Like Brittany Spears’ song, some selecting officials are still getting “lost in the game,”  and in the process hurting those around them.  In this case, an over 40 year-old employee applied for a promotion to a supervisory position and made the BQ list, only to be passed over for a 36 year old.  It was the 31st time since 2006 that he had been passed over for promotion, which also happened to be the last year the agency selected anyone older than 37 for promotion. When the employee filed an age discrimination complaint, the selecting official (SO) explained that he chose the younger employee because he was the “best qualified” for the job of the 20 candidates on the BQ list. The SO outlined how he had talked to several managers about the BQ candidates, but provided no notes or details from those conversations to back up his conclusion. Here is how the case went to a very quick victory, retroactive promotion and back pay for the employee.

To begin, the employee the employee was able to show he had a prima facie case of age discrimination, that is,

(1) he is a member of a protected class, i.e., over 40;

(2) he was qualified for the position;

(3) he was not selected for the position; and

(4) he was accorded treatment different from that given to persons otherwise similarly situated who are not members of his protected group, or in the case of age, who are considerably younger than him, i.e., he was not selected.

Once demonstrated, the agency was required to put forth its reason for treating him differently than the selectee and as we said the SO’s only explanation was that the selectee was, in the opinion of the SO, the “best qualified” among all the equally qualified people on the BQ list. Based on labor law, selecting officials think their decisions cannot be challenged.  That is true under that law, but if the union alleges violations of civil rights or other statutes, the selecting officials are sitting ducks. Unfortunately for this SO, the civil rights law requires that once the employee demonstrates a prima facie case the agency must not just explain the basis for its decision, but also “frame the factual issue with sufficient clarity so that the [complainant] will have a full and fair opportunity to demonstrate pretext….” While the agency’s burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded a complainant.”

EEOC found this selecting official’s explanation fell far short of that standard.  In fact, it went out of its way to remind this agency of another case where the agency offered even more of an explanation than this agency did, but it also was found to be inadequate because it was all based on opinion rather than facts. (Woodward v. Dep’t of Labor, EEOC Appeal No. 01970288 (Feb. 1, 2000) – agency failed to meet its burden of production with sufficient particularity when the selecting official’s affidavit stated that the selectee was better qualified for the position because of her background, her superior experience in the field of interest, and her interview responses showing she had the perspective and attitude toward the position that would ensure success in the office). That explanation was neither specific nor clear, much less an explanation of what the complaining employee lacked versus the selectee.

This case offers a couple of lessons for union reps. It shows that even though labor law does not allow employees to file a simple contract grievance against a selecting official’s decision, raising the challenge as an EEO allegation is an exception to the grievance prohibition. It also shows that once you include an EEO allegation in a grievance the union establishes particularized need to get information on just how the selection decision was made, not to mention to demand the selection official take the stand to explain the decision.

For details on the case check out Dalton E., v. Merrick B. Garland, Attorney General, DoJ (FBP), EEOC Appeal No. 2020001456 (2021)

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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