Federal Legal Corner
Finding of Discrimination Upheld
Wednesday, November 27, 2013
In Debra Meachum and Teresa Abbott v. Social Security Administration, EEOC Appeal No. 0720120003 (September 9, 2013), the EEOC found that the findings of an administrative judge, that the complainants had been subjected to discrimination and harassment on the bases of their sex and age, were supported by substantial evidence. Meachum and Abbott, GS-14 attorneys, alleged that their supervisor subjected them to a hostile work environment and disparate treatment. The EEOC AJ found that the supervisor treated the male employees and younger female employees more favorably with respect to work assignments, the ability to express their opinions regarding their work assignments, due dates imposed on them for completing assignments, and the manner in which the supervisor treated them. The AJ found that the supervisor made derogatory remarks and demeaned the complainants, denied requests by the complainants for reassignment of their cases when they were overloaded, and more harshly criticized the work completed by the complainants. The AJ noted that the workload of male attorneys was considerably lighter than that of the older females, the work performed by the male employees was not harshly criticized by the supervisor, and males were allowed to disagree with the supervisor in meetings while the complainants were not. The EEOC rejected the agency’s arguments on appeal that the AJ’s credibility determinations were erroneous and that the AJ substituted her judgment for the supervisor’s judgment.
Recovery of Annuity Overpayment Waived
Wednesday, November 20, 2013
On September 13, 2013, the U.S. Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board’s denial of a waiver of recovery of the overpayment of survivor annuity benefits in King v. Office of Personnel Management, Docket No. 2012-3061. In the MSPB’s decision, appellant Kathryn King was ordered to reimburse OPM for the $41,939.13 she had received in survivor annuity funds she received after filing an application with OPM for the funds and claiming to be the lawful widow of deceased U.S. Forest Service employee Don King. Survivor annuity payments are paid to the surviving spouse of a federal employee where the surviving spouse was married to the employee when he or she died.
MSPB Applies Ruling Limiting Appeal Rights
Wednesday, November 13, 2013
In Ingram v. Dept. of Defense, 2013 MSPB 78 (September 30, 2013), the MSPB affirmed the initial decision of an administrative judge, which had sustained an agency’s decision to demote Ingram. The MSPB held that it was bound by the decision on the U.S. Court of Appeals for the Federal Circuit (Fed. Circuit) in Kaplan v. Conyers, 2013 U.S. App. LEXIS 17278 (August 20, 2013), which prohibited the Board from reviewing Department of Defense national security determinations concerning the eligibility of an individual to occupy a “sensitive” position, regardless of whether the position requires access to classified information.
Reassignment of Harassment Victim Reversed
Wednesday, November 06, 2013
The EEOC’s Office of Federal Operations reversed an agency’s decision dismissing a complaint of sexual harassment and discrimination in the case Moore v. Department of Education, Appeal No. 0120111258 (August 15, 2013). The OFO held that the agency was liable for a co-worker’s harassment of complainant Moore after it reassigned her after she complained repeatedly about inappropriate touching by her supervisor.
No Right to Appointed Counsel at MSPB
Wednesday, October 30, 2013
In Taylor v. MSPB, nonprecedential No. 2013-3037 (7/16/13), the U.S. Court of Appeals for the Federal Circuit ruled that federal employees do not have the right to appointed counsel in cases before the MSPB. In so ruling, the Federal Circuit reaffirmed a longstanding constitutional principle that appointed counsel is generally reserved solely for criminal cases and civil cases where an indigent party’s liberty is potentially threatened.
Notice of Appeal Rights
Wednesday, October 23, 2013
In Johnson v. USPS, 2013 MSPB 68 (Sept. 9, 2013), the Merit Systems Protection Board affirmed an administrative judge’s initial decision sustaining a removal and explained its practice after Kloeckner v. Solis, 133 S. Ct. 596 (2012), where the U.S. Supreme Court clarified an appellant’s right to seek review in federal court of a final Board decision in a mixed-case appeal where the appellant alleges discrimination.
Harassment Based on Perceived Sexual Orientation
Wednesday, October 16, 2013
In Appeal No.0120131136 (August 13, 2013), the EEOC found that a federal agent’s claim of harassment based on his perceived sexual orientation was a claim based on the perception that he did not conform to gender stereotypes of masculinity, and therefore stated a viable claim under Title VII. The agent alleged that he was repeatedly subjected to harassment by his coworkers who used derogatory terms; told him he was going to be fired because of his sexual orientation; and told him he was unwelcome and that he should find another job. He alleged that his coworkers did not want to work with him, avoided him at work, and excluded him from work assignments and trips.
Claim of Age Discrimination Reinstated
Wednesday, October 09, 2013
In Musselman v. Dept. of Agriculture, EEOC Appeal No. 0120131528 (July 31, 2013), the Equal Employment Opportunity Commission Office of Federal Operations (OFO) reversed the agency’s dismissal of a complainant’s EEO claim and remanded for further proceedings.
EEO Representative Has Viable Claim of Retaliation
Wednesday, October 02, 2013
In Perlinger v. Social Sec. Admin., EEOC Appeal No. 0120131695 (July 31, 2013), the Equal Employment Opportunity Commission Office of Federal Operations (OFO) held that an EEO representative had a viable retaliation claim, thus reversing the agency’s dismissal for failure to state a claim.
MSPB Sets Furlough Appeal Standards
Wednesday, September 25, 2013
On September 18, 2013, the Merit Systems Protection Board issued its decision in Chandler v. Department of the Treasury, 2013 MSPB 74, among the first cases to reach the appellate level at the MSPB concerning the standards to be used in deciding furlough appeals. Chandler is a GS-14 senior tax analyst at the IRS who was furloughed for along with other IRS employees in recent months.
Not All Actions Trigger EEO Rights
Wednesday, September 18, 2013
The Equal Employment Opportunity Commission Office of Federal Operation (OFO), in Lyle v. General Services (No. 0120131779, June 20, 2013), upheld the dismissal of Lyle’s EEO complaint for failure to state a claim. Lyle, who worked as a telecommunications specialist for GSA, claimed that the agency discriminated against her and subjected her to harassment based on her color (white) and reprisal (EEO activity) when she was not invited to a retirement lunch and when she received “negative comments regarding providing customer service.”
Evidence to Show Retaliatory Motive
Wednesday, September 11, 2013
In Herman v. Department of Justice, 2013 MSPB 60 (Aug. 12, 2013), the Merit Systems Protection Board overturned an AJ’s denial of the appellant’s request for corrective action after the agency subjected him to adverse employment actions allegedly in retaliation for his whistleblower disclosures.
The attorneys of Passman & Kaplan have written the following articles about current legal developments in the law. These articles can also be found in the “Federal Legal Corner” of the publication FEDweek.
Suit against Manager in Personal Capacity
Wednesday, September 04, 2013
On July 26, the U.S. Court of Appeals for the District of Columbia in Jacobs v. Vrobel, No. 12-5107, upheld the dismissal of Jacobs’ lawsuit against her former manager at the General Services Administration for allegedly harming her through bad employment references to her prospective employers.
Appeal Rights in Sensitive Positions
Wednesday, August 28, 2013
On August 20, 2013, the U.S. Court of Appeals for the Federal Circuit issued its split decision in OPM v. Conyers, Northover and MSPB, Case No. 2011-3207, which held that Dept. of the Navy v. Egan, 484 U.S. 518 (1988), applies when federal employees holding sensitive positions and not just those involving access to classified information are subject to adverse actions based upon a determination that they are not eligible to occupy such a position. Thus, these employees do not have appeal rights before the Merit Systems Protection Board.
Whistleblower Compensation Provision Not Retroactive
Wednesday, August 21, 2013
On August 14, the Merit Systems Protection Board (MSPB) issued its decision in King v. Dept. of the Air Force, 2013 MSPB 62. In dispute was whether the compensatory damages provision of the Whistleblower Protection Enhancement Act of 2012 (WPEA) applies retroactively.
Failure to Comply with Law Judge’s Orders
Wednesday, August 14, 2013
In Davis v. Dept. of Commerce, 2013 MSPB 56 (July 24, 2013), the MSPB took the unusual step of dismissing an appeal of a removal due to the employee’s failure to comply with the administrative judge’s prehearing orders and for exhibiting bad faith in the processing of the appeal the day of the scheduled hearing.
MSPB Waives Deadline on Disability Claim
Wednesday, August 07, 2013
The Merit Systems Protection Board reversed its administrative judge (AJ) in a precedential decision and waived the statutory one-year deadline for filing a disability retirement application in Bruce v. Office of Personnel Management, 2013 MSPB 51 (7/8/13).
Denial of Telework Ruled Discriminatory
Wednesday, July 31, 2013
The EEOC in Blocher v. Department of Veterans Affairs, Appeal No.0120111937 (April 17, 2013), ruled that the VA subjected the complainant to disability discrimination when it denied her request to telework as a reasonable accommodation for her hip disorder.
Agency Misrepresentation in Settlement
Wednesday, July 24, 2013
On May 24, 2013, the Merit Systems Protection Board in Weldon v. Dept. of Veterans Affairs, 2103 MSPB 39 remanded a case for further proceedings to see if a settlement agreement was procured by an agency misrepresentation to Weldon, and thus invalid.
EEOC Finds Gender Discrimination at DEA
Wednesday, July 17, 2013
The Equal Employment Opportunity Commission recently held that a class of female special agents for the Drug Enforcement Agency (DEA) established by a preponderance of the evidence that the agency regularly and purposefully treated female agents less favorably than male agents. Garcia et. al. v. Dept. of Justice, EEOC Appeal No. 0120122033 (June 7, 2013).
Court Sets Test for Retaliation Claims
Wednesday, July 10, 2013
In University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), the U.S. Supreme Court held that the standard for proving retaliation claims under Title VII of the Civil Rights Act is a stricter standard than showing that retaliation was a “motivating factor” in an adverse employment decision. The court held that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lesser causation standard of “motivating factor.” The court held that an employee must prove that an adverse employment action would not have occurred “but for” illegal retaliation in violation of Title VII.
FEGLI Beneficiary Designation Trumps State Law
Wednesday, June 26, 2013
The United States Supreme Court, in Hillman v. Maretta (No. 11-1221, 6/3/13), invalidated a Virginia law that had automatically changed a life insurance beneficiary designation after a married couple divorced. The late Warren Hillman, a federal employee, had life insurance under the Federal Employees’ Group Life Insurance program. He named his wife Judy Maretta his beneficiary in 1996. Although they divorced in 1998 and he married Jacqueline Hillman in 2002, he never changed the named beneficiary under his FEGLI policy.
Discriminatory Constructive Suspension
Wednesday, June 19, 2013
In Crutch v. U.S. Postal Service, 2013 MSPB 38 (May 22, 2013), the MSPB found that the employee’s involuntary absence from the workplace was a “constructive suspension” for which the employee received no due process. Consequently, the agency was ordered to cancel the suspension and make the employee whole for lost pay and benefits. Additionally, a majority of the Board found that the suspension was discriminatory based on the employee’s disability in violation of the Rehabilitation Act. Therefore, the case was remanded to the administrative judge to permit the employee to present evidence and argument in support of his claim for compensatory damages.
Wednesday, June 12, 2013
The Merit Systems Protection Board (MSPB) in the case of Portner v. Department of Justice, 2013 MSPB 28 (April 5, 2013), recently mitigated a Drug Enforcement Administration GS-14 supervisor’s removal to a 45-day suspension, finding that the penalty of removal “exceeds the tolerable limits of reasonableness.” Portner showed a variety of mitigating circumstances, including long service, good performance before and after the alleged misconduct, stress from personal and professional problems at the time, no impact on his ability to perform duties, and inconsistency with prior, lighter penalties for employees who engaged in equally and even more serious misconduct.
Comments Constitute Reprisal
Wednesday, June 05, 2013
In King v. International Boundary & Water Comm’n, EEOC Appeal No. 0120112384 (March 19, 2013), the EEOC held that a supervisor’s comments informing employees that the complainant had filed an EEO complaint constituted a per se violation of Title VII of the Civil Rights Act.
Withdrawal of Offer of Employment
Wednesday, May 29, 2013
The EEOC’s Office of Federal Operations (OFO) in the case of Cleckler v. Department of Defense, Appeal No. 0120091162 (March 15, 2013), found that Cleckler, a transportation assistant with the Department of Defense, was subjected to disability discrimination when the agency withdrew a tentative offer for a motor vehicle operator position. The agency contended that the reason for the withdrawal was due to the complainant’s not “possess[ing] emotional and mental stability,” due to his Post-Traumatic Stress Disorder (PTSD).
New Decision on Management-Directed Reassignment
Wednesday, May 22, 2013
In a precedent-setting decision, the MSPB previously reversed an initial decision of its administrative judge (AJ) which upheld a removal for failure to accept a management-directed reassignment. Miller v. Department of the Interior, 2013 MSPB 27 (4/3/13). Surprisingly, upon further consideration, the Board reopened the case on its own, vacated the prior decision, and substituted a new Opinion and Order reaffirming its prior decision with more supporting rationale. Miller v. Department of the Interior, 2013 MSPB 35 (5/13/13).
Misinformation from Agency
Wednesday, May 15, 2013
On March 29, 2013, the Merit Systems Protection Board (MSPB) issued its decision in Freeborn v. Dept. of Justice, 2013 MSPB 23. The MSPB found that Freeborn resigned based on misinformation from management and thus was constructively removed without due process, and ordered his reinstatement.
Front Pay for Discrimination
Wednesday, May 08, 2013
The U.S. District Court, Southern District of Texas, recently held that an employee of the Department of Defense was entitled to four years of front pay as a remedy for discrimination. Junaid v. Department of the Army, Civil Action No. 2:11-CV-00226 (S.D. Tex. Jan. 28, 2013).
Appeal Filed Three Days Too Late
Wednesday, May 01, 2013
In Scott v. Dept. of Transportation, Docket No. CH-0752-12-0476-I-1 (March 12, 2013), the Merit Systems Protection Board affirmed the administrative judge’s initial decision finding that appellant Scott had not shown good cause for her three-day delay in filing her mixed case appeal with the Board.
Employee Not Entitled to Accommodation for Spouse
Wednesday, April 24, 2013
The Office of Federal Operations, EEOC, reaffirmed that a federal employee is not entitled to reasonable accommodation for his or her spouse’s disability in Davis v. Department of the Interior, Appeal No. 0120123517 (2/12/13). However, federal employees may file EEO complaints when faced with discrimination because of the known disability of an individual with whom the employee has a family, business, or social relationship or association.
Court Finds Violation of Due Process
Wednesday, April 10, 2013
In Young v. Department of Housing and Urban Development, 2011-3232 (Fed. Cir. 2/12/13), the United States Court of Appeals for the Federal Circuit ruled that HUD violated Young’s due process rights when HUD’s deciding official, in making her decision about whether to remove Young for alleged misconduct, interviewed four agency employees but did not give Young notice of the interviews or an opportunity to respond to the information uncovered in these interviews. The court also ruled that HUD committed harmful procedural error when it relied upon the information from the interviews-information which was not contained in the agency’s proposed removal of Young.
