Employment Discrimination Complaint Adjudication

OEDCA DIGEST Vol.VI, No. 3 Department of Veterans Affairs Summer 2003 Office of Employment Discrimination Complaint Adjudication

Summaries of Selected Decisions Issued by the Office of Employment Discrimination Complaint Adjudication

FROM THE DIRECTOR

The Office of Employment Discrimination Complaint Adjudication is an independent, adjudication unit created by statute. Located in the Office of the Secretary, OEDCA’s function is to issue the Department’s final decision or order on complaints of employment discrimination filed against the Department. The Director, whose decisions are not subject to appeal by the Department, reports directly to the Secretary of Veterans Affairs.

Each quarter, OEDCA publishes a digest of selected decisions issued by the Director that might be instructive or otherwise of interest to the Department and its employees. Topics covered in this issue include favoritism, sexual harassment, experience as a qual- ification, OWCP return-to-duty clearances vs. the duty to accommodate, and the concept of “similarly situated” in discipline cases.

Also included in this issue are two articles: the first discusses the employee’s duty to cooperate with official inquiries, and the second addresses common myths about the Fed- eral sector EEO complaint process.

The OEDCA Digest is available on the World Wide Web at: http://www.va.gov/orm/oedca.htm.

Charles R. Delobe OEDCA DIGEST

Case Summaries……………………………………………………………………………...2 Cooperating with Official Inquiries – The Employee’s Duty to “Get Involved”………….9 EEO Myths and Realities……………………………………………………………….….10

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I complainant was, as she claimed, better qualified than the selectee – and there PROOF OF “FAVORITISM” NOT was considerable evidence in the record NECESSARILY PROOF OF to suggest that - the preponderance of DISCRIMINATION the evidence indicated that the selectee’s friendship with the selecting official was How many times have you heard a dis- more likely than not the motivating fac- appointed applicant state that a select- tor behind the selectee being chosen. ing official’s decision in a promotion ac- Although the selecting official’s testimo- tion was based on favoritism rather than ny concerning the relative qualifications qualifications? Allegations of favoritism of the candidates lacked credence, and often appear in EEO complaints and his reason for not selecting the com- employees often point to evidence of fa- plainant was a pretext, the EEOC con- voritism in the belief that such evidence cluded that his reason was not a pretext strengthens their case. However, as not- to mask a discriminatory motive, but ed below, such evidence usually has rather a pretext to mask a decision moti- quite the opposite effect. vated solely by friendship.

In one recent case, an employee (here- Discrimination based on friendship, inafter the “complainant”) filed a com- while certainly violative of merit princi- plaint of race and gender discrimina- ples, is not prohibited by civil rights tion, alleging that she was better quali- laws such as Title VII, the Rehabilitation fied than the selectee for a Supervisory Act, and the Age Discrimination in Em- Security Specialist position. In addition, ployment Act. To prove discrimination she claimed that the selectee was chosen under such laws, one must demonstrate because he was a “personal friend” of that race, color, religion, gender, nation- the selecting official, and that “everyone al origin, age, disability, or retaliation in the office knew that [the selectee] was for prior EEO activity was a motivating going to get the job.” factor in the action being challenged. Indeed, by presenting numerous wit- OEDCA issued a final agency decision nesses who testified that it was friend- finding no discrimination and the com- ship that motivated the selecting official, plainant appealed that decision to the the complainant effectively proved, al- Equal Employment Opportunity Com- beit unwittingly, that it was not her race mission. The EEOC agreed with OED- or gender that caused her nonselection. CA and upheld the finding of no discrimination. In its appellate decision, The decisions by OEDCA and EEOC in the EEOC noted that even assuming the this case should not in any way be

