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Federal Employees: You be the Judge


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ICE  
#1 Posted : Saturday, April 03, 2010 12:53:01 AM(UTC)
ICE

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Posts: 86

They currently have the OSC, MSPB, and EEOC. Actually they should have an organization that would advocate/represent the employee in the same manner the Agency is fully represented at the expense of the taxpayer, because statistics show that chances of winning for the employee is slim to nothing. Don't even think about the Union representing the employee! This is a huge disparity! Another thing is, they could combine the three. OSC tends to be more legalistic. They all do discrimination and reprisal complaints and abuse their discretion. Which is worse, MSPB or EEOC?

luvdata  
#2 Posted : Saturday, April 03, 2010 2:15:54 AM(UTC)
luvdata

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I advocate dissolving OSC, which after the inept leadership of Scott Bloch is now useless.  

MSPB and EEOC are two different venues with different areas of law.  There are benefits and pitfalls to both administrative courts.  That said, note that it is not a "pick and choose" type of scenario.  Very few cases permit an appellant to chose one over the other.  Some would say that the two are mutually exclusive.  (In certain cases, I disagree, but that's too esoteric to get into here)

To give you a few examples of how each has its benefits, 

  • MSPB has a 120-day timeline, which it usually fails to comply with, but cases are almost always adjudicated within a year
  • EEOC has a theoretical timeline, but most cases take years to be heard
  • MSPB has subpoena power
  • EEOC does not have subpoena power, and former employees cannot be commanded to testify
  • EEOC cases are appealable to district court
  • MSPB cases are not appealable to district court, except in limited circumstances

In any case, this may simply be a theoretical question.  It would take a major act of Congress to change the current setup, and ultimately from an appellant/complainant perspective makes little difference.  It's not a matter of venue shopping -- most cases can only be heard by one or the other.

And as I always say, if you need assistance on the matter, consult an attorney.  They're the only ones who can give you a professional opinion on your own circumstance.


luvdata2010-04-03 10:23:57
Loredrin  
#3 Posted : Saturday, April 03, 2010 7:42:05 AM(UTC)
Loredrin

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I think the question you need to ask is this.

Would things be any different if a federal employee was treated like a private sector employee, in respects to legal avenues available to them?

In other words get rid of DOL-VETS, MSPB, OSC, and treat federal EEO complaints the same as private sector complaints.

From the reports we have seen (thank you Mrs. Yee), the stories posted on this, and other, forums it would certainly be less favorable to the agency than the current situation.

Break Heart  
#4 Posted : Saturday, April 03, 2010 11:21:12 AM(UTC)
Break Heart

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EEOC does not have subpoena power, and former employees cannot be commanded to testify

Would you please explain about why former employees cannot be commanded to testify? I found some cases last ten or twenty years due to agency some reasons.

If I do not remember wrong MSPB case can appeal to Federal Court in D.C? right? That happened to me. I gave up my employee's rights due to MSPB AJ decision was based on untruth(or incomplete)  testimony. What I can do is to publish or to post all these hard copies (change to PDF) in the public. I wish people from  me can learn a little  bit lesson.

How sad.
Mystery
Oosik  
#5 Posted : Sunday, April 04, 2010 4:00:47 AM(UTC)
Oosik

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Actually, Luvdata, EEOC cases cannot be "appealed" to a district court as the case is heard de novo (from the beginning).   If the complainant doesn't like the EEOC result, whether they won or lost at the admin level, the courts reconsider the entire case anew.  If a complainant prevailed at EEOC and is unhappy with the result, they may not even get what the AJ awarded even if they prevail again.

The mixed case MSPB actions do have an appeal aspect if processed at a district court as their nondiscrimination findings are subject to an appeal standard of arbitrary and capricious.  The discrimination claims are de novo and held to a preponderance of the evidence standard.

Now for Ice's comment about having an organization dedicated to processing the case for the employee.  Have you ever wondered why there are so many more federal sector cases than in the private sector?  The feds make it oh so easy to file a complaint.  Walk into an EEO office, put some allegation down on paper - whether it is true or made up - and the feds begin an elaborate  investigation into the claims.  Even a barely plausible claim is often well on its way to expending thousands of taxpayer dollars because some employee felt unappreciated or treated "unfairly".   First you have the informal investigation then when the employee goes formal you often have sworn testimony and elaborate hearings -- taking many agency employees away from their work.  If the employee doesn't like the result, the case goes on to the EEOC where the agency again gets to spend money on court reporters, lost productivity and often onerous discovery.  Only when it gets to this level can the agency start getting discovery from the complainant.  Up to this time, the employee gets some official time and has to show up at the hearing. 