Management Directed Reassignment
Wednesday, April 10, 2013
In a precedent-setting decision, the MSPB reversed an initial decision of its administrative judge (AJ) which upheld a removal for failure to accept a management-directed reassignment. Miller v. Department of the Interior, 2013 MSPB 27 (4/3/13). Miller, the former superintendent at the Sitka National Historical Park, had been removed after refusing to accept an involuntary reassignment from Sitka, Alaska to a new position in Anchorage, Alaska, more than 500 miles from Sitka. Miller had no performance issues in her Sitka post, and the Sitka position was not being abolished; the agency then had to advertise and fill both the Sitka and Anchorage slots after removing Miller.
Standard for Proving Age Discrimination
Wednesday, April 03, 2013
A recent EEOC decision helps to clarify what a federal employee must show to prove unlawful age discrimination in a personnel action. Arroyo v. VA, EEOC Appeal No. 0120121771 (January 25, 2013), involved a complaint by a federal employee that he was not selected for a certain federal position due to his age. The Commission determined that the agency had indeed improperly considered the employee’s age in deciding not to hire him, but also found that the agency would have hired someone else even if age had not been a consideration.
GSA Settles Privacy Act Lawsuit
Wednesday, March 27, 2013
In Brunotte v. Tangherlini, Civil Action No. 08-0587 (D.C.), the parties settled a Privacy Act case prior to trial. This case, in U.S. District Court for the District of Columbia, involved allegations that employees of the General Services Administration and its Office of Inspector General committed violations of the Privacy Act in an apparent attempt to interfere with a GSA employee starting a new job at the Government Printing
Legal Implications of Furloughs
Wednesday, March 20, 2013
According to OPM guidance, there are two types of furloughs: an administrative furlough and a shutdown furlough. An administrative furlough is a planned event by an agency which is designed to absorb reductions necessitated by downsizing, reduced funding, lack of work, or any budget situation other than a lapse in appropriations. Furloughs that would potentially result from sequestration are considered administrative furloughs.
Award Increased in Discrimination Finding
Wednesday, March 13, 2013
The EEOC’s Office of Federal Operations (OFO) in the case Underwood v. Social Security Administration, EEOC Appeal No. 0720120001 (October 10, 2012), upheld an administrative judge’s (AJ’s) finding that the Social Security Administration discriminated against Underwood, an SSA contact representative when SSA failed to reasonably accommodate her disability. The OFO also quadrupled the compensatory damages award from $2,500 to $10,000.
Claim against Agency by IPA Employee Allowed
Wednesday, March 06, 2013
On December 12, 2012, the EEOC’s Office of Federal Operations (OFO) issued its decision in Makuch v. Dept. of Defense, EEOC Appeal No. 0120114324. OFO found that Makuch was able to press a discrimination complaint against the Department of Defense (Agency) through the federal sector EEO process.
Employee Rights in Furloughs are Limited
February 27, 2013
Nearly all federal employees face the imminent unpleasant prospect of furloughs as a result of the upcoming “sequestration” and ensuing agency budget reductions. The Office of Personnel Management defines a “furlough” as “the placing of an employee in a temporary nonduty, nonpay status because of lack of work or funds, and other nondisciplinary reasons.”
Fortunately, the law requires a 30-day notice of furloughs lasting 30 days (22 calendar days) or less, and employees are entitled to respond to the proposals orally or in writing, entitled to a representative or attorney, and may appeal an adverse ruling to the Merit Systems Protection Board (MSPB).
MSPB Rules in Favor of Retired Employees
February 20, 2013
MSPB recently affirmed that retired employees are protected under the Civil Service Due Process Amendments of 1990, 5 USC 7701(j), which provide that an employee’s retirement has no impact on the “appealability … of any case involving a removal from the service.” Paula v. SSA, 2013 MSPB 6 (1/23/13).
Failure to Investigate Complaint
February 13, 2013
In Dodson v. Dept. of the Army, EEOC Nos. 531-2012-00413x, 531-2013-00012x (Jan. 10, 2013), an EEOC administrative judge issued a default judgment against the Army for failure to investigate the complainant’s two formal EEO complaints within 180 days, as required by 29 CFR §1614.106(e) (2) and 1614.108(e).
No Court Enforcement of Settlements
Wednesday, February 06, 2013
A recent decision by the U.S. Sixth Circuit Court of Appeals decided that employees do not have a right to seek enforcement of agreements settling their Title VII discrimination and retaliation claims in federal court. Taylor v. Geithner, No. 11-6122 (6th Cir. Jan. 2, 2013).
EEOC Upholds Finding of Discrimination
January 30, 2013
The EEOC’s Office of Federal Operations (OFO) recently rejected the Social Security Administration’s (SSA’s) request for reconsideration of the EEOC’s finding of discrimination based on failure to accommodate in the case Lamb v. Social Security Administration, EEOC Appeal No. 0120103232 (October 10, 2012).
Survivor Lacks Standing to Bring EEO Claim
January 23, 2013
The U.S. District Court, Southern District of Mississippi, recently held that a deceased federal employee’s survivor does not have the standing to bring an EEO claim after the employee’s death. Wright v. Department of Homeland Security, Civil Action No. 3:1 2CV514TSL-MTP (S.D. Miss. Dec. 7, 2012).
EEOC Denies Agency’s Request for Reconsideration
January 09, 2013
In Jefferson, et al. v. Social Security Administration, Request Nos. 0520110501, 0520110502, 0520110499, the Office of Federal Operations (OFO), EEOC, denied the agency’s request for reconsideration of the Commission’s decision finding that the agency had breached its settlement agreement and ordering specific performance in the form of substantial retroactive awards.
EEOC Finds Sex Discrimination
January 02, 2013
A recent EEOC decision found that, when combined with sexist statements, a supervisor’s showing of favoritism toward employees of one gender can be enough to establish sex discrimination. In Balderas v. Dept. of Justice, EEOC Appeal No. 0120110222 (September 28, 2012), a contract aviation security officer alleged that her female supervisor subjected her to discrimination based on her gender and national origin and reprisal for opposing such discrimination.
Agency Inaction Results in Default Judgment
December 26, 2012
A recent EEOC decision granted a sanction of default judgment against the Department of the Army for its failure to produce the complaint files as ordered by the EEOC. In Robinson v. Dept. of the Army, EEOC Case No. 531-2012-00210X (BFO October 17, 2012), on November 3, 2010, the complainant filed a formal complaint, alleging that the Agency subjected her to discrimination on the basis of sex (female) and reprisal.
Supreme Court Simplifies Mixed Case Appeals
December 19, 2012
In a unanimous decision on December 10, 2012, the Supreme Court simplified the appellate procedures for federal employees appealing adverse actions in cases involving discrimination or EEO reprisal. The Court’s decision in Kloeckner v. Solis, 568 U.S. ____ (2012), Case No. 11-184, reinstated the “mixed case” appeal process envisaged by Congress.
Supervisor’s Comments Could Have Chilling Effect
December 12, 2012
The EEOC recently held that a supervisor’s comments about an employee’s EEO complaint made during a performance review could have a chilling effect on a reasonable employee’s exercise of EEO rights and thus constitute reprisal. Talley v. Nuclear Regulatory Commission, EEOC Appeal No. 0120110737 (Sept. 26, 2012). The Commission found that the agency improperly dismissed the employee’s reprisal complaint for failure to state a claim and being preliminary to a future personnel action.
EEOC Substantially Increases Damages
September 19, 2012
In Sartini v. Dept. of Veterans Affairs, EEOC Appeal No. 0120112305 (Sept. 19, 2012), the Commission modified the agency’s award of compensatory damages, awarding pecuniary damages and substantially increasing the non-pecuniary damages award.
Transfer as Reasonable Accommodation
September 19, 2012
The U.S. Court of Appeals for the 10th Circuit, in Sanchez v. Vilsack, Appeal No. 11-2118 (September 19, 2012), ruled that a federal employee could request a reasonable accommodation for a disability in the form of a hardship transfer to a city where she would have “better access to ongoing medical treatment.”
Discrimination Claim after Reassignment
July 20, 2012
In a recent decision, the U.S. Court of Appeals for the D.C. Circuit found that the FBI’s reassignment of an employee of Egyptian national origin, to a position for which he was overqualified, could constitute an adverse action, constituting national origin discrimination. In Youssef v. Dept. of Justice, 112 LRP 38310 (July 20, 2012), the D.C. Circuit ruled that a lower court erred when it ruled for the agency without allowing the case to proceed to a jury trial.
Court Clarifies Whistleblower Protections
May 30, 2012
In Whitmore v. Dept. of Labor, Fed. Cir. No. 2011-3084 (May 30, 2012), the U.S. Court of Appeals for the Federal Circuit reversed the decision of an administrative judge (AJ) of the Merit Systems Protection Board who had sustained Whitmore’s removal. Whitmore had claimed, among other things, that he was fired in retaliation for protected whistleblowing and in reprisal for protected EEO activity.
MSPB Proposes Many Policy Changes
June 7, 2012
On June 7, the Merit Systems Protection Board issued in the Federal Register proposed regulations that are mainly procedural but overall provide more flexibility for administrative judges and parties in the adjudication process.
EEOC Issues Default Judgment
June 1, 2012
An agency’s failure to respond to the EEOC’s repeated requests for a complaint file, the report of investigation, the hearing record and the hearing transcripts over a two-year period resulted in a default judgment in favor of the complainant as a sanction.
Nonselection Found Discriminatory
May 11, 2012
On May 11, 2012, the Equal Employment Opportunity Commission’s Office of Federal Operations (OFO) issued its decision in Barnette v. Dept. of Veterans Affairs, EEOC Appeal No. 0120100558. Overturning an administrative judge’s finding of no discrimination, OFO found Barnette’s 2006 nonselection to be motivated by racism.
Complaint based on Gender Identity
April 1, 2012
In a precedent-setting decision, the EEOC decided that a transgender woman who was initially offered employment as a male for a position with a contractor for the Bureau of Alcohol, Tobacco and Explosives, but the offer was subsequently withdrawn when it was learned that he was transitioning to female, is entitled to pursue her case.
Fitness for Duty Exams
March 27, 2012
In John Doe v. Pension Benefit Guaranty Corporation, 2012 MSPB 42 (3/27/12), the MSPB ruled that the Pension Benefit Guaranty’s Corporation’s ordering of an appellant to undergo a fitness for duty examination (FFD exam) and concomitant suspensions (including some time in AWOL status) was improper, as it did not fit into the narrow circumstances set forth by the Office of Personnel Management for permitting FFD exams.
Damages for Privacy Act Violations
March 15, 2012
In Federal Aviation Administration v. Cooper, No. 10-1024, 566 U.S. __ (2012), the United States Supreme Court faced the question of whether an individual whose rights under the Privacy Act are violated is entitled to damages for mental or emotional distress.
Hostile Work Environment Harassment Based on Gender
March 15, 2012
In Sherri L. Jackson v. Dept. of the Air Force, EEOC Appeal No. 0720110036 (March 15, 2012), the EEOC affirmed the decision of an administrative judge who found that plaintiff Jackson had established a claim of hostile work environment harassment on the basis of her sex.
Indefinite Suspension Reversed
April 2, 2012
On April 2, 2012, Merit Systems Protection issued its decision in Hall v. Department of Defense, 2012 MSPB 47. The Board reversed the indefinite suspension of Hall and ordered her reinstated with back pay.
Right to Official Time
February 28, 2012
In the case of Wallace Dillard v. Department of Defense (Defense Commissary Agency), Agency Appeal No. 0120113984 (February 28, 2012), the EEOC Office of Federal Operations ruled that the Department of Defense violated EEOC rules and regulations by denying Dillard’s request for official time to work on his EEO complaint. The commission also held that a complainant does not have to prove discrimination in order to pursue a claim that his rights were violated when an agency denied him official time without a written statement noting the reasons for the denial.
MSPB Upholds Removal for False Medal Claim
March 8, 2012
The Merit Systems Protection Board recently upheld the removal of a federal employee charged with falsely informing coworkers, subordinates, and civic leaders that he was a recipient of the Silver Star medal. He was also charged with intentionally making a false statement to his supervisor by providing him what he knew to be a falsified copy of a military General Order showing that he had been awarded the Silver Star. 2012 MSPB 33 (3/8/12).
Rehabilitation Act Violated
January 12, 2012
In Kathy Krewsky v. Department of the Navy, EEOC No. 0120102511 (January 12, 2012), the EEOC found that the agency improperly denied Krewsky a reasonable accommodation when it failed to provide her with an interpreter. Krewsky was a recreation assistant at the Naval Submarine Base in Groton, Conn. In February 2009, Krewsky received an email that she was required to attend mandatory CPR training. She notified her supervisor two months prior to the training that she needed an interpreter due to her hearing impairment.
Failure to Reassign Violates Rehabilitation Act
December 14, 2011
In Petted v. Department of Veterans Affairs, EEOC Appeal No. 0120090266 (Dec. 14, 2011), the Equal Employment Opportunity Commission (EEOC) held that the Dept. of Veterans Affairs (agency) failed to make a good faith effort to accommodate Raymond Petted (complainant) when it failed to reassign him to an available vehicle operator position, for which Petted was qualified to perform the essential functions, and which carried the same grade level as Petted’s current position. As a result of its decision, the EEOC ordered the agency: to offer Petted a position as a vehicle operator, or a substantially equivalent position; for the agency to award Petted back pay, benefits, and interest; and also to conduct a supplemental investigation to determine whether he was entitled to compensatory damages.
Disparate Impact Based on Age
January 10, 2012
In the recent case Allard v. Department of Justice, Civil Case No. 10-2081 (D.D.C. 01/10/12), the U.S. District Court for the District of Columbia addressed the issue of whether federal employees over the age of 40 may sue their agencies under the Age Discrimination in Employment Act (ADEA) for policies that disparately impact them as older workers. The court held no, finding that the ADEA provision applicable to federal employees does not authorize disparate-impact claims.
Employee Wins at EEOC after Decade-Long Fight
January 13, 2012
In Adkins v. Federal Deposit Insurance Corporation, EEOC Appeal No. 0720080052 (Jan. 13, 2012), the Equal Employment Opportunity Commission (EEOC) held that an administrative judge (AJ) did not abuse his discretion in issuing a decision fully in favor of a federal employee as a sanction for the agency’s 862-day delay in completing the investigation of the employee’s complaint. The EEOC also held that the AJ’s order that the agency pay the employee’s attorney fees was proper. The result is that the employee was reinstated to his former position with approximately 10 years of back pay and benefits, with interest.
Threat of Discipline Found to be Reprisal
December 16, 2011
On December 16, 2011, the EEOC’s Office of Federal Operations (OFO) issued its decision in Malekpour v. Department of Transportation, EEOC Appeal No. 0720100016. OFO upheld the administrative judge’s finding that threatening Malekpour with discipline for refusing to mediate claims associated with his EEO complaint constituted EEO reprisal.