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construed as condoning the selecting official’s action. He violated merit A few months after learning that he was principles. The EEO complaint process, married, the complainant applied for a however, is not the proper forum to job in the unit where the male nurse address such matters. worked. Upon learning of her interest II in the job, he invited her to take a personal tour of his unit. Believing that SEXUAL HARASSMENT NOT FOUND he might have some influence over the WHERE MANAGEMENT EXERCISED selection in his unit, she accepted the REASONABLE CARE AND THE invitation and met him in an isolated COMPLAINING EMPLOYEE DID area of the building. While there, he NOT pushed her against the wall and kissed and fondled her. Although she testified In the Spring 2003 edition of the that she told him to stop, she also said OEDCA Digest, we reported on a case in that she was “flattered” by this which we found sexual harassment by a attention, that she later allowed him to supervisor because the evidence accompany her to her car when they left demonstrated that the complainant the building, that she let him put his acted reasonably in reporting the arm around her, and that she responded harassment to management. In the case “I don’t know” when he asked her why that follows, we found against the they had not met sooner. She did not complainant because the evidence report the incident to management. demonstrated that management exercised reasonable care in preventing Some months later, the male nurse and correcting the harasment and the invited her on two different occasions to complainant failed to take reasonable meet him in a vacant room. She agreed steps to avoid harm. to do so. On the first occasion, he kissed her and she told him to stop. The The complainant, a female staff nurse, second time, he kissed her again, and had attracted the attention of a male she again told him to stop. employee who worked as an Assistant Nurse Manager in a different unit. She A few weeks later, after the male nurse described him as “charming” and made an inapprropriate comment to her “flirty.” She testified that she was in the presence of a patient, the flattered by the attention and returned complainant notified management of the flirtation until April 1999 when she the harassing behavior. Immediately discovered that he was married with upon notification, management ordered children. the male nurse to stay away from the

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complainant. In addition, management avoid liability if it could show that (1) it relieved him of certain duties that exercised reasonable care to prevent and would normally place him in proximity correct promptly the harassing with the complainant, and further behavior, and (2) the complainant required that he be escorted by another unreasonably failed to take advantage employee if he had to enter an area of any corrective or preventive where the the complainant was opportunities provided by management, working. These measures were or to avoid harm otherwise. effective, as the complained-of behavior thereafter ceased. With respect to the first prong in the above test, the judge found that the VA An EEOC administrative judge found facility exercised reasonable care. As for sufficient evidence that the latter two preventive measures, every year it kissing incidents occurred as alleged distributes written notice of its policy and were unwelcome, in that the prohibiting sexual harassment, and the complainant clearly communicated that policy conforms to EEOC’s fact to the harasser. The judge found requirements regarding information on that the earlier incidents were not whom to contact if one is a victim of unwelcome. sexual harassment. As for corrective measures, the judge found that After reviewing the facts in the light management took immediate, most favorable to the complainant, the appropriate, and effective action when judge concluded that management was notified of the harassment to ensure that not liable for the conduct of the further incidents would not occur. harasser. First, the judge noted that, because the harassment in this case In addition, the judge found that the involved an individual perceived as complainant failed to act reasonably having some form of authority or power under the circumstances, in that she to influence a selection decision, and waited too long to report the incidents because it did not involve a tangible and, particularly with respect to the last employment action1, management could kissing incident, she unreasonably failed to avoid harm when she agreed to meet 1 Although the complainant was not selected for the harasser alone in a room after the the position in the harasser’s unit, she never raised that nonselection as an issue in her com- earlier kissing incidents. plaint, and there was no evidence in the record linking that nonselection to the harassment. The In this case, management was able to nonselection occurred well before the last two kissing incidents, the only incidents the judge avoid liability by showing that the found to be unwelcome, and there was no indi- cation in the record that the harasser actually in- fluenced the selection decision.

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complainant acted unreasonably and selected for the position had only two that management acted reasonably years of experience. under the circumstances. When questioned by the EEO investigator, the selecting official III explained the rationale for her decision. She noted that the most important MORE YEARS OF EXPERIENCE NOT factors she considered were the ability NECESSARILY PROOF OF SUPERIOR of the applicant to work with vendors QUALIFICATIONS and get supplies into the warehouse. In addition, she needed someone with up- The following case illustrates a common to-date computer skills, because myth, i.e., that employees with more receiving was now handled entirely by years of job-related experience are the “IFCAP”computer system. Finally, necessarily better qualified than she wanted someone who would applicants with fewer years of such require little or no training. She stated experience. Sometimes, greater length that the individual she selected had of experience does equate with better been working as a Material Handler at qualifications, but not always. the facility since 2000 and was familiar with the IFCAP system used in An employee (hereinafter referred to as receiving. Moreover, he was already “complainant”) applied, but was not familiar with the department, its selected, for a warehouse position as a operation, and its people. Material Handler in February 2002. At the time he applied, he was a Food While it is true that the complainant had Service Worker in the Nutrition and many more years of warehouse Food Service. He claimed that the experience, it was not current nonselection was in retaliation for his experience, as he had not worked in that prior EEO complaint activity. field since 1990. Moreover, he had no experience with the IFCAP system used The selecting official denied the in receiving. retaliation charge, claiming that he chose the best qualified applicant. As As the EEOC administrative judge evidence of retaliation, the complainant noted, an employer has discretion to argued that he was clearly the best choose from among qualified qualified applicant, given his 14 years of candidates, so long as the decision is not experience working in warehouses based on an unlawful factor. Moreover, between 1976 and 1990. The individual he cited several cases for the proposition

