Legal Briefs: Forward lateral

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

Kenneth Cones worked his way up through the ranks of the civil service from GS-1 to GS-14 at the Health and Human Services Department. In 1992, Cones was appointed acting director of the agency's Administrative Service Center, a GS-15 position. Under civil service rules, he was allowed to keep that position for 120 days before being returned to a GS-14 position, unless the department opened the GS-15 job competitively for applicants and Cones won the position.

Though Cones expressed an interest in the job and asked that it be opened to competition, HHS instead promoted another GS-14 manager to the position temporarily, and then transferred a GS-15 manager from elsewhere in the department to take over the job. Because the GS-15 manager's transfer was lateral-in the same grade-the department did not have to open the job for competition.

Cones filed a discrimination complaint. He is African-American, while his two successors were white females. HHS contended there was no discrimination because the manager who eventually received the job was not promoted. The U.S. Court of Appeals for the District of Columbia rejected that argument.

"Agencies seeking to prevent minority employees from advancing to higher level positions could simply refuse to open those positions to competition and instead laterally transfer non-minorities," the court said in a Jan. 4 decision.

Though the court did not rule whether Cones was actually discriminated against, it ordered the case back to a lower court for a trial, ruling that Cones had a legimate complaint for a jury to consider.

Lesson: Before trying a lateral, consider passing the job to open competition.

Cones v. Shalala (97-5093), U.S. Court of Appeals for the District of Columbia, Jan. 4, 2000.

Abusing the System

Jodi Baker was hired as an office automation clerk at the Justice Department in March 1998. Within a couple of months, she was fired for excessive absence without leave, including a stint away from the office for a month while obtaining detoxification treatment at two crisis centers.

The Merit Systems Protection Board dismissed her appeal on the grounds that it didn't have jurisdiction over probationary employees. As a probationary employee, Baker could only challenge her dismissal on the grounds of partisan politics, marital status, or conditions arising before her employment.

Baker appealed the MSPB decision to a federal circuit court, claiming marital discrimination because she suffered from spousal abuse. The court ruled that Baker did not show evidence of abuse or of bias against her because she was married. As such, they agreed with MSPB's decision to dismiss the claim.

Lesson: It's hard to claim discrimination when you can't show evidence of bias.

Chase-Baker v. Justice Department (99-3260), U.S. Court of Appeals for the Federal Circuit, Dec. 17, 1999.

Which Rate Prevails?

The Merit Systems Protection Board wants to make attorneys' fees more equitable. Current rules dictate that lawyers who appear before the board must be paid for their services at the prevailing community rate. But the rules do not define which community.

This means that in some cases, lawyers are paid whatever the going rate is where the hearing is held. An employee from Shepherdstown, W. Va., therefore, must pay his attorney the going rate in Washington, D.C., if his hearing is held in Washington.

In other cases, attorneys are paid the going rate where they usually practice law. To make things fairer, MSPB proposes that lawyers be paid at their usual billing rate in the community in which they practice, provided that the rate is consistent with other local lawyers' fees.

Comments on the rule are due to MSPB by Feb. 7.

Send comments to: Robert E. Taylor, Clerk of the Board, MSPB, 1120 Vermont Ave, N.W., Washington, D.C. 20419, or to mspb@mspb.gov.

Merit Systems Protection Board proposed rule, Dec. 23, 1999.