The Legal Ties That Bind
s an attorney representing federal employees, I find that among the hardest parts of the job is trying to explain to a client that there is no remedy for the wrong he has suffered on the job. The client often refuses to believe it and goes from lawyer to lawyer until he finds one who will tell him what he wants to hear: "They can't do this to you!" But, sadly, they often can.
Many federal employees and managers do not discover until well into their careers that there are many wrongs in the federal system that cannot be righted, no matter how arbitrary or unreasonable.
Consider, for example, the Customs Service criminal investigator who was suspended for five days in 1995 for improperly disclosing information and then reassigned to a non-law enforcement position at the same GS-13 grade. This action turned out to be far more than a five-day unpaid vacation, for it carried a permanent 25 percent reduction in pay (law enforcement officers receive 25 percent extra for being on call at all times) and eliminated the employee's ability to retire under the special law enforcement provision (age 50 with 20 years' service).
On appeal, a Merit Systems Protection Board judge ruled that because the 25 percent was premium and not basic pay, the board lacked jurisdiction. The full board and the Federal Circuit Court of Appeals upheld the judge. The agency had dealt a fatal blow to the employee's law enforcement career and severely damaged both his finances and his retirement, and he had no recourse.
Sovereign Immunity
The government is a unique employer. The doctrine of sovereign immunity basically says people can't sue the government unless it says they can. And to make matters worse, the government is generally not responsible for the acts or omissions of its employees, even if they acted negligently or in bad faith.
In personnel matters, federal employees rarely get justice outside the three main appeal conduits: the MSPB, the Equal Employment Opportunity Commission and the Office of Special Counsel (which needs the MSPB to enforce its decisions). To top it off, in the classic good-news and bad-news situation, the Supreme Court has ruled that federal employees cannot bring actions against their bosses personally, meaning bosses don't have to pay damages out of their own pockets - even if they are at fault. The high court said that if "management personnel face the added risk of personal liability for decisions they believe to be correct responses . . . they would be deterred from imposing discipline in future cases."
Even in sexual harassment cases, employees have no personal recourse against bosses in six of the seven federal circuit courts that have heard such cases. The Supreme Court has not yet addressed such a case.
Where to Turn
The Merit Systems Protection Board has jurisdiction in employee appeals over removals, demotions or suspensions of 15 days or more (Title 5, U.S. Code, Section 7512). What, then, is the recourse for an employee who receives a 14-day suspension that is clearly undeserved? Unless the employee is a bargaining-unit member who can reach an arbitrator through the negotiated grievance procedure, the only avenue of appeal is the agency's internal rubber-stamp grievance process.
Agencies often impose a suspension of 14 days or less to insulate the action from appeal. They do this because a more severe penalty, appealable to the MSPB, would be subject to closer legal scrutiny and would be reversible on grounds such as lack of evidence or being an off-duty event considered none of the agency's business. The board is not a court and has jurisdiction only over workplace issues. In the board's words, "general considerations of fairness do not permit us to act in the absence of statutory authority."
A world away from the narrow jurisdictional strictures of the MSPB is the deceptively broad mandate of the Equal Employment Opportunity Commission. Hardly anyone is turned away at the outset, including job applicants and probationary employees. Sex, age, race, religion, color, national origin, disability and retaliation are all grounds for discrimination charges. To get all the way to federal court, an employee can simply make a "non-frivolous allegation" of receiving ill treatment - a letter of reprimand, failure to get long-term training, an office without a window - due to discrimination. For that reason, the EEO process has become a nightmare in slow motion for both employees and agencies as its enormous backlog of cases continues to build.
But here, too, justice is an elusive concept. As the EEOC has said, the various discrimination statutes "do not prohibit unfair treatment generally but only that unfair treatment caused by discrimination." In other words, an employee who successfully proves bad treatment, ranging from nonselection for a career opportunity to a chewing-out, can still lose his case. Evidence that shows the boss hated the employee for personal reasons or was crazy as a bedbug does not matter, if discrimination cannot be proved.
Another grievance channel is the Office of Special Counsel, which investigates allegations of prohibited personnel practices such as retaliation against whistleblowers or employees who file grievances, and nepotism. In a recent Government Executive column, I warned managers about OSC's wrath if they are caught manipulating the personnel system to favor a certain individual ("The Perils of Pre-Selection,"). A reader responded by castigating the OSC for being a tool for managers, not employees, and me for believing in the tooth fairy. I disagree on both counts, but the reader made two good points: Not all of these evils reach the OSC's ears, and not all wrongs called to the OSC's attention are righted.
A small organization with an expanding caseload, the OSC simply cannot follow through on every allegation. If the OSC declines to look into a particular matter or if it cannot persuade the offending agency to do the right thing, it must turn to the MSPB for enforcement. Limited resources do not allow the decision to take a case or pass it to MSPB to be taken lightly.
If the OSC declines to pursue a case, an employee cannot bring action himself to the MSPB, unless the allegation relates exclusively to whistleblower retaliation. However, many employees discover somewhere in the process that they do not meet the narrow definition of "whistleblower" or that "retaliation" can be justified in spite of the employee's disclosures.
Don't Go There
Jimmy Carter is credited with the brilliant observation that life is unfair. The system of redressing wrongs toward federal employees proves he was right. Government employees, including supervisors or managers, are well-advised to pause and consider before tilting their lance at the government, even when they are victims of an egregious miscarriage of justice. Often the best course of action in the face of perceived mistreatment is not to tie themselves in emotional knots for months, even years, or to waste their money on lawyers, but simply to roll with the punches. The system often provides nothing else.
William N. Rudman is an attorney specializing in defending federal employees. A retired federal investigator and manager, he conducts training for federal managers in employee discipline at The Brookings Institution.
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