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Forecast: Chilly Weather in EEO
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| The Equal Employment Opportunity Commission is the watchdog that Congress assigned to protect federal and postal workers from discrimination in the workplace. But, as anyone who has ever had dealings with the Commission can tell you, it is sometimes difficult to tell just who the Commission thinks it is supposed to protect. A recent Long Beach, California case makes it clear that the Commission all too often forgets its Congressionally mandated duty and relaxes its vigilance. At such time, it seems to consider its job to be nothing more than a public relations function for the government: providing the illusion--but not the substance--of justice. In Joyce M. Sanford v. United States Postal Service, Appeals Nos. 01994955, 01A01366, 01A22650 (09-12-02), the complainant had filed several EEO complaints in an on-going effort to stop blatant sexual harassment by a coworker. Finally, after receiving a third final agency decision which predictably found that there was no sexual harassment, the complainant turned to an attorney for help. In his appeal brief, the attorney pointed out serious deficiencies in the EEO investigation and produced evidence indicating that the complainant was telling the truth. The Commission agreed and ordered the Postal Service to conduct a supplemental investigation. In doing this, the Postal Service gave management the luxury of plenty of time on the clock to respond to the investigator’s questions. However, it held off on delivering affidavit requests to non-managerial witnesses until the very last minute and then refused the witnesses official time to respond. In some cases, non-managerial witnesses had as little as two hours to respond while on the clock. As a result, many witnesses could not respond on time, and the Postal Service investigator claimed that they had been nonresponsive and uncooperative. At this point, a miracle happened. Sixteen Postal Service employees put their necks on the line to stand up for a coworker in need. These brave men and women told the Commission how the Postal Service had tried to prevent them from testifying and then they confirmed the truth of the complainant’s story. In the face of this overwhelming evidence, the Commission did the right thing and found that the complainant had suffered from ten years of on-the-job sexual harassment. Ultimately, the Commission awarded the complainant in excess of one hundred and seventy thousand dollars after the Postal Service had attempted to offer her a measly twelve thousand dollars. Joyce M. Sanford v. United States Postal Service, Appeal No. 01A31818 (May 13, 2004). In the wake of this victory, a horrendous storm began brewing in Long Beach. Barely more than one month after the Commission released its decision, the Postal Service abolished twenty-one bid jobs. Seven of these bid jobs were those of principle witnesses in Sanford. This was strange. First, one must consider that Long Beach P&DC employs more than five hundred Mail Processing Clerks. That means that these seven people form barely more than one percent of the total workforce of Mail Processing Clerks. In order to abolish even one of these jobs, the Postal Service had to pass over more than ninety-nine other clerks. Second, one out of every three bid positions abolished was that of one of the witnesses. It doesn’t take a rocket scientist to realize that this doesn’t make sense. Over five hundred employees; twenty-one positions abolished, and yet a third of those abolished positions just happen by strange coincidence to belong to a Sanford witnesses? Get real! The math does not add up! Third, and even far stranger, one of the abolished bid jobs did not even exist. This position was that of a clerk who had stopped working for the Postal Service more than two years before she gave her statement about the ten years of sexual harassment. How does one abolish a nonexistent job and then claim that job was abolished as the result of a careful study of manpower needs? You cannot abolish that which does not exist. Plus, remember how big this postal facility is. There are more than five hundred clerks there. Given the large number of people who have worked in this place, does it stand to reason that a random administrative error would just happen to hit upon someone who was a witness in Sanford? Does that make sense? Or, is it too incredible to be coincidental? Something does not smell right here. Soon after the jobs were abolished, the affected witnesses filed EEO complaints. In doing this, they were between a rock and a hard place. The Commission requires people to file an EEO as soon as they so much as suspect that they have been discriminated against. As a result, many complainants are easy pickings for the Postal Service. If you wait to get evidence, your case is dismissed because you filed too late. If you file without evidence, you lose because you didn’t prove your case. So a great many EEO cases are a classic Catch-22 situation: damned if you do and damned if you don’t. So the complainants in the new reprisal case went into the investigation with no real information other than the Postal Service claimed to have abolished their job positions because of a manpower study that management was unwilling to release for their review. A rock and a hard place, indeed. For those who are unfamiliar with EEO investigations, an explanation is in order. EEO investigations are a strange animal. The best way to understand them is to imagine the following: your next door neighbor has been eyeing your new, big-screen plasma TV for weeks. One night, you come home and find that your TV has been stolen. The next day, you learn that your next door neighbor has a new, big-screen plasma TV. So, you call the police to ask them to investigate. The police respond, "Oh, no. We can’t investigate. We are required to allow the accused criminal to handle the investigation." That’s an EEO investigation. The Postal Service investigates and makes decisions about complaints against itself--with frequently predictable results. During the investigation, the complainants were unable to produce conclusive evidence because there is no mechanism for complainants to demand documents from the Postal Service during the investigation. In fact, investigators are free to ignore any suggestions by complainants with regards to witnesses and evidence. Indeed, it is commonplace for an investigation to consist of nothing more than a statement from the complainant and statements from management. The investigator frequently