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Nonselection Found Discriminatory

On May 11, 2012, the Equal Employment Opportunity Commission's Office of Federal Operations (OFO) issued its decision in Barnette v. Dept. of Veterans Affairs, EEOC Appeal No. 0120100558. Overturning an administrative judge's finding of no discrimination, OFO found Barnette's 2006 nonselection to be motivated by racism.

Barnette, who is African-American, was a GS-12 social worker at an agency medical facility in South Carolina. In 2003, a retiring GS-13 supervisor recommended that she be selected to act in her position. Instead, a Caucasian manager appointed a Caucasian GS-12 social worker to serve in the acting GS-13 slot for three years. The GS-13 slot was finally advertised in 2006, and Barnette applied. An initial review panel reviewed the best qualified applicants, and then recommended re-advertising the vacancy. However, the same Caucasian manager (the selecting official) rejected the recommendation, and conducted interviews of four applicants with a second interview panel (consisting of the manager and four other Caucasian managers). The Caucasian GS-12 social worker who had been permitted to act in the GS-13 slot was selected.

Barnette filed an EEO complaint in 2007 regarding this nonselection and another nonselection for a lateral position, alleging race discrimination (among other claims). An EEOC administrative judge conducted a hearing on these two nonselection claims in 2009. At trial, the selecting official admitted that he had made disparaging or derogatory statements about African-Americans (albeit not in public). The selecting official conceded that keeping the selectee in an acting position for three years was probably inconsistent with normal practice at the agency.

Unrebutted testimony at hearing indicated that there had been no African-American social workers at GS-13 or higher in the facility over a 30-year period; during the relevant time period, all four incumbents at GS-13 level or above were Caucasian. The administrative judge barred from evidence the admission of a statement from the GS-13 supervisor who retired in 2003 that Barnette was the strongest candidate for the position, even over the selectee. The administrative judge found no discrimination, and the agency then issued a final agency decision consistent with the administrative judge's findings. Barnette then appealed to OFO.

On appeal, OFO reversed both the agency and the administrative judge, and found that Barnette's 2006 nonselection for the GS-13 position was motivated by race discrimination. OFO found that the administrative judge had erred by excluding the retired GS-13 supervisor's statement from evidence, and had erred by not giving sufficient weight to the selecting official's admission that he had made disparaging statements about African-Americans.

Based upon that admission, on the prior demographic history of management in Barnette's facility, the racial makeup of management in Barnette's facility at the time of her nonselection, the selecting official's deviation from standard agency practice by keeping the Caucasian selectee in an acting position for three years, and the selecting official's failure to explain why he had appointed the selectee to that acting position when the retiring manager had recommended Barnette for the post, the OFO concluded that more likely than not the alleged legitimate reasons for nonselecting Barnette in 2006 were pretext for racism. OFO further faulted the administrative judge for not taking into account credibility issues in the selecting official's testimony, which was contradicted by Barnette's supervisor's testimony at hearing.

OFO ordered Barnette to be offered the GS-13 position, with back pay retroactive to 2006, ordered the agency to conduct remedial EEO training for managers and to consider discipline against the responsible management officials, and remanded the cases for supplemental investigation on the compensatory damages for Barnette.

* 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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