THE “PLAINLY SUPERIOR” PROMOTION GRIEVANCE THEORY
Never heard of it? It is the argument to use when grieving non-selection from a list of properly ranked and rated best qualified employees. At least this is one of the ways. Here is how it worked for Gina Potter of the Food Safety and Inspection Service of the Dept. of Agriculture in EEOC No. 0720120029 (Sept. 2013). Ms. Potter, a GS-7 employee, applied for promotion to a GS-8/9 position in the same line of work. Twelve employees applied for the two vacancies and when Potter was passed over, she filed an EEO charge claiming it was due to sex and race (Caucasian) discrimination. The agency rejected her complaint claiming that her experience and training were not as good as other candidates. It also claimed that she often created conflict needlessly. But when the EEOC hearing began, witnesses testified under oath, documentary evidence was uncovered, and the real fun began.
It turned out that Potter could show she actually did have substantially more education than either selectee, more relevant training, and more diverse experience. Moreover, there was no objective evidence anywhere to verify that Potter has caused conflict. The hearing officer said the agency’s explanation for passing over Potter lacked credibility when compared to the objective evidence. (In this case the agency did not hold interviews, which removed any potential to force the hearing officer to make a more subjective analysis than the objective written records.) Consequently, the hearing officer and the full EEOC concluded that there msut have been illegal discrimination because Potter was “plainly superior” to the two employees originally selected.
EEOC not only gave her a retroactive promotion effective five years before the EEOC decision was issued and back pay for all that time, but another $3,500 for the “humiliation and embarrassment” of being non-selected. On top of that, it ordered reimbursement of the employee’s attorney fees, and that the agency report back to EEOC about whether it decided to discipline the selecting official—as EEOC suggested it do.
Although Potter filed her EEO charge through the agency EEO appeal process, she could also have filed under the union negotiated grievance procedure unless the contract specifically prohibited discrimination grievances. No matter where she filed, the OPM rule barring grievances over non-selection from a proper BQ list is overridden if the employee can prove discrimination.
To learn more about how to prove you or some members were “plainly superior” to the selectee, check out these cases. In Kelliann Dixon v. Alberto Gonzales, DOJ, Bureau of Prisons, EEOC No. 07A50001 (2005) the employee proved she was plainly superior by showing, “her evaluations and ratings were higher,and she received more awards, completed more training, and served more times in acting positions.” Tony Calloway v. Eric Shinseki, DVA EEOC No. 0120080458 (2009) is another good source for identifying the kind of things the non-selected employee must show to prove he/she was plainly superior. Finally, even when you cannot prove plainly superior, EEOC will still find discrimination if the non-selected can show that management’s explanation for its decision is “not worthy of belief” and he/she does seem to be arguably better qualified than the selectee. See Willia Perry v. Jo Anne Barnhart, SSA, EEOC No. 07A20053 (2003).