Race Discrimination Found.

[Q Miles]

Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when it did not select her for a Social Worker Executive position in 2006. 

According to the record, the retiring Social Worker Executive recommended Complainant to be Acting Social Worker Executive in 2003. The Chief of Staff, however, appointed another employee (SE1) to the Acting position. In 2006, Complainant applied for the position of Supervisory Social Worker (Social Worker Executive) and was referred for consideration. 

A panel reviewed the applications, and recommended that the Chief of Staff re-advertise the position since none of the candidates demonstrated the necessary leadership and management skills. The Chief of Staff disagreed, and convened a second panel to re-evaluate Complainant, SE1, and two other candidates. The panel recommended SE1, and the Chief of Staff ultimately chose SE1 for the position. 

Complainant had 27 years of social work experience at the Agency, including a six month appointment as an Acting Social Worker Executive. SE1 had 26 years of social work experience, 20 of which were at the Agency and served as an Acting Social Worker Executive for three years. Following the investigation, Complainant requested an administrative hearing in the matter. 

During the hearing, the Chief of Staff testified that SE1 had done "an outstanding job" in the Acting position, and he thought she got along with others better than Complainant. The Chief acknowledged that he had "probably" made disparaging or derogatory statements about African-Americans at some point at time, but stated that he did not do so in a public forum. He denied making derogatory statements about Complainant, but stated that he had heard concerns from other people about Complainant's inability to collaborate with others. 

Complainant's Supervisor, however, stated that the Chief called Complainant "divisive" and "a troublemaker," and stated that she "caused problems." Complainant stated that there had never been an African-American Social Worker Executive during her 30 years at the facility. The AJ ultimately issued a decision finding that the Agency did not discriminate against Complainant.

On appeal, the Commission found that the evidence showed, more likely than not, that Complainant's non-selection was motivated by race. Complainant, an African-American, was on the list of qualified candidates referred to the second panel, but was not selected in favor of a candidate outside of her protected group. 

While the Agency articulated a legitimate, nondiscriminatory reason for selecting SE1, that is her experience in the Acting position, ability to work well with others, and responses to interview questions, the Commission found that, given the totality of the circumstances, the Agency's reasons were a pretext for race discrimination. 

The record contained an admission by the Chief that he made negative race-related statements about African-Americans. The Commission found that this admission constituted relevant evidence of racial bias or animus. Further, there was unrebutted evidence of the lack of African-Americans in Supervisory Social Worker positions, and the demographic breakdown of employees in the Office of the Chief of Staff showed that all four of the GS-13 or higher level employees were Caucasian. 

The record also showed that SE1's three-year appointment to the Acting position was an unusual personnel practice, and the Chief failed to provide an explanation for why he appointed SE1 instead of following through with the recommendation to appoint Complainant. 

Thus, the Commission concluded that the Agency's explanation for Complainant's non-selection was a pretext for race discrimination. The Commission noted that the AJ erred in not allowing a statement from the retiring Social Worker Executive that Complainant was the strongest candidate and surpassed SE1, and in failing to reconcile the testimony of the Chief that he did not make derogatory comments about Complainant with the Supervisor's testimony that he had done so. 

Thus, Complainant proved, by a preponderance of the evidence that she was discriminated against on the basis of her race. The Agency was ordered, among other things, to retroactively offer Complainant the Supervisory Social Worker (Social Worker Executive) position or a substantially equivalent position with appropriate back pay and benefits, and conduct a supplemental investigation with regard to Complainant's claim for damages. Barnette v. Dep't of Veterans Affairs, EEOC Appeal No. 0120100558 (May 11, 2012), request for reconsideration denied, EEOC Request No. 0520120469 (October 24, 2012)

​In Unity.​

Quentin D. Miles

(c) 858-705-0385

“Instead of making race-relations ‘issues of controversy’ awaiting adjudication and legal wins or losses, we need to make race-relations ‘opportunities of grace’ where we value one another as equals and adhere to the words of Christ – ‘In everything, therefore, treat people the same way you want them to treat you, for this is the Law and the Prophets.’” NASB Matthew 7:12. - qmiles

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