Washington DC Employment Law Attorneys Blog

News from the Supreme Court: High Court to Decide Where Some Appeals of MSPB Decisions Get Filed

2012-01-24T13:00:00Z

This news from the Supreme Court: On January 13, 2011, the Supreme Court announced that it would hear an appeal in Kloeckner v. Solis, Secretary of Labor. The case asks the Court to clarify how federal employees can appeal certain adverse personnel actions where the action is challenged as discrimination or EEO reprisal ("mixed cases"). Specifically, the Supreme Court has to decide this question: "If the MSPB decided a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?" Under present statute, mixed cases are heard on the merits by the Merit Systems Protection Board ("MSPB"), which adjudicates both the personnel action appeal and the discrimination argument. The issue on appeal to the Supreme Court is what avenues of appeal are open to employees after the MSPB has heard the case. For cases where the MSPB's decision expressly rules on both the discrimination claim and the personnel action, the law is clear: the employee has the choice between either appealing the personnel action only to the Court of Appeals for the Federal Circuit (dropping the discrimination claim), or else taking the discrimination claim into federal district court on the discrimination theory (but lose the chance to overturn the personnel action on anything other than discrimination grounds). A split had emerged between the various Circuit Courts of Appeals as to how to handle the situation where the MSPB's decision on a mixed case is silent on the discrimination arguments (for example, because the MSPB dismissed the case for lack of jurisdiction without deciding the merits). Some courts hold that, when the MSPB does not rule on the discrimination claim, the sole avenue for court review is to the Federal Circuit. Others circuits have held that, when the MSPB does not rule on the discrimination claim in adjudicating a mixed case, the employee may, or indeed may only, take the case into federal district court on the discrimination issues. The Supreme Court will now have to decide which approach is correct.

News from the Whitehouse: President Proposes Executive Branch Reorganization

2012-01-23T16:15:57Z

This news from the Whitehouse: President Obama has proposed a sweeping reorganization of several executive branch agencies. Under the President's proposal, the present Department of Commerce would be split up, with some former Commerce divisions moved to other agencies (for example, the National Oceanic and Atmospheric Administration (NOAA) moved to the Department of the Interior). The remaining portions of the Commerce Department would then be merged with several other presently independent agencies and parts of the Executive Office of the President (Export-Import Bank, Overseas Private Investment Corporation, Office of the U.S. Trade Representative, the Small Business Administration (SBA) and the Trade and Development Authority) into a new cabinet-level agency. As a precursor to this reorganization, the President elevated the SBA to a Cabinet-level agency. To implement this reorganization, President Obama proposed reinstatement of 'fast-track' authority for government reorganizations. For much of the 20th century, Presidents had authority to propose large-scale reorganizations which were subject to limited debate and could only be voted up or down by Congress without further amendment (in a process with some similarities to 'fast track' authority sometimes granted for negotiating international trade agreements). Congress stopped renewing this 'fast-track' authority for government reorganization during the Reagan administration, and the authority lapsed in 1984.

At this time, whether the Congerss will grant this authority is unknown. Also unknown, is how any reorganization will affect the rights of federal employees.

Washingtonian Magazine Names Joseph Kaplan One of Washington DC's Best Lawyers

2011-12-01T13:00:00Z

Washingtonian Magazine has named Passman & Kaplan founding principal, Joseph V. Kaplan, one of Washington DC's "Best Lawyers" for 2011. The magazine's December 2011 edition identifies top lawyers by areas of practice. Joe Kaplan is listed in the "suing the boss" category -- the category for plaintiffs' employment lawyers. This is not the first time that Washingtonian has recognized Mr. Kaplan as one of Washington DC's Best Lawyers. The on-line link to the magazine will not be available until January 1, 2012.

Developments at the MSPB: Settlements Easier to Enforce

2011-09-20T16:30:38Z

Developments at the MSPB: The MSPB's recent decision, Kitt v. U.S. Navy, 2011 MSPB 82 (September 2, 2011), granting a petition to enforce a settlement agreement, expressly overruled a twenty-year-old decision which had made it difficult to enforce an arguably imprecise settlement agreement. This decision represents a common-sense approach to the interpretation of settlement agreements.

