Federal Legal Corner

The Equal Employment Opportunity Commission's Office of Federal Operations upheld an administrative judge's (AJ) finding that the Department of Navy discriminated against an employee on the basis of race when it failed to select her for a position. Parker v. Navy, EEOC Appeal No. 0720080062 (2/26/09). Not only was the employee observably better qualified for the position, but the promotion process had many irregularities that supported the finding. 

Ms. Parker filed an EEO complaint claiming that she was discriminated against on the basis of race (African American) when she was not selected for a position with promotion potential. Following a hearing, the AJ issued a decision, finding discrimination concerning the complainant's non-selection. In her decision, the AJ concluded that the evidence supported a determination that Ms. Parker was discriminated against based on her race when she was not selected for the position because Ms. Parker's qualifications were observably superior to those of the selectee. Specifically, the AJ noted that the complainant had several years of experience at the GS-11 level with the agency and would have been able to work independently, while the selectee was only a GS-7 at the time of the selection. The AJ further noted that while the subject position was originally a GS-11 position, the agency's witnesses were unable to explain why it was announced as a career ladder position.  

The AJ also found several irregularities in the selection process itself which suggested discrimination, including that the interview panelists all signed a document which stated that they had reviewed the entire application package and affixed an appropriate score based on the entire submission. But, in fact, the panelists had only scored the candidates based on their interviews, and there were several scoring irregularities by the panelists. The AJ also found the scoring of the candidates suspicious. For instance, the AJ noted that the fourth interview question "concerned an employee who calls in sick and the frequent sick calls are impacting the ability to complete the work as planned and are causing churn for the employee's co-workers and asked the candidates what they would do." The selectee got a higher score then Ms. Parker, although he gave no concrete information on how he would solve the problem, wherein Ms. Parker gave very specific answers.  

The agency appealed the AJ's decision. The Commission, on appeal, held without discussion that it found no basis to disturb the AJ's findings, that the findings of fact were supported by substantial evidence, and that the AJ correctly applied the appropriate regulations, policies and laws. The agency was ordered to provide the relief originally ordered by the AJ, including retroactively appointing Ms. Parker to the GS-11 position at issue, paying Ms. Parker $25,000 in non-pecuniary compensatory damages, and paying Ms. Parker's attorney's fees and costs. 

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/ .

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