WHEN IS AN EMPLOYEE “PLAINLY SUPERIOR” TO THE SELECTEE IN A PROMOTION ACTION?
This may come as a shock to lots of folks on the management side of the table, but a promotion applicant is not the best person for the job just because the ranking and selecting officials say so. If the agency does a sloppy job of selecting an employee and the employee/union challenge the selection, it can mean a big bundle of back pay, an even bigger attorney fees award, a bigger-than-both-of-them-combined compensatory damages award, and an order that the managers involved with the selection be disciplined. The prohibition against filing a grievance to challenge a properly ranked and rated promotion certificate does not apply if the employee alleges discrimination and invokes the “plainly superior” doctrine. Given how easy it is for an employee to meet his/her initial burden of proof, we are very surprised that there are not more of these cases.
Let’s start with an example where management filled two GS-12 jobs. The first spot went to Barbara, a 46 year old Caucasian, and the second one went to Cedric, a 39 year old African-American. Barbara scored a 96 on the promotion rating and Cedric a 90. Juanita, a 58 year old Hispanic employee with a score of 93, was not selected, but feels that she is a better candidate for the job than either of the other two.
If she goes to a union rep who has been reading FEDSMILL.com, the rep will likely advise her to file a grievance alleging discrimination based on age, gender and national origin—along with any suspected contract violations of the Promotion article and regs. If Juanita questions how she can do that given that another woman was selected who is also over 40 and another minority, the union rep will likely tell her that is all irrelevant. All she needs show to establish a reasonable claim, or what EEOC calls a prima facie case, is proof she is:
- at least forty years old,
- qualified for the position for which an application was submitted,
- denied the position, and
- the promotion was given to a substantially younger person or person outside her protected class as defined by age, gender, national origin, race, disability, etc.
Moreover, as the Ninth Circuit Court of Appeals just pointed out in a case alleging age discrimination in Homeland Security, the fact that one of the selectees was over 40 does not rule out age discrimination. While an age difference of less than ten years between the complaining employee and the selectees creates a presumption that age was not a substantial factor, that can be rebutted. In fact, that Circuit court allowed a Homeland Security employee to claim age discrimination even though he was only six year older (54 v 48) than a selectee.
Once the grievance gets underway, the agency will undoubtedly claim that Barbara and Cedric were the best people for the job. The agency only has to allege some reasonably legitimate explanation for its decision. (If the union only filed a contract violation grievance the agency would not even to show even that, but the EEO claim removes the agency’s total defense to selection grievances). Once the agency explains why its selection decision was legitimate, Juanita gets to show the agency’s explanation was “pretext.” That is a nice way of saying it was a lie or at least a really stupid reason for the selection. When the case gets to that point, Juanita and her rep can also argue that she was “plainly superior” to one or both of the selectees.
While there is no mechanical process for establishing a non-selecte employee was “plaining superior,” we have looked over some recent decisions from EEOC where the non-selected employee won his/her case, and want to share some examples of how plainly superior cases are decided.
In a 2015 Dept. of Labor case (EEOC No. 0120112413) the Commission pointed out that none of the promotion papers from the agency were signed or dated and some were even missing from the file. It also noted that the selecting official’s explanation was contradicted by another manager who testified, saying, “Inconsistencies in selection give rise to suspicion and are significant enough to warrant a finding that, more likely than not, the selection was based on improper criteria.” It then wrote that the non-selected employee’s resume showed a “depth, length and breadth of experience” surpassing that of the selectee. It also pointed out one of the selection factors the selecting official said made a difference had never been mentioned as relevant in the vacancy announcement. The Commission found that was enough to conclude the employee had been the victim of discrimination and gave her back pay, interest, retroactive compensation to her Thrift Savings Plan, an order that the agency train all involved managers, and another order that the agency explain why it should not discipline the involved manager.
