EEOC RULES CUSTOMS & BORDER PROTECTION “UNWORTHY OF BELIEF” AGAIN
It is no secret that too many managers in CBP play it fast and loose with the merit selection rules. So, it warms our heart to see the EEOC confirming once again CBP managers are not to be believed even when testifying under oath. As a law enforcement agency, you would think that CBP leaders would be intensely concerned about repeated government findings that its managers do not tell the truth, but there is little evidence of that so far.
In this latest case, a female CBP Officer (let’s call her Felisha) applied for a GS-13 Supervisory CBP Officer position in Presidio, TX back in 2012. She was one of two people recommended by the Port Director for the promotion, but when the other applicant (also a woman and only one year younger than Felisha) turned down the job, the agency managers decided to re-advertise the job rather than give it to Felisha.
Felisha applied again and was again recommended for the job along with two men. However, when the selecting official asked the Port Director to identify the two best candidates, he recommended the two men, who were four years and 18 years younger than Felisha. The Selecting Official chose both of the men for promotion.
Felisha responded by filing an EEO complaint alleging sex and age discrimination as well as retaliation for a previous EEO charge she filed. At the hearing the agency managers involved in the selection teamed up to swear that Felisha was not selected because of her low score on the promotion assessment test. The two men who were selected ranked first and ninth. Felisha ranked tenth. However, that is where their story began to unravel. The EEOC judge found that despite the scores being so allegedly critical, they were nowhere in the agency promotion file. Moreover, nothing in the record explained the validity of the assessment test, how scores were derived, or the content of the test. CBP apparently expected the judge to take their word for it that the test was critical even though they passed over seven higher ranked candidates to select the ninth ranked person.
EEOC wrote that the agency does not meet its burden when it merely claims a person was selected due to low scores without also explaining the specific reasoning for the scores. It wrote that CBPs assessment test scores were “meaningless” in this situation and that the managers’ testimony was “unworthy of belief.”
The Commission then dug even deeper into the record and found that—
Complainant had worked as a Customs and Border Protection Officer for a decade; performed collateral duties as a Field Training Officer, Safety Office, Local Property Officer, Safety Control Officer, Port Statistician, New Employee Orientation Officer, and Purchase Card Holder; served as an Acting Customers and Border Protection Officer Supervisor from April 2007 through June 2007; and previously worked in law enforcement for a decade as a Senior District Parole Officer for the Texas Department of Criminal Justice’s Board of Pardons and Parole. In contrast, C2 had been a Customs and Border Protection Officer for only four years and only had two years of previous law enforcement experience beyond his service as a Customs and Border Protection Officer. C3 had been a Customs and Border Protection Officer/Immigration Inspector since 2002, but did not have any other previous law enforcement work experience. Neither C2 and C3 had college degrees,9 whereas Complainant had a law enforcement-relevant degree in Criminal Justice. Further, Complainant possessed prior supervisory experience as an Acting Supervisory Customs and Border Protection Officer, whereas C2 and C3 had no supervisory experience with the Agency.
All that led the EEOC to write that it found the managers testimony even more “suspicious.”
Based on these observations and conclusions, EEOC ordered CBP to give Felisha a retroactive promotion and salary back to 2013, consider giving her even more money for the damage they did to her reputation and well-being, and to not only consider disciplining the involved managers but also retraining them if they are retained. See Felisha v. K Nielsen, DHS, CBP, EEOC No. 0120162314 (2018)
As we noted at the outset this is the third time in recent years that EEOC has written that CBP managers’ testimony was unworthy of belief. (Check out Complainant v Jeh Johnson, DHS, CBP, EEOC Nos. 0120131629 (2014) and 0720140021 (2105)) Hopefully, someone over there considers this a troublesome trend and does something about it, e.g., pressures HR to tighten up the selection process.