Can Federal Employees Sue for Harassment?

[00:00:00] Jon Bell: You have to make EEO contact within your agency within 45 days. If you don’t make it within 45 days, you have no case. The deadlines are a lot shorter, and there’s a lot of landmines. So if someone doesn’t know what they’re doing, they could totally blow up the case. 

 

[00:00:14] Christina Phillips: It’s clear that maybe the rights and these deadlines are not in any sort of company federal newsletter.

 

[00:00:20] Deirdre Arato: They stole my career. What’s not in the newsletter is that time is of the essence here. You’re on a time crunch. Very much

 

[00:00:36] Christina Phillips: Working for the federal government means you’re protected. You’re not wrong, but you’re not entirely right either. The rules are different, the deadlines are shorter, and your employer, it gets to investigate itself. 

 

[00:00:47] Deirdre Arato: Today, why federal cases are a different game entirely. I’m Christina Phillips. Welcome to Not in the Newsletter.

 

[00:00:53] Christina Phillips: Today we’re talking with John Bell, who is an employment harassment attorney, and he concentrates a [00:01:00] lot in the federal sector. We’re also with Deirdre Arado, a psychotherapist, and she lets us know how this impacts your mental health and what’s going on emotionally when some of these things come up. So we talk a lot about workplace discrimination, harassment on this podcast, but what if it’s the federal government?

 

[00:01:17] Christina Phillips: What is the difference? So John, let’s just hop right in and say, you know, when it’s a federal employment case, what’s the difference between that and the private sector? 

 

[00:01:28] Jon Bell: So firstly, thank you for, uh, having me on today. It’s, uh, really nice, uh, meeting you. So, uh, you know, the federal sector is very different from pr- from the private sector.

 

[00:01:37] Jon Bell: Most law firms either don’t touch it at all, or b- they’ll try to dabble in it. But, uh, to really represent your clients well, you have to have a full understanding of what it is to represent a federal employee. You have to understand the difference between the EEOC- Mm-hmm … the Merit Systems Protection Board, which is mostly disciplinary cases, security clearance, some federal employees have security clearances [00:02:00] and some don’t, as well as disability retirement, and then the OWCP, which is the workers’ comp system that’s different from the private sector.

 

[00:02:07] Jon Bell: So you have to have a working knowledge of everything, or else you’re doing your client a disservice, because sometimes one thing will affect another. Uh, also, if you’re just talking about discrimination cases, which a lot of private sector, uh, attorneys do, they focus on, you know, EEOC, or district court, or whether go to, uh, in, in, in New York, ’cause that’s where I practice, whether you go to the Supreme Court or not, or the Division of Human Rights.

 

[00:02:32] Jon Bell: Federal sector has a more established procedure. 

 

[00:02:35] Deirdre Arato: Okay. 

 

[00:02:36] Jon Bell: And the deadlines are a lot shorter, and there’s a lot of landmines. So if someone doesn’t know what they’re doing, they could totally blow up the case- Wow … and open themselves up for liability for a legal malpractice case. So it’s, i- it- it’s, it’s hairy at times, and when you ha- dealing with the volume of cases, you have to be very deadline oriented.

 

[00:02:57] Jon Bell: Let me give you an example. Like, let’s say in New [00:03:00] York there’s a discrimination case. You have, uh, you have three years if you wanna bring it in New York State court. Right. Right? Mm-hmm. Or you could bring it in, in the EEOC, I think there it’s 300 days. Uh, you have different options. With federal employees, you have to make EEO contact within your agency, not EEOC, EEO contact within your agency within 45 days.

 

[00:03:21] Jon Bell: If you don’t make it within 45 days, you have no case. 

 

[00:03:24] Christina Phillips: So you’re just completely out of luck. The 45-day deadline’s not made, that’s it. 

 

[00:03:28] Jon Bell: So for discrete acts, like let’s say you’re terminated or you’re demoted, uh, on the harassment part, because harassment, uh, could happen over a course of time, it’s 45 days within the last discriminatory act.

 

[00:03:40] Jon Bell: So let’s say, you know, I know we’re here at a sexual harassment conference, right? Mm-hmm. So it’s within the last act of sexual harassment, you have 45 days, then you could bring in those claims that occurred outside the 45-day period. So, but, but again, yeah, yeah, you know, listen- W- when, especially when you start a new firm or, or, or you’re just [00:04:00] trying to ramp up, you see a good case, and then you start thinking, “Okay, I, I’ll figure it out,” and that’s when people make mistakes.

 

[00:04:07] Jon Bell: You really need to- 

 

[00:04:09] Christina Phillips: You need an expert in this … 

 

[00:04:10] Jon Bell: send those cases to a firm like mine or a f- firm that practices in similar where they really know what they’re doing because it’s, it, the- there’s, there’s too many procedural pitfalls, and the government- Mm … does this on purpose, right? That’s right. Yeah, yeah.

 

[00:04:22] Jon Bell: But, uh, it- 

 

[00:04:23] Christina Phillips: So, is this why more firms are reluctant to take these cases, just because they don’t have the expertise? 

 

[00:04:28] Jon Bell: Absolutely. Absolutely, and those firms are smart not to take it ’cause it’s the dabblers that get people in trouble, and you’re really doing a client, uh, a disservice. I mean, I’ve been doing federal employees for 25 years now.

 

[00:04:41] Jon Bell: Wow. And I just kinda fell into it. I was, like, a personal injury attorney, and I just basically, right out of law school, I hung up a shingle and said, “Okay, I, I don’t wanna work for anybody anymore.” It was the first time in my life I was fired. I was fired from a job, and I said to myself, “I will never work for anyone again.”

 

[00:04:56] Jon Bell: That was one year out of law school. Hung up a shingle. [00:05:00] My experience at that time, very limited, was personal injury. I had a friend whose father practiced federal sector. That’s all he did. He kinda just fell into it. He needed some of-counsel work, so I’m like, “Oh, I’ll do this until I get my- Mm-hmm … personal injury practice up and running.”

 

[00:05:15] Jon Bell: I struggled to get the PI cases in, but the federal sector stuff, because I was good at it, flew in, and then I decided, I’m like, “Oh, this is where I wanna be.” And it, it actually- It feels great representing federal employees because number one, they work for the government, they work for the US government, they dedicated their life to federal service, and there’s not too many attorneys that know, uh, how to handle it and what they’re doing.

 

[00:05:37] Jon Bell: So I saw an opportunity here. I said, “Oh, this is, this is great.” It feels good to represent them, and I think you do great things with them. And I’ve saved, my firm and I have saved countless jobs in the federal sector through the course of 25 years. 

 

[00:05:50] Christina Phillips: So are you talking like these are just, like, state jobs?

 

[00:05:53] Christina Phillips: What… Like, give us an example of, like, what kind of a employee you’re sort of representing. 

 

[00:05:57] Jon Bell: So they’re all federal employees, so they all work for the federal [00:06:00] government. So, uh, our clients are- Oh, so it’s… Yeah, so it’s… 

 

[00:06:01] Christina Phillips: It- Uh, uh, 

 

[00:06:02] Jon Bell: Depa- yeah, Department of Homeland Security, uh, Postal Service, uh, FAA. Like, for example, you know, one of the cases we had was a air traffic controller- Mm-hmm

 

[00:06:13] Jon Bell: who works for the FAA. They dedicated their lives to be an air traffic controller. They’ve been doing it for 10, 15 years. They were threatened to lose their jo- they lost their job. They can’t go somewhere else and be an air traffic controller. That’s the o- so it’s such an important, uh, fact to, to, to, uh, y- you have to put everything into saving their job because it means so much to them- Of course

 

[00:06:36] Jon Bell: and their career and their family. Their, their 

 

[00:06:38] Christina Phillips: identity. ‘

 

[00:06:39] Jon Bell: Cause i- if they lose their job, they have to start all over again. Yes. So a case like that, again, it wasn’t a discrimination case. That was a disciplinary case. You take it in front of the Merit Systems Protection Board, and you litigate it in there in front of administrative law judge.

 

[00:06:52] Jon Bell: The beauty of what I do also, I guess pre-COVID when I was, uh, uh, uh, doing a lot myself, uh, we travel across [00:07:00] the country ’cause you could do this nationally. It’s an administrative forum, so it’s quasi-judicial. This is the same for discrimination cases. Like, in the private sector, if you wanna represent a person out of the s- out of your state You have to make a motion pro hac vice.

 

[00:07:15] Jon Bell: You have to find a local firm to sponsor you. With federal employee, because it’s quasi-judicial in front of an administrative forum, you could practice anywhere in the country. 

 

[00:07:23] Christina Phillips: So you don’t necessarily have to have an attorney that’s barred in California, or… So if somebody, a, a federal employee’s in California and they know you’re the expert in New York- Yes

 

[00:07:32] Christina Phillips: they can, they’re free to call you, and you can represent? 

