CBP DESTROYS EVIDENCE; MANAGERS TESTIFY THEY “CANNOT RECALL”

A Filipino CBP Officer in the agency’s El Paso Office applied for a job as a CBP Officer (Field Canine Enforcement Trainer) back in 2016, was rejected and filed a race discrimination charge with EEOC. When it came time to look at the selection evidence file, the agency announced it has “lost” the (1) selection panel ratings of applicants’ resumes; (2) a list compiling the selection panel data into a numerical list of scores; and (3) the application materials for applicants other than Complainant and the two selected candidates. When EEOC asked the Port Director and Assistant Port Director how they made the selection, they said they could not recall—the old Watergate defense—but did swear the complaining  employee was in the bottom half of the ranked candidates.  Apparently, fractions stuck with them longer than other kinds of memories. That left EEOC to take their word that they did the right thing.  EEOC chose not to believe them because …

“The record contains no clarification as to what specific qualities made those individuals better qualified than complainant, and it is not sufficient to simply say that the selectees were more qualified than complainant. There must be some evidentiary proof to support this conclusory statement….The Agency explained the general mechanics of the selection process but failed to provide an individualized explanation for Complainant’s specific situation. See, e.g., Koudry v. Dep’t of Educ., Request No. 0520100196 (Apr. 13, 2010) (discrimination found where agency merely explained the mechanics of selection process, provided list of candidates deemed best qualified, and summarized applications of selectee and complainant, but failed to provide statements from selecting officials explaining how complainant’s qualifications were evaluated compared to selectee’s qualifications). The record simply does not indicate how the Agency determined which applicant was selected or why Complainant was not. We do not know why Selectee and Alternate were chosen. We find that the evidence presented by the Agency is not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for the position for which he was deemed qualified.”

The agency was lucky not to lose this solely because it lost the evidence.  The employee was lucky because CBP regularly fails to follow the EEOC case law and develop for the file an evidence-based reason why the specific employee filing the complaint was not selected.

The agency was ordered to give him the job, seven years of back pay (which would include any missed overtime or premium pay) extra money to cover the additional income he must pay due to the large back pay amount in a single tax year, and settle with him on compensatory damages up to $300,000. The agency was also ordered to…

Within sixty (60) days from the date the decision is issued, the Agency shall consider disciplining the selecting official and recommending official for the CBP Officer (Field Canine Enforcement Trainer) position.

If you want details about this case, check out Jay C., v. Alejandro N. Mayorkas, Sec’y, DHS (CBP), EEOC No. 2022000822 (2023)