If you missed out on a federal job or promotion because of discrimination or retaliation, then keep reading. In a recent decision, the Equal Opportunity Commission (EEOC) Office of Federal Operations (OFO) raised the bar for federal agencies in non-selection discrimination cases. In the past, federal employers could defeat discrimination claims simply by arguing that the agency used a neutral selection process that produced a best-qualified list and included panel interviews. Judges didn’t necessarily require federal employers to explain why they selected one candidate instead of another. But those days are over.
Complainant alleges retaliation in federal job selection
In the case of Ashlea v. Department of Homeland Security, 119 LRP 23043 (OFO 2019), the complainant worked for Customs and Border Protection. She applied for a position as Supervisory Border Patrol Agent. And she was qualified for the job. However, the agency didn’t even interview her. The complainant alleged that the agency didn’t offer her a job in retaliation for her prior EEO activity. After the investigation, the complainant requested a Final Agency Decision (FAD). As expected, the agency concluded that it did nothing wrong. The complainant filed an appeal with the OFO.
Agencies must explain federal job selections
The OFO reversed the FAD and found that the agency retaliated against the complainant. The agency “explained the general mechanics of the selection process” but “failed to provide an individualized explanation for Complainant’s specific situation.” For example, the agency couldn’t even identify who chose the candidates that were interviewed. As a result, agencies must provide “a specific, clear, and individualized explanation” for not selecting a job applicant. Furthermore, the complainant must have an opportunity to prove that the agency’s reason is false and that the real reason is discirmination or retaliation.
We can help
Alan Lescht and Associates, P.C., has represented employees for more than 20 years. Contact us if you were passed over for a federal job or promotion. We’ll guide you through the ins and outs of the federal administrative litigation process and work for a successful result.
