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☀       December 15, 2017  ...  11th Cir.:  Hogue v. Army  ...   Larry E. Hogue appeals from the district court’s grant of summary judgment in favor of the Army in an employment discrimination lawsuit raising, among other things, claims under the Age Discrimination in Employment Act (“ADEA”). On appeal, Hogue argues that the district court erred in granting summary judgment to the Army, and presents his arguments on what evidence in the record is credible.         We review de novo a district court’s grant of summary judgment, considering the facts and drawing all reasonable inferences in the light most favorable to the non-movant.  ...   COURT DECISION:   (.pdf)   (.html)

☀       December 13, 2017  ...  Fed. Cir.:  Greer v. Air Force  ...   BACKGROUND    Mr. Greer is a former civilian employee of the Air Force (“the agency”) who worked as a Motor Vehicle Operator at Randolph Air Force Base. In November 2012, the agency proposed removing Mr. Greer for discourteous conduct and inappropriate comments.         On November 8, 2012, Mr. Greer and the agency en- tered into a last chance agreement, which provided that Mr. Greer would accept a 14-day suspension and would attend an Anger Management Program.         The agreement further provided that the agency would hold Mr. Greer’s removal in abeyance for 36 months but that the agency could remove him “should management learn of any additional misconduct for which the Agency’s Guide to Disciplinary Actions . . . lists a penalty of reprimand or greater.”         Finally, the agreement stated that “Mr. Greer voluntarily and unconditionally waives any and all rights that he may have to appeal to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC) and to grieve, complain, or litigate the removal action being held in abeyance.”         On October 8, 2013, the agency informed Mr. Greer that he was being removed from his position because he had violated the terms of the last chance agreement by making additional inappropriate comments to a supervisor.         On October 29, 2013, Mr. Greer filed an appeal with the MSPB challenging his removal.   ...   COURT DECISION:   (.pdf)   (.html)

☀       December 13, 2017  ...  Fed.Cir.:  Lentz v. MSPB  ...   CONSTRUCTIVE DISCHARGE ?  ...   Chase M. Lentz appeals the decision of the Merit Systems Protection Board (MSPB or “Board”), holding that his resignation from federal employment was a voluntary act and not a constructive discharge. We vacate the Board’s decision, as based on incorrect evidentiary procedures including the inappropriate application of collateral estoppel. We remand to the MSPB for redetermination of the issue of constructive discharge.         BACKGROUND    Mr. Lentz entered federal service in 2002, and at the times here relevant was employed as a botanist with the Bureau of Land Management of the Department of the Interior (the “Agency”) in California. Mr. Lentz had no disciplinary record until May 15, 2014, when his supervisor issued a letter of reprimand for “acting outside the scope of his authority” and “conduct unbecoming.”         These charges were based on his authorization to permit goat grazing on certain public lands, without the prior approval of his supervisors. Id. On November 13, 2014 Mr. Lentz’s supervisor issued a letter proposing a fourteen-day suspension for various infractions, citing his management of interns, his behavior toward his supervisors, and his interaction with outside entities.         Soon after receiving this letter, Mr. Lentz went on medical leave. The proposed fourteen-day suspension was sustained on February 10, 2015, during his medical leave, to commence on February 15, 2015.         Mr. Lentz resigned on February 13, 2015. His letter of resignation cites harassment and a hostile work environment that aggravated an illness and his veterans disability, and made his work circumstances intolerable.   ...   COURT DECISION:   (.pdf)   (.html)

☀       December 12, 2017  ...  Fed. Cir.:  Jones v. HHS  ...   John Paul Jones, III appeals the final decision of the Merit Systems Protection Board, denying his claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) and the Veterans Employment Opportunities Act of 1998 (“VEOA”). Mr. Jones contends that the Department of Health and Human Services violated his USERRA and VEOA rights by not selecting him for the position of Public Health Advisor (International Program Director) in HHS’s Health Resources and Services Administration (“HRSA”).   ...   COURT DECISION:   (.pdf)   (.html)

☀       December 12, 2017  ...  7thCir-IL:  Taylor v. Dolton  ...   Gordie Taylor, a black firefighter formerly with the Dolton Fire Department, asserts claims under Title VII for discriminatory discharge and hostile work environment against the Village of Dolton and several of his former supervisors.         Taylor claims that he was subjected to racially offensive language when he worked at the Dolton Fire Department between 2009 and 2013. Two lieutenants in particular, David DuVall and Daniel Manning, used racial epithets and made derogatory comments to him about his race. DuVall, for instance, repeatedly used the word “nigger” and disparaged Taylor’s wife, who is white. In addition, Taylor claims that on separate occasions the two lieutenants and Fire Chief Terrence Hughes said that black firefighters “don’t belong” in the fire station. The last racially offensive comment occurred in early 2012, but Taylor did not file an EEOC charge until February 2013.         During his employment with the fire department, Taylor repeatedly was accused of smelling of alcohol while on duty, though no one saw him drinking on the job. DuVall and another lieutenant, Mike Moreno, were the first to report him. Taylor denied drinking and highlighted DuVall’s history of racial harassment, suggesting that DuVall made the accusation because of racial animus. Jerry McCullough, Hughes’s predecessor as fire chief, investigated both the drinking allegations and Taylor’s complaint of racial harassment, and in the process learned that coworkers previously had reported that Taylor smelled of alcohol.         A similar drinking accusation was later made by another lieutenant, Daniel Manning. Taylor responded to that allegation by asking McCullough to order an alcohol test. McCullough did so, preparing a written order—as required under the collective bargaining agreement with the firefighters’ union—directing Taylor to “take a test for alcohol,” though without specifying the type of test. Lieutenant Manning then drove Taylor to a nearby hospital for the procedure. Although McCullough’s written order did not mention a blood test, McCullough testified that he told the hospital staff, through Manning, to administer one. The defendants also insist that a blood test was required under the union agreement, which instructs that alcohol tests be conducted in a manner that preserves samples for confirmatory testing. Taylor refused the blood test but agreed to take a breathalyzer test, which showed no trace of alcohol in his system. McCullough regarded Taylor’s refusal to take the blood test as insubordinate, and he placed Taylor on administrative leave pending further investigation.         Around this time Hughes replaced McCullough as fire chief. Hoping to impose discipline short of firing Taylor, Hughes offered him a brief three‐day suspension. Taylor refused to accept this discipline, however, so Hughes fired him, citing “insubordinate and threatening behavior.” The following month, Taylor filed a complaint with the EEOC.   ...   COURT DECISION:   (.pdf)   (.html)

☀       December 7, 2017  ...  SCP:  Novak v. Somerset Hospital  ...   A REAL MAVERICK DOC ... A DOC OF ALL TRADES.  ...   Doctor Novak is a board certified general surgeon who practiced at Somerset Hospital from 1993 until 2005. In 2005, two patients approached Dr. Novak and asked him to perform surgery to replace implantable cardioverter defibrillator (“ICD”) generators.         Doctor Novak did not have hospital privileges to implant or change ICD devices, however, he agreed to perform these surgeries.         When Dr. Novak was about to begin surgery, operating room staff contacted Jonathan Kates, M.D., the Chair of Somerset’s Credentials Committee.         Doctor Kates approved the procedure, but Dr. Novak was not aware of Dr. Kates’ approval at the time he performed the surgeries. The surgeries were successful and no patients suffered any sequela as a result of the procedures performed.         Michael Farrell, Somerset’s Chief Executive Officer, assembled a task force of administrators to investigate the circumstances of the surgeries;   ...   COURT DECISION:   (.pdf)   (.html)

☀       December 6, 2017  ...  11th Cir.:  EEOC v. CMS  ...   FEDERAL COURTS SMACKS DOWN COMMUNIST-FILLED EEOC FOR THE 100TH TIME THIS YEAR.  ...   Catastrophe Management Solutions does not hire anyone, black or white, who uses an “excessive hairstyle[ ],” a category that includes dreadlocks. So when Chastity Jones, a black woman, refused to remove her dreadlocks, CMS rescinded her employment offer.         The EEOC sued on her behalf, claiming that “[a] prohibition of dreadlocks in the workplace constitutes race discrimination because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent.”         The EEOC’s lawsuit, in other words, sought to expand the definition of “race”—a term undefined in Title VII—to include anything purportedly associated with the culture of a protected group.         The district court dismissed the case, and a panel of this court affirmed because the EEOC’s complaint did not allege—as required by our Title VII disparate-treatment precedent—that dreadlocks are an immutable characteristic of black individuals.         11th Circuit Decision: Under our precedent, banning dreadlocks in the workplace under a race-neutral grooming policy—without more—does not constitute intentional race-based discrimination. First, dreadlocks are not, according to the EEOC’s proposed amended complaint, an immutable characteristic of black individuals. Second, the allegations in the complaint do not lend themselves to a reasonable inference that, in applying its grooming policy to dreadlocks, CMS discriminated against Ms. Jones because of her race.   ...   COURT DECISION:   (.pdf)   (.html)

☀       December 6, 2017  ...  4th Cir.:  Ward v. Commerce  ...   Donna M. Ward, a former Census Bureau employee, challenged her removal before the Merit Systems Protection Board (MSPB). After the MSPB upheld her removal, Ward filed suit in district court against the Department of Commerce and Census Bureau employees Stephen Taylor, Claudette Bennett, and William Savino (collectively, “Appellees”), raising federal and state claims arising out of her termination.  ...   COURT DECISION:   (.pdf)   (.html)

