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Pretext Part 2: Shifting Explanations and Unbelievable Stories

Pretext Part 2: Shifting Explanations and Unbelievable Stories

In our previous post The Real Reason For An Adverse Action, we briefly discussed the most common ways a federal employee’s attorney can show an that an adverse agency action was based on discrimination, even though the agency offered another reason as cover for the action.

In this post, we will look at a 2009 EEOC case where two U.S. Postal Service workers were able to prove the agency discriminated against them by highlighting their manager’s shifting explanations and the pretext’s fundamental lack of credibility.

In Lau v. U.S. Postal Service, two disabled Flat Sorter Machine Clerks had their hours reduced from eight hours a week to six, but their non-disabled coworkers did not. The Postal Service claimed their hours were reduced because of low mail volume.

Here’s how they succeeded in showing the Postal Service’s explanation was just a pretext and won their case:

Manager’s Shifting Explanations

First, the employees were not given the “low mail volume” reason for their reduced work hours until five months after their hours were reduced. Even worse, the agency only gave the low mail volume explanation in the context of a formal mediation, showing a lack of credibility. Waiting five months to give an explanation is suspicious, and waiting until the employees are far enough into the complaint process that they and the agency are in a formal mediation is even more suspicious.

Second, the manager claimed the reason for the hours reduction was to extend the amount of time it would take for the employees to qualify as full-time, but at a subsequent hearing, stated that policy had “nothing to do with” the hours reduction. If an agency can’t keep its story straight, managers are likely searching for a false explanation to cover up the real reason for their actions.

Manager’s Story Wasn’t Believable

Next, at the time of the hearing, there was ample work for everyone in the unit to work full time. Granted, there could have been a lull in work when the employees’ hours were reduced, but it makes the manager’s story less credible.

Finally, the manager claimed she needed to “save” mail for later shifts, even though she had no obligation to do so, and mail was continuously coming in for later shifts. Her story was just not adding up.

The Takeaway

If you suspect your manager is treating you unfairly, make an effort to document the reasons they are claiming for their actions, including the date and time of those actions. If your manager gives different explanations at different times, or his or her reason just does not add up, an attorney may be able to use that information to help you enforce your rights.