Tuesday, September 11, 2018

So, You’re a Whistleblower: What Relief Are You Entitled To?


An employee who blows the whistle on her employer is naturally wary of retaliation. Will she be isolated? Will her duties be diminished? Will her supervisor start micromanaging her work? Irrespective of any whistleblowing activity, federal employees may appeal certain personnel actions directly to the Merit Systems Protection Board (“MSPB” or “Board”): removals, suspensions over 14 days, reductions in grade or pay, furloughs for 30 days or less, denials of within-grade salary increases, reduction-in-force actions, and denials of restoration or reemployment rights.

The Whistleblower Protection Act, however, provides additional protection to whistleblowers by adding the right to file an individual right of action (“IRA”) appeal with the Board. IRA appeals are available for all adverse personnel actions, whether or not the action is directly appealable to the Board. Whistleblowers can seek relief, for example, from retaliatory decisions about promotion, reassignment, a performance evaluation, a decision concerning pay, benefits, or awards, and “any other significant change in duties, responsibility, or working conditions.” Note, however, that “election of remedies” rules sometimes limit whistleblowers to the first remedy they sought. For actions that are directly appealable to the Board (including removals, demotions, suspensions over 14 days, and denials of within-grade increases), employees may elect only one remedy (direct MSPB appeal, OSC complaint, union grievance, or EEO formal complaint).

To obtain relief from the MSPB with respect to a personnel action that is not directly appealable to the Board, a whistleblower must first seek correction action from the Office of Special Counsel (“OSC”). If OSC chooses not to investigate or is unable to obtain full relief, a whistleblower can then appeal to the Board. The Board has the power to issue a decision on an appeal if the whistleblower can nonfrivolously allege that she engaged in protected activity under sections 2302(b)(8) or (b)(9) (i.e., that she did, in fact, blow the whistle), and that her protected activity was a contributing factor in the agency’s decision to take the challenged personnel action. At this threshold level, the whistleblower’s burden of proof—a nonfrivolous allegation—is intentionally light: the whistleblower’s allegations need only be more than conclusory and plausible on their face. But does the agency’s unilateral action to correct some or all of the retaliatory personnel actions identified by the whistleblower to OSC foreclose the whistleblower from appealing to the Board? And can the whistleblower obtain relief for being subjected to a hostile work environment resulting from her whistleblowing activity?

The answer to the first question is no. Specifically, the prospect of an award of damages (e.g., for pain and suffering) and attorneys’ fees precludes dismissal of certain actions as moot. If OSC is able to negotiate some, but not all, relief from the agency, the un-obtained relief can be raised with the Board for corrective action. For example, in the case of a whistleblower whose complaint is that the agency took away a majority of her duties in retaliation for her whistleblowing, if OSC negotiates restoration of the whistleblower’s duties, but the agency is unwilling to pay compensatory damages or attorney’s fees (assuming she is represented), the whistleblower can go to the Board to seek the remaining relief. Notably, however, the agency’s decision to unilaterally correct some or all of the personnel actions (alleged by the whistleblower to be retaliatory) is not an admission of guilt. Thus, prior to the Board awarding damages and fees on these personnel actions, the administrative judge must address the merits of the underlying actions, i.e., whether the whistleblowing activity was a contributing factor in the challenged personnel action.

The prospect of an award of damages and fees also precludes dismissal of a claim of agency delay in taking a personnel action, e.g., the agency’s delay in processing a monetary award (which was ultimately paid to the whistleblower). An agency’s deviation from the “usual manner” or the “normal procedures” for processing, e.g., a year-end monetary performance award may be considered in an IRA appeal by the MSPB. To ultimately prove the agency deviated from its normal processes, however, the whistleblower must demonstrate the alleged delay was unjustified or unexplained, thus resulting in a “significant change in working conditions.” A minor or trivial delay will not be considered “significant.” For example, an agency’s six-day delay in paying a whistleblower a cash award may be too minor to significantly change the whistleblower’s working conditions; a six-month delay, however, may. This determination rests on whether and to what extent the whistleblower has been harmed by the agency’s delay.

