WERE THESE NON-SELECTED EMPLOYEES ADEQUATELY COUNSELED BY MANAGEMENT?

Below are three paraphrased explanations Selecting Officials gave EEOC for not selecting three promotion applicants. Let’s assume that the Selecting Officials were just as open with the non-selected employees before EEOC got involved, took sworn affidavits from the Selecting Officials and put them under oath on a hearing witness stand.   Look them over and take a guess as to whether they are legally sufficient or not.

Example #1 – I felt the employee that I chose was better qualified based on the application and interview process, and the timeliness and accuracy of work assignments performed in the unit. I made the decision to select whom I felt was best qualified. Having previously occupied this position myself, I felt very qualified in making a judgment about which candidate was best suited to assume this important role….I do believe that the non-selected applicant’s  chances of being selected for the position would have been better if she had a history of processing her work more timely and accurately. She also needs to learn how to own responsibility for her mistakes.

Example #2 – The rating/selection panel evaluated applicants in the following five rating factors:  1) skill in managing staff on various shifts; 2) knowledge of the theories, dynamics, and factors underlying the aviation screening process; 3) knowledge sufficient to be able to operate basic security equipment; 4) skill in communicating technical and non-technical information orally and in writing; and 5) ability to manage a diverse workforce and leading others, including planning and assigning work, selecting employees, promoting EEO, human relations, and improving and controlling performance. The panel evaluated the seven eventual selectees as earning 19 to 21 points out of 23 total points, while the non-selected employee only earned 11 points.  The employee, while qualified, was not deemed “best qualified” or recommended for the position by the selection panel, and consequently, I did not was not select the employee for the position. I chose the seven applicants who were given the highest scores by the recommending selection panel.

Example #3 – The process I used in my selection of the applicants was that I prepared a list of six questions, and each candidate was asked the same questions, and I looked at their background and experience…. After comparing the background, experience, and my interview notes, I believe that I selected the best qualified applicant for the position. The way in which the selectee was better qualified for the position was the selectee’s experiences in the field of interest were superior to non-selected employees.  I liked the responses that the selectee gave and I was convinced that she had the perspective and attitude toward the job that would ensure success in the office.

When I used the words “field of interest,” I was referring to the qualities that the selectee possessed in the field of applications programming in a variety of languages, and databases, and her related knowledge of local area networks. What I meant when I used the words “perspective and attitude” was that the selectee demonstrated self-assurance and confidence, and an ability to verbalize and articulate her views in a very convincing manner during the interview to a greater extent than the non-selected applicant.

Answer – It is complicated.  If you said they were all adequate, you are probably right if one only considers the merit promotion regulations and  perhaps a negotiated contract obligation about the quality of counseling management owes a non-selected employee. If you said they were all inadequate, you are right if one measures them against the requirements of the civil rights act.  As we have said a few times before, if a non-selected employee can show 1-s/he is a member of a protected class of employees under any of the civil rights acts, 2- was qualified for the vacant job, 3- was passed over or non-selected, and 4- the agency selected someone from a different protected class of employees, then the agency is obligated to produce an explanation of why the non-selected employee was not selected–and it must meet certain quality standards or it is inadequate and the employee can be considered a victim of illegal discrimination. Vague, standardless, non-specific, non-individualized,subjective explanations are not adequate and EEO found each of the above three statements to be inadequate.

Here are some of the things they said about each of these selecting official explanations.

Example #1 –  “We find that the above affidavit testimony is not sufficiently particularized or specific to permit Complainant to mount an evidentiary challenge to any of the explanations offered by the Agency for her non-selection SOl’s affidavit provided no specific examples of how or why SEl was better qualified than Complainant based on the application, how or why SEl was better qualified than Complainant based on the interview, how or when Complainant did not process her work timely and accurately, and how or when Complainant did not take responsibilities for her mistakes.”Complainant, V. Torn J. Vilsack, Secretary, Department of Agriculture, EEOC Appeal No. 0120132105 (2015)