In a 2014 case involving Homeland Security (EEOC No. 0120112237) EEOC objectively compared the complainant’s application to the selectee and decided those facts did not support the agency’s explanation for its selection. Specifically, it found the complainant had a higher rating than two of the selectees (96 v. 92 and 90). It also pointed out that the selecting official said he was most interested in a self-starter—and that the complainant’s supervisory rating specifically mentioned what a strong self-starter he was. Finally, EEOC highlighted that the complainant had done more complicated work than the selectees, which led to its conclusion that the selecting official’s explanation was “not worthy of belief.”
In a DOD 2014 case (EEOC No. 0120140428) it also ruled the employee had been discriminated against based on the following factors:
- the complaint had done higher grade work than the selectee earlier in his career,
- he had a Master Degree while the selectee only had a Bachelors,
- the complainant’s degree was more relevant to the job than the selectees, namely an accounting degree versus an education degree for a property management job,
- the complainant’s experience was more relevant, and
- he had a “bevy” of awards while the selectee had never received one.
The Commission further noted that while the selecting official explained that the selectee had “strong reference checks,” there was no documentation in the file to back that up or even explain what it meant.
In another Homeland Security case in 2013 (EEOC No. 0120113819) the Commission said, “…there is no explanation why the selectee’s ten months at the agency outweighed Complainant’s seven years of experience or why a Masters of Arts in degree in International Affairs was relevant for a position whose vacancy announcement did not list education requirements.” (The vacancy was for a Hazards Mitigation Planning Group Supervisor position in FEMA.) EEOC also dismissed some reference to the fact that the complainant’s performance appraisal worked against him given that there was nothing in the promotion file to show it was ever considered.
Finally, in a 2011 case at Agriculture (EEOC No. 0120093647) the Commission found the non-selected employee was “plainly superior” to the selectee because—
- The selectee’s application merely said he possessed the experiences and attributes the selecting official was looking for but never documented that. In contrast, the complainant thoroughly documented his claim.
- The selectee’s answer to questions were vague, but not the complainant’s.
- The selectee’s public speaking experience involved addressing one to five people whereas the complainant had regularly spoken to groups of 50 to 150.
- The Selecting Official’s testimony was contradicted by the interview panel’s testimony.
We could go on, but if you want more go back and read some prior posts we have such as, The “Plainly Superior” Promotion Grievance Theory
Unfortunately, for the HR Specialist processing the action and the union rep, generally none of this is obvious at the time of selection. Few agencies help HR and union practitioners by requiring selecting officials to justify and document their selection or ask HR folks to double check the file to see if the selection makes sense. Consequently, union reps have little choice but to file the grievance or EEO complainant based simply on a gut feeling that the grievant was the best qualified or that the grievant meets the simple prima facie criteria.
If we were chief steward or staffing specialist, we would prepare a form something like the following to use every time an employee comes in to complain about non-selection or a selecting official makes a selection.
“THE PLAINLY SUPERIOR ANALYSIS FORM”
1. Do any of the non-selected employees on the Best Qualified list differ from the selectee(s) by race, gender, national origin, disability or ten or more years of age
2. Do any of BQ candidates identified in #1 as being different from the selectee(s) have—
- Education/training more relevant to the vacant position than a selectee.
- Experience more relevant to the vacant position than a selectee.
- A higher level of experience, e.g., worked at a higher grade than a selectee.
- The same or higher promotion score than a selectee.
- More performance awards or other recognition than a selectee.
- A more thoroughly documented and detailed application than a selectee.
If the answer to #1 is Yes and at least one of the criteria under #2 is met, ask the Selecting Official for an explanation of why s/he did not select the identified employee(s).
If the selecting official points to a determining factor underlying his/her decision that was not mentioned in the vacancy announcement (or other published documents connected to the promotion) and that factor was not systematically examined for everyone on the BQ list, then the union should file a grievance and HR should stop processing the selection until the selecting official comes up with a defensible explanation.