AGENCY INCOMPETENCE SNATCHES DEFEAT FROM JAWS OF VICTORY

Harold, a GSA employee, filed an EEO complaint alleging discrimination based on sexual orientation (gay) and/or the intersection of his sex (male) and race (African American) when he was not selected for promotion. His case turned out to be yet another example of how unions should never underestimate or ignore the potential for agency incompetence to turn an iffy grievance into a winner. Here are some details of yet another example.

Harold proved he had a prima facie case, which then required the agency to produce a defense that EEOC wrote “is not onerous.” It merely must provide a specific, clear, individualized explanation for a nonselection so that the complainant has an opportunity to prove that the agency’s explanation was a pretext for discriminatory animus. Normally, agencies should have an easy time winning promotion claims.

But this one failed to due to some fundamental blunders.  For example,

• It failed to provide affidavits from one of the three interview panel members.
• The affidavits it did provide lacked any “explanation as to how Selectee’s performance during the interview was superior to Complainant’s.”
• The affidavits showed that the panelists simply checked the box ranking the response from 1 to 5 without any explanation of what about the candidates’ response earned the particular score.
• The employee’s supervisor failed to supply Harold with a recommendation, which was “requirement” of the program, merely indicating that she did not have the time to write one.

It therefore was no surprise to find EEOC decided, “that the Agency failed to articulate a specific, clear, and individualized explanation for why Complainant was not selected for the position.” IN short, guilty as charged

EEOC ordered back pay to late 2022, extra money to cover any income tax all that extra cash will require, and compensatory damages. You will find the decision at Harold P.,  v. Robin Carnahan, GSA, EEOC No. 2024000413 (2024). When you are investigating a potential grievance or EEO charge be sure to look for the same kind of flimsy documentation of the rating panel’s conclusions.