PowerPost | Perspective
March 6, 2018 at 4:54 PM
When it comes to federal employees, a common theme among congressional Republicans is their quest to fire feds faster.
President Trump echoed that in his fiscal 2019 budget appendix on the government’s workforce, which says “the requirements to successfully remove an employee for misconduct or poor performance are onerous.”
“Every year,” the budget document adds, “the vast majority of federal workers surveyed disagree with the statement that, ‘in my work, steps are taken to deal with a poor performer who cannot or will not improve.’ ”
While the case to dump feds with dispatch is made frequently, less appreciated is the long, onerous route that can confront a federal employee who fights an adverse employment action — even when a jury rules against the government.
Consider Denise A. Banks.
It took her almost two decades, but she can finally celebrate victory in her employment complaint against the Agriculture Department (USDA).
Now in her 60s (she declined to be more specific), she just won — again — her discrimination lawsuit against the department.
The latest victory came less than two weeks ago, when a federal court judge rejected the Justice Department’s request to overturn a jury decision in Banks’s favor.
Her case began in January 2000 when she was demoted from her position as deputy director of employment in USDA’s Office of Civil Rights. Formerly a member of the Senior Executive Service (SES), the highest level of the federal civil service, she was downgraded to grade GS-15. The department asserted that her performance was unsatisfactory during her probationary period.
But Banks, who is African American, charged racial and sexual discrimination. The jury didn’t accept the racial discrimination charge, but it did find that USDA removed Banks “from her SES position because of intentional discrimination based on her sex,” U.S. District Court Judge Amit P. Mehta wrote in his Feb. 22 decision.
He refused the government’s plea to overturn the jury’s 2013 verdict or to order a new trial. Mehta ordered her reinstated to the SES.
“What the court takes away from the evidence submitted by the parties is that [Banks] is, at the very least, a competent federal employee who now has served for more than 35 years in federal service,” he wrote. “While surely she has made mistakes — who hasn’t? — she is a respected colleague who is viewed as a positive contributor to the agency’s mission.”
The USDA and the Justice Department, which handled the court case, had no comment on it because it remains in litigation.
Lawyers for Banks and the government are in discussions about the back pay she would receive and are due to report to the judge later this month. The USDA and Justice still could appeal, but after 18 years and two decisions against them, they might have better things to do.
In court documents, the government argued that Banks “repeatedly struggled” when assigned significant supervisory duties. She “failed to prove as a matter of law that the persons she identified as alleged discriminating officials in her removal from the Senior Executive Service … in 2000 discriminated against her based on her gender.”
The jury and judge disagreed.
Banks, a Silver Spring widow and mother who likes lighthearted fiction and traveling abroad, said she is “very appreciative” of the judge’s ruling and “very, very excited and happy that justice has been served.”
But while she celebrates, her case is a sober reminder of how difficult finding justice can be. The notion that justice delayed can be justice denied works both ways, but in cases involving federal employees the delay works against them.
“Typically, delay favors the government, which does not have to worry about mortality,” said Bill Day, Banks’s lawyer with the Day Law Practice in Rockville. “We also went through years of settlement discussions with mediators and magistrate judges and could not settle the case.”
Resolving these cases takes time, too much time, because “the administrative process is overburdened, discovery procedures are overwhelming, and the federal courts are slow, and were particularly slow in our case,” Day said. “In context, there are only a handful of civil jury trials in the District Court every year, and only about one in 100 employment discrimination cases filed in U.S. District Court makes it to a jury trial and wins.”
Although settlement negotiations failed in this case, Trump’s budget document said agencies “may settle cases to avoid the expense of litigation, regardless of the strength and documentation of a manager’s case. Settling can avoid the prospect of an even more costly decision by an arbitrator unaccountable to taxpayers. Federal managers are reluctant to expend the energy necessary to go through the process of dismissing the worst performers and conduct violators.”
Reluctant or not, federal managers did demote Banks, and now the government will pay for the sexual discrimination against her.
“If justice is finally done,” Day said, “she will have a few years to serve in the SES, will recoup some of the compensation she lost, and will receive some reparation for the lifelong damage to her reputation.”
That is little enough after an 18-year struggle.