Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.
A recently released report by the Equal Employment Opportunity (EEOC) on common errors federal agencies make when dismissing discrimination complaints on procedural grounds reminded me of the story of the blind men and the elephant. Each blind man, as the story goes, believed the elephant he touched was something else, depending on the part of the animal’s body with which he came in contact. This parable illustrates fragmented understanding, which is something the EEOC in the report blamed for many improperly dismissed Equal Employment Opportunity (EEO) complaints. And my years as chairman of the Merit Systems Protection Board (MSPB) showed me that such fragmentation reaches far beyond discrimination issues.
The EEOC described fragmentation as a breaking up of claims in a complaint. The agency warned, “For complainants, fragmented processing can compromise their ability to present an integrated and coherent claim of an unlawful employment practice for which there is a remedy.” Harassment and hostile work environment claims are “particularly susceptible to fragmentation,” the EEOC said, because agencies tend to look at cited factual incidents separately rather than as a whole. Consequently, agencies fail to consider “a claim of a persistent pattern of alleged harassing conduct, where each instance by itself may seem relatively trivial or isolated, but considered together, may allow complainant to prove a hostile work environment.”
Although the MSPB does not use the term “fragmentation,” the Board frequently hears cases involving agencies’ attempts to justify adverse actions by focusing on parts of the picture rather than the whole picture, or “in the aggregate,” as the U.S. Court of Appeals for the Federal Circuit referred to it in Whitmore v. Department of Labor (2012). The court in this case delivered an anti-fragmentation guidance, saying, “Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.”
This anti-fragmentation guidance primarily concerns whistleblower retaliation appeals. In Whitmore, the Federal Circuit vacated the MSPB’s affirmation of the appellant’s removal for alleged disruptive and insubordinate behavior and remanded the case. The MSPB judge, the court said, “unduly focused both the hearing and her decision on the DOL’s affirmative case for removal of Whitmore, to the exclusion of Whitmore’s whistleblower defense.”
The court’s guidance in Whitmore likewise prompted the Board in Massie v. Department of Transportation (2012) to vacate and remand the initial decision of an MSPB judge. This judge took an “unduly dismissive and restrictive view” on why the agency would want to retaliate against an employee who blew the whistle and prompted an inspector general (IG) investigation. The Board faulted the MSPB judge for focusing on the strength of testimony from the supervisor who gave the appellant a negative performance appraisal.
The supervisor in Massie claimed that she did not know the appellant made any specific disclosure, that his performance was merely adequate, and that she had actually given a performance award to a similarly situated employee. But by focusing on this part of the story, the MSPB judge inadequately analyzed the supervisor’s motivation for retaliating against the appellants. Not adequately considered were the appellant’s contentions that the supervisor and a directorate manager were “highly motivated to retaliate against him because, among other things, they were responsible for briefing FAA headquarters on the IG investigation’s findings.” Further, the appellant’s disclosure resulted in the supervisor being interviewed by the IG and managers having to defend agency actions before Congress.
Agencies’ fragmented thinking can also result in unmerited low performance ratings because parts – not all – of an employee’s work during a performance period was considered, as was the case in Oulianova v. Pension Benefit Guarantee Corporation (2013). Fragmented thinking also results in overly harsh penalties when deciding officials become too fixated on the employee’s misconduct and fail to consider relevant Douglas factors, such as his or her otherwise exemplary career, as was the case in Osterhagen v. Department of Justice (2012).
Federal employees fighting adverse employment actions need to make sure the agency and MSPB do not get overly focused on distracting details. An experienced federal employment law attorney can make sure the agency or MSPB – or both – see the whole picture.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