Compensatory Damages Ordered
February 1, 2012
In Hollingsworth v. Department of Commerce, 2012 MSPB 12 (Feb. 1, 2012), the Merit Systems Protection Board held that Kimberly Hollingsworth was entitled to compensatory damages after an arbitrator’s decision to the contrary. The arbitrator found that the agency failed to accommodate Hollingsworth’s disability and reversed her removal but denied Hollingsworth’s requests for compensatory damages and attorney fees without making any specific findings as to these claims. The Board granted Hollingsworth’s request for an administrative judge’s review of the arbitrator’s decision on compensatory damages. In her appeal of the denial of compensatory damages, Hollingsworth declined a hearing and asked for a decision on the written record.
Standard for Sexual Harassment
December 6, 2011
The EEOC recently held that a contract specialist for the National Institutes of Health was subjected to sexual harassment when her supervisor repeatedly asked her out on dates, and when she refused, he delayed her promotion and denied a step increase. Hadley v. Dept. of Health and Human Services, Appeal No. 0120113029 (12/6/11). Hadley had requested a final agency decision (FAD), rather than an EEOC hearing, but the FAD found that she failed to establish that the agency’s articulated reasons were pretextual. The Office of Federal Operations reversed, finding that the supervisor’s conduct was unwelcome.
Independence of Medical Examination
January 11, 2012
In Joan M. Young v. United States Postal Service, MSPB Docket Number AT-0752-09-0177-X-1 (1/11/12), the Merit Systems Protection Board affirmed the administrative judge’s recommended finding that the agency was not in compliance with the terms of a settlement agreement. The agreement provided that the agency would reinstate the appellant to her former position of rural carrier provided that she submit to an independent medical examination by a board-certified psychiatrist and that the psychiatrist determined that she was medically capable of returning to duty in her former position. The psychiatrist concluded that Young suffered from persistent psychiatric difficulties that would prohibit her from resuming her earlier employment. Young filed a petition for enforcement in which she alleged that the agency interfered with the independence of the medical examination.
No Bias Found in Non-Selection
December 28, 2011
In Culpepper v. Department of Agriculture, No. 10-2627 (8th Cir., December 28, 2011), a U.S. Court of Appeals struck down a federal employee’s argument that she was not selected for a job, for which she did not apply, because of discrimination. The employee argued that she did not apply for the job because doing so would have been futile. In rejecting the employee’s argument, the court clarified the standard for showing futility in a non-selection case where the aggrieved did not apply for the position in question.
Performance Standards Upheld
December 9, 2011
The U.S. Court of Appeals for the Federal Circuit recently affirmed a decision of the Merit Systems Protection Board which had in turn previously affirmed the Social Security Administration’s removal of an employee for deficient performance. In Salmon v. Social Security Administration, No. 2011-3029 (December 9, 2011), Victoria Salmon, a former service representative with the SSA, unsuccessfully argued to the Federal Circuit that the Performance Assessment and Communications System (PACS), the performance appraisal system which governed her performance plan, was unlawful for three reasons: 1) PACS failed to adhere to Congress’ requirement that performance appraisal systems be as objective as possible; 2) that her own performance standards did not meet the criteria for employee participation in their development; 3) that PACS had not been legally approved by the Office of Personnel Management.
Agency Made ‘Illusory’ Promise
October 25, 2011
The Equal Employment Opportunity Commission’s Office of Federal Operations (OFO) recently threw out a settlement agreement between the Social Security Administration (SSA) and complainant George Davidson on the grounds that the settlement was based on a promise by the agency that it knew it couldn’t possibly keep. The 2007 settlement required Davidson to withdraw his complaint, and in exchange, the agency promised to give him priority consideration for an ALJ position in the SSA Baltimore hearing office as soon as the agency determined there was a vacancy. The EEOC struck this down because the settlement was based on “a promise the agency would only be optionally required to keep.” George Davidson v. Michael J. Astrue, Commissioner, Social Security Administration, Appeal No. 0120100016 (October 25, 2011).
Settlement Can Waive USERRA Rights
November 30, 2011
In a case of first impression, Landers v. Dept. of the Air Force, 2011 MSPB 99 (November 30, 2011), the Merit Systems Protection Board has held that a federal employee may waive rights to pursue a claimed violation of the Uniform Services Employment and Reemployment Rights Act (USERRA) in a settlement agreement that contained a waiver of all employment disputes. USERRA protects employees from discrimination on account of veterans’ status. The decision by the Board was unanimous.
Supporting a Hostile Work Environment Claim
December 13, 2011
On December 13, 2011, the U.S. Court of Appeals for the D.C. Circuit issued its decision in Baird v. Pension Benefit Guarantee Corporation, No. 10-5421. Partially reversing the dismissal of Baird’s claims, the D.C. Circuit rejected the trial court’s attempt to exclude elements of her harassment claim.
Appeal Rights of Probationers
December 5, 2011
A U.S. Court of Appeals recently affirmed the MSPB’s dismissal of a probationer’s appeal which was based on pre-employment conditions for terminating his employment. Ahmed M. Younies v. MSPB, No. 2011-3031 (Fed. Cir. 12/5/11). While a probationary employee does not have the same MSPB appeal rights as non-probationers, there is an exception for removal based “in whole or part” on pre-probationary conditions. 5 CFR 315.805. Under the cited Office of Personnel Management regulation, the termination procedures require an advance written notice of the proposed adverse action, an opportunity to respond, and a written notice of the decision.
Duty to Provide Reasonable Accommodation
November 22, 2011
In Sigiefredo Sanchez v. Dept. of Energy, 2011 MSPB 95 (11/22/11), the plaintiff was removed from his position of emergency operations specialist in the transportation and emergency control center of the agency’s National Nuclear Security Administration office of secured transportation, on charges of failure to maintain a condition of employment. The position required certification under the agency’s Human Reliability Program (HRP).
Religious Discrimination and Reprisal
October 6, 2011
In Walker v. EPA, No. 0120112853 (October 6, 2011), the EEOC’s Office of Federal Operations affirmed the decision of the Environmental Protection Agency to dismiss an EPA scientist’s claims of religious discrimination and reprisal for failure to state a claim. On December 1, 2010, complainant Walker filed an EEO complaint, claiming that he was subject to harassment and reprisal on the basis of his religious beliefs (Pentecostal). The complainant was among the recipients of an email in a global email sent from the acting director to all employees in the National Center for Environmental Assessment (NCEA).
Denial of Promotion Claim
October 6, 2011
The U.S. District Court for the District of Columbia recently dismissed a discrimination claim against the Department of the Treasury based on failure to promote due to untimely EEO contact. Margaret Elaine Rand v. Secretary of the Treasury, No. 11-0462 (ESH) (D.D.C. 10/6/11).
Jurisdiction Over Reprisal Mixed Cases
November 1, 2011
On November 1, 2011, the U.S. Court of Appeals for the Federal Circuit issued its decision in Diggs v. Dept. of Housing and Urban Development, Case No. 2010-3193, dismissing the case for lack of jurisdiction. Despite argument from both parties encouraging the Federal Circuit to exercise jurisdiction over the case, the court found that Diggs’s affirmative defense of EEO reprisal constituted a claim under Title VII, converting Diggs’s case into a “mixed case” excluded from Federal Circuit jurisdiction by statute.
Army Held Liable for Sexual Harassment
September 2, 2011
The Office of Federal Operations of EEOC held that the Dept. of the Army was liable for sexual harassment when it failed to take action to remedy sexual harassment against an employee at Ft. Polk, La. Tracy L. Laventure v. Dept. of the Army, EEOC Appeal No. 0120082569 (9/2/11). In an appeal of an agency decision issued without a hearing, the Commission held that Laventure and others were subjected to sexual harassment by a female supervisor.
Greater Rights in Suspensions Sought
September 1, 2011
Office of Special Counsel is acting as amicus in several cases before the Merit Systems Protection Board involving the indefinite suspensions of federal employees pending security clearance determinations. See e.g. McGriff v. Dept of the Navy, MSPB Docket No. DC-0752-09-0816-I-1. OSC felt a need to act as amicus in these cases to ensure that due process is afforded to employees serving such indefinite suspensions.
MSPB Mitigates Penalty
September 29, 2011
In Raco v. Social Security Administration, 2011 MSPB 87 (9/29/11), the appellant’s removal had been proposed on charges of conduct unbecoming a federal employee. The charge involved 22 alleged discrepancies between the time Raco recorded on her credit hour forms and the time that she actually departed work. Of the 22, 19 involved less than 5 minutes and the remaining 3 were 7.5 minutes, 10.5 minutes and 34 minutes.
MSPB Asked to Reopen Whistleblower Case
September 1, 2011
A previous Federal Legal Corner article examined the plight of Federal Air Marshal Robert MacLean for whom the MSPB had affirmed his removal from the Transportation Security Administration for his disclosure of what the TSA had deemed to be sensitive security information. In Robert MacLean v. Department of Homeland Security, 2011 MSPB 70 (2011), the Board affirmed the removal of MacLean, who had gone to the media with the disclosure that TSA was canceling all “Remain Overnight” missions in early August 2003.
New Standards Set on Attorney Fees
August 31, 2011
The MSPB set a new precedent when it ruled that an administrative judge erred in her award of attorney fees and expenses in Driscoll v. United States Postal Service, 2011 MSPB 80 (Aug. 31, 2011), by overly reducing the amount of recoverable attorney fees in Driscoll’s case.
Whistleblowing Claim Reinstated
September 14, 2011
On September 14, 2011, the Merit Systems Protection Board (MSPB) issued its decision in King v. Dept. of the Army, 2011 MSPB 83. Reversing the administrative judge’s dismissal of the case, the MSPB reinstated King’s claim of whistleblower reprisal and remanded the case for further proceedings.
Breach of Settlement Agreement
September 2, 2011
The Merit Systems Protection Board (MSPB) recently found the Navy in breach of a settlement agreement when the Navy failed to expunge all references to the appellant’s proposed removal from her Official Personnel File (OPF). Kitt v. Department of the Navy, 2011 MSPB 82 (September 2, 2011). Kitt had entered into a “last chance settlement agreement” with the Navy in March of 2008, pursuant to which the Navy agreed “[t]o change the nature of Employee’s Standard Form [SF] 50 bearing effective date 11 August 2007 from Removal to a 30-days Suspension.”
Proof of Disability Discrimination
August 25, 2011
The Merit Systems Protection Board reversed its administrative judge in Southerland v. Department of Defense, 2011 MSPB 78 (8/25/11), finding that the AJ improperly applied a mixed-motive analysis in analyzing the disability discrimination claim.
Performance Improvement Plan Not an Adverse Action
July 22, 2011
The US Court of Appeals for the Third Circuit recently issued an unpublished opinion in which it found that imposing a performance improvement plan (PIP) on a federal employee is not an adverse employment action that alone can sustain a claim of discrimination. Reynolds v. Dept. of the Army, 3d Cir., No. 10-3600, July 22, 2011.
Performance of Essential Duties
August 17, 2011
The Merit Systems Protection Board (MSPB) recently upheld the decision of an administrative judge (AJ) affirming the removal of a GS-11 Customs and Border Patrol Officer (CBPO) for physical inability to perform, finding that the employee did not establish that the Department of Homeland Security discriminated against him on the basis of disability. Alvara v. Dept. of Homeland Sec., 2011 MSPB 75 (Aug. 17, 2011).
Disclosure Ruled Not Protected
July 28, 2011
The MSPB recently affirmed the removal of a Federal Air Marshal (FAM) with the Transportation Security Administration (TSA) on charges of disclosure of Sensitive Security Information (SSI). In Robert MacLean v. Department of Homeland Security, 2011 MSPB 70 (2011), the Board reiterated that even if an employee believes that he or she is disclosing information that will show a threat to public health or safety if the disclosure itself is prohibited, the whistleblower laws do not offer the employee protection
Sexual Harassment Complaint Reinstated
July 28, 2011
The EEOC’s Office of Federal Operations (OFO) recently reinstated a sexual harassment complaint dismissed by the Department of the Army as untimely and reinstated the second claim of reprisal based on the supervisor’s filing a civil suit of defamation against the complainant, Crystal Robinson. Edward Passman, a founding principal of Passman & Kaplan, is co-counsel in the case, Crystal Robinson, Complainant v. John H. McHugh, Secretary, Department of the Army, Agency, EEOC Appeal No. 0120111526 (July 28, 2011).
Mixed Motives in Age Discrimination Cases
July 25, 2011
In a recent decision, the EEOC’s Office of Federal Operations (OFO) found that the “mixed-motive” analysis still applies to age discrimination cases in the federal sector, even though the Supreme Court had barred private-sector employees from using the argument in Gross v. FBL Financial Services, Inc., 557 U.S. _____, 129 S. Ct. 2343 (2009).
Whistleblower Reprisal Found, Relief Ordered
July 25, 2011
On July 25, 2011, the Merit Systems Protection Board (MSPB) issued its decision in Ingram v. Dept. of the Army, 2011 MSPB 71. Reversing the administrative judge, the MSPB found the Army to have engaged in whistleblower reprisal and ordered relief.
Hatch Act Complaint Dismissed
July 12, 2011
The MSPB recently upheld the decision of its administrative law judge (ALJ) dismissing a Hatch Act complaint filed by the U.S. Office of Special Counsel (OSC) for lack of specificity in the charging document. Special Counsel v. Smith, 2011 MSPB 69 (July 12, 2011). The ALJ upheld Smith’s motion to dismiss the OSC complaint which “described the time of the alleged offenses as ‘[t]hroughout 2008 and stated that the alleged offenses involved emails and the drafting of documents directed toward the success of Barack Obama’s candidacy for President.'”
Hostile Work Environment
July 1, 2011
The EEOC recently ruled in Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011), that a gay employee may be entitled to relief under Title VII’s prohibition on sex discrimination for a claim of hostile work environment. The EEOC held that the employee’s claim could be an example of sex stereotyping.
Excessive Absences Charge
June 10, 2011
The Merit Systems Protection Board (MSPB) recently set a new precedent when it upheld an employee’s removal based on alleged excessive absences in the case Linda McCauley v. Department of the Interior, 2011 MSPB 59 (June 10, 2011). The Board definitively ruled that an agency may not consider Family Medical Leave Act (FMLA) absences as “a part of the equation when evaluating if an employee has taken excessive leave.”
Notice of Right to Appeal
May 25, 2011
The U.S. District Court for the District of Columbia held in Staropoli v. U.S. Postal Service, No. 09-1766 (BAH) (May 25, 2011), that an administrative judge’s decision did not contain proper notice regarding the time limits to file an appeal. The district court found it appropriate to apply equitable tolling, a principle of law whereby a statute of limitations does not bar the claim of an appellant who did not or could not discover the expiration of an appeals period despite due diligence. Staropoli’s administrative appeal to the EEOC was therefore not time-barred, despite having filed it nearly a year after the date the agency alleged was the filing deadline.