 

[00:07:35] Jon Bell: Many years ago, when I was ch- uh, doing this by myself, I was traveling across the country. I saw some beautiful places. I saw some sketchy places. Sometimes the nicest hotel around was a Motel 8. That’s where I had to stay. But, um- Gotta do it. Yep … I gotta do.

 

[00:07:50] Jon Bell: But, but I saw some really beautiful places. The only thing is I was missing a lot of my family life. I had young kids at that time. Um, you know, fortunately, [00:08:00] we’ve expanded since then. We’ve hired a number of attorneys. I think we’re up to over 20 attorneys now. My wife, uh, who’s an attorney, uh, she joined the practice as well, and since COVID, a lot of the stuff became virtual, so now the traveling has really, uh, uh, cut down significantly.

 

[00:08:14] Christina Phillips: So b- basically, your practice focuses on anything that’s involved with, like, employment discrimination or harassment. Same type of thing that, you know, Phillips & Associates does in the private sector. You’re covering all of that in the federal sector. 

 

[00:08:28] Jon Bell: That’s correct. So- That’s correct. So the, we do the, like I said, the discrimination part.

 

[00:08:33] Jon Bell: Okay? There’s actually some wage and hour cases that, that we ha- that, that’s not as often as in the private sector, but there’s some wage and hour cases that they have to be brought in DC, that, uh, uh, a specialized court in DC. Um, these disciplinary cases with the me- uh, Merit Systems Protection Board, so if you’re removed or you’re suspended for more than 14 days, or you’re demoted, you could bring it to this, uh, um, in New York, it’s at 26 Federal Plaza.

 

[00:08:56] Jon Bell: Uh, security clearance cases, some jobs [00:09:00] require a security clearance. That’s a condition to having the job. So once your security clearance because, becomes in jeopardy, if you lose that, you automatically get disqualified for the job. So people don’t… Again, when I say don’t dabble it, people don’t understand that tiered system, ’cause sometimes you have to fight two battles.

 

[00:09:16] Jon Bell: Number one, you have to fight the allegations in the security clearance matter, and just because you win that, that doesn’t mean you keep your job, because then the agency might be Trying to remove you based upon similar allegations but remove you from the job where you still have your clearance but they still want you out.

 

[00:09:33] Jon Bell: So you gotta fight it on, it’s a multi, uh, uh, tiered, um- Mm-hmm … uh, battle, I guess. 

 

[00:09:38] Christina Phillips: So that’s really complicated and, um, you have to fight that, well you have to just file it within 40 days. That’s the timeline? 

 

[00:09:45] Jon Bell: Uh, for, for EO, uh, it’s 45 days. You have to make EO contact within 45 days. But that, this is why this thing’s crazy.

 

[00:09:51] Jon Bell: If y- if you go to the Merit System Protection Board- Mm-hmm … you have 30 days to file. Not 45 days, you have- Wow … 30 days and that, and, and then there’s mixed case complaints. Mixed [00:10:00] case complaints is, it’s disciplinary so it could go to the MSPB but then also the affirmative defenses are discrimination, so now you could go to either or.

 

[00:10:08] Jon Bell: So you gotta choose which venue you like better, but at the end of the day, you still have to bring it to the MSPB for the, it’s, it’s very complicated. It sounds, yeah. The, the, I know we, we have some time here. It’s not even enough time to go over everything that needs to get done. 

 

[00:10:21] Christina Phillips: Well, it’s just interesting though because how do the employees know their rights even?

 

[00:10:25] Jon Bell: That’s why make, that’s why they have to call me. That’s how they know their rights. But like even the MSPB where it’s 30 days, n- you know, Trump during his first term changed it for the V- VA employees only. So instead of, uh, 30 days, they have to bring it into 10 days. And then SES, which is the senior executive service, they have to bring it to seven days.

 

[00:10:43] Jon Bell: So someone might have like a, a, a, a loose understanding where they ca- where someone from the VA will call a firm and say, “Oh yeah, I heard the MSPB,” or, “I, I did it on ChatGPT, it says you have to do it within 30 days.” But then realistically, the, it, it’s, it’s, it’s a lot less for the veteran. 

 

[00:10:58] Deirdre Arato: It sounds like the federal [00:11:00] government in the way that you’re saying that they have th- this specific amount of time, this little time- Mm-hmm

 

[00:11:05] Deirdre Arato: this window to, to m- make their complaint, it sounds like the government is set up to protect itself. 

 

[00:11:12] Jon Bell: Is that a surprise? 

 

[00:11:13] Deirdre Arato: Right? 

 

[00:11:13] Jon Bell: They, they, they, they get to make the laws- 

 

[00:11:17] Deirdre Arato: Right … 

 

[00:11:17] Jon Bell: so the laws are gonna be protecting 

 

[00:11:19] Deirdre Arato: the trust. And which makes it even- Right … more complicated for the person who is- 

 

[00:11:24] Jon Bell: Yes … 

 

[00:11:24] Deirdre Arato: dealing with some type- Of course

 

[00:11:26] Deirdre Arato: of a case. 

 

[00:11:26] Christina Phillips: I mean, I can’t even imagine, it’s probably not in any handbook that they get, and it’s like you’re just supposed to like assimilate this knowledge by working and- So, so like the- … hearing about it? … 

 

[00:11:35] Jon Bell: in a- in all fairness, there is supposed to be some postings, right? Over the, uh, water cooler that no one ever looks at for the 45 days.

 

[00:11:43] Jon Bell: If you are disciplined, it’s supposed to, you know, th- they do get something called a notice of proposed remo- removal, an NLPR, where it does say what their filing timeline. So if someone really c- carefully reads this paperwork, um, uh, they would be able to, to follow it. Uh, so they, they, they [00:12:00] do have to be on notice of it, or, like, let’s say an EEOC case, someone wants to file it that’s beyond the 45 days.

 

[00:12:05] Jon Bell: If, like, there was one time I represented an attorney, and she felt that she was, uh, uh, n- uh, not being treated fairly because she’s a woman. I think it was a promotion. She, she feels like she was mo- the most qualified candidate, and instead they gave the position to a male, and she contacted me after the 45 days.

 

[00:12:23] Jon Bell: I was honest. I said, “Listen.” I said, “It’s an uphill battle.” Mm-hmm. “45 days is difficult, but why don’t you go into your facility and take some photos with your phone and show me that there was no postings in the area about the 45 days?” She went in. She took some photos. We filed it with the EEOC. Of cou- uh, no, we fi- For the, for the federal side, you gotta go to your agency first.

 

[00:12:43] Jon Bell: Go to the EEO counselor. They filed it. They automatically dismissed it. They said, “You’re beyond 45 days.” So what we did is at that point, we could appeal to something called OFO, Office of Federal Operations. Mm-hmm. Uh, which is outside the agency and, and is in DC, and we did a legal brief showing that, [00:13:00] you know, the, it, it should be told because she wasn’t on notice of the 45 days.

 

[00:13:04] Jon Bell: There’s nowhere in training or anything else. Does it say anything about the 45-day period? And, and the OFO, after a year of sitting on it- Uh, returned it back to the agency and said, said, “No, she could continue, and you have to investigate.” 

 

[00:13:17] Deirdre Arato: So in any type of job that you’re working in the federal government, this information should be posted within the workplace?

 

[00:13:24] Jon Bell: Yes, yes, they have to be on notice of it. The employees have to be on notice. But, you know, this case that we won, I could tell you it’s a very, very challenging. Most people, uh, are not successful, or usually, again, it’s … It might be in a handbook, it might be somewhere. In this situation, the agency couldn’t present any evidence that she was actually aware of the 45-day, uh, period.

 

[00:13:44] Christina Phillips: And so when you take a case like that, are you trying to get her the promotion, or are you trying to get a monetary settlement? What, what’s the, what’s the outcome that would be ideal? 

 

[00:13:54] Jon Bell: Well, it, it, it could range. It, it’s both. You know, to the extent that we … I, I mean, I’ll take you through the process. It’s crazy.

 

[00:13:59] Jon Bell: When … [00:14:00] So first you have to make EEO contact, then you get a counselor assigned. The counselor counsels you for a very short period of time, like 30 days. They try to settle it through ADR, but the agency never offers anything at that point. Uh, then they give you a right to file a formal complaint. When you have a right to file a formal complaint, you have 15 days to file.

 

[00:14:16] Jon Bell: So forget 30. You have 15 days to file it. Then the age- … Again, this is still within your agency. So confusing. So if you worked in the Postal Service, this, you’re not even dealing outside of the Postal Service yet. The EEO counselor, everyone’s a Postal Service employee. So then you file your formal complaint, and the Postal Service hires their own investigators to investigate it.

 

[00:14:37] Jon Bell: So they state the claims. They g- they, they … And the good thing is you get witness statements- Mm-hmm … for free that they don’t have to pay for. Uh, they get documents all together. So they have 180 days to put together something called an ROI, which is a report of investigation. So it’s a big book of basically free discovery.

