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NOVA Legal Beat: Sexual Harassment at Federal Agency

By ARLnow.com

Wednesday - 10/23/2013, 2:30pm  ET

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. I work for a federal agency, and my supervisor made an inappropriate pass to me when no one was around. I rejected him, and now he is trying to have me transferred. What can I do? It’s his word against mine.

A. Complaints over sexual harassment usually boil down to he said/she said debates. If a supervisor is lying about his or her conduct or motives for subjecting an employee to an adverse employment action, the subordinate needs to remember that the agency official’s lack of credibility can be exposed during a hearing before an Equal Employment Opportunity Commission (EEOC) administrative judge.

Under the EEOC’s regulations and management directive, Commission administrative judges are given much leeway in determining the credibility of witnesses. In fact, during subsequent appeals of administrative judge decisions, the EEOC will tend not to disturb a judges’ credibility determinations “based on the demeanor or tone of voice of a witness… unless documents or other objective evidence so contradicts the testimony of the witness or the testimony of the witness otherwise so lacks in credibility that a reasonable fact finder would not credit it.”

An administrative judge may find a supervisor’s testimony to be not credible if the supervisor and other agency officials provide conflicting reasons for the adverse employment action, as was the case in Johnson v. National Credit Union Administration (2005). A supervisor’s lack of a reputation for veracity, coupled with his or her self-serving and unbelievable testimony, could also lead an administrative judge to afford the official less credibility, as was the case in Millard v. U.S. Postal Service (2001). An experienced federal employment law attorney can help federal employees who have been subjected to sexual harassment flush out the truth and show that the explanations provided by management are mere pretext for discrimination.

Q. My agency is trying to remove me because I went AWOL for a while, even though I know of co-workers who were only suspended for the same thing. Can management get away with this?

A. When it comes to disciplining federal employees, one size does not always fit all. When deciding on a penalty for misconduct, such as absence without leave, officials are supposed to take into consideration how similarly situated employees were punished for the same offense. However, disparate penalty is only one of 12 mitigating, so-called “Douglas factors,” that deciding officials need to consider. These factors take their name from the 1981 Merit Systems Protection Board (MSPB) case, Curtis Douglas v. Veterans Administration, and they also include the seriousness of the offense, proscribed penalties under agency tables of penalties, past disciplinary record, work history, and the notoriety of the offense.

If other people received an AWOL penalty that was less harsh than your penalty, one important question is whether they are similarly situated to you. And just because they work for the same agency or have the same job title does not automatically make them similarly situated.

Talk to an experienced federal employment law attorney to find out if there are ways to fight an AWOL or other disciplinary charge, or to determine whether a proposed penalty is unreasonable.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.