☀       December 5, 2017  ...  5th Cir.:  Phillips v. Caris Life Sciences  ...   Plaintiff-Appellant Kristin Phillips (“Phillips”) brought suit against Caris Life Sciences, Inc., and Miraca Life Sciences, Inc. (hereinafter “Caris”), alleging a hostile work environment, sex discrimination, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.         Phillips was employed with Caris as a sales director from March 2010 until her termination on November 7, 2011.         Over the course of her employment with Caris, Phillips complained that she was sexually harassed by David Heddon (“Heddon”), a former co-worker. [...] In February 2011, Phillips alleges she became aware that Heddon was spreading rumors about a sexual relationship between Phillips and another co-worker. Phillips alleges that she complained to her supervisor, Scott Grybeck (“Grybeck”), shortly after becoming aware of the rumors Heddon was allegedly spreading.         In response to Phillips’s complaint, Grybeck sent an email to his sales team, admonishing them for spreading rumors and warning that any additional reports of similar behavior would result in disciplinary action in the form of a write-up. Grybeck also subsequently arranged a lunch meeting between himself, Heddon and Phillips to “clear the air,” after which Heddon apologized to Phillips and took responsibility for his action; Heddon did not make additional sexual advances towards or comments about Phillips.         Meanwhile, Phillips’s sales productivity had begun to decline, and she consistently failed to complete required administrative tasks in a timely manner. Consequently, Caris placed Phillips on a performance improvement plan (“PIP”) to remediate her drop in sales and failure to timely complete necessary administrative tasks. ][...]   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 30, 2017  ...  Fed. Cir.:  Morrison v. Navy  ...   DID NAVY TRICK HIM TO RETIRE BY EXERCISING "A LACK OF CANDOR" ?  ...   BACKGROUND:    John W. Morrison petitions for review of a decision of the Merit Systems Protection Board (“MSPB” or “Board”) relating to his retirement from a civilian position with the Department of the Navy. Because the Board’s ruling was not a “final order” or a “final decision” in his case, we dismiss Mr. Morrison’s petition for lack of jurisdiction. 28 U.S.C. § 1295(a)(9); see also 5 U.S.C. § 7703(b)(1)(A).                 Mr. Morrison worked as a firefighter at the Naval Submarine Base New London in Groton, Connecticut. Mr. Morrison’s position was designated as “Non-Critical Sensitive.” As a condition of his employment, he was required to maintain a security clearance. In August 2011, the Navy revoked Mr. Morrison’s eligibility for a security clearance, citing concerns regarding his personal finances. Mr. Morrison appealed the revocation to the Navy’s Personnel Security Appeals Board. The revocation was upheld based on Mr. Morrison’s history of financial delinquency and his continued debt of more than $36,000.         The Navy subsequently initiated removal proceedings for Mr. Morrison. It issued him a notice of proposed removal on March 28, 2012, based on his failure to maintain the requisite security clearance. Mr. Morrison pro- tested the proposed removal, but on July 13, 2012, Regional Fire Chief Stephan Cox wrote a letter finalizing the decision to remove him. In the letter, Regional Fire Chief Cox wrote: “I . . . find that the charge of ‘Denied Eligibility to Access Non-Critical Sensitive Areas’ is fully supported by the evidence and your removal is warranted and will be effected on 13 July 2012.”         Although Regional Fire Chief Cox signed the letter, it was not formally issued to Mr. Morrison at that time. Instead, District Fire Chief Thomas Clapsadle, who was to deliver the letter of decision, offered Mr. Morrison the option to retire preemptively, in lieu of the termination. Mr. Morrison had expressed concern that his retirement benefits would be jeopardized if he were fired, and he ch ose to retire effective as of July 13, 2012.         In reality, Mr. Morrison’s retirement benefits were never at risk due to his pending termination, as he would have received his retirement benefits regardless of whether he retired or was terminated. See 5 U.S.C. §§ 8312-8315 (identifying particular circumstances, not present here, in which a government employee may lose entitlement to retirement pay). After learning that his retirement benefits were not at risk, Mr. Morrison filed an appeal with the Merit Systems Protection Board, claiming that his retirement was involuntary, and thus he had, in effect, been unlawfully removed from his position.   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 29, 2017  ...  FLRA:  Fraternal Order of Police v. Air Force  ...   Background     After a meeting with management, the grievant swore at one of his supervisors (the initial misconduct). The Agency sent the grievant a memorandum informing him that it was initiating an investigation into that misconduct, reassigning him to a limited-duty position, and temporarily revoking his authorization to carry a firearm by placing him on the Agency’s do-not-arm list. Approximately three months later, the Agency proposed to suspend the grievant. Around that time, the grievant engaged in some other misconduct. The Agency, considering both incidents of misconduct together, suspended the grievant for ten days. The grievant served the suspension roughly seven months after the initial misconduct. Shortly after the grievant served the suspension, the Agency reinstated his authorization to carry a firearm by removing him from the do-not-arm list.         The Union did not challenge the grievant’s suspension but filed a grievance alleging that the Agency violated the parties’ agreement and the instruction by placing the grievant on the do-not-arm list. The parties could not resolve the grievance, and the Union submitted the dispute to arbitration.         The Arbitrator found that the Agency had sole discretion to place the grievant on the do-not-arm list and, therefore, that its decision to do so was not subject to review. Accordingly, the Arbitrator addressed only whether the Agency had complied with the procedural requirements of the parties’ agreement and the instruction.         Before the Arbitrator, the Union argued that the Agency violated Article 54 of the parties’ agreement (Article 54) and § of the instruction. Article 54 requires the Agency to “promptly initiate[]” disciplinary actions,[2] and § requires the Agency to review an employee’s status on the do‑not‑arm list every 180 calendar days “to either reaffirm that [employee’s] status or take other appropriate action.”[3]         The Arbitrator concluded that the Agency violated Article 54 because it had developed the facts necessary to discipline the grievant within a few days of the initial misconduct, but had delayed proposing discipline until three months later. The Arbitrator also concluded that the Agency violated § by “fail[ing] to review” the grievant’s status on the do-not-arm list within 180 days of placing him on that list.[4] However, the Arbitrator found that neither of those violations directly resulted in the grievant losing pay. Specifically, she stated that although the grievant would have received eight hours of overtime pay per week in his normal position, any loss of pay resulted from his reassignment, not the Agency’s violations. Accordingly, the Arbitrator did not award backpay or attorney fees.         The Union also alleged, at arbitration, that the Agency violated § of the instruction. As relevant here, that section provides that the Agency may not deny an employee an assignment “solely because” it has temporarily revoked that employee’s authorization to carry a firearm.[5] The Arbitrator found that the Agency denied the grievant his normal assignment because, without authorization to carry a firearm, he was unqualified. The Arbitrator also observed that the Agency reassigned the grievant due to its investigation into the initial misconduct. Accordingly, the Arbitrator concluded that the Agency did not violate §         As a remedy for the Agency’s violations of Article 54 and §, the Arbitrator directed the Agency to comply, prospectively, with the parties’ agreement and the instruction.         The Union filed exceptions to the award, and the Agency filed an opposition.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       November 29, 2017  ...  FLRA:  Federal Bureau of Prisons v. AFGE  ...   Background     The Agency operates a prison in the federal system. In 2009, the parties entered into a memorandum of understanding (MOU) concerning augmentation. Augmentation is the process of assigning non-correctional-service employees to vacant correctional-service posts. Through augmentation, the Agency avoids having to fill vacant shifts with employees who would earn overtime. In 2015, the Union filed a grievance alleging that the Agency was not following the augmentation procedures and a past practice. The parties were unable to resolve the grievance, and they submitted it to arbitration.         The issue before the Arbitrator was whether the Agency violated a past practice and the parties’ agreement by unilaterally changing how it augmented custodial posts with non-custodial employees.         The Union argued that the parties had established a past practice to use augmentation only during annual training, periods with a high volume of training, or when agreed to by the Union. The Union alleged that the Agency, by changing this past practice, also violated Articles 3 and 4 of the parties’ agreement that require the Agency to bargain before implementing a change in any personnel policies, practices, or conditions of employment.         The Union further alleged that the Agency violated Article 27 of the parties’ agreement that requires the Agency to lower inherent correctional hazards to the lowest level possible. Specifically, the Union contended that by improperly augmenting, the Agency was placing non-correctional staff in unfamiliar and dangerous positions on short notice, increasing the inherent hazards of the prison.         Finally, the Union argued that the Agency had violated Articles 16 and 18 of the parties’ agreement by inequitably distributing overtime. The Union argued that, by improperly augmenting, the Agency prevented employees from working those shifts as overtime shifts.         As a result of these alleged violations, the Union claimed that the Agency had committed multiple unjustified and unwarranted personnel actions and that the employees denied overtime shifts should get backpay as a remedy. The Union also requested attorney fees and costs.         The Agency argued that it has the discretion to direct the workforce and “to establish the use and implementation of the roster.”[3] The Agency also argued that the parties’ agreement as well as § 7106 of the Statute gave the Agency the authority to reassign employees.   ...   (.pdf)   (.html)

☀       November 28, 2017  ...  COURT888 CIR:  Upshaw v. Progressive Insurance(Flo and Jamie)  ... On June 19, 1993, a motor vehicle driven by Alexander Alarcon struck Alma Upshaw’s car at an intersection in Columbus, Georgia. She died less than two hours after the crash in a local hospital.         Plaintiff alleges that Alarcon, though not listed as a party to this action, operated his vehicle negligently at the time of the accident.         Although the Complaint never explains Progressive’s role or indicates whether it insured either driver, Plaintiff’s Opposition does allege that the company insured Alma Upshaw.         On May 26, 1995, Alarcon sued Alma Upshaw’s estate and Alma Rae Upshaw Doleman, as executor of her mother’s estate, alleging that the decedent’s negligence had directly caused his own injuries.         The Complaint does not indicate the result of the Georgia tort action in Muscogee County Superior Court, but Plaintiff nonetheless included the pleading as part of the record.         Now, 24 years later, Upshaw has filed this action against Progressive. He rests part of his claim for relief, however ambiguous, on the Georgia wrongful-death statute.   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 27, 2017  ...  10th Cir:  Sotunde v. Safeway  ...   BACKGROUND:    Safeway, a grocery chain, runs a Denver Distribution Center to receive and distribute the products it sells in its retail stores. The center includes warehouses for meat, perishables, frozen foods, produce, and grocery items. At the relevant times, Donald Grambusch was the Director of Distribution. The rest of the management chain consisted of (in descending order) Managers, Superintendents, and Supervisors.                 In October 2004, Grambusch hired Sotunde to work in the Produce Warehouse. In February 2005, Grambusch promoted Sotunde to Supervisor, also in the Produce Warehouse. While employed at Safeway, Sotunde earned a second bachelor’s degree in finance and a master’s degree in business administration (MBA) and objectively improved the performance of the Produce Warehouse. Nevertheless, he was never promoted above Supervisor. Sotunde resigned from Safeway’s employment in May 2013.         After he resigned, Sotunde brought this suit under Title VII and § 1981. Detailing instances of preferential treatment of white employees, he claimed he was denied promotion because of race, color, and national origin discrimination; he was subjected to a racially hostile work environment; he was subjected to retaliation after he complained to Safeway about unfair treatment; and he was constructively discharged.   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 20, 2017  ...  Fed Cir:  Salerno v. Interior  ...   BACKGROUND:    Mr. Salerno was employed as a Telecommunications Specialist with the BLM in Moreno Valley, California. On January 10, 2013, Mr. Salerno received a letter of reprimand, instructing that all work-related purchases must be made with his government purchase card and that he must receive prior authorization before making such purchases         Rick D. Salerno appeals the Final Decision of the Merit Systems Protection Board (MSPB or Board) affirming the Department of the Interior’s decision to suspend him for 30 days from his employment with the Bureau of Land Management (BLM). 1 The suspension was based on Salerno’s allegedly improper use of a personal credit card for official purchases.         Mr. Salerno argues that the suspension was in retaliation for his having filed a whistleblowing disclosure to the Office of Special Counsel (OSC). He also alleged other improprieties in connection with his suspension. The administrative judge (AJ) to whom the matter was assigned denied his request for witnesses or deposition evidence regarding matters other than the issue of his credit card use.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


