We virtually never see cases where an agency acts against a federal employee for an openly discriminatory reason. Supervisors, after all, are smart enough not to write “I didn’t give Suzy a WGI because she refused to go on a date with me” on a performance review. Instead, when supervisors or managers have it in for an employee, they come up with plausible sounding reasons – “pretexts” – for an adverse action.
In general, supervisors’ pretexts focus on one or more weak points in an employee’s performance. No one is perfect, and those points are often real areas of weakness for our clients. So how do federal employee attorneys help our clients prove their supervisor’s stated reason for an adverse action is just a pretext?
There are a number of different ways to show an agency’s action is a pretext, here are some of the ones we use most frequently on behalf of our clients:
*Shifting Explanations: The agency cannot stick to the same story. On one occasion it may say a federal employee was fired for poor quality work, on another, claim the employee did not follow instructions, and on a third, that the agency needed to scale down. What matters here is not the content of any particular explanation, it’s the fact that the explanations are inconsistent.
*Actions That Just Don’t Add Up: The agency’s story simply does not make sense. For example, claiming that an employee’s hours were cut because of lack of work, but giving other employees overtime for the same work.
*Not Following Procedure: While rarely enough to prove a case on its own, an agency’s failure to follow its own procedures is helpful evidence. It shows something is not right with a decision, and can lend credibility to a case based on otherwise insufficient evidence.
*Other Employees Were Treated Differently: The classic way to prove discrimination is showing that other employees in similar situations but not in the same protected group (called “comparators”), were treated differently. While it sounds intuitive, this type of evidence is one of the most legally complex, and, consequently, most necessary to ask an attorney about. Courts are strict about how similar an employee needs to be to qualify as a comparator, and when they will or will not bend the rules.
In the following blog posts we will take a look at three cases where federal employees used one or more of the evidence types above to prove their agency was discriminating against them. Each case is different, but these examples will help you get a sense of the kind of evidence an attorney can use to help you win a discrimination case against your agency.
Eric L. Pines is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over fifty thousand federal employees through his work as a federal employee labor union representative.
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