The FLRA Is Back In Business

Yesterday, Carol Waller Pope and Patrick Pizzella were sworn in as Members of the FLRA. Ernest DuBester, an already seated Member, was also appointed to a second term. The FLRA lacked quorum for all of 2013. These appointments complete the membership, and the Authority is back in business.

Authority decisions can be read here: www.flra.gov/authority_decisions

For more on the FLRA and its governing laws, see A Guide to Federal Labor Relations Authority Law and Practice by Broida, Principles of Federal Sector Arbitration Law by Broida and Davis and Collective Bargaining for the Federal Sector by Frank Ferris.

Revisiting the Knowledge - Timing Test

by Natania Davis

In Rumsey v. Department of Justice, a recent whistleblower case, the Board rejected an AJ's finding that "appellant's 2008 performance appraisal was not a 'personnel action' because her 2007 and 2008 appraisals were the same and the 2008 appraisal therefore was not 'lowered.'" The Board reasoned that nothing in 5 USC 2302 requires that a contested performance appraisal be lowered from previous years in order to constitute a personnel action. The Board further concluded that cancellation of appellant's telework agreement was a significant change in working conditions and constituted a personnel action under 5 USC 2302.

As to the knowledge-timing test, the Board found that a personnel action taken within approximately one to two years of an appellant's disclosure satisfies that test in a whistleblower reprisal case.

For more on whistleblower reprisal, see A Guide to Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Fowler and Vitaro, A Guide to MSPB Law and Practice by Broida and MSPB Case Summaries by Broida and Davis.

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Reassignments and Sexual Harassment Claims

by Natania Davis

Agencies, one more time. When an employee alleges sexual harassment, do not reassign that employee unless he or she specifically requests it. This is true even if the reassignment is to put distance between the employee and the alleged harasser.

Moore v. Department of Education, Appeal No. 0120111258 (August 15, 2013), is a good example of such a case with a little twist. The complainant alleged having reported sexual harassment on several occasions by her supervisor to higher level officials. Because of the harassment, beginning in February 2008, she asked to be reassigned more than once. Management maintained that complainant did not notify them of the harassment until November 2009, at which time, management reassigned her. That particular reassignment, according to complainant, was undesirable.

Complainant alleges that she complained to Person C about Person A's inappropriate behavior in February 2008, and requested a reassignment. Complainant claims that Person C told her she did not believe Complainant and that Complainant should seek other employment if she was unhappy with her current job. Complainant explains that in March or April of 2009, she told Person E (Director of the Grants and Service Team, RMS) of the inappropriate physical action from Person A. Complainant states that Person E told her to report Person A's behavior to Person B. Complainant also notes that she told Person F (Grant Policy and Procedures Team Leader, RMS) that she had experienced inappropriate physical touching from Person A. Additionally, Complainant alleges that she told Person D in March 2009, about the inappropriate touching and asked that he reassign her to another section within the Department. She states that she met with Person D in October 2009, again about harassment and reassignment.

The agency found that "it exercised reasonable care in reassigning Complainant from the direct supervision of Person A in order to prevent and correct promptly any sexually harassing behavior, and that Complainant was unreasonable in failing to take advantage of new supervision provided by her employer." The Commission disagreed:

Appropriate corrective action is a response that is reasonably calculated to stop the harassment. The only corrective action the Agency identified in its final decision was reassigning Complainant to another position. We find that transferring Complainant to an undesirable reassignment was not appropriate corrective action. Specifically, the Commission has stated that corrective action should not adversely affect a complainant. In the present case, the Agency's action of requiring Complainant to accept an undesirable reassignment adversely affected Complainant. Moreover, despite the Agency's contentions to the contrary, the record contains no evidence that Complainant unreasonably failed to take advantage of corrective actions it offered. Upon review, we find the Agency failed to show by a preponderance that it took appropriate corrective action.

As for the remedies for this sexual harassment, the remedies shall include, in part, offering Complainant the opportunity to return to her former or substantially equivalent position without supervision by Person A.

Furthermore, regarding the reassignment in issue (6), we note that an employer may need to take intermediate action pending the investigation of a claim, such as transferring the alleged harasser, to ensure further harassment does not occur. However, the Commission has further stated that a complainant should not be involuntarily transferred or otherwise burdened, because such measures could constitute unlawful retaliation. See EEOC Enforcement Guidance, at 21-22 (June 18, 1999). We find no legitimate, non-discriminatory reason for Complainant's involuntary reassignment. Rather, we find that the transfer was due to retaliation for Complainant's claims of sexual harassment. See Abrigo v. Department of Homeland Security, EEOC Appeal No. 0120064230 (September 15, 2008).

There you have it, folks. Even where an employee repeatedly requests a transfer due to allegations of sexual harassment, agencies would do well to consult with and gain the specific consent of the alleged victim before making that reassignment.

For more on sexual harassment claims, see Combating Sexual Harassment by Corum, Federal Sector Sexual Harassment Law by Laws and Hadley and EEO Update by Vitaro, Goodfriend, Gilbert and Sumner.

Legislation Tracking Employment Non-Discrimination Act

by Natania Davis

Last week, the Senate passed the Employment Non-Discrimination Act of 2013 (S. 815), a bill that would ban workplace discrimination based on sexual orientation and gender identify, in a 64 to 32 vote.

A companion bill, H.R. 1755, is pending in the House of Representatives, where the bill is expected to receive far more scrutiny.

For more information on sex based discrimination and related topics, see Combating Sexual Harassment by Corum, Compensatory Damages and Other Remedies by Gilbert, and Best of the Commission by Hadley.