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that years of experience do not notification from the Department of La- necessarily make an individual more bor, Office of Workers’ Compensation qualified to meet the needs of an Program (OWCP), that an employee is organization. Many jobs are such that “cleared to return to full duty.” the knowledge and skills required can be acquired in a few months or a few The complainant alleged that she was years. Beyond that period, more years discriminated against based on disabili- of experience does not necessarily ty when she was terminated from her equate with better knowledge and skills. temporary Licensed Practical Nurse position. The complainant suffered a In addition, the quality of an applicant’s work-related back injury that resulted in experience is often far more important a permanent 15-pound lifting restriction than the quantity of that experience. For and a four-hour workday. She received example, it is not unusual for selecting Workers’ Compensation payments for a officials to choose someone with fewer period of twelve months, after which years of experience if the selectee’s time she was notified by the OWCP that experience is otherwise superior in there were no longer any residual affects terms of demonstrated ability, of her back injury. Thus, she was performance, achievements, etc. “cleared to return to full duty.”

Of course, recency of experience is Upon receipt of the OWCP clearance, always a critical factor in some fields, the Acting Nurse Program Leader is- such as information tecnology, and in sued a memorandum to the com- jobs that require skills in those areas. plainant requiring her to report to full IV duty. The complainant informed the Acting Nurse Program Leader that de- OFFICE OF WORKERS’ COMPENSA- spite the OWCP decision, her physician TION “CLEARANCE TO RETURN TO had not released her from her physical FULL DUTY” DOES NOT ELIMINATE restrictions. She maintained that she MANAGEMENT’S OBLIGATION TO was still experiencing pain, she re- PROVIDE REASONABLE ACCOM- mained under a 15 pound lifting restric- MODATION UNDER THE REHABILI- tion, and she could only work a four- TATION ACT. hour day. The complainant verbally requested reasonable accommodation This case illustrates the importance of from the Acting Nurse Program Leader making an independent assessment re- in the form of leave without pay for four garding an employee’s request for rea- hours each day. The complainant was sonable accommodation after receiving informed to return to full duty. The

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complainant did not report to work. testified that it was insufficient to sup- She submitted SF-171’s to request leave port her request for reasonable accom- without pay. modation and he testified that management was not obligated to inform the The complainant submitted medical complainant of the need for further doc- documentation to support her reason- umentation. able accommodation request and her OWCP appeal. Three physicians con- After reviewing the evidence of record, cluded that the complainant no longer OEDCA concluded that the complainant suffered any residuals from her work- was an individual with a disability due related injury. Two of the physicians, to her pre-existing back condition de- however, determined that her existing spite OWCP’s decision clearing the com- pain was associated with pre-existing plainant for a return to full duty. OED- degenerative disk disease, which was CA also concluded that management exacerbated by her work-related injury. failed to provide reasonable accommo- The complainant’s physician recom- dation of her disability. OEDCA noted mended that she remain on her lifting that an OWCP decision clearing an em- restriction and four-hour workday. The ployee for a return to duty associated complainant requested a light duty posi- with a work-related injury does not tion consistent with her physician’s or- eliminate management’s obligation to ders. She did not receive a response. provide reasonable accommodation of a She was charged absent without leave disability under the Rehabilitation Act. during the time-period that she did not Whether an employee is considered report to work and subsequently termi- “disabled” under the Rehabilitation Act nated for failure to be reliable and de- should be determined separate and pendable. apart from an OWCP decision to return an employee to full duty. The Acting Nurse Program leader testified that he was aware that the physi- This case illustrates that an OWCP clear- cian’s recommendation was at odds ance to return to full duty does not nec- with the OWCP decision. He did not re- essarily affect the complainant’s status call seeing any of the complainant’s SF- as an individual with a disability under 171 forms requesting leave without pay, the Rehabilitation Act. Consequently, and he indicated that the Office of the management officials should not rely Business Manager was evaluating the solely on OWCP decisions when mak- situation. The Lead Employee Relations ing reasonable accommodation determi- Specialist recalled seeing complainant’s nations under the Rehabilitation Act. medical documentation, however, he

