By Homeless Fed (aka Yolanda)
This is a first person account of the federal complaint process for federal employees. At present the plan is for a series of five installments covering "the elephant in the room" - Is the federal complaints process really meant to help federal employees, or is it set up to provide agency's a distinct advantage in protecting themselves and their managers? Is the mission of today's MSPB and EEOC truly to uphold merit principles and prevent discrimination and prohibited personnel practices against federal employees, or is their mission in fact to hinder and thwart federal employee attempts to find justice? In showing the inherent bias of the MSPB in conducting annual hands on training to agency's on "their top five mistakes that lead to cases being overturned at the MSPB," and showing the glaring disparities within the EEOC complaints process for public sector employees versus private sector employees, it will reveal the truth, what every federal employee who has dealt with the process knows, in the federal complaints process agency's are the proverbial "fox guarding the hen house."
Case and point, take an equal employment officer (EEO Specialist) who instead of being able to exercise the independent authority inherent with this position reports not directly to the agency Commander or Director but instead reports to the head of human resources or to agency General Counsel. In this situation it is not possible for the EEO Specialist to truly and freely exercise their independent judgment regarding complaints received if it is contrary to her bosses opinion or wishes. A specialist in this situation is vulnerable to continued pressure from her boss and the affect going against her boss will have on her performance evaluation and career, having witnessed from the inside the lengths to which some agency's will go to "address" employees who file complaints. In 2009 the Department of Interior Fish and wildlife department was the subject of an investigation for just such reasons.
Installment One --Stacked Deck or 3 Card Monte?
The deck is truly stacked against federal employees who file complaints. The complaint system for federal employees is in a lot of ways like a game of 3 Card Monte," As in 3 card Monte, a confidence game or "con," the complaint process for federal employees is nothing but a hustle, a "sleight of hand" maneuver to give a certain impression. The employee is first 'tricked or conned' by the agency EEO officer into believing they are "really there to help them" when in reality they are there to protect the agency. Any federal employee that believes the EEO officer is truly there to help them is either naive or delusional; either way they are in for a rude awakening. In all fairness there are those EEO officers that at least at the outset are truly in the position to help their fellow employees, however with time and agency pressure this fades. Second the employee is tricked into believing that they can win their case and the agency will be stopped from harassing or discriminating against them. This lasts for a very short time as most supervisors and managers begin retaliating against the employee before the ink is dry on their complaint.
In "3 card Monte" the "shill" helps perpetuate the short con by pretending to conspire with the mark but in actuality is conspiring with the dealer. In the federal complaint process the "shill" is played by the agency EEO officer. The agency EEO officer puts on an act as if they are your new best friend, "they truly have your interests at heart - they are here to help," which is of course a double helping of hog manure.
For most items you have the option of filing actions with the U.S. Equal Employment Opportunity Commission (EEOC), U.S. Merit Systems Protection Board (MSPB), or in the Federal District Courts. All of which have an abysmal record in finding in favor of federal employees versus finding for the federal agency. Statistics show the EEOC finds for the federal employee in less than 3% of case s. The MSPB's record is much the same, and the record is even worse within the federal district courts, especially for pro se plaintiffs. One has to wonder why? Why these two agencies records on federal employee cases are so abysmal when you hear of near constant awards to employees in the private sector. Why their records on federal employee cases are so abysmal given they were established to help employees and protect their rights, with the MSPB being established solely to protect federal employees' rights. Sadly, while they may have started out that way they are no where near that way today, and I use "may" in the archaic sense of the word.
Could the reason be because these same agencies that were created to help the federal employee, the MSPB in particular who was created to help adjudicate issues for federal employees and uphold the merit principles, are in fact out training agencies on how not to have their cases overturned at the appellate and petition for review level? The Office of Personnel Management (OPM) and EEOC's hands are not clean in this respect either. This training is sanctioned and set up by OPM which is another agency that is supposed to be taking care of federal employees. There is no one who has the federal employee's back, no one. Even society in the last decade had been of the opinion that federal employees were lazy, over paid, and entitled.
