By William Wiley, April 15, 2020

If you paid attention in civics class in the 10th grade, you probably remember a fundamental aspect of our country’s great legal system:

  • The legislative branch (Congress) decides what the rules should be in our society and then passes laws to implement those rules.
  • The judicial branch (the courts) then interpret those laws the way Congress wrote them, thereby clarifying any ambiguity in the laws.

Ideally, there is a better way. Once a governmental rule-maker creates a law, if there’s any subsequent ambiguity, we would be able to just go back to that rule-maker and ask what was really meant. We do that all the time in day-to-day life. If you’ve enjoyed happy hour a bit too much and accidently leave a $1000 tip on a $50 bar tab, the nice restaurant staff will call you the next day and say, “Did you really mean to do leave a $1000 tip?” (Don’t ask me how I know this.) In normal life, we clear up ambiguity by dealing with the source of the ambiguity.

Unfortunately, we can’t do that in government. The Congress that passed the unclear law probably no longer exists by the time the ambiguity arises. Therefore, we use the judicial branch to interpret the laws, based almost exclusively on the words of the law itself. If those words result in awkward outcomes, so be it. The role of a judge is not to make law, but to interpret it. The courts sometimes look to the intent of Congress when the laws were drafted, but those intentions are an educated guess at best. It’s the black-letter law that matters most.

A couple of decisions that produced arguably unintended outcomes, coincidentally decided the week after April Fool’s Day, recently landed in the field of federal civil service law:

Babb v. Wilkie, No. 18-882, U.S., April 6, 2020 – Federal law demands that personnel actions within the government be untainted by discriminatory motives, e.g., race, sex, age, etc. Courts have interpreted this prohibition to mean that the agency’s personnel action (for example, a termination) will be set aside, and the petitioning employee made whole (e.g. reinstated with back pay) if “but-for” the discriminatory characteristic, the agency would not have taken the personnel action. The but-for aspect of this requirement gives a level of defense to an agency when it would have removed the individual, even if its decision somehow involved one of the protected civil rights categories.

Yes, when the agency fired me, it was aware that I am a male. However, even though it considered my sex in making its removal decision, it still would have fired me because what I did was so seriously harmful. In other words, for me to be successful in my discrimination complaint challenging the removal, I have to prove that had I not been a male, the agency would NOT have fired me, e.g., but-for my sex. If I simply prove that my sex was a consideration, that’s not enough to get reinstated.

In Babb v. Wilkie, the Supreme Court carved out an exception to this principle. As the law that provides for protection from age discrimination reads a bit differently from the civil rights laws that prohibit discrimination based on race, religion, sex, etc., the Court held that if the employee proves that age was a factor in the decision to take the personnel action, the employee has proven that the agency engaged in prohibited discrimination, and is thereby entitled to a remedy. Importantly, though, unless the employee also can prove the but-for aspect, the remedy does NOT include reversal of the termination along with reinstatement and back pay. What exactly would be a proper remedy when age is a factor – but not determinative of the decision to remove – was left unresolved by the Court.

Bottom Line:  If the complainant can prove that one of the civil rights protected categories was a factor in the agency’s termination, but cannot prove that but-for his race, sex, religion, etc. he would not have been fired, he loses. However, if the employee proves that his age was a factor, he deserves a remedy, but not necessarily reinstatement unless he can meet the but-for standard.

So whaddya think? Did Congress actually intend this distinction, that complainants mistreated because of their age should receive a remedy when other individuals mistreated because of their race or sex do not receive a remedy? No, we don’t think so, either.

Kammunkun v. DoD, No. 2019-1374, Fed.  Cir., April 6, 2020 – As most every civil service law practitioner is aware, an employee who is fired often can challenge that removal in a variety of forums. For example, an employee who believes that a removal was reprisal for whistleblowing can file a complaint with the U.S. Office of Special Counsel (OSC). On the other hand, if the employee believes that pre-removal due process procedural rights were violated by the agency, the employee can file an appeal with a different agency, the U.S. Merit Systems Protection Board (MSPB). Bargaining unit employees who happen to hold positions covered by a collective bargaining agreement (union-management contract) have a third option. They can file a grievance under the CBA’s negotiated grievance procedure, with the right to receive a decision on the contested removal from an arbitrator.

In an attempt to attain administrative efficiency, Congress enacted 5 USC § 7121 (g)(3) to restrict a fired whistleblowing employee from pursuing redress through multiple forums — a complaint with OSC, an appeal with MSPB, and a grievance through  arbitration, all involving the same issue. The law says that the offended whistleblower “may elect not more than one” of the three available forums. Such limitations on avenues of redress are common. Individuals usually get just one bite at the apple, as they say.

In Kammunkun v. DoD, MSPB’s administrative judge dismissed the employee’s appeal. The Board’s regulation relied on by the AJ references the statute when declaring that the election of forum is made when the employee selects a remedy initially and cannot be changed later, 5 CFR 1209.2(d)(1). As Kammunkun had previously filed with OSC claiming whistleblower reprisal, she was not allowed to pursue a separate MSPB appeal on the merits of her removal. That outcome seems to make sense relative to the goal of adjudicatory efficiency. One bite, one forum.

When the Federal Circuit reviewed the law on which the regulation is based, it found the statute codified in that portion of Title V relative to labor relations. That’s because, in part, the intent of Congress was to prevent the individual from taking the same whistleblower reprisal claim to both the Board and to an arbitrator. Employees can pursue a grievance to arbitration only if they are in a collective bargaining unit. Therefore, codification in the labor relations section of the law makes sense, because only in that section is arbitration a relevant remedy.

The word “employee” has a very specific labor relations statutory definition, see 5 USC § 7103(a)(2). Many individuals who work for the federal government who think of themselves as federal employees are not “employees” for the purposes of labor relations. For example, by law, supervisors and managers are not allowed to participate in union affairs and are, therefore, excluded from the definition of an “employee” who would have collective bargaining rights. Makes sense because management officials should not be allowed to exert influence in internal union business where there often is an inherent conflict between the goals of the union and the goals of management.

Unfortunately, when applying this narrow definition of “employee” to the Board’s regulation intended to limit the number of forums in which a whistleblower can challenge a removal, the evidence reveals that the appellant in this case is, in fact, a supervisor. Therefore, she is excluded from the coverage of the regulation because she is not a labor-relations-defined “employee” and thereby not precluded from filing with both OSC and MSPB.

Bottom Line:  An individual who is fired from a position excluded from the labor-relations definition of “employee,” such as a supervisor, can file a whistleblower reprisal complaint with OSC and also file a merits appeal with MSPB. However, an individual who is fired from a position that satisfies the labor-relations definition of “employee” has to make a choice and cannot file in both forums.

So whaddya think? Did Congress actually intend this distinction, that supervisors should have greater redress rights than non-supervisors when claiming that a removal is motivated by the desire to reprise against a whistleblower? No, we don’t think so either.

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