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OEDCA also responded to managemen- Respiratory Intensive Care Unit (RICU) t’s testimony that it did not have an obli- and to provide care for two broncodila- gation to inform the complainant that tor patients in that unit. The com- her medical documentation was insuffi- plainant objected to the assignment, cient. The EEOC Enforcement Guidance stating that he felt “uncomfortable” on Reasonable Accommodation and Undue working around one of the other pa- Hardship Under the Americans With Dis- tients in that unit. The supervisor as- abilities Act, p. 8 (revised 10/17/02) pro- sured him that he [the supervisor] vides that if an employee presents insuf- would manage the other patient. The ficient medical documentation, the em- complainant nevertheless refused to car- ployer should explain why the docu- ry out the assignment. As a result, the mentation is insufficient and allow an two patients did not receive necessary opportunity to provide the missing in- therapy until much later in the day. formation in a timely manner. Manage- ment officials failed to do so in this case. The complainant subsequently received a 14-day suspension for failing to carry As we have noted in previous issues of out his assignment in the RICU. He the OEDCA digest, disability law is the filed a complaint alleging, among other most complex and misunderstood area things, that the suspension was due to of civil rights law. Managers and super- discrimination on account of his race. visors should always consult with the Office of Regional Counsel before taking After reviewing the Department’s inves- any action, or refusing to take action, in tigative file, an EEOC administrative connection with any matter relating to judge issued a decision without a hear- an employee’s disability or alleged dis- ing in the Department’s favor. The ability. judge noted that the burden of proof in a discrimination claim rests with the complainant, and that the first step in V meeting that burden is to establish a prima facie case of race discrimination. In COMPARISONS WITH OTHER EM- complaints such as this involving disci- PLOYEES NOT VALID IF SITUA- pline, establishing a prima facie case gen- TIONS ARE NOT COMPARABLE erally requires evidence that another employee of a different race was treated This case illustrates why so many EEO less harshly under similar circum- complaints involving discipline fail. A stances. In other words, absent other supervisor assigned the complainant, a evidence that might give rise to an infer- Respiratory Therapist, to work in the ence of discrimination, the complainant

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must show that another employee ac- purposes, the events in question must cused of the same or similar misconduct generally involve the same supervisor. received no discipline at all – or less se- For example, two employees who vere discipline. engage in the exact same misconduct, but who work for different supervisors, Although the complainant pointed to might receive different punishment. two other employees who he contended This is not unusual. No two supervisors were treated more favorably, the EEOC handle misconduct cases in the same judge correctly determined that those manner. Some are more reluctant to two employees were not similarly impose discipline than others; and some situated. In other words, the tend to discipline more harshly than circumstances in those cases differed others. significantly from the complainant’s situation. In one case, a therapist who In addition to considering the type of failed to answer a page was not misconduct involved, supervisors must disciplined. This failure, however, is also consider an employee’s work not the same as a refusal to carry out an record and history of prior discipline order to accept a specified duty when determining an appropriate assignment involving the welfare and punishment. A first time offender often treatment of patients. A reasonable receives lighter punishment for an supervisor would not handle these two infraction than an employee charged situations in the same manner. with a second or third offense; and greater length of service is often a The complainant’s other example legitimate factor used to justify less involved a therapist who was not severe punishment. disciplined when she balked at accepting an assignment because it As can be seen from the above involved too much work. The evidence, discussion and examples, proving that however, showed that the employee, another employee is similarly situated in despite her initial objection, did the a case involving discipline is not easy, as work assigned to her within the there are many factors that must be required time frame. Again, a considered. reasonable supervisor would not have considered this event comparable to the complainant’s refusal to obey a direct VI order. COOPERATING WITH OFFICIAL To be similarly situated for comparison INQUIRIES – THE EMPLOYEE’S

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DUTY TO “GET INVOLVED” let employees with relevant information simply decline to provide it. These prin- (The following article is reproduced with ciples especially apply to allegations of permission of “FEDmanager”, a weekly e- sexual harassment, where the law pro- mail newsletter for Federal executives, vides that failure to fully investigate managers, and supervisors published by the could be the reason why your agency Washington D.C. law firm of Shaw, may have to pay a large judgment if an Bransford, Veilleux, and Roth, P.C.) EEO complainant successfully prose- cutes a charge of sex-based workplace Several times during the last few harassment. months, federal managers (more than one) have told me that it is sometimes difficult to do anything about problem VII employees because other employees, who are witnesses, refuse to provide EEO MYTHS AND REALITIES statements, saying that they do not want to get involved or take sides in a dis- (The following appeared as the first chapter pute. I am always surprised when I in the “2003 Federal EEO Handbook” and hear this because of the very clear and is reproduced here with permission of very strong message in decisions from FederalHandbooks.com. All rights reserved.) the Merit Systems Protection Board and the Federal Circuit Court of Appeals up- There are many myths surrounding the holding removals for employees who federal EEO process. This article covers refuse to cooperate with official in- the most common ones, along with the quiries. As a general rule, unless the “realities” about the process. employee is exercising a Fifth Amend- ment right against self-incrimination in Myth #1. You can file an EEO com- a criminal matter, or something that plaint about anything, even if it does not could become a criminal matter, the em- involve discrimination. ployee must answer official questions in an investigation. This applies whether Reality. Many federal employees and the employee is a target of the investiga- their representatives mistakenly believe tion or just a witness. Employees who that they can file an EEO complaint over witness workplace misconduct have an any workplace disagreement, regardless obligation to answer questions about it of whether the cause for the disagree- and cannot refuse to “get involved.” ment is unlawful employment discrimi- Managers have an obligation to enforce nation. The reality is that EEO com- this workplace principle and should not plaints can only be filed over workplace

