Subordinate Harassment or Bullying of a Supervisor – Actionable and More Pervasive Than You Might Think

January 17, 2013 § Leave a comment

By Caroline Krewson

Harassment or bullying in the Federal workplace is regarded almost exclusively as a subordinate victim/supervisor perpetrator problem. The harassment or bullying is viewed as an abuse of power and since the supervisor has all of the power and authority to prevent or handle the matter, if the supervisor fails to do so he or she is not a victim but a weak or ineffective supervisor. But such claims of harassment or bullying have been recognized as legally actionable. As one court explained, in a case involving alleged sexual harassment of a supervisor by a subordinate:

More importantly, we do not find an inquiry into power to be a useful part of our fair employment doctrine. As a practical matter, any doctrinal standard that includes a requirement that a plaintiff must establish some abuse of power is simply unworkable. The concept is far too subtle and formless for judges and juries to apply in a consistent manner, especially in hostile environment cases. Instead, we believe that a doctrine that first inquires into whether the plaintiff was subjected to a sexually hostile work environment, then decides if the employer knew or should have known of the hostility, and concludes by gauging the sufficiency of the employer’s response provides both a workable framework and a fair accommodation of employer and employee interests.

Hanlon v. Chambers, 464 S.E.2d 741, 195 W.Va. 99 (Supreme Court of Appeals of West Virginia, 1995) (footnotes omitted).

Subordinates may be intimidating or threatening, such that the supervisor fears exercising his or her authority or the supervisor’s supervisors fail to back him or her after being informed of difficulties with the subordinates, thereby giving the subordinates tacit approval to disrespect, disobey, embarrass, and even sabotage the work of the supervisor.

In a decision dated October 29, 2012, the U.S. District Court for the District of Northern California denied the school’s motion to dismiss the supervisor’s claim of harassment by subordinates in Julien v. Vallejo City Unified School District. The supervisor was a principal at a high school. After receiving reports that two female employees arrived to work late and left early, verbally abused students and community members, and encouraged insubordination, he placed the women on leave. One of the employees claimed in a worker’s compensation proceeding that the supervisor sexually harassed her, but an appeals board judge deemed the charge to be unfounded. The same employee tailgated the supervisor for approximately 17 miles with the other female employee in the passenger seat. The supervisor alleged that when he attempted to lose them by accelerating, the employee sped up and veered into his lane in an effort to cause him to lose control of his car. The supervisor complained about the incident to law enforcement, city officials, and the district. The district allegedly failed to take any disciplinary action against either employee, however, and allowed one of the employees to return to work at a different school. The supervisor was then assigned to an isolated cubicle in another division.

The decision of the U.S. Court of Appeals for the Fifth Circuit in Anderson v. United States of America involved a supervisor with the Social Security Administration who had disciplined a subordinate for failing to properly process a large amount of mail that had been assigned to him. A few weeks later the subordinate wrote to the Office of Special Counsel alleging the supervisor was confiscating mail from claimants and holding it for more than a year rather than allowing the mail to be distributed for review. The supervisor filed suit in Texas court alleging the subordinate had defamed her and caused her intentional infliction of emotional distress. The Federal government removed the case to Federal district court and asked to substitute itself for the subordinate, arguing the subordinate was acting within the scope of his employment when he wrote the alleged defamatory statements and therefore the exclusive remedy for the supervisor was the Federal Torts Claim Act. The lower court granted the government’s motion and later dismissed the case because the supervisor had not exhausted her administrative remedies and that her claims were otherwise barred by the Federal Torts Claim Act. However, the Fifth Circuit disagreed, finding that the subordinate was not hired or tasked with supervising his supervisor and reporting on her behavior, and his letter was not within the scope of his office or employment. Rather, he “gratuitously provided the allegedly defamatory statements to the OSC while doing nothing to see relief through his own chain of command.” The court explained that while the subordinate may have had a general duty to report misconduct or illegal activity, this general duty is not the same as being specifically tasked by one’s superiors to provide information to third parties about a particular incident, nor is it akin to a supervisor’s duty to keep subordinates informed of relevant events. Thus, the supervisor was free to proceed with her claims of defamation and intentional infliction of emotional distress against the subordinate as the named defendant in Texas court. Some may regard this result as having a chilling effect on complaints to the Office of Special Counsel, but others may appreciate that subordinates are not free to use that forum and others to “get back” at their supervisors with baseless, outrageous allegations.

In my own experience I have seen one subordinate repeatedly file the same allegations about the supervisor with the Inspector General that were found to be meritless in an earlier complaint to the Inspector General; use the subordinate’s local media connections to plant untruthful stories about the supervisor; use FOIA to request information about the supervisor even after the subordinate had retired and the supervisor had left the agency for another; call the supervisor’s military reserve unit to ask questions about the supervisor; and obtain Privacy Act protected information about that supervisor from the supervisor’s superior. Management’s reaction to the supervisor’s report of this behavior was to reassign the supervisor.

We owe all employees a safe place to work, regardless of their place in the hierarchy of the agency.

About the Author: Possessing more than 25 years of executive experience in the Federal government and private industry, Caroline Krewson retired with the rank of Air Force Reserve Colonel. Ms. Krewson also earned a Masters of Public Administration from Golden Gate University, graduating at the top of her class with the distinction of summa cum laude.

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