Agency Rationale Found to Be Pretext for Bias
The commission also found evidence of a discriminatory racial environment as selections were made by word-of-mouth references, including one from Wiggins's subordinate, in a culture where blacks felt "invisible." The administrative judge (AJ) found the selecting official's testimony to be unworthy of belief as the "absence of any semblance of an objective selection panel was sufficiently suspicious to cast doubt" on the concern that Wiggins would not be able to successfully assume a non-supervisory position. The AJ also found that the agency offered no rebuttal to the testimony of Wiggins's supervisors that she had greater skill and abilities than the other applicants, including one selectee who was only minimally qualified.
The AJ ordered the agency to retroactively promote Wiggins and awarded her $32,000 in compensatory damages "for humiliation and embarrassment of having to assume a position four levels below the pay grade she had spent twenty-six years attaining and maintaining" and stress causing her severe headaches. Although Wiggins "testified that she felt worthless when she had to take the downgrade," she did not seek any psychological or psychiatric counseling, which could have resulted in a greater award.
On appeal, the commission upheld its AJ and agreed with that "that the environment was sufficiently charged with racial disharmony. This is the essence of background evidence." The EEOC also disagreed with the agency's excuses that it was in a rush to hire and there was ignorance of Wiggins' race and color and awarded damages, including $77,099 in attorney fees and costs, in addition to the fees and costs incurred in the opposition to the agency appeal.
* 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.