Via Record of Proceedings
FSGB Case No. 2020–053 | October 22, 2021
The background of this case is described in detail in the June 17, 2021, Order: Motion to Compel issued by the Foreign Service Grievance Board (“FSGB” or the “Board”). That Order required the Department to provide additional responses to grievant’s initial discovery requests including grievant’s Interrogatory #1 which sought disaggregated statistics on rates of tenure for Foreign Service Generalist career candidates with Hispanic surnames who were considered for tenure during a specified five-year period, as compared with the tenure rate for other candidates.
On July 7, 2021, the Department responded to grievant’s Interrogatory #1.
Grievant was dissatisfied with the response and on July 14, 2021, he requested clarification of how the Department determined which surnames were Hispanic. The Department responded the same day, explaining how it had determined which surnames were Hispanic.
On July 27, 2021, grievant made a follow-on discovery request, seeking a list of the surnames the Department determined to be Hispanic and a list of the surnames of the candidates who had non-Hispanic surnames and were denied tenure.
On August 25, 2021, the Department objected to grievant’s July 27, 2021 request. The parties met and conferred on grievant’s discovery request and the Department’s objection, without reaching agreement.
In a motion to compel, the burden is on the requesting party to prove the merits of the motion. FSGB Case No. 2016-027 (Order, dated October 28, 2016); FSGB Case No. 2011-013 (Order, dated September 28, 2011).
B. SECOND MOTION TO COMPEL
Interrogatory #1 states as follows:
Please provide disaggregated statistics on rates of tenure for minority Foreign Service Generalists as compared to white Foreign Service Generalists between March 9, 2014 and March 4, 2019.
On July 7, 2021, The Department provided the following data for Foreign Service Generalist Tenure Candidates reviewed from March 2014-March 2019:
Candidates with Hispanic Surnames – 108
3 denied tenure = 2.8%
105 recommended for tenure = 97.2%
Candidates with non-Hispanic Surnames – 1871
48 denied tenure = 2.6%
1823 recommended for tenure = 97.4%
Grievant asked the Department how it determined which surnames qualified as “Hispanic surnames.”
Department’s Response to Request for Clarification
The Department responded that it accessed publicly available 2010 Census data and “pulled the record of last names where more than 50% of respondents by that name identified as being Hispanic.” There were 199 Hispanic surnames on the Census list and the Department cross-referenced those names with the cumulative list of tenure candidates. The Department then looked at all of the remaining names and identified other Hispanic surnames that did not appear on the Census list. To confirm, the Department checked those names for Spanish/Hispanic origin via Google search. Lastly, the Department checked a random assortment of the remaining names on the list of tenure candidates to confirm that they were other than Hispanic.
Relevance of the Follow-On Interrogatory
In the instant case, grievant alleges that the CTB discriminated against him because of his Hispanic surnames. Grievant has not alleged that he has direct evidence, relying entirely on statistics. To establish a prima facie case based on statistics, grievant must establish that Hispanic surnamed candidates were tenured at a statistically significantly lower rate than non-Hispanic surnamed candidates. Accordingly, the surnames of the candidates who were tenured, and those who were denied tenure, clearly are relevant to grievant’s claim, just as the gender of candidates would be relevant to a claim of sex discrimination.
the Privacy Act does not prohibit disclosure of Human Resources information about comparator employees to a grievant if ordered by the Board.
The Board has determined that grievant is entitled to know what surnames are considered Hispanic for purposes of the Department’s discovery responses. At the same time, the other candidates deserve privacy regarding their tenuring decisions. To accommodate those competing interests, the Board will order the Department to respond anew to grievant’s Interrogatory #1, as set forth in Section IV, infra.
Grievant’s Second Motion to Compel is granted in part and denied in part, as follows:
1. Within 14 days of this Order, the Department shall email grievant the list of 199 Hispanic surnames the Department previously identified from the Census data.
2. Within 14 days of the Department’s email, grievant shall email the Department a list of any of the 199 surnames that grievant considers not to be Hispanic (“List A”), and a separate list of any surnames not on the list of 199 that grievant considers to be Hispanic (“List B”) and the source of the surnames. Grievant may use any source of surnames for List B, e.g., lists publicly available on the Internet. If grievant fails to email List A and List B to the Department by this deadline, grievant shall be deemed to have waived any further response to Interrogatory #1, and grievant’s discovery shall be considered complete.
3. Within 21 days of grievant’s email, the Department shall email grievant a revised response to Interrogatory #1, using the 199 surnames from the Census data after striking the surnames on List A and adding the surnames on List B, thereby creating List C. At that point grievant’s discovery shall be considered complete. The Department may not object to responding to Interrogatory #1 using List C. ….
4. The Board denies grievant’s request for the list of the surnames the Department determined to be Hispanic and a list of the surnames the Department determined to be non-Hispanic surnames and were denied tenure.