How I explain my job to my 8 year old son.

November 24th, 2009

I am an attorney that works in civil litigation. I argue discrimination cases, contract violations, overtime cases, and various other matters in cases representing federal, state and private employees all over the country.
The other day, my 8 year old son came over to me and said “Dad, what exactly do you do at work other than talk on the phone and go onto the computer?” I had a hard time answering him in a way that he could understand (he is not allowed to even think about watching Law & Order, the Practice, Ally McBeal, etc.). So, I thought of explaining it in the context of something that he could relate to – color war at camp.

I went to day camp and sleep over camp for many years and the highlight of camp (other than the rustic accommodations, bland food and lack of air conditioning) was always color wars. Even today, I can hear the counselors screaming “1-2-3-4 we want color war; 5-6-7-8- we don’t want to wait.” So here was my explanation to my eight year old on how civil litigation (in the federal EEO framework) basically works. I did not get into all of the details so this is just a brief explanation. If you want a more through, and serious analysis of the Federal EEO system then contact me at the office.
1) Color war break out = starting an EEO complaint.
In camp, nobody ever just gets up at lunch and screams “color war” into the megaphone. For some reason there always has to be some kind of trick or stunt to kick off color war. A memorable color war breakout for me was when the staff poured a large amount of lemon juice into the punch (“bug juice”- I have no idea why we called it bug juice) at snack time. Everyone drank the stuff as usual (probably because we had just played kickball for 2 hours on field 28, which was 1.5 miles away, in 102 degree weather). Right after snack was over, the head counselor came rushing into the lunchroom and asked if anyone had tasted anything funny in the punch. Every kid in the room raised their hand because they had just drunk an obscene amount of lemon juice. The head counselor then announced that some dangerous liquid had accidentally fallen into the punch and that ambulances were on the way to start pumping our stomachs. (Do not try this at home- If this would happen today, it would lead to a multi-million dollar law suit and possibly jail time). The kids started crying and literally throwing up. After watching all of this for 10 minutes, the head counselor got up on the stage and screamed “Color War.” If I ever find that guy, we are going to have “a little talk” if you know what I mean.
In the complaint context, filing a complaint does not have to be so complex and difficult. All you have to do is contact your supervisor or EEO office and say you would like to file a complaint of discrimination. However, if you are a big color war fan, you are free to invite your boss out for lunch and then hand her a “surprise” envelope containing your complaint when you are finished. Either way works. Just stay away from the “bug juice”.

2) Color war generals = picking teams

Right after color war is announced, the next thing that happens is that the camp is split up into teams and the generals are announced. Some lunatic counselor wearing red face paint, red stockings and a red wig jumps out of a box to introduce himself as the leader of team red and a minute later, some other equally crazed counselor comes running out in a Kermit the frog costume screaming “we are the big green wrecking machine.” You now know the team leaders.
In an EEO case, after a formal complaint is filed, the case will usually be assigned to an agency attorney. Use caution, while he or she will not be wearing face paint, it will be their goal to do everything in their power to make you lose your case. That is what they are paid to do. You can represent yourself in the process but it is advisable to speak to an attorney who is familiar in the area of law that you need. While you are certainly an intelligent and well spoken individual, you are probably not familiar with the litigation process, the relevant case law, and you have probably never done this before. The Agency color war general (or opposing counsel) will be familiar with this information and will use it against you.
3) Accumulating points to help you win = the litigation process.

Now that you know what team you are on, it’s time to start earning points for your team. You can win points by winning races (including the always present wheelbarrow race, the egg on the spoon race, and the put your head on the baseball bat, do five 360’s around the bat, and then try to run in a straight line race), by singing your team cheers louder at lunch (give me a B, give me a L, give me a U, give me an E, what does that spell…), by participating in the grand sing-a-thon (including the classic slow alma matter classics including “Everything I do, I do for Camp Lake Walenpopak”- sung to the tune of Brian Adams Everything I do, or the equally popular Queen song – “We are the Champions of Camp Timber Tots, and we’ll keep on fighting to the end….”), and by making sure your bunk is the cleanest bunk house on this side of the lake.
In litigation, nobody walks around with a clipboard giving out or subtracting points to your case. (I always hated the arts and crafts instructor who was a camp nobody until color war. Suddenly, she turned into the queen of point deduction if we did not stand in a straight line while waiting to eat supper. I think the clipboard went to her head). Instead, the parties utilize discovery procedures to obtain facts and documents to prove their case. This is the time when you can get the “upper hand” in the case and acquire the information you need to help you win the case.

Stay tuned for part 2 of this blog.

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I swear to tell the truth, the whole truth, and nothing but the truth, so help my 3 year lease on my BMW.

September 21st, 2009

Taking an oath does not mean a whole lot to a whole lot of people. I recently returned from a federal arbitration in the Midwest and was simply blown away by the testimony that I heard from witnesses under oath and on the stand. Several federal employees (both in and out of management positions) got sworn in as witnesses and gave testimony to the purported events that led to the arbitration.

