ONE MORE TIME WITH GUSTO: GRIEVING NON-SELECTION

We have said it many times before, but we can’t make the point to often.  If a qualified employee is non-selected for promotion in favor of a person from a different protected civil rights group, s/he meets the prima facie test of discrimination. Once met, the burden shifts to the agency to provide a considerable documented explanation as to why the employee was passed over. Sadly, most union reps do not appreciate what an advantage this gives the employee seeking retroactive selection. Read the following excerpt from a new EEOC decision which once again outlines what the employer must demonstrate once the employee meets a prima facie test. If representing a non-selected employee, do not overlook the potential to raise an EEO allegation in any grievance along with contract and/or regulatory violations. If you file an EEO complaint, the Commission will not address any contract violations that might also have occurred, which is a clear disadvantage.

In EEOC’s own words here is the burden the agency must carry to win a case once an employee demonstrates a prima facie case: “We find that the evidence presented by the Agency is not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for the position. The Agency explained the rationale of the selection process but failed to provide an individualized explanation for Complainant’s supervisory recommendation. See Koudry v. Dep’t of Educ., EEOC Request No. 0520100196 (Apr. 13, 2010) (discrimination found where agency merely explained the mechanics of selection process, provided list of candidates deemed best qualified, and summarized applications of selectee and complainant, but failed to provide statements from selecting officials explaining how complainant’s qualifications were evaluated compared to selectee’s qualifications). We have held that an Agency fails to articulate a legitimate, nondiscriminatory reason when it fails to provide specific information to explain why Agency officials assigned their respective ratings or scores to a complainant. See, e.g., Myles v. Soc. Sec. Admin., EEOC Appeal No. 0120092511 (Feb. 10, 2011) (Agency failed to meet burden of production when it merely said that complainant was not selected because Review Panel ranked him lower in scoring because this was not a specific, clear, and individualized explanation for Complainant’s non-selection); Glomski v. U.S. Postal Serv., EEOC Appeal No. 01955157 (July 17, 1997) (agency failed to meet its burden of production because it did not provide an explanation of the review committee’s assignment of scores to complainant and the selectee). In this case, we find that the Agency has not met its burden of production. The Agency has failed to offer any evidence of the actual recommendations provided to the selecting officials, or the reasons for selection. Contrary to the Agency’s assertion that its decision was in response to the recommendation received from the supervisors of Selectee 1 and Selectee 2, the record contains no record of the recommendation that any supervisor gave either Complainant or the other applicants, including Selectee 1 and 2. Moreover, the record is devoid of testimonial or documentary evidence explaining either the recommendations or the rationale for them. While the selecting officials asserted that Complainant was recommended and the selectees highly recommended, the identities of the supervisors providing recommendations were not provided nor were these supervisors interviewed. The selecting officials did not recall the names of the alleged recommending supervisors and there was no documentation of the specific recommendations for any of the candidates in question. It is not apparent from the record why the selectees received a highly recommended rating whereas Complainant received a only a recommended rating, nor is there evidence that those were, in fact, the respective recommendations at all. See Jackson v. Lowndes Cnty. Sch. Dist., 2010 WL 91245 (N.D. Miss. 2010) (defendant failed to meet its burden of production when it merely stated that it did not hire plaintiff because he scored lower in his interview than candidate who was hired and provided tally sheet reflecting scoring of candidates on a scale of one to five, but failed to explain reasons for scores). Given the absence of any information regarding the asserted rationale for selecting Selectee 1 and Selectee 2, the Commission is unable to determine if the selectees were better qualified than Complainant. See Clemente v. Dep’t of Just., EEOC Appeal No. 0720080012 (Sept. 24, 2008) (agency failed to meet burden of production when it provided description of selection process, generally stated that selectees were more qualified than complainant, and provided no record clarification of specific qualities that made selectees better qualified than complainant.).”

Check out Priscilla H., v. Kilolo Kijakazi, Acting Commissioner, SSA, EEOC No. 2021001678 (2022) for the complete decision.