Labor & Employment Law Daily Wrap Up, DISCRIMINATION—11th Cir.: Navy IT specialist failed to show multiple non-selections for promotion were based on unlawful bias, (Feb 5, 2025)

By Kathleen Kapusta, J.D.

“In this case, we once again visit the unique proof requirements for federal-sector discrimination claims (versus private-sector discrimination claims).”

After declining to consider whether a federal employee may choose to rely solely on a prima facie case to establish a violation of Title VII or the ADEA, the Eleventh Circuit found a Navy IT specialist failed to establish a prima facie case of age, race, and national origin discrimination for any of the five challenged promotion decisions or that discrimination on the bases of race, national origin, or age played any part in those decisions. He also failed to establish a prima facie case of retaliation, said the court, affirming summary judgment against his various claims (Rosado v. Secretary, Department of the Navy, No. 23-10181 (11th Cir. Feb. 4, 2025)).

The employee, a Hispanic male from Colombia, applied for and was denied promotions for five different positions with the Navy between 2014 and 2017. Suing under the ADEA and Title VII, he alleged discrimination based on his race, national origin, and age, as well as retaliation, and the district court entered summary judgment for the Navy on all claims.

Unique proof requirements. Noting on appeal that it was once again visiting “the unique proof requirements for federal-sector discrimination claims,” the Eleventh Circuit pointed out that the federal sector provisions of Title VII and the ADEA do not require a plaintiff to prove that unlawful discrimination was a but-for cause of an adverse employment action. As a result, to survive summary judgment, a federal employee does not have to satisfy the McDonnell Douglas framework. Rather, the employee must show only that the unlawful discrimination played any part in the challenged employment decision.

For his part, the employee argued that a federal employee can satisfy that requirement by making out a prima facie case of discrimination at McDonnell Douglas’s first step. “But that’s a question we don’t answer today,” said the court, explaining that “Even if a federal-sector employee can carry his burden by establishing a prima facie case alone, [the employee] hasn’t done so here for any of the five employment decisions he challenges.” Nonetheless, the court, for purposes of this opinion, assumed without deciding that establishing McDonnell Douglas’s first step—the prima facie case—is enough for a federal-sector employee to defeat summary judgment on a Title VII or ADEA discrimination claim.

Comparator evidence. The employee, for each of the challenged decisions, argued that in determining whether he had established a prima facie case, the district court erred by considering the relative qualifications of his competition. Though he contended that he did not need to present any comparator information to establish a prima facie case, the appeals court disagreed. Citing to its 2019 en banc decision in Lewis v. City of Union City, the court noted that it rejected the argument that the comparator analysis is not a necessary part of a plaintiff’s prima facie case.

Further, said the court, on a failure-to-promote claim under the McDonnell Douglas framework, it has held that a plaintiff, as part of the prima facie case, must establish that “other equally or less qualified employees who were not members of the protected class were promoted.” So, the court explained, if a federal employee has evidence to show that discrimination “played any part” in the decision-making process, the employee does not have to present comparator evidence.

Similarly situated. “But assuming a prima facie case of some type is alone enough to sustain a federal employee’s discrimination claim, that prima facie case must reasonably allow for an inference that discrimination figured into the decision-making process in some way,” the court stated, explaining that the prima facie case must include meaningful comparator analysis. And meaningful comparator analysis, the court observed, requires a showing that the plaintiff and his or her comparators are similarly situated.

First promotion denial. Turning to the challenged promotion decisions, the court found the employee failed to establish a prima facie case of unlawful discrimination or to show that unlawful discrimination played any part in the Navy’s decision to select a white male in his 30s over the employee in the first challenged decision. Although the employee and the selectee were ranked similarly by the selection panel for 16 of the 17 categories, for the 17th category, the selectee was scored twice as high and the panel determined that the employee lacked “as much recent experience” as the selectee and the experience the employee had was not the experience that was most valued. Noting a lack of evidence suggesting that discrimination tainted the decision in any way, the court affirmed summary judgment for the Navy on this claim.

Decision number two. Regarding the second challenged decision, which the court referred to as unique, the command information officer (CIO) converted a temporary employee, who was a veteran entitled to a veteran’s preference, to a permanent employee. Although the employee contended that the CIO should have filled the position using a selection panel, and that her failure to do so discriminated against him, he did not dispute that the CIO was permitted under the Navy’s policies to non-competitively promote the other employee. Nor were the two similarly situated as the promoted employee had significant experience in industrial control systems that the employee lacked and the other employee was entitled to a veteran’s preference. Nor was there any evidence suggesting discrimination played any part in the decision.

Decision number three. As to the third challenged decision, the court found the employee failed to show the two selectees were just as or less qualified for the position than was he. The employee did not list what he acknowledged was the most important experience on his resume. Given this, the first selectee appeared better qualified. And while the second selectee’s resume also reflected a lack of the same experience, the experience he did list caused the head of the selection panel to conclude he could be quickly and efficiently trained in the relevant areas.

While the employee pointed to the CIO’s remark that his resume contained outdated terminology, which he contended showed age bias, the court disagreed. Rather, the court found his use of outdated technology terminology to showcase his experience, which he admitted to using, was relevant to his qualifications for the position as it betrayed his lack of currency in specific areas. Once again, said the court, the employee also failed to show that unlawful discrimination played any part in the selection process.

Decision number four. Turning to the fourth challenged decision, the court noted that prior to the employee being selected without interviews for a promotion, there had been a misunderstanding regarding appointing the employee to a temporary position so that he could gain needed experience. Around that same time, there was ongoing mediation over one of the employee’s EEO complaints. This particular series of events, he argued, established discrimination. Unpersuaded, the court found the evidence showed the events at issue arose out of unfortunate miscommunication, not unlawful discrimination, and thus the Navy was entitled to summary judgment on this claim as well.

Decision number five. As to the final challenged decision, the court again noted that the employee failed to meet the comparator element of the prima facie case. The selectee scored higher on both his resume and interview and did so because his experience in the areas that mattered was far more recent and relevant. Affirming summary judgment against this claim, the court again found no evidence unlawful discrimination played any part in the selection decision.

Retaliation claim. Finally, as to the employee’s retaliation claim, the court first held that making out a prima facie case at step one of the McDonnell Douglas framework defeats summary judgment on a federal employee’s retaliation claim. As to his assertion the district court wrongly granted summary judgment to the Navy on his retaliation claim relating to decision four, the employee pointed to two incidents to establish causation. The court, however, found no evidence that protected activity tainted either of the incidents in either way. Thus, it affirmed summary judgment in the Navy’s favor on his retaliation claims.

The case is No. 23-10181.

Judge: Rosenbaum, R.

Attorneys: Archibald J. Thomas, III (Law Offices of Archibald J. Thomas, III) for Jose R. Rosado. Sean Siekkinen, U.S. Department of Justice, for Secretary, U.S. Department of the Navy.

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