In Kitt, a pro se litigant fell victim to poor drafting in a settlement agreement under which the Navy agreed to reduce its proposed Removal to a 30-day suspension and a clean record. The actual wording required the Agency to "change" the nature of Employee's Standard Form 50 . . . from Removal to a 30-days Suspension. Ms. Kitt believed that by agreeing to this language Navy agreed to expunge her record of all references to the proposed removal. She found out otherwise when the Agency turned her down for a security clearance a year later, in part because her records still reflected the proposed removal. Ms. Kit then filed a petition with the MSPB claiming the Navy breached the settlement.

The Administrative Judge who who heard Ms. Kitt's petition disagreed that there was a breach, holding that the settlement language requiring a "change" in her employment records was not specific enough to require the records be "expunged" of the removal, citing the case Cutrufello v. U.S. Postal Service, 56 M.S.P.R. 99 (1992). On appeal, the full Board overruled Cutrufello.

Citing liberally to Webster's Dictionary for the meaning of "change," the Board concluded that when an agency agrees to "change" an action from a removal to a suspension, the Agency was agreeing to remove any record of the appellant's removal. The Board found the Navy in breach, and remanded Ms. Kitt's petition remanded so she can decide whether to enforce the agreement, or rescind the settlement and pursue her appeal on the merits.

Kitt is a good ruling for pro se litigants who may not have the sophistication to draft or agree to precisely-worded settlement agreements. This case is also a good example why able legal counsel helps employees avoid problems in pursuing MSPB appeals. Competent employment counsel would likely have insisted that the settlement language specifically require an agency to "expunge" the proposed removal and on language mandating that any and all references to the proposed removal be removed from the OPF.

If you are a Federal employee facing a similar adverse employment action, or needing assistance drafting a settlement agreement, you might want to schedule an "initial consultation" with one of Passman & Kaplan's attorneys.

MSPB Report: Employee Perceptions of Prohibited Personnel Practices At a Low

2011-09-09T19:14:23Z

Developments at the MSPB: In a report entitled, Prohibited Personnel Practices: Employee Perceptions, the MSPB detailed the state of prohibited personnel practices (PPPs) in the Federal workplace. The report was the culmination of a series of merit principles surveys conducted by the MSPB between 1992 and 2010. The list of PPPs is found at 5 U.S.C. § 2302(b), and specifically prohibits agency officials from: 1) discriminating; 2)considering improper recommendations; 3) coercing political activity; 4) obstructing competition or encouraging a candidate to withdraw from competition; 5) granting a preference not authorized by law; 6) engaging in nepotism; 7) retaliating for whistleblowing or the exercise of a grievance or appeal right; 8) knowingly violating the preference rights of a veteran; or 9) engaging in other actions that would violate a law, rule, or regulation that implements the merit systems principles.

The results of the report were encouraging, but also served to reinforce just how damaging a single occurrence of a prohibited personnel practice can be to the operations and cohesiveness of the workplace. Among the findings from the report was that perceptions of occurrences of most PPPs was at an 18-year low. For example, whereas 13.4% of Federal employees reported experiencing race discrimination in 1992, this figure had dropped to 5.0% in 2010. Another example finds that whereas 19.1% of Federal employees reported perceptions that management officials meted out improper advantages to certain individuals in conjunction with competition for a job or promotion, this figure had dropped to 6.9% in 2010. Similar declines were reported for all of the other PPPs.

One alarming discovery contained in the study detailed the extent to which an employee's perception that others in the workplace had been subjected to a PPP had a impact on that employee's work environment, negatively affecting those employees' productivity, morale, and workplace cohesiveness. The report concludes by making some recommendations for agencies, including educating their workforces about PPPs, in particular their executives and supervisors. The report pays special attention to the need to educate political appointees, who may not have as much exposure to merit-based systems. The report suggests a standard memorandum from the head of the agency or cabinet department drawing attention to, and addressing PPPs.

For more information on PPPs and how to protect your rights in the workplace, check out the Federal Employees Legal Survival Guide, 2d ed, authored by the attorneys of Passman & Kaplan, PC.

More Employee Protection From the OSC

2011-08-31T12:00:00Z

Developments at the OSC: On August 11, 2011, the U.S. Office of Special Counsel (OSC) announced another case where OSC intervention resulted in a stay of an adverse action against an employee. OSC's action in the matter not only ultimately resulted in reversal of the adverse action for the employer, but further resulted in the employing agency--the U.S. Department of Energy (DOE)--changing its suspension policy across the board.

