Sample Post-Hearing Brief
EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION
Philadelphia District Office
The Bourse,
|
Mr. Client, |
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COMPLAINANT’S POST HEARING BRIEF
The Complainant, by and through his attorney, Michael J. Snider,
Esq., hereby submits his Post Hearing Brief in this case, and states:
Introduction
Complainant believes that he has been discriminated against on the
basis of his race, color, and / or sex. The Complainant was objectively much higher
qualified than any other candidate in his area, and was clearly much
higher qualified than many of the other selectees outside of his
protected classes. The Agency destroyed essential information in this
case and failed to present non-discriminatory reasons for its actions in this
case sufficiently specific to allow the Complainant a reasonable opportunity
for rebuttal. Complainant hereby incorporates his Pre-Hearing
Statement and all other pleadings by reference.
Standard and Burden of Proof
Discrimination cases generally turn on circumstantial
evidence. Gavalik v. Continental Can Co., 812 F.2d 834, 852 (3d
Cir. 1987), cert. denied, 484 U.S. 979 (1987). A presumption of
discrimination arises when a prima facie case is established. McDonnell-Douglas
Corp. v. Green, 411
In the present case Complainant can establish a prima facie
case of color, race or gender discrimination by showing:
(1) he was a member of a protected
class or classes;
(2) he was qualified for the
position for which he applied;
(3) he was not recommended, hired
or promoted despite his qualifications; and
(4) the job was given to a person
outside of the protected group(s).
Keyes v. Secretary of the Navy, 47 FEP Cases 891, 896 (1st Cir. 1988).
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) held that once the plaintiff
establishes a prima facie case, the defendant must then produce evidence that
it took the action for a legitimate, non-discriminatory reason. If the
defendant fails to meet its burden, judgment must be entered in favor of the
plaintiff as a matter of law. If the defendant is able to meet its
burden, the plaintiff may show that the defendant’s proffered reasons are
pretextual. Once the factfinder finds
that the proffered reasons are pretext, it may find discrimination. See
Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3rd
Cir. 1996)(en banc), cert denied, –
In order to prevail, Complainant must show that the agency’s
reasons for its actions were a pretext to mask discrimination, either because
the agency more likely had a discriminatory motive, or because
the stated reasons lacked credibility. Burdine at 248. Further, evidence of preselection operates to
discredit the agency’s explanation for its decision. Goostree v. State of
The Commission has also held that, pursuant to Burdine, certain
statements – due to their vague nature – cannot, as a matter of law,
serve to form nondiscriminatory reasons for nonselection. William Hogsten v. Shalala, EEO No. 01A00208
(
The United States Supreme Court addressed this issue explicitly, in
Texas Dept. Of Community Affairs V. Burdine, 450
“The burden that shifts to the defendant, therefore,
is to rebut the presumption of discrimination by producing evidence that the plaintiff
was rejected, or someone else was preferred, for a legitimate, nondiscriminatory
reason. The defendant need not persuade the court that it was actually motivated
by the proffered reasons. See Sweeney, supra, at 25. It is sufficient if the defendant’s
evidence raises a genuine issue of fact as to whether it discriminated against the
plaintiff. FN 8 [450
The plaintiff retains the burden of persuasion. He now must have
the opportunity to demonstrate that the proffered reason was not the true reason
for the employment decision. This burden now merges with the ultimate burden of
persuading the court that she has been the victim of intentional discrimination.
She may succeed in this either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence. See McDonnell Douglas, 411
In a recent case (eerily similar to the instant matter), the EEOC OFO
found discrimination on the basis of gender and race for non-selection of a white
male ABC Representative to the GS-9 XYZ Specialist position. Michael A. O’Brien v. Massanari, Commissioner,
Social Security Administration, EEOC OFO, Agency No. 9950.SSA;
EEOC 07A10034, 102 FEOR 1051 (
In cases involving nonselections, a complainant may demonstrate that
the agency’s reason for its action was a pretext for discrimination by showing that
he was better qualified or “plainly superior” to the selectee, but still was not
selected. See Patterson v.
Argument
The Complainant Has Proven A Prima Facie Case of Discrimination, Which
– If Left Unrebutted – Entitles Him To Prevail in this Matter
The Complainant has proven a prima facie case of discrimination. He is a male, and is Caucasian. One Selectee from the same component, Ms. Selectee
(black, female) is not in his protected classes. Other Selectees for the position, including A,
B and C, were female, black or both. The
Complainant was qualified for the position and was not recommended or promoted,
being ranked 27th out of 27 candidates in his component.
