Lawyer Can Pursue Bias Claims Against Office of Personnel Management

WASHINGTON (CN) – A black attorney can proceed with claims the U.S. Office of Personnel Management deliberately bypassed her for employment as an administrative law judge because of her race, a federal judge ruled.

In a ruling on Friday, U.S. District Judge Amy Berman Jackson said Cassandra Menoken can proceed with a retaliation and discrimination claim against the Office of Personnel Management, and a similar claim of discrimination against the Department of Health and Human Services.

But at the same time, Judge Berman struck down another of Menoken’s retaliation claims against the Office of Personnel Management, the Social Security Administration, and the HHS.

Berman’s ruling described the process of becoming an administrative law judge as involving rigorous competitive examinations. But she said when it came to Menoken, a former lawyer with the Equal Employment Opportunity Commission, the agencies handled the list of eligible candidates for administrative law judge openings in an “atypical” fashion.

Menoken first applied for the administrative judge position in 1993, but after more than 10 years of rejection – and a series of lawsuits levying allegations of discrimination – she finally decided to sue the OPM on claims the agency’s testing criteria made for skewed eligibility lists.

The lists weren’t fair, she said, because the scoring criteria placed greater weight on attorneys who were long-standing firm partners or worked for large firms.

Things got worse — and more discriminatory — in January 2016, when the agency broke from tradition and instead of relying on a single, large eligibility list of potential administrative judges, it created four smaller ones. Menoken said.

“Larger certificates allowed OPM to reach into the lower ranks of the ALJ register, which made it easier for agencies to consider African-American candidates because as a group, they tended to be clustered at the lower ranks of the register due to lower examination scores,” Judge Berman wrote.

Further, using four certificates instead of one allowed OPM to “avoid going too deep into the register to reach [the] plaintiff’s score” and “that avoiding lower scores on the register had the further effect of limiting the number of African American candidates HHS would consider,” Berman said.

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