HOW TO STOP RAMPANT SELECTING OFFICIAL INCOMPETENCE

Thanks to the managements’ rights provision of the labor law federal selecting officials foolishly think they have something akin to Papal infallibility when they rule as to who should be selected for promotion. Afterall, the law says that employees cannot grieve a selecting official’s decision so long as s/he is working off a properly rated and ranked best qualified list. But what is not said is that you can challenge the selection if the official violated law or government-wide regulation despite the BQ list being properly ranked and certified. And given how reckless many selecting officials are unions should rarely pass up the opportunity to do so—as a new EEOC decision out of SSA shows. That selecting official passed over a candidate eligible for selection to choose two other employees who were members of a different race and gender. BINGO! GOTCHA! GAME OVER! I’M BUYING! Here is why.

Nothing in the law requires or even encourages selecting officials to choose candidates because of their race or gender.  But given our long national history of holding one’s race or gender against them, the law does contain a safeguard against that. When a selecting official chooses someone of a different race, gender, national origin, etc. than others who were eligible for selection the “other candidates” are entitled to a credible explanation from the selecting official as to why s/he did so.

In the SSA case, the selecting official testified that he passed over the complaining employee based on recommendations he received from each candidate’s supervisor. That initially sounded like a decent basis for explaining his decision, but it turned out that –

• there was no record of any recommendation about the Complainant or the other applicants, including the two selectees;
• neither the selecting official nor agency could recall the names of the supervisors providing the alleged recommendations;
• the employees’ supervisors were never interviewed as part of the agency’s investigation;
• nothing in the record substantiated why the selectees were rated higher than the Complainant based on the alleged recommendation; and
• the selecting official could not recall any details about what was in these recommendations.

At this point, most of you are probably saying that the selecting official was lying under oath about these recommendations and should be fired not just for being a liar but also a very, very bad one. But, for the moment, let’s focus on the gross incompetence of that agency defense.  Apparently, no one in the agency found it odd after reading the EEO Report of Investigation that nothing in the report indicated these supervisors’ recommendation ever existed.  Beyond that, the agency’s attorney ignored the fact that there was not a scintilla of evidence supporting the selecting official’s explanation.  Finally, the selecting official, after going through the investigation, pre-hearing prep, and hearing felt he could win just because he said so.

In our decades of representing non-selected employees, we have found this level of incompetence common among selecting officials.  Moreover, we have yet to hear of an HR office that reviews a selection decision to see if there is a prima facie case of discrimination based on gender, race, national origin, etc. — and where there is one requiring the selecting official to justify the selection with evidence — before finalizing it.  Consequently, unions could win a lot more of these non-selection cases if they would just allege discrimination in the original grievance along with any contract violations.  The payoff is huge compared to the typical priority consideration remedy of a simple contract grievance, e.g., retroactive selection, back pay, interest on back pay, compensatory damages up to $300,000., extra compensation to cover the increased tax bill associated with the back pay, attorney fees, and an order the agency consider disciplining the employee.

The facts in this case can be found in Priscilla H., v. Kilolo Kijakazi, Act’g Commissioner, SSA, Request No. 2022001994 (2022), Appeal No. 2021001678.

If you want to look deeper into how to attack selecting official decisions, we recommend these three Fedsmill.com postings:

• One More Time With Gusto: Grieving Non-Selection
• Oops, They Did It Again: Selecting Officials Who Cannot Explain their Actions
• What Do Selecting Officials Owe BQ Candidates?