 

[00:14:54] Jon Bell: Once you get that, now if you ha- you got 30 days to file it in the [00:15:00] EEOC. So when you file it in the EEOC on time, you finally get a judge assign- Uh, that’s the first time after all that. There could be a year at that point- Wow … where it gets out of the agency that you work for, and finally you get into the EEOC where you get a judge assigned.

 

[00:15:15] Jon Bell: Mm-hmm. Now, again, to be in the field, you have to know which are the good judges and which are the bad judges. When I say a good judge, the good judge are the fair judges. Right. Y- you never get a judge that’s just pro plaintiff. Mm-hmm. You get a fair judge that will sit and listen to the case. Some judges were just agency attorneys looking for a promotion, and they don’t, they, they, they- Right

 

[00:15:34] Jon Bell: dismiss everything. Mm-hmm. So if you get one of those cases, you, you might have to pull it out and bring it into a district court. If you get a good judge, you could litigate it, uh, at the EEOC and get- Mm … get a fair hearing. Um, I wanted to ask, answer your question, though. Your question was… Oh, okay. So then if you win, if you win at the hearing, you’re entitled to the promotion, you’re entitled to the back pay that you would’ve gotten had you been promoted, you’re entitled [00:16:00] to pain and suffering damages, and you’re entitled to attorney’s fees.

 

[00:16:02] Jon Bell: There’s no punitives in federal government. Mm-hmm. That’s if you win. Now, as you know, just like the private sector, some of these cases settle. So in a settlement, could be anything. Could be the promotion. It could be, uh, some back pay, maybe not all. It could be some attorneys, maybe not all. So you gotta look at the strength and weaknesses of the case and the client, and you gotta make a determination as…

 

[00:16:21] Jon Bell: And that, that’s kinda like a similar mindset of the, as a private sector. 

 

[00:16:25] Christina Phillips: So but when you’re talking about pain and suffering, are you saying, like, okay, let’s say the employee went to Deirdre, they, you know, and she counseled them, or is it a government counselor? 

 

[00:16:35] Jon Bell: No, they’re free to go outside. So. They’re free to go outside, yeah.

 

[00:16:38] Deirdre Arato: And this is where I’m noticing that, um, when clients come to me in these, in these situations, they don’t even know their rights, which makes it even more upsetting for them, because now they’re dealing with double stress. 

 

[00:16:50] Christina Phillips: Of course. 

 

[00:16:51] Deirdre Arato: S- and they don’t know what to do. Of 

 

[00:16:53] Jon Bell: course. 

 

[00:16:53] Deirdre Arato: Now we know time is of the essence here.

 

[00:16:55] Jon Bell: Yes. 

 

[00:16:56] Deirdre Arato: And- 

 

[00:16:56] Jon Bell: And also, a similar thing to the private sector, too, is when my [00:17:00] client the federal sector case goes and seeks help and treatment. 

 

[00:17:04] Deirdre Arato: Right. 

 

[00:17:04] Jon Bell: Again, I don’t tell them to do it to add value to… I say, “Listen, if you, if you need a therapist, get it.” Will it add value? Of course it’s gonna add value. Yeah.

 

[00:17:12] Jon Bell: Don’t do it for that purpose, though. Of course. Right. But of course, when they go and they get therapy, and there’s, there’s a, a history of treatment, the value of the case is gonna go- 

 

[00:17:20] Deirdre Arato: Well, what if, you see, because I’m getting clients that don’t know their rights. 

 

[00:17:24] Jon Bell: Yeah. 

 

[00:17:24] Deirdre Arato: So the time is ex- expired, and they’re already exhausted physically, mentally.

 

[00:17:28] Deirdre Arato: Oh, it’s 

 

[00:17:28] Jon Bell: awful. 

 

[00:17:29] Deirdre Arato: Depression, anxiety, sleepless nights. It’s awful. And now what do we do? 

 

[00:17:33] Jon Bell: So what I would tell my client on, on what to do if they came to me late, I’d say, “Still make the complaint so it’s documented.” Okay. And then the ne- and then if they do something in retaliation, come to me within the 45 days.

 

[00:17:45] Jon Bell: But you have to say something, or else there’s no retaliation. Right. Right. Right. Yeah. Yeah. 

 

[00:17:49] Deirdre Arato: Well, 

 

[00:17:49] Christina Phillips: I think it’s gonna be very clear that what, in, for this episode, you know, the podcast name is Not in the Newsletter, and I mean, it’s clear that, that maybe the rights and these deadlines are not in any sort of company federal [00:18:00] newsletter.

 

[00:18:00] Jon Bell: Right. You know? Of course. Oh, no. Oh, no. They’re, they’re not gonna, they’re not gonna advertise this to their employ- Right … and y- the, the, and the crazy thing about it is you think there’s so few attorneys that do that. Again, there’s more now than ever, but there’s still only a few law firms that do this.

 

[00:18:13] Jon Bell: But if you think about it, the United States is the biggest employer in the country. 

 

[00:18:18] Christina Phillips: Yeah. I mean, how many- Right … I mean, how many employees does the federal government have? It’s n- it’s millions. I, 

 

[00:18:24] Jon Bell: I, well, with Trump at this point, it’s getting, it’s getting less and less. But e- but even during this time, it’s such a tumultuous time because of him, that we’re signing up a, a, a lot of cases because what’s going on.

 

[00:18:34] Jon Bell: A lot of people are, are, are, are doing, you know, retirement filings, and, and, or, or, or, you know, a, a big thing for us, um, uh, since his administration was he, like, he, uh, blanketly denied the work from home status, right? I’m sure you heard that in the news. Yes, yes. There, there was a time- Mm-hmm. Yeah … where he was like, “Listen, everybody has to come back to office.”

 

[00:18:58] Jon Bell: Right. Mandatory come back to office. [00:19:00] But obviously, that’s gonna violate a lot of people who have disabilities- Right … who are home as an accommodation even before- uh, COVID and before everybody started working from home, they could do the essential function of their job from home, and he also rescinded those accommodations.

 

[00:19:17] Jon Bell: So those are cases that we were signing up and successfully litigating because you can’t do something 

 

[00:19:22] Christina Phillips: blanket like that. So there were no exceptions made? 

 

[00:19:25] Jon Bell: There, there was no exceptions. Uh, you know- 

 

[00:19:26] Christina Phillips: For, you know, because we were just talking about this on anev- another episode, you know, if you’re pregnant and you’re on bed rest- 

 

[00:19:33] Jon Bell: Yeah

 

[00:19:33] Christina Phillips: can’t be terminated. Right. Of course. I mean, well, I mean, I don’t know the ins- Of course … and the logistics of whatever that episode was, but we were just talking about why you could work from home. Like what- Yeah … would be allowed. So- Right, right … if you just blanket- 

 

[00:19:44] Jon Bell: So, so- 

 

[00:19:45] Christina Phillips: Well, it is the federal government, 

 

[00:19:47] Jon Bell: so.

 

[00:19:47] Jon Bell: Right. And, and obviously, listen, I, I don’t wanna make this political and, but the truth is, when you’re dealing with federal sector, whoever is the president really dictates what’s going on with the federal sector litigation. Like I could tell you that, you know, [00:20:00] just, just the MSPB, what we were talking about- 

 

[00:20:02] Christina Phillips: To, and just define what that is for us.

 

[00:20:04] Christina Phillips: For the- So, yeah … 

 

[00:20:05] Jon Bell: some people might not be aware … the, the, the Merit Systems Protection Board, it’s a, a quasi-judicial agency that litigates removal cases, demotions, suspensions of more than 14 days. They also litigate, uh, whistleblower claims and USERRA claims. Um, and, uh, so you have the judges, and then if you’re not happy with the judge’s decision, you appeal to the board, where there’s supposed to be three judges.

 

[00:20:32] Jon Bell: Now, if there is a Democratic president, two of the judges are Democrat and one’s Republican. When the, when a Republican president comes in, there’s two Republican judges and one Democrat. Uh, oftentimes, you know, you, the Republican board is leaning towards the employer, and the Democrat, uh, uh, board is leaning more towards the employee.

 

[00:20:54] Jon Bell: Trump is very unique. During his first term, he basically fired [00:21:00] the entire board, and he never, never, uh, appointed any of the judges. So all these cases That were appealed from the administrative judge’s decision, whether it was, um, a win or loss, whether the agency was appealing or the, or the appellant was…

 

[00:21:16] Jon Bell: They just sat and there was no decisions that came down. Right. So then when Biden won, he appointed the judges, and they had a backlog of like 100,000 cases to get through, which was horrible. Wow. So now for this term, Trump appointed two Republican, um, uh, judges to the board, but no Democrats, so there’s one space that’s open.

 

[00:21:38] Jon Bell: Oh. So even still, there are decisions being made, but there’s a f- lack of a full quorum. It’s the first time in history that a president has done that. And it’s, it’s, uh, you know, it’s, it’s, it’s pretty wild. And again, I’m not, I’m not, I’m not advocating against Trump. There are certain things I, I, I do like about him.

 

[00:21:56] Jon Bell: Yeah, no. But I’m just saying, just- 

 

[00:21:57] Christina Phillips: Get this understanding. 