Information Considered Improperly
May 25, 2011
In two cases involving related issues, the Merit Systems Protection Board recently held that, in adverse action cases, the deciding officials’ consideration of information to enhance the penalties was improper where the employees were not put on notice of the consideration of new evidence. The administrative judges’ decisions upholding the removals were reversed.
Protections for Legislative Branch Employees
June 24, 2011
The U.S. District Court for the District of Columbia recently clarified the mode of analysis for employment discrimination cases involving employees of the legislative branch. Howard v. Office of the Chief Administrative Officer of the U.S. House of Representatives, D.D.C. Civil Action 09-01750 (June 24, 2011). This case raised complex questions involving the Speech and Debate Clause of the Constitution, which is designed to uphold our government’s separation of powers by protecting the legislative branch from intimidation or improper scrutiny by the other branches of government. The clause, as interpreted by the Supreme Court, forbids courts from inquiring into acts and communications that are integral to the legislative process.
June 13, 2011
The Merit Systems Protection Board (MSPB) recently held in a split decision that Danny Vaughan was permitted the opportunity to prove that his retirement from the Department of Agriculture was involuntary. In Vaughan v. Department of Agriculture, 2011 MSPB 61 (June 13, 2011), Vaughan appealed an involuntary disability retirement, claiming that he was coerced into retirement because the agency’s discriminatory conduct caused him to become disabled.
Court Review of Information Disclosure
June 3, 2011
On June 3, 2011, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Rattigan v. Department of Justice, Case No. 10-5014. The court held that disclosing negative information regarding a federal agency employee to the agency’s security office in hopes of calling that employee’s security clearance into question was not immunized from court review.
Agent Subjected to Reprisal
April 13, 2011
The Department of Homeland Security subjected a supervisory border patrol agent for the Customs and Border Patrol to reprisal when it demoted him for “unauthorized disclosure of sensitive government material” based on documents which he introduced into evidence at his EEOC hearing, EEOC has ruled (Daniel Duran v. DHS, EEOC Appeal No. 072010042 (4/13/11)).
Demotion Reversed for Lack of Evidence
May 9, 2011
The U.S. Court of Appeals for the Federal Circuit reversed a decision of the Merit Systems Protection Board, which had sustained the demotion of Roger Tudor by the Internal Revenue Service from a supervisory special agent to an investigative analyst. Roger Tudor v. Dept. of the Treasury, Case No. 2009-3237 (Fed. Cir. May. 9, 2011).
Attorneys Fee Award Imposed Against TSA
March 8, 2011
The EEOC’s Office of Federal Operations (OFO) recently upheld an administrative judge’s decision awarding a complainant $227,311.87 in attorney’s fees and costs. Myra Swanson, Complainant v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency, EEOC Appeal No. 07201o0026 (March 8, 2011).
Delay in Reasonable Accommodation
March 8, 2011
In a case involving one of its own employees, an investigator, the EEOC recently reaffirmed that an agency’s long delay in processing a complainant’s reasonable accommodation request violates the Rehabilitation Act if the agency cannot justify the delay. The Rehabilitation Act prohibits discrimination on the basis of disability in Federal employment.
Failure to Accommodate Disability
March 3, 2011
On March 3, 2011, the Equal Employment Opportunity Commission’s Office of Federal Operations (OFO) issued its decision in Bartron v. Department of Defense, EEOC Appeal No. 0720100054. Finding the agency’s efforts to reasonably accommodate Bartron deficient, OFO held the agency liable for failure to accommodate Bartron.
ADA Regulations, Part 3
March 25, 2011
The first two articles of this series on recent regulations to carry out the ADA Amendments Act of 2008 dealt with an overview of the act and the changes in the definitions of “disability,” “substantially limits,” and “major life activities.” This article will concentrate on the role of mitigating measures and other minor changes in the regulations.
ADA Regulations, Part 2
March 25, 2011
The first article on these amendments dealt with the history of the ADA Amendments Act of 2008 and the new definition of “substantially limited.” This article deals with how the amendments have changed the definitions of “disability” by changing the meaning of the terms “impairment” and “major life activity.”
ADA Regulations, Part 1
March 25, 2011
The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009. The Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking on September 23, 2009, and the final EEOC regulations were approved and published in the Federal Register on March 25, 2011. This statute has made a number of important changes and makes it easier for an individual to establish that he or she has a disability by expanding the definition of the term “disability.”
On March 1, 2011, the Supreme Court issued its decision in Staub v. Proctor Hospital, 562 U.S. ____, No. 09-400. In Staub, the court had to decide whether an employee can prove discrimination through the use of the “cat’s paw” theory. Unlike many other discrimination claims, “cat’s paw” cases do not involve discriminatory intent on the part of the ultimate decision-maker.
Importance of Impartial Investigations Stressed
February 4, 2011
In an otherwise unremarkable case reaffirming an agency’s finding of no discrimination, the EEOC’s Office of Federal Operations (OFO) has reiterated the importance of impartial EEO investigations in maintaining the integrity and impartiality of the EEO process. Ronald D. Rucker v. Department of the Treasury, Bureau of Engraving and Printing, EEOC Appeal No. 0120082225 (Feb. 4, 2011).
Class Action Bias Suit Can Proceed
January 11, 2011
The U.S. Court of Appeals for the District of Columbia recently held that aggrieved federal employees in a class action discrimination case may satisfy the statutory mandate to exhaust their administrative remedies prior to filing suit in federal district court by providing “meaningful information about specific instances of discrimination,” during informal EEO counseling. Artis v. Federal Reserve Board, 2011 WL 67594 (D.C. Cir. 01/11/11). The decision reversed a district court ruling that dismissed a class discrimination complaint for failure to exhaust administrative remedies.
Claim for Damages and Fees Gets Second Look
February 18, 2011
In Hollingsworth v. Dept. of Commerce, 2011 MSPB 26 (February 18, 2011), the Merit Systems Protection Board exercised its authority under 5 U.S.C. § 7121(d) to review an arbitrator’s decision which involved an allegation of discrimination. The Board found that the arbitrator committed violations of law by not addressing the employee’s claims for compensatory damages and for reimbursement of attorneys’ fees.
Agency Rationale Found to Be Pretext for Bias
January 13, 2011
The EEOC recently found that the U.S. Postal Service subjected a purchasing coordinator to discrimination based on race and color when it did not select her for promotion to two investigative analyst non-supervisory positions. Wiggins v. USPS, EEOC Appeal No. 0720100022 (1/13/11). The commission held that the selecting official’s rationale that Ms. Wiggins would be unable to transition to a non-supervisory position and was “overqualified” was a pretext for race (African American) and color (black) discrimination. The EEOC described the selection process as “entirely subjective” and determined that the selecting official’s claim that Wiggins was overqualified was proof that she was better qualified than the selectees.
Unionist’s Access to Agency System Upheld
February 16, 2011
In a case of first impression, the Federal Labor Relations Authority (FLRA) upheld an arbitrator’s ruling that a retired local union president was entitled to continued access to certain aspects of the agency’s electronic communications system. Social Security Administration and AFGE Local 1760, 65 FLRA No. 110 (2/16/11). AFGE Local 1760 was represented before the FLRA by Edward H. Passman, a founding principal of Passman and Kaplan, P.C. He noted that the decision can provide an important benefit to a local union official who retires from his agency but wants to be able to continue to use the agency’s electronic system in his capacity as a union representative.
Standards for Receiving Attorneys’ Fees
January 13, 2011
The U.S. Court of Appeals for the Federal Circuit recently issued a decision favorable for an employee who was seeking reimbursement of fees after prevailing in his claims regarding a Civil Service Retirement System annuity. In Killeen v. OPM, No. 2010-3111; 2011 WL 108697 (C.A.Fed., January 13, 2011) the court rejected the notion of using a mathematical formula to determine an award of attorneys’ fees for an employee who had successfully appealed the calculation of his retirement annuity.
Protection Against Retaliation Expanded
January 13, 2011
Miriam Regalado, a quality control engineer and her fiancé, Eric Thompson, a metallurgical engineer, worked for the same company; North American Stainless. In February 2003, Regalado filed a charge of sex discrimination with the Equal Employment Opportunity Commission. Three weeks later, NAS fired Thompson.
EEOC Awards $165,000 in Compensatory Damages
September 21, 2010
The EEOC recently awarded $165,000 in non-pecuniary damages for pain and suffering to an employee of the U.S. Postal Service who was subjected to a hostile work environment for over three years and then removed. Padilla v. USPS, EEOC Appeal No. 0120090062 (9/21/10). The Commission had previously found discrimination in EEOC Appeal No. 0120063761 (4/8/08) and ordered the agency to conduct a supplemental investigation on the issue of the complainant’s entitlement to compensatory damages. This resulted in an award of $15,000 in non-pecuniary damages as the agency claimed that Padilla had not experienced any long-term mental or physical illness nor any emotional harm.
Damages Award More Than Tripled
October 28, 2010
In Deirdra Brown-Fleming v. Eric Holder, Attorney General, EEOC Appeal No. 0120082667 (October 28, 2010), the EEOC’s Office of Federal Operations (OFO) more than tripled a combined damage award to Deirdra Brown-Fleming, a former U.S.
Physician Protected Under Whistleblower Law
January 3, 2011
In Parikh v. Department of Veterans Affairs, 2011 MSPB 1 (January 3, 2011), the Merit Systems Protection Board (MSPB) reversed the removal of a VA staff physician who disclosed confidential patient information out of concern for patient health and safety. The Board found that the Department of Veterans Affairs could not establish by clear and convincing evidence that it would have removed Dr.
MSPB May Review OPM Suitability Determinations
January 11, 2011
The Merit Systems Protection Board (MSPB or Board) has held, for the first time, that OPM-directed suitability determinations are subject to full MSPB review under 7 USC § 7513, which includes a review of the penalty determination. In so doing, the Board found certain Office of Personnel Management (OPM) regulations that interfere with those appeal rights to be inconsistent with the Board’s statutory authority. Passman & Kaplan Founding Principal Joseph V.
Prominent Whistleblower Reinstated
January 11, 2011
On January 11, 2011, the Merit Systems Protection Board issued its decision in Chambers v. Dept. of the Interior (2011 MSPB 7), the latest decision in a long-running case concerning the 2004 firing of the Chief of the U.S.
Genetic Information Nondiscrimination, Part 2
January 1, 2010
In addition to restrictions on use of genetic information in employment decisions as described in last week’s Federal Legal Corner, the Genetic Information Nondiscrimination Act prohibits harassment because of a person’s genetic information. Harassment can include making offensive or derogatory remarks about an applicant or an employee’s genetic information.
The same standard is used to evaluate claims of harassment as under Title VII cases in that the harassment must be severe or pervasive in order to create a hostile work environment. Retaliation is prohibited against any individual who opposes actions unlawful under GINA, files a complaint, or assists another individual in filing a complaint.
Genetic Information Nondiscrimination, Part 1
January 1, 2010
In her 2009 performance review, Pamela Fink’s employer MXenergy, told her that she was doing an “exemplary job.” In October 2009, Fink took two weeks of paid medical leave and underwent a double mastectomy. In January 2010, she had reconstructive surgery. When she returned to work, she informed her employer that due to a family history of breast cancer she had made the decision to have the double mastectomy after genetic tests showed that she carried the gene for breast cancer.
Disability Retirement and Discrimination Claims
December 21, 2010
The D.C. Circuit U.S. Court of Appeals recently issued a very important decision with significant implications for federal employees with disabilities, particularly those who intend to apply for disability retirement or currently receive disability retirement, but also might have actionable disability-discrimination claims.
Denial of FMLA Leave
November 29, 2010
The EEOC’s Office of Federal Operations (OFO) recently issued a decision which would apparently leave federal employees who allege discriminatory reasons for the denial of requested leave under the Family and Medical Leave Act (FMLA) without legal recourse. However, it is not clear whether the OFO properly considered the matter. In Derrick M.
EEOC Increases Emotional Distress Award
November 17, 2010
The EEOC’s Office of Federal Operations (OFO) recently increased an emotional distress award by $100,000 to $115,000, in Billy L. Chastain v. Ray Mabus, Secretary, Department of the Navy, EEOC Appeal No. 0120102409 (November 17, 2010). Chastain was a probationary employee at a Marine Corps facility who provided a statement supporting a co-worker’s sexual harassment complaint. His manager fired him, and Chastain filed an EEO complaint.
Email Abuse Creates Hostile Environment
September 7, 2010
The Office of Federal Operations (OFO) of the Equal Employment Opportunity Commission recently held that a supervisor’s improper use of a subordinate’s email account alone is enough to support a claim of a hostile work environment. Tittle v. Department of Justice, EEOC Appeal No.
Agency Misinformation on Deadlines
September 21, 2010
On September 21, 2010, the Equal Employment Opportunity Commission’s Office of Federal Operations (“OFO”) issued its decision in Wilson v. Department of Veterans Affairs, EEOC Appeal No. 0120102211.
Union Election without Bargaining Rights
November 12, 2010
In Department of Homeland Security and AFGE and NTEU, 65 FLRA No. 53, 65 FLRA 242 (November 12, 2010), the Federal Labor Relations Authority (FLRA), in a 2-1 decision, cleared the way for TSA baggage screeners to hold an election to decide if they wish to be represented by a union, and if they do, to choose between the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU). This case is precedent-setting because TSA employees do not enjoy “collective bargaining” rights even if they chose to be represented by a union.
Career Intern Program Violates Veterans’ Preference
November 2, 2010
The MSPB held that the use of the Federal Career Intern Program (FCIP) to fill excepted service positions violated the Veterans Preference Act. David Dean v. OPM and Larry Evans v. Dept. of Veterans Affairs (DVA), 2010 MSPB 213 (11/2/10).
Rare Oral Argument Before MSPB
October 18, 2010
On October 18, 2010, Joseph V. Kaplan, Founding Principal of Passman and Kaplan, P.C., presented an oral argument before the three members of the Merit Systems Protection Board for the appellant in the matter of Holley C. Barnes v. Office of Personnel Management, MSPB Docket No. DC-0731-09-0260-R-1.
Single Remark Can Justify Bias Claim
August 20, 2010
The EEOC recently reconfirmed that in certain circumstances a single, isolated remark forms the basis for an actionable harassment complaint. In the decision, Waleed M. Sharbini, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency, 110 LRP 52199 (August 20, 2010), the EEOC (the ‘Commission”) reversed the U.S. Air Force’s dismissal of Sharbini’s EEO complaint ‘for failure to state a claim,” and remanded to the agency for further processing.
Work Environment Found Hostile
September 17, 2010
On September 17, 2010, the Equal Employment Opportunity Commission’s Office of Federal Operations (“OFO”) issued its decision in Mercedes v. Department of Justice, EEOC Appeal No. 0120102127. Reversing a final agency decision, OFO found the agency had subjected Mercedes to a hostile work environment and remanded the case for proceedings on damages.
Agency Fails to Justify Nonselection
August 6, 2010
On August 6, 2010, the Equal Employment Opportunity Commission’s Office of Federal Operations (“OFO”) issued its decision in Chhe v. Department of Housing and Urban Development, EEOC Appeal No. 0720090008.
