PROVING PERFORMANCE APPRAISAL DISCRIMINATION

Want to boost your chances of winning a performance appraisal grievance? Check out Maria D. v. Merrick B. Garland, Attorney General, DoJ (FBP), EEOC No. 2021001182 (2021) Maria could have settled for filing a grievance simply alleging that portions of the contract’s performance appraisal article were violated, e.g., failure to provide a systematic, fair and equitable rating. But she boosted her chances not just of winning an appraisal upgrade, but also much stronger penalties on the agency by alleging that her appraisal violated civil rights laws and regulations. She claimed the agency gave some of her male co-workers a much higher appraisal rating without there being any legitimate difference between her performance and theirs. Here is how EEOC concluded there was discrimination—and a roadmap for you to prove the same thing if you or a member face similar facts.

Maria did not have access to all her co-workers’ appraisal when she made her allegations, but seems to have known that she should make the allegation her instincts told her and wait for the subsequent investigation to produce the documentary evidence. The agency was required to disclose the appraisals of her co-workers by gender once she made the allegation. The record showed that five male coworkers were rated Excellent while she was only rated Satisfactory. Under law, all Maria had to do was show that a similarly situated co-worker of a different gender got a higher rating. Once that was demonstrated, law required management to present a legitimate, non-discriminatory reason for the difference.

It initially argued that the narrative explanation of the basis for the appraisals justified the difference. But somewhere during the hearing the agency agreed with the judge that the appraisals “contained no specificity, were subjective and overbroad, and,… were essentially worthless.” (EEOC case law contains a bunch of cases that show what that federal agency considers to constitute subjective worthless appraisals. Your union might want to have someone dig out those examples and share them among all the stewards so they know when a member’s appraisal is very vulnerable to attack. Check out our post entitled, “What Do Selecting Officials Owe BQ Candidates?” for a good head start on that.)

The agency also argued that Maria had to point to more than five male employee appraisals to sustain a sex discrimination allegation. EEOC shot that down writing, “That the Comparison Group in this case includes only five similarly situated male officers is of no moment. Even just one similarly situated employee may help establish a prima facie case of discrimination.”

Had Maria not raised the discrimination issue she likely would have had her appraisal raised to Excellent and probably even been granted the $1,000 performance award she missed out on with her initial satisfactory rating. But by also alleging discrimination she qualified for damages, which EEOC decided were another $7,000. for her due to the trouble the agency’s discrimination caused her.

So, when faced with a potential appraisal grievance, ask yourself why you are not also alleging a civil rights violation.  Doing so not only boosts the potential to win and win big, but it also gives you a stronger reason to request agency information. That could include all similarly situated co-worker appraisals identified by race, gender, national origin, age or whatever other basis you think might apply. You do not need to prove or even show anything just to make the initial allegation.

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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