Half of the witnesses looked the arbitrator right in the eye and swore that a specific conversation definitely took place, that they were there, and that specific details were discussed. The other half of the witnesses looked the arbitrator right in the eye and swore that such a conversation never took place and they were sure of it.

Obviously, someone was lying. The fact that people lie should not be surprising to anyone.

Unfortunately, we are all not 100% truthful all of the time. Did you ever answer the phone and say that your boss is “in an important meeting” while in fact she is right in front of you, waving her hands in the air indicating that she does not want to talk with that caller? How about telling your child that you cannot go to a specific event because your schedule is “already full” while the truth is that you are really just not interested in going to see Barney and Friends on Ice for the third time.

Sure, I could understand those little white lies – but this is a horse of a different color. This is actual testimony at a trial, arbitration or at a hearing before a Judge or Arbitrator. Unlike your five year old daughter, this Judge made you raise your right hand and swear (or affirm) that what you were going to say was the truth, the whole truth, and nothing but the truth. Your statement may have a serious impact on someone’s career or life. Stated differently, its perjury and people have gone to jail for lying under oath.

How could someone have the heart (or guts) to just lie like that?

I think the answer is that the oath or swearing on a bible is just not scary or real to people anymore. Management (or any witness for that matter) does not truly believe that if they lie on a bible, that Abraham is going to jump out of the bible during next week’s sermon at Church, Synagogue, Mosque etc., and proceed to throw sand at her or have his goat herd trample your front lawn.

So here’s my idea: before anyone takes an oath, they have to list the three things that are really important to them (not including family members). For example, before Ms. Jones testifies in next week’s EEO case, she has to tell the Judge that the most important things in her life are her Macy’s credit card, her new Louis Vuitton hand bag, and her three year lease on her BMW (for Mr. Jones, it may be his season tickets to the Green Bay Packers, his new IPOD touch, and his really old baseball card collection).  Now, when Ms. Jones is testifying at the hearing, you can be sure that she is going to take her oath seriously. Why? Because if she is later found to be lying, the opposing party gets to pick and keep one of the things she listed. And that is something that Ms. Jones truly is not willing to put on the line.

While I know this will never happen, it may not be a bad idea.

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Your Best Evidence- A Co-Worker

August 31st, 2009

I am a sports fan. What I define as a “sports fan” is someone who enjoys watching a football or basketball game on TV after a long day at work. I freely admit that I cannot name any players on the Kansas City Royals, Pittsburgh Pirates, or the Toronto Maple Leafs. I guess I enjoy watching the game as opposed to reading stat lines or criminal dockets.

One aspect that I enjoy about professional sports is the camaraderie and friendship between players. I often hear players talking about teammates and saying things like “we go to war with each other,” “we are closer than brothers,” and I think NFL star Terrell Owens even cried last year when talking about “his quarterback.”

However, the second a player signs a contract with a new team or is traded to another team, it’s a whole different story. Suddenly, the player that was once “his brother” turns into his “drunk brother in-law,” enemy or traitor. Trash talking, name calling, and insults usually follow (until the player rejoins his old team and they are best friends again).

The same is true in the workplace. People often become acquaintances, close friends, and confidants with their fellow office mates. Working together on projects, having deadlines, and working towards a common goal brings people together.

Being that the majority of my work involves labor and employment law, most of the issues or problems that my clients are going through occur at the workplace. It therefore makes sense that the people who would have seen the problems/incidents first hand, whether it be an argument with a manager, an accusation of poor performance, harassment, or a hostile work environment, are co-workers. It is very likely that the worker in the cubicle next to you actually witnessed the alleged altercation or overheard the racially motivated comments made about you when your supervisor passed by. It is also likely that you had a discussion with that co-worker after the altercation and spoke about what just happened.

In any legal proceeding whether it is before the EEOC, MSPB, arbitration, or court, that co-worker is likely going to be your best witness. They will be able to testify about what was said, the tone of voice, the reaction, and anything else they may have seen or heard.

Many times when I am preparing for a trial, the client will tell me that I have to call a specific co-worker because he or she witnessed the incident and that they spoke afterward about it and he/she agreed that I was totally correct and did nothing wrong. I then get very excited and call the co-worker asking them exactly what happened. More often that not, the reply I get is one of the following: a) who are you and why are you bothering me; b) I do not recall anything you are talking about; c) I saw nothing and heard nothing; or d) I do not want to testify.

How could it be that someone who clearly saw what happened, was someone you trusted as recently as last week, and someone you considered a friend, suddenly “changed sides” and went to “team management?” There are probably a lot of answers out there but I think it comes down to self preservation. People want to keep their jobs (especially in this economy) and know that if they testify against there manager, their next performance review is probably going to stink.

So how do you get around this problem and keep your friends? In my experience, the best way to handle this is to write a memorandum of record when the event occurs and to have co-workers write one too. A memorandum of record or note to file can simply be a one paragraph signed and dated document that says: “I Bob Smith, on January 1, 2008 witnessed Tina Jones walk over to the cubicle of Walter Reed and told him that he should consider retiring because he was getting a bit older.” Make sure that Mr. Smith signs and dates that document (and that you get a copy of it). Mr. Smith should also not be under any pressure or refuse to give you the statement because at that point in time, you are not talking about a lawsuit, lawyers, or a trial. You are just asking a favor from a friend to write down what he or she saw.

