The recent government shutdown can have a profound impact on federal workers. Research by management experts shows that the threat of imminent uncertainty, such as furlough or layoff, can be just as stressful as the furlough or layoff itself. A management professor at West Chester University, Anthony Wheeler, says psychologically, they are the same, the threat to one’s sense of security is the same. The more often the worker hears the threat, such as Presidential tweets, the greater the stress.

The studies looked at furloughs of state employees and layoffs of nurses before and after  hospital mergers. The studies found that high performers who had options would leave for other jobs elsewhere. And, they tend to leave quickly.

Another professor, Lisa Baranik at the University of Albany in New York, studied the 13 day shutdown in 2013. For up to five weeks after the shutdown ends, the effects lingered among the workers. Furloughs, she explained, are about much more than financial considerations. For most workers, the job is also a source of social interaction. They can discuss families and positive accomplishments at work. When they lose those bonds, they lose much of the positive effects of the job. Those positive effects take time to re-build.

Some folks suggest that the effect on federal workers is different, because they tend to have more of a sense of mission. They serve a cause, something larger than themselves. But, said one expert, this most recent shutdown and the threat of a second shutdown soon afterward makes this experience much more like layoffs in the private sector. See the Feb. 12, 201 edition of the San Antonio Express News for more information about these studies.

For federal employees, they have a different process to trial. A federal employee can file a verbal complaint with his/her local EEO office. When that process is completed, the federal employee then has 45 days to submit a written complaint. The Agency then conducts an investigation. The Agency does not come to any conclusions about whether discrimination occurred. But, the EEO investigator does gather statements from all (or most of) the pertinent witnesses. When that process is completed, the federal employee can file suit in U.S. district court, or request a less formal hearing in front of an EEOC Administrative Law judge. In theory, the EEOC judge process should be quicker and cheaper than U.S. district court. But, the EEOC process is not quick anymore.

According to statistics provided by the EEOC, for the time period FY 2009-FY 2017, the total time of the EEOC process has increased every year. The numbers below apply to the San Antonio Field Office. The Texas region has been short of a few judges for several years now. But, much of the country is also short of Administrative Judges. Median processing time refers to one-half being greater than that number and one-half being smaller than that number. The first category addresses those rare cases in which a federal employee reaches the point of having a trial in front of an EEOC judge and wins.

Written Decision/Finding of Discrimination

  • 2009: 5 cases/ 285 days median processing time
  • 2010: 2/626 days
  • 2011: 0
  • 2012: 0
  • 2013: 1/612 days
  • 2014: 0
  • 2015: 1/1128
  • 2016: 0
  • 2017: 0

The next category applies to the majority of cases. These are the federal EEOC complaints that have proceeded to a trial in front of an EEOC Administrative Judge in which the employee lost.

  • 2009: 68 cases/296 days median processing time
  • 2010: 4/227
  • 2011: 27/199
  • 2012: 28/221
  • 2013: 14/332
  • 2014: 6/279
  • 2015: 1/146
  • 2016: 2/1644
  • 2017: 3/1181

So, the median processing time for employees who lose their trial in front of an EEOC Administrative Judge has increased from 227 days in 2010 to 1181 days in 2017. And, since 2013, there has been significant drop-off in the number of EEOC complaints that have reached the trial stage. And, starting in 2016, the length of time to reach a trial and lose has exploded.

Some cases do settle. The number of settlements is not as significant as they might seem. In many federal settlements, no money changes hands. Many federal employees are happy to settle for nothing more than a transfer to a new department or to a new job. These numbers reflect how many cases settled and how many days it took to reach that settlement.

  • 2009: 81 cases/210 days median processing time
  • 2010: 55/137
  • 2011: 54/134
  • 2012: 69/182
  • 2013: 77/241
  • 2014: 57/246
  • 2015: 56/177
  • 2016: 78/215
  • 2017: 40/294

So, many cases settle within the first 7-10 months of the life of a written complaint. That suggests if your case does not settle within that time, then the process will require  years before reaching a resolution.

 

Federal employees have a wide range of options when they run into problems at work. One of those options is the Office of Special Counsel. OSC has the mandate to investigate fraud and violations of law. But they receive too many complaints and lack enough staff to investigate all those complaints. But, one San Antonio federal worker succeeded in attracting the attention of OSC. A Veterans Affairs worker named Jamie McBride complained about the process for transplants at the V.A. hospital.

He said veterans were being short-changed because they were being required to travel to distant V.A. hospitals in Houston and Nashville for heart, lung, liver and kidney transplants. Yet, when the veteran travels to these distant locales, they were actually being treated in non-VA hospitals. Mr. McBride pointed out that several San Antonio area hospitals performed these transplants. For unknown reasons, the V.A. refused to enter into contracts with those local hospitals.

After hearing the V.A.’s explanation, the OSC found Mr. McBride was correct. The V.A. imposed unreasonable eligibility criteria for persons seeking transplants under the Choice program. The OSC found that requiring families to re-locate to distant centers caused financial stress for those families. The V.A. argued that the local hospitals would not accept Medicare rates, which is a V.A. requirement. But,. Mr. McBride showed that some 50% of San Antonio hospitals would indeed accept medicare rates for those transplants.

The OSC agreed that the V.A. satisfied the requirements of the statute, but the V.A.’s actions were still unreasonable.

Mr. McBride submitted a complaint to the V.A. Inspector General’s office in 2013. Three years ago, the IG found in his favor. The worker then submitted a complaint to the Office of Special Counsel in Washington, D.C. See San Antonio Express-News report.

Yes, this is the first time I have experienced the OSC finding in favor of a local employee. Indeed, at least in my experience, they accept very few complaints for investigation.

