UNION REP TEST#13- (Loss of Status)

Assume that a supervisor gets upset with an employee, who has long had special status in the work group and takes all that away from her.  Up until this run-in with the supervisor, this employee was the acting manager whenever the supervisor was gone, the expert everyone was directed to when they had technical questions, trained all newcomers, given all the public speaking opportunities the group had, and was allowed to pick the most interesting cases to work on rather than have them assigned to her randomly.   What can you do for the employee if the supervisor does not downgrade her?

ANSWER: You can’t file an adverse action appeal under 5 USC 7511.  Those are limited to removals, demotions and suspensions of more than 14 days. This is not even a disciplinary action. You could try to use your relationships with the supervisor or his superiors, but assume that gets you nowhere as well. But do not despair because you have other options.

One is to look for grounds to allege civil rights discrimination of some kind because those statutes have a different definition of an adverse action. Under civil rights law you can challenge management’s decisions if the employee experience[d] an extraordinary reduction in responsibilities constituting materially adverse action.  A recent Circuit Court of Appeals decision put it this way:

We have previously held that “reassignment with significantly different responsibilities … generally indicates an adverse action,” . . . and Youssef alleged that such a reassignment occurred. In his complaint, Youssef alleged that his position in DocEx “[did] not utilize [his] skills and expertise” and that “his primary duty was to tag and process evidence at an offsite facility” located in the basement of a Virginia warehouse. . . . He also claimed that one of his co-workers at DocEx was a Grade Level 11 non-agent (four levels below his), Pl.’s Aff. ¶ 118, May 12, 2006, and that his supervisors were grade levels below him, “a situation [he] had never encountered throughout [his] entire Bureau career,” id. Unlike the two positions he held prior to his transfer, at DocEx he supervised no one. Appellant’s Reply Br. 14. We conclude that a reasonable juror could find that Youssef “experience[d] an extraordinary reduction in responsibilities” constituting materially adverse action under Title VII. (See Youssef v. Dep’t. of Justice, D.C. Cir., July 20, 2012)

Another court put it this way.

Adverse employment actions are not confined to hirings, firings, promotions, or other discrete incidents. . . .So long as a plaintiff meets the statutory requirement of being “aggrieved” by an employer’s action, 42 U.S.C. § 2000e-16(c) (2000), we do not categorically reject a particular personnel action as non-adverse simply because it does not fall into a cognizable type. . . .At the same time, our cases have established some limits to what constitutes an adverse employment action. Although “purely subjective injuries,” such as dissatisfaction with a reassignment, public humiliation, or loss of reputation, are not adverse actions, the threshold is met when an employee “experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” . . .We have also expressly recognized that “reassignment with significantly different responsibilities . . . generally indicates an adverse action.” See Holcomb v. Powell, 433 F.3d 889 (D.C.Cir., 2006)

There is no guarantee that EEOC or an arbitrator will agree that the facts we outlined above about this hypothetical employee constitute and adverse action, but at least you have a shot. (The post immediately below this one is a very recent EEOC decision dealing with the same issue that might be even more helpful.)

Another option you have is to file a ULP claiming that management changed working conditions without advance notice and bargaining with the union.  Not only has the supervisor changed the working conditions of the employee in question, but, in all likelihood, the supervisor changed the working conditions of everyone in the group.  While they may have been formally responsible for these duties, the past practice was that no one other than this single employee had to perform as the acting manager or do public speaking chores.  Moreover, in the past they had a management-endorsed technical source of information to turn to other than the supervisor and the most challenging cases were siphoned away from them.   Consequently, those modifications to their work lives will be seen as changes that must be formally announced in advance and bargained.

Another potential change is that rather than respond to the employee by disciplining her or taking some other traditional action, the supervisor reduced her status and influence.  If that has not been done before, the status reduction alone may be a negotiable change.

Finally, don’t overlook the idea of initiating midterm bargaining over procedures and protections to deal with a loss of work status.  Even if the changes do not constitute changes that had to be negotiated in advance of implementation, the union may have the right to exercise its right during the life of any term agreement to open supplemental negotiations to deal with an issue not previously addressed.  Management just might be willing to make a deal to avoid having to bargain a term contract supplement to deal with the issue.  A decent proposal might be as follows: “Management will act fairly and equitably when taking actions that amount to an extraordinary reduction in responsibilities constituting materially adverse action.”

Originally posted August 28, 2012