Homeland Security and Employment Law Litigation
How September 11th Has Affected Labor Law, the Structure of Government Agencies, and Employee Termination — an interview with Mary Elizabeth Bagby of the Department of Homeland Security
Dana T. Hori

Posted Sunday, January 1, 2006
6 U.C. Davis Bus. L.J. 8 (2005)

Mary Elizabeth Bagby is currently the Associate General Counsel for Immigration and Custom Enforcement (ICE), a division of the Department of Homeland Security. Ms. Bagby provides legal advice on all employment litigation before the Merit Systems Protection Board as well as the Equal Employment Opportunity Commission. She is responsible for providing litigation support to the United States Attorneys' Office in cases regarding employment litigation that are filed in federal court.

Prior to the work Ms. Bagby has done for ICE, she was the supervising attorney for the Transportation Security Administration, another agency created with the implementation of the Department of Homeland Security. Her experience in the federal government also includes positions in both the Internal Revenue Service (IRS) as well as the Immigration & Naturalization Services (INS). Ms. Bagby has witnessed the changes in both employment and immigration law throughout presidential administrations and the reconfiguration of agencies after the events of September 11th.

Q: You have had several jobs, all of which have been for government agencies, can you explain what attracted you to a legal career with the government?

A: There were two main reasons why I chose a career with the federal government. The first was for ethical reasons. As counsel for a government agency, I was never going to be faced with the decision of having to take a case for financial reasons. When you work for the government, if you feel that the government made an error or that there is some sort of liability, you are obligated to try to settle the case. Most federal managers will admit if they have made a mistake and agree that settlement is a good way to go. I don't have to feel that I am on the bad side of a case. So from an ethical standpoint, I really liked that aspect of the job.

Secondly, when you work for the federal government you can usually get trial experience right away. If you work for a large firm, that typically does not happen for several years. I have enjoyed my experience as a lawyer for the federal government mainly because I have found it to be a very rewarding career with a good balance between work and life.

Q: Can you describe your role as legal counsel for the U.S. Immigration and Customs Enforcement?

A: I provide ongoing legal advice on any type of issue that may come up before the agency. For example, today I handled an ethical issue that dealt with requests by some of our employees who where getting involved with private lawsuits that did not involve the federal government. I also give legal advice to supervisors about employee terminations and employee disciplinary actions. These could be claims of sexual harassment or claims related to equal employment opportunity. I also get involved in defending governmental agencies decisions in litigation. Depending on the cases I have, I am generally in court about once or twice a month.

Q: What unique challenges confront the federal government with regard to labor relations?

A: I would have to say that the biggest challenge would be the lack of comprehensive training for some of the lower level supervisors. I don't think these supervisors have sufficient training when it comes to issues where the government has an affirmative obligation to take action. For example, when we get a claim of sexual harassment, we have a duty to promptly inquire and take corrective action, or if someone is disabled and they request reasonable accommodations, we have an obligation to look into those claims and to do the right thing. This is the biggest challenge that faces governmental agencies: the lower level managers who do not understand their legal obligations well enough.

Q: How are some of those challenges different from the challenges confronted in the private sector?

A: The federal government differs from the private sector, in my opinion, in that the federal government, because of the way it is setup, will sometimes create a culture where people are encouraged to file complaints. By that I mean that since the federal government pays for all the investigations, whenever someone wants to file an EEO complaint, or something of that nature, they know that it will be paid for by the government from start to finish. That is not the case in the private sector. In the federal government, just by the sheer volume of complaints, the work I do is an ongoing issue in certain agencies where the lower level managers can be caught off guard because the litigation can be very time consuming for them. There is a greater opportunity to file claims within the federal government than there is in the private sector. There was a law passed called the "No Fear Act", where agencies are required to report claims of discrimination. Those are the types of claims that I generally see.

Q: Are the labor issues and cases that you encounter in your current job with ICE similar to those that you encountered with TSA and the IRS?

A: No. It is really interesting what has happened since September 11th. TSA is a unique agency that was created from the ground floor up after September 11th. When Congress created the agency, they gave that administrator unbelievable flexibility, similar to that enjoyed in the private sector, in establishing its personnel system. Although TSA has always taken the position that Title VII of the Civil Rights Act and Equal Employment Opportunity (EEO) rights still apply, they have also utilized the advantages of this administrative flexibility. As a result, TSA has exercised unfettered discretion to do many different things in creating this new personnel system. The new TSA system is uniquely designed to provide maximum flexibility for administrator to fire employees, particularly screeners, more easily than employees in other areas of the federal government. And it really has had that effect. The only route TSA employees have to appeal a grievance is through EEO. There have been several EEO complaints within that agency. So that job was completely different.