The answer to the second question—whether you can bring a hostile work environment claim under the WPA—is a resounding yes. Specifically, the Board has recognized that the creation of a hostile work environment is a personnel action for purposes of an IRA appeal to the Board because, if proven, it would be a “significant change in duties.” A “significant change in duties” is interpreted broadly to include any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system. For example, a hostile work environment may include: exclusion from team emails and meetings, hostile or disparaging statements from a supervisor, and increased or decreased work assignments. Including a hostile work environment claim—if it is appropriate—may result in significant relief beyond what may be available based on the personnel action at issue.

Thus, if you have blown the whistle and are facing retaliation in your workplace, it is important to understand what relief you are entitled to; including potential damages arising from a hostile work environment.


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. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. 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 http://www.kcnlaw.com/Contact.shtml.

Wednesday, September 5, 2018

Will AB 3080 make an Epic U-turn in California? Probably not.

On August 22, 2018, the California Assembly passed Assembly Bill (AB) 3080, which, prompted in part by the #MeToo movement in Hollywood, would prohibit mandatory arbitration of almost all types of employment law claims in California and prohibit non-disclosure agreements related to sexual harassment claims. Governor Jerry Brown must sign or veto AB 3080 by September 30, 2018.

If signed, AB 3080 would prohibit any employer from requiring an employee or applicant, as a condition of employment, to sign an agreement to “waive any right, forum, or procedure” for alleged violations of the California Fair Employment and Housing Act (FEHA) or the California Labor Code, among other things. The immediate impact of the Bill would be to prohibit employers from demanding that employees waive their right to sue the employer in court for claims of discrimination and/or sexual harassment and, instead, agree to mandatory arbitration.

Court cases alleging discrimination and harassment are presented to a jury made up of men and women, who decide whether the employee has been the victim of conduct at work and, if so, how much should be awarded in damages. A court decision can be appealed if one side or the other believes it’s wrong. An arbitration, on the other hand, is presented to an arbitrator, whose decision typically cannot be appealed. Cases brought in court are public, whereas sexual harassment claims resolved before arbitrators are done so privately. Employers strongly favor arbitration.

The Bill also prohibits an employer from retaliating against an employee who refuses to sign the waiver. While the Bill does not apply to a person registered with a self-regulatory organization, as defined by the Securities Exchange Act of 1934 (such as a stock exchange), the vast majority of employees in California will be covered. If signed, the Bill would extend much further than claims of sexual harassment, since it effectively prohibits mandatory arbitration clauses for any alleged violation under the FEHA or the state’s Labor Code. It would also become the first state law enacted after the Supreme Court’s May 2018 decision in Epic Systems Corp v. Lewis, which held that an employer’s class action waiver clause in an arbitration agreement with its employees was valid under the Federal Arbitration Act (FAA). The Bill’s enactment after Epic promises to relieve many employees in California of mandatory arbitration clauses they may have signed and, on the contrary, restore to them the right to be heard in court for nearly any employment-related claim against their employers.

But the terms of AB 3080 that outlaw mandatory arbitration agreements in the employment relationship may contravene Epic’s holding and rationale. AB 3080 makes no concession to the Federal Arbitration Act, which opponents of the bill argue preempts the effect of any state law to the contrary. As the Court reasoned in Epic, Congress enacted the FAA in 1925 to ensure that courts treated arbitration agreements as “valid, irrevocable, and enforceable.” Thus, even if some experts’ predictions that Governor Brown may sign the law turn out to be true, AB 3080 would be vulnerable to a challenge to its enforceability as preempted by the FAA. Whether a Supreme Court that believes the federal government is limited in the restrictions it can place on state sovereignty will defer to California in this instance remains to be seen.



Written by Puja Gupta.



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. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. 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 http://www.kcnlaw.com/Contact.shtml.

Sunday, August 26, 2018

The “President Overstepped His Bounds” on Executive Orders

Early in the morning on August 25, 2018, U.S. District Judge Ketanji Brown Jackson struck down some of the more pernicious provisions of President Trump’s three executive orders meant to undermine federal-sector worker rights. Judge Jackson found that, although the President has authority to issue executive orders with respect to federal labor relations, “no such orders can operate to eviscerate the right to bargain collectively as envisioned” in the Federal Service Labor-Management Relations Statute.