Cancer as a Disability under ADA
August 31, 2010
A federal district court recently held that cancer, even when in remission, can constitute a disability under the 2009 amendments to the Americans with Disabilities Act (ADA). Hoffman v. Carefirst of Fort Wayne Inc., No. 1:09-CV-251 (N.D. Ind. August 31, 2010). Stephen Hoffman worked as a service technician for a health care supply company. Hoffman suffered from renal cancer which, following treatment went into remission in 2008. He worked without any health complaints, and without any requests for reasonable accommodation through all of 2008.
Hearing Ordered in Involuntary Resignation Case
September 23, 2010
The MSPB recently reversed an initial decision, found that it had jurisdiction over an appeal by an investigative analyst who resigned after being informed that he would be terminated, and remanded the case for a hearing. Gibeault v. Dept.
Gender Bias Claim Can Proceed
July 30, 2010
In the recent decision, Juanita D. McCullum, Complainant, v. Robert C. Tapella, Public Printer, U.S. Government Printing Office, Agency, EEOC Appeal No. 0120090889 (July 30, 2010), the EEOC reversed the Government Printing Office’s dismissal of Ms. McCullum’s EEO complaint “for failure to state a claim,” and remanded to the agency for further processing.
September 8, 2010
In David M. Pecard v. Department of Agriculture, 2010 MSPB 185, (September 8, 2010), the MSPB (Board) remanded the case to an administrative judge (AJ) and ordered that the parties present further evidence in order that the AJ could properly adjudicate Pecard’s Veterans Employment Opportunity Act (VEOA) appeal.
July 9, 2010
In Suheda Tokur v. United States Postal Service, 2010 WL 2934898, EEOC Appeal No. 0120090575 (July 9, 2010), the EEOC found that the United States Postal Service did not subject Suheda Tokur to a hostile work environment when she was: 1.) initially told that she could not wear her hijab, a head covering traditionally worn by Muslim women, but then was allowed to wear it; 2.) was told that her hijab was too loose to be safe; 3.) had garbage and unknown liquids put in her hot water pot; 4.) had her hot water pot confiscated; 5.) and when co-workers behaved in an intimidating fashion toward her.
August 25, 2010
On August 25, the Merit Systems Protection Board issued its decision in Edwards v. U.S. Postal Service, 2010 MSPB 176. Finding the penalty imposed excessively, the Board reduced Edwards’ demotion to a 60-day suspension.
June 30, 2010
The EEOC found that a complainant was subject to retaliation for her prior EEO activity when she was temporarily reassigned one month after a federal district court granted summary judgment to the agency on her previous EEO case. Fuentes v. U.S. Postal Service, Appeal No. 0120091994 (6/30/10). The complainant alleged that she was subjected to reprisal when she was reassigned for the second time out of her position as manager of injury compensation and stripped of her managerial duties. Management asserted that the reassignment was due to a hostile work environment complaint being filed against her and claimed that she couldn’t establish a prima facie case of discrimination because her EEO activity was three years before the reassignment at issue.
In Annette Davis v. Department of the Interior, 2010 MSPB 161 (August 5, 2010), the MSPB (“Board”) found that the administrative judge (“AJ”) used an incorrect standard in dismissing Davis’s affirmative defenses of race and sex discrimination in her appeal of her removal from the Department of the Interior. The Board also found that the AJ erred when he did not notify Davis of the requisite burden needed to obtain a hearing on her discrimination claims.
A federal district court in Colorado recently held that gender dysphoria falls within the realm of conditions specifically excluded from protection against disability-based discrimination under the Rehabilitation Act. Michaels v. Akal Security and the U.S.
Suspension for Hatch Act Violation
On the heels of its recent decision in Special Counsel v. Pattie Ware, 114 MSPR 128 (June 9, 2010), in which the MSPB ordered Ware’s removal from her position with the Department of the Treasury’s Bureau of Engraving and Printing for violations of the Hatch Act, the Board issued its decision in Special Counsel v. Phillip Mark, 210 MSPB 159 (August 2, 2010), overruling the administrative judge’s (AJ) penalty of removal, and instead imposing a penalty of a 120-day suspension for the respondent, Mark.
The EEOC recently approved a default judgment against the Department of Interior for failure to comply with its case processing regulations. Talahongva-Adams v. Department of the Interior, Appeal No.
In the recent decision, Gonzales v. Department of Homeland Security, 2010 MSPB 132 (July 12, 2010), the MSPB reversed an administrative judge’s decision affirming an indefinite suspension. At the conclusion of a long, technical, and scholarly review of the Board precedent concerning indefinite suspensions, the Board concluded, in short, that:
“[T]he mere existence of the agency’s open investigation into allegations regarding the appellant’s conduct is not ’cause’ for taking an action under subchapter II of chapter 75.
On May 11, 2010, the Equal Employment Opportunity Commission’s Office of Federal Operations in Carranza v. Dept. of the Army, EEOC Appeal No.
The EEOC recently upheld an administrative judge’s drawing of adverse inferences against the agency due to its failure to produce work assignment logs and its records retention policy. Butler v. Department of Homeland Security, EEOC Appeal No.
Telework Not a Reasonable Accommodation
The EEOC recently held in Yeargins v. Department of Housing and Urban Development, EEOC DOC 0320100021 (May 14, 2010), that agencies need not provide telework as a reasonable accommodation to disabled employees if the employees are poor performers.
In the recent decision, Special Counsel, Petitioner, v. Pattie Ware, Respondent, Docket No. CB-1216-09-0025-T-1 (June 9, 2010), the MSPB overruled an administrative judge’s (AJ’s) proposed penalty of a 60-day suspension for several Hatch Act violations and instead ordered the respondent’s removal from her position.
On May 7, 2010, the EEOC Office of Federal Operations (“OFO”) issued its decision in White v. Department of Defense, EEOC Appeal No. 0120080191. OFO modified the agency’s final order accepting the AJ’s decision and remanded the matter to the agency so that the agency could provide the complainant, Theresa White, a reasonable accommodation of her religious beliefs, conduct a supplemental investigation on whether White deserved compensatory damages, provide at least eight hours of training on Title VII to the management officials responsible for denying White the accommodation, and consider taking disciplinary action against the same management officials.
On April 12, 2010, the EEOC Office of Federal Operations issued its decision in Ramos v. Department of Defense, EEOC Appeal No. 0720090055. OFO affirmed the Administrative Judge’s reinstatement of Ramos, finding that the agency had engaged in disability discrimination by firing Ramos for taking Family and Medical Leave Act leave.
In Lewis v. Dept. of Veterans Affairs, 2010 MSPB 98 (May 28, 2010), the Merit Systems Protection Board broadened the definition of “similarly situated” employee when reviewing disparate penalties meted out to different employees. The result is that agencies now have a higher burden of proof in sustaining a penalty where a lesser penalty has been given to some other employee for similar offenses.
The MSPB agreed to mitigate the penalty of removal to a 14-day suspension in its first major decision on mitigation since the appointment of the two new Board members. Woebcke v. Department of Homeland Security, 2010 MSPB 85 (5/6/10).
In Hugh Victor Conrad v. Eric Holder, J., Attorney General, Department of Justice, Appeal No. 0120090690 (April 9, 2010), the EEOC Office of Federal Operations increased the agency’s award of $40,000 in compensatory damages to $100,000. The complainant, a former assistant U.S. attorney had been demoted from his supervisory position in February 1999, three weeks after he wrote a letter to management exposing alleged racial harassment in the U.S. Attorney’s Office for the Northern District of Alabama office in Huntsville, Ala. Conrad also endured six other events of reprisal over the span of 19 months, and the repercussions continued into 2002. Conrad filed several EEO complaints which the agency consolidated.
In Pardo-Kronemann v. Donovan, No. 08-5155, 2010 WL 1508072 (D.C. Cir. Apr. 16, 2010), the U.S. Court of Appeals for the D.C. Circuit in a split decision reversed a lower court’s decision and found that the question of whether an attorney’s reassignment to a non-legal position was a retaliatory adverse action should have gone before a jury. Jose Pardo-Kronemann, an attorney who worked for the Department of Housing and Urban Development (HUD), brought suit alleging that HUD had unlawfully retaliated against him for his participation in prior EEO activity when it transferred him to a non-legal position and declared him AWOL when he failed to report to that new position.
In a recent EEOC decision, the Commission held that the time limit for filing a formal EEO complaint can be extended if the employee produces sufficient evidence to establish that he was unable to meet the time limit because of mental or physical incapacitation. See Butler v. United States Postal Service, EEOC Appeal No.
In Special Counsel v. DeWitt, 2010 MSPB 59 (March 30, 2010), the Merit Systems Protection Board (MSPB or Board) mitigated the penalty of a federal employee whose removal had been sought for a Hatch Act violation. The Hatch Act, 5 USC § 7323(a)(3), prohibits a federal employee from running for office as a partisan candidate. The Special Counsel initially sought DeWitt’s removal in a hearing before the MSPB.
In Champion v. United States Postal Service, EEOC Appeal No. 0720090037 (March 10, 2010), the Equal Employment Opportunity Commission upheld an administrative judge’s award of $125,000 for nonpecuniary damages (emotional distress damages). The Commission found that the administrative judge appropriately determined the amount of nonpecuniary damages to remedy the harm the complainant suffered for over two years caused by the discriminatory hostile work environment, including psychiatric disorders.
On April 21, 2010, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Chambers v. Dept. of the Interior (____ F.3d____, Docket No. 2009-3120), the latest decision in a long-running case concerning the 2004 firing of the Chief of the U.S. Park Police, one of the most prominent of the current whistleblowing cases involving federal employees.
Discrimination due to Age-Based Comments
The EEOC recently upheld a finding of unlawful employment discrimination where an agency removed an employee’s supervisory duties, and the employee’s own supervisor made age-based comments. Cook v. Department of Labor, EEOC Appeal No. 0720080045 (February 22, 2010).
In 2005, Tony Ball, a Secret Service agent who was married to their co-worker, Ramona Johnson, filed an EEO complaint, alleging that he was denied a promotion because of his race. He was also part of a larger class action against the Department of Homeland Security. Ball was subsequently offered another promotion, which required him to be transferred to Miami. Over the next several months, the agency assured Ball and Johnson that Johnson would also be transferred to Miami, in accordance with standard agency practice for married employees. Ball transferred to Miami, and two months later, in June, requested an EEOC hearing for his complaint. In July, the agency notified Johnson that it was denying her transfer to Miami.
The U.S. Court of Appeals for the Federal Circuit recently ruled that a surviving spouse of a deceased federal employee was not entitled to a survivor annuity because she had voluntarily signed the form waiving her right to an annuity. Braza v. OPM, No. 2008-3174 (3/16/10) (en banc). The court affirmed the Merit Systems Protection Board that the former spouse had signed an OPM form (SF 2801-2) consenting to her late husband receiving an unreduced annuity during his lifetime without providing for a survivor annuity for her. Although she hadn’t seen the form before, did not ask for or receive any explanation as to what she was signing, and did not read the form before completing and signing it at a local bank before a notary public, OPM denied her claim finding that she had waived her right to a survivor annuity by completing and signing the form, and the MSPB affirmed OPM’s decision.
In Smart v. Department of Justice, 2010 MSPB 49 (March 9, 2010), the appellant received a career appointment in the competitive service as a Deputy U.S. Marshal on June 9, 1991, subject to completion of a one-year probationary period. Before the year was up, the agency terminated him, alleging unacceptable performance and conduct. The termination letter advised Mr. Smart that he had a “limited right to appeal to the Board as a probationary employee” and also advised him that he had the right to file an EEO complaint.
On March 4, 2010, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Roche v. Merit Systems Protection Board (No. 2009-3111). Affirming the Merit Systems Protection Board (MSPB) decision below, the Federal Circuit found no MSPB jurisdiction over Roche’s removal by the Federal Aviation Administration (FAA).
In a recent decision, the EEOC ruled that the Federal Aviation Administration improperly dismissed a manager’s claims of a hostile work environment and discriminatory compensation under the Lilly Ledbetter Act. Raulerson v. Department of Transportation, No. 0120093521 (EEOC 12/07/09).
The Merit Systems Protection Board (MSPB,” or “the Board”) recently clarified the grounds on which an employee in the Federal Career Intern Program (FCIP) can claim Board jurisdiction over the appeal of his separation at the expiration of his internship. Scull v. Department of Homeland Security, Docket No. SF-0752-09-0565-I-1 (February 19, 2010).
The U.S. Court of Appeals in the District of Columbia recently reversed a district court’s granting of summary judgment to the agency in Miller v. Hersman, No. 08-5494 (DC Cir. 2/5/10). The district court had determined that the employee failed to initiate EEO contact within 45 days after learning of his non-selection for a budget officer position which was awarded to a female candidate at the National Transportation Safety Board. The second count alleged discriminatory non-selection for one of two special assistant vacancies which was initially filled on a temporary basis.
In Hosozawa v. Department of Veterans Affairs, 2010 MSPB 10 (January 12, 2010), the MSPB reversed an administrative judge’s (AJ’s) initial decision dismissing Hosozawa’s complaint and found that she had presented a non-frivolous allegation that the Department of Veterans Affairs had forced her resignation.
In OFO Appeal No. 0120073300, decided on December 18, 2009, the Equal Employment Opportunity Commission’s Office of Federal Operations (OFO) overturned an administrative judge’s decision finding that a federal employee had not presented sufficient evidence of discrimination and dismissing the case without a hearing. In overturning the decision below, the OFO found that the employee had presented direct evidence of discrimination.
The EEOC Office of Federal Operations (OFO), recently upheld an administrative judge’s (AJ’s) finding that the Department of Agriculture Farm Services Agency (FSA) discriminated against complainant Deborah Lombardino when it did not select her for the position of civil rights director, small business utilization staff, a temporary, one-year position. Lombardino v. USDA, Appeal No. 07200070007, (November 27, 2009). The OFO also affirmed the AJ’s compensatory damage award of $12,000 and the AJ’s attorney’s fee award of $133,247.95.
On January 15, 2010, the Merit Systems Protection Board issued its latest decision in the long-running case of Doe v. Department of Justice, 2010 M.S.P.B. 16. On remand from the U.S. Court of Appeals for the Federal Circuit (565 F.3d 1375 (2009)), a decision previously analyzed in the Federal Legal Corner, available here, the Board provided a detailed analysis of its nexus standard in the context of proposing adverse actions against employees for their off-duty conduct.
In Yant v. United States, No. 08-CV-077 (Fed. Cir. December 14, 2009), the U.S. Court of Appeals for the Federal Circuit affirmed the grant of summary judgment for the employer by holding that an employee will not prevail on an Equal Pay Act claim without showing that the pay differential between men and women is currently or historically based on sex discrimination. The Equal Pay Act is designed to eliminate pay differentials based on sex. The law is unsettled on whether an employee must prove discriminatory intent in order to satisfy his or her initial burden of proof under the Equal Pay Act.
