Do you remember our posts about how EEOC normally orders agencies to reveal details about their crediting plans when an employee presents a prima facie case of discrimination? Secretary Mike Pompeo’s staff does not and it just paid a heavy price for that. An applicant for Foreign Service Special Agent job filed a complaint when he was told he was rejected due to his score of 67 on the oral assessment phase of the selection process. State considered 80 a passing score. When the employee presented a prima facie case of discrimination, EEOC was obligated to produce a believable explanation for why it did not select him. It responded that he failed the oral assessment which measures 12 dimensions of his knowledge, skills and abilities using “scoring anchors.” However, either in ignorance of the law or outright defiance, State …

refused an EEOC demand to identify what these “scoring anchors” were, the questions asked in the oral assessment process, the employee’s answers, or how each reviewer scored the candidates.  It contended that it was entitled to keep this information secret and that EEOC should just trust it did the right thing.

EEOC responded finding State failed to rebut the employee’s prima facie case because their case was based on “vague, conclusory statements” and referred the agency to a string of other EEOC decisions holding that is not enough.

As a result, it ordered the agency to change the employee’s score to the same score given the applicant who received the highest score and, absent a failed physical or security review, retroactively promote him to the job. (See Leon B. v. Pompeo, Dept. of State, EEOC No. 0120182144 (2019))

Agencies are notorious for manipulating crediting plans or just using plans so subjective the scorers can do whatever they want.  FLRA is not going to let an arbitrator order an agency produce a plan if the union simply claims a violation of the contract promotion article. Consequently, to put the arbitrator in the position where he has the authority to order the agency to produce them for the union or lose the case the union needs to allege an EEO violation and establish a prima facie case of discrimination.

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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