DOE employee Stephen Patrick worked as a nuclear materials courier. Due to allegations of misuse of government vehicle infraction, Mr. Patrick received a 30 day suspension, which he then appealed to the Merit Systems Protection Board (MSPB). A few months later, DOE managers revoked Mr. Patrick's certification to work with nuclear materials under DOE's Human Reliability Program (HRP). Under DOE policy, loss of a HRP certification resulted in a mandatory indefinite suspension. During this timeframe, Mr. Patrick contacted DOE's Office of Inspector General (IG) regarding his case. Mr. Patrick appealed the HRP certification loss within DOE, resulting in the decision by a DOE Deputy Secretary to reinstate Mr. Patrick's HRP certification 13 months later. However, lower-level DOE management implementing the Deputy Secretary's opinion decided that Mr. Patrick's HRP certification would not be automatically renewed, and instead required Mr. Patrick to reapply for HRP certification anew--resulting in Mr. Patrick yet again being placed on mandatory indefinite suspension. Under the DOE policy, employees suspended for loss of HRP certification were placed on unpaid leave and not entitled to back pay if the HRP certification was later restored.

Mr. Patrick then filed a complaint with OSC, alleging that DOE's second suspension was retaliation for Mr. Patrick's MSPB appeal and for his contacts with the IG, which would be protected whistleblowing. At the end of its investigation, OSC advised DOE Secretary Chu that DOE's mandatory suspension policy violated basic due process protections and recommended that Mr. Patrick be awarded back pay and that DOE revise its policies. On August 2, 2011, DOE announced that it was rescinding its mandatory suspension policy, so that henceforth DOE employees losing HRP certification would be placed on paid administrative leave. DOE further promised to revise its internal processes so that HRP certification appeals would be much faster than the 13-month delay that Mr. Patrick endured.

All employees should be free from a retaliatory work environment. Federal employees who believe they have been retaliated against for contacting an IG or invoking their MSPB appeal rights, or who otherwise have suffered from other prohibited personnel practices, should consult with attorneys experienced in handling these cases.

EEOC and OPM Promise Rigorous Enforcement of Equal Pay Laws

2011-08-29T17:15:52Z

This development from the EEOC and OPM: To improve the Federal Government's role as a model employer and to close the continued wage gap between men and women, the Equal Employment Opportunity Commission (EEOC) and the Office of Personnel Management (OPM) issued a joint letter in which they have pledged to ensure rigorous enforcement of the equal pay laws for all federal employees.

When the Equal Pay Act of 1963 was signed into law by President John F. Kennedy, women were paid on average $.59 for every dollar paid to men. While some narrowing of the pay gap has been achieved, today women are paid an average of $.77 for every dollar paid to men, and the numbers are worse for African-American women and Latinas. In 2010 President Obama established the National Equal Pay Enforcement Task Force, which brought together OPM, EEOC, the Department of Labor, and the Department of Justice to provide a roadmap for Federal agencies working to increase compliance with federal equal pay laws. The Task Force recommended that OPM and EEOC work together to ensure the most rigorous possible enforcement of the equal pay laws in federal sector employment.

According to their joint letter, the EEOC and OPM are working with the Government Accountability Office (GAO) to identify reasons for the wage gap and ways to close it. In the joint letter, the EEOC and OPM state that they are committed to ensuring equal pay for equal work without regard to gender or any other prohibited basis. The EPA requires that the federal government pay men and women equal pay for equal work. The jobs do not need to be identical, but they must be substantially equal. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize the pay. Title VII also makes it illegal for the Federal Government to discriminate based on gender in pay and benefits, therefore, an employee who has an EPA claim may also have a claim under title VII. Unfortunately, the letter provides no specifics other than the two agencies will work with GAO in an attempt to determine the root causes of pay disparity in the federal sector.

Employees are reminded that if they receive less pay based on gender, they would have claims against their employing agency under the Equal Pay Act and Title VII of the Civil Right Act of 1964. Employees are encouraged to discuss a violation of their rights with a knowledgable EEO professional in the agency or an attorney experienced in handling federal sector EEO claims. If you are interested in an initial consultation with a Passman & Kaplan attorney, you can easily request a consultation on-line through our web site.

