WHY EEO ALLEGATIONS ARE A GOOD GAMBLE TO TAKE

Private law firms are taking in bundles of attorney fees representing federal employees in EEO complaints. This  is money unions could be collecting along with the positive publicity of tangibly helping an employee if only they would allege EEO violations more often in grievances.  In a case issued last week, we saw how the employee won a retroactive promotion based on facts she was unaware of (and one that did not exist) when she filed the charge.

Sharon was a 64-year-old woman from Puerto Rico who was passed over for a DoD promotion in favor of a much younger Hispanic employee—despite the fact that Sharon was the top scorer on the BQ list. She did not know that until she got the promotion file after she made her discrimination complaint. EEOC found she established prima facie cases of age and national origin discrimination.

At that point in the process the agency is required to present a legitimate, nondiscriminatory reason for Complainant’s non-selection. And that surfaced the second surprise fact in the case.  The agency could not identify who the selecting official was. It might have been a retired manager, but there was no proof.  Consequently, it had no explanation to offer why Sharon was not selected and Sharon won a retroactive promotion, back pay, and compensatory damages. (It boggles my mind that HR offices still do not require selecting officials to document why they selected who they did.  Without that record of a legitimate, non-discriminatory reason agencies are sitting ducks for selecting officials who retire, who “do not recall,” who make stuff up that the record does not support, etc.  But it happens all the time.)

This is a memorable case for all those non-believing union reps who have no faith in leveling EEO charges.  Sharon certainly did not know about the two facts that would win the case for her at the time she leveled the initial EEO charge.  She had to wait for the investigation to find one of them, i.e., her BQ score, and wait for the hearing to learn the other.

Call it a pet peeve of the Fedsmill folks,  but we fail to see why EEO allegations are not also included in grievances alleging contract or regulatory violations if there is even a hint of potential discrimination, i.e., a difference between the selectee and the grievant protected by any of the civil rights statutes. (See our post How To Add Clout To Your Grievance) We can’t say it often enough.  TAKE THE RISK; IT IS A GAMBLE THAT CAN NEVER HURT THE EMPLOYEE AND HAS THE POTENTIAL FOR A BIG WIN.

For details, check out the decision titled, Sharon P., v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Commissary Agency), EEOC No. 2022002298 (2023)