We conduct a case evaluation from the initial contact and in a recurring manner throughout our consulting process. 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 or unpleasant to the employee from their perspective, not all situations and appeals will result in an outcome favorable to the employee. This is why we routinely conduct an ongoing case evaluation.
As senior level practitioners of federal employee labor & employee relations and matters involving EEO (Equal Employment Opportunity), MSPB (Merit Systems Protection Board), and arbitration, 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 (case evaluation) 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.
The Basics of our Case Evaluation
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.
Summation on our Case Evaluation Method
The foregoing case evaluation 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.
The contents of this website (InformedFED.com) are intended to convey general information only and not to provide legal advice or opinions. Consultants at InformedFED are not attorneys. They are senior level practitioners of employee labor relations and EEO. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or employment advice in any particular circumstance or situation. The information presented on this website may not reflect the most current legal or regulatory developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. InformedFED is comprised of independent senior level practitioners and consultants who are not employees of InformedFED.