CHALLENGING PROMOTION NONSELECTION DECISIONS
If you have followed us over the years you know that we believe that one of the most effective ways to challenge a promotion decision is through the EEO charge process. If the selectee is in a different protected class than you, e.g., gender, race, age, national origin, disability status, etc. and you think you were better qualified for the job, FILE, FILE, FILE. At worst, you still won’t get the job. At best, you will get it with some retroactive pay and a few thousand dollars of compensable damages. Even if you wind up somewhere in between those two results there are a lot of very good options there too. A very recent EEOC decision out of Homeland Security highlights one way to win these cases.
Briefly stated, the law says that if you can show you are a) in a protected civil rights class based on race, gender, age, disability, etc., b) qualified for the position, c) rejected for the position and d) the employer selected someone from a different protected class was selected or the employer continued to search for applicants, then the agency must provide a specific, clear, and individualized explanation for a non-selection so that the complainant is provided with an opportunity to prove that the agency’s explanation was a pretext for discrimination. The agency’s explanation has to hit all three requirements, not just one.
While “pretext” is not a word not used often in everyday life, neither it is a big mystery. In this DHS case EEOC said, “Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence….In non-selection cases, Complainant could demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee….Other indicators of pretext include discriminatory statements, past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record.” That gives an employee a lot of hooks to hang a case on.
In this particular case, the selecting official said she did not select the Complainant for Position 1 because her application did not demonstrate experience relevant to key elements of the job description. She also claimed that she selected someone else for the position because his application demonstrated experience relevant to the key elements of the job description and because he received the highest interview score. That certainly was a specific, clear and individualized explanation, but it also gave the complaining employee a target to aim at—and her aim turned out to be excellent. She showed that her application listed relevant experience in all of the seven areas identified by the selecting official as deficiencies with her application. Indeed, the Complainant’s application was almost word-for-word the same as the first area of Experience that the selecting official swore was missing from Complainant’s application.
On top of that the Complainant showed that the selectee’s application did not specifically list experience six of the seven areas identified by the selectin official as deficiencies for Complainant’s application.
That was all EEOC needed to conclude that the complaining employee, who was of a different race and gender than the selectee, was the victim of discrimination. The employee won retroactive selection, back pay and damages without having to prove the selecting official was biased toward people of her race and gender, that he had used racial or gender slurs, or any other indications of overt discrimination. Once the employee met the four factors listed above, all she had to prove was that the selecting official’s explanation contradicted the documentary evidence. Best of all, under the EEOC charge process the agency assembles all the documentary evidence and gives the employee a copy to search for evidence of any kind of pretext.
Promotions are few and far between these days as we go through another round of leaders who think government work is bad for America. So don’t be shy about challenging a non-selection decision or about encouraging union members to do the same.
If you want to know more about this case, you can soon find it on the EEOC.gov web site titled as Shayna P., V. John F. Kelly, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Appeal No. 0120141506 (2017).