 

[00:21:58] Jon Bell: Yeah, just, just giving something very [00:22:00] factual. And, and, and now the… And also, so the judges’ attitudes has changed. So just to, to share how, h- how, um, uh, old I am, when I first started, it was Bush. It was George Bush Jr., George Bush Jr, yeah. And there was a, it was one of my first trials at the MSPB, and I was winning.

 

[00:22:16] Jon Bell: I was doing a great job. I was cross-examining the, uh, the employer. And then the judge w- was very unique, uh, uh, asked the consent of the agency representative that they could speak with me alone. Uh, uh, uh, so we all agreed, and they all… Then he s- And she said, “I’ll love you.” She goes, “Listen, John, um, you c- clearly winning this case, but-” Mm-hmm.

 

[00:22:38] Jon Bell: you have to settle because with this administration, I couldn’t even rule in your favor, ’cause if I did, they would appeal it, and they would reverse it. So I’m telling you right now, you have to settle this case.” That is crazy- Wow. Yeah … that something like that could happen. Yeah, 

 

[00:22:50] Christina Phillips: yeah. It’s very crazy. But you know what?

 

[00:22:51] Christina Phillips: What we’ve been learning on the podcast too is that a lot of times these things don’t even make it to court. They’re settled pre-suit. Sure. And is that the same with the federal 

 

[00:22:59] Jon Bell: s- Yes, [00:23:00] yes. We, we do settle a fair amount of cases. I think it, maybe it might be a little bit less. I think we do probably take more verdicts than most employment firms do, but the verdicts are, again, in the administrative setting.

 

[00:23:11] Jon Bell: You, there’s no jury. It’s just a judge making the decision, but we do get a fair amount. I say, listen, you know, uh, if, if, if the… When you go… Like, let’s say a federal employee gets fired, and they hire us, and we appeal to the Merit System Protection Board, and let’s say the, the client’s like, “Listen, I, I don’t even wanna go back, but they, they, but they did.

 

[00:23:28] Jon Bell: They s- they stole it. They stole my career, and I’m so disgust-…” Mm. “Could you see if you could work out a monetary settlement?” So we’ll go to the agency, and obviously we wouldn’t show our hands and say they don’t wanna go back. We’d say, “Listen, you want him out. I think we could win this case, but how much money would it take for you to just get him out and us to drop the case?”

 

[00:23:45] Jon Bell: Mm-hmm. And sometimes we could settle for a fair amount of, uh, money. 

 

[00:23:48] Deirdre Arato: And you bring up something so, um, important that I’ve heard many p- clients say. They s- “They stole my career.” 

 

[00:23:54] Jon Bell: Oh, yeah. 

 

[00:23:54] Deirdre Arato: They’ve lost everything. They’ve in- invested their entire life in their, their profession. 

 

[00:23:59] Jon Bell: [00:24:00] Sure. 

 

[00:24:00] Deirdre Arato: And now it’s gone. 

 

[00:24:01] Jon Bell: Yes, and that’s even more so in, in a federal government case because a lot of times, again, a, a Postal Service worker, they can’t…

 

[00:24:07] Jon Bell: Well, I guess they could go to UPS, but but for the most part- It’s not the same … a lot of, a lot, a lot of, a lot of, a lot of federal, a lot of federal employees, they, they have, uh, a certain property interest in their job, and that’s why f- a lot of federal employees are not employees at will, like private sector, you know?

 

[00:24:23] Jon Bell: You get a lot of calls, you know? I get a call, “Oh, my God, I, I was fired. I… It was a wrongful termination. It was totally unfair,” and, you know, and so you ask, “Well, what happened?” And you see it’s clearly a personal conflict. It has nothing to do with race, age, religion, gender, disability, just a per… A- and you have to explain to them, like, there’s, there’s…

 

[00:24:41] Jon Bell: You’re, you’re at will. They could, they could fire you for pretty much any reason. Federal sector, they have a property interest in their job, most, most federal employees, not all federal employees, where they could then appeal to the Merit System Protection Board. That’s the whole purpose- Mm … of, of why this board was created.

 

[00:24:56] Deirdre Arato: Yeah. 

 

[00:24:56] Christina Phillips: Thank you so much for explaining this. It’s so interesting, [00:25:00] and it’s, you know, to be honest, a little bit confusing. So we have a story that I’d love to get your thoughts on, um, so you can sort of like break it down for us how it so differs from the federal, um, environment. It’s an employee complains about race discrimination.

 

[00:25:14] Christina Phillips: Two months later, she’s reassigned to a different unit and told it’s for operational needs. No pay cut, but her responsibilities are reduced, and her career track is clearly stalled. So how does this play out in the, in the federal government? 

 

[00:25:28] Jon Bell: So in, in very short, I would take that case. 

 

[00:25:30] Deirdre Arato: You would? 

 

[00:25:31] Jon Bell: I would take that case.

 

[00:25:32] Jon Bell: That, that, that’s definitely a claim, uh, of retaliation. I, I’m pretty sure the private sector is very similar. Um, when you… Even though there’s no pay cut, uh, once she makes the complaint and shortly thereafter her job duties were taken away, she was transferred to a less prestigious place, her career track was, wa- wa- was, uh, derailed, uh, it sounds like a clear case of retaliation.

 

[00:25:55] Jon Bell: Mm. And the burden for retaliation cases are [00:26:00] lessened than, let’s say, proving, uh, discrimination based on race or age, religion or gender. Uh, basically, uh, in federal sector, and I think private sector might be the same, is if, if the agency takes an action- Mm-hmm … that would deter another employee from wanting to file an EEO case because they see what happened to this one employee, that’s an actionable, uh, claim.

 

[00:26:23] Jon Bell: So, uh, to the extent that this person would call, and we get many calls like that, uh, that’s a case I would immediately sign up. I think it’s a viable case. I think I can help this individual because they’re, they’re… that’s the whole point of retaliation. There needs to be protective, uh, protections. If someone complains about race discrimination or, like I said, age, gender, whatever it might be, uh, they need to feel like, uh, that, uh, disclosure is protected, and any retaliation against the agency, almost every, uh, incidence of retaliation would be actionable.

 

[00:26:55] Jon Bell: Now, obviously, depending upon the actions take, then we go into value, right? ‘Cause [00:27:00] just like any type of civil case, there’s liability and there’s damages. You know, liability is fault and damages is worth. Uh, uh, the agency’s gonna have liability if it took retaliation after she disclosed, or he, he or she disclosed it, and then they, uh, they, they reassigned this individual to a, a less prestigious position.

 

[00:27:19] Jon Bell: Now, if this employee was reassigned to a position that really was equal and the career track wasn’t derailed, or the agency could prove that one really had nothing to do with the other, that’s, uh, that’s how we get into the whole McDonnell Douglas, uh, burden shifting. 

 

[00:27:35] Christina Phillips: Seems, I mean, it’s, would, could be tough to prove that- 

 

[00:27:40] Jon Bell: Every discrimination case is tough to prove, unless if you have directed, right?

 

[00:27:43] Jon Bell: So that’s private sector or federal sector. Unless you have that, you know, uh, you know, and sexual harassment cases like, like we’re here discussing, uh, you- oftentimes you have more direct evidence than any other cases, right? If someone is transferred because of h- uh, her race [00:28:00] or because she made a complaint about her race, uh, the agency’s never gonna come out, admit, and admit it.

 

[00:28:05] Jon Bell: In sexual harassment cases, normally you have the text messages or the emails or the pics or whatever it might- Right … so that’s when you have direct evidence, and those are, those are very, those are, those cases are layups essentially. And we get that in the federal sector too. Just because you’re a federal employee doesn’t mean you don’t have…

 

[00:28:21] Jon Bell: You know, well, some of our best cases have been sexual- Right … harassment cases in the, uh, in the federal sector. 

 

[00:28:26] Christina Phillips: And so this employee, she has how long? Just remind us until she- 

 

[00:28:30] Jon Bell: Yeah, so, so you have 45 days from the discriminatory act to make EEO contact within your agency. So I, I don’t know if you told me the agency that this individual worked at, but let’s say she worked at Department of Homeland Security.

 

[00:28:42] Jon Bell: She would have to find who this EEO, uh, contact person is and, and I always tell people, don’t, you know, a lot of people, they’re like old school. They go verbally and then they leave. No, no, no. Follow up with an email because the 45 day clock is ticking, and you wanna have proof that you made this contact within 45 days.

 

[00:28:58] Christina Phillips: That’s great advice. 

 

[00:28:59] Jon Bell: That’s [00:29:00] like, that’s like the f- th- there are 45 days. That’s the first, uh, uh, timeline they have to be aware of, and as we discussed earlier in the podcast, there’s a lot, there, there’s many others. 

 

[00:29:09] Christina Phillips: No, that’s such, that’s so helpful because I’m sure that there are so many people out there, because as we said before, federal government is huge.

