We can’t say this often enough.  When Selecting Officials non-select BQ candidates, especially those with higher scores than the selectee, the Selecting Official (SO) must provide the non-selected applicant something more than a vague, subjective, zero-content, non-verifiable reason why he/she was rejected. If the SO refuses to do it voluntarily, simply file an EEO complaint and the SO will be forced to go on the record and under oath.

A new decision out of yet another federal Circuit Court reconfirms that if the SO is facing an EEO complaint he/she must produce a substantive answer.  In the new case a city detective, Detective Abrams, applied for reassignment (not promotion) to the major crimes unit, but was rejected. (Assignment to that unit is considered an elite position occupied by the “best of the best of troopers.”)  When he asked for an explanation of why, he was given three reasons:

  • that he—unlike five of the eight others selected—did not have a college education;
  • that all members were selected for their specific skills or talent in investigation, report writing or strong evaluations and Abrams was not similarly situated to those selected; and
  • that Abrams had ongoing problems with report writing.

It turned out that his alleged poor writing reviews and lack of a college education were questionable because the poor writing reviews were largely from his time in police training many years earlier, and varied considerably after that; and more than one-third of persons selected for the major crimes unit did not have a college education. What a shock!  Did we mention that the non-selected employee was an African-American and from 2004 through 2009, the time period relevant to Abrams’s claims, all eight detectives selected for and assigned to the major crimes unit were white? In fact, every detective in the unit was white, and Abrams had more training and seniority than each of the detectives selected above him.

In any event, the selecting official also mentioned to others that he believed Abrams “did not fit in” with the other unit members nor was he “sufficiently suited” for the job whereas the selectee “fit in better.”  The District Court ignored those statements as without significance to the case, but the Court of Appeals reversed them.  It held that Abrams had met the four criteria for establishing a prima facie case (or enough proof that the employer has to present a non-discriminatory reason for Abrams’ non-selection), namely,

  1. he belonged to a protected class;
  2. he was qualified for the position he sought;
  3. he suffered an adverse employment action, namely, non-selection for a significantly better position; and
  4. the non-selection occurred under circumstances giving rise to an inference of discriminatory intent, i.e., all the other detectives in the unit were white.

When the Court said the three formal reasons for Abrams rejection were very questionable and unlikely to survive, it held that the sole remaining reason on the record, the comment about how well Abrams “fit in” was relevant.  The court held that a jury could decide the reason did not meet the employer’s burden of providing a “non-discriminatory reason” for the non-selection decision. If so, the employer would be guilty of discrimination. The court went on to say that “a hiring official’s subjective belief that an individual would not ‘fit in’ or was ‘not sufficiently suited’ for a job is at least as consistent with discriminatory intent as it is with nondiscriminatory intent: The employer just might have found the candidate ‘not sufficiently suited’ because of a protected trait such as age, race, or engaging in a protected activity. We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not ‘sufficiently suited’ for the position, is not specific enough to meet a defendant employer’s burden….It is, at bottom, a non-reason.”

As we said at the outset, we cannot make the point enough that subjective, vague, unverifiable, intangible reasons for non-selection are good signs that a non-selected BQ candidate who meets the prima facie case elements should allege discrimination through a grievance or ULP charge. In fact, we spelled it out in greater detail than this post in a previous article entitled, “What Do Selecting Officials Owe BQ Candidates?  A Lot!” Check it out and here is the full court decision in Abrams v. Dept of Public Safety  Second Circuit decision.

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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