WATERBOARDING SELECTION OFFICIALS II

Not long ago we posted an article about how frustrating it is when selecting officials will not give a best qualified candidate a substantive reason why he/she was passed over for promotion, especially when someone with a lower promotion score was selected. Although we did not advocate waterboarding the answer out of the selecting official, we expressed our understanding of those who dream about doing precisely that when told such things as he was “not sufficiently suited” for the job or that he “did not interview well.” In our original post we cited to three federal court decisions employees could cite as precedent for demanding a “clear and reasonably specific factual basis” for the decision. Now we have more cases to work with.

In Myles v. SSA, EEOC Appeal No. 0120092511 the agency selected a 50 year old over a 56 year old applicant. The former scored high enough to be rated Best Qualified, but the latter did not. When the 56 year old employee filed an age discrimination charge, EEOC found that six years was enough of an age difference to establish an age discrimination claim.  When the employee then met the prima facie test, EEOC required management to explain the details behind its selection. Here is what management offered and what EEOC did with it:

“the record did not show where Complainant addressed the KSAs sufficiently, whereas the candidates who made the BQL discussed each of the criteria in detail reflective of the number of points they received. However, we find that this is not a specific, clear, and individualized explanation for Complainant’s failure to make the BQL. Although the Agency explained that the BQL candidates scored higher on their applications than Complainant because their applications more thoroughly addressed the assessment criteria, we find that the record does not contain any testimonial or documentary evidence of such a comparison. First, the affidavit testimony of P4, P5, and P6 only explained the general mechanics of the application evaluation process and failed to provide an individualized explanation for Complainant’s specific score. The testimonial evidence provides no explanation as to why Complainant’s application received a lower score or what qualities, if any, made the selectee better qualified for the position than Complainant.. . . Based on the above, we find that the Agency failed to articulate a specific, clear, and individualized explanation for its actions, and consequently, Complainant was denied a fair opportunity to demonstrate pretext. Thus, the Agency failed to rebut the inference of discrimination by articulating a legitimate, nondiscriminatory reason for its actions. Therefore, we find that Complainant was subjected to discrimination based on his race, sex, and age when he was not selected for the position….”

That rationale mirrors the three federal circuit court decisions cited in our earlier post.  EEOC went on to impose a significant remedy on top of an order to retroactively promote the employee with back pay, namely, “The Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s).”

The second case FEDSMILL.com wants to spotlight came out of the FLRA and also involved SSA. In that case the contract required that if an employee is “stagnated” in his/her grade, the agency must “seriously consider” that applicant for promotion. The grievant proved he had stagnated and was ranked as “well-qualified” for promotion. When it came time for management to prove it had seriously considered that applicant for two particular vacancies, it succeeded in one case but failed in the other. In fact, the arbitrator found that the deficient selecting official had provide the employee, “only the most cursory and therefore, unreasonable, review.” The arbitrator made clear that he had been looking for evidence that the selected employee possesses substantially greater potential to succeed in the vacant position than the grievant. He ordered that the employee be retroactively promoted. SSA filed exceptions to the FLRA, but lost. (See AFGE, 64 FLRA 259)

There is an abundance of case law requiring that the selecting official must provide a non-selected promotion candidate, especially one with a higher promotion score, with a reasonably specific reason substantiated by the documentary facts of the case. If your union is approached by a member wondering why she was non-selected, ask management for one. If denied, remind management that all you need do is file an EEO charge and it will required to reveal the reason(s) under oath.  As with the Myles case, it does not take much for an employee to establish a prima facie case of discrimination and put management in position of verbalizing that detailed factual reason or processing a retroactive promotion.

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.
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