The three orders at issue in the case were signed by President Trump three months earlier, on May 25, 2018, and they involved collective bargaining procedures, official time, and procedures for firing federal employees. The purpose of the Orders, as described by Judge Jackson, was to “guide agencies toward particular negotiating positions during the collective bargaining process; place limits on the activities that federal employees may engage in when acting as labor representatives; and address the approaches agencies shall follow when disciplining or evaluating employees working within the civil service.”

Shortly after the Orders were issued, a number of federal-employee unions filed lawsuits to block their implementation. According to the unions, Congress had enacted the Federal Labor Management Relations Act precisely to define the relationship between these unions and the government, and the President lacked the authority to alter the statute by Executive Order. Largely agreeing with the unions, Judge Jackson struck down many of the provisions, citing Congress’s pronouncements that the Statute establishes “the right of employees” to “bargain collectively . . . safeguards the public interest, contributes to the effective conduct of public business, and facilitates and encourages the amicable settlements of disputes in regard to the “conditions of [federal] employment.” As described in the decision, these rights cannot be rendered subordinate to the President’s conflicting policy choices.

Getting into the specifics of each Order, Judge Jackson explained that the collective bargaining order, officially called “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining,” was an attempt to expedite bargaining negotiations, remove certain matters from the bargaining table completely, and require agencies to forego meeting for negotiations in certain situations. Looking to established case law, Judge Jackson found that “almost any attempt to shrink the otherwise generally accepted and traditional scope of bargaining rights under the [Statute] can quickly render such an effort suspect from the standpoint of the boundaries that Congress has constructed.” So, for instance, the Order’s effort to remove an agency’s ability to negotiate over permissive subjects of bargaining or placing arbitrary timelines on negotiations impedes the prospect of good faith negotiations. Allowed to stand, the Order would “dramatically decrease the scope of the right to bargain collectively, because, in the [Statute], Congress clearly intended for agencies and unions to engage in a broad and meaningful negotiation over nearly every “condition of employment.”

The official time order, titled “Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use,” tried to redefine, and limit, the extent to which federal employees may engage in union business during working hours and prohibit federal employees from using certain federal resources. But the Judge correctly pointed out that the Order ignored Congress’s statutory statement that “labor organizations and collective bargaining in the civil service are in the public interest.” The limit imposed by the Order “exacerbates management’s advantages over labor and hampers unions’ ability to engage effectively in future collective bargaining, contrary to the clearly articulated goals of the [Statute].”

Lastly, the removal procedures order, officially titled “Promoting accountability and Streamlining Removal Procedures Consistent With Merit System Principles,” rejects the principle that supervisors and deciding officials should be “required to use progressive discipline” when dealing with underperforming subordinates, and limits opportunity periods to demonstrate acceptable performance. It forbids agencies to make any agreement that requires procedures for considering “progressive discipline,” and it explicitly prohibited bargaining over matters related to employee evaluations and bonuses. But Judge Jackson found that grievance procedures are instrumental in facilitating the protection of statutory rights, and they exist to safeguard the participation rights of individual employees and unions. Judge Jackson explained that the Order inappropriately eliminates the ability of labor representatives to assist federal employees who claim they were improperly evaluated or undercompensated, and this “deprives unions of an opportunity to utilize the collective bargaining process to influence the mechanisms through which accurate and fair treatment of employees within the federal civil service occurs.”

Summarizing her findings, Judge Jackson explained that many of the matters discussed in the Orders fall within the scope of the right to bargain that Congress sought to protect when it enacted the Federal Service Labor-Management Relations Statute:
In this Court’s considered judgment, the President is without statutory authority to promulgate directives that reduce the scope of the statutory right to bargain collectively that Congress enacted in the [Statute]; and, indeed, there appears to be no dispute that the President does not have the constitutional authority to override Congress’s policy choice. Thus, the only challenged provisions of Executive Orders 13,836, 13,837, or 13,839 that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.
Unfortunately, Judge Jackson denied the lawsuit with respect to other matters. Most significantly, the decision did not invalidate the provision prohibiting agencies from entering into any settlement agreement that removes discipline from an employee`s personnel file. This provision has prevented agencies and employees from settlements that involve little or no cost (it is not expensive to change a removal to a voluntary resignation), forcing the parties to litigate before an Administrative Judge or arbitrator, with larger litigation costs and an even larger cost to the government in a loss. The basis for this portion of the Order is nothing short of an open hostility to federal employees.