In May 2012 the Office of Personnel Management (OPM) sponsored and provided training via web cast to federal agencies entitled "MSPB case law update" where they had the following people from the MSPB provide training on "the top five mistakes agencies make that cause agency decisions to be reversed at the MSPB." Mr. Michael Bogdanow, legal liaison for the office of regional operations at the MSPB and Mr. Ronald Weiss, an administrative judge in the office of regional operations, conducted the training. Items discussed during the training included significant MSPB and federal circuit of appeals case law on topics of attorney's fees; compensatory damages, constructive actions, disability discrimination, due process, FMLA, jurisdiction, penalty selection, probationary employees, restoration, settlement, suitability, Whistleblowers Protection Act (WPA), and agency mistakes on these topics.
In August 2014 Ms. Debra Buford, Manager of Employee Accountability and Partnership in Labor Relations, OPM, opened the OPM sponsored 2014 MSPB Mock Hearing with the following statement (note they make no mention of being an employee/appellant):
"whether you are a federal manager or employee relations practitioner you can increase your understanding of evidence, examination of witnesses, and other aspects involved in an MSPB hearing. In this way you will gain a better appreciation of the documentation you will need to prepare as the foundation of a defensible agency action at the MSPB."
She went on to inform the agency attendees that could ask questions of Mr. Bogdanow and those attending by web cast could do so by emailing their questions.
In April 2015 not only did the EEOC and MSPB train federal agencies, the MSPB held another mock hearing so agency lawyers would become familiar with the hearing process, how the Administrative Judge ruled, and become familiar with objections, and the evidence process. The 2015 training also opened by Ms. Buford, covered case law impacting adverse and performance based actions and topics such as "drafting charges, penalty selection, Nexis, credibility, due process, security clearance determinations, and other matters." Some of the speakers for the 2015 training included Chief Judge Stephen C. Mish of the MSPB Denver Field Office, the legal liaison between MSPB headquarters and their regional offices, Administrative Judge Evan Roth in the Denver Field office of the MSPB, Mr. Michael Bogdanow, SES James Read of the MSPB who was once the Chief Counsel to the Chairman and Director of the Office of Appeals Counsel, Ms. Karen Gorman, Deputy Chief disclosure unit of the Office of Special Counsel (OSC), Susan Tsui Grundmann Chairman of the MSPB, Ms. Jessica Klement, the legislative director for the National Active & Retired Federal Employees Association (NARFE), and Ms. Carolyn Lerner, Head of the U.S. Office of Special Counsel also an agency that is there to assist federal employees, Mr. Louis Lopez who manages the investigation and prosecution of cases under the Whistleblower Protection Act, Hatch Act at the U.S. Office of Special Counsel, and several high level officials from the Federal Labor Relations Authority (FLRA), the EEOC Chief Mediation Officer and RESOLVE director, the Chief Administrative Judge of the MSPB Deborah Miron, were also part of the training. among others.
This goes beyond a simple conflict of interest and to straight outright bias against federal employees who file complaints. The MSPB claims to be "a neutral, independent third party" whose "adjudication information also improves the effectiveness and efficiency of the adjudication process by helping the involved parties understand the law and how to prepare and present thorough, well-reasoned cases." Whose "mission" is to "ensure that Federal employees are protected against abuses by agency management, that Executive branch agencies make employment decisions in accordance with the merit system principles, and that Federal merit systems are kept free of prohibited personnel practices." Apparently this only applies to their "adjudication customers" i.e. legal counsel and agencies. Given that equal training is not provided to federal employees shows an outright bias of these agencies and individuals for the Agency. MSPB Chairman Grundmann's is quoted to have said during 2011 training to agency EEO practitioners,
"The EEO community can serve as a partner with MSPB and help ensure that Federal agencies create workplaces where merit system principles of equity and fairness are upheld, and prohibited personnel practices are non-existent."
Apparently, Chairman Grundmann's strategy to ensure Federal agencies create workplaces where merit system principles of equity and fairness are upheld, and prohibited personnel practices are non-existent is to provide agency's training on the top five mistakes they make that causes agency decisions to be reversed at the MSPB.