☀       November 17, 2017  ...  MSPB:  Golla v. Chief Judge  ...   SOME PEOPLES EARS PERK UP WHEN THE HEAR "REVERSE DISCRIMINATION" ... I WAS PAID LESS THAN THE BLACK GUY !  ...   Francis Joseph Golla brought this Title VII race discrimination action against his former employer, the Office of the Chief Judge of Cook County, Illinois, and Cook County, Illinois, [...] (“Defendants”).    BACKGROUND:    Golla’s complaint alleged that the Office of the Chief Judge (“the Office”) had engaged in intentional reverse racial discrimination by paying Deotis Taylor, an African‐American male, a significantly higher salary than Golla, a white male, despite working in the same department and performing the same duties under essentially the same title.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


☀       November 16, 2017  ...  FLRA:  AFGE v. DVA (VHA)  ...   UNION: VA JUST PULLED A FAST ONE ON ITS SOCIAL WORKERS !  ...   1. Statement of the Case:    Arbitrator Daniel F. Altemus found that the Department of Veterans Affairs, Veterans Health Administration (Agency) did not violate a particular Agency letter and policy when it failed to promote an employee (the grievant) to a General Schedule (GS)-12 position.         The main question before us is whether the Arbitrator’s award is contrary to the Agency letter and policy. Because the Union does not demonstrate that the Arbitrator misinterpreted the letter or the policy, the answer is no.         2. Background and Arbitrator’s Award:    As relevant here, Title 5 of the U.S. Code had governed the Agency’s social-worker positions. Then the Agency converted those positions to “hybrid” positions, which are subject to the advancement and qualification standards of Title 38 of the U.S. Code, as well as certain provisions of Title 5 not applicable here.         After the conversion, the social-worker positions were subject to “new or revised qualifi[cation] standards.”         Because of this change, the Agency issued Human Resources Management Letter 05‑06-06 (the letter), which stated that employees in hybrid positions – including employees who occupied their positions before the positions became hybrids – would undergo a one-time, special “boarding” process in which a review board (the board) would determine whether those employees satisfied the new qualification standards.         The letter also stated that the board would recommend promoting an employee affected by the change if the board determined that the employee satisfied the new standards of “a grade that [was] higher than the current title, series, and grade held by the employee,” but that, if the board determined that an employee did not satisfy the new standards for the position or grade that he or she held, the employee would be “grandfathered into his [or her] current title, series, and grade” instead of being demoted.         The letter also made any promotions retroactive to 2006.         The grievant was specially boarded as a GS-11 social worker. Under the new qualification standards, GS-12 social-worker positions require an “advanced[-]practice license.”[6] The board found that the grievant was unqualified for promotion to a GS-12 because she did not have an advanced-practice license.         The Union then filed a grievance challenging the Agency’s failure to promote the grievant. The grievance was unresolved, and the parties submitted it to arbitration.   ...   FLRA DECISION:   (.pdf)   (.html)

☀       November 16, 2017  ...  FLRA:  Sarhan v. DOJ (Prisons)  ...   Sarhan worked as a physician assistant for the BOP from 1994 until June 2007, when the BOP terminated his employment.         Since that time, Sarhan has twice appealed his termination to the Merits Systems Protection Board (“MSPB” or “Board”), which first affirmed his termination and then dismissed his appeal as barred by res judicata. After each proceeding before the MSPB, Sarhan appealed to the United States Court of Appeals for the Federal Circuit, which affirmed the final decisions of the MSPB.         In 2014 he filed the present complaint in federal district court, alleging that he had been discriminated and retaliated against because of his Arab ethnicity, in violation of Title VII of the Civil Rights Act of 1964[...], among other statutes.         The district court dismissed his complaint with prejudice on two main grounds. Here, he has appeal to the Court of Appeals for the Eleventh Circuit.  ...   COURT DECISION:   (.pdf)   (.html)

☀       November 15, 2017  ...  2d Cir:  Eng v. New York City Police  ...   EQUAL PAY DISCRIMINATION IS HARD TO PROVE ... ESPECIALLY WHEN THE CLAIM MERELY WISHFUL THINKING.  ...   Plaintiff-appellant Mary Eng appeals the dismissal of her Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), New York State Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”) claims, as well as the district court’s denial of leave to amend her complaint for a second time. Eng argues on appeal that the district court erred because: (1) she adequately pled violations of the EPA, NYSHRL, and NYCHRL; (2) if her amended complaint was deficient, she should have been granted leave to amend a second time; and (3) the district court should have declined to exercise supplemental jurisdiction over her state law claims when it dismissed the federal claims. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”         This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”         “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.”         “To prove a violation of the EPA, a plaintiff must first establish a prima facie case of discrimination by showing: i) the employer pays different wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working conditions.”         “[A] plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are substantially equal in skill, effort, and responsibility.”         “To satisfy this standard, a plaintiff must establish that the jobs compared entail common duties or content, and do not simply overlap in titles or classifications.”         “Under the EPA, proof of the employerʹs discriminatory intent is not necessary for the plaintiff to prevail on her claim . . .         Thus, a prima facie showing gives rise to a presumption of discrimination.”   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 15, 2017  ...  D.C. Cir.:  Gill v. DOJ  ...   A decorated veteran and Pakistani immigrant, Kaiser Gill worked for the Federal Bureau of Investigation (FBI) as a special agent until 2006, when the Bureau revoked his security clearance after he conducted unauthorized searches of its Automated Case Support system.         Gill sought review of this decision with the Department of Justice’s Access Review Committee (ARC), where he admitted his misconduct and, claiming that the “risk of him engaging in similar misconduct . . . was miniscule,” asked that he be given “another opportunity to perform his duties as an FBI agent.”         Although the ARC recognized Gill’s remorse, it emphasized that his “admitted misconduct in accessing sensitive information for personal reasons . . . raise[d] straightforward concerns regarding his ability to safeguard classified information.” Citing applicable guidelines requiring that any doubt be resolved in favor of national security, the ARC affirmed the FBI’s revocation of Gill’s security clearance.                 Gill filed a six-count complaint against the FBI and Department of Justice in the U.S. District Court for the District of Columbia. Gill contended that the FBI violated the Foreign Intelligence Surveillance Act (FISA) by introducing evidence in the ARC hearings that it obtained through undisclosed FISA- authorized surveillance (Count Three). See 50 U.S.C. § 1806(c) (requiring disclosure of “any information obtained . . . pursuant to the authority of this subchapter” when used as evidence in certain proceedings). Gill also alleged that his due process rights were infringed by the FISA violation (Count Two), by the fact that it took the ARC five years to issue its decision (Count Six), and by the ARC’s treatment in that decision of his naturalized family members as “foreign influence[s]” (Count Four). Finally, Gill contended that the government denied him equal protection both by treating his family members as foreign influences (Count Five) and by treating him, a Muslim, differently from non-Muslims guilty of similar misconduct (Count One).   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 14, 2017  ...  Fed. Cir.:  Bowe-Connor v. DVA  ...   Ms. Bowe-Connor worked as a clinical pharmacist in the inpatient pharmacy at the VA Medical Center in Washington, D.C. Effective May 17, 2013, the agency removed her from her position based upon three charges:         (1) causing delay in patients receiving medications; (2) conduct unbecoming; and (3) disrespectful conduct.         Ms. Bowe-Connor appealed her removal to the Board. Following a hearing, the administrative judge (“AJ”) to whom the appealed was assigned issued an initial decision sustaining the VA’s action. Ms. Bowe-Connor timely petitioned the Board for review.  ...   COURT DECISION:   (.pdf)   (.html)

☀       November 14, 2017  ...  Fed. Cir.:  Standley v. MSPB  ...   Mr. Standley works as a general engineer in the Department of Energy’s (“DOE”) National Nuclear Security Administration (“NNSA”), Office of Nuclear Detonation Detection (“NDD”).         Mr. Standley’s responsibilities include work on instrumented payloads that the NNSA contributes to a Department of Defense (“DOD”) system of nuclear detonation detection.         In September 2014, the DOE advertised a Director position in the NDD. Id. The Deputy Director of the NDD announced that current employees in the office would not be considered for the Director posting, yet Mr. Standley still submitted his application for the position.         He was referred to the hiring manager for further consideration, but was ultimately not selected. The position was canceled, re-posted in March 2015, and eventually awarded to an office colleague of Mr. Standley’s.         In November 2014, Mr. Standley filed a grievance with the DOE regarding his non-selection for the Director position, which was denied.         In February 2015, Mr. Standley then filed a complaint with the Office of Special Counsel (“OSC”), alleging he was not allowed to compete for the Director position.         However, the OSC investigated, terminated, and closed Mr. Standley’s file without taking action in September 2015, notifying him of his right to appeal to the MSPB.         Mr. Standley timely filed an IRA appeal with the MSPB, alleging, inter alia, that the DOE retaliated against him, thereby violating 5 U.S.C. § 2302(b)(8)(A) and (b)(9)(D) of the Whistleblower Protection Act (“WPA”) [...].   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 9, 2017  ...  CofAA:  Silverman v. Trinity Village  ...   A GOOD READ:   UNEMPLOYMENT BENEFITS DENIAL, APPEAL & CONSIDERATION CASE.  ...   Appellant was employed by Trinity Village as an administrator for assisted living prior to her termination. After she applied for unemployment-compensation benefits, Trinity Village filed a statement that appellant had been discharged for insubordination, specifically stating the following:                 1. Ms. Silverman not only failed to promptly initiate the protocols and actions necessary to address the deficiencies from the May 2–4, 2016 Assisted Living survey, but on 6/27/2016 refused to complete and sign the plan of correction. This is the Administrator’s responsibility.         2. As Assisted Living Administrator, it is Ms. Silverman’s responsibility to review, monitor, and utilize her departmental financial and budget reports as a primary tool in the management of her area. On 6/22/2016 she stated to me that they did not make sense to her and did not tell her anything, so she puts them straight in the shredder. I have personally instructed her in the interpretation and use of these reports on numerous occasions.         3. Ms. Silverman informed at least one staff member of the fiscal year end unaudited net income of Trinity Village. It was made clear by me in the staff meeting with only department managers, during which she was present that this was not to be repeated outside the meeting. Ms. Silverman also informed the same staff member as well as at least one additional staff member that she had a meeting with another manager where the manager shook her finger in her face. This is a confidential personnel issue that should not have been discussed.         4. Ms. Silverman exhibited anger and even hostility to a nurse aide in her department when discussing a possible worker’s compensation injury. She was confrontational and exhibited a lack of good judgment in dealing with a sensitive issue.         5. With no proof, Ms. Silverman has stated to me and at least one other employee that another Trinity Department Manager “slashed her tires.” This is a malicious statement with no substantiation.         6. Ms. Silverman frequently handles herself in an argumentative, accusatory, unprofessional manner with fellow managers as well as the assisted living staff, thus creating an unacceptable and frequently hostile environment. Appellant also filed a statement. In her statement, appellant denied that she was fired for insubordination.   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 8, 2017  ...  10th Cir:  Mitchell v. Kansas  ...   BECAUSE I'M BLACK !  ...   Mr. Mitchell, who is African-American, worked as a bus driver for the Kansas City Kansas School District. During his tenure, he was the subject of complaints and reprimands for a variety of infractions, including falsely reporting that he had checked his bus for a missing student and, upon discovering that the student was on his bus, failing to immediately report that fact to his dispatcher. During another incident, which occurred on October 30, 2015, Mr. Mitchell’s girlfriend was involved in an auto accident with a bus driver on school-district property. Mr. Mitchell was not present, but he arrived on scene and allegedly argued and interfered with another employee who was investigating the accident. Eventually, Mr. Mitchell’s supervisor called the police, who removed Mr. Mitchell from the property.         On November 5, 2015, Mr. Mitchell and his sister met with officials from the school district to discuss the October 30 incident. The parties dispute what transpired during the meeting, but on December 9, Mr. Mitchell filed an EEOC charge, citing the October 30 incident and alleging race discrimination and retaliation. The school district then notified Mr. Mitchell on December 21 that he was recommended for termination due to nine prior instances of inappropriate conduct or policy violations, including exhibiting aggressive behavior toward other employees. On January 26, 2016, the school board unanimously approved Mr. Mitchell’s termination, and on February 5, 2016, he filed a second EEOC charge alleging retaliation. Later, the board upheld Mr. Mitchell’s termination, and upon receiving a right-to-sue letter from the EEOC, he initiated this action, claiming race discrimination and retaliation.   ...   COURT DECISION:   (.pdf)   (.html)