In a recent decision, the Fifth Circuit addressed the difficult question regarding what level of reprisal is enough to constitute retaliation? In Cabral v. Brennan, 853 F.3d 763 (5th Cir. 2017), Javier Cabral worked for the U.S. Postal Service. He complained about discrimination several times. He was then placed on a two day suspension after he allegedly struck a supervisor with a postal vehicle. The employee accused the supervisor of badgering him with questions The supervisor asked him for his driver’s license and Mr. Cabral refused to provide it. Mr. Cabral was placed on suspension for two days.

The employee claimed the two day suspension without pay was in retaliation for his previous complaints of discrimination. The U.S. Postal Service, however, claimed the employee was placed on suspension because he was using a suspended driver’s license. He may have had an occupational driver’s license. But, if so, he failed to produce it when asked. USPS moved for summary judgment. It relied on the decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) which held that acts other than straight suspension, demotion and termination could constitute retaliation. If the employer’s action was materially adverse, then the action could constitute retaliation under Title VII. The employer claimed the two day suspension was not materially adverse. The lower court agreed with the Postal Service and granted summary judgment.

Indeed, the defendant argued that the plaintiff had several DWI convictions on his record. The plaintiff was required to tell his supervisors about any driver’s license suspensions, but he had failed to do so. The plaintiff argued the suspension was retaliation for his prior activity opposing discrimination.

The Fifth Circuit agreed with the lower court. The higher court noted that the plaintiff in Burlington Northern was placed on unpaid leave for 37 days, causing her to fall into a deep depression. The plaintiff here, said the Fifth Circuit, had not shown that the suspension exacted a physical, emotional, or economic toll on him. Therefore, the employer’s action was not materially adverse. See the decision here.

One has to wonder about the facts of this case. Anytime an employee is accused of striking a supervisor, that is a case that is looking to be dismissed. The employee deemed the allegation. But, that sort of allegation forces the plaintiff to start out at a deficit. Perceptions do matter. The record from the lower court indicates Mr. Cabral was eventually paid for those two days of suspension.

Too, that the employer has filed several prior EEO complaints undermines his credibility. Within six months, he filed one EEO complaint and three grievances which alleged harassment and retaliation. Before that six month period, he had already filed two other EEO complaints. Some federal employees, fearing they will suffer some technical issue, think they must file a complaint for each and  every act of harassment. But, in reality, such employees appear to be “frequent filers.” Some lawsuits simply should not be filed.

Once Donald Trump assumes office, I expect we will have to re-visit many aspects of public life that we once took for granted. One of those aspects is the Hatch Axct. The Hatch Act was passed in 1939. It was passed to ensure that federal employees would not be forced to engage in political campaigns in order to remain employed. Once upon a time, federal employees were expected to assist candidates in their campaigns. The Hatch Act added a degree of professionalism to the federal workforce. Some jobs were classified as civil service and therefore, protected from political pressures. Other jobs were classified as political which meant they could be replaced whenever a new person was elected to office.

The incoming Trump administration has already asked the Energy Department for the names of persons who worked on behalf of climate change policies. The Trump folks also asked the State Department for information related to gender related staffing and funding. Tom Perez, the current head of the Labor Department, said those questions about Energy Department employees was illegal. See CBS News report. Mr. Perez did not explain what he believed to be illegal, but I am sure he was referring to the Hatch Act. The Hatch Act prohibits political activity by federal employees. The Hatch Act prevents federal employees from engaging in political campaigning. It also allows federal employees to vote their conscience, to contribute money to candidates of their choice, and to join political parties or clubs of their choice. See Office of Special Counsel handout on the Hatch Act and what activities are prohibited for federal employees here.

To the extent that the Trump folks are seeking to take action against or to target in some way federal employees who have expressed political views, then it violates the Hatch Act. And, that is before they have even assumed office. One can only wonder what will come after they assume office.

Last week, a federal court jury found that Corpus Christi Army Depot discriminated against and retaliated against Muprhy Junaid during his employment at CCAD.  The federal court jury awarded $150,000 in lost wages and benefits and another $500,000 in emotional pain type damages.  Mr. Junaid complained about discrimination by CCAD and then suffered discipline for what the jury found to be false allegations.  He was written up for various offenses and then fired.  

The amounts awarded will be subject to a statutory cap.  So, the emotional suffering damages will be reduced to $300,000.  See Junaid v. Department of the Army, No. 2:11-CV-226 (S.D.Tex. 2012). 

The total amount of the plaintiff’s recovery will increase.  Since, under Title VII, the successful plaintiff can also seek an award for attorney’s fees.  The average discrimination case will result in 100-200 hours of attorney time, or more. 

As with many such federal EEO complaints, Mr. Junaid had lost during the administrative complaint process – even at at an administrative trial before a judge.  He also lost before the Merit Systems Protection Board.  I am afraid this case shows how ineffective those processes can be for federal employees.  Federal sector employees are fortunate that they have access to bodies like the MSPB and a formal EEO process.  But, often, those processes offer little real protection. 

It is remarkable that he lost before the MSPB and in his EEO appeal.  He had evidence that his supervisor at the time lied and fabricated an incident which lead to his termination.  His former supervisor claimed Mr. Junaid met with him but walked out in an act of insubordination.  But, according to the Plaintiff’s response to Defendant’s Motion for Summary Judgment, four witnesses testified that Mr. Junaid was not at that meeting with his supervisor.  In other words, the supervisor fabricated a final incident to get Mr. Junaid fired.  The supervisor did this in the face of contrary evidence from four co-workers.  Probably not a smart move by the supervisor. 

The trial result also shows what can happen when management decides to discipline someone who has filed an EEO complaint.  Management can and should impose discipline in appropriate circumstances.  But, any discipline, while an EEO charge is pending, needs to be very objective and supported with solid evidence.