A Wrong Turn on Employee Appeals

Those wanting to cut MSPB out of the game may well be hunting rabbits while letting dragons roam.

B

ush administration officials who are fighting to free federal managers from Merit Systems Protection Board review of their disciplinary actions may well be hunting rabbits while letting dragons roam.

Hostility toward the MSPB was evident in proposals that led to enactment during the past two years of the major laws to overhaul the Defense Department's personnel system and to create the Homeland Security Department. In both cases, the agencies were given the option to design employee appeals systems that would bypass the MSPB. At Defense in particular, civilian leaders seem intent on that objective, and if they succeed, they will wipe out a substantial portion of the board's caseload and force further reductions in its budget and staff.

Agency managers have little to fear from the MSPB, as Shawn Zeller reported in the January issue of Government Executive. For one thing, there is little delay in employee disciplinary cases as a result of MSPB review. Most cases are resolved within a few months of appeal. Even if an administrative judge moves much slower, almost all actions, be they removals or suspensions, usually take effect immediately after the agency makes its decision. (Compare the MSPB's speedy record with the dismal and interminable process of the Equal Employment Opportunity Commission.)

More important, as Zeller reports, nearly 80 percent of employee appeals are decided in favor of the agency. Although MSPB judges don't quite give agencies a rubber stamp, they do tend to liberally and quickly dismiss employees' appeals for a supposed lack of jurisdiction, or otherwise limit their ability to defend themselves. Thus, they sometimes have been overruled by the board or by the Federal Circuit Court of Appeals, which reviews MSPB decisions. Worse, from the point of view of "justice" being done, judges now rightly fear the closing of their offices and loss of their jobs due to the erosion of their agency customer base. Human nature tells us that at least some judges are throwing even more support to the agencies to prove that they're not a problem and should be retained.

Most agency actions cannot be appealed to the MSPB at all. Under federal law, its jurisdiction is limited largely to review of removals, demotions and suspensions of more than 14 days, and to cases involving reprisal against whistleblowers. Actions such as security clearance revocations, denials of promotion, lateral reassignments and virtually all appeals by probationary employees are simply unappealable to the board.

ARBITRATION AGGRAVATION

So if the MSPB is not the culprit that agencies fear is sapping and mining their disciplinary systems, what is?

There are two very real entities that do come close to gutting agencies' ability to get rid of incompetents and disciplinary problems. One is the arbitrator. Under federal law, any formal disciplinary action against bargaining unit employees, whether they are dues-paying union members or not, can be sent to arbitration by the union. The problem here lies in the fundamentally corrupt system of choosing arbitrators. Unlike judges in federal or state courts or in administrative bodies such as the MSPB, the EEOC, or the Social Security Administration, arbitrators' livelihoods depend on how they decide cases. In effect, arbitrators are contractors who are paid by the job.

The devil here lurks in the method of selecting arbitrators. Management and union officials both get a list of arbitrators and take turns striking names until only one is left; that arbitrator gets the job. The arbitrator thus has a vested financial interest in deciding about half of his cases in favor of the agencies and half in favor of the unions representing the employees.

Arbitrators who have a reputation of favoring one side or the other often won't be selected and then will be forced to find other employment. Consequently, if agency officials are unlucky enough to draw an arbitrator whose last few decisions were in favor of management, they can expect that it's probably time for the union to win. In a close case, that could mean the agency's action will be overturned or a well-deserved removal will be watered down to a suspension. This wouldn't be a problem if half of the employees charged were guilty. Since the real percentage of guilty employees is much higher, however, the system makes it tough for agencies to weed out miscreants and malcontents.

Whatever the faults of the arbitration system, they pale beside the disastrous discrimination complaint process. Unlike the MSPB, whose imagined beneficiaries are bad federal employees, unloved by any segment of the public, the EEOC has a real and powerful constituency. Egged on by the endless mewling of the NAACP and other civil rights organizations, congressional representatives fight for the right to champion the victims of discrimination, real or imaginary. The process is endless. An allegation of discrimination filed by a federal employee against an agency can trigger a lengthy, exhaustive and expensive investigation by the agency at its own expense. Hearings before an EEOC judge or before a U.S. district court judge (and jury) or even both can ensue, often dragging the process out for many years.

Many complaints are frivolous and sometimes absurd. One federal judge, describing a discrimination case before him as "yet another entrant in a tiresome parade of meritless discrimination cases" decried federal employees' hunt for "invidious distinctions lurking behind every act of discipline or every denial of advancement." To make it worse, the EEOC panders to its constituents by rendering ridiculous decisions.

In one case, the U.S. Postal Service was ordered to process a race and sex discrimination complaint after a postmaster forced an employee to park in the rear parking lot, not the one in front, though the two lots were equidistant from the building. In another, the commission forced an agency to hire a partially deaf person to answer telephones because it messed up in its analysis of the agency's disability accommodations. And in still another, the commission ruled that a U.S. Navy employee was discriminated against because she had to take a truck inspector training course in her home state of Virginia while others were allowed to train in "luxury" at places such as Florida and California.

No fools on the EEOC: With decisions like these, the judges won't have to worry about caseload loss or office closure.

TIPPING THE SCALES

If employees can no longer appeal a removal, demotion or long suspension to the MSPB and must accept the agency's decision as final, it does not require a rocket scientist to see what is going to happen next. Employees will style every such action as discrimination because that will be the only way to get a "neutral arbiter" to examine the rectitude of the agency's decision. And who can blame them? If they don't allege discrimination, then their managers' decisions will be final and unappealable. If they do, then they can get their cases into the far friendlier forum of the EEOC or, even better, before a victim-loving, government-hating jury. On top of that, senior management's pathological dread of bad press will ensure that many meritless cases will be settled to the complaining employee's satisfaction.

What is the solution? If the goal is to benefit agencies (and the overwhelming majority of employees who are both competent and industrious) and to weed out the drones, then curtailing the jurisdiction of the MSPB without reforming the EEOC process and the system of selecting arbitrators will make the situation worse. The unions will fall on their swords to retain arbitrators' power to review discipline and performance actions, and employees will cry discrimination even more than they do now.

Arbitrators should be selected either at random, such as by lottery, or they should become salaried employees. Another possibility would be to transfer their powers to quasi-independent agency grievance examiners (as the Interior Department now does in some discipline cases). Concomitantly, patently frivolous discrimination complaints should be subject to summary dismissal without the zombielike resurrections they now enjoy. Moreover, a wrongful allegation of discrimination should result in a separate disciplinary action, an action that rarely occurs now. Extreme cases should be criminally prosecuted.

Only if all these issues are addressed in a coherent and overarching approach will the pain of the MSPB's decline be eased. But don't hold your breath. Look for the unions and civil rights groups to scream like stuck pigs at any hint of erosion of "their" laws and procedures, and look for upper management to continue to quake in mortal dread at the thought of adverse publicity resulting from allegations of discrimination.


William N. Rudman is an attorney who specializes in federal employment law. With 26 years of federal service, he retired in 1993 as deputy undersecretary of Defense and director of the Defense Technology Security Administration.

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