The EEOC held that a complainant was unlawfully denied reasonable accommodation while recovering from a stroke, forcing him to take disability retirement and endure serious financial hardship. Blount v. Dept. of Homeland Security, Appeal No. 0720070010 (10/21/09). As a result, the EEOC awarded $200,000 in nonpecuniary (compensatory) damages and reinstatement with reasonable accommodation, not front pay as recommended by the administrative judge.
Breach of Settlement Agreement
In a recent decision, the EEOC held that the Transportation Security Administration breached a settlement agreement with a former security officer when it did not give him the same opportunity to pass a medical exam that it gave other applicants. Brooks v. Department of Homeland Security, EEOC Appeal No. 0120061417 (9/29/09).
In an unpublished decision, the U.S. Court of Appeals for the 11th Circuit held that an employee who sees a poster in the workplace providing information on how to file an EEO complaint is on constructive notice of the deadline for filing such a complaint. Gaillard v. Shinseki, No. 09-11949, 2009 WL 3287524 (11th Cir. 10/14/09). Henry Gaillard worked for the VA until his termination in March 2004. He contacted an EEO counselor on July 12, 2005, to file a complaint of discrimination related to his termination.
On September 22, 2009, the Equal Employment Opportunity Commission’s Office of Federal Operations issued its decision in James v. Dept. of Agriculture, EEOC Appeal No.0120073831. The Commission ordered EEO training for the responsible management official (RMO) in that case and recommended that the agency consider possible disciplinary action against the RMO, for the RMO’s witness intimidation activities, even though the Commission did not ultimately find discrimination.
In a recent United States District Court decision, the court denied the Government Printing Office’s motion to dismiss and waived an employee’s untimely EEO contact and filing of a formal EEO complaint. Hairston v. Tapella, Civil Action No. 08-1531 (DDC Oct. 21, 2009). The employee worked for five years in the press division of the GPO production department. On August 24, 2006, the employee applied for a promotion, and he was notified in September 2006 that he was selected for the position.
In Crumpler v. Department of Defense, 2009 MSPB 224 (November 2, 2009), the Merit Systems Protection Board (Board) found that the rule in Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), limiting the scope of Board review of a removal based on the revocation of a security clearance, also applies to a removal from a “non-critical sensitive” position based on the employee’s ineligibility to access classified information.
The EEOC recently ruled that the State Department discriminated against an applicant for a junior office position with the Foreign Service because he was regarded as mentally disabled. Bitsas v. State Department, EEOC Appeal No. 0120051657 (9/30/09). In its final agency decision, the State Department had concluded that only 34 percent of posts worldwide would be able to provide adequate medical care for the complainant if he were to suffer a relapse of his psychiatric conditions.
In Rutherford v. U.S. Postal Service, 2009 MSPB 214 (October 28, 2009), the Merit Systems Protection Board reversed the decision of its administrative judge who had affirmed the placement of the employee on enforced leave due to medical restrictions. The employee had claimed that she was placed on enforced leave when light duty, which had previously been given to her, was no longer available. The Board reiterated that termination of a light-duty assignment is not, per se, an adverse action that is appealable to the Board.
In a recent decision, the Merit System Protection Board (MSPB/Board) held that the Whistleblower Protection Act (WPA) protects disclosures of concerns with screening procedure changes implemented by the Transportation Security Administration (TSA/agency). See Miller v. U.S.
On July 24, 2009, the Equal Employment Opportunity Commission’s Office of Federal Operations issued a decision in Alford v. Department of the Navy, EEOC Appeal No. 0120080747, holding that Alford’s claims of disability discrimination could not prevail over various legal requirements mandating seat belt use.
The United States Court of Appeals for the Fifth Circuit recently issued a decision that confirmed the notion that employees who file complaints without attorneys should be given the benefit of the doubt in their pleadings, to avoid improper dismissal of their claims. See Smith v. Department of Veterans Affairs, 2009 WL 2407192 (C.A.5 (La.)) (August 6, 2009).
A recent EEOC decision helps to better define the amount of compensatory damages appropriate when an employee who has been victimized by discrimination or harassment suffers certain kinds of harm as a result.
The Merit Systems Protection Board recently clarified the threshold for establishing Board jurisdiction over a discrimination appeal arising under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
The FAA committed discrimination when it refused to grant a temporarily disabled air traffic control specialist a three-month extension of her medical leave in late 2007, the EEOC has ruled. Edwards v. Peters, EEOC No.
The U.S. Court of Appeals for the Federal Circuit reversed the MSPB and found that a pro se appellant who was suffering from a mental impairment was entitled to have it considered as a mitigating factor in her removal.
In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit held that the Americans with Disabilities Amendments Act (ADAAA) does not apply retroactively.
On July 23, 2009, the U.S. Court of Appeals for the 9th Circuit issued its decision in Kraus v. Presidio Trust Facilities Division/Residential Management Branch (No. 07-17177). Reversing summary judgment by the district court, the 9th Circuit found that Kraus had timely initiated her EEO complaint within the 45-day deadline, even though the person she contacted did not have the formal title of EEO “Counselor.”
The U.S. Court of Appeals for the D.C. Circuit has revived the class action race-discrimination claims by black officers of the U.S. Capitol Police under the Congressional Accountability Act. Blackmon-Malloy v. U.S. Capitol Police Bd., 2009 WL 2341544 (DC Cir. July 31, 2009).
The MSPB held that an employee could not be required to complete a new NSPS probationary period in Dodson v. Navy, 2009 MSPB 113 (6/17/09). The appellant had been terminated because of her work performance and conduct during her NSPS probationary period. Without holding a hearing, the AJ dismissed the case for lack of jurisdiction as probationary employees have no appeal rights.
The MSPB held that an employee could not be required to complete a new NSPS probationary period in Dodson v. Navy, 2009 MSPB 113 (6/17/09). The appellant had been terminated because of her work performance and conduct during her NSPS probationary period. Without holding a hearing, the AJ dismissed the case for lack of jurisdiction as probationary employees have no appeal rights.
In an unusual case, the U.S. Court of Appeals for the Federal Circuit in a split decision reversed the MSPB and held that an FBI agent should not be fired for secretly taping his sexual encounters with three women, including two coworkers. Doe v. Dept. of Justice, No. 2008-3139 (Fed. Cir. 5/11/09). The majority opinion found that one of the tapings with a coworker was by mutual consent while the other two tapings were done secretly.
The U.S. Court of Appeals for the Federal Circuit recently overruled the U.S. Court of Federal Claims in holding that part-time employees are entitled to Sunday premium pay under 5 U.S.C. § 5546(a) and 5 C.F.R. § 550.171(a). Fathauer v. U.S., No. 2008-5112 (May 26, 2009).
In Coffee v. U.S. Department of Defense, EEOC Appeal No. 0720090012 (March 13, 2009), the Equal Employment Opportunity Commission reversed the agency’s final order and upheld an administrative judge’s award of $75,000 in nonpecuniary damages for emotional distress suffered because of race-based harassment by a co-worker.
In Dahlman v. Consumer Product Safety Commission, EEOC Appeal No. 0720090004 (March 18, 2009) the Equal Employment Opportunity Commission ordered the agency to comply with the terms of a settlement agreement in which it agreed to pay attorney fees and costs to resolve a claim under the Equal Pay Act of 1963 (EPA), 29 U.S.C.
The Equal Employment Opportunity Commission’s Office of Federal Operations upheld an administrative judge’s (AJ) finding that the Department of Navy discriminated against an employee on the basis of race when it failed to select her for a position. Parker v. Navy, EEOC Appeal No. 0720080062 (2/26/09). Not only was the employee observably better qualified for the position, but the promotion process had many irregularities that supported the finding.
On January 23, 2009, the Merit Systems Protection Board issued its decision in Cunningham v. Office of Personnel Management, 2009 M.S.P.B. 5. The Board found that OPM had breached its settlement agreement by disclosing adverse information regarding the appellant to a background investigator for a new employer in violation of a clean record provision in a settlement agreement with OPM.
In a controversial split decision, a U.S. Court of Appeals held that a plaintiff could not challenge his failure to receive a coveted Presidential Rank Award that includes a monetary bonus because no adverse employment actions occurred. Douglas v. Donovan, (D.C. Cir. No. 07-5339, 3/17/09). The DC Circuit majority found that the plaintiff had no viable claim of race discrimination under the Civil Rights Act as any harm was speculative since the President makes the final decision.
In its recent decision in Katz v. Department of State, Appeal Nos. 0720060024 and 0720060025 (3/26/09), the Equal Employment Opportunity Commission issued a number of important holdings concerning disability discrimination. In this case, the State Department denied Dara Katz the medical clearance she needed to qualify for an overseas assignment with the Foreign Service, and then denied her request for a waiver of the clearance.
Three recent federal court decisions foreshadow the likely forthcoming changes to a string of cases upholding the ban of hearing aids during annual physical testing for the Court Security Officers (CSO) of the U.S. Marshals Service (USMS). As background, it should be understood that this ban was first implemented in 2002 by the USMS through an annual physical test for the CSO position, which includes a hearing test.
The Equal Employment Opportunity Commission recently issued several important decisions concerning sanctions. Most recently, in Waller v. U.S. Department of Transportation, EEOC Appeal No. 0120030069 (February 26, 2009), the Commission denied the agency’s request for reconsideration of its prior decision in that case, EEOC Appeal No. 0720030069 (May 25, 2007), affirming the administrative judge’s (AJ’s) issuance of sanctions, including monetary sanctions, against the agency.
In Pedeleose v. Dept. of Defense and OPM, 2009 MSPB 16 (February 12, 2009), (Pedeleose II), the Merit Systems Protection Board reversed it holding in Pedeleose v. Dept. of Defense, 107 MSPR 191 (2007), (Pedeleose I), which overturned the appellant’s 30-day suspension for failure to cooperate in an agency investigation, insubordination and failure to follow instructions. In Pedeleose I, the Board expanded the exception to the “obey now, grieve later” rule to increase the situations in which employees may refuse to comply with supervisory instructions without fear of discipline. In Pedeleose II, the Board now holds that the expansion of the rule was unwarranted. The rule was rolled back, and Pedeleose’s suspension was affirmed.
On January 26, 2009, a unanimous U.S. Supreme Court held that an employee may state a viable retaliation claim when she answers questions from her employer about harassment in the workplace. The claim may still be valid even if the employee did not ever file a harassment charge or initiate the internal investigation that led to questioning her.
The EEOC recently awarded both compensatory and pecuniary damages based on a hostile work environment on the basis of sex (female) where the complainant was falsely accused of being sexually involved with a manager and was referred to by an offensive nickname. Hensley v. TVA, EEOC Appeal No.
Letter to Civil Rights Office Timely Contact
On December 1, 2008, a U.S. Court of Appeals held that a federal employee’s letters to the director of her agency’s civil rights office complaining of discrimination satisfied the rule requiring federal workers to contact an internal EEO counselor within 45 days of alleged discrimination. Culpepper v. Schafer, 8th Cir., No., 07-3824.
In Gingery v. U.S. Department of Defense, Opinion No. 2007-3292 (Fed Cir. 2008), the United States Court of Appeals for the Federal Circuit reversed a Merit Systems Protection Board (MSPB) decision ruling that the Department of Defense did not violate the petitioner’s rights under the Veterans Employment Opportunities Act (VEOA) of 1998.
On January 8, 2009, in Chambers v. Department of the Interior, 2009 MSPB 3, the Merit Systems Protection Board (MSPB) sustained a removal after reviewing a case remanded by the U.S. Court of Appeals for the Federal Circuit and failing to reach an agreement concerning whether the appellant’s disclosures to the Washington Post were “protected” under the Whistleblower Protection Act (WPA).
On January 27, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (Public Law 111-2). The new law reversed the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co., 550 U.S. 618 (2007), restoring major protection to employees suffering from pay discrimination.
In Swanson v. General Services Administration, 2008 MSPB 246 (Dec. 4, 2008), the Board overturned an administrative judge’s decision which had held that Mr. Swanson was not a protected whistleblower. This issue turned on whether Mr. Swanson has presented evidence of a reasonable belief that the agency official on whom he “blew the whistle” engaged in gross mismanagement. The Board held that he did.
On November 7, 2008, the Office of Personnel Management (OPM) published a final rule eliminating the 52-week time-in-grade restriction for promotions in the competitive service. The rule will become effective on March 9, 2009.
This is the second of two articles on suggested changes to the EEOC federal sector regulations and procedures. Given the upcoming change in administrations, this article will recommend specific changes to improve the practice and procedure in handling federal employees’ complaints.
Damages Award for Sexual Harassment
In Holmes v. Department of Veterans Affairs, EEOC Appeal No. 0120082790 (September 29, 2008), the EEOC’s Office of Federal Operations (OFO) awarded the complainant $65,000 for non-pecuniary damages where there was a finding of unlawful harassment against the Department of Veterans Affairs. The complainant worked as a part-time housekeeping aide at the agency’s medical center facility in Detroit, Michigan. While the complainant filed an EEO complaint alleging that he was subjected to sexual harassment by his first-level supervisor, the agency issued a final decision finding no discrimination.
In Harris v. Office of Personnel Management, 2008 MSPB 240, Docket No. CH-844E-08-0308-I-1 (November 13, 2008), the Board affirmed OPM’s decision denying an application for disability retirement benefits because the applicant failed to establish that she was disabled from useful and efficient service in her position.
Ms. Markey filed, Ms. Markey filed a petition for enforcement with the MSPB. In her petition, Ms. Markey requested that the terms of the settlement remain in force, but that the agency either be “sanctioned” for the disclosure or that her IRA appeal be reinstated. For its part, the agency denied that the disclosure was a breach of the settlement and argued that the terms of the settlement were ambiguous or that, if there was a breach, the breach was not “material.”
The U.S. Court of Appeals for the Federal Circuit recently decided that an employee of the United States Agency for International Development (USAID) had legal protection when he disclosed possible on-duty intoxication of his coworkers to an agency official. Drake v. AID, No. 2008-3048 (10/7/08). The case was remanded to the Merit Systems Protection Board for further proceedings.
The U.S. Court of Appeals for the Federal Circuit recently reversed an arbitrator’s decision which had reduced the penalty of removal to a suspension of “time served.” Greenstreet v. SSA, No. 2007-3312 (9/24/08). The arbitrator issued his written decision 342 days after the grievant’s termination and ordered him reinstated without back pay. In his petition for review, the employee asserted that the “effect of the arbitrator’s decision was a 342-day ‘time served’ suspension, the length of which was arbitrarily determined by the time that the arbitrator took to issue a decision.”
On September 2, 2008, the U.S. Court of Appeals for the 8th Circuit issued its decision in Jenkins v. Winter, Secretary of the Navy, Case No. 07-2049. The 8th Circuit reversed the trial court’s grant of summary judgment and remanded the case for trial.
On August 2, 2007, a group of more than 100 police officers for the Federal Bureau of Investigation (FBI) filed a class action complaint in the U.S. Court of Federal Claims alleging that the FBI has not complied with a 2002 statute that would have given them the same pay and benefits as members of the Uniformed Division of the United States Secret Service. If successful in their suit, the officers will receive back and future pay and benefits.