 

[00:29:16] Christina Phillips: They have so many employees. I’m sure people don’t know. I’ve never heard of that. Yeah. I mean, I don’t, look, I’m not working for the government, but I’ve just even never heard that- No … ever. So, so, so helpful. So, you know, that was race. How about, you know, if it’s a straight up sexual harassment? If it’s a federal employee, they’re straight up sexually harassed, where are they going first?

 

[00:29:35] Jon Bell: So normally that person would go to the EEOC. They’d have to make their contact within 45 days of the last discriminatory act, and again, as long as they made contact within the last 45 days, they could go back and, and, and include all the other acts of harassment that happened outside of the 45 days. As long as there wasn’t, like, a long break, like let’s say they were sexually harassed two years ago by one person, they did nothing, and then two years later there’s someone else sexually harassing [00:30:00] them, and then there was a pattern and practice, then you’re not gonna be able to bring in the one from two years ago, but you’ll b- be able to bring in all the claims o- of, of the most recent sexual harassment.

 

[00:30:09] Jon Bell: Now let’s say in addition to the sexual harassment, the person was actually fired on top of that. So where would that one go? ‘Cause you’re saying, hey, disciplinary, you go to the MSPB. Mm-hmm. But, uh, for discrimination you go to the EEOC. Well, that’s called the mixed case complaint. So you could, you could do either one.

 

[00:30:25] Jon Bell: You could either go to the EEOC And you have to make contact within 45 days. But the most interesting thing about it is once you get, once you go through your EEO contact, you file your formal complaint, there’s the investigation, you get the ROI, the EEOC is not allowed to hear a removal case. So at that point, you would then bring it back into the MSPB.

 

[00:30:45] Jon Bell: So then you’d ask, well, why not just bring it to the MSPB? A lot of people do. A lot of people would rather bring it to the MSPB because you just get through it, you get a judge assigned right away, and you get the trial. But if someone could wait a little bit longer, what I like about the EEOC first is [00:31:00] they do that free investigation with the report of investigation.

 

[00:31:02] Jon Bell: Right. So you get all these statements, and usually at that point in time when they’re doing the investigation, they haven’t lawyered up. Mm-hmm. So the people who are making these statements in the sworn affidavits, they haven’t been prepped by a lawyer, so they make these terrible admissions that I love.

 

[00:31:18] Jon Bell: I love to use them and thr- and, and, and literally shove it down their throat. It’s my favorite thing to do. But, um- 

 

[00:31:24] Christina Phillips: Something you get excited about, Isaac. Oh, 

 

[00:31:26] Jon Bell: I love 

 

[00:31:27] Deirdre Arato: it. I love it. I- But how would… But, but let’s just, like, break this down for somebody who is, h- has no idea of what EEOC is and what the, what their rights are.

 

[00:31:37] Deirdre Arato: They’re being sexually harassed at work. Mm-hmm. And they work for a federal agency. What’s their first step? What do they do? 

 

[00:31:45] Jon Bell: They call me. 

 

[00:31:47] Deirdre Arato: All right. Well, if they don’t know you- They, they call- And, like, they come to me in therapy, and 

 

[00:31:51] Jon Bell: they’re telling me- So, so they, they, either, either they call a lawyer, or they have to do their own research about the process.

 

[00:31:55] Deirdre Arato: Mm-hmm. Okay. That’s right. So con- so they’re not p- they’re, they’re not contacting EEOC. No. [00:32:00] The E- The lawyer contacts the EEOC. They, 

 

[00:32:00] Jon Bell: they, no, they don’t even contact the… They can’t, you know, again, uh, private sector goes EEOC. They have to find an EEO contact, so they’re not em- part of the, uh, Equal Employment Opportunity Commission.

 

[00:32:14] Jon Bell: There’s an EEO officer within their agency. That’s what, that’s what they’re supposed to do. Oh. They sit in a cubicle in the back where no one knows they exist. Mm-hmm. And when you have a discrimination- Wow … you have to navigate to this EEO counselor and go through an informal- That’s with- in your job

 

[00:32:29] Jon Bell: within your agency, correct. So, so the Postal Service- 

 

[00:32:32] Christina Phillips: So is that, like, instead of human resources? 

 

[00:32:35] Jon Bell: Well, they, they also have an HR department separate, but, but if you, you know, the, what, if the HR department is doing their job, right, if they do their job- 

 

[00:32:42] Christina Phillips: Well, because a lot of times in a, in the private sector, from what we’ve heard, they’ll go to human resources.

 

[00:32:47] Christina Phillips: Human resources is not necessarily there to protect- Of course. That’s right … the employee, and we’ll have another podcast about that coming. That’s right. Um, so they’ll, they could go to the human resources, or they could go to this little cubicle- Right, yes … somewhere in, you [00:33:00] know- Yes … in the building. 

 

[00:33:01] Jon Bell: Yeah.

 

[00:33:01] Jon Bell: Nobody- They’d have an EEO counselor. So if the, if the HR person was really doing their job, they should direct this, uh, federal employee to an E- to the EEO counselor. Now, to the extent that they go to the HR person and the HR person doesn’t do this, and there’s some type of email proving that they did it within the 45 days, that’s a way to get around the 45 days, saying, listen, they tried to make the contact.

 

[00:33:25] Jon Bell: They went to the HR person, and the HR person didn’t do his or her job and should have referred them to the counselor. 

 

[00:33:32] Christina Phillips: That’s great. I mean- Yeah … that’s like, it, it’s a little bit of a, not a loophole, but I would think that s- since so many people probably don’t know this, if they went to the human re- that could count.

 

[00:33:42] Jon Bell: That could count, but think about what normally happens. If they don’t, they don’t contact the lawyer, they go to the HR person. And, and they leave, and the HR person doesn’t refer them over. They leave. They don’t send an email. Then they go later to a lawyer or whatever. They file on their own with, with the, with the, uh, uh, they finally make their way to this EEO [00:34:00] counselor, and they dismiss the case, saying it’s not within 45 days.

 

[00:34:03] Jon Bell: And they’re like, “What are you talking about? I went to this HR person.” The HR person’s like, “I don’t remember you ever coming.” Or, or, or, or, “You came to me and you complained, but you didn’t say anything about sexual harassment. You said something about something else.” You 

 

[00:34:14] Deirdre Arato: know? So- So everything’s gotta be in writing.

 

[00:34:15] Jon Bell: Everything’s… But that’s private sector, too. Everything’s gotta be documented into writing. Everything. 

 

[00:34:19] Christina Phillips: Yeah, no, that’s some of the things that the other attorneys have said, like, just document, document, document as soon as you can, and- Yeah … you know. But then another th- uh, question I had, a lot of times what we’ve heard in these private sector cases is that the company will protect the rainmaker.

 

[00:34:34] Christina Phillips: They’re gonna protect, you know, the person who’s bringing in the most money. But in the federal government- Mm … how is, is that, like, a seniority thing, that maybe they’ll dismiss the person who’s complaining, and they’ll keep the higher power? Do you see that? 

 

[00:34:46] Jon Bell: So, you know, everything in the federal sector is more CYA.

 

[00:34:51] Jon Bell: Okay? So you, you’re not, you know, with the federal sector you’re not worried about rainmakers usually or anything like that, ’cause everyone just has, you know, if you have a, if you’re a TSA screener and you have a [00:35:00] supervisor, like, you’re not, you know, uh, they, they just wanna protect their pocketbook, right?

 

[00:35:05] Jon Bell: Right. Right. So they’ll do whatever they can- Mm-hmm … just like the private sector, to, to kinda try to disprove your, your case or try to minimize damages as much as they can. But I’ll tell you, the most interesting thing, well, one of the most interesting things about the federal sector, is that sometimes when you have, uh, a, uh, a more senior person- Mm

 

[00:35:23] Jon Bell: who’s either discriminated against or maybe fired wrongfully, that you can go to the MSPB, a lot of times the attorney who you’re gonna be up against, the agency representative, was behind the scenes making all these decisions with the manager. So think about what a horrible conflict this is. Yeah. You have an attorney who’s talking with the manager, uh, taking all these actions against this employee.

 

[00:35:49] Jon Bell: So the employer hires a firm like mine- And we go to the MSPB or we go to the EEOC. We say either discrimination happened or this is totally wrongful. And [00:36:00] now, again, a lot of these attorneys are not very well trained. They make mistakes, but now they’re prote- it’s not just protecting the agency, they have to protect their own name.

 

[00:36:09] Jon Bell: Because if they made a mistake, they know they’re gonna get fired or disciplined. So cases that we have that are very strong, that really anyone with half a brain would settle the case, they need to litigate it because they’re afraid for their, their own job because of a horrible mistake. So you’re in the private sector, what do you do?

 

[00:36:26] Jon Bell: You go out and you hire an outside attorney. The outside attorney has no skin in the game, so they’re gonna be more objective and say, “Okay,” like, “Listen, you made a mistake. Maybe we should talk about settlement.” Mm-hmm. But they’re taking it personally, and they’re scared like, “Oh my God, I made all these decisions here.”

