Please note: the following case study is based on actual, current, informal EEO complaint. All identifying details have been changed.
Imagine, for an instant, you are a civil servant working for the Coast Guard. As a program analyst, you’re responsible for helping your command determine where to put resources in order to accomplish priority missions. You’re also an Equal Employment Opportunity and Civil Rights counselor. You haven’t had any EEO cases in a while; things have been fairly quiet on that front. The fact that things have been quiet is, on the one hand, good, since no cases means no allegations of discrimination. On the other hand, it’s a bummer since you enjoy the EEO work more than the program analyst. Today is a Monday morning in late September; sunlight streams through the slats of the blinds covering your window at work; the blinds hide the view of the parking garage across the street. The phone rings; you answer. The caller is Mr. Jimmy Farns from Coast Guard Headquarters. He wants you to help out with a complaint of discrimination. You accept, and over the next several weeks you meet one-on-one with the complainant to conduct the initial counseling session and you conduct an informal fact-finding.
The complainant is Bobby Merrill, a 40-something man who suffers from clinical depression. Thunder Under Group LLC (TUG) employed Mr. Merrill as a network administrator on a contract for the Coast Guard’s Aviation Repair and Supply Center (ARSC) in Elizabeth City, NC. In October 2003, the Coast Guard terminated the contract with TUG; TUG fired Mr. Merrill when the contract ended. Mr. Merrill had worked for TUG for 10 months and had received one evaluation during that period which indicated his performance was satisfactory. Mr. Merrill asserts TUG terminated his employment because of his disability. He further asserts that members of the Coast Guard told TUG to fire him, and he says that in return for following that request, TUG received an additional contract in a quid quo pro relationship.
The Coast Guard, of course, follows the federal government guidelines and has a policy of non-discrimination. According to the Federal Sector Equal Employment Opportunity Rule (1999), protected persons under this policy may not be discriminated against due to “race, color, religion, sex, national origin, sexual orientation, age (forty years or older), disability, or reprisal for past EEO activity.”
During the course of the initial fact finding, you discover there are three key players aside from Mr. Merrill. Belinda Gloom is the regional manager for TUG. She is responsible for a number of contracts TUG has with the federal government and is the person who actually fired Mr. Merrill. Steve Wynwood is the Coast Guard employee responsible for the performance of the contract which TUG held. Ed Tate works for the Government Services Administration (GSA) and serves as the Contracting Officer’s Technical Representative (COTR). The GSA was the actual contracting organization; TUG had a contract with GSA to provide certain services, and the Coast Guard exercised a task order to have TUG perform work at the Elizabeth City facility, the Aviation Repair and Supply Center.
As Mr. Wynwood described the relationship, the Coast Guard was merely concerned with the performance of the contractor with regard to the specifications spelled out in the task order and contract. How that work was completed was up to the contractor; whom the contractor employed didn’t matter, so long as the work was completed as specified in the contract. Coast Guard representatives forwarded perceived problems in the performance of the contract to the GSA; GSA then forwarded that information to GSA. Mr. Tate of GSA and Ms. Gloom of TUG supported this description of the relationship between the Coast Guard, GSA, and TUG.
Mr. Merrill has been unemployed since late October 2003. On the day the contract between the Coast Guard and TUG was terminated, Mr. Merrill was escorted from the facility; he has not returned since. He later heard that his picture had been posted at the security office with a notation he was not allowed access to the facility. Mr. Merrill is still depressed and exhibits characteristics of someone who is clinically depressed. When you meet with him in early October 2004 for the initial counseling session at his house, he is late. You arrive at 1100 sharp and are met at the door by his elderly mother. He has just gotten into the shower. As you wait at the kitchen table for him, you can hear the shower running. He arrives in the kitchen nearly twenty minutes after you arrive.
Thunder Under Group LLC no longer holds the network contract for the Coast Guard’s ARSC. They do, however, hold two contracts: one is for data entry and the other is for work in the warehouse. One of these contracts was let shortly after Mr. Merrill was fired, but you have yet to get any additional information. Belinda Gloom has indicated TUG has no plans to hire Mr. Merrill back.
In the initial counseling interview, Mr. Merrill shares with you what it would take to “be made whole.” He does not want his job back, rather he wants to be remunerated for lost wages and benefits from the date of his firing until he is able to secure a position providing the same level of income he had with TUG. He also would like some punitive damages levied on TUG and the Coast Guard, but he’s less certain as to what form that would actually take. Both of these desires are clearly content goals. During this initial counseling interview, you also determine other, unstated, goals and desires. Mr. Merrill has a goal of being respected as a network administrator; he sees himself as a “techie” and placed great value on his one, and only, performance evaluation from TUG. He wants to be treated with respect by TUG and the Coast Guard during the course of the resolution of this process. Finally, he’s willing to move away from the informal venues provided by the EEO process. His original complaint was lodged with the State of North Carolina’s EEO Department; they passed the buck to the Federal EEO Office who then forwarded his complaint to the Coast Guard. Mr. Merrill has reached a “boiling point” and has begun looking for legal representation. The underlying interests, you suspect are two-fold: Mr. Merrill wants to be able to cover his debts incurred during his period of unemployment, he wants to beat his depression, and he wants to be seen by others as a professional.
Thunder Under Group wants to put this behind them. Ms. Gloom believes she and the company acted in good faith; they lost the contract and when contracts are lost, employees lose their jobs. As disappointing as this is, it is, in her view, the real world. The Coast Guard and GSA are about in the same place. Both the Coast Guard and GSA were focused on the performance of the contract; they claim that TUG was unable to perform the contract to the levels required by the contract.
What is the best alternative to a negotiated agreement? On the one hand, it appears that a resolution is not possible at the informal stage. The Coast Guard asserts Mr. Merrill was not a Coast Guard employee and is, actually, not able to assert discrimination by the Coast Guard. TUG asserts his employment was terminated with the loss of the contract with the Coast Guard; the work dried up, in essence. At this point, the best alternative to a negotiated agreement (BATNA) is to allow Mr. Merrill to file a formal EEO complaint. A second component to this BATNA would be to provide Mr. Merrill with all documents relating to the contract, the termination of the contract, additional contracts awarded to TUG, and the posting of his picture at the security post at the entrance to the ARSC facility.
Commitments and Communication of the Parties
Mr. Merrill is committed to see this issue through. He was fired nearly a year ago and has been working through state and federal bureaucracies in order to have his complaint heard. He is nearly unwilling to continue down the informal route, and he is currently looking for legal representation. The Coast Guard is willing, at this point, to engage Mr. Merrill, although they may not actually accept the formal complaint. Some members of the Coast Guard are unwilling to provide Mr. Merrill with information or documentation, following a cultural imperative that transparency is not always what is best for the agency. They are, however, willing to speak to you and provide you with various documents.
Mr. Merrill is unwilling to speak directly to any member of the Coast Guard, TUG, or the GSA. All communications, except for meeting for the informal counseling session, have been by mail or e-mail.
You have the basic facts. The question is now, “Now what?” How did this conflict occur? How could it have been prevented? What can all the players do in the future to ensure something like this doesn’t happen again? What options exist within this conflict? What would you recommend as an intervention strategy at this point? How do you think this will get resolved? What will be the outcome? These, and other questions, ought to be the focus in an analysis and synthesis of this case study.
Federal Sector Equal Employment Opportunity, 29 C.F.R. 1614 (1999). Retrieved October 23, 2004, from http://www.eeoc.gov/federal/1614-final.html