On September 25, 2008, The Americans with Disabilities Act (ADA-AA) was signed into law by President Bush. The law’s effective date is January 1, 2009. The ADA-AA was created in response to several United States Supreme Court cases where the court’s interpretation of the ADA limited the protection that the ADA was supposed to guarantee disabled Americans. The Supreme Court’s rigid construction of the terms “disability” and “substantially limits a major life activity” significantly restricted the reliance on the ADA by disabled Americans in providing equal employment opportunities.
The U.S. District Court for the District of Columbia recently found that the Library of Congress violated Title VII of the Civil Rights Act when it decided not to hire a qualified applicant who had disclosed to the selecting official that she was a transsexual and intended to transition from a male to a female. Schroer v. Librarian of Congress, Civil Action No. 05-1090 (September 19, 2008).
In Caldwell v. Johnson, Environmental Protection Agency, No. 05-1706 (Aug. 15, 2008), the United States Court of Appeals for Fourth Circuit held that Supreme Court’s ruling in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006), which lowered the burden for private-sector plaintiffs alleging retaliation, also applies to federal employees. Under White, an employee need not suffer an “adverse action” to establish a prima facie case of retaliation, but instead must show only that a reasonable employee would have found the challenged action “materially adverse,” meaning that “it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In Aldridge v. Dept. of Agriculture, MSPB Doc. No. DC-0752-07-0821-I-1 (Sept. 10, 2008), the agency proposed to remove Ms. Aldridge on various allegations of misconduct. Prior to the issuance of a decision on the proposed termination, Ms. Aldridge retired under a voluntary early retirement program. Subsequently, Ms. Aldridge filed an EEO complaint alleging that her retirement was really involuntary as a result of the agency’s failure to accommodate her disabilities. In responding to the MSPB judge’s order to present evidence showing her resignation was involuntary, Ms. Aldridge provided a sworn declaration that her supervisors and the Human Resources official told her that if she did not resign, and was instead fired, she would lose her retirement benefits. Although Ms. Aldridge’s supervisor said that she had written the decision letter terminating Ms. Aldridge, the supervisor refused to allow Ms. Aldridge to see the letter before requiring her to make the decision to retire or not. In order to preserve her retirement benefits after more than 28 years of government employment, which benefits Ms. Aldridge was told she would lose if terminated, Ms. Aldridge submitted her resignation.
The Office of Federal Operations (OFO), EEOC, reversed its administrative judge (AJ) on appeal and held that she had improperly granted summary judgment to the agency in Price v. Dept. of Transportation (Federal Aviation Administration), Appeal No. 0120070693 (8/29/08). The case arose as a result of the FAA Chief Counsel’s determination to promote attorneys within the agency. Regional, Center and Assistant Chief Counsels were invited to submit one attorney for promotion. In October 2004, the Chief Counsel announced the promotion of 13 attorneys to the Senior Attorney position. The Southwest Regional Counsel recommended two attorneys, including the complainant, but neither was promoted.
The EEOC reversed a final agency decision and upheld its own administrative judge’s (AJ’s) finding that a temporary social worker was fired illegally after the VA insisted that the medication she took rendered her unable to drive, despite evidence to the contrary. Dremmel v. Dept. of Veterans Affairs, EEOC Appeal No. 0720060044 (7/16/08). The appellant’s personal physician insisted that the medication she was taking for chronic pain – MS Contin – did not affect her ability to drive as her position required her to drive to veterans’ homes within a 30-mile radius of the medical center. In its decision, the EEOC noted that Ms. Dremmel had performed well in prior positions where she was required to drive a car.
On August 6, 2008, the Equal Employment Opportunity Commission issued its decision in Chapman v. Dept. of Homeland Security, EEOC Appeal No. 0120051049. The Commission held the Transportation Security Administration (TSA) was not immunized from the Rehabilitation Act by its enacting statute.
In Collazo v. Department of Veterans Affairs, No. 06-2678 (1st Cir. July 24, 2008), the First Circuit United States Court of Appeals held that compensatory damages for pain and suffering are not available under the Age Discrimination in Employment Act. (ADEA), 29 U.S.C. 621-634. The appellant worked at the San Juan VA Medical Center for several years in various capacities. In August 1998, he was promoted to the position of patient services assistant. It was during this time, while the appellant was in his sixties, that he contends his supervisor threatened and directed age-discriminatory remarks at him, resulting in the appellant filing four incident reports and two VA police reports.
A federal employee who chose not to participate in her agency’s investigation of her EEO complaint found herself without a right to file a lawsuit against the agency because she “failed to exhaust” her required administrative remedies. That was the ruling of the U.S. Court of Appeals for the Fourth Circuit in an unpublished opinion in Austin v. Winter, No. 06-1745, July 11, 2008.
In Adams v. Rice, 531 F.3d 936 (D.C. Cir., 2008), a U.S. Court of Appeals reserved a lower court decision granting summary judgment in favor of the State Department on grounds that the appellant has a “record of” an impairment breast cancer – that substantially limited her sexual relations, which the D.C. Circuit determined was a major life activity under the Rehabilitation Act of 1973. The court of appeals remanded the case to the lower court for further proceedings.
It is well established that an employer’s decision cannot be said to be free of discrimination, even if the decision-maker was motivated by a legitimate concern if the decision-maker was relying upon negative information from another employee motivated by unlawful discriminatory or retaliatory animus. This is known as the “cat’s paw” doctrine.
In Lizzio v. Department of the Army, No. 2007-3224 (Fed. Cir. 7/16/08), the Federal Circuit U.S. Court of Appeals reversed the Merit Systems Protection Board and held that MSPB erroneously relied on a different ground for breach of the settlement agreement than its AJ.
In Mendiola v Office of Personnel Management, the U.S. Court of Appeals for the Federal Circuit held that the appellant did not establish that he was mentally incompetent for the purpose of excusing the one-year deadline for filing a disability application after separation. No. 2008-3014, 2008 WL 2510614 (Fed. Cir. 2008) (nonprecedential). The appellant was a machine tool operator at Kelly Air Force Base until he was separated from service on September 11, 1999. In June 2005, the appellant filed a CSRS disability retirement application. Applications for CSRS disability retirement must be filed with the Office of Personnel Management (OPM) before separation from service or within one year thereafter. See 5 U.S.C. §8337(b). This requirement is only waived when the former employee was mentally incompetent within one year after separation.
On July 1, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Desmond v. Mukasey, Case No. 07-5139. Reversing a decision on summary judgment by the district court, the D.C. Circuit held the claim that sleep disruption constitutes a disability under the Rehabilitation Act sufficiently meritorious as to survive summary judgment.
This is the second of a two-part series on the burdens and responsibilities of complainants in EEO investigations.
The U.S. District Court for District of Columbia granted partial summary judgment against the Internal Revenue Service (IRS) in Bergman v. Paulson, Secretary of the Treasury, Case No. 06-303, decided May 1, 2008, finding the IRS discriminated against the plaintiff because of her disability in violation of the Rehabilitation Act of 1973. The court began its decision by stating that this case presents a “bizarre situation.” The plaintiff was a “highly qualified and experienced specialist in tax law” employed at a GS-14 level, with no substantive work to do, which the IRS did not deny. Because of the lack of substantive work, the plaintiff’s mild and controllable depression was exacerbated into a case of severe chronic depression. Therefore, the plaintiff sought as a reasonable accommodation a transfer to the IRS Office of Chief Counsel where she had worked at an earlier time “with distinction.” The doctor hired by the IRS to examine the plaintiff’s medical records “recommends from a medical point of view” that the IRS accommodate her “with a position appropriate to her legal and educational background if there is such a position available in your agency.”
It is the season again when our attention is focused on political campaigns. For federal employees, this can be an exciting time because, in essence, you are selecting your next boss! But, this can also be a time when employees’ interests in helping candidates become problematic because of the limitations imposed on federal employees’ political activities. A mistake here can turn a current employee into a former employee … involuntarily! There are many limitations on the rights of federal employees to get involved in political activities. These limitations are set forth in the Hatch Act. It is important that you observe these limitations, as failure to do so may result in your termination from federal service.
On June 2, 2008, the Supreme Court issued its decision in Richlin Security Service Co. v. Chertoff, 553 U.S. _______, Case No. 06-1717 (Slip. Op.). Overturning the Federal Circuit, the Supreme Court held that the Equal Access to Justice Act (EAJA) permits paralegal fees recovery at market rates, and not just at the actual costs to the attorney.
The Federal Labor Relations Authority (FLRA) recently upheld an arbitrator’s decision which found discrimination due to protected union activities and age in U.S. Government Printing Office (GPO) v. International Brotherhood of Electrical Workers (IBEW), Local 121, 62 FLRA No. 80 (May 14, 2008), and awarded the grievant a retroactive promotion with back pay and attorney fees to the union. The arbitrator noted that the grievant, a union steward, had been denied a promotion for an electrician leader position after having filed numerous grievances and EEO complaints and was given a lower performance rating “to make [the grievant’s] candidacy for promotion less viable and to retaliate for his protected challenges to supervisory authority.” The arbitrator rejected the agency’s asserted reasons for not selecting the grievant and found them to be the pretext for unlawful discrimination as he had served as the acting electrician leader in the past without incident.
The EEOC recently held that the Department of Homeland Security (DHS or agency) improperly used its vision standard to disqualify an individual from employment as a detention enforcement officer (DEO) without making any determination as to his ability to perform the job’s essential functions with or without reasonable accommodation. Poquiz v. Homeland Sec. Dept., EEOC Appeal No. 0720050095 (2008). The complainant has limited vision in his right eye due to a previous injury. After the Bureau of Prison waived its vision standard, the complainant was hired as a correctional officer (CO). Subsequently, the complainant applied for a DEO position with DHS, and he was hired subject to medical and security clearances.
In Garg v. Potter, No. 07-2377 (7th Cir. April 4, 2008), a U.S. Court of Appeals held that when an employee alleges that an adverse action was taken in violation of the Rehabilitation Act but fails to challenge whether the employer provided reasonable accommodation, then the adverse action will not be overturned. The court affirmed the district court’s grant of summary judgment in favor of the U.S. Postal Service.
The United States Court of Appeals for the District of Columbia recently held that the question of whether a plaintiff in a discrimination suit made out a prima facie case under McDonnell Douglas v. Green, 411 U.S. 793 (1973), “is almost always irrelevant” when the district court considers an employer’s motion for summary judgment or decides a case at trial. See Brady v. Office of Sergeant at Arms, Case No. 06-5362 (March 28, 2008). Typically, under McDonnell Douglas, which sets forth the burden of proof for Title VII cases, a plaintiff must establish a prima facie (at first glance) case by showing that he/she was treated worse than someone not in his/her protected class before the burden shifts to the employer to set forth its reason for the challenged action. The D.C. Circuit, however, called the prima case “a largely unnecessary sideshow” that wastes litigant and judicial resources.
In Meza v. Department of Homeland Security, (Fed. Cir. No. 2007-3150, April 23, 2008), the U.S. Court of Appeals for the Federal Circuit upheld the removal of an INS criminal investigator after he allegedly tested positive for cocaine, notwithstanding contrary evidence. Because the Merit Systems Protection Board administrative judge who heard the evidence concluded that the relevant evidence supported the allegation, the court said it could not overturn the decision.
In July 2007, the U.S. House of Representatives passed the Lilly Ledbetter Fair Pay Act but the bill has now stalled in the Senate. The bill’s purpose is to restate the law as it had been interpreted for years before the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2176 (2007).
In DeCaire v. Mukasey, 07-1539 (1st Cir. 2008), the U.S. First Circuit Court of Appeals reversed a district court’s decision which ruled against a plaintiff by, among other things, making various errors in law, and using the Judge’s own opinion as to managements reasons for the adverse actions. This case provides an excellent review of the governing burden of proof in discrimination and retaliation cases.
On March 12, 2008, the U.S. Court of Appeals for the Federal Circuit issued its decision in Parrott v. Merit Systems Protection Board, Case No. 2007-3119. The Federal Circuit affirmed the Merit Systems Protection Board (MSPB) dismissal of Parrott’s appeal for lack of MSPB jurisdiction over his constructive removal claims.
In Ikossi v. Department of Navy, No. 05-5456 (DC Cir. 2/29/08), the federal court of appeals for the District of Columbia Circuit reversed a district court, finding there was jurisdiction over a mixed-case appeal but that pre-termination EEO claims were untimely and remanded the case for discovery.
A federal district court in Pennsylvania held that a plaintiff who succeeded on one of the multiple claims was a “prevailing party” and entitled to an award of attorney’s fees and costs even though the relief awarded did not directly remedy the harm. Hare v. Potter, No. 02-CV-7373 (E.D. Pa. February 12, 2008).
In Baird v. Department of Army, No. 2007-3046 (Fed. Cir., Feb. 26, 2008), in a split decision the court remanded back to the Merit Systems Protection Board (MSPB or Board) the case of a civilian employee who tested positive for marijuana in a random drug test and had been removed from employment. The court found that proper legal process was not followed, thereby denying the employee the required chance to prove her case. The Board had not allowed the employee the discovery she had requested, and the court found this improper.
In Douglas v. Department of Defense, 2008 MSPB 48 (3/5/08), the appellant was employed at a Defense Finance and Accounting Service (DFAS) facility in Norfolk, Virginia, which was scheduled for closure. The agency informed employees who were eligible for retirement that they could retire with a buyout under the terms of the VSIP. The agency required those who chose the VSIP to sign a VSIP agreement no later than September 15, 2006. The appellant elected to retire and signed the VSIP agreement on August 31, 2006. Then, on September 18, 2006, only three days after the closure of eligibility for the VSIP, the agency announced that it would retain 15 positions.
The U.S. Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board (MSPB), holding that the Board erred when it dismissed a case alleging reprisal for whistleblowing. Johnston v. MSPB, No. 2007-3167 (Fed. Cir. 3/3/08). The court found that “Because we conclude Johnston’s allegations of reprisal for disclosures protected under the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8), were sufficient to establish board jurisdiction, we reverse and remand.”
The U.S. Court of Appeals for the Federal Circuit in a split decision ruled in favor of Teresa Chambers’ challenge to her removal as Chief of the U.S. Park Police. The appeals court ruling found that public employees are protected when raising warnings about “a risk to public safety.” Chambers v. Dept. of the Interior, No. 2007-3050 (Fed. Cir. Feb. 14, 2008). It was an incomplete victory for Ms. Chambers, however, as the court remanded the case back to the Merit Systems Protection Board (MSPB or Board) for a decision.
In Mynard v. Office of Personnel Management, 2008 MSPB 23 (1/31/08), the appellant petitioned for review of the initial decision dismissing his motion for attorney fees relating to the merits phase of his retirement appeal as untimely filed and denying his motion for attorney fees relating to the compliance phase of his appeal on the basis that his petition for enforcement did not result in the issuance of an enforceable judgment.