Nevertheless, though some portions of the Orders were left intact – and it would not be a surprise if President Trump appeals – Judge Jackson’s decision reminds us all about the value of collective bargaining, and it provides a welcome reprieve for federal employees.


 
Written by Zachary Henige




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. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. 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 http://www.kcnlaw.com/Contact.shtml.

Thursday, August 16, 2018

Revoking John Brennan’s Security Clearance Reveals Flaws in Whistleblower Protections for the Intelligence Community

Yesterday, the White House announced that President Trump had revoked the security clearance of John Brennan, the former Director of the Central Intelligence Agency (CIA). The President’s statement claimed the decision was justified by Brennan’s “erratic conduct and behavior” that “tested and far exceeded the limits of any professional courtesy[.]”

The President noted that Brennan told Congress that “the intelligence community did not make use of the so-called Steele dossier in an assessment regarding the 2016 election,” and he continued, saying:
Additionally, Mr. Brennan has recently leveraged his status as a former high-ranking official with access to highly sensitive information to make a series of unfounded and outrageous allegations — wild outbursts on the Internet and television — about this administration. Mr. Brennan’s lying and recent conduct, characterized by increasingly frenzied commentary, is wholly inconsistent with access to the nation’s most closely held secrets, and facilities [facilitates] the very aim of our adversaries, which is to sow division and chaos.
Brennan’s most recent tweet criticized the President for calling Omarosa Manigault-Newman a “crazed, crying lowlife” and a “dog,” and praising his Chief of Staff John Kelly for firing her. Brennan stated:
It’s astounding how often you fail to live up to minimum standards of decency, civility, & probity. Seems like you will never understand what it means to be president, nor what it takes to be a good, decent, & honest person. So disheartening, so dangerous for our Nation.
This tweet is fairly described as a disclosure about “an abuse of authority.” An abuse of authority is an “arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.”

On August 1, 2018, Brennan tweeted:
Individuals of conscience who believe in rule of law should denounce this blatant effort to obstruct justice. As Mr. Trump’s desperation to protect himself grows, he could turn words into actions, prompting a Constitutional crisis. Congress must warn Trump of dire consequences.
Since obstruction of justice is a crime, this tweet can fairly be read to constitute a disclosure of a violation of law.

In 2014, Congress passed the Intelligence Authorization Act, that included protection of a whistleblower’s security clearance. At 50 U.S.C. Section 3341(j)(1), the law prohibits the revocation of an employee’s security clearance because that employee made a lawful disclosure of “ a violation of any Federal law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.]”

The Supreme Court previously held that a law protecting employees from retaliation also protects former employees.

The 2014 Act requires each IC agency to implement its own policy against whistleblower reprisals. If the agency determines that a denial of a security clearance was an unlawful reprisal, “the agency shall take specific corrective action to return the employee or former employee, as nearly as practicable and reasonable, to the position such employee or former employee would have held had the violation not occurred.” The agency can also pay up to $300,000 in compensatory damages.

However, if the agency determines that it did nothing wrong, the whistleblower has 60 days to appeal to the DNI. Under procedures made in consultation with the Secretary of Defense and the Attorney General, the DNI gets to make the final decision. There is no appeal to any court, nor any right to file an individual lawsuit.

The odds that any or all of these presidential appointees would declare that the President himself violated the law seems too remote to build confidence in this system. If Congress wants to assure that employees in the IC will trust that they are protected if they disclose wrongdoing, it needs to provide for appeals to independent tribunals and eventually to the courts. IC employees can already bring discrimination claims to civilian courts, and the same procedures could be used in whistleblower cases.

Using the civilian Whistleblower Protection Act (WPA) would be one way to accomplish this goal. Employees covered by the WPA can make complaints to the Office of Special Counsel, appeal to the Merit Systems Protection Board (MSPB), appeal further to the federal Courts of Appeals, and if their claim is mixed with a claim of discrimination, they can file a civil lawsuit and seek a jury trial.

Now would be a good time for Congress to expand the coverage of the WPA to extend these protections to employees of the Intelligence Community.



By Richard Renner



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. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. 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 http://www.kcnlaw.com/Contact.shtml.

