EEOC says NO!
A Postal supervisor of distribution operations in Atlanta, Georgia alleged that she was discriminated against on the basis of reprisal . The Manager of District Operations (MDO) ordered the Supervisor to be physically removed from facility by police escort for failing to follow instructions. The EEOC Administrative Judge (AJ) found discrimination and ordered remedial action against the Postal Service. The Postal Service argued that the decision should be reversed on public policy grounds because the decision discouraged managers from exercising their authority to remove employees who repeatedly fail to follow orders, thereby endangering workplace safety. To support their arguments, the Postal Service presented news stories and reports of a 2006 postal shooting in Oregon and a 1985 postal shooting in Atlanta, Georgia. However, EEOC found that the Supervisor posed no threat to workplace safety, and therefore, did not reverse the AJ’s decision on public policy grounds. The Supervisor was awarded $4,000.00 in non-pecuniary compensatory damages and attorney fees.
A little background on the case:
Complainant worked as a supervisor of distribution operations, EAS-17, at the agency’s Processing and Distributing Center in Atlanta, Georgia. In 2005, she was placed on detail to monitor the facility’s performance in following procedures and moving the mail. The person who placed complainant on detail left in the fall of 2005 to work at a different facility; however, complainant continued to generate reports on subjects including the facility’s performance, under the general direction of the facility’s senior manager of distribution operations (MDO).
On December 29, 2005, the facility’s senior manager of distribution operations decided to remove complainant from her detail and return her to the position of supervisor. In a meeting on December 30, 2005, the MDO informed complainant of her reassignment and instructed complainant to report to the relevant tour supervisor on her next scheduled work day, January 2, 2006. Complainant asserted to the MDO that she was being treated differently from males who were serving on detail and reporting on the facility’s performance.
After the meeting, complainant notified the manager of human resources about the MDO’s attempt to remove her from her detail. The manager of human resources subsequently emailed complainant, informing her that she would remain on detail unless she heard otherwise from him. He separately emailed the MDO to inform him that complainant had been told to remain on detail. On December 31, 2005, the MDO emailed the manager of human resources to explain his understanding of complainant’s detail status.
On January 2, 2006, complainant appeared on the night shift as scheduled; however, she did not report to the tour supervisor designated by the MDO in the December 30, 2005 meeting. Instead, complainant continued to perform her detail duties. Once the designated tour supervisor notified the MDO that complainant had not reported to her, the MDO paged complainant to meet him at the MDO’s office. When complainant arrived, the MDO told complainant she was to go to her new assignment and work with her new supervisor. He told complainant to go into the MDO’s conference room where the MDO, complainant, and her new supervisor could talk. Complainant told the MDO that she was going to first get a witness and left the MDO’s office.
The MDO then called the postal police. Approximately ten minutes after complainant left to find a witness, she returned to the MDO’s office, where the police escorted complainant out of the building in front of other agency employees. On January 3, 2006, the MDO prepared an emergency placement and off duty status report, charging complainant with failing to follow instructions.
On April 21, 2006, complainant filed a formal EEO complaint alleging that she was discriminated against on the basis of reprisal for prior protected EEO activity under Title VII when:
1. the agency terminated complainant’s detail;
2. the agency physically removed complainant from the agency’s facility with a police escort;
3. the agency placed complainant on emergency placement status on January 3, 2006
According to the police report of the incident, the MDO called the police and requested that they come to the MDO’s office because he had an employee who needed to be escorted out of the building. When the police asked the MDO whether this employee had already been taken off the clock, the MDO advised that the employee had not been taken off the clock but she would be by the time the police arrived. The police report details that, after the police arrived at the MDO’s office, the MDO identified complainant as the employee whom he wanted escorted out of the building. The MDO then asked complainant to leave and return to work tomorrow. Complainant insisted that she had not done anything wrong. The police asked complainant to come with them, and complainant left with the police without incident. The Commission finds that the AJ’s finding of reprisal discrimination is supported by substantial evidence in the record.
The agency also maintains that the AJ’s decision should be reversed on public policy grounds because the decision discourages managers from exercising their authority to remove employees who repeatedly fail to follow orders, thereby endangering workplace safety. In its brief on appeal, the agency specifically asserts:
An employee who repeatedly fails to comply with the direct orders of his supervisor should be removed from the workplace for the safety of all concerned. Such insubordinate conduct is a clear indicator of imminent trouble. If this Decision prevents one manager from removing such an employee from the workplace, the result could literally be tragic.
Attached to the agency’s brief are news stories and reports of a 2006 postal shooting in Oregon and a 1985 postal shooting in Atlanta, Georgia.
The Commission recognizes that agency employees are required to obey the instructions of their supervisors, and we acknowledge the importance of permitting agency managers and supervisors to remove problematic employees who pose a threat of actual physical harm to the workplace. However, the Commission finds that this case does not involve a situation where an employee posed a threat to workplace safety. Under questioning by the AJ, the MDO admitted that complainant did not pose any threat of physical harm. Neither was this a simple case of an employee’s intransigence in the face of a direct order. Here, complainant was subject to apparently conflicting orders regarding her detail by different managers. She could not obey one order without disobeying the other. For all these reasons, the Commission finds that the public policy consideration of workplace safety articulated by the agency does not warrant reversal of the AJ’s decision.