 

[00:36:40] Jon Bell: Yeah. “This can’t be, th- this can’t go wrong for me.” Right. And that’s what makes federal sector so interesting at times. 

 

[00:36:46] Deirdre Arato: There’s so much at risk, and I think that’s why people in general don’t, they don’t wanna speak up because of- Sure … what they’re up against. Yeah. They’re up against the federal government.

 

[00:36:56] Jon Bell: It’s a mountain. Right. 

 

[00:36:56] Deirdre Arato: Yeah. 

 

[00:36:56] Jon Bell: Right. Oh, yeah. Listen, we- This is 

 

[00:36:57] Deirdre Arato: different … 

 

[00:36:58] Jon Bell: we’ve taken on the CIA. [00:37:00] 

 

[00:37:00] Deirdre Arato: It’s different. There’s more stakes in the game 

 

[00:37:01] Jon Bell: here. We’ve taken on the CIA. We, CIA, we’ve taken on, uh, the FBI. Uh, we’ve had a number of lawsuits against the IRS. Wow. I mean, uh, yeah, I mean, people, a lot of, a lot of fed, a lot of attorneys are, are, are, are afraid or intimidated about doing this stuff, but we, again, we’ve been doing it, uh, well and so far here.

 

[00:37:20] Christina Phillips: Most people- It’s all good … they don’t wanna speak out. They, you know, they just even- Yeah … in, in the private, it’s, you know, we’ve been trying to have people, uh, be a guest if they’ve had a situation, and a lot of people are like, “No, I don’t wanna name the company. I don’t wanna…” Yeah. And I would think it would be even worse with the federal government.

 

[00:37:35] Christina Phillips: Yep. Because, you know- Oh, yeah … the retaliation that you maybe can’t prove, like all of a sudden, now you’re getting audited Yeah … you know, or something like that. Yeah. There’s a lot 

 

[00:37:44] Deirdre Arato: at 

 

[00:37:44] Christina Phillips: risk. It’s a lot. It’s scary, 

 

[00:37:46] Jon Bell: but- And, and also, you know, a big problem with the federal government overall is that People who shouldn’t be promoted or really aren’t qualified or well-trained to be promoted, they just get promoted because they’ve been there a long time.

 

[00:37:58] Jon Bell: Like, in the private sector, they wouldn’t do that, [00:38:00] uh, mostly wouldn’t do that. If you’re in the federal government for a while, they’ll start to promote you. So now you have these supervisors that really shouldn’t really be super- these supervisors. They’re not well-trained. They don’t understand what management really should be doing, and then they treat their staff horribly.

 

[00:38:15] Jon Bell: Now, sometimes they get treated horribly, there’s nothing you could do. But when they start to sexually harass or discriminate or play favorites, or like, uh, uh, if, if they file for an accommodation and they don’t engage in the interactive process, that’s always a big part of the case. You know, the, the person asks for an accommodation, and not only they deny the accommodation, they don’t engage in the interactive process and basically fire them.

 

[00:38:35] Jon Bell: Those are great cases that we handle against the federal government. And again, we do it all across the country. Not only all across the country, we’ve handled these cases around the world because there, there are times federal employees- 

 

[00:38:46] Christina Phillips: Oh, of course. Right. Because they’re maybe stationed over- Are placed in, in 

 

[00:38:49] Deirdre Arato: overseas 

 

[00:38:50] Christina Phillips: Wow.

 

[00:38:51] Christina Phillips: Overseas. Yeah, yeah. Wow. So you must be busy. You could probably be busy seven days a week with this stuff it sounds like. 

 

[00:38:57] Jon Bell: So in twenty-five years, we’ve grown, uh, [00:39:00] significantly. Like I said, there’s more competition than what, what we, there was before, but you know what? We’ve, uh… You know, the reason why we’ve grown to twenty-plus attorneys and, uh, uh, you know, we, we, we do the right thing, just like Phillips & Associates.

 

[00:39:11] Jon Bell: Like, we, we don’t, we don’t, we don’t take garbage cases. We don’t take cases just to waste people’s money so we can make… You know, I built the firm Very slowly and the right way, ’cause I see how other lawyers sometimes handle firms. If you have $5,000, they’ll take the case good or bad, and they’ll, they’ll pretend it’s a good case, and then they’ll lose the case and they’ll say, “Oh, it’s a bad judge’s decision.”

 

[00:39:33] Jon Bell: We’re very honest throughout the whole process. We under- they, you know, our clients understand, and the majority of cases are not a guaranteed win. I mean, these cases are very complicated, and, and through the stage we’ll get certain discovery or depositions. We’ll say, “This is good for your case. This was not good for your case.

 

[00:39:47] Jon Bell: Maybe we should look to settle it now,” or, or, “You- this is a really strong case. Let’s continue to trial.” And you get very honest feedback, and through that, uh, through that we played the long game and it served my, served our, our firm really well. 

 

[00:39:57] Christina Phillips: That’s great. You know, one thing that, um, [00:40:00] I’ve… has come up, and I know just from having, you know, I have an older daughter, and she has friends, and they’re all in the work.

 

[00:40:06] Christina Phillips: You know, their first year, first jobs- Mm … second jobs. And if something happens, from what I’ve heard, they don’t, they’re very reluctant to call an attorney because they don’t wanna have to lay out a retainer. How does that work? Is it the same… I mean, Phillips and Associates will take it on contingency.

 

[00:40:22] Christina Phillips: Sure. How does this work? Is it the same, or do you have to lay out a retainer? 

 

[00:40:25] Jon Bell: So it, it real- it, it depends on case by case, right? Mm-hmm. So if you have direct evidence, sexual harassment case, you have, you know, re- really re- you know, uh, proof o- of direct evidence where y- you’re highly likely going to succeed, we handle plenty of cases on contingency.

 

[00:40:40] Jon Bell: If, if our client is telling us something but we haven’t… You know, it, it’s, it’s circumstantial and we haven’t heard the other side’s version yet, and, and, you know, that’s a difficult thing about employment law. Like, you don’t want… You, you never wanna rip off your client, but at the same time you’re getting involved in a multitude of cases.

 

[00:40:56] Jon Bell: You have a big staff, big- Yeah … a lot of attorneys, a lot of [00:41:00] paralegals, and you wanna do the right thing by them. You wanna spend the time. So we do, like, a, a hybrid agreement where we’ll significantly reduce our hourly rate, so at least we’re getting paid for something for our time- Right, right, right. Yeah

 

[00:41:11] Jon Bell: with the idea that if we win, it’ll make up the rest, and the client will be happy. And, and, uh, uh, and, and we really look out for our, for, for our client. We understand that Our clients aren’t rich. They’re federal employees, you know. We’ll be lucky if our client makes $150,000 a year. So if they’re paying for a lawyer, it has to mean something.

 

[00:41:29] Jon Bell: And, uh, my big thing, and I tell all my attorneys and my staff, is when someone hires the Bell Law Group, at the end, they have to get some value. They have to… So even if the case is starting to get derailed, then settle the, push hard to settle the case. Yeah. Get them their money back. Give them, get them something, whether it be more vacation, more sick, get them something.

 

[00:41:49] Jon Bell: And, and, uh, uh, and, and fortunately, we’ve been able to do that in the vast majority of our cases. 

 

[00:41:54] Christina Phillips: That’s wonderful. I mean, uh, only because I know, I mean, it, it, it’s across the board, if somebody’s not, like to [00:42:00] your point, they’re only, they’re making a smaller salary or something, it, they’re gonna be nervous about spending.

 

[00:42:04] Christina Phillips: But I’ve just seen it in the young kids when I’ve heard things, I’m like, “No, I would never call an attorney,” you know? Yeah. Um, but it’s, so they’re, it’s nice that they have different avenues to get some- Yeah … justice, really. 

 

[00:42:15] Jon Bell: Yes. 

 

[00:42:15] Christina Phillips: And help. 

 

[00:42:16] Jon Bell: A lot of the younger generation sometimes is, is, is, i- is more timid, but, uh, sometimes, uh, they’ll get pushed to a certain, uh, or, or, or they could have parents or friends involved tell them that, that they should really take some action.

 

[00:42:29] Jon Bell: Um, but it’s also same, like, you know, you know how many times, I’m sure Phillips Associates deals with this too, you get that single mom- 

 

[00:42:35] Deirdre Arato: Mm-hmm … 

 

[00:42:36] Jon Bell: who’s calling you, and she’s like, “Listen, like I, I, I, I, I, I was undergoing this sexual harassment, but I c- I just, I can’t lose my job. I need this and I’m, and I’m fearful.”

 

[00:42:45] Jon Bell: And then listen, sometimes I’ll let the case go because I respect their decision. I’m like, “Listen, like, you have, you have something very valuable. You have something- Mm-hmm. I can’t control if they’re gonna fire you.” I said, “If they’re gonna fire you, this is gonna make their case, your case much more valuable.”

 

[00:42:58] Christina Phillips: Right. 

