Think Before You React

FedSmith.com author Robbie Kunreuther brought an interesting private sector EEO case to our attention since it could hold a valuable lesson for federal sector complainants who might find themselves in a similar situation. (Benes v. A.B. Data, Ltd. (C.A.7thCir No. 13-1166, 7/26/13))

After working at his new company for all of four months, Benes leveled a sex discrimination charge against it. A mediator was brought in and conducted a “shuffling” mediation session—the mediator shuffled between separate rooms in which respectively the complainant and management teams were present. (It is a technique believed “to prevent tempers from erupting….and facilitates careful deliberation and compromise.” (Opinion pp. 1-2)

When the mediator brought Benes an offer that he did not like, he apparently barged into the room with the management reps and loudly proclaimed, “You can take your proposal and shove it up your ass and fire me and I’ll see you in court.” (p. 2) Benes stormed out of the room, reportedly leaving the management reps a bit shaken up. Unfortunately for Benes, it only took his company an hour to accept his counterproposal. The company fired Benes. Benes sued, charging retaliation (abandoning his claim of sex discrimination). (p. 2)

The company asked that the court grant summary judgment. The court did just that, concluding “that Benes had been fired for misconduct during the mediation, not for making or supporting a charge of discrimination….” (p. 2)

As the court elaborated: “It was Benes who sabotaged the mediation session by barging into the other side’s room…Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.” (p. 3)

The court does not believe misconduct during mediation should be without consequences and in this case it is appropriate to sanction Benes for his actions. The EEO law “does not create a privilege to misbehave in mediation.” (p. 5)

Point taken.

Benes v. A.B. Data

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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