RATING PANEL GRIEVANCES: WE HAVE SAID IT BEFORE AND HERE IT IS AGAIN
Attacking the scores of a promotion rating panel is hard to do under traditional labor law. But, if you can find a reason to allege that there was not just a violation of a contract provision, such as the need for all promotion actions to be “systematic and equitable,” but also an EEO violation, you have a better chance of winning the case. EEO case law requires agency rating panels to carry a burden that most contract grievances do not. The latest example of this is a case (David T. v. Megan Brennan, Postmaster, EEOC No. 2019001172 (2019)) that resulted in an employee getting retroactively promoted and compensatory damages in addition to back pay. EEOC said the rating panel members “failed to provide any specificity when asked why successful candidates were recommended and why Complainant was not.” EEOC demands a lot of specificity that contract grievance arbitrators do not. For example, EEOC wrote …
“Manager M” simply stated that recommended individuals were chosen “based on the completing of their application, how they addressed the requirements and how they demonstrated they could perform the requirement.” As to whether or not Complainant was recommended and why, she answered “No, I did not retain the notes for applicants.” Similarly, when “Manager C” was asked why the successful applicants were recommended to SO, and to “be specific”, he said: “They were the highest rated by the board.” Complainant was not recommended because “he was not in the highest rated.” Even the head of panel, “Manager B”, simply reiterated the response she gave in describing the recommendation process when asked to specifically explain why the eight identified candidates were recommended (i.e. a matrix was used, scores complied, top eight scores given to SO).
EEOC was particularly upset that there is no description of the five “requirements” or rating factors that were scored or notes by the evaluators. Raking panel members were apparently allowed to define the concepts in their own minds.
EEOC then reminded the agency that where “the record contains the bare numerical scores [but] no testimonial or documentary evidence that explains why the panelists scored Complainant and the selectees the way they did, it can indicate that the scores were simply the selection panelists’ subjective assessments.”
As we at FEDSMILL have told readers before, EEOC holds that if an agency fails to provide “specific, clear, and individualized explanation” for why its selecting officials assigned their respective ratings or scores to a complainant and the selectees, it fails to meet its burden of production. And that means it likely loses the case.
If you want to know more about how to determine whether a rating panel’s documentation meets the non-discrimination standards start with our 2018 post entitled, “EEOC Lays Out Path to Winning Promotion Grievances.”