OPM to Extend Appointment Benefit to Same-Sex Domestic Partners

2011-08-15T12:00:00Z

Developments at OPM: In a notice of proposed rulemaking published in the Federal Register on July 28, 2011, the Office of Personnel Management (OPM) proposed changes to existing regulations to extend an existing noncompetitive appointment authority for federal civil service positions to same-sex domestic partners. The notice of proposed rulemaking proposed revisions to 5 C.F.R. § 315.608. The present regulation provides a noncompetitive appointment benefit for federal employees and their immediate family members residing with them for cases where the federal employee had served 52 weeks or more at an overseas posting. The present regulation only includes spouses and children under age 23 who accompanied the federal employee; OPM's proposal would add domestic partners to that eligibility list, and incorporating a definition of 'domestic partner' into the regulation. In the background section of the notice, OPM explained that the proposed rulemaking was designed to implement two memoranda issued by President Obama aimed at extending benefits to qualifying same sex domestic partners that were previously reserved to married couples, within the bounds of present law. Comments on this notice of proposed rulemaking must be received by September 26, 2011.

The Notice of Proposed Rulemaking was published at 76 Fed.Reg. 45,204. For those individuals or groups who are interested in commenting, information for responding with comments are contained in the OPM notice. Developments at OPM during the Obama administation certainly show the President's agenda being put into effect.

For an understandable guide to federal employees' legal rights, check out the Federal Employees Legal Survival Guide, 2d ed, authored by the attorneys of Passman & Kaplan, PC.

Developments at the MSPB: More Due Process Protections

2011-08-08T12:00:00Z

Developments at the MSPB: The MSPB continues its assault on due process violations by agencies when taking adverse personnel decisions against federal government employees. In this latest example, a poorly written complaint by the Office of Special Counsel (OSC) violated the due process rights of government employee Jeffrey E. Smith by failing to place Mr. Smith on notice of his alleged violations, the MSPB recently held. OSC's complaint alleged that Mr. Smith violated the Hatch Act for engaging in political activity while on duty and while in a government building on a government computer. However, OSC's complaint lacked necessary particularity and supporting facts. The complaint failed to properly identify referenced emails and documents Mr. Smith allegedly drafted or edited, and it did not contain any attachments or copies of materials which constituted the bases for its charges. The MSPB made clear that outlining each specification of a complaint "is precisely what OSC is required to do," and that OSC's failure to do so prevented Mr. Smith from defending himself against OSC's allegations and did not inform the judge as to what must be adjudicated. The MSPB accepted an amended OSC complaint as a new complaint so that Mr. Smith may exercise his full procedural rights if the new complaint complies with constitutional and regulatory requirements. Special Counsel v. Smith, 2011 MSPB 69 (July 12, 2011).

For more information about procedures agencies must follow before removing federal employees, and the rights employees have to defend removals, check out Chapter 4 of the Federal Employees Legal Survival Guide, 2d ed. authored by the lawyers of Passman & Kaplan.

Whistlebower Settlement: Continued Signs of Life from the New Special Counsel

2011-08-04T13:54:09Z

Developments at the OSC: The U.S. Office of Special Counsel (OSC) recently reached a settlement agreement on behalf of whistleblower Ken Downey, a long-time supervisor with the Blaine (Washington) Sector Communication Center of the U.S. Department of Homeland Security's Customs and Border Protection (CBP). OSC investigations revealed that CBP illegally retaliated against Mr. Downey for making a series of whistleblower disclosures of agency misconduct by proposing to fire Mr. Downey, suspending him, transferring him indefinitely to another border patrol station, issuing him a reprimand, removing his supervisory duties, and failing to promote him despite a favorable recommendation from his supervisor.

Although the terms of the settlement agreement were not published, OSC has revealed that Mr. Downey obtained relief for the retaliation he suffered, as required by OSC's corrective action statute. In a press release, Special Counsel Carolyn Lerner commented that CBP and Mr. Downey have resolved their differences and Mr. Downey will continue his employment "as an integral part of management's team." Mr. Downey's success in obtaining relief with the help of OSC is a hopeful indication of the protections new Special Counsel Carolyn Lerner will afford government employees.

For information about whistleblower protection, check out Chapter 7 of the Federal Employees Legal Survival Guide, 2d ed.

OSC Obtains Stay from MSPB in Whistleblower firing

2011-07-28T12:00:00Z

Signs of Life at the Office of Special Counsel? The OSC recently obtained a stay from the MSPB in order to keep an employee of the Department of Homeland Security from being fired before his claim of reprisal for whistleblowing could be investigated. Perhaps this is a sign that new Special Counsel, Carolyn Lerner, is serious about trying to protect federal whistleblowers.

