Fedweek Legal

The Office of Federal Operations (OFO), EEOC, reversed its administrative

judge (AJ) on appeal and held that she had improperly granted summary


judgment to the agency in Price v. Dep’t of Transportation (Federal Aviation

Administration), Appeal No. 0120070693 (8/29/08). The case arose as a result

of the FAA Chief Counsel’s determination to promote attorneys within the

agency. Regional, Center and Assistant Chief Counsels were invited to submit

one attorney for promotion. In October 2004, the Chief Counsel announced

the promotion of 13 attorneys to the Senior Attorney position. The Southwest

Regional Counsel recommended two attorneys, including the complainant,

but neither was promoted.

However, the complainant did not learn that "a final selection determination

was made" until January 10, 2005, when the Chief Counsel "rejected the

supervisor’s request for the complainant’s selection." The EEOC disagreed

with the AJ, finding that the complainant’s February 16, 2005, EEO contact

was timely "[b]ecause of the informality of the selection process and the

appearance in October 2004, that a conclusive determination was still pending."

Thus, the OFO found that the October date was not "determinative of when

complainant should have reasonably suspected discrimination" because "the

selection decision was not final."

The OFO determined that the AJ improperly analyzed the comparators by

focusing on the colleague who was also not promoted. The "AJ erred because

in a non-selection claim, the focus should be on the selectees to the position

and whether their treatment vis a vis complainant raises an inference of

discrimination." The OFO found that the record "is wholly inadequate as to

what exactly were the protected bases of the selectees." The OFO went on to

find that there are "material facts in dispute making a decision without a

hearing inappropriate" because the selecting officials disagreed on the reasons

for the complainant’s non-selection. "The decision-makers conflicting reasons

for their decision puts in dispute material facts."

The Commission also noted that "one of the AJ’s findings of fact is unsupported

by the record" and stressed that "the AJ must evaluate the witness testimonies

to ascertain the truth behind why complainant was not selected for the promotion."

Therefore, the OFO reversed dismissal of the claim on the ground of untimely EEO

contact, vacated the order finding no discrimination, and remanded the claim to

the AJ "to conduct a hearing and make credibility judgments before finding in any

party’s favor." The complainant is represented by Edward H. Passman, a founding

principal at Passman & Kaplan, P.C.

* 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 http://www.passmanandkaplan.com .


The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees

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