Example #2 – “The record still does not contain the Agency’s explanation for the selection panel’s scores that were cited by the Agency as the basis for its selections.   For instance, the record does not contain investigatory statements from the selection panelists who had first-hand knowledge of the reasoning behind the scores given to Complainant and the selectees, or reflect that the investigator sought such statements…. The selecting official  failed to compare the strengths and weaknesses of Complainant’s qualifications with those of the selectees, the selecting official only stated that the seven selectees were referred to him with scores of 21, 21, 19, 19, 19, 19, and 19 out of a possible 23 points, but Complainant’s score was 11….The selecting official’s and the Human Resources Specialist’s affidavits are the only sworn statements from Agency officials in the record, yet they do not provide us with any substantive reason for Complainant’s non-selection….Further, the Agency’s applicant table and KSA application ratings reveal the scores that the panelists gave to applicants in five rating factors, but they do not reveal the reasoning and justification for the scores. In fact, there are no affidavit statements from the selection panelists, who had first-hand knowledge of the deliberative scoring process and the specific reasons for Complainant’s score….We find that the evidence presented by the Agency is not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for the position for which he was deem qualified….Our conclusion that the Agency failed to satisfy its burden of production does not mean that scores cannot be used during the selection process.  Subjective assessments of candidates may serve as a legitimate, nondiscriminatory reason for not hiring a candidate. Browning v. Sw. Research Inst., 288 Fed. Appx. 170, 176-77 (5th Cir. 2008); Joseph v. City of Dallas, 277 Fed. Appx. 436, 440-41 (5th Cir. 2008); Alvarado, 492 F.3d at 616.  However, “because subjective reasons can be a pretext for discrimination, such ‘reason[s] will satisfy the employer’s burden of production . . . only if the employer articulates a clear and reasonably specific basis for its subjective assessment.’” Browning, 288 Fed. Appx. at 177 (quoting Alvarado, 492 F.3d at 616).

“Therefore, when scores are the result of subjective evaluations, the Agency must provide some explanation for giving Complainant and the selectees particular scores.” Willie Stewart v. Janet Napolitano, Secretary, Department of Homeland Security(TSA), EEOC Appeal Number 0120053702.

Example #3 – “The explanation for its actions is neither specific, clear, nor individualized.  None of this information is sufficiently particularized or specific to permit complainant to mount an evidentiary challenge to any of the explanations offered by the agency for its actions.  The affidavit sets forth no objective facts to support its conclusions.  Even the subjective observations about “perspective and attitude” lack specific details which complainant might attempt to show to be untrue.

Although there is a modicum of meat on the bones of the agency’s otherwise skeletal explanation for its actions, it is insufficient to afford the non-selected employee a meaningful opportunity to prove the explanation to be untrue.  It provides no specifics about which applications, languages or databases the selecting official considered to be important in choosing the selectee.  Similarly, the explanation concerning the meaning of the phrase “perspective and attitude” is nothing more than a series of conclusory generalities. We hold that the agency did not adequately explain its decision not to select complainant.  Consequently, complainant was denied a fair opportunity to demonstrate pretext.  See Young v. Department of the Treasury, EEOC Request 05940517 (October 13, 1995).”  Sheila Woodard v. Department of Labor, EEOC Appeal Number 01870288 (2000)

Here are some additional cases that will help you demand and get an adequate explanation of why a grievant who alleges illegal discrimination was not selected:

• Lorenzo v. Dep’t of Defense, EEOC Request No. 05950931 (Nov. 6, 1997);
• Woodward v. Dept of Labor, EEOC Appeal No. 01970288 (Feb. 1, 2000)
• Stewart v. Dep’t of Homeland Sec, EEOC Request No. 0520070124 (Nov. 14, 2011);
• Garcia v. Dep’t of Homeland Sec, EEOC Appeal No. 01A32050 (Jan. 7, 2005), request for reconsideration denied, EEOC Request No. 05A50685 (Apr. 26, 2005);
• Young v. Dep’t of the Treasurv, EEOC Request No. 05940517 (Oct. 13, 1995).