Case alleging racial discrimination in NASA’s employee evaluations set to move forward

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Thousands of current and former NASA employees saw a major step forward in a racial discrimination case that’s nearly a decade old.

The case can now proceed as a class action lawsuit after Supervisory Administrative Judge Stephanie Herrera at the Equal Employment Opportunity Commission certified two classes of employees on Sept. 30. The employees who originally filed the case will represent more than 2,000 agency workers.

The employees alleged that a performance evaluation system at NASA systematically discriminated against Black and Asian American workers, who consistently received poor performance scores across all of NASA’s centers. The data showed the racial disparities to be statistically significant, meaning it’s extremely unlikely the racially based performance gaps happened by chance.

Michael Lieder, an attorney at Mehri & Skalet PLLC who represents employees in the case, said he “strongly suspects” the systemic discrimination stemmed from a flawed and limited structure in NASA’s performance evaluation system. The evaluators only considered a handful of tasks — between two and four — that employees completed over the course of an entire year, rather than a more comprehensive review. The performance evaluators were also disproportionately white.

“If you think about your own job, or most people’s jobs, they consist of lots more than two to four significant job responsibilities,” Lieder told Federal News Network.

But there’s still more data to collect and analyze. For this particular case, the team initially had 90 days to conduct written discovery, a process meant to give a party time to obtain information and evidence to prepare for the case.

The EEOC process for federal discrimination cases typically doesn’t allow a lot of time for discovery before having to move forward with class certification, compared with private sector cases, Lieder said. So far, the legal team has not conducted any depositions, and still needs to collect and analyze more data to better determine the full scope of the impact.

“Our hope is as news of the decision and of the class spreads, that we will get more people coming forward and to tell us about their experiences,” Lieder said.

NASA Public Affairs Specialist Gerelle Dodson said the agency is aware of EEOC’s decision to certify the two classes of employees.

“NASA is committed to its diversity, equity, inclusion and accessibility goals and ensuring all agency employees are treated fairly including in how employees are rated and rewarded for their contributions to the nation’s space program,” Dodson wrote in an email to Federal News Network.

Dodson also pointed to NASA’s longstanding spot at the top of the Partnership for Public Service’s “Best Places to Work in the Federal Government” rankings. NASA has remained in first place for large agencies for 10 straight years.

“We will continue to prioritize our workforce, as our talent is our greatest asset,” Dodson added.

The employees involved in the case were mostly mid-level managers at NASA, ranging from levels 13 to 15 on the General Schedule. Lieder said the poor performance ratings caused ripple effects, impacting employees’ pay in multiple ways.

“Based on their performance ratings, [individuals] can get step-level promotions. They also get end-of-the-year awards based on their performance appraisal. The ratings are also something that have input into promotion decisions, [although] it’s not the only factor that gets considered,” he said.

The employees first filed the case in 2013, but some of the initial discrimination claims go back even further, as long ago as 2008. The timeline, though, is not uncommon for federal discrimination cases with EEOC.

“Congress has not appropriated enough money for sufficient administrative judges … [It’s] nothing against the judges, but they are swamped,” Lieder said. “You frequently see cases that have been on the books for five years, 10 years, even occasionally 15 years or more.”

Lieder said providing adequate training, adding more performance metrics and not waiting until the end of the year to conduct performance evaluations, could all help lead to non-discriminatory results. But further analysis is needed before concrete recommendations can be provided to the agency.

NASA has until Nov. 10 to appeal the decision. If NASA chooses to appeal, the case would go back in front of an administrative judge. If the agency decides not to appeal, individuals would start getting notifications that they are part of a class in the case. Lieder and his team would also then conduct more discovery to gather further information.

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