The facts of yet another Homeland Security merit promotion EEOC case brought a big smile to our faces. No other agency manipulates the law, regulations, the truth, and its people like DHS—although a few are hot on its heels. In this case, a highly experienced, long-time employee filed an EEO charge alleging discrimination when she was not selected. DHS managers instead chose a newcomer to the agency as well as the occupational field of the vacancy.

When the employee established a prima facie case of discrimination, EEOC asked the agency to put forth its sworn legitimate, non-discriminatory reasons for not selecting the Complainant. That’s where the comedy of errors started.  The employee had been interviewed by three managers.

One interviewer said she was not selected because “Complainant was rated last because she did not understand the question or did not have relevant answers to them.”  A second one said, “…she failed to provide outcomes to situations and actions taken,” and the third swore she was passed over because she “”answered briefly with little details.” EEOC listened patiently to their testimony under oath and then pointed out that none what they were saying was in the record.  All the record showed from the interviewers’ notes was that she was “clear- spoken,” “grammatically correct,” and “succinct,” as well as “engaging” and “clear.”

Consequently, the EEOC wrote, as it so often does in Homeland Security cases, that “these explanations are suspiciously thin and vaporous and not supported by the record” and “the Agency’s explanations for Complainant’s non-selection are UNWORTHY OF BELIEF.” (We added the caps) Perhaps the leaders of this law enforcement agency, whose sworn statements are repeatedly unworthy of belief, are trying to endear themselves to the President by being just like him. But they are costing government a lot of money.  EEOC not only ordered this employee retroactively promoted, but required the agency to also pay any extra income tax liability she has due to the whopper of a back pay check in a single tax year.

Check out Mafalda H., v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (TSA) EEOC No. 0120170996 (2018)

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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