By William Wiley, April 18, 2018

I hate this case.

Not because of the outcome, necessarily. No, it’s because of the path it took, a path open to every federal employee who believes his supervisor has mistreated him. As you read through the following, ask yourself: “If I was a policy maker, would I want the government’s time and money spent this way?”

  1. January 2000, the employee was demoted from the SES to a GS-15 for poor performance. Her supervisor had recommended the demotion and the agency’s Performance Review Board (PRB) for SESers agreed. Remember January 2000? We were all celebrating the millennium and waiting for our computers to crash because we were told that they could not count that high. If you had given birth to a child that month, he’d be heading off to college this year, breaking your heart and your bank account, all at the same time. The Clinton years were almost over (or so we thought).
  2. February 2000, the employee filed an EEO complaint alleging that the demotion was sex discrimination. Another SESer, a male, had also been recommended for demotion at the same time, but was not demoted because the PRB concluded that he was not informed of a critical element of his position.
  3. February 2007 (keep up here, folks; these dates can be withering), the agency concluded its internal investigation and issued a “final agency decision” upholding the demotion. Remember that kid you had back in 2000? He’s in the second grade. After this, the employee appealed the agency’s decision to EEOC.
  4. August 2013, the employee’s case went to a jury in a federal district court and your son or daughter has entered the Terrible Teens. It’s not clear to me what happened between her filing with EEOC and her going to federal court, but one way or the other, she got there. The jury found the agency to be liable for sex discrimination, reasoning that its evidence that it would have demoted the employee even if she were a man was not persuasive. The jury awarded her $100,000 in damages plus a retroactive promotion back into the SES, with what I assume would be accompanied by back pay with interest and attorney’s fees and costs.
  5. January 2018, the district court judge denied the agency’s motion to set aside the jury’s verdict as a matter of law, thereby affirming the jury’s finding of sex discrimination. That might be good information for your now-adult child as he or she heads off to the university, to give her a good reason get a degree in civil rights law.

According to the court, there were two grounds on which the jury appears to have disbelieved the agency’s evidence:

  • The employee had rebuttable argument for each performance deficiency the agency identified. The jury was free to believe either the employee or the agency.
  • Remember that male member of the SES who was recommended for demotion at the same time as the employee, but who was not demoted because the PRB believed his argument that he was unaware which of his performance elements was critical rather than non-critical (a legally significant distinction)? The jury was free not to believe him.

For what it’s worth, there still are two remaining levels of review of this case in federal court: the DC Circuit Court of Appeals and the US Supreme Court. If the agency and DoJ choose to press this case forward, we may have even more decisions to consider.

Ignoring that possibility for a moment, just consider what you see above. Without taking any position on the righteousness or wrongness of the sex-discrimination outcome, is this really how we want our government to work? The fundamental issue here was the routine evaluation of this individual’s performance. As an SESer, one would imagine that there’s a relatively high degree of subjectivity in the performance of a senior manager at that level. Before the case got to a jury, think of all the government officials who were involved in making the decision that the demotion was warranted: at the employing agency, at EEOC, and at DoJ. Think of the different types of individuals involved in reaffirming the demotion: senior line managers, coworkers at the SES level (PRB), perhaps political appointees, attorneys, civil rights specialists. Were all those people wrong about this case?

Well, according to the jury, yes. Banks v. Agriculture, U.S. District Court, District of Columbia, 07-cv-01807 (APM) (February 22, 2018).

If the jury is correct, that this lady was mistreated because of her sex, I feel terrible for her. Not only is that simply unjust in our society, it also breaks federal laws in place since at least 1964. At the same time, I feel terrible for our civil service system, that decisions like this – right or wrong – have to go through 18 years of review to get even close to closure.

Congress is so fed up with drawn-out outcomes like this that some members are considering abolishing the civil service protections altogether. Maybe employment at-will should be the new way we try to run an efficient government. At the beginning of this article, we asked you to think of yourself as a policy maker for a moment. If you actually could make a policy to replace the one that allowed the above to happen, what would it be?

Operators are standing by: 202-456-1111. Wiley@FELTG.com

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