if all the ‘unclear’ names were female, which is unlikely, there would still have been significantly more men promoted than women.” We note, however, that Complainant has not shown the gender makeup of all FS-03 Foreign Service generalists, including those who were not promoted. If 56.5% of the 265 FS-03 Foreign 20190053895 Service generalists promoted to FS-02 had clearly identifiable male-sounding names, while 31.8% had female-sounding names, that means at least 150 of those promoted were presumably males and from 84 to 116 (assuming arguendo that all unclear names were in fact females) were presumably females. However, such a difference in the numbers of males and females being promoted is not indicative of sex discrimination unless one knows the gender make-up of the total pool of FS-03 Foreign Service generalists from which the 265 were promoted. If, hypothetically the total pool consisted of 1,000 males and just 84 (or 116) females, that would mean 100% of the females were promoted while only 15% of the males were promoted, which is hardly indicative of sex discrimination against women. Because Complainant has not provided the gender makeup of the pool of all FS-03 Foreign Service generalists at the time of the 2016 promotion, there is no statistical significance to the percentage of males promoted. The same problem arises with Complainant’s statistical evidence showing that male FSOs are promoted with less time in grade than female FSOs. Complainant argues that with regard to Foreign Service generalists promoted to FS-02 in their second year of eligibility, 52% had clearly identifiable male names, 34% had clearly identifiable female names, and 15% had names that were not clearly gendered. With regard to generalists promoted to FS-02 in their first year of eligibility, 55% were clearly identifiably male, 31% were clearly identifiably female, and 14% were not clearly gendered. Complainant argues that this evidence shows that male FSOs are promoted more quickly than female FSOs. However, since Complainant has not provided the gender makeup of the original pool of FSOs, there is no statistical significance to the percentage of males versus females promoted in their first or second year of eligibility. The record shows that the Agency provided its own statistics showing that, within Complainant’s “cone” of Public Diplomacy, out of 185 FSOs, 60 were recommended for promotion in 2016, of which 37 were female and just 23 were male. This evidence shows that, within Complainant’s cone, female candidates comprised just over 60% of all those promoted. Such evidence does not support Complainant’s argument that implicit bias harmed women’s chances, and specifically, Complainant’s chances, of being promoted. Complainant, in response states: The administrative judge alleges that because 37 of 60 promotees in one cone were women, there was no issue and no discrimination. Those numbers on their own are meaningless and irrelevant. What if 38, or 39, or 57 or 102 of the women who were considered were qualified but not selected as such because of the discrimination in question? And what if the group considered was 85% women; a 60% success rate would be cause for concern. . . . [The evidence] fails to take into account the ratio of genders considered for promotion; We note that the same argument applies to Complainant’s statistical evidence about the ratio of male and female FSOs promoted across all cones, and the differences in how quickly males are promoted versus females, namely, that without knowing the ratio of genders considered for promotion, a higher number of one gender being promoted is, in itself, not probative of gender discrimination. We further note, however, that pursuant to Watson, the burden of proof is on Complainant to provide statistical evidence of a kind and degree sufficient to show discrimination. 20190053896 Because Complainant’s evidence “fails to take into account the ratio of genders considered for promotion” her evidence is no less “meaningless and irrelevant” than the Agency’s evidence about the gender makeup of the promoted candidates from Complainant’s cone. As such, we agree with the AJ that Complainant has failed to establish a prima facie case of disparate treatment. We further find that Complainant has failed to raise an issue of material fact. Complainant on appeal argues that, as the party opposing summary judgment, her evidence should be seen in the most favorable light. This does not mean, however, that unreasonable or unsupported inferences should be drawn from such evidence. While we readily accept Complainant’s evidence showing that more FSOs with male-sounding names were promoted than FSOs with female-sounding names, that does not therefore raise a material issue since, as Complainant herself noted, such evidence, absent evidence showing the gender makeup of the entire pool of FSOs, is “meaningless and irrelevant.” We next find that Complainant’s bare assertion that her qualifications were superior to those of, at a minimum, at least one of the males promoted is insufficient to raise a material issue of fact. We note that a party opposing summary judgment may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather, she must go beyond the pleadings and support her contentions with documentary evidence. Celotex, 477 U.S. at 324. Here, while Complainant averred that she personally knows of “several” male colleagues who were undeservedly promoted ahead of her based on what she knows of their work, Complainant has not provided any witness testimony or other evidence to support her assertion that her personnel file was more impressive than those of at least one other promoted male. With regard to Complainant’s other claimed issues of material fact, we find that they are not material because they do not address either Complainant’s admission regarding disparate treatment that she does not believe the board members intentionally discriminated against her, or the fact that Complainant’s statistical evidence showing a disparity is invalid. Finally, with regard to Complainant’s spinoff complaint regarding the Agency handling of the investigation, we note that the Agency properly addressed Complainant’s concerns in its December 4, 2017 correspondence. With regard to Complainant’s complaints about the AJ’s handling of the hearing process, we note that AJs have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, issue sanctions or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614. 109. Following a review of the record we do not find that the AJ abused her discretion in this regard. 20190053897 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that discrimination occurred. Nor has Complainant shown the presence of a material issue of fact. We there AFFIRM the Agency’s final order. 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. 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 20190053898 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 31, 2020 Date