As stated above, once the Complainant establishes a prima facie
case, the Agency must then produce evidence that it took the action for a legitimate,
non-discriminatory reason. If the defendant
fails to meet its burden, judgment must be entered in favor of the plaintiff as
a matter of law. St. Mary’s Honor Center
v. Hicks, 509 U.S. 502 (1993).
An Adverse Inference Should Be Drawn From the Agency’s Failure to Preserve
Evidence
The Agency did not address its failure to preserve evidence in this
case. “The blackboard was erased,” confirmed
each of the management witnesses. The ranking
process that was not recorded, or was recorded and then erased in violation of the
law, would have shown that the Complainant would have been selected but for intentional
discrimination. The Agency’s complete failure
to even offer an excuse as to this destruction of evidence is concerning at the
least. See Rule 37(b)(2)(A) of the
Federal Rules of Civil Procedure.
The United States Supreme Court has sanctioned the use of the “adverse
inference rule,” namely, that if the information had been provided, it would have
been unfavorable to the agency and favorable to the opposing party. See Insurance Corp. of
The Agency Failed To Present A Legitimate, Non-Discriminatory Reason
For Non-Selection of the Complainant Sufficiently Specific To Allow Meaningful Rebuttal
The Agency attempted to explain its selection of Ms. Selectee, but
was unsuccessful. It simply did not proffer
reasons with sufficient specificity to allow Complainant an opportunity to offer
meaningful rebuttal. The Agency used “fuzzy”
subjective criteria that were impossible to quantify. “...subjective criteria are particularly easy
for an employer to invent in an effort to sabotage a plaintiff’s prima facie case
and mask discrimination.” McDonald v.
It is well established that pretext can be shown when the Complainant
is qualified to perform a position at a higher grade level than the Selectee and
the Selection is based on different assumptions about the respective qualities of
the candidates without a solid factual basis for making the assumptions. Byler v. Secretary of the Air Force, EEOC
01923010 (1993). Here, Complainant had many
years of service not only at the GS-12 grade level, but actually making adjudicatory
claims decisions (for an Administrative Law Judge) – precisely the type of work
required by the position in question.
The Commission has held that subjective determinations, in particular,
require that the Agency produce solid evidence to substantiate its position. Failure to do so exposes the Agency to the risk
that the Complainant will take advantage of the Agency’s lack of proof to establish
pretext. Weaver v. USPS, 01860291
(1987). In particular, when subjective determinations
make up the Agency’s legitimate reason, the Agency must present more evidence than
just the conclusory testimony of the selecting official. In Parker v. Postmaster General, EEOC 05900110
(1990), the Selecting Official did not cite sufficient examples to illustrate his
conclusions. The Commission accordingly found
that the Agency failed to sustain its burden of production because the issue was
not sufficiently framed for pretext by such conclusory testimony, stating that “Where
a candidate is found to be objectively better qualified than the selectee, the use
of subjective criteria such as aggressiveness, initiative, and leadership potential,
while not impermissible, may offer a convenient pretext for giving force and effect
to racial prejudice, especially in this case where the subjective reasons given
for not choosing appellant were unsupported by any independent evidence.” Parker, supra (emphasis added). Further, an Agency cannot simply hide behind its
own stated policies, without explaining how those policies apply in a particular
case. In the absence of a suitable explanation,
the Agency fails to meet its burden of production. Jones v. Postmaster General, 01950129 (1996).
Higher education degrees can add to a candidate’s qualifications in
much the same way as extensive work experience.
Currie v. Dept of the Navy, EEOC 01831303 (1987). The Complainant’s advanced degree in this case
made him clearly the most qualified.
The Agency notably failed entirely to present any legitimate non-discriminatory
reasons for its selection of the other individuals identified by the Complainant,
including (for example and not by way of limitation) A, B or C. This total failure to present evidence should
be taken as an adverse inference. Further,
the inconsistencies in testimony of Agency managers is indicative of pretext. Pretext is often demonstrated by showing the record
of the Agency’s actions contains “inconsistencies” and discrepancies that render
the Agency’s proffered explanations unworthy of credence. Williams v. Dept of the Army, 01842729
(1986).
The Agency’s Witnesses Were Not Credible
The Agency’s witnesses contradicted themselves and each other in this
case. Since a transcript was not available
at the time of writing of this brief, Complainant is unable to point to exact pages
in which the contradictions were found, but believes that it was made clear at the
hearing which statements were contradictory.
The Agency witnesses were unable to explain how the rankings were developed,
and no evidence was introduced regarding that method. In similar cases, the Commission has found that
Agencies fail to meet their burden. See, e.g., Jones vs. Postmaster General,
EEOC 01950129 (1996).
