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Home 9 Federal Legal Corner 9 Agency Fails to Justify Nonselection

Agency Fails to Justify Nonselection

On August 6, 2010, the Equal Employment Opportunity Commission’s Office of Federal Operations (“OFO”) issued its decision in Chhe v. Department of Housing and Urban Development, EEOC Appeal No. 0720090008. Affirming the administrative judge’s decision below, OFO found that the agency failed to meet its burden of stating alleged legitimate reasons to justify its nonselection of Chhe, resulting in a finding of discrimination.

Chhe applied for a project manager (trainee) position in an agency facility in Los Angeles under a vacancy announcement selecting for four positions. Chhe is a female of Cambodian national origin, who racially identifies as Asian. The selection process involved a rating panel assigning a numerical score to the written application packet, and then an oral interview. The panel gave Chhe the highest score out of all applicants for the vacancy (94/100). The agency alleged that Chhe did poorly on the oral interview and was not selected. The rating panel scored the selectees at 86/100, 82/100, 74/100 and 70/100. Three of the selectees were female, and one female selectee was from the Philippines. The male selectee was white and not from Cambodia. Chhe filed an EEO complaint on this nonselection, on the bases of race, sex and national origin.

After a hearing, the administrative judge issued a decision in September 2008, finding that the agency had discriminated against Chhe. The administrative judge found that Chhe had established her prima facie case of discrimination on all cited bases and that the agency had failed to articulate a legitimate, nondiscriminatory reason for its nonselection of Chhe. The administrative judge specifically found that the agency’s failure to preserve any notes from the oral interviews, when coupled with the inability of the interviewers testifying at hearing to remember the interviews, failed to meet the agency’s burden. The administrative judge further found the agency’s failure to preserve the interview notes to constitute a per se violation of 29 C.F.R. § 1602.14. The administrative judge ordered Chhe promoted with back pay, awarded $5,000 in compensatory damages and directed other relief. The agency appealed to OFO.

On appeal, OFO affirmed the finding of discrimination. OFO found that the agency had failed to meet its burden of producing a specific, clear and individualized explanation for its nonselection of Chhe. OFO held that the bare assertion that Chhe had interviewed poorly constituted an acutely subjective rationale and that the agency’s failure to preserve the interview notes deprived Chhe of the objective evidence necessary to challenge the agency’s assertion that the selectees had performed better in oral interviews. The testimony of the interviewers was insufficient, as most of their testimony pertained to the text of the written applications rather than the substance of the oral interviewers, and neither of the interviewers could recall Chhe’s responses to any of the questions asked in the interviews.

The agency had challenged Chhe’s prima facie case of race discrimination, arguing that the Filipino selectee was racially ‘Asian’ rather than ‘Pacific Islander.’ OFO rejected the agency’s argument, based on the fact that one selectee was a white male who was not from Cambodia. OFO noted that the fact that one of the selectees was a female Pacific Islander only would be relevant for evaluating Chhe’s claims of race and sex discrimination if the agency had met its burden of production for an alleged nondiscriminatory reason for its nonselection. OFO further affirmed the award of compensatory damages, and noted that the award of back pay in the context of a trainee position such as this would also include career ladder salary increases to which Chhe was entitled based on satisfactory work performance.