Appeals Ct Says OK for Supervisor to Throw Things

shoeA federal appeals court panel  has ruled that a supervisor did not violate the rights of a subordinate when he allegedly yelled at her in front of coworkers and violently threw a heavy notebook at her.

A panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit ruled the above conduct may be  “unprofessional, uncivil and somewhat boorish” but it does not rise to the level of malevolence necessary to constitute a “hostile work environment” under Title VII of the Civil Rights Act o f 1964.

Instead, the appellate panel compared the behavior to the “ordinary tribulations of the workplace,” which include petty insults, vindictive behavior and angry recriminations.

The  decision, written by Justice Janet Rogers Brown, comes in a case that is also unusual because it involves the Merit Systems Protection Board, an independent agency charged with addressing the grievances of federal workers who challenge discriminatory employment practices.

Patricia A. Brooks, who is an African-American, filed a race discrimination complaint alleging that she was a victim of a “hostile workplace environment” at the Office of Information Resources Management of the MSPB.

Brooks, who had worked at the MSPB since 1998, said her supervisor in 2005 insulted and demeaned her in front of coworkers when he yelled at her and threw a heavy notebook in her direction.  The supervisor admitted slamming the book with his hand. Brooks said she was subsequently given poor performance ratings and became subject to selective enforcement of workplace rules.

After filing several equal employment opportunity complaints, Brooks filed a lawsuit alleging  race discrimination and retaliation in violation of Title VII.  A federal judge dismissed Brooks’ complaint on a pre-trial motion for summary judgment, which means the judge ruled that no reasonable jury could find that the supervisor’s “conduct was so severe and pervasive as to alter the conditions of Brooks employment.”  The three-judge panel for the D.C. Circuit court upheld the dismissal of  Brooks’ complaint.

Justice Brown writes in an April 15 decision that Brooks failed to show that she was subjected to “discriminatory intimidation, ridicule and insult” that was “sufficiently severe or pervasive to alter the conditions of [her] employment.”  Justice Brown said the panel evaluated the “totality of the circumstances, including the frequently of the discriminatory conduct, its severity, its offensiveness and whether it interferes with an employee’s work performance.”

Even if the supervisor did violently throw a book at Brooks, the appellate panel said, the incident involved “unprofessional conduct” but was isolated and not sufficiently malevolent to constitute actionable abuse.

A retaliation complaint and other other claims were rejected on technical grounds.

See Patricia Brooks v. Susan Tsui Grundmann, chairman, Merit Systems Protection Board, No. 12-5171.


Federal Agencies Urged to Address Workplace Bullying


Create Culture of Respect

When an incident of assault, harassment, intimidation, or bullying occurs in a federal workplace, it is usually caused by an employee rather than a customer, criminal, or someone who has a personal relationship with the victim.

This is the conclusion of a study on workplace violence in the federal sector released in September by the U.S. Merit Systems Protection Board, an independent federal agency that promotes the efficient and effective use of the federal workforce. 

 The study, entitled Employee Perceptions of Federal Workplace Violence, recommends that federal managers “foster organizational cultures that do not tolerate violent behavior and that takes reports of such behavior seriously.”

 Essentially the board is recommending that federal agencies adopt workplace anti-bullying and harassment policies that cultivate  “organizational cultures that treat employees with dignity and respect.”   

 The study’s definition of workplace violence includes emotional violence –  bullying, harassment and intimidation – as well as physical violence.

 The study found that overall 13 percent of the federal employees surveyed – which is estimated to be one in eight federal employees – observed an incident of workplace violence in the past two years. The incidence was much higher in certain occupational groups – 26 percent of federal employees in medical/hospital occupations and 21 percent in police/security occupations.

 About 54 percent of the violence observed was perppetrated by current or former federal employees; 34 percent was perpetrated by a customer; 7 percent by an individual who had a personal relationship with an employee; and four percent involved criminals.

 Overall, the report states that 73 percent of the employees said their agency took sufficient steps to ensure their safety from violence in the workplace.  However, that figure shrank to only about one-third  of employees who had observed workplace violence by current or former employees or by individuals who had a personal relationship with an employee.

 The report recommends that agencies adopt  strategies to deal with workplace violence by current and former employees

 Specifically, the report recommends the following strategies:

  • Foster healthy organizational cultures that do not tolerate aggressive or violent behaviors;
  • Complete appropriate pre-employment background checks;
  • Train employees on workplace violence issues;
  • Resolve serious workplace conflicts before they escalate into violence; and
  • Administer human resources programs properly so as not to introduce undue stress into the workplace.  

According to the report, conflicts in the federal workplace are fairly commonplace. The survey states that 49 percent of supervisors and 37 percent of all employees indicated that they had dealt with at least one serious conflict during the past two years. This survey defined “serious conflict” as one that the survey participant “felt if not addressed would result in negative workforce consequences such as low morale, low organizational productivity or performance, perceived unfairness, absenteeism, attrition, or even fear.”

The findings in the report are based primarily on an analysis of the MSPB’s 2010 Merit Principles Survey, which surveyed 71,910 full-time, permanent, non- Postal federal employees. The workers were asked about their perceptions of their jobs, work environments, supervisors, and agencies. There was a 58 percent response rate and 42,020 surveys were deemed valid.

 The United States lags behind many other industrialized countries that have adopted laws and regulations to address workplace bullying. Last year, the U.S. Occupational Safety and Health Administration  passed a workplace anti-bully measure for its own workers. And now the Merit Systems Protection Board is recommending other federal agencies do the same. However, there is no federal or state legislation protecting private sector employees from workplace bullying.