Tuesday, July 31, 2018

It Takes Courage to Say “Me Too” in the Workplace: Recognizing Bravery

Standing up and saying “Me Too” to report sexual harassment or assault in the workplace takes courage. The EEOC recently noted that “[r]oughly three out of four individuals who experienced [workplace] harassment never even talked to a supervisor, manager, or union representative about the harassing conduct. Employees who experience harassment fail to report the harassing behavior or to file a complaint because they fear disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” These fears are not unfounded. Retaliation is illegal, but (as reported almost daily) it still happens. Reporting a workplace harasser or filing a complaint takes guts; but when an employee comes forward, s/he is standing up for everyone. Federal Correctional Center (FCC) Coleman, a federal penitentiary in Florida, is a perfect example.

Female Correctional Officers at FCC Coleman lived a workplace nightmare. Every day, inmates subjected them to sexual harassment including openly masturbating at them, shouting gendered and sexual obscenities at them, stalking them, grabbing their breasts, threatening to rape them, and even throwing semen at them. The women reported these egregious actions to management, but management told them to “suck it up” and that if they couldn’t handle it they shouldn’t work there. Even worse, some were told that it was just an example of why women shouldn’t work in a men’s prison. When some of the women had had enough, they sought legal advice. Even then, the first attorney they spoke with dismissed their complaints, telling them that “you can't sue the United States Department of Justice.” Luckily, they persisted.

Ultimately, the Coleman women came to me through their union. I was appalled by the situation and lack of response. We pursued a class action against the Bureau of Prisons (“BOP”) and, in order to bring the claim, five courageous women agreed to be “class agents,” essentially the face of the lawsuit. Taronica White, Tammy Padgett, Lena Londono, Eva Ryals, and Carlissa Warren-Spurlock, selflessly stood up not only for the rest of the women involved in the lawsuit, but for every woman who would work at FCC Coleman in the future. Countless other women came forward to provide information and support the litigation. By the end of the case, so many women wanted to help that we couldn't list them all as witnesses at trial. Without their courage, nothing would have changed.

Not surprisingly, BOP did not agree to make necessary changes until the women won a significant victory when the judge overwhelmingly agreed that the women were subjected to a hostile work environment. BOP then agreed to consider mediation.

The Coleman women pushed for extensive but necessary changes, seizing the opportunity to ensure a workplace free of harassment not just for themselves, but for all of the women who would come after them. In fact, by that time, only two of the five women still worked at Coleman. Several months later, the case settled for $20 million and an agreement that the Bureau of Prisons would implement extensive changes to stop the harassment. As it turns out, you can sue the Department of Justice. BOP agreed to changes that even the judge acknowledged she may not have had the authority to require. As testimony to their dedication, the National Employment Lawyers Association recognized these women and their bravery with a 2018 Courageous Plaintiffs Award. Speaking up about and standing up to sexual harassment and sexual assault in the workplace is never easy, but when those who can do, they do so for the benefit of everyone.




Written by Heidi Burakiewicz.




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. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. 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 http://www.kcnlaw.com/Contact.shtml.

Wednesday, July 11, 2018

A new “reasonable” standard for sexual harassment claims

A recent Court of Appeals decision from Philadelphia shows that victims of sexual harassment can win discrimination claims even if the victim did not make an official report of the harassment, and even if the employer eventually fired the harasser when it did find out about it. The Court, mindful of the #MeToo “firestorm,” and growing evidence about the extent of both harassment and fear of retaliation, decided that juries, not judges, should decide the key questions of whether the victim’s and employer’s actions were “reasonable.”

Sheri Minarsky began working as a part-time secretary for the Susquehanna County Department of Veterans Affairs in 2009. On Fridays, she worked for Thomas Yadlosky, the former Director of the Department. Soon after Minarsky started this job, Yadlosky began to sexually harass her. Yadlosky attempted to kiss her on the lips before he left each Friday. He approached her from behind and embraced her, “pull[ing] [her] against him.” He "would purportedly massage her shoulders or touch her face. As they worked together, alone, others were seldom present to see what Yadlosky was doing, other than during the holiday season, when Yadlosky asked Minarsky and other female employees to kiss him under mistletoe."

