Via EEOC: Terrie M. v. Dep’t of State,  EEOC Appeal No. 2019002167 (Sept. 22, 2020).

Agency Failed to Provide Legitimate, Nondiscriminatory Reason for Not Promoting Complainant.

Complainant, a Consular Section Chief at a U.S. Embassy, alleged, among other things, that the Agency discriminated against her on the basis of sex when it failed to promote her.  The Commission found that Complainant established a prima facie case of sex discrimination, and the Agency failed to articulate a legitimate, nondiscriminatory reason for its action.  Complainant was qualified for a promotion, as evidenced by her Employee Assessment Reviews, and responding management officials acknowledged that Complainant was eligible for the promotion.  Moreover, Complainant asserted that the prior curtailments of her overseas assignments due to her high-risk pregnancy impacted the ranking she received in the promotion process.  Therefore, Complainant had raised an inference that her sex was a factor in her non-selection for promotion.  The Commission found that the Agency failed to overcome Complainant’s prima facie case because the evidence was not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for promotion.  While the Agency explained the general mechanics of the promotion process, it failed to provide an individualized explanation for Complainant’s specific situation.  The Agency was ordered, among other things, to retroactively promote Complainant, with appropriate back pay and benefits, and investigate her claim for damages.  Terrie M. v. Dep’t of State,  EEOC Appeal No. 2019002167 (Sept. 22, 2020).

Excerpt:

In the instant complaint, Complainant has alleged that because she is a woman who got pregnant  twice and had to curtail her assignments as a result, she was disadvantaged in the selection for promotion process. 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 she 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 802 n.13. 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). To establish a prima facie case of sex discrimination, a complainant must show that: (1) she is a member of a protected group; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.

Based on record evidence, we find that Complainant has established a prima facie case of sex discrimination. First, Complainant belongs to a protected group as she is female. Complainant is also qualified for promotion to the FSO-03 position. HDR1 also acknowledged that Complainant was eligible for the promotion; and the evidence shows that Complainant was a high-performing FSO as demonstrated by her EARs. Moreover, Complainant has asserted that she believes her prior curtailments of her assignments overseas due to her high-risk pregnancy impacted the ranking she received in the promotion process. Therefore, Complainant has raised an inference that her sex was a factor in her non-selection for promotion.3 Because Complainant established a prima facie case of sex discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant for promotion.

Here, DDHR1, corroborated by DDHR2, explained that Complainant was not selected for promotion because she had been mid-ranked by the Selection Board. To support this explanation, the record only includes the same generalized information about the rules governing the selection process that the Commission had previously found insufficient, and which resulted in the complaint being remanded for a supplemental investigation. The record does not include pertinent documentation reviewed by the Selection Board and information regarding comparators. Also missing from the record are comparative data related to Complainant’s protected class or affidavits from Selection Board members; and thestatement of the Agency’s reasons for mid-ranking Complainant that led to her consequent non-selection for promotion. Moreover, the supporting testimony provided by DDHR2 does not add relevance to the instant complaint because, as Complainant stated, DDHR2 had only been in her position since June 1, 2018, nearly four years after Complainant’s non-promotion incident. DDHR2 herself indicated that she had no personal knowledge about Complainant or her non-promotion. In fact, the extent of the Agency’s explanations for its actions is that promotion decisions are based only on the documentation in the candidates’ Official Performance Folder for the most recent five years and at grades FS-02 and above, on the security incident records. The two DDHRs also stated that PE staff does not have information related to, nor will they address, personal or assignment decisions of employees, and only from the material submitted by the employee to his/her eOPF could this information be known.

We find that the evidence presented by the Agency is not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for promotion in 2014. The Agency explained the general mechanics of the promotion process but failed to provide an individualized explanation for Complainant’s specific situation. See, e.g., Koudry v. Dep’t of Educ., Request No. 0520100196 (Apr. 13, 2010) (discrimination found where agency merely explained the mechanics of selection process, provided list of candidates deemed best qualified, and summarized applications of selectee and complainant, but failed to provide statements from selecting officials explaining how complainant’s qualifications were evaluated compared to selectee’s qualifications). The record does not indicate how the Agency determined which 76 candidates were selected for promotion or why Complainant was not one of the 76. Merely indicating that the Selection Boards rely only on information in candidates’ eOPF for making promotion decisions is not enough. Moreover, we add that the record also does not identify how or why the 76 candidates selected for promotion in 2014 received their scores and rankings. Simply stating that candidates who are mid-ranked do not receive scores is inadequate.

Moreover, nothing in the record provides a basis for dispelling Complainant’s belief that the staff of HR/PE had access to her curtailment memo as well as access to her personnel files which contained information about her pregnancy and presumably communicated with post leadership about the curtailment. Neither did the Agency refute Complainant’s assertion that the Board may have been aware of her pregnancy because the panel works closely with HR on promotions; and that the Board was also aware of the gaps in her tours and the shortened lengths of her tours because that was reflected in her personnel and evaluation files. As the Agency never presented any testimony from the Board members who reviewed Complainant’s promotion materials, we are left with only Complainant’s unrebutted assertions.

We note DDHR2’s statements that the Board notes are only retained for one year after dismissal of the FSSB and, therefore, were no longer available. In that regard, because Complainant filed her EEO complaint within a year of her non-selection for promotion, those statements should have been made available to the Investigator, given there was an ongoing EEO complaint being processed on this selection. See EEOC regulations at 29 C.F.R. Section 1602.14 (requiring employers to retain “all personnel records relevant to the charge or action until final disposition”

ORDER (D0617)
The Agency is ordered to take the following remedial actions: I. The Agency will promote Complainant to FS-03 retroactively to the date she would have been promoted in 2014 absent discrimination, within thirty (30) calendar of the date this decision is issued.5 II. The Agency shall pay Complainant back pay with interest from the date in 2014 when Complainant would have started in the FS-03 position. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The Agency will ensure that all tax consequences are taken into account. Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for theundisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.” III. The Agency will conduct and complete a supplemental investigation on the issue of Complainant’s entitlement to compensatory damages and will afford her an opportunity to establish a causal relationship between the Agency’s discriminatory action and her pecuniary or non-pecuniary losses, if any.  ….

The order is accompanied by a “Posting Order” which required the State Department to post the EEOC Notice signed by agency representative in DOS Washington, DC offices – in both hard copy and electronic format within 30 calendar days of the decision dated September 22, 2020, and to remain in place for 60 consecutive days in “conspicuous places”.  Anyone saw this posting order anywhere in the obscure corners of the Intranet?

Having seen the State Department  and the federal government negotiate on claims for damages like this, we would not be surprised if the negotiations for damages would run on not just for weeks, but months, even years. The goal is not really to find an agreement — the government has lawyers with limitless hours billable to Uncle Sam — the goal appears to be to negotiate up to the point where the complainant is exhausted that he/she would take whatever deal the government offers. Someday, somebody should calculate the costs when the government drag on these negotiations, as opposed to expeditious settlement when it is found to be in the wrong.

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