HOW TO GRIEVE PROMOTION INTERVIEW SCORES
STEWARD ALERT! As explained in FEDSMILL’s recent four-part series on how to grieve promotion decisions, one way is to challenge the promotion scores. A large part of those scores often comes from an interview. This article reviews the 10 errors stewards should look for in any promotion interview.
The most useful case law precedent about improper interviews comes from EEOC decisions where the Commission ruled that management’s interview behavior was improper or not believable. When EEOC overturns an interview score it has decided management’s action was not merit-based. Since all federal promotion actions must be based on merit, EEOC’s rulings are highly relevant to any promotion grievance, even where no one alleges discrimination. Moreover, it should settle an arbitrator’s nerves to see that an organization like EEOC has found the practice you are complaining about illegal.
1. IMPROPER QUESTIONS– Managers cannot ask questions that require applicants to talk about how they have exercised their statutory rights. FLRA found (23 FLRA 122) that asking how much time an applicant spends doing union business, whether his is an elected union position, or how he would resolve a conflict between agency and union work demands is a flat out violation of law. Similarly, EEOC has ruled that an agency may not make pre-employment inquiries as to whether an applicant is an individual with a disability, needs a reasonable accommodation, or as to the nature or severity of a disability. The Commission has held that an employer’s improper pre-employment questions constitute disability discrimination. (An agency may, however, make a pre-employment inquiry into whether an applicant can perform any or all job functions.) Even questions that solicit this information indirectly are wrong, e.g. EEOC found that questions about whether a candidate could travel are wrong. Bette Voss v. Janet Napolitano, Department of Homeland Security, EEOC No. 0720100001(2011)
Consequently, if interviewers ask about FMLA leave periods, marital status, national origin, age, physical fitness, religion, discrimination charges, ULP complaints, etc., union representative should challenge the legality of the question and assume that there is a good chance of proving discrimination.
2. JOB-UNRELATED QUESTIONS– Were the questions picked out of thin air or did management otherwise fail to rigorously and professionally validate them as required by EEOC regulations, 5 CFR 300.103, 5 CFR 335.103(a), and 5 CFR 7.1 ? EEOC put it this way long ago: “We find that it is more likely than not that the question by the . . . .Postmaster, who was a superior of the selecting official, concerning why appellant did not retire after seeing appellant’s 30 year service pin gave the selecting official pause, and explains why he broke from his routine practice of asking job related interview questions. This absence of interview questions by the selecting official is evidence that he substituted age for qualifications in making his selection choice.” Ralph G. Bartolomucci v. Runyon, EEOC No. 01923826 (1993). See also Robert Fox v. Runyon, EEOC No. 01913439 (1992) OPM regulations require that any measurement criteria used in a promotion action be job-related and that must be based on evidence, not opinion.
3. POLICY OR PRACTICE DEVIATIONS– Any deviation from the established procedures/practices for interviews is generally suspicious–aside from also often being contract or ULP violations. EEOC dealt with them this way in one case, “The AJ found several irregularities in the selection process itself which suggested discrimination. The AJ noted even though the panelists of the interview panel all signed a document which stated that they had reviewed the entire application package and affixed an appropriate score based on the entire submission, they only scored the candidates based on their interviews.”Asonia N. Parker, v. Dr. Donald C. Winter, Department of the Navy, EEOC No. 0720080062 (2009)
Union reps should also look into whether a deviation from practice or policy amounts to a unilateral change ULP, e.g. did the interviewer suddenly add a new line of questioning without notifying the union in advance, did she review different criteria than were supposed to be ranked, did he change the weights that were originally assigned to questions, etc. See Department of the Navy, Portsmouth, NH and Federal Employees MTC, ALJ, 1-CA-90354 (1990)
4. TREATMENT DISPARITIES-Any disparity in how candidates are interviewed, even in the questions asked, is often seen as a sign that there was bias or at least a lack of fairness. For example, was one candidate interrupted when answering while others were not? Was one candidate insulted, diminished or embarrassed while others were not? Was one interviewed in far greater depth than another? Here is how EEOC treated one set of such facts, “. . . complainant was not afforded the same opportunity to prepare for the interview as the selectee, and as such, the comparison between their interview performances was not justified. Elizabeth Williamson v. John W. Snow, Department of the Treasury, EEOC No. 01A33728(2004)
