What! No Tooth Fairy, Either?

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By William Wiley

Innocence. I seem to remember it vaguely. Many of us practiced it with our kids when they were young, telling them fun things like that if they were good a big fat guy in a red suit was going to come down the chimney and leave them presents once a year. Or, that an Easter Bunny had hidden colorful eggs around the house. Or, that if they put a recently-dislodged tooth under their pillow, a fairy would fly into their room when they were asleep and leave a quarter (although I guess now he has to leave a $20 to keep up with the times). Yes, sometimes we play little fantasy games with ourselves and with others, games that have good thoughts, but are not necessarily based on the hard facts of reality.

Although the more obvious fantasy games are usually played with children, we also play fantasy games with ourselves as adults. For example, a number of practitioners hang on every decision from EEOC as if they are each some sort of independent ex cathedra declaration of civil service law, bringing wisdom and justice to an otherwise discriminatory federal workplace. Well, if you’re in this group, start reading more EEOC decisions. Too many of them, like the following, contain a questionable evaluation of the evidence, Elbert H. v. DVA, EEOC No. 0120140032 (2015).

Relevant dates in order:

  1. February (estimate) 2009 – Complainant is hired as a probationary employee.
  2. June 30, 2009 – Supervisor rates complainant’s performance for the period from hiring until the rating is issued as Satisfactory.
  3. Beginning in the “summer” of 2009, supervisor begins to note deficiencies in the employee’s performance:
  4. July 19, 2009 – Employee complains to supervisor about a “hostile environment” caused by a coworker. Interestingly, nothing in the Commission’s decision references whether the employee claimed that the hostility was based on a protected civil rights category, or whether some coworker just didn’t like him and was therefore hostile.
    • Only hostility complaints based on race/sex/age/etc. are protected activity for the purpose of the filing of a reprisal discrimination complaint.
    • One would think that this would be an important evidentiary finding in EEOC’s decision.
  5. January 4, 2010 – Supervisor terminated employee’s appointment during probation for poor performance. Specifically, the supervisor reported that the employee:
    • Failed to create purchase orders
    • Failed to establish purchase orders prior to services being rendered
    • Failed to provide adequate customer support to the medical center
    • Failed to support the transitioning of Network circuits
    • Ignored an environmental alarm
    • Failed to follow orders regarding work transfer
    • Failed to notify chain of command of system issues
  6. Employee subsequently filed an EEO complaint claiming reprisal for the July 19, 2009 grumble. The EEOC judge found reprisal and awarded the employee:
    • Reinstatement
    • Back pay (est. $135,000)
    • Non-pecuniary damages of $23,750 (it appears that the employee did not request damages, but the judge awarded them anyway)
    • Attorney fees and expenses of $44,618.55.
  7. Amazingly, the employee/complainant appealed the judge’s decision to EEOC. The rationale for the appeal is not given in EEOC’s final decision. However, that decision affirmed the judge’s findings and award.

For those of you clinging to the belief that EEOC’s decisions are well-founded and fair, check out how the judge and the Commission rationalized that the supervisor reprised against the employee:

From the decision: “While the supervisor testified at the hearing that Complainant’s performance problems began in the summer of 2009, the supervisor had rated Complainant as ‘fully successful’ or better on June 30, 2009, and the ‘performance appraisal reflects no references to any of the alleged multiple performance problems that the supervisor now asserts as the basis for the Complainant’s termination.’”

  • FELTG Analysis: Well OF COURSE the appraisal given on June 30 was satisfactory. The supervisor testified that the employee’s problems didn’t start until the “summer. According to The Google, summer begins in the northern hemisphere (the relevant hemisphere herewith) on June 21. The successful performance rating given the employee for the first six months of 2009 is irrelevant to the employee’s unsuccessful performance the last six months.

From the decision: “The AJ further noted that Complainant had received a Special Act Award from the Deputy Director during the period his performance was supposedly problematic.”

  • FELTG Analysis: A Special Act award is based on an “act or service in the public interest in connection with or related to official employment.” 5 CFR 451.104(a)(2). It is defined as separate from an award based on an employee’s performance, 5 CFR 415.104(a)(3). Special Act awards are given for beneficial suggestions, acts of heroism, a reduction in paperwork, and other non-performance accomplishments that contribute to an efficient government. 5 CFR 41551.104(a). I once received a Special Act award because I helped a disabled employee down a stairway when there was a (minor) fire in the office. It is irrational to conclude that an employee who received a Special Act award necessarily is a successful performer.

From the decision: The AJ concluded that the supervisor’s statements regarding the employee’s failure to report to work during a snowstorm were false (“a sham,” “outright prevarication”).

  • FELTG Analysis: Yielding to the judge’s conclusion that the supervisor was “prevaricating” about the snow storm incident, what about the other five or six incidents of unacceptable performance on which the probationary termination was based? Is the Commission drawing the conclusion that since the supervisor’s testimony about the snow storm incident is not to be believed, the other incidents also are not to be believed? If EEOC is going this way, that’s quite a stretch, and not one that they’ve specifically laid out as a conclusion. The decision is silent as to the other bases for the removal, without explanation.

Evidence is often in the eye of the beholder. But a rational explanation (or lack thereof) is something we all can appreciate. Without one, we all have trouble believing in EEOC’s decisions, even though without exception, we all wish that they were always rational and correct. Sadly, they are not.

And for those of you who are still believers, there’s no such thing as a tooth fairy, either. So get rid of those left over teeth and warn your managers that you’re going to lose some cases that go to EEOC, whether you deserve to, or not. Wiley@FELTG.com