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Details are key to discrimination claims

This week, FEND's Nathan Abse interviews Kirby Smith, a discrimination lawyer for the Vaughn Law Firm in the Atlanta area. Smith represents federal employees, pursuing their cases before the Equal Employment Opportunity Commission (EEOC), Merit System Protection Board (MSPB), the Office of Special Counsel (OSC) and other federal venues.

This week, FEND's Nathan Abse interviews Kirby Smith, a discrimination lawyer for the Vaughn Law Firm in the Atlanta area. Smith represents federal employees, pursuing their cases before the Equal Employment Opportunity Commission (EEOC), Merit System Protection Board (MSPB), the Office of Special Counsel (OSC) and other federal venues. More than 15,700 federal employees filed nearly 17,000 discrimination complaints in fiscal 2011 to the EEOC, which handles the lion's share of such cases.

What are some of the more typical types of federal employees’ discrimination claims that you and your colleagues  handle?

Smith: The most frequently seen claims have to do with three types of discrimination—those based on race, gender and disability. There are additional categories, of course, that federal employees have protection against: skin color, religion and reprisal for previous EEO activity. This last one, reprisal, doesn’t even have to do with having raised an EEO claim, but participating as a witness an EEO claim sometimes results in reprisal, and you’re protected from that. Race, sex, gender and disability really are among the most frequently types seen.

Can you tell our readers more about disability claims?

Smith: One thing people should keep in mind on this is that if you allege it, you need to be able to perform the essential functions of your job. To qualify, the disability needs to affect “life activity”—that’s the term of art the government uses. It must affect, then, from simple chores to an inability to walk—it’s a broad range of things that fall under this term. But, as far as your job goes—even if you can’t walk—you, for example, may have a sedentary job that you can keep performing. In that case, if you are suffering discrimination based on that, you could claim disability discrimination. However, if you end up with a disability that makes it so you can’t perform your job, then you shouldn’t pursue a disability discrimination case, but instead need to move on and claim disability retirement. You really need to speak to an attorney to make sure on this point.

How does reasonable accommodation figure into the equation?

Smith: The process of getting reasonable accommodation for your disability starts with your agency. Your disability may be a temporary matter—you are having or just had surgery, for example. If it is temporary, for example, you can request accommodation. Your managers could put you in light duty to accommodate you. Or, sometimes, an agency comes back and says, ‘no, we cannot accommodate you.’ Sometimes, at that point, you can get them to alter this stance. Sometimes, instead, your only option is disability retirement.

Can you describe some of the difficulties encountered by federal employees pursuing discrimination claims? We understand that sometimes there is retaliation at work, or the case takes a very long time to process.

Smith: Well, one thing I would say is the major difficulty people run into is not necessarily about proving their case. A lot of people have legitimate cases—we have a number of employees here, pursuing a lot of legitimate cases for clients that can be won. The problem people run into is that the procedure is demanding. There are a lot of different steps. These cases don’t usually go to a courtroom. They go to a conference room, usually, with just the client, the lawyer, a judge and a lawyer for the agency. So, when a complainant doesn’t hire an attorney, and they have been working for the government for a long time, they often get the idea—on their own—that the agency attorney is working for them. That’s not the case—at all. That attorney is working as hard as they can to win the case for the agency, and make sure you lose.

Anything else that you would recommend for feds pursuing discrimination claims? 

Smith: Make sure that when you get into a situation requiring an attorney, you get one specializing in federal employment law—federal employment law is very, very different than employment law generally.

How well does the system in place work to address the discrimination problem in the federal workplace?

Smith: I would say it works as well as can be hoped for. When you look at the statistics—and there are a lot available, and you can see these online, about these decisions—you’ll see that the EEOC and MSPB find for the agency, like, 90 percent of the time or more. And those statistics can be right. At the same time, you should remember that when, say, a district attorney gets plea-bargained guilty pleas, very quickly, those end up being counted as 'convictions.' Similarly, the statistics on how often the employee loses the case end up being inflated. Doing research on MSPB cases, you’ll see that many are one-pagers stating that the complainant didn’t do so until past the deadline or lost on some other technicality—and those become part of the 90-plus percent. So, you should keep that in mind. You can win. The system is very much set on deadlines. It’s always 'this is the time period to do this or that'—and not being aware or adhering to this can be catastrophic to your case. These are often otherwise good cases.

Are any elements of the system improving, in terms of helping the employee’s prospects of prevailing—whether the Equal Employment Opportunity Commission or the Merit Systems Protection Board?

Smith: We have seen a number of changes in case law and elsewhere in favor of the employees—mostly in the MSPB. Access to knowledge matters on this. We know to check Westlaw and many different legal databases, and the journals on these changes and improvements. Many times, when we go up against an agency, the agency lawyer doesn’t know about the very latest, and that the law has changed. And if you’re on your own as a ‘pro se’ litigant, you’re not going to know about these cases, generally. As long as you know about these changes and can apply them properly, you can help yourself here. You’ll need a specialized attorney.

Do you and other firms take cases on contingency—or do you have to pay out of pocket?

Smith: We have taken a few cases on contingency, but the usual discrimination case is done on retainer and we are paid by the hour for services on that. My understanding is that a lot of other different federal employee law firms are paid by the hour—that’s the usual. Some firms require more money up front than others. You can call around and get an idea of how much will be required, up front. I’ve seen firms that—like ours—break up the payments so you only have to pay a couple thousand dollars up front. I’ve heard of others looking for $10,000 up front. If your case goes all the way to a hearing, it can cost in the $20,000 to $30,000 range—that’s pretty typical. But remember many cases end up settling well ahead of a hearing. And we only would pursue a case to a hearing that we can win.

What advice do you give someone who thinks they are suffering discrimination, preparing for a possible case?

Smith: My advice begins with this: Document, document, document. And I mean everything that’s happening that could be discrimination. This means if you have a conversation that adds to the evidence that you are being discriminated against, you need to write a memo on that to yourself, the day it happens, describing that conversation. This serves as excellent evidence that it happened. You can offer it later on down the road, it shows that this is not just you saying this now with possibly changed facts, because you documented it back then. Make sure you write it, put your name on it, and date it. Those are the three steps. And note any witnesses present or who know about it. And keep emails—if emails are sent back and forth that involve the case, keep a copy of those emails. Because if the agency comes back and says, ‘You’re fired,’ they can deny you access to email. We can ask for those, but I have had cases before where—and read into this as you wish—the agency said, ‘We have destroyed the email archive of that employee’s email,’ or the like. That can cause a real problem. These are the main things to do. Also, if you are a member of a union, you can definitely talk to your union representative about it—but make sure to talk to a lawyer too. Why? That’s because sometimes if you file a union grievance first you cannot then take your case to the EEOC. You need to know this, and be careful about this.

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