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News and Case Alert
Issue #4-6
In this issue...
IRA: Normal Channels of Reporting
Supreme Court to Decide Who Qualifies as a Supervisor



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Consolidated Federal
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2004-2012

By: Vitaro, Goodfriend & Gilbert
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Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through 2011 and reviews EEO laws, regulations, guidance, and recent trends, Arranged by subject matter areas of employment discrimination jurisprudence and further categorized alphabetically for ease of use. (more info)



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This how-to handbook traces the EEO counselor's responsibilities through the complaint process. Especially important for new counselors, the text offers a clear explanation of counselor's role in assembling information and interacting with the complainant and managers. (more info)




EEO Counselors' and Investigators' Manual

By: Hadley & Sumner
Price: $190.00
Sku: 12ECIM
Edition: 2nd/2012
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This manual is a comprehensive, easy to follow, and insightful guide to counseling and investigating EEO complaints. (more info)


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IRA: Normal Channels of Reporting

Farrington vs. Dept. of Transp., 2012 MSPB 85

(July 16, 2012)

by Natania Davis

In Farrington vs. Dept. of Transp., 2012 MSPB 85 (July 16, 2012), the MSPB further defined what constitutes "normal channels of reporting" for IRA cases. Appellant, an Aviation Safety Inspector, alleged that the agency removed her and committed other prohibited personnel actions against her in reprisal for making protected disclosures concerning inadequate funding for surveillance of certain airline flight attendant training programs and deficiencies in flight attendant trainings. Appellant made her disclosures to the Division Manager, who was appellant's fourth or fifth level supervisor and whose office was located in a different state, and to the National Transportation Safety Board Inspector.

Noting that disclosures made outside of normal channels may qualify as protected disclosures, the Board observed that the phrase "normal channels" has gone undefined.

[C]onsistent with the court's use of the term in Huffman [v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001)] and subsequent decisions, we believe that the term "normal channels" should be given its commonly understood meaning, i.e., the employee conveyed duty-related information to a recipient, who in the course of his or her duties, customarily receives the same type of information from the employee and from other employees at the same or similar level in the organization as the employee. Some of the factors relevant to this determination are: whether the communication complies with the formal and informal customs and practices in the employee's workplace for conveying such information up the chain of command; whether the organization enforces a strict hierarchical chain of command requiring that communications must go through lower level supervisors before being elevated to higher management; and whether the information was conveyed to the recipient in the organization's commonly accepted manner or method for presenting such information for management consideration.


The AJ found appellant's disclosures to the Division Manager were within the normal channels because the Division Manager had subject matter expertise to understand the disclosures. The AJ's reasoning, the Board found, was in error. "Nothing in Huffman or any other published decision issued by the Board or the court expressly or implicitly supports the interpretation that subject matter expertise of the official receiving a disclosure is determinative of whether the disclosure was made within normal channels."

With respect to whether appellant's disclosures were within her normal duties, the Board held that the frequency with which an employee is called upon to perform a stated duty has not been identified as a relevant consideration. That may include duties performed on a sporadic or one-time basis.

For more on protected disclosures, see A Guide to the Whistleblower Protection Act & Related Litigation, 2nd Edition by Fowler and Vitaro, MSPB Case Summaries by Broida and Davis and A Guide to MSPB Law and Practice by Broida.


Supreme Court to Decide Who Qualifies as a Supervisor

Vance v. Ball State University, No. 11-556 (June 25, 2012)

by Natania Davis

The Supreme Court recently granted certiorari in Vance v. Ball State University, No. 11-556 (June 25, 2012). Appealed from the Seventh Circuit, Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011), calls upon the Court to elucidate who qualifies as a supervisor for purposes of employer liability in a hostile work environment case.

An employer is vicariously liable for severe and pervasive harassment committed against an employee by a supervisor. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Absent proof of negligence, however, an employer cannot be held liable for harassment committed by a coworker. Id.

Before the Seventh Circuit in Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011), Vance argued that three of her alleged harassers were supervisors because they had the authority to direct and oversee her daily work. In rejecting that argument, the Seventh Circuit noted:

Under Title VII, "[a] supervisor is someone with power to directly affect the terms and conditions of the plaintiff's employment." Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 506 (7th Cir. 2004). That authority "primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee." Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002) (internal quotation marks and citations omitted). We have not joined other circuits in holding that the authority to direct an employee's daily activities establishes supervisory status under Title VII. See Rhodes, 359 F.3d at 509 (Rovner, J., concurring) (arguing for a broader standard of supervisor liability based on EEOC guidelines).


A split among the circuit courts has the Supreme Court considering:

Whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth "supervisor" liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or, as the First, Seventh, and Eighth Circuits have held (ii) is limited to those harassers who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim.


http://www.supremecourt.gov/qp/11-00556qp.pdf

The Court is poised to settle this split in the fall of 2012.

For more on EEO related matters, see EEO Counselors' and Investigators' Manual by Hadley, A Federal EEO Counselors Manual by Corum, and Consolidated Federal EEO Update by Vitaro, Goodfriend, and Gilbert.


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