☀       November 07, 2017  ...  DcDc:  Stewart v. Bowser  ...   Plaintiff in this case alleges that her former employer, the District of Columbia Office of Human Rights (“OHR”), discriminated against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”). Presently before the Court is Defendants’ [5] Motion to Dismiss the Complaint. Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court will GRANT-IN-PART and DENY-IN-PART Defendants’ motion.         BACKGROUND;   Plaintiff Georgia A. Stewart, an African American female, was an employee of the OHR from 1967 to 2016. In 2013, Plaintiff filed a charge with the United States Equal Employment Opportunity Commission (“EEOC”) alleging that, despite her many years of distinguished service, the OHR had begun to discriminate against her on the basis of her age. The discriminatory acts Plaintiff claims her supervisors subjected her to include hiring and firing employees in Plaintiff’s department without allowing her any input in the decision, refusing to allow the unit she supervised to have a full staff, depriving that unit of proper tools and equipment, assigning work within the unit without notice to or input from Plaintiff, and giving preferential treatment to other, younger, employees in her department. Plaintiff was terminated on September 30, 2016 and allegedly told she had 15 minutes to exit the building. Plaintiff alleges that when she asked her supervisor why she was firing her, the supervisor responded “Because I can.”         Plaintiff asserted three causes of action in her Complaint: (1 )reprisal under Title VII, (2) age discrimination under the ADEA, and (3) intentional infliction of emotional distress.  ...   COURT DECISION:   (.pdf)   (.html)


☀       November 06, 2017  ...  COFA:  Greene v. ADPH  ...   Greene worked for the ADPH from 2003 through 2014, most recently as a Health Insurance Assistant (“HIA”). Greene was the lone male HIA on the ADPH staff and was the only male HIA to ever work for the Children’s Health Insurance Program in Alabama (administered by the ADPH). Greene received middling performance reviews despite his production volume exceeding that of his fellow female HIAs, and he was disciplined for calling in sick during mandatory Saturday work sessions while female employees were granted liberal leave.      Based on this, Greene filed a gender discrimination claim with the Equal Employment Opportunity Commission (“EEOC”) by fax. Greene called the EEOC office from his work telephone to confirm receipt of the fax. Less than two hours later, Greene was disciplined for allegedly using profanity on a separate work telephone call that he claims he did not make.      Greene then filed a lawsuit under Title VII of the Civil Rights Act of 1964[...] alleging gender discrimination in his performance reviews and missed-work discipline as well as retaliation for the telephone profanity discipline.   ...   COURT DECISION:   (.pdf)   (.html)



☀       November 2, 2017  ...  5th Cir:  Atkins v. S.C.H.S.  ...   WAS SHE THE OPRAH WINFREY OF VIAGRA ?  ...   Atkins was hired by SCHS, a nonprofit organization that provides medications to patients with limited financial means. Her job duties included ordering free prescriptions for income-qualifying patients through SCHS’s Patient Assistance Program’s (PAP) online portal.         Atkins was terminated for the first time in March 2008 after allegations of misconduct. She subsequently filed a charge of discrimination with the EEOC alleging discrimination based on race.         Following settlement discussions with SCHS, she was reinstated. Atkins alleges, however, that SCHS did not fully comply with their reinstatement agreement after she returned to work. In response, she filed a second charge with the EEOC in which she alleged that SCHS’s failure to abide by this agreement was retaliation for her first EEOC charge in 2008. Atkins’s supervisors at SCHS became aware of this second charge no later than July 2009. On early October 2009, Atkins also filed an internal grievance directly with SCHS. In mid-November 2009, she was transferred to a different jobsite within the organization.         Then, an investigation by SCHS’s human resources department uncovered evidence that Atkins had requested numerous Viagra shipments through the PAP online portal for friends and family members.         None of these shipments were supported by prescriptions in their patient files, and Atkins often picked up the free medication herself. Several days later Atkins’s employment was terminated.         The following day, SCHS filed a criminal complaint, and the State of Louisiana subsequently instituted criminal prosecution against Atkins.         Atkins filed the instant lawsuit alleging, inter alia, that SCHS and Senegal terminated her in violation of Title VII as retaliation for filing a charge with the EEOC.  ...   COURT DECISION:   (.pdf)   (.html)


☀       November 01, 2017  ...  CADC:  Bloomgarden v. DOJ  ...   THIS IS A STRANGE, ODD, CURIOUS AND MYSTERIOUS CASE.  ...   Over two decades ago, the Department of Justice sent a proposed termination letter to one of its Assistant United States Attorneys (“the Assistant”) working in the Eastern District of New York (EDNY). The letter alleged a series of professional inadequacies. Appellant Bloomgarden, serving a sentence of life imprisonment without parole, sought a copy of that letter under FOIA.         The Assistant served as lead prosecutor in an investigation of a series of crimes committed by Appellant, leading to several convictions in New York and California.1 After Appellant’s FOIA suit, most of the approximately 3,600 pages of exhibits supporting the proposed termination letter were turned over to Appellant – but not the letter itself. The Appellant hopes that the content of the letter will somehow help him in contesting his sentence. The government declined to release the letter pursuant to Exemption 6 of FOIA, which can protect personal privacy. The district court, balancing the public interest against the Assistant’s privacy interest, determined that the latter clearly outweighed the former and therefore granted summary judgment for the government.         We affirm.         We also reject Appellant’s request that the judgment be modified.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 31, 2017  ...  5th Cir:  Shirey v. Wal-Mart  ...   WAS WALMART NEGLIGENT FOR NOT DISCOVERING THAT GRAPE ?  ...   Elizabeth Shirey was injured after slipping on a single green grape while shopping at a store operated by Wal-Mart Stores Texas, L.L.C. (Wal-Mart). After she brought suit, the district court granted summary judgment for Wal- Mart. For the following reasons, we AFFIRM the judgment of the district court.         I A video of activity on the aisle in the Wal-Mart store where Shirey fell reflects that the green grape at issue fell from another shopper’s cart onto the off-white floor.         Thirty seconds later, a Wal-Mart employee walked past the grape but did not notice it. Wal-Mart employees are trained to perform visual “sweeps” for hazards while walking through the store.         About seventeen minutes later, Shirey slipped on the grape. Her resulting injuries required surgery and she sought damages in state court from Wal-Mart for negligence and premises liability based on constructive knowledge.         Wal-Mart removed the case to federal court and, after discovery, moved for summary judgment.         In response, Shirey acknowledged that she could not simultaneously maintain negligence and premises liability causes of action, but otherwise opposed summary judgment.         The district court dismissed Shirey’s negligence claim and granted summary judgment for Wal-Mart on the premises liability claim.         This appeal followed.  ...   COURT DECISION:   (.pdf)   (.html)

☀       October 27, 2017  ...  Fed Cir:  Parkinson v. DOJ (FBI)  ...   DO FBI AGENTS ENJOY WHISTLEBLOWER PROTECTIONS ?  ...   On April 26, 2012, the FBI dismissed Mr. Parkinson from his position as a Special Agent after finding him guilty of lack of candor, obstruction, fraud/theft, and on-duty unprofessional conduct.         Mr. Parkinson, a preference-eligible veteran, appealed his removal to the Board and raised whistleblower reprisal as an affirmative defense. The Administrative Judge dismissed Mr. Parkinson’s whistleblower reprisal affirmative defense based on the Board’s decision in Van Lancker v. Department of Justice, 119 M.S.P.R. 514 (2013), which held that FBI agents are not entitled to such affirmative defenses under 5 U.S.C. § 7701(c)(2)(B) because the FBI is excluded from the definition of agency in 5 U.S.C. § 2302.         The Administrative Judge, therefore, sustained Mr. Parkinson’s removal based on the lack of candor and obstruction charges. The Board affirmed. On February 29, 2016, a panel of this court sustained the obstruction charge but found the lack of candor charge unsupported by substantial evidence. The panel also determined that the Board improperly precluded Mr. Parkinson from raising whistleblower reprisal as an affirmative defense under 5 U.S.C. § 7701(c)(2)(C).   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 27, 2017  ...  3rd Cir:  McKnight v. Aimbridge  ...   McKnight asserts that Aimbridge Employee Service Corporation, which manages the Hilton Garden Inn at which he was employed, discriminated against him on the basis of race.1 McKnight identifies as African-American. He argues generally that the District Court applied wrong standards to its review of his claims of racial discrimination and retaliation. He says it was not lenient enough. He also contends that the District Court ignored or misunderstood evidence that supports his claims.  ...   COURT DECISION:   (.pdf)   (.html)

☀       October 26, 2017  ...  FLRA:  HFEMTC v. NAVY  ...   Statement of the Case    The Department of the Navy, Pearl Harbor Naval Shipyard and Intermediate Maintenance Facility (Agency) hired contract employees to perform work at its naval facility. An employee doing the same work as some of the contract employees filed a grievance. The grievance alleged that, as relevant here, the Agency misused the contract employees to perform “[i]nherently [g]overnmental work,” in violation of a government-wide regulation and an Office of Management and Budget (OMB) policy statement. Arbitrator Michael A. Marr denied the grievance. We must decide three substantive questions. The first question before us is whether the Arbitrator exceeded his authority by failing to resolve an issue that was before him. The second question before us is whether the award is contrary to law because the Arbitrator did not address one of the Union’s arguments. The third question before us is whether the award is incomplete, ambiguous, or contradictory as to make implementation of the award impossible, or whether the award is deficient on other grounds not listed in the Authority’s Regulations.   ...   FLRA DECISION:   (.pdf)   (.html)

