By Deryn Sumner, April 19, 2017

Our mantra for fashioning remedies in employment discrimination cases is that the victim of discrimination should be placed, as closely as possible, in the position he or she held prior to the discrimination.  In claims of discriminatory non-selection, this typically means giving the employee the position he or she applied for, or at least a substantially equivalent one, with the agency, along with the back pay and associated benefits, including any step increases or career ladder increases that would have been earned if the employee had received the position when she or he should have. So what happens when the position at issue is unique or one of a kind?  Well, since the goal is to get the complainant to where he or she should have been, this can sometimes mean bumping or removing the person who got the job, likely through no fault of their own, so that the complainant can have it.

In 2016, the Commission considered such a case and ordered that the agency must bump the incumbent in order to remedy the discriminatory act.  In Toney E. v. Department of Agriculture, EEOC Appeal No. 0420150019 (March 18, 2016), the petitioner worked as a GS-11 academic program manager at a Job Corps Center in Bristol, Tennessee and filed an EEO complaint alleging discrimination when the agency did not select him for any of four center director positions for Job Corps Centers located in Coeburn, Virginia; Bristol, Tennessee; Franklin, North Carolina; and Pisgah, North Carolina, respectively. The agency issued a Final Agency Decision (FAD) finding it failed to articulate a legitimate, non-discriminatory reason for not selecting the petitioner and ordered he be promoted.

There is a substantial procedural history here, but relevant to this discussion, the Commission issued direction in Request No. 0520140443 (February 6, 2015) that the petitioner “be awarded the position of Center Director, GS-0340-13, or a substantially equivalent position. The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location (reasonable commuting distance) to the position for which the complainant originally applied.”

The agency subsequently offered the complainant placement in center director positions in Swan, Washington; Ozark, Arkansas; Golconda, Illinois; or Laona, Wisconsin.  The agency argued that this action placed it in compliance and noted that several Federal circuit courts have found that displacing an innocent employee with one who would otherwise have had the position but for illegal discrimination is generally not an appropriate remedy.

The petitioner filed a petition for enforcement seeking placement into the center director position in Bristol, Tennessee. After consideration of this petition, the Commission concluded that the center director positions offered by the agency were not substantially equivalent because they “were not in geographic/commuting locations remotely close to the positions that Petitioner was discriminatorily denied…The Agency maintains that it is unable to offer Petitioner the Bristol, Tennessee position because it is no longer vacant and is currently occupied by an incumbent employee who apparently was selected over Petitioner.  Although there may be some disagreement among the Federal circuits, case law from federal courts and the Commission recognizes the bumping of an incumbent employee as a possible remedy for discrimination.  The Commission also has previously held that the bumping of an incumbent is a permissible remedy when, in the absence of bumping, the petitioner’s relief would be unjustly inadequate.”

The Commission found that the agency’s actions were not sufficient to remedy the discrimination and the only remedy would be to bump the incumbent and place the complainant there.  I’m sure showing up to take over someone else’s job, who is no longer there through anything he or she did, can make for an awkward first day of work. Sumner@FELTG.com

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