By William Wiley, January 24, 2018
I don’t care which side of your bread is buttered, you have to admit that our current system of oversight is a pretty poor way to set up protections for federal civil servants. Consider the following:
- Congress so loves the civil servant and wants those individuals in federal employment to be protected from mistreatment by their managerial overlords that it has passed several laws to provide protections:
- It is illegal for agency managers to mistreat employees because they have filed complaints alleging civil rights discrimination: 42 USC 2000e et seq.
- It is illegal for agency managers to mistreat employees because they have filed grievances: 5 USC 2302(b)(9)(A).
- It is illegal for agency managers to mistreat employees because they have engaged in union activity: 5 USC 7116(a)(1).
- Congress, in its wisdom or folly, has established at least three institutions to make sure that the above laws are not broken:
- The US Equal Employment Opportunity Commission has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a discrimination complaint.
- The US Office of Special Counsel (in collaboration with the US Merit Systems Protection Board) has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a grievance.
- The Federal Labor Relations Authority has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously engaged in union activity.
Let’s take a non-hypothetical employee who believes that his agency has mistreated him on 40 separate occasions.; e.g., Letters of Warning, failure to accommodate a disability, his supervisor laughed at him … the typical list of reprisal actions. He sees a big poster on the agency’s Official Bulletin Board advertising the rights employees have to file discrimination complaints, and so he does. He believes that he has been mistreated because he has previously filed complaints alleging civil rights discrimination.
As the discrimination process works, he gets to make his arguments to an investigator, then an EEOC judge, and then to the EEOC headquarters unit that oversees federal employee claims of reprisal. And after TEN YEARS, he gets his answer. Indeed, there was reprisal against him on the part of the agency. However, it was not because of his previously filing EEO complaints. Instead, the reprisal – according to EEOC – was because he:
- Previously filed a bunch of grievances, and
- Previously engaged in protected union activity.
No EEO discrimination here. Sean T. v. USPS, EEOC Appeal No. 0120150928 (December 5, 2017).
This individual (code named: “Sean T.” like some Irish rapper; “Hey, Big Sean T.! Hit me up with that ‘Irish Eyes are Smiling’ tune again. That thing’s dope!”) was employed by the U.S. Postal Service. Therefore, he did not have access to OSC or FLRA, as would a civil servant in another federal agency, but the result would have been the same if he did. EEOC does not have the authority to protect an employee who is mistreated by agency management, unless that mistreatment was motivated by the civil rights laws.
Poor Sean T. After a decade, he finally has an answer. He was not mistreated because he previously filed discrimination complaints. Oh, yes, my friend. He indeed was mistreated. But not because of civil rights discrimination. He just got himself into the wrong forum with his allegation, and thereby is back where he started in 2008 about the time Barack Obama first took the oath of the Presidency.
That seems like so long ago, doesn’t it.
Look. Here at FELTG, we’re not siding with Mr. Sean T. Frankly, he looks like someone who would be a pain to try to manage. Instead, we’re siding – as we always do – with the side of a fair and efficient government. This particular oversight scenario is neither fair nor efficient.
Somebody, please. Fix this. It’s not DACA, but it’s worth some amount of Congressional thought. Wiley@FELTG.com