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Federal Employment and Labor Law Blog

Title VII allows federal employees more time to sue in court

One of the most important elements of a lawsuit that you should be aware of, is the application of a statute of limitations to your claim. Statutes of limitations are, as the name suggests, the limitations applied to causes of action, i.e., the right to sue on some grievance. They vary in length, and once they "run," or have expired, they work as an absolute ban on filing a lawsuit.

For federal workers there are additional rules that they must comply with when suing the federal government for a Title VII discrimination claim. A worker is required to file an administrative action first with their agency or the Equal Employment Opportunity Commission (EEOC) before they attempt to sue in a federal court.

Federal hiring may not always be "fair and open"

Everyone is in favor "fair and open" hiring procedures. It is especially important for entities like the federal government, for one, because violating the Civil Service laws is illegal, and secondly, we want federal jobs to be open for all qualified citizens and the federal government should embody the spirit of all of the employment laws that have been designed to promote fairness in the workplace.

A report from the Merit Systems Protection Board (MSPB) suggests that in some cases, hiring authorities put in place to promote some groups, like veterans for jobs in the federal workplace, may wind up inhibiting that competition. Manager's behavior may also affect the process, by limiting the period a posting is open, or reopening a posting to allow a preferred candidate to apply.

Two GSA commissioners reinstated by MSPB

If you have been disciplined or subjected to an investigation relating to a possible adverse job action, you will quickly realize that one of the most important factors in the outcome of your case is the evidence presented.

While the administrative proceedings that make up most federal employment disputes are governed by different rules of evidence from criminal cases, the evidence is just a vital. Two cases arising out of the General Services Administration's (GSA) Las Vegas conference scandal demonstrate how important evidence or lack of evidence can be to whether a federal employee is separated or reinstated with back pay.

The VA's can of worms

The scandal involving the Department of Veterans Affairs (VA) hospital scheduling delays is problematic in many ways. It apparently may have delayed treatment of veterans by keeping some portions of those waiting "off the books," apparently so that the performance of the hospitals would look more favorable.

It led to Congress changing the law controlling how senior officials within the VA can be disciplined and terminated. The law itself has been called into question, as it forces the official to appeal their notice of removal within seven days and only provides the Merit Systems Protection Board (MSPB) with 21 days to render a decision. 

If you can't remember, is it lack of candor?

Office of Special Counsel (OSC) obtained an order in a case involving potential retaliation by the Department of Homeland Security against one of their employees. The order from one of members of the Merit Systems Protection Board (MSPB) will provide 45 days for the OSC to investigate the circumstances surrounding the termination of Transportation Security Administration (TSA) inspector.

It seems this inspector had complained to TSA management that her supervisor had been improperly recording his working and training hours with his dog, to make it appear that he was meeting TSA requirements. 

Punishing the retaliators

This is a thorny problem for any bureaucracy, but it certainly is a significant problem for the federal government. When a federal worker engages in whistleblowing, he or she is typically going outside the hierarchy of their department or divisions to bring notice to the problem or wrongdoing.

Managers greatly dislike having their authority and decision-making ability questioned in such an overt manner and may be personally offended by someone beneath them going around them and very likely embarrassing them. And this often leads to retaliation by the manger or supervisors. 

Judgment is needed to protect true merit

That managers are important in the operation of an entity is a commonplace. The proverbial statement that "A fish rots from the head down," apparently attributed to the Turks, is no doubt ancient in origin.

Nonetheless, the Ottoman Empire was known for having a complex bureaucracy, so it is apropos in discussing the federal government's employment practices and the work of the Merit Systems Protection Board (MSPB).

EEOC reinstates DHS employee due to sex discrimination

In some employment cases involving discrimination, it is often difficult to discriminate between genuine reasons for an action and pretext. In the context of federal employment, managers or supervisors with the agency may unfairly discriminate against an employee, firing them, denying them opportunities for promotion or subjecting them to adverse job actions. However, they may claim they have a legitimate reason for their actions, creating the pretext.

Pretext can be a difficult employment case to prove, because it requires the employee to get behind the purported rationale. The agency may put forward various reasons for their actions, and many of them could be true, but are not in the particular case.

Veteran preference laws create complexity

Military service veterans are entitled to special preferences for employment in light of their service. Military service, even in time of peace, is often a risky job and as a nation, one of the rewards we provide those who have served is with preferences in federal employment.

Two laws, the Veterans Employment Opportunities Act of 1998 (VEOA), and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), are designed to protect the employment preferences and rights of veterans.

The VEOA works specifically to protect the rights of veterans who apply for federal employment. The USERRA, is broader, in that it protects the rights of veterans who leave their existing jobs in the civilian sector or federal government, and then return after a period of active duty military service.

SSA settles $9.9 million discrimination lawsuit

While the federal government is responsible for the enforcement of all of the federal employment laws and regulations in the U.S., it is also a very large bureaucracy. There are tens of thousands of employees and managers working in diverse jobs, including medical researchers, weather forecasters, park rangers, FBI agents and federal judges.

And this can lead to sometimes ironic juxtapositions. A case has recently settled involving the Social Security Administration and disabled workers. The irony here is the SSA is responsible for processing and administering claims for disability insurance benefits, and keeping workers who suffer some form of disability working with is generally advantageous for the system.

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