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disagreements with agency manage- ing pay) are generally thought to be ulti- ment that relate to a term or condition of mate or tangible employment actions employment where the disagreement is that affect terms or conditions of em- caused by management’s intentional ployment. On the other hand, perfor- discrimination against the employee be- mance appraisals and reassignments cause of his or her race, color, sex, reli- that do not affect pay may not constitute gion, national origin, age, disability, actionable employment decisions over and/or prior EEO activity (otherwise which an employee can file a successful known as reprisal or retaliation). EEO complaint. Generally, the EEOC, which is the executive branch adminis- An employee can also complain that an trative agency charged with deciding otherwise neutral agency policy has a administrative EEO complaints in the disparate impact on him or her because federal government, takes a more ex- of race, sex, national origin, or religion. pansive view of what constitutes an ac- To date, the federal courts, which, along tionable employment decision than do with the U.S. Equal Employment Op- many of the federal courts in which EEO portunity Commission (EEOC), have ju- complaints by federal employees may risdiction to adjudicate employment dis- alternatively be filed. Therefore, de- crimination complaints against federal pending on the circumstances of a given agencies, have not definitively decided complaint, the forum in which an em- whether those so called “disparate im- ployee chooses to litigate his or her EEO pact” cases can be successful when the complaint, i.e., a federal court or the basis for the complaint is age or disabili- EEOC, may currently result in a differ- ty discrimination. In addition to requir- ent outcome, depending on the type of ing proof that the employer’s actions employment decision over which the against the employee were motivated by complaint is filed. Regardless of the na- discrimination or reprisal, or otherwise ture of the employment decision over had a disparate impact on the employee which an EEO complaint can be filed, in because of his or her membership in a order to be successful, the complaint protected group, employees must also must allege that the employment action show that the allegedly discriminatory at issue was motivated by discrimina- practice by management was an action- tion against the complaining party able tangible adverse employment deci- based upon their race, color, sex, nation- sion that affects a term or condition of al origin, religion, age, disability, and/or employment. prior EEO activity. Therefore, the myth that an employee can prevail on an EEO For example, hiring, termination, and complaint over any negative personnel promotions (or other decisions impact- action that impacts them is not true.

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Moreover, if an employee files an EEO son’s race, color, sex, national origin, re- complaint about some management ac- ligion, age, disability, and/or prior EEO tion that is not motivated by discrimina- activity. Thus, for example, a white tion, that complaint may foreclose them male, born in the United States, and of from filing a complaint over the same any religion, may have a valid EEO personnel action under another com- complaint if he feels that he has been plaint processing mechanism, such as a treated less favorably by his employer grievance. Thus, understanding the re- than similarly situated non-whites, fe- ality that EEO complaints can only suc- males, or those of a different national cessfully be filed over claims of unlaw- origin or religion because of his mem- ful employment discrimination regard- bership in one or more of those recog- ing tangible employment actions is cru- nized EEO classifications. It should be cial to successfully processing and re- noted, however, that the protection of solving such a complaint. the Age Discrimination in Employment Act, which prohibits unlawful age dis- Myth #2. Only minorities, women, and crimination, does not begin until a per- lower-level employees can file EEO son has reached the age of 40. Likewise, complaints. to gain protection under the Rehabilita- tion Act and the Americans with Disabili- Reality. Contrary to this myth among ties Act, one must either be disabled or some white males and higher-graded perceived to be disabled by one’s em- employees, the EEO laws are there to ployer and must be the victim of an ad- protect against unlawful employment verse personnel action because of a dis- discrimination on any legally recog- abled status in order to have a claim, nized basis. Therefore, non-minorities other than one seeking reasonable ac- may have a cause of action in certain cir- commodation for a disability. Under cumstances to the same extent as their those theories, nonminorities have suc- female and minority colleagues. Also, cessfully pursued EEO complaints over the EEO complaint process is available the years. for any employee who feels discriminated against, regardless of grade level, al- As for higher-graded employees, as ex- though it is true that the stakes may be plained above, they too have the same higher as an individual’s grade level EEO rights and protections as all other goes up. federal employees. However, allegations of discrimination may more easily As previously stated, the various EEO lead to retaliation against such a com- laws protect against unlawful employ- plainant by agency management. This ment discrimination because of a per- retaliation can be especially damaging