☀       October 26, 2017  ...  11th Cir:  Fields v. Dept of Juvenile Justice  ...   Ms. Fields, who is African American, worked as a Government Operations Consultant in the leasing division of the DJJ. Ms. Fields alleged that she was treated less favorably than white co-workers because her supervisor, Michele Lewis, only trained white employees on new procedures and documented African American employees for not being familiar with the new system and harassed them through abusive emails. She also alleged that she was terminated on May 29, 2014, in retaliation for reporting the racial discrimination to Sylvia Baker in the DJJ’s human resources division.         On the first day of trial, Ms. Fields testified that she complained to Ms. Baker in mid-April of 2014 that Ms. Lewis discriminated against her on the basis of race. Evidence also showed that on June 14, 2014, Ms. Fields filed a charge of discrimination with the Equal Employment Opportunity Commission alleging racial discrimination and retaliation. The EEOC notified the DJJ of the charge, prompting Derrick Elias, the DJJ’s Equal Employment Opportunity officer, to conduct an internal investigation.         The district court held a charge conference before the second day of trial. Its proposed retaliation charge instructed the jury that it needed to find, by the greater weight of the evidence, that “Ms. Fields complained in good faith to an appropriate person about racial discrimination” and that the DJJ terminated Ms. Fields because of the complaint.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 26, 2017  ...  DcDc:  Iyoha v. Architect of the Capitol  ...   The plaintiff, Sunday Iyoha, brings this civil action against the defendant, the Architect of the Capitol (the “Architect”), asserting claims of discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964[...].         Specifically, the plaintiff alleges that the Architect unlawfully discriminated against him on the basis of his race and national origin and retaliated against him for engaging in prior protected activity by not selecting him for a supervisor position on two separate occasions.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 25, 2017  ...  Fed. Cl:  Rebish v. United States  ...   Prose plaintiff Jimmi Tyler Rebish is a foimer employee of the Department of the Interior's Bureau of Reclamation (the Bureau). In 2008, the Bureau notified him that it intended to reassign him from its Idaho office to its Denver, Colorado office. Mr. Rebish invoked the agency's internal grievance procedure, claiming that the reassignment was proposed in retaliation for protected activity. The grievance process resulted in a settlement agreement which, among other things, contained neutral reference and confidentiality provisions.         According to Mr. Rebish, the Bureau breached its obligations under these provisions when certain Bureau employees allegedly provided third parties with negative infmmation about him. He further claims that the Bureau has failed to respond to his requests that it investigate and address these alleged breaches. Mr. Rebish also complains about the Bureau's refusal to reinstitute the agency's mediation process to address his concerns. Finally, Mr. Rebish alleges that he has been unable to obtain employment since he left the Bureau and has suffered both pecuniary and non-pecuniary injuries as a result of the Bureau's actions.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 25, 2017  ...  OCA:  State v. Harris,  ...   On May 21, 2015, the Medina County Grand Jury indicted Harris on two counts of aggravated arson in violation of R.C. 2909.02(A)(1), both felonies of the first degree.         Harris initially pleaded not guilty at his arraignment, but he subsequently filed a written plea of not guilty by reason of insanity. The trial court thereafter referred Harris to the Akron Psycho- Diagnostic Clinic for competency and sanity evaluations. Dr. Michael Biscaro of the Akron Psycho-Diagnostic Clinic ultimately determined that Harris was competent to stand trial and that Harris understood the wrongfulness of his actions at the time of the alleged offense.         The State and Harris’ defense counsel both stipulated to the authenticity and admissibility of the competency evaluation. The trial court thereafter granted Harris’ motion to receive an independent forensic psychiatric evaluation.         Harris subsequently filed the expert sanity evaluation report of Dr. Galit Askenazi. The trial court then permitted Dr. Biscaro to supplement the sanity evaluation that he previously prepared in this matter. Dr. Biscaro again determined that Harris knew the wrongfulness of his actions at the time of the alleged offense. The matter then proceeded to a jury trial.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 24, 2017  ...  10th Cir:  Laul v.  Los Alamos National Lab  ...   BACKGROUND   Laul is a naturalized U.S. citizen from India. He began working for LANL as a safety engineer in 1999, when he was 60 years old. As early as his 2007 performance evaluation, supervisors began noting that his “final work products typically need[ed] significant rework for grammar, and in some cases standard format and acceptable content.” Aplt. App., Vol. II at 92. Nevertheless, in early 2010, Laul was promoted to a level four safety-basis analyst.         Laul’s performance problems continued, however. In his September 2011 review, his supervisor, Lisa Pansoy-Hjelvik, noted that Laul “has difficulty . . . grasping in-depth technical details that are necessary for the safety analyst[ ] 4[’s] ability to develop technically defensible [safety basis] documents before they are issued for internal review.” Id. at 113. According to Pansoy-Hjelvik, Laul had trouble “distinguishing major from trivial issues,” he “refus[ed] to accept . . . guidance from co-workers and managers,” and he “manipulat[ed] technical discussions for personal gain.”         In addition to performance problems, LANL cited Laul for unprofessional workplace behavior. Specifically, in 2011, Laul was given a “Notice of Corrective Action-Written Counseling” for “unprofessional and disrespectful behavior toward” his group leader and his team leader. And in early 2012, he was given a written reprimand for a “continued . . . pattern of unprofessional, disrespectful and disruptive behavior.”         Laul contested the corrective-action notice and reprimand by submitting four internal grievances to LANL, complaining that his perceived performance and behavioral problems were the product of “Discrimination or Harassment.”   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 20, 2017  ...  VAOIG:  HEALTHCARE INSPECTION – OPIOID AGONIST TREATMENT PROGRAM CONCERNS VA MARYLAND HEALTH CARE SYSTEM BALTIMORE, MARYLAND      Summary:   VA OIG conducted a healthcare inspection in response to allegations made by a confidential complainant [...] regarding the Opioid Agonist Treatment Program (OATP) at the Baltimore VA Medical Center, one of three VA Maryland Health Care System campuses, located in Baltimore, MD. The complainant alleged the OATP lacked quality controls necessary to ensure patients received treatment planning and monthly counseling as required, which resulted in patient deaths. We substantiated that the OATP lacked effective quality controls necessary to ensure patients consistently received required treatment planning and monthly counseling. We determined the failure to provide consistent treatment planning and monthly counseling was due, in part, to a lack of counseling staff supervision. We did not substantiate that OATP patients died as a result. We also determined the OATP lacked a clear policy on cardiac risk management and quality controls to ensure appropriate cardiac monitoring. We identified a concern related to the role of the OATP Medical Director. 42 CFR § 8.12 (b) and the Substance Abuse and Mental Health Services Administration require that the medical director be responsible for ensuring regulatory compliance with all applicable Federal, State, and local laws and regulations. However, the OATP policy describing the medical director’s duties did not include regulatory compliance responsibility or define a sufficient number of hours to ensure regulatory compliance.      Summary   Report

☀       October 20, 2017  ...  4th Cir:  McKinney v.  G4S Government Solutions  ...   McKinney recounts several racist incidents that have occurred during his tenure at G4S. In 2011, janitor Joe Roth used the n-word in McKinney’s presence. In fall 2012, fire chief Jay Altizer told McKinney that G4S had hired a “colored boy” as a firefighter.         The incidents of particular concern to McKinney occurred on May 23, 2013. McKinney observed Lewis, Allison, Gravley, and Gellner laughing in a common area near his office. After Allison, Gravley, and Gellner walked away, Lewis asked McKinney if he knew that there was a noose hanging on a nail inside a small closed cabinet outside the security captain’s office.         Lewis showed McKinney the noose and directed McKinney to get rid of it, over McKinney’s objection. As McKinney was walking away with the noose, Roth walked by and said, “I know what to do with that. I can use that around my house.”         Roth lives in a neighborhood with a large African-American population, and McKinney interpreted Roth’s comment to refer to using the noose on his African-American neighbors.         Later that day, Lewis was standing on a ladder in the supply room when McKinney walked by. Lewis asked McKinney to come in and hold a box. McKinney had to get ready for his shift, and asked Gellner to hold the box for Lewis. As McKinney walked away, he heard Lewis and Gellner laughing. He walked back to the supply room, and saw Lewis standing on a ladder holding a white sheet over Gellner’s head so that it formed a triangle-shaped cylinder that looked like a KKK hood. McKinney said “Really?         . . . You-all don’t have to do that to get me gone. Only thing you have to do is just tell me.”         Neither Lewis nor Gellner responded. Gellner later apologized and explained that he had nothing to do with the incident.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 18, 2017  ...  5th Cir:  Roy v. Payne  ...   Plaintiff-Appellant, Stacey Roy, challenges the district court’s grant of summary judgment dismissing her allegations that University of Mississippi Medical Center discriminated against her based on her race and gender and retaliated against her for engaging in activity protected under Title VII.         BACKGROUND    Stacey Roy, a black female, began working for the University of Mississippi Medical Center (“UMMC”) in January 2007 as a Neurology Researcher. Roy had previously worked for three months as a mental health therapist at an alcohol treatment center. In May 2008, she became a certified tobacco treatment specialist and transferred to UMMC’s ACT Center for Tobacco Treatment, Education, and Research. Roy was supervised by Dr. Karen Crews, the ACT Center’s white female Director, Dr. Thomas Payne, the white male Associate Director, and Dr. Monica Sutton, the black female Clinical Services Director.         In November 2011, Dr. Sutton left the ACT Center. To conserve funding, the ACT Center did not hire a new Clinical Services Director, choosing instead to delegate Dr. Sutton’s former responsibilities to the new position of Senior Tobacco Treatment Specialist. The position served as an advancement opportunity for any tobacco treatment specialists who had achieved five years of experience and possessed the capacity to take on additional responsibilities.         Human Resources determined that only two tobacco treatment specialists met the five-year requirement, Robert Lock and Anthony Davis. Lock and Davis, both black males, had each served as tobacco treatment specialists at the ACT Center for over seven years while Plaintiff-Appellant, Stacey Roy, had served as a tobacco treatment specialist for just over three and a half years.         On June 4, 2012, Roy filed an EEOC complaint, alleging that male therapists were treated more favorably than female therapists with regard to conditions of employment and promotions. Earlier in 2012, the ACT Center had learned that it would face a $400,000 cut in funding—over 20 percent of its budget. Dr. Crews told Roy that she “would do everything in [her] power to keep the main site from being affected” by the funding cut. Roy interpreted this as an assurance that she would not be fired.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 17, 2017  ...  Fed Cir:  Anderson v. Opm  ...   Vincent Anderson was employed as a heavy-equipment repair technician with the Oregon National Guard. In 1990, he injured his ankle, and in 1992, this injury led to his honorable discharge.         On March 29, 1993, OPM denied petitioner’s application for regular disability retirement but notified Mr. Anderson that he might be eligible for disability retirement under the “Special Provisions” for National Guard Technicians under Public Law No. 97-253. Anderson re-applied under this provision, and on April 13, 1993, OPM notified Mr. Anderson that his disability retirement had been approved.         On March 18, 2015, OPM informed Mr. Anderson that it would reduce his disability retirement benefits by the amount that he was entitled to receive from Social Security. OPM also notified Mr. Anderson that he had received overpayments amounting to $101,718.         Mr. Anderson wrote Congressman Greg Walden complaining about OPM’s decision, which OPM treated as a request for a waiver of the overpayment.         In response to the waiver request, on September 3, 2015, a Merit Systems Protection Board Administrative Judge (“AJ”) issued a decision that adjusted Mr. Anderson’s repayment schedule [...] to 806 installments of $125 with a final installment of $104.52, based on a finding that the initial repayment schedule would create financial hardship for Mr. Anderson.         Mr. Anderson then sought review of that decision by the full Board, and on December 28, 2016, the Board denied Mr. Anderson’s petition and affirmed the ruling of the AJ.         Anderson seeks review in this court.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 17, 2017  ...  DcDc:  Breen v. Mineta  ...   The above-captioned case involves claims brought by former flight service specialists against the Federal Aviation Administration and the Department of Transportation alleging violations of the Age Discrimination in Employment Act of 1967 (“ADEA”)[...]. The Court has more fully described the factual and procedural history of this case in an earlier opinion.         This matter now comes before the Court upon the ten motions for substitution of estates filed by plaintiffs’ counsel on August 18, 2017, seeking to substitute the personal representatives of the estates of ten now-deceased plaintiffs.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 16, 2017  ...  MSPB:  Special Counsel  v. chwarz  ...   ORDER ON STAY EXTENSION REQUEST.  ...   Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC) requests a 60-day extension of the previously granted stay of the agency’s removal of Mr. Schwarz.         BACKGROUND    On June 28, 2017, OSC requested a 45-day initial stay of the agency’s June 8, 2017 decision to reinstate Mr. Schwarz’s removal for allegedly violating a settlement and abeyance agreement. Mr. Schwarz previously had filed a complaint of whistleblower reprisal with OSC on September 10, 2016, which was resolved via a November 22, 2016 settlement agreement. As part of the settlement agreement, the agency agreed to hold Mr. Schwarz’s pending removal action in abeyance for a period of 2 years, provided that he complied with certain performance and conduct standards. Id. On June 8, 2017, the agency reinstated Mr. Schwarz’s removal for failing to comply with the performance and conduct standards set forth in the settlement agreement. In particular, the agency charged that Mr. Schwarz was less than candid on two occasions, engaged in off-duty misconduct that disrupted the workplace by sending two Facebook messages to a retired employee, improperly attested to his time and attendance on several occasions, and failed to follow instructions to request leave at least 1 day in advance on one occasion. In its initial stay request, OSC argued that it had reasonable grounds to believe that the agency reinstated Mr. Schwarz’s removal based on reprisal for protected disclosures he had made concerning the agency’s improper testing of aircraft fueling equipment and improper testing and disposing of jet fuel. Id. at 10-15. OSC asserted that an investigation by the agency’s Inspector General substantiated Mr. Schwarz’s disclosures.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)



