Discrimination

Federal employees or applicants for federal employment who believe that they have been discriminated against must satisfy different requirements than private employees.  Unlike employees in the private sector, employees or applicants who believe that they have been discriminated against by a federal agency in violation of Title VII or the Texas Commission on Human Rights Act must first contact an Equal Employment Opportunity counselor within the agency itself within 45 days of the discriminatory action. The individual may choose to participate in either counseling, or in alternative dispute resolution, where offered.  At the end of counseling, or if alternative dispute resolution is unsuccessful, the individual may then file a complaint with the agency.  The agency must conduct an investigation of the complaint, unless the complaint is dismissed. If a complaint is one containing one or more issues that must be appealed to the Merit Systems Protection Board (MSPB), the complaint is processed under the MSPB’s procedures. For all other equal employment opportunity complaints, once the agency finishes its investigation the complainant may request a hearing before an Equal Employment Opportunity Commission (EEOC) administrative judge or an immediate final decision from the agency.  If an individual is unsatisfied with the outcome of the administrative hearing, he or she may appeal to the EEOC an agency's final action within 30 days of receipt. The agency may appeal a decision by an EEOC administrative judge within 40 days of receiving the administrative judge's decision.

State, municipal, and county employees do not have these requirements, and must adhere to the administrative exhaustion requirements that private employees follow.

Constitutional Rights

Due Process

The Fifth Amendment to the Constitution of the United States of America makes it clear that no person shall be “deprived of life, liberty, or property, without due process of law.”  While most people are familiar with the concept that those accused of crimes have certain due process rights, many people don’t realize that public employees might have certain due process rights associated with their employment as well. In the employment context, what this generally means is that certain employees are considered to have a property interest in their jobs, and the right to due process places restrictions on arbitrary dismissals that are not tied to job performance, and also ensures that employees be given an opportunity to challenge a termination or other adverse employment action.  A public employer can create a property interest in employment for its employees by means of language in a personnel manual or through civil service systems.   Public employees’ liberty interest in their jobs is affected only when employees are terminated for reasons which were false, stigmatizing and published, such that their standing in the community is seriously damaged to the extent that they cannot seek or obtain other employment.

Whether a public employee has a due process right to his or her employment involves a case-by-case analysis.  The attorneys at Tanner and Associates can help you determine whether you have due process rights associated with your employment, and what this means for you.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.  The Equal Protection Clause is implicated when the government makes class-based decisions in the employment context, treating distinct groups of individuals categorically differently.  The Equal Protection Clause more or less mirrors the protections found in Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act – that is, it prevents public employers from discriminating against people based on sex, race, national origin, age, or disability.  One key distinction between these statutes and the Equal Protection Clause is that an Equal Protection Clause violation can be brought against an individual, via 42 U.S.C. §1983.

This area of law is technical and constantly evolving, and the attorneys at Tanner and Associates can help you determine whether an Equal Protection violation has taken place.

Retaliation

Texas Whistleblower Act

The Texas Whistleblower Act provides that a “state or local government entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an  appropriate law enforcement authority.”  In order to make a claim under the Texas Whistleblower Act, a public employee must prove that he or she reported a violation of law, made the report in good faith, made the report to an appropriate law enforcement authority, and was suspended, terminated, or suffered other adverse personnel action, as a result of the report.  Case law interpreting the Texas Whistleblower Act is rife with pitfalls for the unwary employee, including the requirement that the report be made “in good faith,” what constitutes an “appropriate law enforcement authority,” and whether an employee suffered an “adverse personnel action.”  In addition, a public employee who wishes to file a whistleblower claim must file suit within 90 days after the alleged violation occurred or after the employee discovered the violation.  However, if the government agency has an internal complaint procedure, the employee must initiate that procedure before filing suit.

First Amendment

The First Amendment to the U.S. Constitution says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." What this means for public employees is that they cannot suffer adverse consequences for speaking out on matters of public concern.  The U.S. Supreme Court first recognized that public employees could sue for retaliation in Pickering v. Board of Education, where the court articulated the balancing test that remains the law today:

"the interests of the [employee] as a citizen, in commenting on matters of public concern" must be balanced against "the interest of the State as an employer, in promoting the efficiency of the public services it performs through its employees."

Therefore, in order to establish a claim based on First Amendment retaliation, you must be able to show that your interest in speaking on a matter of public concern outweighs the government's interest in having an efficient workplace.