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to the career potential of higher-graded employee has previously filed EEO employees, particularly when their un- complaints, as long as the discipline was derlying claims of discrimination are not taken because of that prior EEO ac- not well supported by facts. Also, retali- tivity or caused by discriminatory intent ation against higher-graded employees on management’s part. In fact, even if a may be subtle and difficult to prove complaining employee can prove that even though it is certainly illegal. discrimination or EEO reprisal partially Therefore, the decision to file an EEO motivated a given adverse employment complaint should be arrived at only af- action taken against him or her, if the ter a reasonable investigation of the Agency can still prove that it would facts and a realistic assessment of how have taken the same discipline against such a complaint could impact an em- the employee due to his or her actual ployee’s career potential within their misconduct in the absence of discrimi- employing agency. Consultation with a nation or reprisal, that discipline will be qualified attorney may be a smart deci- upheld even though it was partially mo- sion before one initiates any EEO com- tivated by discrimination or reprisal. plaint. The reality is that, even after they file Myth #3. Once an employee files an EEO complaints, complaining employ- EEO complaint, he or she can do any- ees still have the same performance and thing and management will not be able conduct obligations to their agency de- to take any action, even if the employee fendant as any other employee of the has conduct or performance problems. agency. For example, a complainant cannot expect to become a professional Reality. Unfortunately, some employ- complaint filer, not do any work, and ees believe the myth that filing an EEO expect not to be legitimately disciplined. complaint will insulate them from fu- Likewise, an EEO complaint does not ture adverse employment actions by exempt a complainant from employer their employer because management work conduct rules. A problem em- may fear that such future actions could ployee can still be appropriately dealt be viewed as retaliation against the em- with and a manager should not be ployee due to his or her prior EEO activ- afraid to do that, so long as the proper ity. Although that strategy may work in safeguards are in place. For example, a some agencies or with particular super- manager faced with a problem employ- visors, the reality is that an agency may ee who has filed an EEO complaint still properly discipline an employee for against him or her should ensure that proven misconduct or performance any future disciplinary or other adverse problems, regardless of whether that employment action taken against that

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complainant is based upon adequate cies” are very hard to prove and may documentation. Likewise, the manager not be as likely to occur as some em- should obtain advice from Employee ployees think. As stated above, man- Relations and the agency’s General agers may be subject to discipline up to Counsel before taking actions adverse to and including termination for violating a complaining employee. EEO laws. Also, although it may not be public knowledge to employees, agen- Notwithstanding, a manager should not cies do discipline managers found to intentionally treat a complaining em- have engaged in, or conspired to protect ployee worse or differently than other other managers who have engaged in, employees who have not filed an EEO discrimination or unlawful reprisal. If complaint. Although that concept may you think your agency will not impar- be difficult for a manager to deal with tially consider whether a manager emotionally, especially when faced with should be disciplined for unlawful dis- a “frequent filer,” it is the law. Man- crimination, you should consider con- agers who unlawfully discriminate or tacting the Office of Special Counsel, an retaliate against their employees may independent federal agency that has the themselves face discipline from their authority to seek to have agency man- employer. Moreover, unlawful discrim- agers disciplined for violations of the ination and reprisal is bad management merit system principles, including those because, not only is it unlawful, it principles against prohibited personnel erodes the confidence that subordinates practices like unlawful discrimination. place in their managers, destroys the workplace environment, and harms the Also, in certain circumstances, federal successful accomplishment of the agen- agencies can be held responsible for cy’s mission. their managers’ discriminatory harassment of employees if the agency fails to Myth # 4. Management acts in concert adequately prevent or promptly stop to discriminate against employees and such harassment. Hence, in those cir- will protect a manager against whom a cumstances, managers actually have an complaint is filed. incentive not to act in concert to discriminate or otherwise to protect a fel- Reality. Although employees may below manager against whom a complaint lieve that their agency’s managers act in is filed. concert to discriminate against employees and will protect a fellow manager Notwithstanding, as discussed above against whom an EEO complaint is and in more detail below, retaliation filed, the reality is that such “conspira- against employees who file EEO com-

