Wednesday, October 30, 2013


Consider this situation: our client, a native Chinese speaker, is assigned as a GS-14 law enforcement attaché for a US law enforcement agency at the US Embassy in Beijing. At the time she initially applied and was selected for the Beijing position the vacancy announcement and the position description required fluency in Chinese.  During her tenure, she receives good ratings but at the end of her tour she is denied an extension and rotated back to headquarters in the US. 

    The agency then advertises the Beijing position and a similar law enforcement attaché position in Germany for filling.  This time the vacancy announcements and position descriptions do not include a language requirement.  The client applies for both positions (Beijing and Germany) and is on the best qualified list for both but is not selected for either position.  The selectee for the Beijing position does not speak Chinese so the agency sends him to Chinese language training for approximately a year (at vast expense to the agency) and then he is sent to Beijing. 

    Client files an EEO complaint and ultimately the case is assigned for mediation and a confidentiality agreement is signed.  At mediation during a joint session with both parties there is a discussion of the reasons for not selecting the client for the Beijing position despite the fact that she is a native Chinese speaker. 

    The agency management official proffers that the agency “wanted to give someone else a chance” to serve in Beijing despite the fact that the selectee did not speak Chinese and required extensive and expensive language training and could not enter on duty in the Beijing position for over a year.  The management official is also asked the reasons for not selecting the client for the Germany attaché position and his response is that the selectee speaks fluent German.

    Three questions: First, during discovery can the client discover the factual bases for her non-selection for the Beijing and Germany positions.  The answer to that question is definitely “yes.”  5 U.S.C. 574(f) (the ADR statute) states
        Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a dispute resolution proceeding.
    Thus, facts that were discoverable before the mediation session do not become confidential merely because they were presented as evidence during a joint mediation conference.  It is only things that are said or written during the mediation in private sessions that must be kept confidential.  Indeed, many agencies now include this disclaimer in their mediation statements and agreements.

    The second question is more interesting: Can the client make  a request for admission in discovery that states the following?
        Admit that the selectee for the Germany position was selected because he speaks fluent German.
    The answer is that one may make that discovery request.

    The third and final question is even more interesting: What if the agency proffers as the reason for the selection for the Germany position a reason or reasons that do not include the fact that the selectee speaks fluent German and/or denies the request for admission.  Can the client move to compel or otherwise attempt to force the agency to admit that it proffered the selectee’s fluency in German as its reason for selecting him for the Germany position during mediation?   The answer to this question also is “yes,” since the information was provided to all parties during the joint session of the dispute resolution proceeding.  See 5 U.S.C. § 574(b)(7).

Posted by June Kalijarvi.

Tuesday, October 22, 2013

Too Sick To Get to Work On Time?

If you always come late to work due to a serious illness, can your boss fire you?  Or must an employer allow this as a “reasonable accommodation” under the Americans With Disabilities Act?  This was the question recently considered by the U.S. Court of Appeals for the 2nd Circuit in New York.  The case is McMillan v. City of New York, 711 F. 3d 120 (2d Cir. 2013).

Rodney McMillan worked as a case manager for a New York city social services agency.  His job involved conducting annual home visits, processing social assessments, recertifying clients' Medicaid eligibility, making referrals to other social service agencies, and addressing client concerns. He also met with clients daily in the office.  He has schizophrenia, which is treated with medication.

The agency had a flex-time policy that allowed employees to arrive at the building anytime between 9:00 and 10:00 a.m. Due to elevator wait times, they were not considered late unless they arrived at the office after 10:15 a.m. When an employee was late, the boss could approve or disapprove the late arrival.  If it was approved, the employee could use his or her vacation or sick leave to account for the missed time. 

McMillan usually got up between 7:00 and 7:30 a.m., but his morning medications made him "drowsy" and "sluggish." As a result, he often arrived late to work, sometimes after 11:00 a.m. For a period of at least ten years, McMillan's tardy arrivals were either explicitly or tacitly approved. But when a new supervisor arrived, he refused to approve any more of McMillan's late arrivals. McMillan repeatedly asked whether he could have a later start time to avoid being disciplined for tardiness. But the boss responded that he could not have a later start time because it would mean that in order to put in a full day’s work, he would have to stay past 6 p.m., and this would not be allowed because no supervisor would be present.

