MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

For those who were wondering, it is true that the EEOC applies a different law to federal employees than to other employees. The trick will be finding out what law it is. In Eger v. Postmaster General, EEO No. 03A30016 (February 27, 2003), the Postal Service fired the employee after determining that she made a false allegation of sexual harassment to its EEO office. The employee naturally argued that she was being fired because she filed an EEO complaint. The EEOC, in a remarkable demonstration of hair-splitting, concluded that she was fired not because of the accusations she made but because they were false(!) EEOC's compliance manual on retaliation says that "a respondent is liable for retaliating against an individual for filing an EEOC charge regardless of the validity or reasonableness of the charge. To permit an employer to retaliate against a charging party based on its unilateral determination that the charge was unreasonable or otherwise unjustified would chill the rights of all individuals protected by the anti-discrimination statutes." Here's what a judge had to say in a case that was actually filed by the EEOC: "the premise that an employer may not retaliate against an individual for filing a charge, but may retaliate for alleged untruths in the charge, carves out a distinction too fine to be meaningful." EEOC v. Snyder Doors, 844 F.Supp.1020 (E.D.Pa. 1994). Wouldn't it be nice if this version of the Civil Rights Act applied to federal employees?

There has been a tremendous amount of attention paid to the provisions of Public Law 108-136, which allows the Department of Defense to create its own "kangaroo court" personnel system. However, the same law contains a couple of other provisions affecting federal employees. One of them is Section 1122 which modifies the rules for obtaining payment for exposure to asbestos. Congress provided that no EDP or hazard pay can be awarded without proof that the exposure exceeded OSHA's permissible exposure limit. Section 1128 is called "employee's surveys." It directs every federal agency to conduct an annual survey of its employees on leadership practices, work environment and rewards and recognition. It directs OPM to prescribe the survey questions that will appear on all surveys. We see no reason why Unions could not negotiate over additional questions to be placed on these surveys and over procedures to be observed when the surveys are distributed and returned.

The Supreme Court settled an interesting question in General Dynamics v. Cline, 93 FEP Cases 257 (2004). A group of employees filed a lawsuit against the employer on the basis that the employer offered retirement benefits only to employees 50 and older. The employees who filed the suit were 40 – 49 years old and argued that the employer's plan discriminated against them on the basis of age. The Supreme Court disagreed, saying that the prohibition on discrimination because of age "does not mean to stop an employer from favoring an older employee over a younger one."

The Federal Circuit issued a damaging decision in Guillebeau v. Dept. of the Navy (Fed. Cir. March 24, 2004). Ms. Guillebeau was removed from employment for unacceptable performance. Her performance standards were absolute in that, as written, they required her to perform every task correctly with no mistakes. The Federal Circuit, noting that the MSPB has forbidden absolute standards since at least 1984, decided that the MSPB has been wrong all these years. The Federal Circuit ruled that an absolute standard in an employee's performance plan does not necessarily mean he will win his case if he's fired for unacceptable performance under that standard. Instead, the Federal Circuit said that the MSPB must focus on the application of a standard to the particular case. "For example," said the Court, "it might be unreasonable for an agency to adopt a standard permitting so few errors in pulling medical records from files that, based on the number of records the employee is required to pull, the employee must be at least 99.91 % accurate." Turning to Ms. Guillebeau's case, the court decided that she was not removed from employment for failure to achieve perfection in her work but rather because she did not complete her assigned work. What this appears to mean is that no flaws in performance standards, as written, will matter in a Chapter 43 appeal. Instead, it will be necessary to look at the way the performance standards were applied to the employee to see if the employee was treated fairly.

The Union in Federal Aviation Administration, 59 FLRA No. 79 (2003) proposed that employees be allowed to take home unfinished work assignments and be paid overtime or compensatory time for completing their work at home. The FLRA ruled the proposal is non-negotiable.

The Union which represents Bureau of Prisons' employees took a creative approach in dealing with a supervisor's rude behavior. The supervisor aggressively questioned an employee why prisoners under his supervision were not working, then acted as if he did not care about the response and then left the shop area. The Union noted that the agency's workplace violence policy prohibits "intimidating, bullying, or harassing" behavior. Based on this, the arbitrator ruled in favor of the Union and found that the agency's policy had been violated. Bureau of Prisons, 119 LA 129 (Woolf, 2003).