]]> On July 6, 2011, the U.S. Office of Special Counsel (OSC) announced that it had successfully received a stay order from the Merit Systems Protection Board (MSPB), protecting a whistleblower from termination while his whistleblower reprisal claim is pending. The whistleblower was an air pilot working for the Department of Homeland Security (DHS). The employee had blown the whistle by reporting a senior manager to his agency's Office of Inspector General for leaking information regarding an ongoing internal affairs investigation. At the time he blew the whistle, the employee was working under a 'last chance agreement' -- a settlement agreement which allowed him to continue working despite a prior disciplinary infraction, on condition that he could be summarily removed if he violates any of the terms of the agreement.

After the employee reported this leak to DHS' OIG, management began retaliating against him, stripping him of his service firearm and sending him for fitness-for-duty examinations. As a result, the employee was effectively grounded for over two years and was unable to perform his pilot duties, even though his 'last chance agreement' was supposed to permit him to continue working.

Earler this month, DHS fired the employee, allegedly under the terms of the 'last chance agreement'. OSC filed a request with the MSPB to stay this firing for 45 days to let OSC investigate. In its motion, OSC raised the novel argument that DHS has breached the 'last chance agreement' by retaliating against the employee for blowing the whistle. OSC argued that under that 'last chance agreement' DHS was to permit the employee to continue working. By preventing him from performing his pilot duties, DHS was not holding up its end of the deal, and thus ought not to be permitted to remove the employee under an agreement that it had already apparently broken.

The MSPB granted OSC's request, and issued an order staying the employee's removal, permitting him to continue working while OSC conducts its investigation.

If you believe that you have been the subject of whistleblower reprisal, contact our firm to inquire about obtaining representation. All employees should be free from a retaliatory work environment.

Federal employees who believe they have been retaliated against for engaging in protected whistleblowing, should counslt with attorneys experienced in handling these cases.

EEOC Report for FY 2010 Shows Continued Discrimination Against Fed Employees

2011-07-26T12:00:00Z

Developments at the EEOC: The EEOC's recently released FY 2010 Annual Report confirms that Federal Employees continue to experience discrimination in the workplace. The 16,480 individuals who filed discrimination claims in FY 2010 comprise a tiny proportion of the Federal Workforce (.3 percent of the overall Federal workforce, and .7 percent of the Executive Branch workforce), but the trend is still on the rise. According to the Report, "The number of complaints filed increased by 3.8% over the previous year and there was a 4.1% increase in the number of individuals who filed complaints over the same period."

Large Agencies with the highest complaint rates were the Department of Labor (.77%), the U.S. Postal Service (.75%) and the Social Security Administration (.72%); medium-sized Agencies with the highest complaint rates were the Government Printing Office (1.74%), The Federal Reserve System (1.26%), and the Broadcasting Board of Governors (1.18%). Notably, however, these latter three agencies also boasted the highest rate of pre-complaint resolutions in the Federal Sector, coming in at 91.9% resolved at the Federal Reserve; 72.3% at the Government Printing Office; and 65.6% at the Broadcasting Board of Governors. The Postal Service also reported one of the highest pre-complaint resolution rates for large agencies, 65.1%. One interpretation might suggest that higher EEO complaint rates don't always reflect that an Agency has a more discriminatory atmosphere, but rather, the presence of a robust, well-used EEO process that provides a strong chance of favorable resolution.

The Report also summarizes each Agency's EEO statistics for last year, including the Agency's average complaint processing time, average investigation time, overall compliance rates, rates of participation in ADR, and total expenditures for the EEO process, including investigation, settlement, and awards after hearing or appeal.

The Report also gives a potential claimant a ballpark figure on average EEO payouts at various stages of the complaint process. The Report listed average awards for pre-complaint ADR at almost $5500, and the average award for settling of formal complaints as $12,335. The report did not run an average award for decisions and settlements at the hearing and appellate stage, which were an aggregate value of $63.1 million, and $5.3 million, respectively.

The knowledge that Agencies are prepared to spend significant money to resolve complaints at the early and middle stages of EEO processing helps ease the sting of the discouragingly low number of findings of discrimination by an AJ after hearing--just 5.4% of all cases taken to hearing in 2010.

Fortunately, aggregate decision and settlement awards at the hearing stage are also trending upward. In FY 2010, Administrative Judge decisions and settlements at the hearings stage awarded $63.1 million in benefits, as compared to the $44.5 million in FY 2009 and the $51.9 million awarded in FY 2006.

