THERE IS SOMETHING ROTTEN AT DODEA
I once worked at the DoD Education Activity (DODEA) as a management official and to this day have enormous respect for its top leader’s integrity and values. But between the EEOC decision covered in this post and the post immediately below, it looks like it is time for an agency-wide DoDEA stand down to focus on civil rights. This is not how those who teach the children of military members around the world should be treated.
In this case a DoDEA employee at a base in Germany filed an EEO complaint alleging that the agency discriminated against him on the bases of his race (African American), sex (male), age (YOB: 1970), and in reprisal for prior protected EEO activity. The agency not only passed over him for promotion in a reckless manner, but also inexplicably lowered his evaluation after he filed his complaint.
The agency like so many around government has what I can only kindly describe as a loose and subjective promotion process. Those are a monster to defend when an employee makes a prima facie case of discrimination because it shifts the burden in the case on to the agency. It must then offer legitimate, nondiscriminatory reasons for the non-selections, including a clear and individualized explanation as to why Complainant was not referred or selected for the positions (See EEOC’s guide to establishing a prima facie case)
EEOC found that the selecting official (SO) “…generally stated that he selected the best qualified candidate from the list of referred candidates.” However, the HR Specialist testified no such list was ever prepared. Nor was there specific information in the record about the selectee’s qualifications or how he compared with the other applicants or Complainant.
In a second promotion action the Supervisory HR Specialist stated that the vacancy announcement was cancelled—despite the fact that the record contained an SF-82 indicating that someone was, in fact, hired for that vacancy announcement. But the blunders did not stop there. Despite the selecting official testifying that “he made the selection and wanted ‘someone with transportation experience, specifically someone with experience working in a[n] [Agency] bus office’ and that Selectee 2 had the required skills,” EEOC found that the complaining employee also had such transportation experience and had worked in a buss office.” Whooooops!
We could go on with things like how the agency files were missing key documents, but you get the point. Cases like this should convince union reps to ALWAYS allege EEO violations when there is even superficial evidence of a prima facie case. Adding such a claim to a contract grievance not only can potentially shift a burden to the employer that it can avoid if the union only grieves contract violations. It also puts the employee in a position to benefit from managerial blunders that may not yet be obvious.
In the end, EEOC ordered the agency to promote the employee retroactive to 2018, give him over $13,000 in damages payment on top of his back pay and all the benefits that go with a larger salary, and to reimburse him for any extra income tax liability he incurs for receiving all this money in one tax year.
Having represented employees in these cases as well as followed EEOC case law developments I am convinced that agencies like DoDEA could avoid the vast, vast majority of civil rights violations if they trained all their supervisors on just ten examples of actions they engage in constantly. They could shut the door on liabilities even tighter if they made a few process changes in HR. But I have been saying that for decades and I have yet to find an agency that cares enough to make the changes.
For more details about this case, check out Tyree B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2022003306
As I was about to post this, EEOC issued an even newer decision finding an agency discriminated when it failed to promote an employee because it could not meet the special burden an EEO charge puts on management. Here is an excerpt from the case that got the employee a retroactive promotion.
Here, Selecting Official conducted an initial review of the candidates’ resumes. While the Selecting Official acknowledged that he did not utilize any particular method for determining whom to interview, he recalled that he was looking for resumes that had “clear and concise description of skill and knowledge relevant to the Administrative Officer job duties.” The Selecting Official explained that he ultimately decided not to interview Complainant because Complainant’s resume was not in the top five. Upon review, we find that the Agency failed to articulate a specific, clear, and individualized reason as to why he was not selected for the position. Selecting Official provided his subjective belief without any clarification how Complainant’s resume did not adequately provide a “clear and concise description of skill and knowledge relevant to the Administrative Officer job duties.” As we have repeatedly found such explanations to be insufficient to meet an agency’s burden of producing a legitimate, nondiscriminatory reason, we find that the Agency engaged in discrimination when it failed to select Complainant for the position at issue.
For details, check out Adina P., v. Denis R. McDonough, Sec’y., Dep’t. of Veterans Affairs, EEOC No. 2021004593 (2023)
