An employee alleged that the VA treated her disparately in not selecting her for the position of RN Manger/Specialty Clinic (Nurse Manager), and it sure looks to us that VA managers lied to hide their blatant racism.  On top of that higher-level VA management decided to defend their behavior.  The EEOC record shows that the employee, who we will call Arleen, was an African-American over 40, applied and was qualified for the Nurse Manager position; was considered for the position in question; was not selected for the position despite her qualifications; and the selectee was outside of her protected classes. In other words, she met the prima facie discrimination criteria that forced the agency to explain its decision.

Agency officials defended themselves by testifying that after all the candidates were interviewed, the Selectee was ranked in the top four, higher than Arleen. As a result of her lower ranking, Arleen did not advance to a second interview and therefore was not considered during the final selection process.

But again, the record and evidence showed that the Agency initially planned to screen candidates using a BQ grid and interview candidates who scored highest on these objective criteria. Arleen was ranked among the best qualified, advanced to the interview, and was selected by the primary panel. The Selectee, on the other hand, did not pass the BQ screening during this round of consideration and failed to advance in the selection process.

But these VA Managers were having none of that merit selection stuff. So, the Selecting Official refused to select Arleen, even though she had the second highest rating.  However, upon learning that the highest ranked candidate was another African-American, the Selecting Official rejected to that candidate as well. The Selecting Official and Associate Director made it clear that they wanted the Selectee to advance to an interview. Therefore, the selection process was changed to disregard the results of the BQ screening, interview all internal candidates, and make the selection based upon the interviews.  EEOC found that to be a deliberately subjective selection process and highly suggestive of preselection.

When asked why the hiring process was changed, the Associate Director stated that the BQ scoring grid did not give any consideration to the years of nursing experience within specialty care clinics and it was unusual to interview candidates with no prior experience in the clinical practice area for such a management position. However, the record shows that the Selectee was considerably less experienced than Arleen and was unlikely to be able to compete for the position on the basis of such objective criteria. The Associate Director and Selecting Official were clear in their intention to alter the process to advantage Selectee over Complainant, an objectively more experienced and better qualified candidate. Moreover, there was no credible explanation from the Agency for why the other African American candidate, ranked number one by the initial panel, was also not an acceptable selectee, or why one of the two top-ranked candidates (both African American) during the second panel process were also not chosen as the selectee.

So, EEOC found the managers guilty of racial discrimination and ordered that the Agency retroactively place Arleen in the position of a RN Manager/Specialty Clinics position, along with a bundle of back pay and the right to petition for compensatory damages up to $300,000.

It also ordered the VA to “consider” disciplining the managers. Frankly, we hope the union files prohibited personnel charges against the two managers with the U.S. Special Counsel and asks for a max penalty.  While EEOC can only order an agency to consider discipline, the Special Counsel can order someone fired, fined and barred from further federal service.  These two managers deserve all of that.

We at Fedsmill usually post stories that show union reps how to win similar cases.  But in this one we hope there is never another case like it.

If you want more details, check out Arleen L., v. Robert Wilkie, Secretary, Department of Veterans Affairs (Murfreesboro, TN), EEOC Appeal No. 2019002725 (2019)

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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