Now Ice is proposing that we have an agency to help facilitate the federal employees even more.  Do we need to make it even easier for federal employees?  Hardly, as noted above, most employees only have to show up and help identify prospective witnesses for most of the processing.  The EEOC will file complaints against private sector companies, but they really do ensure that the cases have some merit.  Regardless of what you think of the EEOC system, the overwhelming reason that 97% or so of the cases are for the agency is because the cases lack merit.

How about having a cost based loser pays everything system.  If the employee doesn't prevail on their claims, they get to pay ALL the processing costs.  Fair to the taxpayer, fair to the employees who prove their claims and fair to the agencies.


Break Heart  
#6 Posted : Sunday, April 04, 2010 4:27:55 AM(UTC)
Break Heart

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Dear folks,

Read these info. What do you think?

bulk.resource.org/courts.gov/c/F3/170/170.F3d.411.98-1130.html

6 For example, in Merritt v. Dillard Paper Company, 120 F.3d 1181 (11th


Cir. 1997), the plaintiff testified in a co-worker's Title VII action


about sexual harassment in the workplace.  Shortly after the case was


settled, the president of the company fired the plaintiff.  The court


found direct evidence of retaliation based on the president's statement to


the plaintiff, "[y]our deposition was the most damning to Dillard's case,


and you no longer have a place here at Dillard Paper Company."


 

bulk.resource.org/courts.gov/c/F3/170/170.F3d.411.98-1130.html

www.mmmglawblog.com/tp.../post-100325182404.shtml 

Mystery
freeageless  
#7 Posted : Sunday, April 04, 2010 4:30:54 AM(UTC)
freeageless

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Oosik, Oosik, Oosik, again you are confused, perhaps the heat is getting to you, or maybe you are just losing it. I know defending management at all costs is tough, or perhaps the Holy Father has deserted you. The fact that the case is heard "de novo" does not mean that the case cannot be appealed to a district court. As a matter of fact, it is well known that you have to exhaust your administrative remedies, BEFORE you can appeal your claim to district court. In addition, the EEOC letter tells you your options, and one of those options is you may APPEAL your case to district court. The fact that the case is heard "de novo' is irrelevant for appeal purposes. It just means for all practical purposes that the federal courts know that the EEOC judges decisions are by and large a sham. Secondly, the reason that the complainant does not have to pay if he loses is two fold. One is that during the legislative history of Title VII, it was stated that Title VII is a remedial act, not an adverserial act to address discrimination, and it was recognized that the complainant was greatly disadvantaged because of the vast resources that the federal government had at it's disposal. (See legislative history of Title VII on Lexis or Westlaw). Fianlly, Oosik the agency generally does not even really need to do discovery, because in almost all the cases, 99.9 percent of the needed documents are held by the agency. The principal purpose for the agency to conduct discovery is to harrass the complainant, and hope to drive up the costs to the complainant.

Quotes from Oosik

"Actually, Luvdata, EEOC cases cannot be "appealed" to a district court as the case is heard de novo (from the beginning)."

"How about having a cost based loser pays everything system. If the employee doesn't prevail on their claims, they get to pay ALL the processing costs."

"Only when it gets to this level can the agency start getting discovery from the complainant." freeageless2010-04-04 12:43:07
Break Heart  
#8 Posted : Sunday, April 04, 2010 4:44:05 AM(UTC)
Break Heart

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Posts: 279

What "EEOC cases cannot be "appealed" to a district court "

Dear OO-sik,


Here is EEOC website words can slap......"Ubad"(one member's icon.)(Please excuse my pre-law practice experience)


Nov 21, 2009 ... Appendix J to EEO MD-110 contains a list of EEOC District/Field Offices, ... Once the EEOC receives the case file and issues an ..... A complainant has the right to file a civil action in an appropriate U.S. District Court at any ... if appealed, the Commission may make a factual determination as to ...
www.eeoc.gov � Federal AgenciesDigest of EEO Law


 Cool>>>>>cool!


Break Heart2010-04-04 12:49:28
Mystery
luvdata  
#9 Posted : Sunday, April 04, 2010 5:29:46 AM(UTC)
luvdata

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Oosik,
 
From a technical standpoint, your first two paragraphs were pretty good.  In fact, your second paragraph detailing the bifurcated nature of mixed case processing in district court was impressive.  After that, your response rolled downhill quickly.
 
As Breakheart has pointed out, the word appeal is used quite broadly in this context.  A district court case is indeed a new trial, for which remedies must first be exhausted either in administrative court, or through the tolling of the requisite amount of time before a case can be heard.  I wouldn't split hairs over syntax.
 
