Q. What happens if I prove the agency is discriminating against me by not promoting me, but it can also show the selectee was more qualified than me?

A. When an agency's action involves discriminatory and non-discriminatory motivations, the case is referred to as being based on a "mixed motive." This designation limits what a complainant can be awarded in declaratory relief, injunctive relief and attorney's fees and costs. Unavailable to complainants with mixed cases is personal relief, such as damages, reinstatement, hiring, promotion, or back pay, the Equal Employment Opportunity Commission (EEOC) noted in Complainant v. Department of Transportation (Appeal No. 0120122370).

Relief in the form of promotion is unavailable in mixed motive cases, because the agency can prove it would not have selected the complainant, even if a discriminatory motive had played into the non-selection decision. "The employer must prove that with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same action," the EEOC said in David Feder v. Department of Justice (Appeal No. 0720110014).

In Susanna Montante v. Department of Transportation (Appeal No. 0120110240), the EEOC found a selecting official properly did not select the complainant for a position because of her "refusal to be cooperative with co-workers and with management." The selecting official's non-selection decision was also influenced by a retaliatory motive stemming from the complainant's complaint that the agency had acted discriminatorily toward Hispanics. Consequently, the EEOC did not order the agency to select the complainant for the position for which she initially was not chosen, but it did order the agency to pay her $730 in costs.

Employees must aggressively fight agencies' attempts to avoid liability by mischaracterizing cases as having a mixed motive. For example, in Celia Gomez v. Department of Homeland Security (Appeal No. 0720090031), the agency tried to avoid having to pay compensatory damages by arguing the case centered on a mixed motive. However, the Commission found the agency retaliated against the complainant for her prior Equal Employment Opportunity (EEO) activity by excessively scrutinizing her work product, issuing her a written warning and attaching derogatory comments to an otherwise successful performance appraisal. Consequently, the EEOC ordered the agency to pay the complainant $15,000 in compensatory damages.

Contact your Union Steward if you believe your agency has discriminated against you because of your race, color, sex, religion, national origin, age or disability.