Alleged Discrimination in Non-selection

The Office of Federal Operations (OFO), EEOC, reversed its administrative judge (AJ) on appeal and held that she had improperly granted summary judgment to the agency in Price v. Dep’t of Transportation (Federal Aviation Administration), Appeal No. 0120070693 (8/29/08). The case arose as a result of the FAA Chief Counsel’s determination to promote attorneys within the agency. Regional, Center and Assistant Chief Counsels were invited to submit one attorney for promotion. In October 2004, the Chief Counsel announced the promotion of 13 attorneys to the Senior Attorney position. The Southwest Regional Counsel recommended two attorneys, including the complainant, but neither was promoted.

However, the complainant did not learn that “a final selection determination was made” until January 10, 2005, when the Chief Counsel “rejected the supervisor’s request for the complainant’s selection.” The EEOC disagreed with the AJ, finding that the complainant’s February 16, 2005, EEO contact was timely “[b]ecause of the informality of the selection process and the appearance in October 2004, that a conclusive determination was still pending.” Thus, the OFO found that the October date was not “determinative of when complainant should have reasonably suspected discrimination” because “the selection decision was not final.

The OFO determined that the AJ improperly analyzed the comparators by focusing on the colleague who was also not promoted. The “AJ erred because in a non-selection claim, the focus should be on the selectees to the position and whether their treatment vis a vis complainant raises an inference of discrimination.” The OFO found that the record “is wholly inadequate as to what exactly were the protected bases of the selectees.” The OFO went on to find that there are “material facts in dispute making a decision without a hearing inappropriate” because the selecting officials disagreed on the reasons for the complainant’s non-selection. “The decision-makers conflicting reasons for their decision puts in dispute material facts.

The Commission also noted that “one of the AJ’s findings of fact is unsupported by the record” and stressed that “the AJ must evaluate the witness testimonies to ascertain the truth behind why complainant was not selected for the promotion.” Therefore, the OFO reversed dismissal of the claim on the ground of untimely EEO contact, vacated the order finding no discrimination, and remanded the claim to the AJ “to conduct a hearing and make credibility judgments before finding in any party’s favor.” The complainant is represented by Edward H. Passman, a founding principal at Passman & Kaplan, P.C.

* 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 https://www.passmanandkaplan.com .

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