 

[00:42:59] Jon Bell: But at the end of the day, [00:43:00] it’s your, your decision. I- 

 

[00:43:01] Deirdre Arato: Sometimes it’s just not worth it for them to risk. 

 

[00:43:03] Christina Phillips: Yeah. Yeah, no, because it’s like a, it’s a l- it’s a l- especially it sounds like it’s a long process, even though you have these like quick deadlines. Oh, 

 

[00:43:08] Jon Bell: yeah, yes. Like you have a quick deadline. It is, it’s a very, a very long process.

 

[00:43:11] Jon Bell: How long 

 

[00:43:11] Christina Phillips: is the 

 

[00:43:11] Deirdre Arato: process? 

 

[00:43:13] Jon Bell: So the MSPB is, is a little bit shorter and you could get a case resolved within six to eight months. EEO could take two to three years, just like a regular federal court case. Mm-hmm. 

 

[00:43:22] Christina Phillips: Yeah, that’s like, that’s a lot of, uh, mental, 

 

[00:43:25] Deirdre Arato: you 

 

[00:43:25] Jon Bell: know- General, 

 

[00:43:26] Deirdre Arato: yeah … it just- That, and that’s another reason why they, people would rather not deal with it.

 

[00:43:31] Jon Bell: Yeah, 100%. 

 

[00:43:32] Deirdre Arato: Because it’s… Now, now you’re talking about stress that’s going to be prolonged, you know, and, and the consequences of that. Some people are just, “I, it’s not worth it for my mental health.” 

 

[00:43:42] Jon Bell: Of course. 

 

[00:43:43] Christina Phillips: Yeah. Well, I mean, I guess it just depends on how egregious it is, too. Yeah. Because, you know, there are certain things that are, should just not be put up with.

 

[00:43:49] Deirdre Arato: But even then, even then, they know it’s, it’s outrageous. They know that they shouldn’t be tolerating this. But what it’s going to do to their career and what it’s going to do to their mental [00:44:00] health, the risk of their finances, their insurance, I’d rather not do it. It’s just not worth it to me. Yeah. 

 

[00:44:05] Christina Phillips: Which is why I think it just keeps going on, you know?

 

[00:44:07] Christina Phillips: It’s just like, why it just doesn’t stop, because enough people don’t come forward to, like, put a stop to it. You know, we’ve seen it in so many different cases that we’ve heard about and s- you know, read about, so. 

 

[00:44:17] Jon Bell: Well, well, the good thing is, you know, we have l- lawyers li- like this that are here and the whole Me Too movement.

 

[00:44:21] Jon Bell: Mm-hmm. That, that people are talking about it more, more than ever before. Right … which is bringing, I think, more of a comfort level, uh, on people commencing these cases and realizing that there’s, uh, a, a, a good remedy or a good way to, to deal with these, uh, uh, potential claims. 

 

[00:44:36] Christina Phillips: Yeah. Well, this is why we wanted to get this podcast out so that people have an idea of what their rights are, what they can do, what their options are.

 

[00:44:44] Christina Phillips: And then with harassmenthelp.org, it’s going to be a website where, you know, if you’re working in a certain industry, this is not okay. It’s gonna, like, spell it out. Yeah. Okay, okay, this is… And now you can get the information, because sometimes ChatGPT isn’t always accurate. [00:45:00] No. No. 

 

[00:45:00] Deirdre Arato: Yeah. And people are always questioning, “Is it me?

 

[00:45:03] Deirdre Arato: Am I overreacting?” Mm-hmm. That’s the, the common question that I always get. Yeah. Yeah. “Is it me? Am I crazy?” 

 

[00:45:09] Jon Bell: Yep. 

 

[00:45:09] Deirdre Arato: And it’s that self-doubt, and they don’t know. But harassmenthelp.org and podcasts and all the information 

 

[00:45:15] Jon Bell: that’s coming out. Yeah. I’m 

 

[00:45:16] Deirdre Arato: gonna check it out. 

 

[00:45:16] Christina Phillips: Yeah, no, because it’s definitely, um… It’s, the information, and from what we’ve heard from these attorneys that have been on, they…

 

[00:45:24] Christina Phillips: I’ve learned so much just in this short amount of time. And so getting it out to the public, I think, is gonna be extremely helpful. 

 

[00:45:32] Deirdre Arato: So John, what are some other steps people should take to help build their case? 

 

[00:45:37] Jon Bell: So you wanna document everything. So, uh, like I said, when you go to, when you go to the EEO counselor, you wanna send, uh, that email within 45 days.

 

[00:45:44] Jon Bell: Document everything. Uh, if you feel like, uh, you’re being harassed, uh, by a supervisor or they’re not treating you fairly, you wanna send an email to the supervisor explaining what that conversation was and what it meant to you, and document it. Uh, if you feel like you’re being [00:46:00] treated differently, uh, based upon a protected class, and you feel like maybe a co-employee would agree with you, but then once they got involved in the process, you, they’re afraid that other, that, that, uh, agency lawyers would get involved, or maybe they’d be scared.

 

[00:46:13] Jon Bell: I, I, I always say, you know, send some, you know, kinda like bait texting. Like, “Hey.” You go to your coworker, “Hey, could you believe what just happened? Can you believe that this person just said this to me?” Mm-hmm. And wait for their response, and then you take screenshots and send it over to me. So little things like that, you know, before you get the lawyers involved, uh, overtly, where they’re, uh, trying to protect the agency’s interest and now scare the employees or intimidate the employees into saying s- an, a version that’s good for the agency.

 

[00:46:40] Jon Bell: Mm-hmm. You want honesty. So you wanna just do maybe informal text messages or emails to your co-employees and see how they respond- That’s great … and then you keep that evidence as well. What’s- So that, and that’s good, obviously that’s, that’s something that we do not only for federal sector- Mm-hmm … but for private sector also.

 

[00:46:54] Jon Bell: Right. I always tell people, like, listen, before I send that demand letter, before they know I’m involved, and then you start to [00:47:00] get questioned by HR, do like these, like, let’s, let’s work on some, some informal text messages and see how they respond. 

 

[00:47:05] Deirdre Arato: But you have mentioned earlier that shouldn’t there be something in the company’s, um, human resource book or something when they’re, uh, when they’re hired?

 

[00:47:14] Deirdre Arato: Sure, yes. Is that also a place of where they should be looking to, to- Well, yeah … the protocol? 

 

[00:47:19] Jon Bell: I, I mean, I, you know, you, when someone f- is first hired in any job, federal sector or otherwise, you, you most, c- your big- your biggest concern is doing your job, doing it well, learning, learning, learning the material.

 

[00:47:30] Jon Bell: But at some point in time, you should always know what your rights are. Even if you never use it, it’s good to know. And also, uh, a positive thing, too, is not all federal employees, but a lot of federal employees, they have union protections. Mm-hmm. Right? So they would, they, something happens, they go to the union, and the union really knows these, these rules, and a lot of times they’ll, they’ll either represent them or they’ll refer them to a lawyer, or they’ll at least say, “Listen, these, these are the different deadlines.

 

[00:47:55] Jon Bell: This, this is what you have to meet.” So that’s always a good benefit as well. That’s great. If you have a, if you have a, [00:48:00] if you belong to a union- Mm-hmm … you should be in communication with them about what your rights are. 

 

[00:48:03] Christina Phillips: Okay, so we have another interesting scenario. Um, and we haven’t, we touched on this a little bit, but I wanna get a little bit deeper into it.

 

[00:48:10] Christina Phillips: Um, a federal employee, a union member, files a grievance over discrimination. Later, she tries to file an EEO complaint and is told she has to choose one path. Is that true? 

 

[00:48:23] Jon Bell: Yes and no. 

 

[00:48:23] Christina Phillips: Okay. 

 

[00:48:24] Jon Bell: And that’s why it’s important that you go to a federal sector lawyer who knows what they’re doing. It, it depen- it, it differs agency by agency depending on the CBA, collective bargaining agreement.

 

[00:48:34] Jon Bell: Some collective bargaining agreements say that you could file a grievance based on discrimination If the CBA says that, you, the, uh, employee has the opportunity to file a grievance. If they file a grievance and an EEO case, they make EEO, uh, they go for informal counseling, it’s whatever gets done first is the one that controls.

 

[00:48:55] Christina Phillips: Okay. 

 

[00:48:56] Jon Bell: If the CBA doesn’t mention anything about discrimination or [00:49:00] they don’t allow you to bring discrimination cases, even if you go there and file a grievance, you can still go to EEO as long as w- you’re within your 45 days. Uniquely, the postal service has a CBA that says that you could do both. You could file the grievance and go to EEO.

 

[00:49:13] Jon Bell: So it really depends upon the certain e- the first thing you gotta do is look at the CBA. Now, my preference is always to go to the, uh, EEO, do the EEO route. Why? Because, you know, you file grievances, the, the union controls the grievance. They decide if they wanna go to step one, step two, and then go to arbitration.

