This GS-11 employee claimed that he was not selected for a GS-12 promotion in Oregon because he was African-American.  He backed up that claim by pointing out that the promotion certificate showed he had a higher score (95.88) than any of the three selectees  They were all White and had scores of 91.84, 91.39, and 91.05. Now here is the specific mechanism in the IRS promotion system that gives selecting officials the authority to discriminate—and it exists in every agency’s system.  The system leads selecting officials to believe they on par with the gods or at a minimum divinely inspired, that their decisions cannot be  challenged by mere mortals, and that they can anoint a selectee for the most whimsical reason or no reason at all.  And this poor sap of an IRS Oregon selecting official did just that. When it came her turn to give evidence, she said,…

“that she read the applications, resumes, cover letters (if any), and performance evaluations, and selected the applicants she believed to be the most qualified for the GS-12 position.” In other words, trust her.  EEOC wrote that she failed, as required by law, to explain what specific qualities she believed had made the selectees better qualified than the Complainant. She  merely restated the average critical-job-element scores for Complainant and the selectees. As we have said repeatedly, when an employee alleges an EEO violation the selecting official must come up with a more substantial explanation than that.

In fact, the EEOC spelled it out for IRS writing what it could have done to satisfy the law.:

Had the selecting official testified, for example, about remembering the different weights she had assigned to different parts of the application package, discussed in detail how the complainant and the selectees matched up in those various aspects, or even merely deigned to reference any narrative remarks contained in the actual performance appraisals that she found significant and detrimental to evaluating Complainant’s candidacy compared to the selectees, her testimony would have sufficed to add to the facts already described in the application packages….

And here is a sentence in the decision that many union reps can use, “The fact that the selecting official did not select Complainant, and instead chose three other applicants of a different race, whose potential to perform at the GS-12 level were ranked lower by the Agency, supports an inference of discrimination on the basis of race.”

When EEOC looked at the details of the applicants, it found “that Complainant had more formal education, significantly greater technical expertise, broader experiences (including working on more challenging cases), and better work performance, compared to at least one of the Oregon selectees….”

Consequently, it ordered the IRS to retroactively promote the employee back to 2017, provide back pay and benefit adjustments, throw in some extra cash to cover his extra income tax liabilities, and figure out how much he should get on top of that in compensatory damages. It also ordered IRS to train its selecting officials who made similar selections in the area of the violations.  For more details, check out Rigoberto A., v. Janet L. Yellen, Sec’y, Dep’t. of the Treasury (IRS), EEOC Request No. 2020005027 EEOC Appeal No. 2019003131 (2023)

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.
This entry was posted in EEO/Discrimination, Promotion/Hiring and tagged . Bookmark the permalink.

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