HOW AGENCIES BEAT THEMSELVES IN PROMOTION CASES

A GS-2210 IT employee (let’s call him William) got passed over for promotion in favor of a far younger employee even though William had  worked in a similar position for over 19 years, served in the Agency for over 25 years, and had veteran’s preference. So, he filed a complaint alleging the decision was based on sex and age discrimination. It was easy to show a prima facie case of sex and age discrimination. (1) He was over the age of 40 and the Selectee was not; (2) he was a different sex than the selectee; and (3) he was on the list of applicants deemed qualified that was forwarded to the Selecting Official.  But that is the easy part of winning  non-selection cases.  The real hard part for employees is proving that the agency’s legitimate, non-discriminatory explanation as to why he was not selected was not believable.  At least that is the hard part if the agency puts forth an explanation that meets the requirements of law. When it fails to, it loses– as EEOC just pointed out in a new case.

Once an employee can establish a prima facie case of discrimination the agency has the burden to articulate “a legitimate, non-discriminatory reason for its non-selection of Complainant.” While the agency’s burden is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for why it treated the appealing employee the way it did so that s/he has an opportunity to prove that the Agency’s explanations were pretext for discriminatorily animus, e.g., false, not reasons for making the decisions it did, etc. EEOC considers anything less than that to be unfair.

In this case, none of the involved managers could recall “how the Selecting Official identified the five candidates he decided to interview, and how he ultimately came to select the selectee rather than Complainant.”  As a result the employee did not have to prove the agency’s explanation was pretext because it was neither specific, clear, nor individualized to identify what the employee lacked that the selectee had.  EEOC simply declared the case over when the agency failed to meet its burden and gave the employee the job with back pay, interest and damages.

Agencies fail to meet their burden more often than you might think. That is why anyone who has even just a prima facie case should file a complaint.  Force the agency to prove it had a legitimate, non-discriminatory reason for selecting who it did and if not, sit back and savor the victory. William got promoted into a supervisory job.

If you want more details on the case check out William G., v. James N. Mattis, Secretary, DOD, EEOC  No. 0120160837 (2018)