In the Alternative, Complainant Presented a Complete Rebuttal
of the Agency’s Proffered Non-Discriminatory Reasons for Non-Selection
In this case, the Complainant has presented evidence which tends to
demonstrate that his qualifications were superior to those of the selectees and
the other recommended candidates. See
Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981); Guyton v. Department
of Veterans Affairs, EEOC Appeal No. 01931099 (December 7, 1993). Mr. Complainant was by far objectively the
best candidate for the position, and would have been selected but for
the Agency’s discrimination against him.
He should have been selected for
promotion based on his work experience, professional qualifications and educational
background. He met and exceeded the work
experience criteria described in the vacancy announcement, the selection factors,
and the position description. Mr. Complainant’s
career accomplishments were superior to that of the Selectees.
Complainant attended the ABC University School of Law and was admitted
to the AA State Bar in October. He has practiced
law continuously since that time. The Agency
knew or should have known all of this information.
The Complainant spent years as a GS-12 Attorney Advisor writing opinions
for a X Administration Administrative Law Judge. He also spent two years as a GS-9 and then GS-11
Attorney Advisor writing opinions for a X Administration Administrative Law Judge. He wrote over 1000 opinions and always had sterling
performance evaluations.
He also spent 4 years in the Asset Claims Division of the Resolution
Trust Corporation under the Federal Deposit Insurance Corporation reviewing and
resolving claims for assets sold under contractual arrangements. Two of those years were as a GS-12 Senior Claims
Analyst in the Real Estate Section, Sales Section, and Financial Instruments Division,
and then two years as a GS-12 Senior Claims Analyst.
Further, as noted above, the Agency has failed to state sufficiently
specific reasons for the Complainant’s non-selection, and has therefore failed to
rebut the Complainant’s prima facie case of discrimination. Even the Agency’s proffered reasons, however,
fall short. The Agency has not, and can not,
explain why Mr. Complainant was not selected.
The Agency’s proffered reasons were rebutted completely. The Agency’s witnesses contradicted themselves
and each other.
Officials involved in the hiring process s stated that although there
was a discussion and rating/ranking of candidates, no written information
was saved. The Complainant was never
interviewed. His oral skills were
never evaluated objectively.
His details were ignored, but others were considered. His past experience was not considered, but that
of others was considered. Worst of all, no
notes were preserved from the “closed door” meeting, and the “blackboard was erased.”
Higher rankings in the Complainants’ component were given to Female,
Black and/or Hispanic candidates, who had negative comments on their
written narrative evaluations where the Complainant had no negative comments. This is probative of discriminatory intent on
the part of the black supervisors who controlled the process.
One must keep in mind that not one of the applicants for the position
of Claims Authorizer involved herein knows how to do the job. Each person selected must complete a nine month
training course successfully. Experience
representative of being able to perform the job is certainly therefore contemplated
by the recommended Guidance statement, and the only one with that experience was
the Complainant.
Finally, it was clear from the Complainant’s credible testimony and
demeanor at the hearing that his oral skills, analytical ability and technical prowess
are clearly exceptional. This strongly mitigates
against the Agency’s unsupported and subjective assessments of the Complainant and
instead is suggestive of intentional discrimination.
Documentary Evidence Supports Complainant’s Contentions of Discrimination
The Complainant also showed that the Agency discriminated against him
on the basis of his gender and/or race when it failed to comply with the provisions
of the National Agreement between the American Federation of Government Employees
and the X Administration (CX 9)(“National Agreement”). The National Agreement clearly states that where
an underrepresentation exists, management must give “serious consideration” to applicants
from the underrepresented groups for a targeted occupation (CX 9 at Article 26,
Section 11 (C), page 142). Further, the Agency
agreed that:
“Should adverse EEO impact be evidenced pursuant to the Affirmative
Employment Program Plan, specific and measurable objectives shall be set to correct
the conditions. Those objectives will include
but not be limited to:
A. Validating existing selection procedures or;
B. Modifying or substituting
selection procedures to alleviate adverse impact.”
(CX 9 at Article 18, Section 3, page 100).
Complainant’s Exhibit C-7 clearly showed a manifest imbalance of white
males at the relevant grade levels. This
systemic evidence of adverse impact on his protected class(es) is probative of the
Agency’s discrimination in this case, especially given the Agency’s failure to act
on the imbalance or change in any way the selection process to alleviate the imbalance. Further, it failed to give “serious consideration,”
or any different consideration, to white males despite a clear obligation to do
so.
Conclusion
The Complainant
was discriminated against on the basis of his gender and/or race and/or color. He requests only that he be made whole.
Respectfully Submitted,
Date: ___________________ _________________________________
Michael J. Snider, Esq.
Attorney for Complainant