Veterans preferences are not clear to applicants or hiring managers. Favoritism in hiring practices and promotions is not uncommon. Image: Tada Images/Shutterstock.com
By: Mitchell Berger, MPHSome employees will sue their agencies and others may leave or quietly quit. Because such cases leave a publicly accessible paper trail, potential lessons can be learned from situations in which agencies face employee complaints and litigation.
Three such cases – involving personnel with the Department of Health and Human Services – and lessons learned involving Veteran preferences, disrespectful treatment in the workplace and a whistleblower complaint are highlighted below.
Veteran preferences
Reading cases filed by John Paul Jones III, an Albuquerque-based Veteran seeking redress for what he viewed as Department of Health & Human Services’ (HHS) agencies’ failure to follow requirements pertaining to Veterans preference I was reminded that Sun Tzu once said that the “victorious strategist only seeks battle after the victory has been won, whereas he who is destined to defeat first fights and afterwards looks for victory,” or as Gordon Gecko more bluntly put it in Wall Street, “Every battle is won before it is ever fought.”
Perhaps unbeknownst to Mr. Jones, he was also going up against the HHS Office of General Counsel, which, with “an accomplished team of almost 500 attorneys and a cohesive support staff,” equals or exceeds in size some of America’s largest private law firms.
Veterans comprise roughly 6 percent of the US adult population but according to the US Office of Personnel Management as of Fiscal Year 2021 (the latest year for which this data is posted), roughly 30 percent of the federal workforce are Veterans.
However, this drops to 7.7 percent within HHS which has the lowest percentage of Veterans among the large Departments tracked by OPM in its report. Veterans receive preference in hiring for many federal positions as do a host of others ranging from former Peace Corps volunteers to current federal employees.
As recounted in his 2013 e-book, “What if there are more Vets…Then What do we Do?” Mr. Jones, a former combat medic, applied unsuccessfully for a Centers for Disease Control and Prevention GS-13 public health advisor avian flu position only to be rejected.
He recounts his experience challenging CDC in administrative and legal proceedings, including materials and emails purporting to show how the agency attempted to “circumvent the legal rights of veterans in order to hire” their preferred candidate. Mr. Jones without representation of counsel filed several cases with the Merit Systems Protection Board, and court challenges, as he applied for other HHS positions, which in one 2016 case include Mr. Jones contentions that “agency counsel “threaten[ed] [him] with economic, and by extension[,] physical injury” throughout the hearing.”
As Mr. Jones found, Veterans preference also intersects with age discrimination issues as CDC officials allegedly stated “that they would not hire any applicant over the age of 60 or 62” for the public health positions at issue.
Lessons learned: Veterans preferences are not clear to applicants or hiring managers. Favoritism in hiring practices and promotions is not uncommon.
There is a need to balance the technical skills needed for some HHS and other positions with the various legal preferences accorded to Veterans and other applicants.
Respect in the workplace
As described in administrative and court filings, Sharon Blount was a GS-11 Consumer Safety Officer in the Food & Drug Administration who eventually resigned following the birth of a child and subsequent leave disputes. Her complaints appear to characterize this as a constructive discharge.
Ms. Blount appears to have filed at least two EEOC complaints and three court cases against HHS unrepresented by an attorney. Blount alleged among other things that she had been passed over for a promotion even though she had successfully acted in that capacity while on a detail and that an FDA supervisor made “demeaning and humiliating remarks” toward her and a colleague.
Lessons Learned: It would be easy, especially if one has not worked in a large bureaucracy, to dismiss Ms. Blount’s concerns, as the courts did in part because she failed to follow rigorous administrative complaint timelines. But it is harder to ignore that even FDA’s own hiring and retention reports identify “the lack of a constructive, team-oriented culture (and accompanying mindsets and behaviors)” as one key retention challenge.
Perhaps FDA’s Diversity, Equity, Inclusion, and Accessibility Goals, which now emphasizes ‘talent development,’ and ‘performance assessment consistency’ will help to address such issues.
The behaviors described by Ms. Blount, such as qualified employees not being promoted, employees performing higher level work without being promoted and allegedly disrespectful conduct by supervisors, or at least perceptions that this occurs, are among key reasons employees leave or are dissatisfied with their jobs and federal agencies certainly are not immune.
Agencies investigating themselves
The Office of Special Counsel is an independent federal agency that exists “to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices (PPPs), especially reprisal for whistleblowing.” OSC also supports compliance with Hatch Act provisions that regulate federal employee political activities.
OSC has limited resources given its size (about 140 staff). OSC File No. DI-20-000537 tells the story of an Administration for Children and Families (ACF) whistleblower in 2020 who alleged improper training and procedures by ACF employees working to “assist Americans repatriated from Wuhan, China, at the onset of the COVID-19 pandemic.” HHS Office of General Counsel (OGC) investigations eventually substantiated poor personal protective equipment use and other practices that could have led to additional COVID-19 cases.
The whistleblower states that OGC “went on the offensive, attacking me, attacking my motives, and attacking my professionalism.”
OSC in its letter to the President criticized OGC in stark terms for its approach to the investigation stating that: “It is reprehensible that HHS OGC would use the investigation as an attempt to discredit [the unnamed whistleblower] when she showed tremendous courage in bringing these allegations forward. The attempt to discredit is made even more appalling by the fact that the investigation substantiated the grave misconduct” she alleged.
Lessons learned: Agencies are often charged with investigating their own (mis)conduct, whether through the Office of General Counsel as in this case, Inspectors General or inquiries by supervisors. Unfortunately, biases do exist. It’s unclear what happened to this anonymous ACF employee, but retaliation against whistleblowers is likely more the norm than the exception.
While the OSC report was transmitted to the President and Congress, it also is unclear what long-term changes, if any, occurred.
Many agencies do not want to hear bad news, whether from their employees or anyone else, but just as in the private sector it is essential that agency leaders open their doors to at least listen to concerns such as those expressed by this whistleblower and agencies have processes in place to fairly assess and investigate complaints and potential reports of misconduct.
Conclusion
When employees seek redress for alleged agency misconduct, they sometimes are thwarted by an administrative or litigation process that heavily favors their agencies. These processes allow agencies to ‘prevail’ largely on procedural grounds without ever having to address the actual merits of these cases or what they may reveal about workplace culture.
The result is that agencies fail to learn from these cases and to make changes that ultimately might benefit the general public, leadership and employees. While in all three of these cases, HHS appears to have prevailed, at least practically speaking in the sense that the aggrieved employees had no real recourse, the legally prevailing party in employment cases may not always be the morally or ethically correct one.
Mitchell Berger has worked on public health and behavioral health programs at the federal and local levels. The opinions expressed are solely those of the author and should not be imputed to any public or private entities.
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