As far as how easy it is to file an appeal or complaint in the federal government -- it really isn't.  However, many citizens -- federal employees included -- have the false sense that government employees are protected from arbitrary actions by the Cvil Service Reform Act (CSRA) and other statutes.  They couldn't be more wrong, but that's besides the point.  These courts hear cases from federal employees who falsely believe that laws still count. And these courts (MSPB and EEOC) falsely pretend to adjudicate these laws which we are all supposed to pretend still count.
Oosik  
#10 Posted : Sunday, April 04, 2010 10:40:06 AM(UTC)
Oosik

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Freeageless, If you honestly think that starting all over in federal district court isn't a meaningful and difficult step, you are more clueless than I had thought.  Usually the only benefit to an EEOC decision in federal court is that it makes the motion for summary judgment all the easier to file.  Complainants should understand that if they make the several hundred dollar option to file a complaint in court, it not only becomes much more challenging it also means that whatever victories or settlement options that may have been won or had been available in the administrative processing are usually no longer in play.  Starting over is significant and I have to disagree with Luvdata that the difference between de novo and appeal is simply a matter of syntax.  It's a significant difference. 

As for discovery, employees often have documents, records and information that are not disclosed until the agency gets the chance to get discovery.   I don't think most complainants understand that discovery is a two way street.

Finally, do I think that complainant's will ever have to bear the costs of losing if not entirely frivolous complaints -- of course not.  Ice was suggesting an activity to represent employees in the already simple process of filing complaints.  I was merely suggesting an alternative.  I know that neither proposal will be adopted but I do play the role of devil's advocate on this board (even if it is Easter Sunday).

freeageless  
#11 Posted : Sunday, April 04, 2010 12:30:22 PM(UTC)
freeageless

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Posts: 1,335

Oosik, your posting is so full of holes,you can drive a Mack truck through it. You state: " Usually the only benefit to an EEOC decision in federal court is that it makes the motion for summary judgment all the easier to file." If that were the case, almost all EEOC cases would be thrown out of the federal district court. To the contrary, surviving summary judment motions in district court is relatively simple. Secondly, you state: "Freeageless, If you honestly think that starting all over in federal district court isn't a meaningful and difficult step, you are more clueless than I had thought." You are not starting over in district court. You have created a record for the reviewing court ie., the district court. Almost all the documents are available for the federal court except the AJ's decision and findings. In addition, most complainants know that discovery SHOULD be a two way street. It is the agency that thinks discovery should be a one way street, and that street should be them doing the discovery-not the complainant. As I stated earlier Oosik,on this Easter Sunday, the Holy Father has deserted you. He or she has left you on your own.    
Oosik  
#12 Posted : Sunday, April 04, 2010 9:28:22 PM(UTC)
Oosik

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Actually, very few complainants get their requested jury trial.  Most cases are resolved by summary judgment and a few through settlement.  Free, did any of the many cases you pursued actually make it to a jury for a decision?  Of course, only the EEO cases get a jury trial but if you made it past a bench trial for a non-Title VII type claim, I would be surprised at that as well.
freeageless  
#13 Posted : Sunday, April 04, 2010 10:25:11 PM(UTC)
freeageless

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Posts: 1,335

Oosik, all the cases I had made it to either a bench trial or were settled. In addition, I saw very few cases where either the plaintiff or the defendant prevailed on a summary judgment motion. One of the cases, I did see where the plaintiff prevailed was the Byrd decision on Lexis where the Judge found the IRS affirmative action plan unconstitutional under the 5th Amendment. The chances are that if you have been able to get your case through the admin process, you are probably or should be well versed in the facts and case law regarding your case. That is why you have a pretty good chance of surviving a summary judgment motion. A perfect example is this: Look how well luvdata is doing with her case-and she is a "pro se" litigant. Also, keep in mind the federal judge does not tell the defendant or the plantiff to file a summary judgment motion. At the EEOC level, I have seen the biased AJ's tell the government to file a summary judgment motion, thus in effect telling the complainant he has no case. Tall about bias on the part of the AJ's. I can't conceive of anything more biased than that. Also look at OFO and the AJ's decisions, and compare them with district court EEO related decisions. AJ and OFO decisions may run from a half a page to 4 pages long. District Court decisions can be from 10 pages to 300 pages on average. That tells you right there the lousy job that OFO and the AJ's do in EEO cases. They are in general to lazy to do anything more than support the agency. The AJ's, EEOC, and OFO are a disgrace. They do not earn their salaries.

