EEOC just gave union reps a gift that can go on giving for a long time. It explained how to greatly boost the chances of winning grievances for union members passed over for promotion.  Let’s begin with some facts from the case to set the scene.  Gary met with his union steward to complain that Helen and Cedric were selected over him for promotion.  He pointed out that he has ten years’ experience in the job while Helen has one and Cedric two.  Moreover, he has often been asked to train past selectees for the vacant position. Finally, he noted that he was one of five BQ candidates interviewed, which suggests he must have had a pretty high score on the crediting plan.  The union steward told Gary that he would file a grievance alleging violations of the collective bargaining agreement provision requiring the agency to give all BQ candidates “uniform consideration,” and to ensure that all promotions are accomplished in a “systematic, fair and equitable manner.” THAT WOULD BE A BIG MISTAKE IF THAT IS ALL SHE DOES!

Tactically, it is always better to also allege an EEO violation, if possible, as we will explain below.  Here it is obvious that Gary can at least claim sex discrimination. He may also have a race, age, or national origin claim once the union learns more about the case. But alleging just one basis is enough to significantly boost the chances of winning the case using the advantages of an EEO claim.

Without the EEO claim, the union would have to convince the agency that there is a particularized  need to get the entire promotion file for all the BQ candidates.  That can be hard to do.  By alleging an EEO violation, the union also can ask for the information under the EEOC regulatory standard, which is much more generous to an employee. (CITE)

Without alleging an EEO violation, the union cannot force the agency selecting official and promotion panel to reveal details about why they made the decisions they did.  But, when an EEO claim is litigated, the agency is required by law to state a “legitimate, non-discriminatory reason” for any decision it made that harmed the grievant’s chance for selection.  All the employee need do to trigger that obligation to is show that he has a prima facie case of discrimination. Gary has that.  Gary has that because all it require is that he show he (1) applied for the vacancy, (2) he was qualified, (3) he was passed over and (4) someone of a different protected civil rights class was selected.

In Gary’s case when the union got the file all it showed was that the panel and selecting official asked a bunch of subjective questions and assigned each a number based on vague definitions of each numerical level. If the union had only filed a labor grievance, it would have had the burden of proving that the scores Gary was given and/or the ultimate selection decision were not uniform, systematic, fair and equitable.  That is an uphill climb when the union can’t force managers to reveal the details of how they arrived at their scores and decision. Generally, union’s can get the crediting plan under the labor statute. But with an EEO allegation the managers have the burden, not the union, to reveal their thinking and EEOC procedures normally order crediting plan disclosure.

In this new EEOC case, the managers gave the following explanations for their decision:

  • Gary did not score as well in the hiring process as the selectees
  • The selectees had better interviews
  • The selectees were either better prepared or better able to convey their knowledge and accomplishments than the other applicants.
  • Length of service in the next lower level job was not used for determining qualifications for the positions
  • It was a subjective decision, but management has the right to select anyone from the BQ list.

(These were the actual explanations given in the new EEOC decision.)

In a regular labor grievance, the arbitrator must find for the agency unless s/he is convinced by the union that the promotion decision was not uniform, systematic, fair, or equitable.  The odds are that in a straight labor grievance the union loses this case.

But if the union also alleged an EEO violation, the arbitrator must also determine whether the agency met its burden of proof to deliver a “legitimate, non-discriminatory” explanation for its decisions. EEOC requires that and here is what that entails according to EEOC.

In non-selection cases, the legitimate nondiscriminatory reason must include a “specific, clear, and individualized explanation” for the non-selection so that the complainant is provided with an opportunity to prove that the agency’s explanation was a pretext for discriminatory animus….Otherwise, a complainant is not required to demonstrate pretext if he or he has established a prima facie case, and the Agency’s legitimate nondiscriminatory reason is “so generalized, conclusory, and vaporous as to offer no substantive explanation of the Agency’s action.”

Once the arbitrator must apply that case law, the agency chances of losing the grievance go way up.  Here is how the EEOC applied the law in this case.  First it said,

We have previously determined that where “the record contains the bare numerical scores [but] no testimonial or documentary evidence that explains why the panelists scored Complainant and the selectees the way they did, it can indicate that the scores were simply the selection panelists’ subjective assessments.”… Although subjective assessments can serve as legitimate non-discriminatory reasons for non-selection, “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.”

