Monday, November 28, 2016

So, You’ve Decided to Hire a Lawyer: Attorney - Client Privilege

Welcome to the first post in KCNF’s new blog series, “So, You’ve Decided to Hire a Lawyer.”  Every few weeks, one of our attorneys will highlight an aspect of the attorney-client relationship and litigation process to help non-lawyers understand what can happen when they retain a lawyer. We start the series with an explanation of the cornerstone of your relationship with your lawyer: the attorney-client privilege.

When you hire an attorney, in most situations, she has to keep anything you tell her – and she tells you – confidential.  There are exceptions, of course – she may discuss your case with her law firm’s partners, she can call the police if you threaten to hurt yourself or plan to commit a crime in the future, and, if you sue her for malpractice, she can testify about your conversations and how that affected her representation of you.  Also, if you have retained an attorney to represent you in litigation, your attorney is expected to disclose the information that will help advance that litigation. The attorney can write the complaint or motion, or present information in settlement negotiations, to help achieve the goal of the representation.  Otherwise, unless you give your express permission, your attorney must take everything you tell her to her grave.  This solemn understanding is referred to as the attorney-client privilege and it is codified in every jurisdiction’s rules of professional responsibility.

As with any privilege, it can be pierced. The client holds the privilege, which means the client is the only one who can waive it.  A client can intentionally waive the privilege by telling his lawyer to share something, or unintentionally, by being careless and talking about his case with his lawyer in the presence of others.

If a judge decides that the attorney-client privilege has been waived because a third party knows of the contents of a communication, then the other side gets to learn what the opposing attorney and client discussed.  Depending on the information disclosed, these unintended disclosures can ruin a case and make any chance of prevailing very hard.

The worst case scenario, for example, might occur if a plaintiff emails her lawyer with some information about her case she just learned, and copies her adult son on the email.  In the email, she reveals a fact very harmful to her case.  Later, in litigation, the defendant discovers this email and that the son was a recipient.  The defendant argues to the judge that the plaintiff waived attorney-client privilege by intentionally letting a third party – her son – be privy to the conversation with counsel.  The judge agrees and orders the plaintiff to give the email to the defendant.  When the defendant gets the email, he sees that it contains a direct admission from the plaintiff of a fact harmful to her case.  He then tells the plaintiff that he knows how weak her case is and settlement becomes much less likely.

In order to avoid unintended disclosures, try to obtain as much privacy as possible when you speak with your lawyer on the phone and only exchange emails with your lawyer on a private account which only you can access. This means you should not call your lawyer on speakerphone from a coffee shop to ask him questions about your upcoming deposition and you should not email him from your work account.  Nor should you conference in your friends or family members on calls with your lawyer.  Your neighbor’s husband may have seen a lot of EEO cases during his twenty years in a corporate human resources department, but sharing the case theory you and your lawyer developed breaks the privilege (although the “work product” privilege is not waived by sharing the information with persons other than the opposing side).  You may have relied on close friends and relatives to be sounding boards in past times of trouble, but now that’s your lawyer’s job.  You have hired a professional to advise you – too many cooks in the kitchen can create a mess.  The attorney-client privilege is the most vital part of the professional relationship and it is both the attorney’s duty and the client’s responsibility to protect the confidentiality of their communications.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice.

This blog was written by Sarah Martin.

Monday, November 14, 2016

The Deference Owed to an MSPB Administrative Judge’s Credibility Determinations

On October 4, 2016, in Purifoy v. Department of Veterans Affairs, the U.S. Court of Appeals for the Federal Circuit reaffirmed the level of deference owed by the Board when it reviews an administrative judge’s (AJ) credibility determinations. Significantly, the court held that an AJ’s credibility determinations extend beyond direct statements made regarding a witness’s demeanor to those credibility determinations that rely on demeanor by necessary implication.

Agencies taking an adverse action against an employee must prove that the charged conduct actually occurred, that it affected the efficiency of the service, and that the penalty imposed was reasonable in light of the relevant factors set forth in Douglas v. Department of the Navy. The Douglas factors are a non-exhaustive set of considerations that the Merit Systems Protection Board (“MSPB”) (first the AJ and the MSPB on review) must independently assess to determine whether the imposed penalty is reasonable.