In another case EEOC ruled against an agency because, “the selectee had a suspiciously unfair advantage in the selection process. The record reflects that the selectee previewed the KSAs for the position and signed the recruitment checklist before the vacancy announcement was issued while she was the Acting Chief. Complainant did not have the opportunity to preview the KSAs and other selection materials before the vacancy announcement was issued.” Tony L. Calloway, v. Eric K. Shinseki, Department of Veterans Affairs, Agency, OFO EEOC No. 0120080458 (2009)
5. EVIDENCE INCONSISTENCIES– EEOC frowns on conflicts in the evidence, “The AJ concluded that OM provided different explanations for his actions during the investigation and at the hearing, so his testimonies were not credible. . . . OM testified during the investigation that his decision was made based solely ‘on the assessments, the interviews, and the numerical rankings.’ However, at the hearing OM testified that S1 was selected because ‘He [S1] had a detail to the operational supervisor’s position for at least 120 days,’ this explanation was not provided during the investigation. . . . the AJ noted that during the EEO investigation, management stated that they used the previous assessments for their selection. On the other hand, at the hearing, OM testified that ‘I’m unclear as to whether we actually used assessments’ for the selection.” Denise Bergren v. Norman Y. Mineta, Department of Transportation, OFO EEOC No. 0720060007 (2007) The lesson for unions is that they should call as witnesses each member of the promotion panel and selecting official to see if their stories line up.
6. SCORING INCONSISTENCIES– Another discrepancy that undermines the interview scores is one in which points are awarded inconsistently. EEOC has shown little tolerance for different scores being awarded for similar answers. “We cannot ignore, however, the unorthodox manner by which the two panels evaluated Complainant. On two interview questions, Complainant received zero points even though she gave substantive answers. On another, Complainant only received two points while one of the selectees was given six points for the same question and a similar answer.” Pamela Watson v. Janet Napolitano, Department of Homeland Security, EEOC No. 0720090029 (2010). In the same case EEOC highlighted its suspicion about scoring changes after the interview. “We find substantial evidence in the record supports the AJ’s finding that Complainant would have been. . . selected for the position if it were not for the fact that the panel changed her interview scores. The AJ found the testimony from P1 and P2 that interview scores were constantly changed due to later interviews was not credible. As the AJ noted, the Agency failed to provide evidence that other applicants had their scores altered. As such, . . . we concur with the AJ that Complainant established that the Agency’s nondiscriminatory reasons were pretext for discrimination based on sex.” Finally, the Commission has advised grievants to look for patterns in the scores. Did every candidate from a certain office get higher scores than others not from there? Was there a racial, gender, national origin or age difference in the average scores?
A Circuit Court overturned another kind of inconsistency with these words, “. . . the scores varied widely even on seemingly objective questions. Dunlap reported that his attendance record was excellent with only a few days off for family illness and received a score of 3.7. In contrast, when two white applicants gave essentially the same answer, they received a 4.2 and a 5.5. For Dunlap’s perfect safety record, he received a 4, while another applicant who had had two accidents in eleven years received a score of 6. Points were also awarded for politeness in answering the first interview question, with an extra half-point awarded for answering ‘yes, ma’am.’” David Dunlap v. Tennessee Valley Authority, 519 F.3d 626 (6th Cir. 2008)
7. INTERVIEWER RELATIONSHIPS– Look into the kind of relationships each interviewer had with the candidates. EEOC has been quick to overrule agency interview actions because of an interviewer’s foreknowledge of candidate complaints. “The record shows that in January 2003, only a month before the interview process at issue, M2, who assembled the interview panel, approached complainant in a hostile manner, to confront her about an EEO complaint she had recently filed. The Commission has held that a prima facie of reprisal can be established by showing that supervisors involved in primary stages of the selection process harbored animus.” Julie A. Ragsdale v. John E. Potter, United States Postal Service, EEOC No. 07200500291 (2006)
8. RECORDS INTEGRITY– EEOC often finds against an agency simply because it failed to keep complete records of the interview. “The Commission has long held that once an EEO complaint is filed in connection with a non-selection, the agency is obligated to retain all relevant records concerning the selection process for that position. Sampson v. Department of Justice, EEOC No. 05960435 (1998). See also Alexander Koudry v. Arne Duncan, Department of Education, EEOC No. 0120080343 (2009). Title 5 CFR 335.103(b)(5) creates the same obligation.
