I am mad. Really mad. I am mad about the terrible advice a federal supervisor was given by her chief counsel’s office, about not holding an employee accountable for her performance out of fear of an EEO reprisal complaint. The kind of situation you’ll see below happens every day in agencies across the country, and to use a legal term, it sucks.
Here’s an email I recently got from a FELTG customer, and below that you’ll see my response.
Dear FELTG Super-Powers,
A colleague who was a Federal EEO person for many years suggested that I contact you.
I just returned to Federal service after a ten-year hiatus. I am the supervisor of a small staff in a large agency. I started a couple of months ago, and last week I learned I was part of an EEO complaint that was filed three days after I started work. Little did I understand when I took the job that this person had been a problem with the agency for at least five years.
There do not appear to have been any reprimands or other disciplinary actions for either her conduct or her performance. She has been given outstanding reviews for poor work because of the hope to have her leave the agency. In the few weeks I have been here it is clear that she should have been gone years ago.
I’m curious as to whether or not anyone has ever had an action against an agency for its consistent lack of taking action against a “rogue” employee such as the one I have. She was moved from one office to mine about three years ago because she was such a problem. I have now inherited this problem and am seen—after only a few weeks on the job—as simply a continuation of discriminatory supervision.
Now that her EEO complaint has been submitted she has become increasingly rude to me and others. I have been counseled by our chief counsel’s office to document her behavior and performance but not to take any disciplinary actions because that might be seen as retaliation.
Should I be concerned and talk to my own counsel regarding this matter?
Thanks.
Dear Supervisor,
Thanks for reaching out. I am frustrated for you, because I know this is a tough situation; you’re not alone in this, and we get calls and emails every week from supervisors like you with eerily similar scenarios.
To answer your questions, as far as we know nobody has ever taken official action in the courts against an agency for refusing to hold “rogue” employees accountable for performance or conduct, probably because so many agencies engage in this culture. But we do sometimes see proposed bills on Capitol Hill (recent example: the DVA), or articles in the newspaper, about how agencies need to do better. That’s as far as it’s gotten.
In my personal opinion (this is not legal advice), while your chief counsel’s office was wise to tell you to document what the employee is doing wrong, it has given you poor advice in telling you that you should not take action against this employee for fear it looks like reprisal. In fact, it’s not just poor advice, it is dead wrong advice and actually violates 5 USC § 4302(b)(6) which requires agencies to remove from their positions employees who do not meet minimum performance standards. That’s right, you don’t remove a non-performing employee and you’re violating the law.
Not taking action against an employee like this just continues to allow what has been happening for years, and trust me, employees who are given “Outstanding” ratings for doing poor work will never leave on their own; why would they be motivated to?
The biggest thing, should you decide to take action, is certainly to document the business-based reasons why you are taking the action (for example, if you are initiating a PIP or disciplinary action for misconduct). Based on her history the employee will likely file a reprisal complaint, and there’s nothing you can do to stop it – but the way you defend yourself is by having the documentation of your reasons.
Regarding personal risk, we’d need to know more about the situation to answer that question. If you’ve been given a direct order to not take action against this person and you decide to, then your job could be on the line, because insubordination (or perhaps failure to follow a direct order) is a serious offense.
If you’d like to discuss in more detail to see if perhaps you need an attorney, please feel free to let me know and we can set up a phone consultation, as FELTG does provide legal advice to consult with supervisors in situations like this.
I hope this helps. Good luck.
***
But wait, we’re not done yet. I got a response from this supervisor and she said that she was moving forward with action (yay!) in the form of a warning (NOOOOOOOOO!). Please, please, please – don’t do it. Here’s why:
If you give this problem employee a warning, she can file an EEO reprisal complaint. If you put her on a Performance Improvement Plan (which you can do with no proof, as long as you can merely articulate what critical element she isn’t performing well) she can file an EEO reprisal complaint.
If she fails to improve after the warning, you have no recourse except to warn her again or to put her on a PIP. If she fails the PIP, you can remove her from federal service.
So either way you go this employee can file an EEO reprisal complaint, but here’s the big difference:
If your agency wins the EEO hearing (and remember, the EEO process takes 2-3 years) and successfully defends against the reprisal complaint regarding the warning, your problem employee still works for you. If your agency wins the EEO hearing (in 2-3 years) and defends against reprisal over the PIP, the lady has been gone from your workplace for 3 years minus the length of the PIP (we suggest 30 days unless a union contract dictates otherwise).
To me, counselors, the choice is obvious. [email protected]
