SPOTTING DISCRIMINATION VIOLATIONS & GRIEVANCES
Every time a member comes to the union for help with some personnel action, the union rep should not only look for violations of the contract, regulations, and past practice, but also whether management’s action amounts to illegal discrimination. That might sound like something only lawyers can do, but it is easy. EEOC and the courts have identified the warning signs that discrimination may have taken place and FEDSMILL.com has put them in one place below for you to use.
These warning signs are known as the “prima facie” indications of discrimination. If the union rep examination of a personal action shows that each of the prima facie elements are present, then the union should allege discrimination in a EEO charge or contract grievance. Not only does that give the employee a chance to enforce all his/her rights, but it puts an extra burden on management to explain its actions in more details than it has to provide in response to an alleged contract, regulation or past practice violation. This approach also boosts management’s financial and other liabilities, which should motivate it to settle.
The “prima facie” elements differ slightly for each type of personnel action and some judges use slightly different word, but here they are.
FOR SELECTION ACTIONS (Hiring, Promotion, Salary Increase, Training, Reassignment, Performance Awards, etc.)
1) The employee/grievant is a member of a protected group, e.g., he/she differs from the selected candidate by race, gender, national origin, age, religion, sexual orientation, disability, etc.
2) There was a vacancy, or in the case of an award there was an award to be granted.
3) The employee/grievant applied.
4) He/she was qualified for selection, but rejected or passed over.
5) The vacancy/award was filled after the employee/grievant was considered.
FOR DISCHARGE/DISCIPLINARY ACTION (Reprimand, Counseling Letter, Suspension, Punitive Withdrawal of Benefits such as an Alternate Work Schedule, Telework, etc.)
1) The employee/grievant is a member of a protected group, e.g., race, gender, national origin, age, religion, sexual orientation, disability, etc.
2) The employee/grievant was qualified for the position he/she was performing or benefit he/she was enjoying.
3) He/she was satisfying the normal requirements of the position or benefit.
4) He/she was discharged, disciplined or denied the benefit.
5) The employee/grievant was singled out for the penalty while similarly situated employees from a different protected group were retained or not comparably punished.
FOR PERFORMANCE APPRAISALS
1) The employee/grievant is a member of a protected group.
2) There are similarly situated employees outside his protected class. (Google these terms to check out what makes someone “similarly situated:” discrimination, employee, similarly situated, compare, court. Or just tap into “Garland’s Digest on Employment Discrimination Law.”)
3) The employee/grievant got a lower performance rating for similar levels of performance.
Below at the end of this list you will find excerpts from two EEOC decisions that will give you an idea of the depth to which EEOC judges and arbitrators have gone to scrutinize management appraisal decisions for disparate treatment.
FOR ALL OTHER ACTIONS (Leave Denial, Travel, Distribution of Duties, Hours of Work/Overtime, Breaks, etc.)
1) The employee/grievant is a member of a protected group.
2) He/she was treated differently from similarly situated employees not in protected group.
a) The similarly situated employees are in same chain of command as complainant.
b) The similarly situated employees are in same work unit as complainant.
As we have said often, we at FEDSMILL.com favor grieving discrimination issues over using the EEO complaint process. EEOC will generally not even consider related violations of the contract, personnel regulations, past practice or labor laws. Of course, you can split the case, i.e., send the discrimination charge to the EEO process and grieve the other charges, but we rarely see the benefit of that.
If you want to know more about fighting discrimination we have to tip our hats to AFGE. It has prepared a very helpful guide titled, “Fighting Discrimination in the Federal Government.” Go to this page and search on the word “fighting” to go right to it. It is a little long, but helpful nonetheless.
EXCERPTS OF EEOC APPRAISAL CASES FINDING DISCRIMINATION
Case #1— “We find that appellant established a prima facie case of discrimination based on sex by showing that she received lower annual performance appraisal ratings than the two male employees who held positions with the same classification and who were rated by the same male supervisors. . . . we base these findings on the different treatment of appellant and one or more of the male comparatives when applying the performance standards for PE-2 (productivity), PE-3 (quality), PE-6 (work place discipline), and when rating four related WBFs: work effort, work productivity, skill in work and work management. . . . We also find that appellant’s “met” rating on PE-3 (quality) lacks credibility. Foreman B rated both comparatives “exceeded” on PE-3, based on their having received no documented valid defects during the rating period. Appellant also received no documented valid defects during the rating period, yet Foreman B rated her only “met” on PE-3. The comparisons’ justifications further indicate that they produced quality products. The record shows that appellant also produced quality products, including two RU-430 units and a MSQ-77 system, during the rating period. Accordingly, we find that if Foreman B had applied the PE-3 standard to appellant in the manner in which he applied the standard to the male comparatives, appellant would have been rated as exceeding the “met” standard for PE-3. We further find that appellant’s “met” rating on PE-6 (work place discipline) lacks credibility. The “met” standard for PE-6 permitted no more than one to two documented infractions per rating period. Foreman B rated Comparative 2 “exceeded” on PE-3, noting that he had no infractions during the rating period, but rated appellant only “met,” even though she also had no infractions during the rating period. We find that if Foreman B had applied the PE-6 standard to appellant as he did to the male comparative, appellant would have been rated as exceeding the “met” standard.”
Mary E. Buzby v. Rice, Secretary, Department of the Air Force, EEOC 05910958 (March 26, 1992)
CASE #2— “The AJ noted that Complainant had been written up for incorrect application of tax law in one case but that Complainant subsequently demonstrated that her interpretation of the law had been correct. The AJ further found that CW1 [Complainant’s Witness #1} ‘had similar criticisms leveled at him and yet [he] was treated much different than Complainant. At the end of [the first training period CW1’s] performance was at or below that of Complainant but [T] did not request that [CW1] be placed under ‘maximum supervision’ unlike Complainant. AJ’s Decision, p. 10. Instead, CW1 received ‘special treatment,’ which the AJ stated ‘I believe the impression created by the designation of maximum supervision was less favorable and intended to be so’ by T. Id. The AJ further noted that ‘despite [CW1’s]continuing difficulties … in the areas of work papers, lack of an audit trail, minimum income probes, and case closing procedures, [T] nonetheless rated him with all “3s” on his evaluation and passed him through’ the training program
Victoria Oni, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency, EEOC 0720100015 (October 11, 2011)