"Free, did any of the many cases you pursued actually make it to a jury for a decision?"freeageless2010-04-05 07:08:39
Inquire  
#14 Posted : Monday, April 05, 2010 12:11:44 AM(UTC)
Inquire

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Posts: 688

Free:
 
I want to add my 2 cents to your comments.
In my case the AJ did not sign his decision, however that is not all he did not do.
"Great danger lies in the notion that we can reason with evil."
Inquire  
#15 Posted : Monday, April 05, 2010 12:17:28 AM(UTC)
Inquire

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Posts: 688

freeageless wrote:
Oosik, all the cases I had made it to either a bench trial or were settled. In addition, I saw very few cases where either the plaintiff or the defendant prevailed on a summary judgment motion. One of the cases, I did see where the plaintiff prevailed was the Byrd decision on Lexis where the Judge found the IRS affirmative action plan unconstitutional under the 5th Amendment. The chances are that if you have been able to get your case through the admin process, you are probably or should be well versed in the facts and case law regarding your case. That is why you have a pretty good chance of surviving a summary judgment motion. A perfect example is this: Look how well luvdata is doing with her case-and she is a "pro se" litigant. Also, keep in mind the federal judge does not tell the defendant or the plantiff to file a summary judgment motion. At the EEOC level, I have seen the biased AJ's tell the government to file a summary judgment motion, thus in effect telling the complainant he has no case. Tall about bias on the part of the AJ's. I can't conceive of anything more biased than that. Also look at OFO and the AJ's decisions, and compare them with district court EEO related decisions. AJ and OFO decisions may run from a half a page to 4 pages long. District Court decisions can be from 10 pages to 300 pages on average. That tells you right there the lousy job that OFO and the AJ's do in EEO cases. They are in general to lazy to do anything more than support the agency. The AJ's, EEOC, and OFO are a disgrace. They do not earn their salaries.

"Free, did any of the many cases you pursued actually make it to a jury for a decision?"
 
 
 
Free you stated:
"I can't conceive of anything more biased than that."
 
In my case the AJ failed to issue an order granting and/or denying my motions to compel the Agency to provide discovery and interrogatory;  Failed issue a decision in response to my motions for summary judgment that I filed beginning in 2005, but instead held a hearing on the same issues in 2007;  Did not rather act within accordance with 29 C.F.R. § 1614.109(g) when the agency did not respond to my motions for summary judgments; and on and on and on......
 
I DID NOT HE SAY DID NOT RULE IN MY FAVOR - I SAID HE DID NOT RULE - PERIOD.

 

 

"Great danger lies in the notion that we can reason with evil."
freeageless  
#16 Posted : Monday, April 05, 2010 4:36:15 AM(UTC)
freeageless

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Inquire, no because all the cases that I had that could have gone to jury trials were prior to the Civil Rights Act of 1991 which authorized jury trials for federal employees in district court. In other words prior to that Act, federal employees in discrimination cases were not entitled to jury trials. Thus all my cases were before a federal judge, and they were tried before him or settled prior to trial before the federal judge. That Act was obviously a major victory for federal employees bringing discrimination claims, because it authorized among other things jury trials.   

Quote from Inquire

"Free, did any of the many cases you pursued actually make it to a jury for a decision?"freeageless2010-04-05 12:41:48
Agent555  
#17 Posted : Monday, April 05, 2010 11:42:32 PM(UTC)
Agent555

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How many cases did you pursue?  What were the causes of action, and what were the results?  Did they all have merit? 
 
I am sorry for all of the questions, but I am just curious, because it sounds like you have had a fair number of cases.
 
 
freeageless wrote:
all the cases I had made it to either a bench trial or were settled.
Agent5552010-04-06 07:58:56
lostinlegalese  
#18 Posted : Tuesday, April 06, 2010 1:23:18 AM(UTC)
lostinlegalese

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If you ask for summary judgement at MSPB, get a no jirusdiction ruling, are your discrimination claims appealable to EEOC, and if so, do you start again with agency EEOC (is it de novo ?)
freeageless  
#19 Posted : Tuesday, April 06, 2010 1:54:17 AM(UTC)
freeageless

