The President has issued Executive Orders that greatly discourage from treating similarly situated employees the same when taking action for poor performance. He wants the path clear for a manager to clobber one employee while coddling another even though they have the same performance deficiency.  That is his idea of fairness.  We will soon see whether the courts allow his Orders to take effect, but in the meantime let’s look ahead to what employees and their representatives will be able to do if they do become effective.

Back in 1999, managers at the Dept. of Veteran Affairs did exactly what this President now urges everyone to do. They decided to immediately strip one Assistant Chief of her responsibilities and reassign her while they let another Assistant Chief with similar performance problems have a performance improvement period before taking action against her. The first employee filed an EEO complaint alleging discrimination because the other Assistant Chief was of a different race.  It was a classic case of disparate treatment, which is precisely how EEOC saw it.  The Commission began by saying it did not believe the agency’s explanation for why it handled the two employees differently. “First, we find that AD’s explanation for treating appellant’s performance problem differently than that of the White Assistant Chief is not credible. AD labeled both situations as performance problems, but she did not provide appellant with the similar opportunity to undergo a performance improvement plan. AD’s only explanation for the disparate treatment was that appellant’s problem involved patient care. We find that this is not an adequate explanation for the disparity in her treatment of her two subordinates.” It also found that the problems the agency did have with the complainant’s performance existed throughout the VA facility.

Consequently, EEOC reversed the agency’s decision, awarded the employee compensatory damages, ordered the agency to retain the offending VA managers in EEO matters, and required the VA to consider taking “corrective action” (aka discipline) against the two managers.  If back pay had been involved the employee likely would also have received a big bundle of cash in attorney fees. Check out Wine v. West, Secretary of VA, EEOC No. 01972814 (1999).

This kind of defense is going to be available whenever an agency official follows the President’s advice to not treat similarly situated employees differently and one of them is of a different race, gender, color, national origin, age class, disabled, etc.  It is a really stupid idea, but then again look at the source.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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