Reason #37,129 NOT to Issue a Letter of Warning: EEO Complaint Edition
By Deborah J. Hopkins, July 18, 2023
It may be one of the most written-about topics in this newsletter, but we keep writing because we keep seeing cases where employees challenge letters of warning, caution, counseling, and the like, and agencies get tied up in litigation for years as a result.
Look at Shad R. v. USPS, EEOC Appeal No. 2022004404 (May 11, 2023). The complainant in this case was a sales/service/distribution associate at a postal facility. The agency issued him two letters of warning (LOW):
- On 23, 2021, the LOW charged the complainant with “Hazmat Question/Work Performance/Failure to Follow Instructions.” The supervisor said that the complainant “did not ask the Hazmat Question at all, did not give customer his full attention, did not apologize to the customer for making her wait, did not suggest extra services, and did not offer any additional items for the customer. Complainant was also not wearing his uniform, but rather was wearing an apron.”
- On March 6, 2021, the LOW charged “Conduct/Failure to Follow Instructions.” The LOW specified that, the complainant failed to remove his personal items from the retail window and workroom floor, despite an order to do so.
According to the record, the February LOW was rescinded, and the March LOW was grieved and proceeded to arbitration, with the outcome of the arbitration unknown. The complainant filed an EEO complaint over the two LOWs, alleging that the agency discriminated against him and subjected him to a hostile work environment on the bases of:
- Race (Latino),
- National origin (Hispanic),
- Sexual orientation (gay),
- Religion (Satanism),
- Disability (HIV, anxiety, and depression), and
- Reprisal for prior protected EEO activity.
The supervisor (S1) who issued the LOWs “explained that the February LOW resulted from her personal observations of Complainant’s interaction with a customer. S1 also explained that she issued the March LOW because Complainant had multiple personal items in the workplace, including an inappropriate picture of a woman, and he did not remove them.” In his defense, the complainant asserted, among other things, “the March LOW was improper because, as a gay man, he does not objectify women.”
The EEOC affirmed the Final Agency Decision which found no discrimination or harassment. In other words, the agency had a legitimate, non-discriminatory reason for warning the employee. That said, had the warnings been issued orally or via email and NOT put on letterhead, most likely the complainant would not have felt aggrieved for the purposes of filing a union grievance or an EEO complaint. Something about non-disciplinary actions being out on letterhead escalates things to a level where an employee wants to challenge, rather than heed the warning. We’ll discuss this plus a lot more on July 26 during the two-hour virtual training No Need for Fear: A Guide to Navigating EEO Challenges for Supervisors and Advisors. Hopkins@FELTG.com
Note: after publication, FELTG heard from a previous USPS employee who informed us that per its CBA, a Letter of Warning counts as formal discipline for certain USPS employees. The principle about LOWs remains the same, but in the case above it may have counted as discipline.