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plaints is not uncommon in the federal severe damages to the complainant of- government. A large number of the ten settle for confidential amounts of complaints received each year by the money. It is rare that a federal agency EEOC allege retaliation as the basis for would agree to pay an individual com- the complaint. EEO retaliation can be plainant $300,000 to settle a claim be- devastating to an employee and his or cause that is the worst case scenario for her organization. Given that, one an agency assuming the complainant should always factor possible reprisal successfully litigates the case all the way into the equation when considering to a final EEOC or appellate court deci- whether to file an EEO complaint. With sion, which could be years away and is that said, EEO reprisal may be easier to unlikely to occur. prove and result in a larger award of monetary damages for pain and suffer- The reality is that damages have to be ing than the underlying discrimination proven in a successful discrimination that led to the first complaint by an em- case and it is hard to get a six-figure ployee that caused the reprisal. award. If you do not prove the underlying discrimination or reprisal, you do Myth # 5. Every complainant who files not receive any compensatory damages. an EEO complaint gets $300,000 in dam- It should also be remembered that the ages. dollar value of a compensatory damages award is supposed to reflect payment in Reality. Under the Civil Rights Act an amount equal to the amount of pain (CRA) of 1991, federal employees who and suffering and other harm actually file successful EEO complaints are enti- proven by the employee to have been tled to an award of compensatory dam- caused by the government’s discrimina- ages in a proven amount not to exceed tion. Punitive damages (monetary $300,000. Since the passage of the 1991 awards aimed at punishing a defendant CRA, some employees have succumbed found to have engaged in unlawful dis- to the myth that every complainant who crimination) are not awardable against files an EEO complaint gets $300,000 in the federal government. Thus, the “win damages. The reality, however, could the lottery” mentality applicable to a not be more opposite than that myth. In certain extent in the private sector does fact, most filed EEO complaints are un- not apply to EEO complaints against the successful or fail to result in significant federal government. damages awards. It is true that the amounts awarded by the EEOC have Finally, although it is true to some ex- risen over time. Discrimination cases intent that juries in court discrimination volving allegations with clear merit and cases tend to award higher damages

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amounts to successful plaintiffs than Furthermore, it is always the com- does the EEOC, it is also true that most plainant’s burden to prove the alleged discrimination cases filed in federal discrimination in any case, which is not court never get to the jury because they an easy thing to do, especially given the are dismissed or summarily decided by fact that few EEO cases involve direct or the judge in favor of the employer be- “smoking gun” evidence of discrimina- fore the case is submitted to the jury. In tion and it is likely that the alleged dis- addition, successful jury verdicts can be criminating official will not admit that reduced by the judge and are subject to he or she acted with an intent to dis- reversal by an appellate court. Hence, criminate against the complainant. the vast majority of EEO complaints do Most EEO complaints must be proven not result in the complainant being through circumstantial evidence and all awarded $300,000 in damages. that is required of the agency is that it articulates one or more legitimate nondiscriminatory reasons for its ac- Myth #6. It is weak to make a settle- tions toward the complainant. Coupled ment offer or participate in mediation. with the sheer volume of EEO complaints in the EEOC and court systems and the perceived hostility toward such Reality. Another myth to which some claims by certain federal judges, it EEO complainants and their representa- makes perfect sense for an employee to tives subscribe is that it is weak to make engage in settlement negotiations and a settlement offer or participate in an al- ADR early and throughout the case. ternative dispute resolution (ADR) When considering whether to engage in process, such as mediation. The reality settlement negotiations or ADR, one is that EEO complaints can take up- should keep in mind that it is best for all wards of five to six years to fully litigate parties if a case can resolve itself early. to completion and can cost com- Also, when engaging in settlement ne- plainants large amounts in attorneys’ gotiations or ADR, a complainant can al- fees to prosecute. Meanwhile, the com- ways reject a settlement position taken plainant is either still working for the by the agency and there is no require- agency in the same difficult environment to actually reach a settlement in ment that caused the complaint to be any case. Also, ADR is built into the ad- filed in the first place or may be unem- ministrative EEO process and is some- ployed altogether, depending on the na- times required in federal court. ture of the case. Hence, there is no stigma in asking for ADR or participating in it. Given the in-