In Purifoy, the employee (Mr. Purifoy) missed two days of work as a housekeeping aid in a VA medical center without authorization. Later the same week, he sought treatment for substance abuse from the VA facility where he worked. Although Mr. Purifoy informed his VA supervisor that he would miss work, he did not fill out leave paperwork. Moreover, he did not inform his parole officer that he would miss upcoming supervision visits. Thus, after Mr. Purifoy missed these visits, his parole officer issued a warrant for his arrest. As an alternative to revocation of his parole, Mr. Purifoy agreed to enter substance abuse treatment at the Milwaukee Secure Detention Facility (MSDF). Although he entered the program, Mr. Purifoy was terminated after an altercation with another inmate. Mr. Purifoy remained an inmate at MSDF for 38 more days. Following his release, Mr. Purifoy returned to work, but was removed shortly thereafter as a result of his unauthorized absences (two-day absence and six-month absence due to his incarceration at MSDF).

After a one-day hearing, at which Mr. Purifoy testified and, litigating the case pro-se, cross-examined the government’s four witnesses, the AJ sustained the agency’s first charge against Mr. Purifoy—the two-day absence—but only sustained in part the second charge—his absence while at MSDF. Specifically, with regard to the second charge, the AJ found that Mr. Purifoy’s absence was only unexcused for the 38 days following termination of his treatment program. In light of the mitigating factors set out in Douglas, the AJ determined removal to be an unreasonable penalty and reduced it to a 40-day suspension. In examining the Douglas factors, the AJ made the following assessments:
1. Mr. Purifoy’s duties “did not involve supervision or fiduciary duties, or place him in a prominent public role”;
2. His “work performance was rated as excellent and worthy of a performance award”;
3. He “was not on clear notice that his absence would result in severe discipline”;
4. His “potential for rehabilitation was high.” 
The Agency appealed the AJ’s decision to the MSPB. On review, the Board reversed the AJ’s reinstatement of the employee with a 40-day suspension, finding that “the penalty of removal was appropriate even if the second charge was proven only in part.” In analyzing the proper penalty, however, the Board analyzed some, but not all, of the Douglas factors. Specifically, the Board made the following assessments:
1. The Board disagreed with the AJ about the seriousness of the charge;
2. Mr. Purifoy’s absence weighed against mitigation despite his lack of prior discipline;
3. His “third-level supervisor sufficiently notified him that his absence would result in severe discipline”;
4. The agency’s “chosen penalty, which is entitled to deference, is also consistent with the table of penalties;”
5. Seeking treatment for a disabling condition “was not sufficiently mitigating as [Mr. Purifoy] was not fully pursuing rehabilitation for his problem.” 
The Board, however, found no reason to disturb the AJ’s findings “concerning [Mr. Purifoy’s] brief, but good work history.”

On appeal, the Federal Circuit vacated the Board’s decision because it failed to consider two relevant Douglas factors. Specifically, the Board (1) did not consider the adequacy and effectiveness of alternative sanctions to deter similar misconduct in the future and (2) erred in its analysis of the potential for the employee’s rehabilitation.

Although the Board need not consider all the Douglas factors, it must consider the relevant ones. Here, the Board was obligated to consider whether the AJ’s mitigated 40-day suspension would adequately punish Mr. Purifoy’s unexcused absences and deter similar conduct in the future. Regarding Mr. Purifoy’s potential for rehabilitation, the court held that the Board “erred by substituting its own finding for the AJ’s opposite one without adequate rationale.”

Significantly, Board case law
requires deference not only when an AJ’s credibility determinations explicitly rely on demeanor but also when they do so by necessary implication. Even if demeanor is not explicitly discussed, assessing a witness’s credibility involves consideration of various factors, including a witness’s demeanor. 
Applied in this case, the Board held that the “AJ’s findings about Mr. Purifoy’s propensity for rehabilitation are necessarily intertwined with issues of credibility and an analysis of his demeanor at trial, and they deserved deference from the Board.” The AJ made this determination after hearing Mr. Purifoy testify under oath that he attends Alcoholics Anonymous meetings three days a week and has not suffered a relapse since his removal. The AJ also observed Mr. Purifoy and his condition when he cross-examined witnesses, including his parole officer, his supervisor, and the VA Medical Center Director. Thus, the AJ concluded that Mr. Purifoy “cares about his job and had a good potential for rehabilitation.”

As recognized by the U.S. Supreme Court in Universal Camera v. National Labor Relations Board, “evidence supporting a conclusion may be less substantial when an impartial, experienced [administrative judge] who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s . . .” Thus, the Board may not substitute its judgment for that of the AJ, where the AJ adjudicated the case and weighed all factors within their proper context.