Yadlosky began to control Minarsky by asking about her "whereabouts during lunch and with whom she was eating. He called her at home under the pretense of a work-related query but proceeded to ask personal questions." Yadlosky "became hostile if she avoided answering these calls. He sent sexually explicit messages from his work email to Minarsky’s work email, to which Minarsky did not respond."

When Yadlosky first began his harassment, Minarsky tried to stop him in a joking manner. That failed. Minarsky’s daughter was ill and they depended on her employment to pay medical bills. "She feared speaking up to him in any context, let alone to protest his harassment, because he would react and sometimes become 'nasty.'" Sylvia Beamer, the Chief County Clerk, twice became aware of Yadlosky’s inappropriate behavior toward other women, and admonished him. Beamer "told him he could face termination if his inappropriate behavior continued. There was no further action or follow-up, nor was any notation or report placed in Yadlosky’s personnel file. Also, once when Beamer was in the Veterans Affairs office, Minarsky saw Yadlosky try to embrace Beamer, but Beamer stopped him and said, 'Get away from me.'" A female Commissioner testified that Yadlosky attempted to hug her too, and that he put his arm around her, or kissed her on the cheek approximately ten times.

Susquehanna County has an anti-harassment policy. It permits an employee to report harassment to the supervisor, or to the Chief County Clerk or a County Commissioner. Minarsky feared what would happen if she made a report to County administrators because Yadlosky repeatedly warned her not to trust the County Commissioners or Beamer. He told her to look busy or else they would terminate her position. "These warnings, along with the fact that Yadlosky had been reprimanded unsuccessfully for his inappropriate advances toward others," led Minarsky to avoid reporting Yadlosky.

Minarsky finally "revealed the harassment and its emotional toll on her health to her physician in April of 2013," about four years after she started work. The doctor "emphasized the need to bring an end to the conduct. She encouraged Minarsky to compose an email to Yadlosky, so she would have some documentation." Minarsky also told a friendly coworker, and word got around to Beamer who investigated the harassment and fired Yadlosky.

Minarsky filed suit against Susquehanna County and Yadlosky. The district court eventually dismissed that suit because (1) the County took prompt and sufficient action against Yadlosky’s harassment, and (2) Minarsky failed to report the harassment pursuant to the County’s policy.

In 1998, the Supreme Court set out standards for holding employers liable for harassment. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Court acknowledged the sensitive nature of workplace harassment: “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” "If the harassment resulted in a 'tangible employment action' against the employee, then the employer is strictly liable. The Supreme Court has described a tangible employment action as 'hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'"

However, as in Minarsky’s case, "if the harassed employee suffered no tangible employment action,  the employer can avoid liability by asserting the Faragher-Ellerth affirmative defense. The employer must show (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

"The cornerstone of this analysis is reasonableness: the reasonableness of the employer’s preventive and corrective measures, and the reasonableness of the employee’s efforts (or lack thereof) to report misconduct and avoid further harm." In Minarsky’s case, the Court of Appeals held that the reasonableness of both the County’s and Minarsky’s actions “should be decided by a jury.”

The Court made this unusual observation, proving that judges read newspapers:
This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.

Recent news articles report that studies have shown that not only is sex-based harassment in the workplace pervasive, but also the failure to report is widespread. Nearly one-third of American women have experienced unwanted sexual advances from male coworkers, and nearly a quarter of American women have experienced such advances from men who had influence over the conditions of their employment, according to an ABC News/Washington Post poll from October of 2017. Most all of the women who experienced harassment report that the male harassers faced no consequences. ABC News/Washington Post, Unwanted Sexual Advances: Not Just a Hollywood Story (Oct. 17, 2017), http://www.langerresearch.com/wp-content/uploads/1192a1SexualHarassment.pdf.

Additionally, three out of four women who have been harassed fail to report it. A 2016 Equal Employment Opportunity Commission (EEOC) Select Task Force study found that approximately 75 percent of those who experienced harassment never reported it or filed a complaint, but instead would “avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior.” EEOC Select Task Force, Harassment in the Workplace, at v (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf. Those employees who faced harassing behavior did not report this experience “because they fear[ed] disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” Id.; see also Stefanie Johnson, et al., Why We Fail to Report Sexual Harassment, Harvard Business Review (Oct. 4, 2016), http://hbr.org/2016/10/why-we-fail-to-report-sexual-harassment (women do not report harassment because of retaliation fears, the bystander effect, and male-dominated work environments).
That Beamer and Warren had personal knowledge of Yadlosky’s harassment, and yet took no documented action to stop it, featured prominently in the Court’s decision that a jury could find their response was unreasonable.

