“Tickle torturing” might be an option when rating officials will not explain their scoring system that denied you a promotion.  After all, unlike selecting officials whose vagueness and secrecy make you want to waterboard them for an explanation of why you were not selected, rating officials do not make the final decision.   But a far less violent option for the disappointed fed applicant is to use civil rights case law.  A Texas Rangers interviewing panel learned this the hard way.

When Ms. Alvarado sought to be the first female Mexican-American Texas Ranger, she was passed over and only told it was because she failed to score among the top ten candidates in the promotion and selection process.  The rating panel’s process put her in twenty-ninth place.   Most applicants would have given up having missed it by so much, but Ms. Alvarado asked how the panel arrived at its scores.   When the Texas Rangers refused to tell her, she showed them what law enforcement was all about.

Alvarado filed discrimination charges contending that the Rangers offered no evidence that her interview score was determined by sex-neutral factors or characteristics.  In other words, she charged the Rangers with giving her only a nonspecific, content-less explanation, which courts have found insufficient feedback when an employee has met the prima facie criteria for promotion.

After the Rangers had to hire legal counsel and provide a ton of evidence to the court, it was obvious that a candidate’s interview score was the determining factor in whether the candidate landed in the top ten in the final rankings. The Court said,

“Of the ten candidates ultimately appointed to the Rangers, nine scored in the top ten in the oral interviews (the other candidate scored eleventh), while only four scored in the top ten on the written exam (the other six candidates scored twelfth, seventeenth (tie), seventeenth (tie), twenty-seventh, thirty-first, and thirty-third); the candidates with the second, fifth, and sixth highest scores on the written exam found themselves outside the top ten. Furthermore, three of the men in the top ten actually scored worse than Alvarado on the written exam.”

Consequently, the Court ruled that the decision as to who made the Rangers was heavily influenced by the Board members’ subjective evaluations of the candidates’ performances in the oral interviews.

If you read the FEDSMILL.com posting entitled, “Waterboarding Selecting Officials,” you can guess what the court said next.

“An employer’s subjective reason for not selecting a candidate, such as a subjective assessment of the candidate’s performance in an interview, may serve as a legitimate, nondiscriminatory reason for the candidate’s non-selection…. Such a reason will satisfy the employer’s burden of production, however, only if the employer articulates a clear and reasonably specific basis for its subjective assessment.”

Stated differently, when management gives you a subjective basis for an important decision you are entitled the “clear and reasonably specific basis” for that subjective assessment. In Alvarado’s case the EEO evidence showed that she received interview scores of 300, 325, 345, 345, 375, and 390, for a cumulative score of 347.5.  The Court then said,

“[The Texas Rangers have] offered neither an explanation nor evidence of how or why the interviewers arrived at those scores. Nor has [it] provided any evidence of why the Board rated the other candidates, particularly the ten men who were selected for the Rangers, higher than Alvarado. Alvarado’s score sheets contain no notes or comments on her interview performance, and [the Texas Rangers have] not pointed to any deposition testimony by the Board members that would shed light on why they scored Alvarado and the other candidates the way they did. Without some indication of the factual basis or specific reasons for Alvarado’s interview score, the score says nothing about whether her non-selection for the Rangers was the product of intentional sex discrimination. Instead, the score “is at least as consistent with discriminatory intent as it is with non-discriminatory intent” because Alvarado may well have received the relatively low interview score on account of her sex.”

WOW!  So, even if a federal employee misses the BQ list because of her promotion rating, she can still demand details about the basis for her rating.  That is a big tool for a union rep to swing in the grievance or EEO charge process on behalf of anyone. 

Just to be crystal clear about what management could and could not do when the court sent the case to a jury, it said, “Without evidence of the candidates’ relative qualifications, the mere assertion that [management] hired the best qualified candidates is insufficient to satisfy its burden of production, as it does not afford Alvarado ‘a full and fair opportunity to demonstrate pretext.’  (‘A defendant may not merely state that the employment decision was based on the hiring of the ‘best qualified’ applicant, but must articulate specific reasons for that applicant’s qualifications, such as seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work or any combination of such criteria.)”

(Aside from looking for something as specific as those six examples at the end of the court’s statement, check out what EEOC has identified as the other legal errors that interviewing panels make and look for evidence of them.)

In the end, when a full trial was held before a federal jury, Alvarado ‘s discrimination claim was rejected.  After seeing ALL the evidence management was required to divulge, it concluded that the ranking official had not discriminated intentionally or unintentionally.

But all the rest of us won, even those of us who do not make the best qualified list, because Alvarado’s case established that promotion rating, ranking or interviewing panels must reveal to applicants the clear and reasonably specific basis for its subjective assessment.  Typically, that will require disclosure of the panel’s notes, instructions, score sheets, interview questions, answer from each applicant, etc.

So, the next time you want answers about how you were treated in a promotion action—and management goes all “Texas Ranger” silent on you, contact the union and jointly stop by the EEO Counselor’s office to file a discrimination charge.  It does not matter if your charge is true so long as you can show 1- you were qualified for the job, 2- you were not selected, and 3- management filled the job with someone else of 4- a different race, gender age group, national origin, etc. (And don’t worry about being punished for filing the charge because another law gives you special protection against retaliation. (See “Retaliation, Spouse, and Cats” for details)

Maybe if employees file enough of these claims management promotion officials will stop keeping secrets about what they did and why.  The cost of forcing an employee to trigger the elaborate grievance or EEO charge process should get noticed soon.

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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