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Federal Employees News Digest : Jan. 28, 2013
January 28, 2013 Vol. 62, No. 26 4 Visit us on the Internet at www.FederalDaily.com Favoritism doesn't lose favor in the federal workplace Favoritism in employment is not falling out of favor in the federal government. That's the general sentiment among federal employees surveyed by the Office of Personnel Management for its annual Viewpoints Survey. The survey underscores that cronyism remains entrenched in federal civil service. Only 51.2 percent of employees sur- veyed in 2012 said arbitrary action, personal favoritism, and coercion for partisan political purposes are not tolerated in their respective agencies, down from 52.4 percent a year earlier. With so many federal employees believing supervisors are playing favorites, it is not surprising to see that those report- ing promotions based on merit declined over the year to 33.5 percent, down from 35.6 percent. The same holds true for those reporting pay raises based on merit, declining to 21.6 percent from 24 percent. Undoubtedly, favoritism is a tough beast to slay, mainly because it is hard to identify. It is not uncommon for federal employees to mistake a supervisor's support or friendliness toward certain subordinates as favoritism. According to the Merit Systems Protection Board, favoritism may be consid- ered a prohibited personnel practice (PPP). Under 5 U.S.C. § 2302(b)(2)(6), superiors are prohibited from granting any unauthorized preference or advantage to someone with the goal of "improving or injuring the prospects of any par- ticular person for employment." The case Wutunee v. Dep't of Interior (2008) involved a removal case based on alleged poor performance. The employee appealed her removal to the Merit Systems Protection Board, claiming she had been subjected to the PPP of bias or favoritism. The appellant in Wut u n e e claimed her supervisor favored a select group of employees who enjoyed a better work environment and received more training and easier assign- ments. Meanwhile, the appellant claimed she was part of a disfavored group that got stuck with difficult and time-con- suming assignments. But merely contrasting how employees are treated may not be sufficient to establish grounds for a favoritism claim. As the MSPB administrative law judge noted, "Although some employees may have received more training or more desirable work assignments, the evidence did not show that the training and work assignments were based on [the supervisor's] favoritism towards those employ- ees or bias against the [employee]." Favoritism may also be grounds for disciplinary action. In Gilmore-Chandler v. Dept. of the Army (2005), an MSPB administrative law judge found that a supervisor, appeal- ing a removal action based on numerous charges, exhibited personal favoritism toward a subordinate. The appellant had allowed the subordinate to "spend long periods of time in [the appellant's] office, conversing, gossiping, snacking and creating the impression for other subordinates that [the subordinate] enjoyed a special relationship with [the appel- lant] and was not required to attend to [the subordinate's] assigned duties." The administrative law judge sustained the supervisor's removal, noting that "the preferential treat- ment of a subordinate employee is a serious offense in that it undermines public and employee confidence in the integrity of government officials." Federal employees who believe they were not hired or promoted or were denied compensation because of personal favoritism should immediately contact a federal employ- ment lawyer. An attorney will help them explore whether they should appeal a PPP to the MSPB; file a whistleblower complaint with the Office of Special Counsel; file a com- plaint with the inspector general of an agency; file an equal employment opportunity complaint; or peruse other legal recourse, if the action was based on perceived favoritism. 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.
Jan. 21, 2013
Feb. 4, 2013