Many public employees, whether at the federal or state level of government, often assume every adverse or objectionable (to the employee) situation they encounter as a government employee at work is appealable in some manner. While it is true that any employee can initiate an appeal of some type for virtually any reason (or no reason) and the affected agency is legally obligated to process nearly every complaint or appeal regardless of validity, the requirement to do so does not assure the employee of achieving their desired outcome. Common situations serving as the basis of employee complaints often take the form of leave denial, telework denial, work assignments, investigations, customer complaints, performance ratings, schedules, discipline, reassignment, just to name a few (the actual list is incredibly long). However, while many situations may in fact be “adverse” or otherwise objectionable to the employee from their perspective, not all situations and appeals will result in an outcome favorable to the employee.
As senior level practitioners of federal employee labor & employee relations and matters involving EEO (Equal Employment Opportunity), we spend a great deal of our time clarifying client claims (initial and ongoing), issues, and circumstances in assessing client situations concerning matters appealable to forums such as the Merit Systems Protection Board (MSPB), the Equal Employment Opportunity Commission (EEOC), the Federal Labor Relations Authority (FLRA), the Office of Special Counsel (OSC), the Federal Mediation and Conciliation Service (FMCS), the Department of Labor (DOL), arbitration appeals, and similar forums. It is incredibly important this clarification process occur both at the initial consulting stage (staring with our first client discussion) and in a continuing manner throughout the entire federal appeal or complaint progression to reasonably ensure client (employee) objectives and expectations can be met.
Our consultants apply a continuing dynamic three-prong test both during our initial consultation and throughout progression of the appeal or complaint. This initial and ongoing assessment involves the application of three key contexts in the order indicated below.
- Is the claim actionable?
- If the claim is actionable, is it viable?
- If the claim is both actionable and viable, is it sustainable at hearing on appeal or otherwise in pre-hearing settlement negotiations.
Is the employee or union claim(s) actionable?
In plain use , the term actionable in our application means, in very general terms, whether the claims of the affected employee are “legitimate” upon presentation without regard to whether they can be proven technically. This is the primary focus of our initial consultation and Initial Case Analysis (ICA) with ongoing evaluations. The initial and ongoing assessment of the “actionability” of an appeal (think removal, demotion, suspension greater than 14 days) or complaint (think harassment, hostile work environment, discrimination, and also probationary terminations or removals based on discrimination) is based on whether the claimed issue(s) of the employee or union are,
- Supported by preliminary asserted facts, provided by the client, necessary to materially (not hypothetically) trigger an appeal or complaint under statutory or regulatory authorities.
- Otherwise Cognizable in a specific forum (such as MSPB, EEOC, OSC) based on asserted facts.
- Does the affected employee (client), have regulatory or statutory appeal rights to the selected forum?
- Does the selected forum have material jurisdiction over the claimed issue?
- Can the claims withstand challenges to jurisdiction?
- If the claimed issues are proven, does the selected forum actually have the ability to issue a ruling to the benefit of the affected employee.
- Supported by preliminary evidence or claims of evidence, provided by the client, necessary to support (though not necessarily prove at this point) the asserted facts that would otherwise trigger an appeal under statutory or regulatory authorities.
Is the employee or union claim(s) viable?
In plain use, the term viable in our application means, in very general terms, whether the claims of the affected employee can be supported through sufficiently developed information in such a manner that it makes sense to proceed further in the appeal or complaint process with the anticipation of either settling the matter pre-hearing or establishing a rational possibility (not probability) in prevailing at hearing. We constantly assess the viability of client claims or appeals beginning with the results of the ICA and throughout ongoing case development of facts and evidence. The initial and ongoing assessment of the “viability” of an appeal or complaint is based on whether the claimed issue(s) of the employee or union are,
- Able to be sufficiently developed for use in a specific forum (such as MSPB, EEOC, OSC) based on provable facts that can otherwise withstand judicial scrutiny in the selected forum.
- Able to be supported through the development and presentation of evidence that will prove the necessary facts, that can otherwise withstand the evidentiary process and judicial scrutiny in the selected forum.
Is the employee or union claim(s) sustainable?
In plain use, the term sustainable in our application means, in very general terms, whether the claims of the affected employee can be sustained through either successful pre-hearing settlement efforts or at hearing. The initial and ongoing assessment of the “sustainability” of an appeal or complaint is based on whether the claimed issue(s) of the employee or union are,
- Ultimately Provable in a specific forum (such as MSPB, EEOC, OSC) based on incontestable facts and evidence established through case/appeal development.
- And, if proven, the adjudicating authority, whether through settlement or award, is empowered to provide sufficient remedy to meet client objectives.
- And the employee claims can otherwise likely withstand an agency motion for summary judgement or dismissal.
The foregoing process is dynamic in that cases are constantly reevaluated based on developing information throughout the consulting phase. If information is received which causes our consultant to believe a client’s case is no longer actionable, viable, or sustainable, we advise the client accordingly and will likely recommend discontinuing administrative litigation efforts in the interests of saving clients money. This is a key distinction regarding our services.
For more information on our fee schedule, click here.
InformedFED provides expert administrative consulting and related transactional services to federal employees in all labor and employee relations matters.
WHAT WE DO | HIRE A CONSULTANT | CONSULTING QUESTIONS | FEE SCHEDULE
The material on this website is intended to provide only general information and comment to the public and federal employees. Although we make our best efforts to ensure information found on this website is accurate and timely, we cannot, and do not, guarantee the information is either. Nor do we guarantee accuracy of any information contained on websites to which our website provide links. Consultants offered through this website are not attorneys and are not employees of InformedFED. They are advanced labor and employee relations practitioners. They provide services to clients in their individual capacities through individual agreements with their clients.