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herent risks of any EEO complaint for should the agency not settle on terms the complainant, a settlement wherein acceptable to them. Remember too that he or she gets some of the relief sought the risks of an EEO complaint, including in the complaint is often better than the length of time it takes to litigate the risking everything on the outcome of a complaint (it can be a long haul) and the trial or EEOC proceeding. Also, settle- burden of proving discrimination, al- ment often helps the parties repair their ways fall disproportionately on the side employment relationship, which may of the complainant. Agencies realize have become damaged. The bottom line that and may be less likely to settle an is that settlement negotiations and ADR EEO complaint because of that reality are well worth the time and effort that than they would to settle a case where should be devoted to them if you are an the burden of proof rests with the agen- employee who has filed an EEO com- cy. plaint. Myth # 8. It is emotionally easy to make Myth # 7. Agencies always settle EEO the decision to file and pursue an EEO complaints. complaint.

Reality. Many a complainant has as- Reality. Nothing is easy about the EEO serted that their agency always settles process, emotionally or otherwise. One EEO complaints, so it will settle their of the hardest things a person can de- complaint if it is filed. The reality is cide to do is file an EEO complaint that, although some agencies have the against his/her employer. This is espe- reputation for always settling EEO cas- cially true if the complainant is a man- es, that reputation is not necessarily de- ager. As citizens of the United States, served or true. Complainants should we all want to believe that our govern- never count on a case settling and ment officials would not engage in un- should go into a complaint expecting to lawful employment discrimination. have to litigate it all the way and win to Also, federal employees are schooled in obtain the relief they seek. If a com- the notion that employment decisions in plainant is not prepared to litigate it all the federal government are supposed to the way or cannot see how he or she will be based upon merit principles and not, be able to prove discrimination, they for example, on the color of a person’s should generally not file the complaint skin or his or her gender. Knowing also, in the first place. As previously stated, however unfortunately, that reprisal of- complainants should usually attempt to ten results from alleging discrimination, settle their cases during the process, but federal employees as a whole are under- they should be prepared to litigate standably reluctant to file EEO com-

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plaints. Thus, agencies should not be so various EEO laws and 5 U.S.C. § 2302(b) quick to allege that an employee’s make retaliating against the subordinate choice to file an EEO complaint was an who complained equally unlawful. The easy one. In most cases, it was not. effect of an EEO complaint and the ap- plication of the anti-retaliation provi- Myth # 9. Managers do not care if an sions of the law create a very awkward EEO complaint is filed against them by situation for the accused manager. They a subordinate. have an obligation to manage the complainant unemotionally, as if no com- Reality. It is generally a myth to say plaint had been filed, all the while that federal managers do not care if an knowing full well that a complaint has EEO complaint is filed against them by been filed. Hence, the inherent difficul- a subordinate. Some federal managers ty of being a manager. care a great deal about such complaints. Just as it is difficult for an employee to Myth # 10. There is no such thing as decide to file an EEO complaint, it is dis- reprisal for filing an EEO complaint. concerting on a personal level to most managers against whom an EEO com- Reality. Unfortunately, as described plaint is filed to think that the com- above, the notion that there is no such plainant believes the manager discrimi- thing as reprisal for filing an EEO com- nated against the complainant. Most plaint is also a myth. Reprisal is as true federal managers are conscientious and a reality in the federal government as it are federal managers because they want is in many other employer environ- to be in public service and ensure that ments. As discussed above, it is difficult federal laws are enforced not broken. for a manager alleged to have engaged Most managers also believe that they in discrimination not to have an emo- manage their subordinates fairly, based tional reaction to such an allegation, re- on merit principles. To face an allega- gardless of its merit. Despite the prohi- tion that one has violated federal law by bitions in the law against reprisal, some discriminating against someone based managers just cannot resist the emotion- upon, for example, their race, gender, or al reaction to use their inherent power disability can be a sobering and emo- to harm subordinates who complain tionally difficult experience for any about them. (Remember, such a com- manager. plaint can do significant harm to a manager’s career). Nevertheless, it should Notwithstanding a manager’s personal be clearly understood that any such reaction to an allegation that they have reprisal is equally unlawful and poten- engaged in unlawful discrimination, the

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tially career ending for the manager involved.

To avoid the appearance of reprisal, federal managers and supervisors should make sure that they handle personnel matters related to the complaining subordinate in the same way they handle such matters with similarly situated employees who have not filed complaints. Accused managers should not unreasonably increase, decrease, or otherwise change the terms, conditions, or duties of the complaining employee’s job. Fi- nally, accused managers should consult with human relations and their own supervisors as to how to properly manage the complaining employee.