First Black Federal Mediator Can Pursue Bias Claim

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Hassan Kanu

June 23 — The first person of color to be hired as a mediator at the National Mediation Board can pursue race and age discrimination claims against the agency, the U.S. District Court for the District of Columbia has ruled ( Parker v. Hoglander , 2016 BL 201047, D.D.C., No. 15-926, 6/23/16 ).

The NMB mediates and arbitrates labor disputes in the airline and railroad industries. The federal agency had been in existence for 44 years when Maurice Parker, a black man, was hired in 1978. Parker retired in 1997 but applied for a vacant position in 2010, when he was 64.

He alleged the board offered him a job but later rescinded it because of his race and age. The board argued that Parker didn't actually accept the offer because he wanted to change his start date. Parker's evidence that a white candidate also failed to firmly commit to a start date but was treated as having accepted the job weighs against dismissing his case before discovery, Judge John Bates said.

Notably, the court pointed out that when the NMB moved for summary judgment, Parker's attorney didn't submit a “statement of genuine issues.” That document lays out a claimant's version of the facts. This is “a great way for a non-movant to lose its advantages under the summary judgment standard—and with them, perhaps, the case,” Bates wrote.

“All that said, a non-movant's procedural gaffes do not entitle the movant to summary judgment by default” because the court is “not compelled” to accept the movant's statement of facts as undisputed “if it is aware of other record evidence that reveals a factual dispute.”

Dual Pay Complicated Hire

Parker first re-applied to the board in March 2010, he said in his complaint.

The board later notified him that the position was being cancelled, but he eventually learned that one of the positions was actually filled, Parker alleged.

In July, he received an “unsolicited” phone call asking if he was still interested in a job. The board notified him of his selection on July 13, 2010, according to the opinion.

Parker is a federal retiree receiving an annuity. Receiving both an annuity and a salary requires special approval from the Office of Personnel Management, Bates said.

Nonetheless, Parker “immediately signed and submitted a ‘Statement of Acceptance.' ” He alleged he “never requested dual compensation” and made it known “at least four” times that he would accept the position without dual pay.

Failure to Accept Offer?

The board later told him he hadn't been approved for dual compensation and gave him until Sept. 16 to accept or reject the offer.

Parker requested a Nov. 1 start date but the board set it on Oct. 4. A board employee called him Sept. 16. Parker reiterated that he wanted a November start date, and the employee said he should make a formal request. Parker said he again made it clear that he would accept the position, but the board felt he didn't, Bates wrote.

Parker sent an e-mail the next morning saying he was looking forward to starting and making the formal request. The NMB chief of staff rescinded his offer hours later.

Younger, White Comparator

Parker submitted evidence that Walter Darr, a younger white man, also failed to commit to a start date.

Darr was also notified of his selection on July 13, was given a start date of Aug. 2, and had until July 30 to decide.

He orally accepted the position on July 30, but “there is no indication that Darr agreed to the start date,” Bates said. “To the contrary: when Williams emailed Darr on August 3 to ask why she had not received his signed ‘Statement of Acceptance' (answer: a fax snafu), she also asked him to ‘please advise on a tentative start date.' ”

“A jury could find that, by their respective deadlines, both Darr and Parker had communicated their general acceptance of the positions offered, but neither had firmly committed to a start date,” Bates wrote. “In Darr’s case, it seems, the Board continued to discuss the issue; in Parker’s, it yanked the offer. A reasonable jury could conclude that discrimination explains the difference.”

Jonathan Dailey in Washington, D.C., represented Parker. The U.S. Attorney's Office represented the NMB.

To contact the reporter on this story: Hassan Kanu in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law