It is rare when the MSPB finds that an employee’s retirement in lieu of accepting a directed reassignment is involuntary.
An EEOC administrative judge from the Baltimore field office recently issued a decision in favor of complainant Linda G. Gaston, who is represented by Debra A. D’Agostino of Passman & Kaplan, P.C., finding the U.S. Department of Homeland Security, Transportation Security Administration (TSA), liable for sex discrimination.
Tin Wiley v. Glassman, 2007 WL 4354431, C.A.D.C. No. 06-5402 (December 14, 2007), the U.S. Court of Appeals for the District of Columbia Circuit held that the Broadcasting Board of Governors (BBG), (formerly known as the U.S. Information Agency), did not retaliate against Ms. Wiley when it denied her the use of administrative time (often called “official time”) to attend the depositions of witnesses in her EEO lawsuit, and instead forced her to use her own annual leave. Ms. Wiley’s claim of reprisal was dismissed.
The Tenth Circuit of the U.S. Court of Appeals has affirmed a lower court’s ruling that the Equal Employment Opportunity Commission regulations (29 C.F.R. § 1614) regarding enforcement of settlement agreements do not permit an employee to file suit to challenge an agency’s compliance with a settlement agreement. Lindstrom v. United States of America, No. 06-8059, 2007 WL 4358287 (10th Cir. Dec. 14, 2007).
On December 11, 2007, the Merit Systems Protection Board (MSPB) issued a split decision reversing the removal of a federal air marshal in Evans v. Department of Homeland Security, 2007 M.S.P.B. 297.
In a split decision, the Merit Systems Protection Board (MSPB) upheld the Office of Personnel Management’s (OPM) denial of a survivor annuity to a surviving spouse, born and raised in the Philippines whose native language is Tagalog, and who had signed a Spouse’s Consent to a Survivor Election Form (SF-2801-2), waiving her right to a survivor annuity.
The General Principles set forth in the OPM Guidelines for Settlement of Federal Personnel Actions Involving Civil Service Retirement Benefits found at opm.gov state that “The Retirement Trust Fund is not a Litigation Settlement Fund” and that “A Settlement may not provide Retirement Benefits Beyond What a Court or Administrative Body Could Order as Relief in the Litigation.”
In her Title VII case, the plaintiff, Roxanne K. Symko, alleged that her former employer, the United States Postal Service (USPS), illegally discriminated against her.
In Hartsock-Shaw v. OPM, 2007 MSPB 222, Docket No. PH-844E-06-0658-I-1 , September 21, 2007, the Board vacated the administrative judge’s (AJ) initial decision to uphold the Office of Personnel Management’s (OPM) denial of the appellant’s application for disability retirement benefits.
In Miller v. Department of the Army, 2007 MSPB 211 (9/7/07), the Merit Systems Protection Board awarded attorney fees in split decision where a female GS-7 Inspector General Investigative Specialist had been removed for conduct unbecoming a federal employee.
On August 27, 2007, the United States Court of Appeals for the Federal Circuit reversed in part the Merit Systems Protection Board’s decision in Hernandez v. Dept. of the Air Force, 102 M.S.P.R. 515 (2006).
In Juergensen v. Department of Commerce, EEOC Appeal No. 0120073331 (October 5, 2007), the Equal Employment Opportunity Commission found that the agency dismissed a discrimination complaint in violation of Title VII of the Civil Rights Act of 1964, as amended.
In Ryan v. Department of the Air Force, 2007 M.S.P.R. 240 (October 4, 2007), the MSPB overturned the agency’s removal of the appellant on charges of excessive use of leave.
You are a federal employee. You file a complaint of age discrimination under the Age Discrimination in Employment Act, (ADEA), against your supervisor, as you have the legal right to do. Your supervisor then retaliates against you for filing the age discrimination complaint. Here is the question: Does the ADEA protect you against retaliation? Put another way, can you file an EEO complaint alleging that the act of retaliation for filing the age complaint was illegal and seek a remedy from the courts? The Answer: It depends where you live.
In Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), the Equal Employment Opportunity Commission (EEOC) found that an administrative judge (AJ) properly exercised her discretion, and acted consistently with commission regulations, the MD-110, and commission precedent in ordering the agency to pay attorney fees as a sanction for the agency’s failure to fully respond to discovery requests.
In Boozer v. U.S. Postal Service, EEOC Appeal No. 0120060283 (July 24, 2007), the Equal Employment Opportunity Commission (EEOC or Commission) held that a modified work schedule relating to an employee’s commute may constitute a reasonable accommodation under the Rehabilitation Act of 1973, as amended.
The U.S. Court of Appeals for the Ninth Circuit recently held that a subordinate employee’s pervasive discriminatory influence on an otherwise independent investigation may impute liability on the employer. Poland v. Department of Homeland Sec. , 9th Cir., No. 05-35508 (7/20/07).
In Getzlow v. Department of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007), the Equal Employment Opportunity Commission (EEOC) held that the employment qualification standards created pursuant to the Aviation and Transportation Act (ATSA) supersede the requirements under the Rehabilitation Act of 1973, as amended.
On August 2, 2007, a group of more than 100 police officers for the FBI filed a class action complaint in the U.S. Court of Federal Claims for millions of dollars of back and future pay.
On July 6, 2007, in Vickers v. Powell, Chairman, Federal Deposit Insurance Corporation, No. 06-5016, the United States Court of Appeals for the District of Columbia Circuit determined that a Merit Systems Protection Board (MSPB) decision, finding appellant’s refusal to sign a medical release form that did not protect her privacy interest was a firing offense, was arbitrary and capricious.
A recent case decided by the U.S. Court of Appeals for the First Circuit highlighted the standard for what constitutes a “disability” under the Rehabilitation Act.
On July 10, 2007, a District of Columbia federal judge ordered the Department of Commerce to pay $303,881 in additional relief for Lisa Bremer, a disabled federal employee, who worked at the Department of Commerce until the Department revoked her right to telecommute three days a week. ( Bremer v. Gutierrez, D.D.C. No. 1:03CV01338).
The EEOC recently issued two decisions awarding substantial compensatory damages for pain and suffering to the employees.
In Koch v. Cox, Securities and Exchange Commission, – F.3d. –, 2007 WL 1713354 (C.A. D.C. June 15, 2007), the U.S. Court of Appeals for the District Court of Columbia Circuit held that a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression for which he is not seeking damages.
A recent decision by a divided panel of the Merit Systems Protection Board (MSPB) could have a chilling effect on the ability of federal employees to use information or documents, obtained through the course of employment, in support of discrimination complaints against agencies.
In Cooley v. United States, No. 06-284C (May 25, 2007), the U.S. Court of Federal Claims remanded a case that alleged the Social Security Administration (SSA) breached an implied-in-fact contract when it adopted suggestions made through the agency’s Employee Suggestion Program (ESP) without giving an appropriate award.
In Lavorgna v. Potter , W.D. Pa., No. 05-1610 (April 18, 2007), the Chief District Judge denied the government’s motion for summary judgment to dismiss a Civil Rights Act Title VII allegation that a 14-day suspension was unlawfully motivated by the employee’s gender.
On May 15, 2007, the United States Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board’s decision in Lutz v. United States Postal Service, No. 06-3154, finding that the agency materially breached a settlement agreement that was to resolve his Board appeal.
In a two-to-one decision, The U.S. Merit Systems Protection Board recently reaffirmed some cardinal rules about what it takes for an agency to prove that an employee intentionally falsified an employment application.
In Greenhill v. Dept. of Education, D.C. Cir. No. 06-5030 (April 6, 2007), the United States Court of Appeals for the District of Columbia Circuit held that a former federal employee’s claim for a breach of a Title VII settlement agreement was a contract claim (in excess of $10,000) and thus was under the exclusive jurisdiction of the Court of Federal Claims.
The U.S. Court of Appeals for the D.C. Circuit recently held that revocation of some job accommodations may be discriminatory.
The Eighth Circuit U.S. Court of Appeals upheld summary judgment in Higgins v. Gonzales, 8th Cir., No. 06-2556 (3/20/07), finding no discrimination or retaliation.
Undoubtedly today a significant number of adverse action appeals that would otherwise be heard by the Merit Systems Protection Board (MSPB) are instead being heard by arbitrators. This article is the first installment of a series which will examine the role of arbitrators in reviewing federal sector adverse action appeals.
In Bryant v. Leavitt, Civil Action No. 05-250, decided on February 22, 2007, the U.S. District Court for the District of Columbia denied the Department of Health and Human Services’ motion for summary judgment on age and race discrimination claims.
Mediation is not being fully utilized in federal employee cases despite previously being given strong support by the Congress and the executive branch.
The Merit Systems Protection Board was called to task by the Federal Circuit U.S. Court of Appeals in Kelly v. Dept. of Agriculture, Slip Copy, 2007 WL 786351 (C.A. Fed. March 12, 2007) (nonprecedential) for not finding a violation of the employee’s due process rights.
Alternative dispute resolution (ADR) is a number of different methods for resolving cases which has many advantages over litigation.
The U.S. Court of Appeals for the First Circuit held in a recent decision that federal employees are not protected from retaliation for bringing claims under the Age Discrimination in Employment Act (ADEA).
In Kirkendall v. Department of the Army, No. 05-3077, (Fed. Cir. Mar. 7, 2007), the Court of Appeals for the Federal Circuit issued a split en banc decision that allowed “tolling” or extension of deadlines for complaints filed under the Veterans Employment Opportunities Act (VEOA).
In Czekalski v. Peters , D.C. Cir. No. 05-5221 (2/02/07), the U.S. Court of Appeals for the District of Columbia held that the reassignment of a female Senior Executive Service employee in the Federal Aviation Administration from supervising 960 employees and a $400 million budget to supervising fewer than 10 employees and little or no budget was an adverse employment action.
The House Committee on Oversight and Government Reform has advanced very significant whistleblower rights legislation which would expand protection for federal employees.
The U.S. Supreme Court has agreed to consider a D.C. Circuit decision holding that the speech and debate clause of the U.S. Constitution did not bar federal courts from hearing a Senate staffer’s employment law complaint against a former U.S. senator.
In Del Prete v. United States Postal Service, 2007 WL 138030 (MSPB January 18, 2007), the employee appealed his removal, alleging that he did not engage in the charged misconduct and that the penalty of removal was unreasonable.
In a recent Eleventh Circuit Court of Appeals decision, the court held that the Transportation Security Administration (TSA) is exempt from the Rehabilitation Act in hiring decisions with regard to disability.
In a recent decision from the EEOC Office of Federal Operations, the Commission reiterated its position on the remedies available to employees who prevail on discrimination claims involving back pay awards.
The U.S. Court of Appeals for the Federal Circuit recently held that the U.S. Postal Service materially breached a settlement agreement by failing to timely provide documents necessary for the appellant’s disability retirement application.
In Special Counsel v. Wilkinson, MSPB Docket No. CB-1216-06-0006-T-1 (December 14, 2006), the Board reversed an administrative law judge’s recommended decision finding that the respondent did not violate the Hatch Act and denying the Office of Special Counsel’s request for disciplinary action. The Board found that the respondent violated the Hatch Act and remanded the appeal to the ALJ to determine the appropriate penalty.
In a recent decision on reconsideration by a federal judge in the District of Columbia, a federal worker was allowed to take his case directly to federal court 180 days after he filed an EEO complaint with the agency. In Brown v. Broadcasting Board of Governors, No. 05-3149 (D.D.C. Nov. 17, 2006), the plaintiff filed a complaint against the Broadcasting Board of Governors for discrimination on the basis of his race and reprisal for prior EEO activity. Cristian Brown claimed the agency discriminated against him when they failed to select him for two positions as an Assistant Internet Design Coordinator.
Tenure Rights of Transferred Employees (Wednesday, Jan 3, 2007)
Effect of Refusal of Accommodation (Dec 27, 2006)
EEO Complaint Deadline Extended (Wednesday, Dec 20, 2006)
Division of Survivor Annuities (Wednesday, Dec 13, 2006)
Federal Circuit Reaffirms Scope of MSPB Jurisdiction (Wednesday, November 15, 2006)
Suits against Employees Debated before High Court (Wed, November 08, 2006)
Right to File EEO Complaint (Wednesday, November 01, 2006)
MSPB Supports OPM’s Denial of Disability Retirement (Wednesday, October 18, 2006)
Split MSPB Denies Whistleblower Status (Wednesday, October 11, 2006)
How to Seek EEO Counseling and File a Formal Complaint (Wed, October 04, 2006)
EEOC Issues Default Judgment (Wednesday, October 25, 2006)
Expert’s View: Are You Ready to Retire? (Wednesday, September 27, 2006)
Court Reverses Whistleblower’s Reprimand (Wednesday, September 27, 2006)
Even if You’re Not Harmed, It Could Hurt (Wednesday, September 20, 2006)
MSPB Finds Postal Worker Entitled to Disability Retirement (Wednesday, September 13, 2006)
Waiver of EEO Complaint Filing Deadline (August 16, 2006)
Obligation to Exhaust Administrative Remedies (August 02, 2006)
Reasonable Accommodation (July 26, 2006)
Court Denies Attorney Fees (July 19, 2006)
Disclosure of Medical Documents (July 12, 2006)
HIV-Positive Applicant Entitled to Jury Trial (July 05, 2006)
Cat’s Paws and Rubber Stamps (June 21, 2006)
Court Revives Claim for Co-Worker Sexual Harassment (June 14, 2006)
Postal Service Employee Entitled to Disability Retirement (June 07, 2006)
Pecuniary Damages in EEOC Award (May 24, 2006)
Nonfrivolous Whistleblower Allegation (May 17, 2006)
EEOC Upholds Denial of Equal Pay Claim (May 10, 2006)
Light at the End of the Tunnel for Whistleblowers? (May 03, 2006)
How to State an EEO Retaliation Claim (April 26, 2006)
Appeal Rights in Involuntary Resignation (April 19, 2006)
Inference of Discrimination (April 12, 2006)
Jury Verdict in Employee’s Favor Reinstated (April 5, 2006)
Continuing Violation Theory in EEO Cases (March 29, 2006)
Right to Hearing on Discrimination Allegation (March 15, 2006)
No FEAR Act Regulations (March 8, 2006)
Court Finds No Tangible Employment Action (March 1, 2006)
Hostile Environment Retaliation Claims (February 22, 2006)
Assessing Risk Presented by Disability (February 15, 2006)
EEOC Increases Compensatory Damages Awards (February 8, 2006)
Job Placement Rights after Recovery from Injury (February 1, 2006)
Summary Judgment Ruling Found Premature (January 25, 2006)
Missing the Deadline for Filing an EEO Complaint (January 18, 2006)
Disabled Employee Found Not a Threat to Self or Others (January 11, 2006)
EEOC Increases Attorney Fees in Two Cases (January 4, 2006).
Contact us by email or call 888-676-8096. Nearby clients in Washington, D.C., Maryland, Virginia and West Virginia often choose to come to our office for clients for an in-person consultation, and we offer a long-distance consultation for federal employees nationwide and abroad.