☀       October 11, 2017  ...  11th Cir:  Cooler v. Christensen  ...   In June 2013, Cooler, an African American man, began working at Layne’s Pensacola, Florida, location as a driller helper. To support his claims, Cooler described a number of events during which his supervisors and coworkers subjected him to racial harassment.         Eric Joiner,a white man, was Cooler’s supervisor at one project site. When Cooler complained of overheating and cramps on a hot day, Eric told him to cool down in the toolshed—a hot metal container—instead of the air-conditioned truck. During the time Cooler was in the shed, Eric and another white employee took a break and sat in the air-conditioned truck. Cooler was eventually allowed in the truck, but it was too late—he had to be taken to the hospital and treated for dehydration.         Alpo Joiner, a white man, was Cooler’s supervisor at another project site. Alpo would call Cooler “you people” or “boy,” instead of saying his name. 2 One time, Alpo used the “N-word” while talking to Cooler.3 Another of Cooler’s white supervisors, Jonathan Godwin, also used the “N-word” while talking to Cooler. Both times the “N-word” was used, the supervisors did it while telling Cooler about a time they had received a disciplinary write-up for using the slur. Cooler felt that the only reason they would tell him this was to see how he would react to them using the “N-word.”         When he was not working at project sites, Cooler worked at Layne’s warehouse in Pensacola, where his supervisor was Kenneth Ratliff. Ratliff would sometimes delegate his authority to William Van Pelt. Both Ratliff and Van Pelt were white men. Cooler and Godwin each testified that Van Pelt was known to Layne employees as the “grand wizard” of the warehouse.  ...   COURT DECISION:   (.pdf)   (.html)

☀       October 10, 2017  ...  5th Cir:  Molden v. EBRPSB  ...   Karl Molden was employed by the School Board as a school counselor.         In early November 2012, a parent filed a complaint, alleging Molden had engaged in “unprofessional behavior during home visit.” More specifically, the parent alleged, inter alia, that Molden had come to her house and talked about her daughter, as well as his personal problems, making her feel “uncomfortable” and “fearful.”         On November 5, 2012, Molden was placed on leave with pay pending an investigation of the allegations. The Department of Exceptional Student Services and the Office of Risk Management conducted two separate investigations, both revealing that Molden had “failed to provide services to students with disabilities, that he had engaged in unethical conversations with a parent, that he had failed to follow Department and District Procedures, and that he had submitted fraudulent documents.” This ultimately led the School Board to terminate Molden on December 10, 2012.         Molden contends these allegations were false and that the investigation was one-sided.         He also contends that the School Board’s conduct, including the termination, was attributable to Plaintiff’s filing a charge of discrimination with the EEOC in 2011.         On April 9, 2013, an Administrative Law Judge from the Louisiana Workforce Commission (“LWC”) determined that Molden would not be disqualified from his benefits. On February 3, 2014, the Louisiana Commission on Human Rights (“LCHR”) found, based on Molden’s contentions, that there may have been reason to believe that an ADA violation had occurred and invited the parties to join with the Commission to resolve the matter.         On June 4, 2014, Molden filed a complaint with the district court, alleging that he was (1) denied a request for reasonable accommodation, and that the School Board failed to engage in an interactive process, (2) subjected to work place discrimination, and (3) retaliated against in violation of the ADA. The School Board file a motion for summary judgement, which the district court granted. Molden timely appealed.  ...   COURT DECISION:   (.pdf)   (.html)

☀       October 6, 2017  ...  Fed Cir:  Weed v. SSA  ...   Alvern Weed, a 10-point compensable preference-eligible veteran and former lead contract specialist with the Department of the Air Force, appeals from a Merit Systems Protection Board (“Board”) decision affirming an administrative judge’s (“AJ”) decision requiring the Social Security Administration (“SSA”) to pay Mr. Weed lost wages and benefits for the period from September 5, 2006 until October 17, 2012 and denying his claim for additional damages.         The SSA conceded that absent a violation of Mr. Weed’s veterans’ preference rights, he would have been selected for any of the four positions.         On October 9, 2012, the SSA extended a retroactive job offer to Mr. Weed.         Mr. Weed filed a petition for enforcement, arguing the SSA did not comply with the Board’s order to reconstruct the hiring process for the four vacancies.         In March 2013, the Board ordered additional briefing so the parties could submit evidence and argument on whether the SSA reconstructed the hiring process as ordered ... .   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 6, 2017  ...  ACA:  Brown v. UPS  ...   Brown filed her complaint against UPS on October 16, 2013, alleging that she had been subjected to gender discrimination and retaliation at her workplace. She claimed that UPS had violated the ACRA by retaliating against her, harassing and intimidating her, and refusing to promote her.         On October 11, 2014, Brown’s complaint was amended and supplemented to add Pilz’s allegation that she had been denied the same benefits as males who work for UPS and had been denied equal pay in violation of the Arkansas Equal Pay Act.         Both appellants sought general and punitive damages.         UPS responded, denying appellants’ allegations.   ...   COURT DECISION:   (.pdf)   (.html)

☀       October 6, 2017  ...  MSPB:  Special Counsel  v. Veterans Affairs   ...   DEAR VA, PLEASE STOP RETALIATING AGAINST YOUR EMPLOYEES.  ...   Dr. Hale is a GS-15 Staff Dentist with the agency’s Montana Health Care System (MHCS)’s Billings Community Based Outpatient Clinic (BCBOC) , the only one of twelve clinics within MHCS to offer dental services .         Dr. Hale began to raise concerns about the clinic’s use of a paper form to refer patients for nonagency consults rather than entering the information in the agency’s Computerized Patient Record System (CPRS), as required by agency policy. According to Dr. Hale, the Chief of Dental Services instructed the staff to use the paper form and told Dr. Hale not to ask any more questions about it.         On December 9, 2015, Dr. Hale disclosed to OSC three matters involving the actions of the Chief of Dental Services in directing subordinate employees to engage in practices that violated agency directives and risked veteran patients’ health, including requiring the use of the paper form for referrals for consults rather than entering the information into the CPRS. Dr. Hale believed that the Chief’s directions resulted in the clinic’s violating statute 4 and regulation, 5 compromising treatment, and endangering patient health.         After OSC referred Dr. Hale’s disclosures to the Secretary of the Department of Veterans Affairs, the agency investigated Dr. Hale’s disclosures. The Office of Medical Inspection (OMI) assembled and led an agency team to conduct the investigation, after which a report was prepared which concluded that there were violations of agency policy that posed a substantial and specific danger to public health and safety.         The report also recommended that the use of the paper consult forms be immediately stopped, that all referrals for nonagency dental care be entered into CPRS, that the accountability of the Chief of Dental Services be determined, and that appropriate educational, administrative, or disciplinary action be taken.         Shortly thereafter, the Chief resigned to assume a staff dentist position. During a subsequent visit to BCBOC by the Acting Chief of Staff at MCHS, Dr. Hale identified himself as the OSC whistleblower.         Less than 2 weeks later, the MHCS Director chartered an AIB into allegations of employee and patient mistreatment by Dr. Hale.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)

☀       October 5, 2017  ...  Fed Cir:  Bishop v. Dhs  ...   Appellant Paul J. Bishop worked as an Agriculture Specialist for Customs and Border Protection, within the Department of Homeland Security (“DHS”), from August 2005 to August 2007.         Mr. Bishop received his position through the Federal Career Intern Program (“FCIP”), which provided for a two-year, excepted service appointment.         Although the FCIP offered the possibility of converting the internship into a career position following completion, Mr. Bishop’s employment was terminated after the two-year term due to unsatisfactory performance.         On April 22, 2009, Mr. Bishop filed an Individual Right of Action (“IRA”) appeal with the Merit Systems Protection Board (“the Board” or “MSPB”) alleging that DHS had discharged him for whistle-blowing activity.  ...   COURT DECISION:   (.pdf)   (.html)

☀       October 4, 2017  ...  DcDc:  Congress v. District of Columbia  ...   Plaintiff Trina Congress was previously employed as a teacher’s aide by the District of Columbia Public Schools (“DCPS”).         Following her dismissal in May 2015, Congress brought suit against the District of Columbia alleging that DCPS had discriminated against her because of her disability, in violation of the Americans with Disabilities Act (“ADA”) [...] ; the Rehabilitation Act [...] ; and the District of Columbia Human Rights Act (“DCHRA”) [...] .         The District has moved to dismiss Congress’s claims, arguing that she either failed to adequately exhaust her administrative remedies, failed to file suit within the statute of limitations, or failed to state a plausible claim.  ...   COURT DECISION:   (.pdf)   (.html)

