EEOC NORMALLY ORDERS CREDITING PLAN DISCLOSURE

OPM, FLRA, and the courts may be highly reluctant to order an agency to disclose a crediting plan to a grievant or the union, but EEOC is not.  It has addressed the issue over a dozen times and developed a good body of case law that the Authority should draw from to deal with this disclosure issue.

The EEOC’s general rule on disclosing these plans is as follows:

We note that although we have upheld the confidentiality of crediting plans, we have only done so when the record adequately provided enough information to sufficiently determine the Agency’s legitimate, nondiscriminatory explanation for the non-selection. When the agency refuses to disclose the plan to enough substitute information, EEOC ruled that it could not present a defense to the employee’s discrimination charges and ruled that the agency had discriminated. Marty E. Bakken, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency, EEOC-OFO Appeal No. 0120093529, August 8, 2011

These plans can have multiple elements, namely, the evaluative factor and its definition, the scoring system used, the criteria for each scoring level, keywords associated with a scoring level, weights, pass-failure points, xxx. The following is an example of what the EEOC and a federal district court forced the agency to put into the public record about one of its crediting plans:

Lucas ranked the candidates numerically weighing their applications against five elements deemed relevant to the position. Government’s Motion for Summary Judgment Exhibit (“GEX”) 4; GEX 6. The five elements included: (1) “knowledge of database management program techniques and concepts to develop and monitor systems operations;” (2) “knowledge of program management techniques and concepts in order to evaluate contractor’s proposals and preparation of budget estimates;” (3) “skill in conducting qualitative and quantitative analysis that is used to develop technical, operational, and informative systems for Pubs and office wide functions;” (4) “ability to supervise;” and (5) “demonstrated ability to communicate with subordinate staff, peers, managers and subject matter specialist both orally and in writing.” GEX 5; GEX 11. These five elements are expressly identified as relevant to the position in Vacancy Announcement PTO-04-064, which advertised the SPCS position. See GEX 6; GEX 11. For each element in the crediting plan, the candidates were ranked numerically as “Excellent,” receiving six points; “Highly Qualified,” receiving four points; or “Satisfactory,” receiving two points. LARRY STEPHENS, Plaintiff, v. CARLOS GUTIERREZ, Secretary, United States Department of Commerce, et al., Defendant,U.S. District Court, Eastern District of Virginia,1:08-cv-870 (March 15, 2010)

In another case, the Commission forced the agency to disclose why individual ranking panel members scored the employee the way they did on various elements.

On appeal, complainant contends that the panel members applied the crediting plan unfairly in order to keep his score at the average level. In response, the agency asserts that on the first quality ranking factor, the ability to direct and manage a staff, complainant scored one point out of a possible three points.  The agency states that one panelist noted that complainant failed to mention any experience directing a staff in a multi-level supervisory/subordinate relationship. According to the agency, the other panelist stated that complainant’s job application demonstrated that he was a team leader, but did not reflect an extensive background in this area.  With regard to the second quality ranking factor, the ability to establish objectives and performance goals, monitor progress toward their achievement and set priorities based on changing requirements, the agency asserts that both panelists stated that complainant’s narrative response failed to provide specific information to indicate how he met this requirement and that therefore complainant received a score of two points out of a possible three points.  As for the third quality ranking factor, knowledge of the grants processing of formula-funded and/or categorical-competitive programs in the agency, the agency asserts that both panelists stated that complainant’s response indicated experience, but not the type of in-depth, extensive experience noted by the selectee.  The agency maintains that complainant’s narrative response showed that his relevant experience was little more than reviewing proposals and assisting others in processing applications.  The agency states that complainant received two points out of a possible three points.  The agency asserts that complainant’s application offered little indication of substantial, independent work regarding formula-funded and/or categorical grants.  Edward J. Jones v. Department of Housing and Urban Development,  EEOC Appeal No. 01A45837, December 6, 2004.

EEOC and the courts have also forced disclosure of any key words the agency may use to prompt ranking officials to impose one score versus another, as captured in the written decision in the case.

The first part of the Crediting Plan pertains to the screen-out element: “ABILITY To Do THE WORK OF THE POSITION UNDER NORMAL SUPERVISION.” GX-JJ at 1. In order to pass the screen-out test for MER WG-8, an applicant must score at least a two (2) on this element. Tr. 546-49. If an applicant scores at least a two on the screen-out element, the applicant is deemed a “potential eligible,” and may be referred for an interview. Tr. 550-53. An applicant who does not pass the screen-out element is not eligible for an interview. In order to earn two points on the Manhattan VA Crediting Plan screen-out element for MER WG-8, an applicant must demonstrate: [a]cceptable ability to perform some of the tasks described above [] on x-ray processing equipment under close supervision and most common tasks under moderate supervision. Work is generally planned for individual. May have some valuable experience in a related field above the trainee level in that field[.] (See Irving Spivey v. Edward J. Derwinski, No. 89CIV8582,  SDNY (April 11, 1995))

Although FLRA is not bound by EEOC or federal district court rulings, unions should remind FLRA of these decisions when trying to convince FLRA to order disclosure.  They show that the agency charged with enforcing other employment laws in federal employee merit promotion cases, where the crediting plans are at issue, regularly orders them disclosed because of the vital role they play in the selection decision.

Not long ago FLRA issued a decision addressing whether an agency was obligated to release to the union the “key words” it looked for in ranking candidates for promotion. Although the phrase “crediting plan” did not appear in this decision,  it obviously concerns one and lays out what the union must show to get access, e.g., why does it need the data, how will it use the data, and what connection does the data have to its representational responsibilities.

The Union then set forth its particularized need for the requested information, including the key words at issue in this matter. Specifically, the Union stated that the information request was to enable the Union “to meet its obligation to provide representation, the interest in a fairly run merit promotion system … and encouragement of a non-disruptive grievance or complaint system(s).” The Union raised concerns of whether the selection process had been performed in such a manner that employees were left off the certification, and noted that management had been informed that certain P-3 employees were not on the certification and had been requested to hold the certification in abeyance until an investigation could be conducted. (G.C. Ex. 11)…. The evidence clearly reflects that only employees who are on the certification can be considered for the specific vacancy at issue, in this case, the P-3 Team Lead position. And the key words, as established by the Respondent, are used to review the many resumes to determine the certification. The Union clearly expressed its need for the key words, noting the concerns of employees that they were qualified for the position at issue but had been left off the certification, as well as the Union’s obligation to provide representation for such employees. The Union set forth the reasons why it needed the key words, the uses to which it would put the key words, and the nexus between those uses and the Union’s representational responsibilities. Further, the Union’s request was sufficient to permit the Respondent to make an informed response. Therefore, I find that the Union clearly articulated its particularized need for the requested information at issue, i.e., the key words, and such information was necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to perform its representational responsibilities under the Statute. AFGE, 63 FLRA 455.

 

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FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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