 

[00:49:32] Jon Bell: So you lose kinda like some of that control. Also, like, I don’t know who these, uh, uh- Yeah … arbitrators are. I mean, so you, so now instead of that- You’re at the 

 

[00:49:41] Christina Phillips: mercy of the union … 

 

[00:49:41] Jon Bell: you’re mostly, right. So in this situation, if you go to EEO, eventually you get to take it out of the jurisdiction of the agency and in the jurisdiction of the EEOC.

 

[00:49:49] Jon Bell: Mm-hmm. You get an administrative judge appointed, you litigate it there. And by the way, one thing we didn’t talk about is after that, if you’re not happy with that decision at the EEOC, [00:50:00] you have 90 days to bring it into district court, and it’s a, it’s de novo, so you could start the process all over again, file yourself as a complaint, and they can’t even use that decision against you as evidence.

 

[00:50:12] Jon Bell: So basically you get all these swings at the bat- Mm … before they completely, you know. 

 

[00:50:16] Christina Phillips: But if you went the union route, it’s like, are you, like, one and done? 

 

[00:50:20] Jon Bell: Yes. 

 

[00:50:20] Christina Phillips: Okay. Yes. So then- Yes … it sounds like I, I, the- Yes … the two-part answer, I was like, “Okay, well, I know what I would do.” 

 

[00:50:26] Jon Bell: Yeah, of course. 

 

[00:50:26] Christina Phillips: You know? Yes. I was like, “I’m not gonna-” 

 

[00:50:28] Jon Bell: Yes

 

[00:50:28] Christina Phillips: ’cause I am a member of a couple of unions, so it’s good to know. 

 

[00:50:31] Jon Bell: Yep. 

 

[00:50:32] Deirdre Arato: So what advice would you give, then, for somebody who is part of a union? 

 

[00:50:36] Jon Bell: Hire me. No. I mean, I, I, I would say go, definitely go the EEO route. Don’t bother with the union route. And listen, sometimes union reps, I speak with them and they’re very helpful.

 

[00:50:46] Jon Bell: Sometimes they have a lot of good information. Other times they feel threatened by an outside lawyer, they want nothing to do with us. 

 

[00:50:51] Christina Phillips: So but the union rep is not necessarily an attorney too, right? No, 

 

[00:50:55] Jon Bell: not usually. The union rep is most often not an attorney. So that’s- And, and, and the problem also [00:51:00] is is that sometimes you have, you don’t have to be represented by an attorney, so you have these non-attorneys- Yeah

 

[00:51:05] Jon Bell: trying to get these federal sector cases saying, “Oh, come with me. It’s a lot less expensive. Why hire the lawyer?” Mm-hmm. But I’ll tell you what the problem with doing that is. You know, let’s say they’re paying 50% less for that person, but you, but they win the case, and chances are they’re not gonna win the case, but let’s say they win the case.

 

[00:51:19] Jon Bell: They don’t get lo- they don’t get representative fees back unless the person’s a lawyer. Mm. So very often we’ll win a case- Mm-hmm We, we provide them every single dollar they spend back for, ’cause the agency has to pay them ’cause we won. If they have a, a, a non-lawyer rep, they don’t get that money back. 

 

[00:51:36] Christina Phillips: Wow, that’s, that’s enough incentive, I mean- Yeah

 

[00:51:39] Christina Phillips: to, to make it, you know, worth 

 

[00:51:40] Jon Bell: Yeah, besides the fact that you’re paying for someone’s education and skill and, and the- Of course … you know, I mean, these are real trials. You do opening statements, you do direct examination, cross-examination. There’s a lot of strategy that goes into it, closing briefs, closing statements, and, and, uh, you’re calling doctors, you’re eliciting testimony based, as you know, [00:52:00] uh, uh, on emotional damages.

 

[00:52:01] Jon Bell: Sometimes you have a bifurcated case, sometimes you don’t. So these are very complicated cases. 

 

[00:52:06] Christina Phillips: Yeah, well, it seems like you need the best representation. And so not to, not to… I mean, unions have their place and everything, and there’s some stuff- Well … but maybe just not in the sexual harassment, discrimination, you know, it’s more, I don’t know, like wage, you know.

 

[00:52:18] Christina Phillips: I don’t know why you would call, but, you know, just- 

 

[00:52:21] Jon Bell: No, unions definitely are very helpful. Mm-hmm. And they provide some, some, like for example, in a disciplinary case, in the Merit Systems Protection Board, when we’re trying to get someone their job back, uh, and let’s say we’re showing that our client was treated differently, that the penalty was a lot worse for my client than it was for other cl- well, how are you gonna get those comparisons?

 

[00:52:42] Jon Bell: You call the union. The union’s like, “Oh my God, this, you know, A, B, C, and D, these people did the same exact thing as your client.” Mm-hmm. “And they only got a suspension.” So I get that proof- Mm … and then I submit it to the judge and cross-examine the agency on it and say, “Listen, why did you increase the penalty?

 

[00:52:56] Jon Bell: Obviously, there’s something more going on with my client.” And that’s a very, that’s [00:53:00] valuable evidence that, that I could get from the union to secure this person’s, uh, job back. So when the union works hand-in-hand with the lawyer, that’s gonna be the best result for the client. 

 

[00:53:10] Christina Phillips: It’s definitely a win-win. 

 

[00:53:11] Jon Bell: Yes.

 

[00:53:13] Christina Phillips: This has been so helpful. I can’t even thank you enough. But, um, just before we close it out, is there anything that you wanna say about maybe what the federal employees have misconceptions about what their rights actually are? 

 

[00:53:26] Jon Bell: There, there’s a c- first of all, thank you for having me on. This has been a lot of fun.

 

[00:53:29] Jon Bell: Yeah. Okay? Uh, I really enjoyed it. Great. It was a great- Yeah, no … great, great time. Awesome. Um, two misconceptions. Uh, one is, uh, you know, when, when Trump took office, uh, the, his whole platform was, “Oh, we’re gonna get rid of DEI, and there’s no DEI, uh, diversity, equity, inclusion in the federal government.” So a lot of federal employees actually believe that they can’t file EEO cases.

 

[00:53:52] Jon Bell: Wow. And that’s totally wrong. The EEO hasn’t changed. Diversity, equity, inclusion was something totally separate from the process. [00:54:00] Nothing has changed in the process. So maybe some people are now scared or timid because they’re afraid of losing their job, but that doesn’t mean that it doesn’t, those, those rights don’t exist.

 

[00:54:09] Jon Bell: They do exist, and they’re strong. Another big misconception is that you have to lo- uh, hire a lawyer that’s within your state or, or, or close to you. Federal sector law is so specialized. My recommendation is do your research. There’s a lot of federal sector lawyer. There’s some that are very good. I’m not saying I’m the only good shop in town, but there are some that are, have a horrible reputation.

 

[00:54:33] Jon Bell: Look at the reviews. Look at the Google reviews. Make sure you’re hiring the right ones because there are people, unfortunately, in all parts of the law, that all they wanna do is take advantage and look at their own profits instead of really caring about- Mm-hmm … and representing the employee. Right. Like I said earlier, none of my clients are wealthy when it comes to federal employee, federal sector litigation.

 

[00:54:56] Jon Bell: If you’re gonna spend your money with a lawyer, doesn’t matter about [00:55:00] where they, where they live, where their office is, h- do your research and hire the right one. Yeah. 

 

[00:55:04] Christina Phillips: Well, you know, it’s so funny because I was just gonna say, we usually wrap this up with, um, our segment of what’s not in the newsletter, and I mean, clearly what’s not in the newsletter is the Trump DEI situation.

 

[00:55:15] Christina Phillips: Did not know that. I thought, you know, across the board, you can’t com- there, it’s doesn’t exist anymore, so thank you for that explanation. And then the second one that would never be in a company n- like, I, I’ve never heard this before, that you, if you’re in a federal employee, you can have an attorney from anywhere.

 

[00:55:34] Jon Bell: That’s correct. It’s- That’s correct … 

 

[00:55:36] Christina Phillips: amazing. Yeah. That’s so- Yeah … helpful because, you know, let’s say you’re in Mississippi, you can hire a New York lawyer, you- Absolutely. Absolutely … and get great representation. 

 

[00:55:45] Jon Bell: 100%. 

 

[00:55:46] Christina Phillips: And if you’re international as well- Yeah … which I really don’t think that’s common knowledge.

 

[00:55:51] Christina Phillips: Yeah. So, and if there’s anything else that you think you wanna add. 

 

[00:55:54] Deirdre Arato: Yeah, I think what’s not in the newsletter is that time is of the essence here. That’s true. Oh, yeah. You’re on a time crunch. [00:56:00] Very much. 

 

[00:56:00] Jon Bell: Yeah. 

 

[00:56:00] Deirdre Arato: Very much 

 

[00:56:01] Jon Bell: so. 

 

[00:56:01] Deirdre Arato: So be aware of that. Yeah. 

 

[00:56:02] Jon Bell: Very much 

 

[00:56:04] Christina Phillips: so. Remember, your story is a spark that lights the way for someone else.

 

[00:56:08] Christina Phillips: Until next time.