As a result, the agency began to discipline McMillan for his late arrivals, first with a fine, then with charges of "Misconduct and/or Incompetence," and then with a recommendation that he be fired.  In response, McMillan formally requested accommodations for his disabilities, including a later flex start time that would permit him to arrive at work between 10:00 a.m. and 11:00 a.m. But the agency decided that McMillan's request for a later flex start time could not be accommodated because there was no supervisor at the office after 6:00 p.m. Ultimately, the City reduced the recommended sanction of termination to a thirty day suspension without pay.

McMillan sued.   He claimed that since the office was open until 10 p.m., the agency should have allowed him to work past 6 p.m. as an accommodation for his disability.  He also suggested that he could work through his lunch hour and still get his time in before 6 p.m.  The City did not allege that McMillan was a malingerer, and did not dispute that the only reason McMillan was unable to get to work by a specific time was the result of the treatment for his disability. But they maintained that neither allowing him to work through lunch nor staying after 6 p.m. was required as a reasonable accommodation.

The lower court agreed with the agency, holding that being able to work during the normal work day  was an “essential function” of McMillan’s job, and that the agency did not discriminate against him when it disciplined him for his tardiness.  As a result, the District Court granted summary judgment for the agency and did not let the case go to trial.

The 2nd Circuit disagreed with the lower court’s analysis.  Instead, it held that a fact-specific inquiry must be made into whether being physically present at work at all times was actually an essential function of every job:

The district court appears to have relied heavily on its assumption that physical presence is "an essential requirement of virtually all employment" and on the City's representation that arriving at a consistent time was an essential function of McMillan's position. While the district court's conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m. — or at any consistent time — may not have been an essential requirement of McMillan's particular job. For many years prior to 2008, McMillan's late arrivals were explicitly or implicitly approved. Similarly, the fact that the City's flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan's favor, along with his long work history, whether McMillan's late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute.

The 2nd Circuit ruled that McMillan should be given the opportunity to demonstrate to a jury that it would not have been an undue hardship to allow him to work past 6 p.m. unsupervised, especially since it was uncontested that some of the duties he performed during the day were unsupervised, such as home visits to clients.  The court also noted that it would not have been a hardship to allow McMillan to work through his lunch hour to make up the time he lost in the morning.

This case erodes the time-honored principle that an employer can require presence at work from 9-5 as a basic work requirement.  Instead, consideration as to what may be a reasonable accommodation must be made on a case-by-case basis, and an employer may have to modify as basic a requirement as an employee’s work start time. Many jobs may still require arriving at a specific time as an essential job function.  But in others, it may not be.  The ADA requires that the employee and employer engage in an “interactive process” to determine whether the employee’s request is reasonable and whether the employee’s needs can be met without causing undue hardship to the employer. 

    - this blog post was prepared by Elizabeth L. Newman.  She can be reached at

Wednesday, October 9, 2013

NELA amicus brief seeks fair attorney fee award

Attorney fee awards make a difference in whether victims of illegal discrimination can get competent counsel to take their cases.  Even for those who have an income or savings to pay for an attorney depend on courts to reimburse them for their attorney's fees at the end of a case.  For those who cannot afford to pay for an attorney in advance, the attorney's opportunity to get a reasonable fee award from the court is their only hope of getting counsel.

That is why the decision of a federal judge in Alabama is so disturbing. Attorney Alicia Haynes has litigated the famous Ash and Hithon v. Tyson Foods case since December 1996. She prevailed in two jury trials, endured three appeals to the 11th Circuit (one of which was reviewed by the full court en banc), and made new law with the landmark decision in Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) (courts must recognize evidence of discrimination when white manager calls African-American adults "boy"). On March 19, 2013, the judge in Alabama refused to award fees for work on Ms. Hayne's fee petition, slashed the remaining hours by 80% across the board and awarded just $281,103.25, or 14% of the $1,981,678.00 originally sought. 