Moreover, although the court found no legal error in the Board’s analysis of the nature and seriousness of Mr. Purifoy’s offense and whether Mr. Purifoy was on notice that his conduct could result in discipline, the court “encouraged the Board to revisit its analysis of these factors alongside all other relevant Douglas factors on remand.” This encouragement stresses the importance the court places on an AJ’s credibility determinations. In fact, six months before the court decided Purifoy, the court noted in Clipse v. Department of Homeland Security that an AJ’s credibility determinations “are virtually unreviewable on appeal.” Unless “inherently improbable or discredited by undisputed fact,” an appellate court cannot set aside an AJ’s credibility determinations. Purifoy reaffirms this principle.

This post was written by Aaron Herreras.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at

Wednesday, November 2, 2016

Trick or Treat: The Fourth Circuit Hands Down a Not-So-Sweet Halloween Decision in Sharif v. United Airlines, Inc.

Last year, KCNF partner Richard Renner blogged about Sharif v. United Airlines, Inc., a case that was on appeal to the United States Court of Appeals for the Fourth Circuit regarding Mr. Masoud Sharif’s allegation that United Airlines unlawfully retaliated against him in violation of the Family and Medical Leave Act (“FMLA”). This week, the Fourth Circuit decided that the “undisputed facts” compelled a finding for United Airlines.

Mr. Sharif was employed by United Airlines as a Service Director at the Dulles Airport in Virginia. From March 16 to April 4, 2014, Mr. Sharif and his wife—also a United Airlines employee—went on vacation in South Africa and Italy, during which he was able to request time off or find coverage for all but one single day—March 30, 2014, a date on which he had been assigned the customer service shift.

Mr. Sharif asked for FMLA leave on March 30, 2014, based on his previously diagnosed anxiety disorder, for which United Airlines had allowed him intermittent leave for panic attacks. (Mr. Sharif developed anxiety after the Iranian government imprisoned and tortured him in 1981.) However, the United Airlines Employee Resource Center noticed that the FMLA request fell in the midst of Mr. Sharif’s and his wife’s planned vacation time, and subsequently initiated an investigation into the request. The Fourth Circuit accepted United Airline’s version of the events, finding that Mr. Sharif was appropriately interviewed as part of the investigation and that he gave a “series of inconsistent answers” that ranged from failing to recall being scheduled for work or requesting FMLA leave at all to his later explanation that he had made multiple attempts to return for his shift, and as a result of his lack of success, experienced a legitimate panic attack. Following the interview, United Airlines suspended Mr. Sharif without pay and ultimately proposed to remove him for “fraudulent taking [of] FMLA leave” and “dishonest representations.” On June 9, 2014, Mr. Sharif chose to retire rather than be terminated.

On its face, the Fourth Circuit’s decision appears driven by legally sound principles: namely, an employee cannot commit fraud and expect to be protected by a statute’s anti-retaliation provisions. However, employees and their advocates have much to fear from how the Court arrived at its decision. The Metropolitan Washington Employment Lawyers Association and the National Employment Lawyers Association submitted an amicus brief in support of Mr. Sharif that addressed the significant factual disputes between the parties and raised the question of whether an employer may rely on an honest—even if mistaken—belief that an employee was the malfeasor as a defense to accusations of retaliation. Although the Fourth Circuit saw “no reason to address the ‘honest belief rule[,]’” it is apparent from the Court’s reliance on the foregoing “facts”—which were heavily disputed—that the Court nevertheless adopted United Airline’s belief that Mr. Sharif acted fraudulently.

For example, Mr. Sharif explained that he had every intention of returning for his shift, but due to a confluence of world events, was unable to secure timely flights back, and was forced to fly to Italy to stay with a family member until he could return. Thus, Mr. Sharif introduced evidence that his panic attack on March 30 was a genuine manifestation of an existing medical condition, and a reasonable inference is that his use of FMLA was necessary and proper. Given the divergent narratives, both supported by proof, whether Mr. Sharif or United Airlines was telling the truth should have been determined by a jury of his peers. Nevertheless, the Court truncated the trial process by concluding that there existed no reasonable interpretation of events where Mr. Sharif could prevail. In doing so, the Fourth Circuit inappropriately decided in favor of facts that were advantageous to the employer when those decisions properly belonged to the jury.

Written by Nina Ren