☀       October 3, 2017  ...  7th Cir:  King v. Ford  ...   LaWanda King worked for many years as an assembler in Ford Motor Company’s vehicle assembly plants.         After transferring to its Chicago plant in 2010, though, she claims that she was sexually harassed by a supervisor, after which she began getting reassigned to less desirable tasks, missing out on overtime, and receiving unwarranted discipline.         Ultimately, she was fired in 2013 after missing several weeks of work for medical reasons that Ford claims she didn’t properly document.         In this suit, King asserts claims for sexual harassment and FMLA interference, and also asserts that Ford retaliated against her for her complaints of sexual harassment and her taking of FMLA leave.  ...   COURT DECISION:   (.pdf)   (.html)

☀       October 3, 2017  ...  DcDc:  Salak v. McCarthy (EPA)  ...   Plaintiff Daniel Salak—an employee of the Criminal Investigations Division (“CID”) of the Environmental Protection Agency (“EPA” or “Defendant”)— has filed the instant action against the EPA under Title VII of the Civil Rights Act of 1964 [...].         Salak alleges that the EPA unlawfully retaliated against him when his supervisors took affirmative steps to reassign him from CID’s Baltimore/Ft. Meade office in Ft. Meade, Maryland, to CID’s regional office in Seattle, Washington, immediately after Salak engaged in an activity that Title VII protects.         Specifically, Salak alleges that the day after he complained that his supervisor’s refusal to approve his request to use sick leave to care for his wife and newborn child was “disparate treatment” of him as a “birth father”, he was informed that he was being transferred to the Seattle office.   ...   COURT DECISION:   (.pdf)   (.html)

☀       September 25, 2017  ...  DcDc:  Lawson v. Lynch (Justice)  ...   During the summer of 2006, pro se plaintiff Sheila Lawson resigned from the Federal Bureau of Investigation (“FBI”) following a nearly 11-year tenure as a Special Agent.         Shortly after her resignation, Lawson had a change of heart, and between 2007 and 2010, she repeatedly asked to be reinstated to her former position.         The FBI denied each of Lawson’s four requests for reinstatement.         In the instant lawsuit, Lawson alleges that the FBI’s refusal to reinstate her as a Special Agent constitutes discrimination on the basis of her age, sex, and race, and was also retaliation for an Equal Employment Opportunity (“EEO”) complaint that Lawson had filed in 2006.   ...   COURT DECISION:   (.pdf)   (.html)

☀       September 25, 2017  ...  DcDc:  Haynes v. Dc Water  ...   Plaintiff Larry Haynes brings this action against his former employer, the District of Columbia Water and Sewer Authority (“DC Water”).         Plaintiff is a 55-year old African American man, who is dyslexic. DC Water “is an independent authority of the District of Columbia that provides retail water and waste water sewer service to the District of Columbia.         An Electrical Equipment Repairer 11/CDL “perform[ed] a wide range of electrical duties independently under the supervision of an electrical foreman.”         In or about 2011, DC Water planned to reorganize and consolidate its “Department of Water, Department of Sewer, and the Water and Sewer Pump Maintenance Branch into one department called the Department of Distribution and Conveyance Systems.”         Management identified positions to abolish and identified “new positions . . . to create to replace the abolished positions and/or meet new organizational requirements.”         One of the positions slated for abolishment was the Electrical Equipment Repairer 11/CDL position.   ...   COURT DECISION:   (.pdf)   (.html)

☀       September 22, 2017  ...  FSIP:  Defense (Portsmouth) v. IFPTE  ...   BACKGROUND:   The Agency is one of four government-owned shipyards dedicated to overhauling submarines. Its mission is to refurbish and update attack submarines. At the Shipyard, there are approximately 6000 employees, and 1600 bargaining-unit employees. The parties' collective-bargaining agreement (CBA) expired in 2014, but has been extended until a new agreement is reached. Negotiations over the CBA are currently ongoing.         Presently, there are 112 IT workers, of which 15 are recent hires. The Agency is planning to hire 15-18 additional workers. In order to fit cubicles for the new workers into the existing space, the cubicles will need to be reconfigured with smaller dimensions. In bargaining ground rules to negotiate the cubicle reorganization, the parties disagreed over one proposal related to travel costs for third-party proceedings.         ISSUE:  The parties disagree over whether the Agency should contribute to the Union's major travel costs when the parties must travel for third-party proceedings, such as appearing before the Panel.   ...   FSIP DECISION:   (.pdf)  (FSIP Decisions)

☀       September 22, 2017  ...  FSIP:  DVA (Decatur, Georgia) v. AFGE  ...   This case, filed by the American Federation of Government Employees, Local 2778 (AFGE or Union) on March 29, 2017, under the Federal Employees Flexible and Compressed Work Schedules Act (Act) of 1982, 5 U.S.C. § 6120, et seq. concerns the Department of Veterans Affairs, Decatur, Georgia, (VA or Agency) seeking to terminate the compressed work schedules (CWS) of some bargaining unit employees.         ISSUE:  The sole issue to be addressed by the Panel is: Whether the Panel can retain jurisdiction because an appropriate Agency official had the proper delegation of authority under the Act to make a declaration of adverse agency impact.  ...   FSIP DECISION:   (.pdf)  (FSIP Decisions)

☀       September 21, 2017  ...  9th Cir:  MKB v. Zurich  ...   A jury awarded MKB Constructors (“MKB”) $1,083,424.24 in compensatory damages for breach of contract, $274,482.47 in compensatory damages under Washington’s Insurance Fair Conduct Act (“IFCA”), and $862,000 in enhanced damages under the IFCA.         American Zurich Insurance Company (“Zurich”) renewed its prior motion for judgment as a matter of law and moved for a new trial, contending that there was insufficient evidence to support the jury’s verdict.         The district court denied both motions, and this appeal followed.  ...   COURT DECISION:   (.pdf)   (.html)

☀       September 21, 2017  ...  FLRA:  NTEU v. Homeland (Customs)  ...   Statement of the Case The grievants are Customs and Border Patrol Officers (officers) who volunteered to work as canine handlers. To become canine handlers, officers are required to successfully complete an Agency training program.         The Union filed a grievance claiming that the grievants should have been paid overtime for time spent studying for the canine training program outside the regular workday. Arbitrator Andrew M. Strongin found that the outside study time did not constitute overtime work under the Customs Officers Pay Reform Act (COPRA) or the Fair Labor Standards Act (FLSA), and denied the grievance.         The only question before us is whether, under the doctrine of collateral estoppel, the Arbitrator was precluded from issuing the award because the issues the award addresses were resolved in a prior Authority decision involving the same parties.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       September 19, 2017  ...  7th Cir:  Monroe v. IDT  ...   Jeff Monroe worked for theIndiana Department of Transportation (“INDOT”) for just over twenty-one years. In January 2013, after seven or eight of Monroe’s subordinates went to Monroe’s supervisor, Terry George, to complain about Monroe’s treatment of them, INDOT conducted an investigation of Monroe’s conduct. During the investigation, Monroe disclosed that recently he had been diagnosed with Post Traumatic Stress Disorder (“PTSD”). After completing the investigation, INDOT discharged Monroe for creating a hostile and intimidating work environment. Monroe then sued INDOT and its Commissioner1 alleging various claims, including that he was terminated “on the basis of” or “solely because of” his mental disability in violation of the Americans With Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act.  ...   COURT DECISION:   (.pdf)   (.html)

☀       September 18, 2017  ...  5th Cir:  Adams v. NLRB  ...   The Board’s order found that Adams violated Sections 8(a)(3) and (1) of the Act by discriminatorily refusing to hire five incumbent employees in order to avoid an obligation to bargain with the Union; and violated Sections 8(a)(5) and (1) by unilaterally imposing initial terms and conditions of employment on the unit employees and banning Union president Genesther Taylor from the Center.   ...   COURT DECISION:   (.pdf)   (.html)

☀       September 18, 2017  ...  FLRA:  AFGE v. NIH  ...   Statement of the Case         The Union has filed a motion for reconsideration of a prior, unpublished Authority order that dismissed the Union’s exceptions to an arbitration award.   ...   FLRA DECISION:   (.pdf)   (.html)

☀       September 14, 2017  ...  CCP:  Parrillo v. Unemployment (UCBR)  ...   Teena M. Parrillo (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board), holding that she is ineligible for unemployment compensation benefits [...] because she voluntarily quit her job without a necessitous and compelling reason.  ...   COURT DECISION:   (.pdf)   (.html)

☀       September 13, 2017  ...  9th Cir:  Hardee v. NCAA  ...   Plaintiff Dominic Hardie appeals the district court’s entry of summary judgment in his suit against the National Collegiate Athletic Association (NCAA).         Hardie, who is African American, alleges that the NCAA’s policy of excluding anyone with a felony conviction from coaching at NCAA-certified youth athletic tournaments violates Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(a), which prohibits racial discrimination in places of public accommodation.         Hardie’s suit rests on a disparate-impact theory of Title II liability.  ...   COURT DECISION:   (.pdf)   (.html)

☀       September 12, 2017  ...  10th Cir:  Sanchez v. Moniz (Energy)  ...   ENERGY "SAFETY-AND-SECURITY CLEARANCE POLICY / READING DISORDER / REASONABLE ACCOMODATION ?  ...   While he was reading a daily report aloud to his colleagues, Sigiefredo Sanchez mixed up the order of words and numbers, skipped over sections, and gave briefing points out of order. These were signs of a reading disorder that Sanchez was unaware he had. Because his job required him to provide transportation information to nuclear convoys, his reading disorder presented a potential threat to national safety. Once his condition was diagnosed, Sanchez lost his safety-and-security clearance. Then, after unsuccessfully requesting accommodations, Sanchez was fired.                 Sanchez sued his former employer for due-process and Rehabilitation Act violations. The district court granted judgment on the pleadings and dismissed Sanchez’s claims. It relied in part on the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988). Egan and later cases relying on it prohibit courts and agencies from reviewing the merits or motives of the Executive Branch’s security-clearance decisions. This bar on judicial and administrative review stems from the principle that security-clearance decisions involve sensitive and classified information of the sort best left to the Executive Branch’s purview.                 But Egan barred only judicial or administrative “review.” 484 U.S. at 529. So Egan would not reach a case with an unchallenged security-clearance decision, requiring no judicial or administrative review.         We find ourselves in that situation today and must decide whether Egan bars our review of Sanchez’s claims.   ...   COURT DECISION:   (.pdf)   (.html)

☀       September 8, 2017  ...  Fed. Cir.:  Piccolo v. MSPB  ...   Mr. Piccolo served as a Detention and Deportation Officer at the Bureau of Immigration and Customs Enforcement, a division of the Department of Homeland Security (“DHS”). At the time of the alleged retaliation, he also worked on detail to the White House Security Council’s DHS Human Smuggling Cell. His disclosure related to DHS’s practice of releasing unaccompanied alien children to non-family sponsors with criminal records.         An employee may demonstrate that the disclosure or protected activity was a “contributing factor” through circumstantial evidence that “the official taking the personnel action knew of the disclosure” and the “action occurred within a period of time such that a reasonable person could conclude” the disclosure contributed to the action. 5 U.S.C. § 1221(e)(1). This court has made clear that the MSPB must “separate the issue of jurisdiction from that of the merits of a petitioner’s case.”   ...   COURT DECISION:   (.pdf)   (.html)

