By William Wiley, August 7,  2018

A number of agencies have someone like this. He thinks that his personal grievances about the workplace are soooo important that everybody above him in the chain of command must want to know about them. So he emails just about everybody in management with his complaints and allegations hoping to stir someone into action to fix things (and perhaps drop a load of damages and back pay on him). The “To:” block on his emails sometimes contains 50 or more recipients, usually including the President of the United States. In fact, I saw one several years ago that included an email to someone identified as “JesusChrist.”

I tried the address and I received a warning that it was likely SPAM. Maybe I’ll just stick to prayer.

Anyway, here’s a question we got from a member of the FELTG Nation who is having a similar hypothetical problem:

Dearest FELTG:

We [hypothetically] have an employee who raises frivolous claims related mostly to EEO issues (“I saw two co-workers hug and that’s sexual harassment” – that type) up her management chain and they’d like her to stop. This person is a serial EEO filer, which I know isn’t that rare a circumstance, but I haven’t come across any court-approved language that insulates the agency from EEO reprisal claims based on a cease/desist email or other order. Any guidance here?

And here’s our best-guess FELTG response:

Dearest Loyal Reader –

An all-too common frustrating situation with a couple of nasty potential pitfalls. First, OSC has developed some very specific gag order language that we are supposed to use when we restrict an employee’s communications. It’s along the line of your admonition, so follow the admonition with this:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

Separately, EEOC will find that we have discriminated against an individual if we limit his ability to speak out in opposition to discrimination. I think you can put “reasonable” constraints on how a person speaks out in opposition, but the challenge is that EEOC hasn’t been particularly helpful in helping us know what constitutes “reasonable” limitations.

For example, I think that after the first time, we can tell an employee to stop emailing managers Smith, Jones, and Green about anything, as long as we make it clear that he can speak out in opposition to discrimination in any other forum. However, that’s just a guess as I know of nothing definitive from EEOC about that specifically. Unfortunately, we all know that EEOC tends to find discrimination in the darnedest places, so any constraints we enact have the potential to have a chilling effect on the employee’s rights to oppose discrimination.

[Hopkins Note: You may also want to check out the case Anthony Z. v. Air Force, EEOC No. 0120141988 (June 15, 2016), which says that a supervisor may protect employees from unwelcome conduct even if it references EEO activity. Here it was a complainant who wouldn’t shut up about his EEO complaints and kept trying to get his coworkers to file.]

Thanks for the question. Best of luck.  Wiley@FELTG.com

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