9. REASONABLE ACCOMMODATIONS– If they should have been provided but were not, it is a fatal flaw, e.g., to accommodate learning disabilities. “Moreover, the AJ found that the agency’s selection process, which was based solely on responses to an oral interview, has a distinct disparate impact upon handicapped employees who, like appellant, are developmentally disabled due to their low IQ. Consequently, the AJ determined that the agency “failed to take any steps to meet its affirmative obligations under the law to provide handicapped employees in building services with equal access to promotional opportunities.” Robert Fox v. Runyon, U.S. Postal Office, OFO EEOC No. 01913439 (1992)
10. UNPREPARED INTERVIEWERS– If the interviewers do not know what they are doing, their decisions are suspect. “The Commission finds that. . . the agency’s selection of the panel was a manipulation of the selection mechanism for discriminatory purposes. The agency placed inexperienced personnel on the ranking panel . . . . Specifically, at least two of the PM’s admitted that they not only had no previous experience in the process, but also that they were not advised as to how to go about the selection. There is also evidence that the PM’s were not even aware of the actual position or the specific SKAPs. The PM’s, as well as the SO, indicated that the SO did not provide the PM’s with the candidates’ background until about 10 minutes before the interviews began. The record indicates that the SO personally chose two of the panel members, both of whom had no experience on a selection panel. Allen C. Garrett v. West, Department of the Army, EEOC No. 01942371 (1995). See also Ricky T. Young v. John E. Potter, United States Postal Service, EEOC No. 07A40051(2004)
* * * * *
If a steward has any doubts about how this can pay off, check out FLRA decisions like the one below. “As noted previously, the Arbitrator evaluated the actions of the Agency officials involved in the selection process as well as the format, timing, and content of the interview and concluded that “the selecting official and [the] [g]rievant’s supervisor designed a selection process and ‘specialization’ for the TSS position which would lend an air of legitimacy to the discrimination against [the] [g]rievant on the basis of her race and national origin.” . . .Specifically, the Arbitrator found that the ‘format of the interview was likely to discriminate against [the] [g]rievant’ because candidates ‘were not asked to make presentations on some aspect of tax law or taxpayer concern[,]’ but ‘were told to try to ‘sell’ themselves to the panel[.]’. . . The Arbitrator noted that this put the grievant at a disadvantage because ‘it made her superior knowledge of tax law, IRS regulations, and taxpayer procedures irrelevant’ and ‘it placed a premium on making oneself acceptable to a group’ and, in this case, the group and all of the other candidates [except the grievant] are Caucasian.’. . .In reaching his conclusion, the Arbitrator also examined the timing and content of the interview, and found, in part, that: (1) the interview was not conducted in accordance with the FPM procedures; (2) the timing of the interview was ‘suspect’ because the selecting official did not decide to hold a interview until after it was clear that the grievant was first on the ‘Best Qualified’ list; (3) ‘neither the candidates nor the panelists were give very much notice of the interview’; (4) because there were no written instructions for the interview, it is impossible to know whether all of the candidates were given the same instructions and advice; (5) panelists did not agree on how ratings would be done; (6) ‘no notes were kept’; and (7) the selecting official ‘dominated the interview.’”Dept. of the Treasury, IRS, MT and NTEU, 37 FLRA 1410 (1990)