Using that example above, say that we are now in April 2009 and we are preparing for Walter Reeds hearing (based on age discrimination) before the EEOC. Mr. Reed tells me that he has a great witness, Mr. Smith, who overheard comments about his age and retirement. I now call Mr. Smith and ask him if he recalls what occurred on January 1, 2008. If he does not recall, I just pull out the signed statement and “refresh his memory.” If he does not want to testify, I can call him anyways and refer him back to his statement and even if he says he cannot remember it, I still have his sworn statement that he admits was written last year and has his signature underneath it.

Using this advice, you should have a much better chance at defeating summary judgment and being successful at a hearing or trial.

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How to win a case of Discrimination- Have really good evidence.

August 24th, 2009

I’ll admit it; sometimes I stay up late and watch tv after the rest of my family has gone to sleep. Inevitably, there are always certain kinds of tv shows that are on between 10-12 pm. They generally include shows like Monsterquest in which the latest high-tech equipment takes a scientific look at legendary creatures around the world, such as Bigfoot, the Loch Ness Monster, or the Chupacabra. Other similar shows research and detail UFO encounters, sightings, landings, or abductions.

Here’s my one big problem with all of these shows; Where is the Evidence? If tens of thousands of people have seen UFO’s, Bigfoot, or some other kind of prehistoric dinosaur, where the hell is the evidence? How about one alien body that crashed while flying under the influence? How about one carcass of Bigfoot’s dead uncle? If the evidence was out there, wouldn’t you think that any major news organizations such as CNN, BBC, USA NEWS, or the New York Times would pick up the story? Think about it, real evidence would sell thousands of papers and earn them millions of dollars.

I have thought about this for a while and have come to the scientific conclusion that there has to a person or group of persons whose job it is to clean up any evidence of this kind of stuff. Maybe there is some secret society out there like the Masons who go around and collect/destroy all of those crashed UFO’s and carcasses of dinosaurs.

It then hit me like a ton of bricks. I have figured out who these people are. Have you ever watched the news and in the background seen a busy street on a regular work day? Well, there area always hundreds of people in suits, dresses, ties, and skirts busily crossing the street, waiting for the bus or drinking a cup of coffee. They usually all look the same whether it is in Manhattan, Tokyo or London. However, there is one group that always stands out. Yes, you guessed it. It is the people who are wearing sneakers along with their regular business attire. You can have an executive in a $2500 Armani suit or carrying a $3000 Prada bag but on their feet, yet they are wearing white Reebok or Nike sneakers.

I was always wondering why these people couldn’t find a nice pair of comfortable black shoes or black sneakers. How hard could it be to find something like that? It now all makes sense to me; these sneaker wearers are the evidence collectors. Once the secret call goes out that there is a dead alien on the Westside Highway, these sneaker wearing collectors head straight for the crash site and clean up the wreckage. That’s why they are always walking so fast and have such a look of determination on their faces. (and perhaps why there is always so much traffic on the Westside Highway).

As a practicing labor attorney, I frequently get calls from people who know that they have been discriminated against. When I ask what evidence they have that may convince a judge or jury that they should win (or that could convince me to take their case), I often hear words to the effect that “I just know it” or “everyone knows it.” While it may be true and they may be correct in their own senses or perceptions, a judge or jury may not give that “evidence” much weight.

In order to win at a hearing, trial or arbitration, you need to be able to produce evidence. Fortunately, unlike UFO claims, real evidence is available for you to present to a fact finder. Examples can be documents, emails, witness testimony, affidavits, and the fact that the defendant can’t give an explanation as to why you were treated in a certain matter.

Here is an example: Ms Jones applied for a GS-12 Budget Analyst position at Social Security. Ms. Jones is an African-American female. Ms. Jones made the best qualified list but did not get the job. The selectee was Mr. Johnson who is a white male. Ms. Jones feels that she was not selected based on her race and gender and files a claim with the EEO.

For Ms. Jones to be successful in her case, she will need to provide evidence as to why she should have been selected as opposed to Mr. Johnson and that the selection was motivated by race or gender. Ms. Jones should provide the following as evidence (this list is not exhaustive):

1) Affidavits from supervisors who supervised both Ms. Jones and Mr. Johnson that say she is far better qualified than him fro the GS-12 position.
2) Copies of their application packets
3) The vacancy announcement and the KSA’s (knowledge, skills, and abilities)
4) She must depose the recommending panel and the selecting official to establish that she performed better in her interview.
5) The testimony of an expert witness who may be a retired employee who was a prior branch chief who could independently review the qualifications of both Ms. Jones and the selectee and opine as to who was objectively far better qualified.

As you can see, these types of evidence are much stronger than “I just know I am better for the job.” If you are able to present this type of evidence, you have a much stronger chance of beating summary judgment and being successful at the trial.

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