What’s a guy to do when his wife, who works for the same agency as he does, is transferred from San Diego to Washington, DC, he applies for a reassignment to DC himself under the Agency’s Married Core Series Transfer Policy to be with her, and he is rejected? He could file a grievance and try to prove he was entitled to the reassignment or he could file an EEO charge and shift the burden on to the agency to come up with a legitimate reason why it did not reassign him.  If the guy can also identify eight other women who have worked for the agency who were moved under that program he has a great case of disparate treatment, particularly if the agency never gives him a reason for denying the reassignment request. Earlier this month, the EEOC faced just such a set of facts. 

The Agency claimed that it was highly unlikely that the employee was the victim of discrimination because the board of managers who made that decision, “…included representatives from EEO, Human Resources, and the Inspectors General and so, it was highly unlikely that the Agency’s decision was motivated by discrimination.”

In reviewing the Agency’s decision, the Commission found that the employee had established a prima facie case “…by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination….The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions….To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual.”

While that is technically how EEOC decides cases like this, the Commission rejected the agency’s case because despite the prima facie case the Agency never gave the employee, “… any meaningful opportunity to demonstrate the Agency’s decision was discriminatory or pretextual in the absence of any clear, specific statement regarding the reasons for denying Complainant’s transfer request. In light of the Agency’s failure to provide a sufficient articulation of the reasons for denying Complainant’s request for reassignment to the Washington, D.C. area, as described in Complainant’s complaint, the Commission finds that the Agency failed to overcome Complainant’s prima facie case of sex discrimination.” In other words, when the agency failed to produce a sufficiently detailed explanation of the non-selection, despite having selected eight women for the program, the employees wins.  EEOC awarded the employee compensatory damages and attorney fees were likely to follow.

Check out Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Appeal No. 0120123094 (March 2015)

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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