By Deborah Hopkins, July 18, 2018

One of the things we teach in just about all of our FELTG classes is the importance of documentation. Management in the federal government is a defensive business. Because employees can challenge almost anything a supervisor does in the workplace in some forum or other (think administrative grievance, union grievance, EEO complaint, MSPB appeal, Office of Special Counsel, Department of Labor), it is exceedingly important for supervisors to document why they are taking whatever action they’re taking – or not taking.

That’s easy to do in cases of performance or discipline and has become second nature to our FELTG-Certified Practitioners. But when you’re at hearing in 2023, will you really remember why you denied someone’s annual leave request last week? Probably not, unless you documented it when it happened, and have those notes to refer to down the road. That’s why we also strongly advise supervisors to make notes about more than just discipline or performance, because there are certain times when a faded memory fails to meet a legal threshold.

Let’s look at some cases of Intentional EEO Discrimination involving circumstantial evidence. While the events don’t occur in a ping-pong format, the general analysis is this:

  1. Complainant alleges he is treated unfairly in some way because of, or motivated by, his protected EEO category.
  • Examples: nonselection; denial of training; reassignment; low performance rating.
  1. Agency articulates a legitimate, nondiscriminatory reason about the allegation.
  • Supervisors: insert your documentation here.
  1.  Complainant demonstrates pretext. That means the complainant has to show:
  • The agency is lying, or
  • The agency is telling the truth but its action was motivated by discrimination.

Problems arise for agencies when the legitimate, nondiscriminatory reason is not specific. If times, dates, and details aren’t there, that vague response is generally not enough to overcome pretext.

Let’s say the complainant alleges she wasn’t promoted because of her religion. The selecting official, when questioned about why the selectee was chosen and the complainant was not, says, “I don’t remember specifically because it was a while ago, but I am sure I chose the selectee because she was the best qualified. Her interview was really good, and plus the complainant came somewhere pretty low on the score sheet.”

Sounds pretty common, but that selecting official’s statement alone is not specific enough to overcome that presumption of discrimination, so the complainant is probably going to win this case. Does this mean she was definitely discriminated against because of her religion? Nope, there may not even be any actual merit to the claim – but there will probably be a discrimination finding anyway.

As our good friend and FELTG instructor Ernie Hadley writes in his EEO Guide, the legitimate, nondiscriminatory reason offered by the agency “must do more than merely distinguish the particular facts of a situation.” In order to be considered sufficient, it must “articulate some meaningful distinction” which is related to a legitimate aim of the agency.

Below are a few cases to give you a better idea of what this looks like in the real world.

An applicant applied for a job at USPS and, though she was qualified, her application was not forwarded to the selecting official. She challenged this as discriminatory based on her gender. There were no notes, scores, or specific explanations of the scoring process in the agency record. A selection panel member was questioned about why the complainant was not considered, and his assertion that he “could only assume” she did not show she had the skills needed to work at a higher level was inadequate to overcome the allegation of discrimination. Hatcher-Capers v. USPS, EEOC No. 07A60008 (2006). Does this mean she was most definitely discriminated against because of her gender? No. Maybe she was; maybe she wasn’t. But the vague response from the selecting official was not enough not overcome her allegation, so she won her complaint.

In a very recent case, an IT Specialist alleged he was not selected for a supervisory position because of his sex and his age (69). The selecting official had since left the agency, but in an unsworn statement, said that he had chosen the 37-year-old female selectee based on merit. In considering the evidence, the EEOC said the agency record was “bereft” as to how the five candidates were chosen for interviews, nor about the real reasons why the selectee ultimately was chosen. Therefore, the agency did not provide a legitimate, nondiscriminatory reason for its actions. William G v. DLA, EEOC No. 0120160837 (February 14, 2018).

Now that you’ve seen what’s not enough of a legitimate, nondiscriminatory reason, let’s look at a case that shows what is enough.

A USPS employee was terminated after he got into a physical altercation with a supervisor. He alleged that he was removed because of his sex and because he had bipolar disorder. The agency provided a [specific] legitimate, nondiscriminatory reason for its removal action: The physical altercation with the supervisor violated its documented standards of conduct. Hlinka v. USPS, EEOC No. 0120064401 (2008). Easy peasy. That’s how you do it.

So you see, in most cases you’ll be just fine, as long as you have your documentation handy. If you don’t have a notebook now, go buy one and start tracking why you do what you do. As we say at FELTG, we hope you never need those notes, but you’ll be awfully glad you have them if you do. Hopkins@FELTG.com.

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