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Pretext Part 3: Irregular Process and Agency Reasons That Don't Add Up

Pretext Part 3: Irregular Process and Agency Reasons That Don't Add Up

In our previous posts The Real Reason For An Adverse Action, and Shifting Explanations and Unbelievable Stories, we discussed four ways a federal employee’s attorney can show an agency has given a false pretext for discrimination, and talked about two forms of evidence: Shifting explanations and lack of credibility in the agency’s reasons for its adverse action. Today, we will discuss a second case, where an employee used his agency’s failure to follow its own process and the lack of a credible explanation for its actions to prove age discrimination.

In a 2006 EEOC case, Hagerty vs. Department of the Navy, a 60 year-old Industrial Engineer working at a naval station alleged age discrimination. The Industrial Engineer had applied for a Supervisory Industrial Engineer position, which was awarded to someone more than 20 years younger instead.

The Industrial Engineer was able to win his discrimination case despite the agency claiming that it had legitimate reasons for hiring the younger candidate. An irregular selection process and lack of substance in the agency’s reasons for hiring the younger candidate combined to show the agency’s stated reason for hiring the younger candidate was just a pretext:

Irregularities in the Selection Process

There were a number of irregularities in the selection process for the Supervisory Industrial Engineer, which the administrative judge and EEOC both strongly considered in their decisions.

First, the supervisor who made the final selection should not have made the decision, that supervisor’s manager should have. The manager had a policy of selecting all GS-13 positions himself, and was listed as the selecting official for the position. The supervisor, however, made the selection without consulting his manager and could not explain why he made the selection himself.

Next, the supervisor had previously cancelled the certificate for the position after his favored candidate withdrew – even though three other qualified candidates had been certified for the position.

Finally, the selection panel members gave inconsistent testimony about the selection, and could not agree among themselves about their discussions of the candidates.

No single one of these problems proved discrimination, but together they showed the supervisor was twisting proper procedure for suspicious reasons.

The Stated Reasons For Selection Were Not Credible

The agency’s key reasons for selecting the younger candidate over the older Industrial Engineer simply were not credible on closer examination. Specifically, the panel and selecting official said they did not think the older candidate could do the job, and liked the younger candidate’s “strong industrial background” and “off-yard experience.”

The claim that the Industrial Engineer could not do the job did not fit the record. The difference between the Industrial Engineer and younger candidate’s scores were “insignificant” – in other words, the panel of subject matter experts thought both could do the job equally well.

Next, despite the claim that the agency picked the younger candidate partly because of his “strong industrial background,” the older Industrial Engineer had an equally strong industrial background.

Finally, the idea that the younger candidate’s “off yard” experience trumped the older Industrial Engineer’s years of directly related experience did not make sense. Why would the younger candidate’s, at best, similar experience be better than the older candidate’s experience working directly on the job?

Takeaway

An irregular selection process and the lack of substance to the agency’s reasons for picking the younger candidate over the older both combined to paint a picture of age discrimination, despite the younger candidate being a credible pick for the position. The lesson in this case is that no single piece of evidence showed age discrimination, but multiple factors together added up to more than the sum of their parts.

If you believe you have been discriminated against by your agency, it’s important to document everything you can. A federal employee attorney may not be able to help you prove a case on one piece of evidence alone, but the pieces can all add up.