Part three – a final example and conclusions

Here is one more typical example of a “stressful” work situation that recurs in our practice, which sometimes can lead to litigation or more serious problems.

Example 3 – [employee being sexually harassed]

scenario and possible legal claims:

A female civilian Defense Department employee working at a foreign military base is being sexually harassed by a male supervisor.  As a new employee, she has relied on the supervisor for guidance, and he uses his position of authority to offer her help with arranging daycare for her minor son, finding an apartment in the area, etc.  He begins visiting her at the new apartment, ostensibly to help in some way, but soon makes sexual advances that she rejects.  He persists, visiting her apartment unannounced, calling her there at all hours, and making increasingly direct threats that her performance appraisals might suffer if she doesn’t cooperate.  Several times she complains about all this to upper management, but nothing is done.

After several months of this, the female employee starts seeing a psychotherapist, who recommends taking a short break from work and possibly filing a discrimination (EEO) complaint. She files a complaint, and the supervisor denies any wrongdoing.  Meanwhile she is intermittently losing time from work, and her sick leave and annual leave balances are running low.  She is outraged that the supervisor denies what he did to her, but feels confident that at least some of her co-workers will support her allegations, because of some incidents that they observed happen both at work and at her apartment complex where many other government employees also live.  She learns, however, that some of her witnesses are reluctant to testify for fear of retribution.

Suggestions:

Employers simply cannot tolerate a subordinate being victimized like this.  Not only is this supervisor’s behavior illegal, giving rise to all kinds of expensive claims, but it also gives a loud and clear message to other employees about what they can expect from supervisors and what supervisors can “get away with”.  It’s not enough to simply adopt a policy against sexual harassment and post it on a bulletin board.  Employers must actively guard against these situations developing and take prompt remedial action whenever something like this starts to happen.

CONCLUSION

Even though our laws are not the equivalent of religious principles, they are based on the moral values of our society.  One can see from the examples given in this three-part article that a degree of human kindness and consideration for the plight of an employee goes a long way towards pointing the employer towards the proper legal response to the problem.  This is true even if the employer had nothing to do with creating the problem itself (as in Example 2 in part two, above).  Consideration for how an employee might feel in a situation, and what is in the best interests of that employee, can help avoid costly and difficult consequences.

______________________________
STEVEN E. BROWN has been representing federal employees for over thirty years, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints.  He has lectured before various groups on these and related topics for the past several years.  His firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public.  The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.

Part two – some examples of Workplace Morale and Violence

Example 1 – [employee work-related disability]

scenario and possible legal claims:

An IRS field auditor with a track record of excellent performance suffers a back injury at a taxpayer’s place of business which results in several months off work, failed regimens of physical therapy and steroid injections, followed by surgery.  Her back will never be the same, and she now has sciatic pain radiating down one of her legs, and has a medical work restriction of no lifting over 10 pounds.  The job requires her to lift and carry briefcases weighing up to 35 pounds when doing field audits.

She returns to work on light duty, but IRS starts pressuring her treating doctors as to why she can’t return to work full duty.  IRS continuously asks her for updated medical reports, even though several reports it already has all state that she has a permanent injury and disability.  When she has to see a doctor one day, IRS marks her AWOL even though prior notification of the doctor visit was given to the supervisor.  After several such episodes, IRS begins disciplining her for absences and/or poor performance.  Coworkers accuse her of slacking or exaggerating the injury, and they make fun of the slow way she now walks; her IRS manager knows all this and does nothing to stop it.   When she asks for accommodation to a desk job with a comfortable chair, her manager says that’s unworkable and refuses to provide it.

Suggestions:

This employee has not only suffered a serious, life-changing injury; she is also facing the loss of her livelihood – a job she trained for several years to get and in which she has invested several more years of her life.

Note that in this example the employee performed excellently before the injury.  Unless sufficient efforts are made to provide reasonable accommodation, all her training and skills will be lost to that employer.  Add to that loss the litigation and claims expenses, and the result can be damaging and disruptive to any employer.

Example 2 – [emotionally upset employee]

Scenario and possible legal claims:

A Postal clerk has been getting into disputes with co-employees over the past several months.  He has been at the Service for seven years, and has always performed adequately, but has never gotten along particularly well with others and has had a few customer complaints.  He likes to keep to himself and just do his job.  Earlier this year he got into a fist fight on the workroom floor with a co-worker, and since then others at work have taunted him and he has become increasingly sullen and prone to angry outbursts.  The Postal Service has given him two short suspensions (5 days and 10 days without pay) as a result of these problems.

Last month he got into a shouting match with his supervisor, who then ordered him escorted off the premises by Postal Inspectors.  He was sent him home on administrative leave, and currently he is not sure what will happen.  He believes that there is a conspiracy against him at work, involving the man he had the fight with, his supervisor and a few others.  He believes that certain Postal managers and Postal inspectors have been watching his house and following him around town.  He has never seen a psychologist or psychiatrist and doesn’t believe in that kind of medical treatment.  The Postal Service gave him a notice of proposed termination, to which he did not respond, and he has just received a disciplinary notice of termination for his conduct.

Suggestions:

This employee may be suffering from a severe emotional disturbance.  He may even be an undiagnosed paranoid schizophrenic.  Simply terminating his employment on a disciplinary basis, even where fully justified, may not be the best choice.  Taking this action may enrage the employee, confirm his suspicions about a conspiracy against him at work, and possibly expose other workers to violence if he acts on his feelings.

Federal agencies can initiate psychiatric disability retirement applications for employees who will not file such applications voluntarily.  While such an action will still probably upset this employee, it is not disciplinary in nature and might result in his at least being diagnosed with a mental illness.  That might be a starting point for his receiving badly needed treatment.

The last part of this article will examine another typical scenario, suggest how the problem can be defused before it becomes a bigger problem for all concerned, and state some conclusions.

_________________

STEVEN E. BROWN has been representing federal employees for over thirty years, with emphasis on wrongful termination, workers’ compensation, retirement issues and discrimination complaints.  He has lectured before various groups on these and related topics for the past several years.  His firm’s website, www.federal-law.com, contains materials developed for some of these talks, as well as other educational materials developed by attorney Brown as an aid to his clients and members of the public.  The firm is located at 910 Hampshire Road, Suite G, Westlake Village, CA 91361, and can be reached at 805-496-9777 (voice), 805-496-6368 (fax), or sbrownesq@federal-law.com.