Throughout the year, the employee’s first and second line supervisors (S1 and S2) led him to believe that he was going to be rated at the top level.  In fact, that is how they rated him until the third line supervisor (S3) ordered them to lower their recommended appraisal. Suspecting that other employees of different races and genders were not treated the same way, he filed an EEO complaint claiming disparate treatment. And here is how he won big time.

To begin, EEO law shifts the burden of prove it did not discriminate to the agency once the employee can show s/he is a member of a protected class and was treated less favorably than another employee of a different protected class.  Every employee is in a protected class no matter what race or gender, which is why Caucasian employees can win EEO cases if Hispanic employees are treated better than they are.  EEOC put it this way, “Complainant established a prima facie case of discrimination that he is a brown Asian male, he received a smaller bonus and pay increase when management lowered his performance rating, and management did not lower the ratings of others outside his protected categories.”

When EEOC turned to the agency to come up with a believable explanation for why it lowered the ratings of this employee, S(upervisor)1 and S2 testified that S3 had ordered then to lower this particular employee’s score, based on some vague remark about his use of leave.  When S3 was called to the stand, she testified she knew nothing about this. She went on to say she could not recall if she even reviewed Complainant’s performance appraisal score and documentation.

So, EEOC wrote that, “Without identifying the specific deficiencies in “Competencies” that Complainant was not achieving when the rating was reduced, we find that the Agency failed to rebut the inference of discrimination created when Complainant established a prima facie case of discrimination. Therefore, we find that the Agency discriminated against Complainant based on his race, color, and/or sex when it rated him at a lower level.”

Unions should never underestimate the potential for managers to be unable to explain, much less justify their decisions when called to a witness stand.

EEOC ordered the agency to give the employee a retro award of $450.00.  It then tacked on another $5,000.00 in compensatory damages because “the employee testified that as a result of his lowered rating…, he suffered headaches, stomach aches, and insomnia. The Complainant stated as a result, his character and professional reputation has been injured. He stated his colleagues look at him differently and he fears in the future his ratings will be lowered again.”  EEOC went on to write that the employee did not need documentation from medical professionals to justify the $5,000.00. The agency is lucky the employee did not hire an attorney to represent him.  If he had, the agency would likely have had to shell out $50,000 in attorney fees as well.

If you want to check out the details of the case, see Tyrone D.,v. Chad F. Wolf, DHS (TSA), EEOC Appeal No. 2019002906

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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