Another Nightmare from the EEOC Crypt

Here’s another  case that illustrates the type of unconventional “justice” that is being meted out by the EEOC these days.

A veteran white male police officer, 48, was passed over for the position of lead police officer at the Dallas Veterans Affairs Medical Center in Dallas, TX.

An African-American female “in her 20s” whom the EEOC agreed had spent “a relatively brief time in the workforce” was rated as the top candidate. Her experience was as a military police sergeant in a combat zone in Afghanistan. She got the job.

The complainant was working as a senior detective at the center. His experience included service as  a Sargent in the Army military police and ten years as a deputy sheriff and lead detective. He had become certified as a Dallas police officer so he would be knowledgeable about local issues.  And he received several commendations by the department.

The hiring panel, which consisted of three Lieutenants, unanimously ranked the female as the top candidate out of a field of 13.

The complainant argued the veterans administration implemented a selection process that was pretext “to permit the selection of a younger minority candidate regardless of the candidate’s qualifications.” Among other things, he said, the administration failed to follow promotion criteria outlined in its regulations and in its Collective Bargaining Agreement with the Union.

Furthermore, he said the Assistant Chief, and not the Chief, was the actual selecting official and made comments about his age. He said other candidates felt the process was unfair and a veteran Sargent and other unnamed witnesses told him “the Agency was deliberately seeking to fill the position with an individual of a specific race or gender.”

In August, EEOC Appeals Judge Carlton M. Hadden, director of the EEOC Office of Federal Operations, dismissed – without  a hearing – the male officer’s claim that he was a victim of race and age discrimination.

Hadden conceded the record showed the panelists were not “briefed on”   promotion and interview “requirements” but said there was no evidence this omission was “motivated by discrimination.”

One wonders how anyone could prove the omission was motivated by discrimination? And, doesn’t it say something that the process deviated from the norm?

Hadden also ruled the complainant did not show that his qualifications were “demonstrably superior.” In fact, Hadden writes, “we find (she) arguably has more experience in the intangible areas sought by the Panel, such as poise, compassion, leadership, and the ability to cope with stress …” She had more poise and compassion? How can traits like this be measured?

There may be some cosmic justice in selecting an African-American female for the position, given that both African-Americans and females historically have been unrepresented in the leadership ranks of the veterans administration.  But,  isn’t it the job of the EEOC to implement laws passed by Congress and not selectively ignore them? If this is acceptable, why pretend we have discrimination laws? Why have an equal opportunity complaint process?

Consider the waste –  the government and  complainant spend years producing legal documents, conducting depositions and engaging in discovery. Then the EEOC rules she had more poise?

The complainant now has the option of going to federal court but he has three strikes against him.  And will that process be fair? Does he want to gamble more money and spend more years in conflict?

Pseudonyms were included in the EEOC decision. The case is Grady K, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Appeal No. 0120151950 (August 3, 2017).

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Author: pgb

Attorney at Law, author and blogger.

3 thoughts on “Another Nightmare from the EEOC Crypt”

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