With attorney Margie Harris of Houston, Texas, I co-wrote a friend-of-the-court (or amicus) brief urging the 11th Circuit to vacate the fee determination and remand for a more detailed explanation of the reductions. We wrote the brief on behalf of the National Employment Lawyers Association (NELA). The brief asks the Court to keep an eye on the goal of encouraging competent attorneys to accept civil rights cases. The brief notes that failure to encourage competent attorneys to take contingent cases will lead to an increase in the number of claimants who proceed without attorneys.

We are indebted to Jonathan C. Puth, Richard T. Seymour  and Lenore C. Garon for their work in MWELA's amicus in West v. Potter, 717 F.3d 1030, 118 FEP 1661 (D.C. Cir. 2013). Their research on the growing number of people pursuing claims in court without an attorney was most useful. Thank you.

Our brief recalls the days when the Supreme Court said, “The right to representation by counsel is not a formality. . . . It is . . . the essence of justice.”  Kent v. United States, 383 U.S. 541, 561 (1966). 

Posted by Richard Renner.

Tuesday, October 8, 2013


After one week, the shutdown has already had dramatic effect on the economy, with some analysts estimating that it is costing approximately 300 million dollars per day so far.  Unfortunately, further negative consequences may result from the shutdown if a resolution is not reached soon.  The following government agencies and programs have been able to operate through the shutdown thus far, but may not be able to continue operations if the shutdown runs much longer:

Head Start:

Head Start officially closed on October 1, due to a lack of appropriations, but its programs operate based on grants that are distributed throughout the year.  The programs that were due to receive funding on October 1 were forced to shut down, which has thus far kept 5,000 children from receiving vital early educational services.  Unfortunately, more programs may run out of funding on November 1, depriving even more young children of these same educational services.  

Domestic Violence Programs:

The Office of Justice Programs disburses funds to rape crisis programs and domestic violence shelters across the country, but was unable to disburse any more funds after Friday, October 4.  Most of these types of programs and shelters are dependent on Office of Justice Program funding at least in part, so the shutdown will effectively withhold funding from programs aiding victims of rape and domestic violence from Monday, October 7, through the end of the shutdown. 

Food Programs:

The USDA Women, Infants, and Children program provides food to low income pregnant women, new mothers, and children.  The program currently has approximately 125 million in contingency funds to continue operation, but they believe that these funds may not last past October, at which point they will not be able to continue without a new appropriation.

Veterans Services:

Under current law, the Department of Veterans Affairs medical accounts are actually funded one year in advance.  Because of this, the VA will be able to pay for most of its medical programs through the shutdown.  Unfortunately, the same does not apply for its compensation and pension payments.  The Agency has informed Congress that if the shutdown lasts two to three weeks or more, it will run out of the resources it needs to make veteran’s benefit payments. 


Amtrak is managed by a separate, for-profit company, but still receives large funding from the US government.  Additionally, the shutdown reduces travel to the DC area, which further reduces income.  According to former board members and analysts, if the shutdown lasts more than a few weeks, there is a legitimate question as to whether Amtrak may need to alter operations, including cutting routes. 

United States Patent and Trademark Office:

The USPTO operates primarily as a fee based agency, and is currently running on reserve funds from last year.  It currently estimates it has enough reserve funds to operate for approximately 4 weeks, at which point it will reassess its funding and determine whether it can continue to run.

The Supreme Court:

The Supreme Court is still in operation, but it is only guaranteed to run through October 11, after the Court hears 6 cases.  After the 11th, the Court is unclear as to whether it will have enough funding to remain operational. 

As is obvious from the above list, if the shutdown is allowed to continue, important services that provide funds to children, victims of domestic violence, and our veterans will all cease to operate.  Find your Congressman here and let them know that you believe the government should reopen immediately to prevent these devastating consequences.