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There is a time to hold your tongue

The case described here provides a teachable moment for anyone involved in an employment law dispute. While this case did not involve a federal employee, or a hearing in front of the Merit Systems Protection Board (MSPB), it did involve allegations of sex discrimination and used mediation as the dispute resolution method, and the basic facts describe situations that can occur in virtually any employment setting.

The employee made a claim of sex discrimination. The Equal Employment Opportunity Commission (EEOC) set up a mediation session. Mediation is a less formal proceeding than a typical court hearing. During a mediation session, a mediator works with each side of a dispute, but does not represent either side. 

A mediator attempts to facilitate a resolution to the controversy by helping each side understand what the other side is attempting to achieve and develop a solution both sides can accept.

This mediation operated with the two sides in separate rooms and the mediator moving between. This is designed to minimize confrontations and permit each side to discuss the matter with the mediator.

When the employer presented the mediator with a proposed settlement offer, the employee was incensed. The court of appeals described what happened next, when he "stormed into the room occupied by his employer's representatives and said loudly: 'You can take your proposal and shove it up your ass and fire me and I'll see you in court.'"

The employer accepted this offer and fired him. The court found that he was fired for his misconduct during the mediation, and not in retaliation for bringing the original claim. The important fact to note is an employment law hearing does not insulate you from misconduct during that proceeding.

This is why we advise you to speak with an attorney first when you believe you have suffered a wrong at the hands of your employer. You must be careful in all your actions, to prevent inadvertently compromising your case. 

Source: FedSmith.com, "Think Before You React," Susan McGuire Smith, October 7, 2013

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