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These were the cases. All my cases had merit. Two were Freedom of Information Act cases, I filed in district court. The agency released all the documents that they had denied me during the administrative process, after I filed suit in district court and a summary judgment motion along with the suit. They released the requested documents before the judge ruled. I filed a reverse race case (my first case). It went to a bench trial that is trial without a jury. I did not win, however, the federal judge did state in his final ruling that it was a "close and complex case." Another case after that was also a reverse race and retaliation case. The government settled that case, after I filed summary judgment motions, and the judge indicated during pre-trial arguments that he would likly rule against the government. That was because the judge ruled that there was direct evidence of discrimination. The manager and he supervised the other memebers of the selecting panel admitted that he told the panel members prior to the selection that "all things being equal he wanted to see a a black and a female selected." The federal judge ruled that that constituted DIRECT EVIDENCE OF DISCRIMINATION. In another case my final case, I challenged in federal court the agency's policy of paying per-diem for federal employees to go to Black's in Government conventions. In addition, I challenged the agency affirmation action plan on the grounds that it excluded white males. The federal judge denied the government's motion to dismiss, and ruled that I had legal standing to challenge both under the Fifth Amendment's Equal Protection Provisions and Title VII. The AUSA transferred the defense of that case to the Federal Progams Branch of the Civil Litigation Division in Washington, because the AUSA told me that my case now had national significance, probably he added even more than I realize. Shortly thereafter, the government paid me to drop that case. The above is a very brief resume of my significant cases. All of my cases were done as a pro se litigant and I have no formal training in the law. I am now retired and have been for the last almost 3 years. I consider my years of litigation to have been the most richly rewarding and the greatest learning experience in my over 30 years of federal employment. I look back on it now, and I wonder where I got the energy and persistence to do what I did.

PS: I also handled some other cases for others which I prevailed in, and several other cases. In one particular case, a black female called me and told me that a Colonel her supervisor had told members of his staff that he did not wamt them to hire another n..... She also told me that she had 3 affidavits from white officers one a reserve Colonel stating that he had said that. I told her that he might have said that, but that I did not believe that a black or white officer would sign an affidavit saying that. She stated that she would bring me the affidavits, and that he had had the position classifer cap her 7, 9, 11, position at the GS-7. The position classifier, who had received accolades in the past from the Colonel was a black male. I did not think I would see any affidavits, but shortly thereafter, I was shocked. She brought me the affidavits. I said when you see that Colonel in the hallway, you just smile at him. She said why, and are you going to take my case. I said yes, and I am going to fry his butt. Needless to say, the agency settled that case quickly. She got everything she wanted: back pay with interest, plus her promotions, and the Colonel was transferred to a different installation and retired. Some of the people who post on this forum, think that I am only interested in justice for white males. That is false. I believe in Equal Justice for All, and I think my years of pro se litigation proves that. Perhaps one reason that the agency settled this case involving the black female so quickly was because at that time General Colin Powell was the Chairman of the Joint Chief's of Staff for DoD. I got tired of the agency stonewalling, so I sent a copy of the affadavits to General Powell. In my letter to him, I stated I was a white male representing a black female and that the agency DoD was letting my client twist slowly, slowly in the wind, and I trusted that he believed in justice, and would take immediate action in regards to this matter. To the disbelief of my client and my co workers, several days later, I received a written response from General Powell, and he stated that he had discussed the matter with the Commanding General of the installation, and that an investigation into the Colonel was underway. The next day I received a phone call from the labor lawyer asking me exactly what my client wanted to settle the case. I told him, and she got as stated above everything she wanted. The only thing we did not like, was that later the position classifier received promotions. However, that's those management a... kissers for you.   freeageless2010-04-06 11:53:05
freeageless  
#20 Posted : Tuesday, April 06, 2010 5:39:57 AM(UTC)
freeageless

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Posts: 1,335

I should also add that prior to my letter to General Powell, I was informed that based on my client's allegations, the headquarters informed me that a 15-6 investigation into the allegations was taking place and the investigator was a Major General. The officer's who signed the affidavits were no longer at that post. They were in other installations in Europe, and were recalled to testify. I filed FOIA requests for the results of that investigation. Every ten days I would get the same response. The investigation is ongoing. You will receive the results or response upon the completion of the investigation. I wrote General Powell, because both me and my client were tired of waiting, and felt like this Colonel at the time who was promotable to General and the post commander were good friends. My client had also filed an EEO complaint. The EEO director who was black had advised her to drop the complaint, because she stated the Colonel was a powerful person, and could cause a lot of problems. Thus EEO did absolutely nothing. Shortly after my client prevailed, this EEO officer had a stroke, at a young age in her early forties and died. My client felt like the EEO director got her just desserts. I don't disagree. However, my experience is that is typical of EEO. Even when blatant discrimination is shoved right into their face, they run and hide. EEO officers and their cronies are throwing the taxpayers money down the drain-and that is my opinion.freeageless2010-04-06 14:20:07
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