WATERBOARDING SELECTING OFFICIALS

Ever wonder how to get selecting officials to tell you the real reason why you were not selected for a promotion?  Tens of thousands do each year.  Here is how.

Your first instinct might be to waterboard the selecting official, but there is pretty good evidence that does not produce the truth–just the first one or two things that come to their oxygen-starved brains.  There is a better way that also permits everyone to stay dry in the process.

If you were on a best qualified list and non-selected, the law requires that management give you detailed, verifiable, and truthful answers for why you were not selected. Most selecting official have no idea that is the law and even those that do will try real hard to avoid respecting the law.  All you have to do to force the answer out of the selecting official that you are legally entitled to is to file an EEO charge or a grievance alleging illegal discrimination, e.g., based on race, age, national origin, gender, color, etc.  In this case, we favor the EEO charge where you have the union represent you.

The law provides that if you were on the best qualified list (or whatever other list the selecting official chose from) and non-selected you have a right to a detailed, verifiable, and truthful answer as to why you were not selected.  Several federal courts have instructed selecting officials on what they are to provide.  Here is a sample of what they said:

We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not “sufficiently suited” for the position, is not specific enough to meet a defendant employer’s burden. . . . (See Patrick v. Ridge)

The subjective reason, stated by those same decisionmakers, was Chapman’s poor interview. . . . A subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion. Continuing our example of a sales clerk or wait staff position, it might not be sufficient for a defendant employer to say it did not hire the plaintiff applicant simply because “I did not like his appearance” with no further explanation. However, if the defendant employer said, “I did not like his appearance because his hair was uncombed and he had dandruff all over his shoulders,” or “because he had his nose pierced,” or “because his fingernails were dirty,” or “because he came to the interview wearing short pants and a T-shirt,” the defendant would have articulated a “clear and reasonably specific” basis for its subjective opinion-the applicant’s bad (in the employer’s view) appearance. That subjective reason would therefore be a legally sufficient, legitimate, nondiscriminatory reason for not hiring the plaintiff applicant. See Chapman)

. . .an employer’s assertion that it found a plaintiff-applicant “poor” without any further explanation would not create a genuine issue of fact as to whether the employer honestly held that opinion. See Durkin v. Equifax Check Services, Inc., 406 F.3d 410, 415 (7th Cir.2005) (“selfserving assertions” do not create a genuine issue of fact). (See Target)

A defendant may not merely state that the employment decision was based on the hiring of the “best qualified” applicant, but must articulate specific reasons for that applicant’s qualifications such as “seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work or any combination” of such criteria. (See Steger)

In our experience, you will be surprised by what the selecting official says under oath.  Some outright blurt out that they used non-merit criteria to select; others verify that they only went with “their gut.”  Still others actually come up with very good explanations that for some reason they felt you were not entitled to hear until they were forced to say it under oath.

Don’t believe the normal excuses from management that it has a legal right to selected whomever it wishes or that employees cannot challenge non-selection from a properly ranked and certified best qualified list.  Those exceptions do not allow management to discriminate or break any other law when they make their decisions.

Don’t worry about needing any proof of discrimination.  If you want you can drop the charge once you get the answer and it is illegal for the employer to in any way punish you for filing the charge or even start treating you differently.   Or you might just find evidence that enables you to continue the discrimination charge or to file a contract grievance.

We admit it is a sad state of affairs when employees have to put in motion the federal EEO discrimination complaint process to get a simple answer, but if employees start filing these charges then perhaps selecting officials will take the time to tell non-select employees why they were not selected as soon as the employee asks.

About AdminUN

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.

This entry was posted in Discipline/Adverse Action, Employee Rights, Promotion/Hiring and tagged . Bookmark the permalink.

3 Responses to

  1. Ursula Williams says:

    Which statue can I find this in?

    If you were on a best qualified list and non-selected, the law requires that management give you detailed, verifiable, and truthful answers for why you were not selected.

    • AdminUN says:

      The Civil Rights laws prohibiting employment discrimination require employers to do this once an employee demonstrates he/she has a prima facie case of discrimination. Check out this case. http://openjurist.org/394/f3d/311/patrick-v-ridge

      and the discussion around this excerpt: “Fatal to the INS’s position here is the well-established rule that, to meet its burden of production under McDonnell Douglas, an employer must articulate a nondiscriminatory reason with”sufficient clarity” to afford the employee a realistic opportunity to show that the reason is pretextual.21 This does not mean that an employer may not rely on subjective reasons for its personnel decisions.22 It does mean, though, that to rebut an employee’s prima facie case, a defendant employer must articulate in some detail a more specific reason than its own vague and conclusional feeling about the employee. The Eleventh Circuit illustrated this point by contrasting hypothetically legitimate reasons with illegitimate reasons for an employer’s refusal to hire a waiter:”

  2. sandra says:

    This is a great article, if it would apply to all fed jobs. I recently found out that I was placed in the #1 spot for a position i applied for. I was excited, but instead of hiring someone, they decided to pull the position. I know this is a legal action, but i still don’t understand how they can fly a position and see who is on the list and decide its not the person they want, so just pull it.
    This is a type of “Good O’l Boy” play. I am not a good o’l boy, nor am I from this forest an outsider is what i am. What ever that means. I have been told throughout my career that you have to move around to go up, well I am done moving around and now I cant even move up.

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