By Meghan Droste, August 14, 2019

Before going to a new restaurant, I always check out the menu online.  Part of this is probably a holdover from when I was a picky eater growing up and I needed to make sure there was at least one thing on the menu I would eat. As an adult with a much more normal range of preferences and a willingness to try new things, I think it’s also just part of being a planner.  I like to know what I’m getting into.  My pre-restaurant menu scanning often leads to me knowing exactly what I’m going to order before I even sit down.

A little strange? Perhaps. But in this case, preselection doesn’t hurt anyone.

In federal employment, however, preselection can hurt an agency. If an agency official provides a wrongful advantage to help an applicant, or to hurt the chances of another applicant, it can rise to the level of a prohibited personnel action. It can also, however, serve as a legitimate, non-discriminatory reason in defending against an EEO complaint, as the Commission held in Cory C. v. Social Security Administration, EEOC App. No. 0120180335 (May 2, 2019).

I urge you to keep in mind as you read about the Cory C. case that “legitimate, non-discriminatory reason” is a term of art in discrimination cases, and not all of those reasons may actually be what we might consider legitimate.

In the Cory C. case, the agency announced a vacancy for a supervisory management analyst position. Prior to the announcement, the second-line supervisor (S2) for the position promised the position to the eventual selectee (EV). She did so even though the person in the position at the time reported that EV was not qualified. Once the agency announced the position, the complainant made the best qualified list and was interviewed by the selection panel. The complainant received perfect scores and all of the panel members ranked him highest. Despite this, when the panel recommended the complainant to the selecting official, he ignored common practice and directed the panel to conduct additional reference checks.

When the panel provided positive references for the complainant, the selecting official conducted his own investigation and spoke with a colleague who had worked with the complainant in the past. Based on negative feedback from the colleague, the selecting official rejected the panel’s recommendation and selected EV instead. The complainant filed an EEO complaint, alleging discrimination based on race and sex, and retaliation.

The Commission found that the complainant established a prima facie case of discrimination because EV was outside of his protected classes, and found the selecting official’s reasons for deviating from common practice in the agency to be not credible.  The agency still prevailed. Although there was evidence of pretext, there was no evidence that the selection, or preselection, was because of a protected basis.

The clear preselection for the position, which pre-dated the complainant applying for the position, was a non-discriminatory reason that the complainant could not overcome.

It makes sense that the Commission found in the agency’s favor on this one. While it is unfortunate that the agency failed to select the best qualified candidate, there is no evidence that it engaged in discrimination in doing so.

That being said, I would hesitate to call this non-discriminatory reason “legitimate.” Droste@FELTG.com

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