A GS-12 Internal Revenue Service employee, unhappy over her performance rating and discipline taken against her for making false statements on her pre-hire background investigation questionnaire, was unsuccessful in making a case that the agency’s actions amounted to unlawful retaliation for her discrimination complaint. (Beckford v. Geithner, D.D.C. Civil Action No. 06-1342 (ESH), 10/15/09)
The facts of this case are involved and cited at length in the court’s opinion for those readers who want to explore them in more depth. I will simply summarize them directly from the court’s decision.
Beckford went to work for the IRS in 2004 as a GS-12 Staff Assistant in Information Technology Services (ITS). Several months later, Beckford’s boss, Mr. Lutes, did her midyear performance review and told Beckford she had to improve her performance, particularly with regard to her interactions with co-workers, citing "major issues" in her dealings with others. Lutes had at least 3 meetings with Beckford before the final performance appraisal was issued and each time he warned her about the need to improve her dealings with others. (Opinion, pp. 1-2)
Beckford initiated a discrimination complaint accusing Lutes of sexual harassment six weeks before he gave her an annual performance rating of "minimally acceptable." The appraisal cited her "regular conflict with almost every member of the staff" as well as her "rudeness and lack of cooperation" as the primary reasons for her low ratings. (p. 3)
Shortly after this performance evaluation was made and about a year after Beckford file her EEO complaint, the IRS received the results of the pre-hire background check on Beckford. The report indicated that when Beckford filled out the SF 85P (Questionnaire for Public Trust Positions), she failed to report two bankruptcy filings in her past. She had revealed one but omitted mention that there had actually been 3 filings during the previous seven years. (p. 4)
The question of what to do about Beckford’s false statements in her application papers fell into the lap of Mr. Lutes. The personnel office explained to Lutes that the IRS penalty guide for the first such offense calls for discipline ranging from written reprimand to removal. Lutes recommended the minimum penalty, a written reprimand. (pp. 4-5)
Apparently IRS has procedures requiring that an employee who is to be reprimanded be offered "alternative discipline," which, if accepted wipes out the reprimand so that it is not part of the permanent record. (p. 5)
When Lutes gave Beckford the option of requesting alternative discipline, she apologized for the "omission of the dates of [her] prior bankruptcy actions" and suggested that instead of a reprimand she be permitted to donate personal items to a charity. Lutes said this would be fine but only if she included a cash donation to the charity of at least $50. Beckford agreed and the deal was sealed. However, when the alternative discipline agreement was provided for Beckford’s signature, she did not sign it even though she had carried out the charitable donations and thus lived up to her alternative discipline obligations. (p. 5)
Eventually Beckford ended up in district court with a claim that the poor performance appraisal and the alternative discipline were in retaliation for her EEO complaint.
The court has recently tossed Beckford’s retaliation complaint out by granting the agency summary judgment. (p. 23)
As to the performance evaluation, the court notes that Lutes pointed out to Beckford his dissatisfaction with her teamwork problems and the need for her to improve in this regard at least 3 different times before she filed her discrimination complaint. In fact, the court emphasizes, Lutes told Beckford before her EEO complaint was filed that she would be getting a negative evaluation, and Beckford acknowledged this in her testimony. ("Lutes had told [her] that [she] wasn’t … going to get a performance appraisal that was complimentary." ) (p. 10) In short, the court concluded that a jury "could not reasonably infer that the negative appraisal was caused by Ms. Beckford’s contact with the EEO office." (p. 10)
As for Beckford’s claim that the alternative discipline was in retaliation for her EEO complaint, the court concluded there was no evidence to support this. As the court stated, "The alternative discipline chosen and agreed to by Ms. Beckford replaced a possible letter of reprimand, the minimum penalty for the infraction…[she] concedes she committed." (p. 18)
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.