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Federal Employees News Digest : Oct. 29, 2012
October 29, 2012 Vol. 62, No. 16 5 Visit us on the Internet at www.FederalDaily.com The annual performance evaluation season is rapidly approaching, and many federal employees are on their best behavior. But for many federal employees, it will not matter how well they perform at the end of the year due to supervisors with discriminatory motives. My law firm has been analyzing the latest Equal Employment Opportunity Commission statistics on dis- crimination complaints in the federal workforce. I have good news, and I have bad news. The goods news is that between the 2010 and 2011 fiscal years, the total num- ber of discrimination complaints over evaluations and appraisals declined 2 percent to 1,362, according to the EEOC's Annual Report on the Federal Workforce for Fiscal Year 2011. The bad news is that over the long term, such com- plaints are up significantly---by 34 percent between the 2006 and 2011 fiscal years. Additionally, during this period, employees made more allegations of evaluations and appraisals being affected by discrimination based on color (up 31 percent to 154), age (up 43 percent to 436), and mental disability (up 55 percent to 501), according to EEOC Annual Reports on the Federal Workforce for the past five fiscal years. Supervisors sometimes think they can get away with discriminating against employees by giving them poor evaluations or appraisals. Due to the fact that annual appraisals cover a high volume of performance over a full year, supervisors may try to sneak in false information or biased observations and hope they go unnoticed or unchallenged. Additionally, supervisors may also attempt to discrimi- nate by giving employees a satisfactory appraisal that is in fact not an accurate reflection of work at a higher performance level. Federal employees should not let such untruths or inaccurate ratings go unchallenged. Not only can performance appraisals serve as the basis for potential Equal Employment Opportunity com- plaints if they meet the legal requirements to make them actionable, but the agency can also later utilize them as justifications for more serious personnel actions, such as a Performance Improvement Plan or even a termina- tion. For example, Eyslee v. Dept. of the Treasury (2010) involved an IRS revenue agent who alleged a hostile work environment/harassment claim based upon her race, age, and sex, which included a poor mid-year performance evaluation that resulted in a Performance Improvement Plan and the denial of training and use of flexiplace. To show that her supervisor had a bias against minori- ties, this African American employee relied on testimony from a Korean employee. This employee had received stellar evaluations, except for the period during which she worked under the supervisor. Comparatively, the employ- ee showed through a review of the supervisor's appraisals that Caucasian employees were treated differently in that almost the only employees who received high level rat- ings from this supervisor were Caucasian. Other minority workers testified that they had been treated differently than their Caucasian counterparts. The EEOC ordered the agency to raise the employee's evaluation score and provide her with back pay, interest, and other benefits. Federal employees should not let their hard work be undermined by the discriminatory motives of supervi- sors. If they believe discriminatory factors were behind lower-than-deserved evaluations or appraisals, they should immediately consult with a federal employment law attorney. Performance evaluations tainted by discrimination can hurt federal careers By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at firstname.lastname@example.org. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
Oct. 22, 2012
Nov. 5, 2012