As for Minarsky’s conduct, the Court wanted to clarify that “a mere failure to report one’s harassment is not per se unreasonable.” The passage of time is just one factor in the analysis. “Workplace sexual harassment is highly circumstance-specific, and thus the reasonableness of a plaintiff’s actions is a paradigmatic question for the jury, in certain cases.” If a plaintiff’s concern about potential retaliation from reporting her harassment is “well-founded,” and a jury could find that it is “objectively reasonable," then the court should then leave the issue for the jury to determine at trial. The Court vacated the decision of the district court and returned the case for trial against both the County and Yadlosky.

A previous KCNF blog reviewed two other decisions in harassment cases (Guessous v. Fairview Properties Investments and Smith v. Rock-Tenn Services, Inc.) holding that the determination of reasonableness should be made from the victim’s point of view.

https://kcnblawg.blogspot.com/2016/07/two-appellate-courts-look-at-hostile.html

Employees would benefit from understanding how social movements influence the law. The growing demands for accountability for harassers is already pushing the needle toward greater opportunities for victims.

Employers would benefit from appreciating that issuing a policy against harassment is not enough. Employers can face liability if they fail to enforce that policy. They must be proactive in taking prompt and effective action to stop harassment. Even if victims do not complain, employers must get to the bottom of any information they have about workplace harassment and make sure the all employees feel safe and free to speak up.

The Supreme Court has also made clear that these principles are not limited to sexual harassment. Harassment on any basis that violates the law (race, color, national origin, religion, or retaliation) is actionable. Courts also use these same principles in whistleblower cases.


The case is Minarsky v. Susquehanna Cty., No. 17-2646, 2018 WL 3234243, at *1, 2018 U.S. App. LEXIS 18189 (3d Cir. July 3, 2018). http://www2.ca3.uscourts.gov/opinarch/172646p.pdf


Written by Richard Renner.




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. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. 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 http://www.kcnlaw.com/Contact.shtml.

Friday, July 6, 2018

Developing trends: With EEOC Administrative Judges denying discovery, Complainants and their counsel should ensure their Reports of Investigation include all relevant information.

A trend appears to be developing in which EEOC Administrative Judges curtail or deny EEOC complainants the ability to conduct discovery before they issue a decision based on the facts and evidence contained in the Report of Investigation, or “ROI.” The result is to effectively deny a complainant the right to an administrative hearing on the merits of his or her complaint. This is a profound revision to the EEOC’s procedures, made without any notice or comment.

Since the EEOC assumed responsibility for processing discrimination complaints by federal employees, when a complainant requests a hearing, the Commission assigns an administrative judge to conduct that hearing in accordance with the Commission’s regulations at 29 CFR §1614 and its management directive governing Federal Sector Complaint Processing, otherwise known as MD 110. The administrative judge maintains responsibility for the adjudication of the complaint. Federal regulations actually require an administrative judge to notify the parties of the right to seek discovery before the hearing.1 And although the administrative judge maintains the authority to limit the quantity and timing of discovery, EEOC regulations contemplate that “[b]oth parties are entitled to reasonable development of evidence on matters relevant to the issues raised in the complaint….”

The right to discovery before a hearing is not an accident: the ROI for a claim of discrimination is prepared under the supervision of the same Agency that is accused of discrimination. Other than submitting his or her own affidavit and rebuttal affidavit, with attachments, the complainant is permitted no role in determining what goes into or is left out of the ROI. The Commission has long held that “a hearing before an EEOC AJ is ‘an adjudicatory proceeding which completes the investigation of a complaint by ensuring that the parties have a fair and reasonable opportunity to explain and supplement the record and to examine and cross-examine witnesses.’”2

