HERE IS HOW TOUGH EEOC (& UNIONS) CAN BE ON AGENCY PROMOTION RATING SYSTEMS

A State Department employee failed to achieve a passing score on the agency’s promotion rating system. In fact, he failed by a lot, getting only a 67 when 80 points were needed. But EEOC did such a through job of punching holes in the agency’s promotion rating systems that it ordered the employee retroactively promoted. The EEOC analysis is a model for what any union/employee can do to attack a nonsensical agency promotion decision where there are hints of possible discrimination.

As we have said before, all an employee need do when alleging discrimination over a denied promotion is to show –

  • S/he is a member of a protected group under civil rights laws or regs,
  • There was a vacancy,
  • S/he did apply,
  • S/he was qualified and subsequently rejected,
  • The vacancy was filled with a member of a different protected group.

That is called meeting the “prima facie” test. Once those criteria is met, the burden shifts to the employer to provide a legitimate explanation why the complaining employee was not selected. In this case, the agency felt that all it had to say was that the employee failed to reach a passing score in its oral exam of 12 qualification dimensions using the same “scoring anchors” for each applicant.  In similar cases, agencies have said the employee did not make the BQ list or that someone else was “better suited for the job,” or that it went with the highest rated applicant. In this and each of those other cases, EEOC ruled the agency failed to meet its burden because its promotion rating systems did not measure up to being legitimate ones.

EEOC said the agency’s explanation did not meet its burden of proof because the agency—

  • Did not provide a list of the questions asked each candidate to assess each of the 12 dimensions,
  • Did not provide information on how each candidate answered each question under each dimension,
  • Did not provide a list of what the “scoring anchors” were (other agencies typically call these the crediting plan scoring sheets), or
  • Did not provide an explanation of how each rater scored each candidate on each dimension.

As a result, EEOC found the agency’s explanation why it rated the employee the way it did lacked legitimacy.  In other words, the managers’ testimony was not worthy of belief. EEOC went on to point out that the agency’s explanation must be fact based, not generalized or conclusory. The individual has a right to know why s/he in particular was not selected, not generally why the system worked against candidates like him/her. If you want to go through the details of this case, you can find them at Leon B. v. Dep’t of State, EEOC Appeal No. 0120182144 (Nov. 5, 2019).

So, we recommend that the next time an employee comes in complaining that s/he was unjustly passed over for a competitive promotion, the union think about following the path of this case, i.e., quickly check if the employee and selectee are in different protected groups. If so, you can file an EEO charge and a pre-grievance information request for the four pieces of information similar to that the State Department failed to provide in this case about the 12 dimensions and scoring anchors. Under most agreements, the deadline for choosing between filing a grievance or filing a formal EEO complaint does not begin to run until the EEO charge has been closed out.  That is usually about 45 days after one is filed.

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.
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