"Part II" will be published later in the year, and will supposedly contain selected measures of progress made by agencies in FY 2010."

If you are a federal employee and have a complaint of discrimination, you might want to obtain an "initial consultation" with one of Passman & Kaplan's attornyes.

MSPB Reverses Another Removal For Due Process Violation

2011-07-20T12:00:00Z

Developments at the MSPB: This case represents another case from the MSPB where an employee's removal was reversed because the agency considered detrimental information in its decision-making process without sharing that information with the employee. Because the employee was not given the opportunity to rebut this information, the agency violated the employee's due process rights which requires a reversal of the employee's termination.

]]> The Department of Agriculture violated an employee's due process rights when one of its deciding officials removed the employee after considering information not contained in its proposal to remove, the MSPB recently held. In Pickett v. Department of Agriculture, the Agency took into account the employee's prior arrest and a newspaper article concerning the employee's supposed criminal conduct without providing notice to him that such information was being considered in making a decision about his removal. Because the employee did not know that the agency was considering this information, he did not address such issues in his oral or written replies. The Agency removed the employee after taking this information into account. Denying the employee the opportunity to address these issues turned out to be fatal to the Agency's decision, as the Board reversed the removal and ordered that the employee be reinstated with back pay. Pickett v. Department of Agriculture, 2011 MSPB 58 (June 3, 2011).

This case should warn Agencies of the need to provide employees notice of all information considered in a decision to discipline. Failing to do so can result in a procedural due process violation which can invalidate an Agency's disciplinary decision altogether.

You may want to consult with a P&K lawyer if you are threatened with discipline

MSPB Reverses Firings For Due Process Violations

2011-07-14T12:00:00Z

The MSPB held in two cases, involving related issues, that a deciding official's consideration of information to enhance penalties violated an employee's due process rights where the employee was not put on notice of the consideration of new evidence. Both cases involved a deciding official improperly considering new and material information, but failing to inform the employee in the notice of proposed action that such information was being considered. The Administrative Judge in Thomas did not fully address the potential due process violation, while the Administrative Judge in Gray found that Mr. Gray failed to prove a violation of his due process rights. The Board reversed Gray after finding that the information the deciding official considered was "new and material," and remanded Thomas for further inquiries. Thomas v. U.S. Postal Service, 2011 MSPB 62 (June 14, 2011) and Gray v. Department of Defense, 2011 MSPB 64 (June 17, 2011).

These cases stand for the principle that employees are entitled to know, not just all of the evidence used against them to uphold a charge of misconduct, but are also entitled to know all of the reasons relied upon to support a particular penalty, such as a removal. If an agency deciding official relies on information to enhance a penalty, and that information is not shared with the employee so that the employee can present a response, the entire case aganist the employee may be thrown out by the MSPB. If the employee had been terminated, that means the employee would be reinstated to his/her prior job with full back pay and benefits.

This case represents a continuing and refreshing trend at the current MSPB to safegurad the due process rights of federal employees.

P&K Represents Federal Employees in MSPB Cases

EEOC Holds Sexual Orientation Hostile Environment Is Actionable

2011-07-13T13:05:05Z

The following case is an important recent development at the EEOC. The EEOC ruled that a gay employee may be entitled to relief under Title VII's prohibition on sex discrimination for a claim of hostile work environment (HWE). In Veretto v. U.S. Postal Service, Mr. Valetto alleged he was subjected to a hostile work environment when Postal Service management was nonresponsive to his request to remove from the workplace a male coworker who harassed Veretto due to his planned gay marriage. The EEOC held that the employee's claim could be an example of a HWE based on sexual stereotyping (i.e., that a man should only marry a woman). The EEOC reversed the Postal Service's dismissal of his EEO complaint, holding that Title VII's prohibition of sex discrimination could allow for a gay employee to obtain relief if subjected to harassment motivated by sex stereotyping. Mr. Veretto's EEO claim will now have to be investigated, and if not resolved, he should have the right to a hearing before an EEOC administrative Judge. Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011).

This case should be a wake-up call to federal agency officials that any harassment or bullying by employees against other employees based on their sexual orientation should not be tolerated and can lead to financial liability to any agency who fails to heed this message.

If you believe that you have been the subject of a hostile work environment due to your sexual orientation, or due to any other form of discrimination such as race, religion, sex, age, disability or national origin, contact our firm to inquire about obtaining representation. All employees should be free from a discriminatory work environment. Looking for Representation?