Nevertheless, some administrative judges have recently denied complainants the right to develop the evidence through the discovery process. One example of this development is evident from the EEOC’s San Antonio Field Office, which issued an Acknowledgment Order warning the parties that the Administrative Judge was prepared to deny discovery unless the judge found it justified at the Initial Scheduling Conference. The Order included the following statements:
The Parties are notified that not all cases require discovery and discovery will not be granted in all cases. Moreover, discovery may be further limited, and in some cases denied altogether.
….
[T]he parties should be prepared for the Administrative Judge to deny discovery. Under these circumstances, the AJ may, as an example, determine that the record is substantially complete, and that there is little remaining evidence necessary to complete the record for decision. In such cases, the resolution of the complaint may take the form of a Summary Judgment decision, or there may be a Targeted Hearing, which may focus on gathering a few additional facts to complete the record, or such a hearing may be convened to resolve a limited credibility issue. In these cases, the AJ may also limit the parties’ participation in these hearings. In fact, it is possible that the AJ may convene the hearing and preclude examination of any witness(es) by the parties and conduct the examination of any witnesses her/himself.
Nearly identical statements warning that “not all cases require discovery and discovery will not be granted in all cases,” also have been included in Acknowledgement Orders issued by administrative judges in the Washington Field Office. Though these orders similarly threaten to deny the parties any discovery at all, they offer no explanation of the factors the administrative judge will use to determine whether discovery will be granted, severely limited, or denied altogether. The result may leave complainants who expect to pursue their complaints to hearing without counsel scratching their heads about how best to justify the need and expense for discovery under the circumstances.

Another variation on this trend, recently exercised by the EEOC’s Washington Field Office, involved an Acknowledgment Order that calls for an in-person Initial Scheduling Conference. The Order provided that during the Conference, limited testimony would be taken exclusively from four witnesses before a decision on the complaint would be read from the bench. In this matter, buried within the particulars providing for discovery, the administrative judge stated:
I have determined that the record has been adequately developed, with the exception of  the required documents in Section III of this Order and additional testimony from the witnesses listed in Section IV of this Order. Therefore, discovery requests will be streamlined thoroughly.
In this matter, the administrative judge required the Complainant to produce both 1) affidavits from any witness that would assist the Complainant with establishing pretext or corroborate the Complainant’s testimony, and 2) all “documents/evidence not within the ROI within the Complainant’s possession” that would help Complainant prove his case. The administrative judge only required the Agency to produce “all documents/evidence not included in the ROI within the Agency’s possession that can help establish its defense.” Apparently, this administrative judge did not believe the agency should be required to produce evidence in its possession that would benefit the complainant, i.e., evidence that is normally sought in discovery.

Finally, in one of the most severe examples of this trend, an administrative judge in the Washington Field Office relied on the rarely-used authority under 29 CFR §1614.109(g)(3). Under §1614.109(g)(3), an administrative judge can determine, on his or her own initiative, that there are no material facts in dispute, and provide notice to the parties of his or her intent to issue a decision without holding a hearing. The notice allowed the parties an opportunity to respond to the order declaring the administrative judge’s intent to grant summary judgment without any discovery or a hearing and to explain why discovery was necessary. But the administrative judge remained free to issue a decision both denying the complainant’s request for discovery and deciding the case in favor of the Agency.

If this practice of limiting or precluding discovery is adopted by other administrative judges, the evidence available in the record is likely to be incomplete. It is difficult to see how the movement toward limiting complainants’ ability to obtain evidence not included in the ROI contributes towards the government’s goal of “conduct[ing] a continuing campaign to eradicate every form of prejudice or discrimination from the agency’s personnel policies, practices, and working conditions.”3

129 CFR §1614.109 (d) (“The administrative judge shall notified the parties of the right to seek discovery prior to the hearing and may issue such discovery orders as are appropriate.”). 
2 Angelita G. Guerra, Appellant, EEOC Appeal No. 01940899 slip op. at *8 n.3 (Oct. 4, 1994); see also Complainant v. Archuleta, EEOC Appeal No. 0120120901, slip op. at *12 (Dec. 2, 2013) (“One function of the hearing process is to supplement the Record of Investigation (ROI).”). 


Written by Puja Gupta 


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. Attorneys at KCNF practice wage and hour law and have recovered tens of millions of dollars in unpaid work on behalf of employees. 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 http://www.kcnlaw.com/Contact.shtml.