The work of Phillip Kete's law firm falls into two broad categories: Litigation on behalf of individual employees and Collective Bargaining. This page describes the most common types of individual cases the firm takes and the different forums they can be litigated in.
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What does the firm do?
After an initial discussion, the firm will ask you to send it the complete record (e.g., the report of investigation in an EEO case, or the charges, response, and decision in a discharge case).
After reviewing the record and talking to you further, the firm will determine what has to be done in order to have a good chance of winning. That may be forcing the agency to provide additional information, or it may be persuading the MSPB or the EEOC to interpret the law favorably.
The firm will then quickly decide whether the chance of success warrants taking the case, and will discuss with you what fee, if any, would be required.
There is no charge for the initial consultation and analysis.
What does the firm charge you for my time and effort?
In MSPB, EEOC, and FLSA cases, there is no charge to the client for attorney time and effort. The firm relies on attorney fee awards from the government when it wins the case. In cases where fee awards are not possible, we can discuss a reasonable fee.
In some cases, however, the firm may have ask you to pay the cost of having a court reporter record the testimony of managers prior to the trial.
Types of Cases
Discipline can run from an oral reprimand to discharge. If you don't fight unfair minor discipline, it can be used against you to increase the penalty if later you do commit some punishable offense. Depending on the facts, you might challenge the discipline through the union contract grievance and arbitration procedure, an EEO complaint, or an appeal to the MSPB.
Agencies have the power to fire (or demote) employees for allegedly poor performance without actually proving that it is more likely than not that the employee's performance was inadequate. However, this power can be exercised only if certain preconditions are met, and often they are not. Appeals can be made either through the union contract procedures or to the MSPB.
It is illegal for agencies to discriminate against employees on the basis of race, color, religion, sex, national origin, age, disability, or as an act of reprisal for previous challenges to discrimination. Appeals can be made through the union contract procedures, an EEO complaint, or, in certain cases, an appeal to the MSPB. If unsuccessful in these forums, the employee can bring suit in federal district court.
Failure to Accommodate
It is a special form of illegal discrimination for an agency to fail to provide reasonable accommodations needed by disabled employees to work under conditions as nearly as possible equal to those of non-disabled employees. Challenges go to the same forums as other discrimination complaints: union contract procedures, EEO complaints, MSPB appeals, and federal district court.
The Fair Labor Standards Act generally requires payment at the rate of 1.5 for work performed more than 40 hours a week. Theoretically, appeals can be taken to OPM; in practice, only the contract grievance procedure and appeals to federal district court or the court of federal claims are worthwhile.
Unfair Labor Practices
This does not refer to every unfair action by an agency. It's a technical phrase limited to various violation of collective bargaining rights. Unfair labor practice complaints (ULPs) are decided by the FLRA. (The FLRA also decides disputes over agencies' obligation to bargain over particular union proposals.)
The Merit Systems Protection Board has jurisdiction over appeals from most employees about the most serious forms of discipline: discharges, demotions, and suspensions of more than 14 days. If the employee believes he or she was the victim of unlawful discrimination, including a failure to be accommodated, those issues are decided as part of the MSPB appeal or contract grievance rather than being decided separately by the EEOC.
Union Contract Grievance and Arbitration
Union contracts usually have grievance procedures that cover "any matter related to the employment of any employee," as well as disputes over contract interpretation or the interpretation of laws and regulations. At the employee's option, actions that could otherwise be appealed to the EEOC or the MSPB can be challenged under the grievance procedure. Note, however, that the union has exclusive control over what cases go to arbitration, and might decide to not spend the money on the employee's case - which means he or she is totally out of luck.
Claims that an agency has illegally discriminated against an employee (see 'Discrimination,' above) are decided by the Equal Employment Opportunity Commission (except those involving discharges and other actions within the MPSB's jurisdiction).
U.S. District Court
An employee who loses a discrimination case before the EEOC, MSPB, or an arbitrator can have it relitigated in U.S. District Court, before a judge and jury. FLSA cases can be brought in district court if the claim is for $10,000 or less. (If the claim is for more than $10,000, the case must go to the Court of Federal Claims).
U.S. Court of Appeals
An employee who loses a case before the MSPB, or an arbitration decision on a matter that could have gone to the MSPB, has a right to review by the U.S. Court of Appeals for the Federal Circuit. Agencies have no similar right to review; in rare cases they can persuade OPM to bring an appeal on their behalf.
In most cases, the party that loses a dispute before the FLRA can appeal to the court of appeals.
U.S. Court of Federal Claims
FLSA claims of more than $10,000 have to be brought in the Court of Federal Claims. Smaller claims can be brought either in this court of in the appropriate district court.
Summaries of Issues In Recent Cases
Enforce EEOC Decision
District court abused its discretion when it denied 60(b) motion for relief from judgment that denied judicial enforcement of a federal sector EEOC decision. The appeals court found that the district court had originally ruled in the agency's favor because it had successfully lied to the EEOC; once the court was informed that the EEOC had discovered the lie, the court should have reversed its own judgment in the agency's favor. The district court was instructed to issue the requested enforcement order.
Is it a prohibited personnel practice for an agency to fire an employee under the section of the law governing performance cases if the agency's performance appraisal system doesn't encourage employee participation in establishing performance standards or if the system doesn't base standards, to the maximum extent feasible, on objective criteria?
If so, should agencies be barred from firing employees under this section until OPM revises its own regulations to comply with the law and OPM reviews each agency system for that compliance?
Discriminatory Written Reprimand for Which No One Takes Responsibility
The immediate supervisor of a deaf employee gave him a written reprimand for getting into an altercation with a building guard, which occurred because of communication problems. The supervisor said that she merely delivered the reprimand, and that the decision to issue it was made by her boss. The supervisor's boss said that he did not make the decision; that the decision was made by the immediate supervisor. Since no one takes responsibility for making the decision, has the agency failed to meet its burden of introducing evidence that the true reason for the decision was not discriminatory?
Discharge for Off-Duty Misconduct
A black male employee pled guilty to an off-duty offense of receiving property which he should have known was stolen. The agency - which has a record of punishing black males more severely than other employees - fired him on the ground that no one who has ever done anything dishonest (cheating on one's income tax? cheating on one's spouse? taking home government pens?) can ever work for the agency.
(a) Since the admitted off-duty offence did not necessarily include dishonest intent, is there any ground for discipline at all?
(b) Is there any reason other than race and sex discrimination for not responding to the offense with a suspension rather than discharge?
Constructive Discharge Through Failure to Accommodate
The agency's failure to accommodate an employee's disability led to his disability retirement by exacerbating his condition to the point that now he cannot work at all.
(a) Is this a constructive discharge?
(b) Since he can't return to work, what should be remedy be?
Discriminatory Refusal to Allow Employee to Work at Home
A black female employee who was involved in EEO litigation against the agency was injured in a car accident, and for six months had to stay home. Her request to work from home was denied on the ground that "This is not a welfare office." There was work she could have usefully performed from home. Was this discrimination?