Making Yourself FELTG-Smart

By William Wiley

Sometimes in one of our seminars, after we present an especially scintillating nugget of employment law advice, a participant will break down in tears saying something like this:

“How do you guys do it? You always seem to know what to do in most any employment law situation. Do you commune nightly with God? Do the Board, Commission, and Authority members vet their decisions through you for correction? Do your instructors have permanent cyberFEDS© connections blue-toothed into their cerebral cortexes?”

Yes, yes, yes … we do at times appear to be magical and unusually wired. And although our secret connections have to remain secret, we can share with you a trick that will help move you along the road toward FELTG Nirvana, gathering employment law wisdom as you progress, making you nearly as smart as our FELTG instructors (although, of course, never quite reaching that level of expertise).

Prepare to be enlightened, because the trick is:

1. Read the case decisions.
2. Draw practice conclusions.

Here’s how it works. Consider, if you will, the following analysis from a relatively routine MSPB opinion:

The evidence considered by the administrative judge consisted entirely of out-of-court witness statements, and she evaluated the probative value of that hearsay evidence, including but not limited to the deciding official’s sworn affidavit refuting the appellant’s claims, based on the factors set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). Under Borninkhof, the following factors affect the weight to be accorded hearsay evidence: (1) the availability of persons with firsthand knowledge to testify at the hearing; (2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s explanation for failing to obtain signed or sworn statements; (4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made; (5) consistency of declarants’ accounts with other information in the case, internal consistency, and their consistency with each other; (6) whether corroboration for statements otherwise can be found in the agency record; (7) the absence of contradictory evidence; and (8) the credibility of declarant when she made the statement attributed to her.

The administrative judge found that the appellant withdrew her hearing request; accordingly, the witnesses could not provide hearing testimony. The administrative judge also found that all except one of the witnesses’ statements were signed and made under the penalty of perjury. The administrative judge found that the appellant and the deciding official were not disinterested witnesses and that their statements were contradictory. The administrative judge found that the appellant failed to prove her claim of race discrimination because it was based entirely on double hearsay, which lacked sufficient reliability to have real probative value, and that she submitted only “sparse ” evidence showing that her removal was motivated by her race or by her association with a race. The administrative judge also found it significant that the appellant failed to submit corroborating evidence consisting of statements from disinterested witnesses substantiating the alleged race discrimination or contemporaneous evidence in diary or journal entries reflecting the alleged discriminatory comments.

When reading this decision, you could scan through this language, appreciating that it’s foundational, then skip ahead to find out what happened to the appellant in the case. Or, if you were trying to become FELTG-smart, you could stop a second and consider whether there might be hints in here that you should use to tweak the way you do this business in practice, e.g.:

When relying on hearsay evidence in an appeal (as we all have to do on occasion), be sure to argue any of the following that are true statements:

1. There was no one available who had first-hand knowledge of this evidence.
2. The out-of-court written statements were made in affidavit form and co-signed by a witness.
3. You could not get sworn statements for a very good reason (being stupid or not reading the FELTG newsletter are not very good reasons).
4. The people making the statements are disinterested parties to the appeal.
5. The statements are consistent with other evidence in the record.
6. The statements can be corroborated by other evidence in the record; e.g., the individual who made the hearsay statement was keeping a contemporaneous log of events (tell your clients to keep contemporaneous notes as a case develops).
7. There is no unbiased contradictory evidence in the record.
8. The Hillen credibility factors support a conclusion that the person giving the statement is more likely than not telling the truth.
9. Double hearsay (e.g., Bill’s out-of-court statement says that he heard Deb say that Ernie punched Peter, if offered to prove that Ernie indeed punched Peter) isn’t worth a bucket of warm spit.
10. The other side’s evidence is “sparse,” a lovely subjective word that can be stretched to cover what might otherwise be characterized by the other side as “significant,” and done so with a litigator’s straight face.

There you have it. A trick to help you learn how to build a case for your side of the hearing room by applying practical lessons to implement a foundational principle in federal employment law. Now all you have to do is read all the other opinions issued by an oversight agency and draw similar practice conclusions. Or, alternatively, you can sign up for one of our fantastic FELTG seminars and learn from those of us who have gone before and have already done the leg work for you. Wiley@FELTG.com