Were the five statements above clear and reasonably specific? Nope, said the EEOC.  It wrote,

Such conclusory statements do not constitute a legitimate nondiscriminatory reason, and “thwart the fact-finder’s ability to comparatively analyze candidates….Despite his role as the selecting official, LM [the selecting official] provided scant information about the candidate interviews. Yet, he asserts that the interviews were the primary basis for his scores and the reason he did not select Complainant. There are no interview notes, and LM did not provide the specific questions he asked during the interviews, or even confirm that the candidates were asked the same questions. Rather, LM testified that he asked open-ended questions beginning with phrases such as “describe your ability” and “what is your knowledge or involvement in” to elicit a more detailed response from candidates. We note that the questions Complainant recalls from LM’s interview identify specific situations, such as what would Complainant do if two employees got in a fight, or in the event of an unannounced safety inspection.

As for the managers’ reliance on the crediting plan for their scoring, EEOC was not impressed.

While the record includes materials from the Handbook EL-312 and the “Interviewer’s Quick Guide,” which LM states he used for guidance in conducting the interviews, he does not specify how he used these materials in his interview and selection process. Likewise, the record is devoid of written or testimonial evidence to explain the differences between the Review Committee and LM’s scores on the Requirement Matrix. The Review Committee Chair’s (RC) Requirement Matrix shows that Complainant and C2 (Helen) tied for the highest score among those interviewed by LM at 75% and received the same scores/KSA points for each requirement. CI (Cedric) received a 70% from RC, scoring lower on Requirement 5 than C2 and Complainant. In contrast, LM scored CI higher than Complainant and C2 for Requirement 5. LM scored Complainant lower than Cl and C2 on Requirements 7 and 9, even though all three received the same score on those requirements from RC. Neither LM, nor RC, provide any notes about how they came to their decisions. Additionally, the Requirement Matrixes for the other named members of the Review Committee are not included in the record, and their signatures are not included in the spaces provided on RC’s Matrix.

Finally, it declared, as an arbitrator would have to that,

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find the Agency’s evidence does not provide a specific, clear, and individualized explanation as to why Complainant was not selected for a position for which he was deemed qualified. Therefore, the Agency has not met its burden of production, and Complainant’s initial inference of race/color discrimination remains unrebutted.

Stated differently and more briefly, THE AGENCY LOSES. EEOC ordered that the employee be retroactively promoted with back pay, interest and other benefits, like extra agency FERS and TSP contributions. It also ordered the agency to pay the employee compensatory damages, which can often be much more than the back pay owed. Finally, it ordered that the managers involved be trained on how to make a promotion decision that satisfies the civil rights laws and that the people responsible for this promotion action be considered for discipline. NONE OF THAT WOULD HAVE BEEN POSSIBLE IF THE UNION HAD ONLY CLAIMED CONTRACT VIOLATIONS. And just as important, even if the agency did provide legally-sufficient, non-discriminatory justifications for its scoring and selection decisions, by using EEO to force them to reveal more details the union would have boosted the chances that it could have proven a contract violation.

To sum up, the path EEOC lays out is that the union should always allege an EEOC violation when filing a promotion grievance—even if the grounds are not obvious until it gets the promotion file.  Allege anyway.  Second, assert that the employee has a prima facie case and demand that the agency produce a “legitimate, non-discriminatory reason” for all its rating and selection decisions. Finally, when the agency states its reasons under oath, make that the focus of your argument to the arbitrator if the reasons do not meet the EEOC criteria.

You can read this case decision under the title of Garret W.,  v. Megan J. Brennan, Postmaster General, EEOC No.0120173051 (1985). If you want to know more about prima facie criteria check out Spotting Discrimination Violations, and if want to know more about how specific an agency’s  explanation of its promotion decisions must be when a union alleges an EEO violation check out Waterboarding Selecting Officials and What Do Selecting Officials Owe BQ Candidates and How Agencies Beat Themselves in Promotion Cases .


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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