does not contact witnesses or seek out information helpful to the complainant. In this case, the Postal Service filled up the report of investigation with a series of national level documents about manpower changes in the Postal Service. Anyone who works for, or is knowledgeable about, the Postal Service has been seeing these generic plans since the Stone Age. The rest of the file was handwritten notes, unsigned and undated, and a series of after-the-fact email. The Postal Srevice did not produce a local manpower study. Now, to truly understand this case, it is necessary to know what was going on, behind the scenes, with the previous case. In the original Sanford case, the Commission had ordered the Postal Service to issued a compliance report and send a copy to the complainant in that case. Well, the time for the report came and went. Despite several complaints to the Postal Service and the Commission, BOTH the Postal Service AND the Commission ignored the complainant’s requests for a copy of the report for many, many months. Suddenly, after the EEO investigation in the reprisal case closed, the Postal Service finally released a copy of the report to the complainant. Anyone with a suspicious mind (or half a brain) would suspect that the Postal Service deliberately withheld the report to prevent the complainants from making use of it during the reprisal investigation. This suspicion would increase upon reading the report. The compliance report contains an official explanation, on the record, to the Commission about the job abolishments. This explanation was written only days after the jobs were abolished and seems to be intended to give the Commission a heads up on the situation. In that compliance report, the Postal Service told the Commission:
Although the Postal Service claimed it had abolished only those bid job positions which had only one city scheme and that "[b]ids with more than one scheme were retained," the simple fact was that only two of the twenty one positions had one scheme. The rest had two or more schemes or else (in three cases) were bid positions which did not even involve the use of schemes (SPBS machine operators). It is clear that this explanation was completely false. On appeal, the complainants used this explanation to argue that the Postal Service was aware of their protected activities as EEO witnesses and had chosen to retaliate against them. They showed that the Postal Service’s explanation in the compliance letter was false and unworthy of belief. The Postal Service responded by producing an affidavit from the man who wrote the compliance letter. He claimed that he did not have any first hand knowledge about the job abolishments; that he wrote the compliance letter without the foggiest clue as to what he was writing. The Postal Service won. The Commission refused to hold the feet of the Postal Service to the fire. In essence, the Commission refused to ask the obvious questions that any intelligent and fair-minded person would ask: who told this guy to write this report? Why was the report written? If the Commission had been fair, the outcome would have been different. Instead, the Commission said that the fact that only two of the twenty one jobs had only one scheme proved nothing. The Postal Service's explanation could still be true. In the end, the Commission's decision came down to nothing more than that, despite the evidence, the Commission CHOSE to believe the Postal Service. This is not an exaggeration. This is what the Commission said in the final paragraph of the decision in this case. In brief, the Commission CHOSE to demand nothing less than a smoking gun or a signed confession. The Commission refused to look at the evidence objectively using common sense. In choosing to do this, the Commission implicitly decided:
In many ways, this last remark was the most astonishing because it was rather explicitly stated. A careful reading of the decision reveals that this is the logic at the heart of the Commission's decision. This is the fundamental reason why the Commission chose to decide this case the way that it did—because the Commission has a naive and misguided belief that there is no such thing as a sacrificial lamb or an innocent bystander. As the Commission said:
According to the Commission here, it is contrary to human nature to harm innocent bystanders when striking out in reprisal for real or imagined wrongs. Clearly, the Commission learned nothing from 9/11. The Commission’s theory of human nature and reprisal is quite novel and contrary to human experience. Applying the Commission's logic to 9/11, the Commission must believe no one died on 9/11 who did not deserve to die because it is contrary to human nature to harm innocent bystanders in an effort to harm one's actual target. The Commission is wrong. This is perhaps one of the most important EEO decision in many years. It contains important lessons for management, such as:
Follow these simple instructions and you will win every time. An autumn chill is in the air and hunting season has come to EEO-land. With this decision, the Commission has given the Postal Service and federal agencies the green light to declare open season on employees who testify against the agency in EEO cases. From now on, it is going to be much easier for agencies to offer up some sacrificial lambs as the bait for hunting the game they really want. The silver lining behind the dark clouds here is that it is not too late for the Commission to undo the harm it has done with this totally misguided decision. You can influence the Commission to take another look at this case. Unless you want reprisal to become as easy as eating apple pie, write: Ms. Cari M. Dominguez Chair U.S. Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, D.C. 20507 Phone: (202) 663-4900 TTY: (202) 663-4494 Urge the Commission to reverse their decision in Joyce M. Sanford et alia v. United States Postal Service, Appeal No. 01A53118 (February 10, 2006) before it becomes too late to undo the harm done. If you are not comfortable writing, then ask your family and friends to write. Even if you don’t have an EEO pending or aren’t a witness in an EEO, you could still be the next sacrificial lamb like the fourteen innocent bystanders at Long Beach. Postal employees don’t need to be told what kind of an employer the Postal Service is. They already know. They should also know that the Postal Service wins by picking off its victims one by one. They lose when employees stand together in solidarity. But, act fast, because time is fast running out for the Commission to undo this. DISCLAIMER
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