One of the more common types of EEO complaints is the failure to be selected for merit promotion because of your race, color, sex, national origin, religion, reprisal, age, and/or physical/mental handicap. An employee who claims that he or she was discriminatorily not selected must contact the EEO office or an EEO counselor within the required 45-day time period after learning of the non-selection. It should be obvious, but it is critical that an employee apply for the vacancy even if he or she believes that someone else will be selected. In Dow v. West, No. 00-CV-0050E(SR), 103 FEOR 38 (W.D.N.Y. 8/6/02), citing Brown v. Coach Stores, Inc., 163 F.3d 706, 709-711 (2nd Cir 1998), the U.S. District Court granted the VA’s motion for summary judgment because the plaintiff did not submit an application in response to the vacancy announcement and had no priority reinstatement rights.

Nevertheless, there are exceptions to the rule that an employee must file and be rejected for a promotion before filing an EEO complaint. One such exception is a non-competitive promotion where you allege that you are performing work at a higher grade level due to an accretion of duties. In this situation, it is sufficient to have requested a career promotion from your supervisor before initiating EEO counseling. Another exception is where you are alleging that the agency has discriminatorily manipulated the selection process or misled you to prevent you from applying. Lapina v. Navy, EEOC No. 01950656 (1996); Graham v. Attorney General, EEOC No. 01956003 (1997). In addition, it may be possible to prove discrimination when a vacancy is not posted, an agency fills a position from a priority referral list without posting, or a vacancy announcement is canceled for improper reasons, e.g., to disadvantage the complainant.

In merit promotion cases, it is important that the complainant rank among the best qualified to have a reasonable chance of success. Ideally you should rank at least equal to or above the selectee and/or be better qualified on paper, but this is not a requirement. Career promotions are generally easier to prove because there is no competition for the promotion and may also involve violations of the Equal Pay Act if there are higher graded comparators of a different gender who are performing substantially similar work. However, even where there are procedural errors in the promotion process or pre-selection, that doesn’t necessarily equate to discrimination although it may be helpful, especially if there is evidence of a discriminatory environment. Subjective criteria, including interviews, may be used to justify the selection, particularly in higher level and/or supervisory positions, but may be subject to greater scrutiny than objective reasons. See May 1, 2002, Federal Legal Corner on Proving that a Non-Promotion is Discriminatory.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to **