The IRS was different from ICE in the sense that the IRS had a much stronger and more effective union. It was pretty impressive that they were able to change the culture in the IRS quite significantly in ways that I think really improved the agency. Since the unions had a strong collective bargaining agreement with the IRS, the majority of their cases went to arbitrators. So it was unlike ICE where so many more of the cases go to EEO judges rather than to arbitration.

Q: Does the restrictive hiring process the TSA employs undergo the scrutiny of the EEOC?

A: Yes. Though there are differences. The TSA has taken the position that there are certain statutory qualifications that were written into the law by Congress and must be met regardless of other provisions of law. For instance, TSA screeners must have a certain level of hearing so that they can hear alarm sounds and they must also have a certain physical ability to lift luggage. If someone applies to the TSA and has a hearing problem, because it is an absolute job requirement, they are barred from an employment discrimination claim. They cannot claim disability discrimination because the way the law is worded, it says that it is not withstanding any other provision of law. The qualifications must be met regardless of other provisions such as those of the American with Disabilities Act (ADA).

Q: What is the purpose of the Merit System Protection Board? Who hears cases before the board?

A: The purpose of the Board is to ensure that agencies discipline employees in a manner that does not discriminate, that is basically justified with evidence to support the reasons for the disciplinary action, and that is not severe. They also look at other issues involving retirement, though those are not issues that I tend to handle. They basically make sure that Merit Systems principles that have been enacted by Congress are adhered to by agencies. The Board consists of judges who are federal employees, but form a separate and independent agency. The judges are sometimes attorneys from the private sector, former EEO judges, or former agency counsel. They are like any other federal employee and can be terminated for cause. They do not have tenure or a lifetime appointment. These judges do not have the authority of federal judges because they cannot throw anyone in jail.

Q: What kind of representation do TSA screeners receive before the Board?

A: There was a distinction drawn between screeners, who had no rights to go to the Merit System Protection Board, and the upper level screener managers, who do have rights to go before the Board. And the Board has upheld that distinction. Those who do go before the board can hire a private attorney like any federal employee could, and generally at that level they do.

Q: How do you think the events of September 11th have affected labor and employment cases in the United States?

A: I do know that it has directly affected the Department of Homeland Security because, as a result of those events, they did promulgate regulations to create an entire new personnel system. The Bush Administration was very big on saying that we need to reduce the rights of the unions to require us to bargain before we implement new changes. In other words, sometimes under the old labor laws that used to apply before Homeland Security came into existence, before the government could mobilize or deploy someone to another part of the country, if they were a bargaining unit member, you had to bargain or negotiate with the union over the impact. So what the Bush Administration did was to say that Homeland Security is different, and we need to have more flexibility to be able to implement changes very rapidly to respond to incidents that occur. So they created a whole new personnel system.

The interesting thing is that these new regulations went into effect and immediately the labor unions filed suit to stop us from implementing the regulations. A district court judge has actually found that the regulations violated the Fair Labor Standards Act as well as some of the statutes set up by the Fair Labor Relations Authority. So we have not yet been able to implement the new regulations and now the cases are on appeal. It is kind of an interesting situation. But the bottom line is that the Bush Administration is trying to streamline and expedite things concerning union rights, but that has not been upheld yet. That is an issue out there, and we do not know what is going to happen. The rights of union members is the biggest change, but who knows if that is really going to change that dramatically.

Q: Prior to the events of September 11th you worked as council for the Immigration and Naturalization Service (INS). What changes do you see in the cases you have worked on since then regarding immigration?

A: I guess the biggest change is that the Department of Homeland Security divided up so many different agencies. Prior to the Department of Homeland Security, the Immigration Service was obviously one agency, but now is divided into three parts. Now the component I work for, Immigration and Customs Enforcement (ICE), only deals with the employees that are employed in the interior. We do not deal with boarder patrol or those employees who adjudicate visas or benefits. That is the biggest change. We are now merged with customs; it is just very confusing. And, it is rather difficult to know where to go or who the experts and specialists are for any given case. So it is in a bit of disarray at this point, but it is getting better.