☀       September 8, 2017  ...  NdA:  Stephanie Hicks v. Tuscaloosa  ...   Stephanie Hicks brought this action against the Tuscaloosa Police Department under the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA) after her reassignment and constructive discharge. Hicks prevailed at a jury trial, and the City now appeals the denial of its motion for judgment as a matter of law, its motion for a new trial, and the allegedly erroneous jury instructions.         Hicks worked for the Tuscaloosa Police Department, first as a patrol officer and then as an investigator on the narcotics task force. She was working on the narcotics task force when she became pregnant in January 2012. Hicks’s captain at the time, Jeff Synder, allowed her to work on pharmaceutical fraud cases so she could avoid working nights and weekends. Lieutenant Teena Richardson, Hicks’s supervisor, admitted that it bothered her that Captain Synder allowed Hicks to avoid “on call” duty. Despite Richardson telling Hicks more than once that she should take only six weeks of FMLA leave, Hicks took twelve weeks of FMLA leave from August 2012 to November 2012. Meanwhile, Captain Synder was caught embezzling and was replaced with Captain Wayne Robertson.         Prior to her FMLA leave, Hicks received a performance review from her supervisor Richardson that said Hicks “exceeded expectations.” But on Hicks’s first day back from leave, she was written up. She was also told she should start working with five to seven confidential informants. Hicks overheard Richardson talking to Captain Robertson saying “that b****,” 1 and claiming she would find a way to write Hicks up and get her out of here. And another officer overheard Richardson talking loudly about Hicks saying “that stupid c*** thinks she gets 12 weeks. I know for a fact she only gets six.” ... CONTINUED  ...   COURT DECISION:   (.pdf)   (.html)

☀       September 7, 2017  ...  Fed. Cir.  O'Leary v. Opm  ...   BACKGROUND “An agency may appoint an individual to an administrative law judge position . . . when it makes its selection from the list of eligibles provided by OPM.” 5 C.F.R. § 930.204. O’Leary was on the OPM list of eligibles to SSA as an administrative law judge candidate in 2009, 2010, and 2011. He was considered for three appointments in 2009, but he was not selected.         5 C.F.R. § 332.405 provides that “[a]n appointing officer is not required to consider an eligible who has been considered by him for three separate appointments from the same or different certificates for the same position.” Known as the “rule of three,” § 332.405 has a long history dating back to 1886, and this court has specifically held that this regulation “is lawful.” Lackhouse v. MSPB, 773 F.2d 313 , 317 (Fed. Cir. 1985). O’Leary was removed from the 2012 list of eligibles by SSA after it deemed that he “had [already] received at least three bona fide considerations.”         O’Leary filed three appeals alleging that OPM and SSA violated 5 C.F.R. § 332.405 as applied to him. Specifically, O’Leary alleged that he had not received three considerations from the “appointing officer,” Nancy Peters, as required by the regulation. Rather, according to O’Leary, Peters performed “merely ‘ministerial’” approvals, while the actual appointment considerations were “made by various [other] individuals. ... CONTINUED   ...   COURT DECISION:   (.pdf)   (.html)

☀       September 7, 2017  ...  Fed. Cir.:  Yanko v. United States  ...   Plaintiff Michael Yanko is a part-time federal employee of the U.S. Department of Veterans Affairs. In his class action complaint, which he filed for himself and “on behalf of all other part-time GS and WG federal employees who are or were employed by all federal agencies and who are similarly situated,” he asserts that the class members are entitled to premium pay for work performed on each day designated by statute or Executive Order as an “in-lieu-of” holiday.                 There are ten federal holidays each year. Six of them are celebrated on Mondays, while the other four (New Year’s Day, Independence Day, Thanksgiving Day, and Christmas Day) are         Federal employees, including part-time employees, are paid for holidays that fall on a workday but on which the employee is not required to work. 5 C.F.R. §§ 610.405, 610.406. When employees are required to work on holidays, they are entitled to premium pay for their work on that day that is not in excess of eight hours and is not overtime work. 5 U.S.C. § 5546(b). ... CONTINUED   ...   COURT DECISION:   (.pdf)   (.html)

☀       August 31, 2017  ...  DcDc:  Behrens v. Kerry  ...   This action is brought by Plaintiff Nina K. Behrens pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff is a Senior Diplomatic Interpreter with the Department of State, and principally alleges that she was denied certain high-level interpreting assignments as retaliation for bringing earlier discrimination complaints against her supervisors, which were settled in April 2012. Two counts are alleged against Defendant in the complaint: one for the alleged retaliation, and the other for allegedly creating a hostile work environment, likewise due to the alleged retaliatory conduct. Compl. at 18–20. Pending before the Court is Defendant’s [9] Motion to Dismiss in Part pursuant to Federal Rule of Civil Procedure 12(b)(6). The government contends that certain claims were not administratively exhausted. At this stage, however, the Court cannot conclude that Plaintiff provided such insufficient notice of these claims during the administrative process that dismissal is warranted on exhaustion grounds. The government further contends that Plaintiff has not plausibly alleged a materially adverse action by Defendant, which is required to make out a Title VII retaliation claim. When all reasonable inferences are drawn in Plaintiff’s favor, however, the complaint plausibly alleges that she suffered a diminution of employment responsibilities, and thereby a material adverse action. Whether such inferences are ultimately warranted as a factual matter is to be decided following discovery. Finally, largely on the basis of this same deprivation of employment responsibilities, which Plaintiff alleges was severe and pervasive, the Court finds that Plaintiff has plausibly alleged that she suffered a retaliatory hostile work environment.   ...   COURT DECISION:   (.pdf)   (.html)

☀       August 31, 2017  ...  3rd Cir  Williams v. PHRC  ...     Cheryl Williams, an African-American woman, claims that she was subjected to constant harassment at the Pennsylvania Human Relations Commission (the “Commission”) by her supervisors, Joseph Retort and Adam Stalczynski.         As a result of this treatment, she alleges she faced a hostile work environment and was ultimately constructively discharged from her position as a Human Relations Representative. She then filed this action against the Commission under Title VII of the Civil Rights Act of 1964 (“Title VII”),1 seeking damages for the loss of her job and the harm sustained to her physical and emotional health. She also included claims against her former supervisors, Retort and Stalczynski, claiming that they violated her federal rights under Title VII and the Americans with Disabilities Act (“ADA”)2 and they are therefore liable for damages under 42 U.S.C. § 1983. 3 On defendants’ motion, the District Court granted summary judgment in favor of all defendants.         In this case, we address for the first time whether violations of Title VII and the ADA may be brought through § 1983. In light of the comprehensive administrative scheme established by Title VII and the ADA ... COURT DECISION:   (.pdf)   (.html)

☀       August 30, 2017  ...  6th Cir:  Jones v. Homeland  ...   Jones has been a U.S. Customs and Border Protection (CBP) Officer since 2003 and classified as a CBP Enforcement Officer since 2007.         In June 2011, Jones was denied a position as a Supervisory CBP Officer. DHS filled five Supervisory CBP Officer openings at that time and, according to Jones, CBP promoted four white male employees and one white female employee.         When Jones asked why she did not receive the promotion, she was told that it was because she had a suspension on her record. Jones received a five-day suspension in 2007 for failing to follow a supervisor’s order.         In August 2011, DHS filled additional Supervisory CBP Officer openings from the same pool of applicants who had applied for the June 2011 promotion, and again Jones did not receive the promotion.         DHS filled two openings at this time, promoting one African-American male employee and one African-American female employee.         The African-American male employee who received the promotion in August 2011 also, like Jones, had a suspension on his record. The promoted employee was suspended for three days in 2009 for failing to report outside employment. Jones alleges that their offenses were comparable. Jones states that, “According to the June 21, 2004 U.S. Customs and Border Protection Table of Offenses and Penalties, there is no difference in the severity between a category E (Plaintiff’s) and a category P (African-American male’s) offense.”         On September 7, 2011, Jones filed an EEOC charge alleging sex discrimination.   ...   COURT DECISION:   (.pdf)   (.html)

☀       August 30, 2017  ...  CATn:  Jane Doe v. P.F. Chang  ...   FACTUAL AND PROCEDURAL HISTORY    Plaintiff Jane Doe worked as a hospitality manager at P.F. Chang’s China Bistro in Memphis. Close to midnight on the night of September 12, 2010, she was in the restaurant’s office performing closing procedures with the door to the office locked. Ms. Doe answered a knock at the door, and a masked man entered brandishing a gun.         The man directed her to sit in a chair, where he put tape on her face and asked for the code to the safe; he proceeded to open the safe and take out the money. He then instructed Ms. Doe to move to another chair, where he tied her arms to the sides of the chair, tied her legs, and put more tape on her face.         He then put the money from the safe into a bag, came to the chair where Ms. Doe was restrained, removed her clothes, and proceeded to rape her. The man was later determined to be Jorge Ricardo Rojas-Morin, an employee of the restaurant, who had been at work that evening and, after getting off work, had jammed the emergency door to prevent it from closing, gone to his vehicle to change clothes, returned to the restaurant, and committed the crimes.         Jane Doe and her husband (“Mr. and Mrs. Doe”) filed a complaint on June 24, 2011, against P.F. Chang’s and Rojas-Morin for the injuries she sustained.1 The complaint asserted causes of action against both defendants for intentional infliction of emotional distress, outrageous conduct,2 negligent infliction of emotional distress, and loss of consortium. As to P.F. Chang’s, the complaint asserted causes of action for negligence, gross negligence, negligent hiring, intentional misrepresentation, misrepresentation by concealment, vicarious liability, and constructive discharge.         The complaint asserted causes of action against Rojas-Morin for false imprisonment, sexual assault, and assault and battery. Mr. and Mrs. Doe sought damages for physical and emotional pain and suffering; physical disfigurement; medical bills and expenses; loss of enjoyment of life; and lost wages and loss of earning capacity.   ...   COURT DECISION:   (.pdf)   (.html)

☀       August 29, 2017  ...  DcDc:  Houser v. McDonald (DVA)  ...   Background:    Marsha Houser is an African-American woman who formerly worked in the Department of Veteran Affairs. Following nine years of service in the United States Army, she was diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder. On February 11, 2014, Houser submitted a request for an accommodation due to her disability.         November 21, 2014, Houser met with an Equal Employment Opportunity (“EEO”) Counselor at the Department, alleging that she was discriminated against because of her disability.         On December 1, 2014, Houser was terminated from employment at the Department. She filed an appeal of this adverse personnel action to the Merit Systems Protection Board (“MSPB”) the next day.         Marsha Houser, a former employee of the United States Department of Veteran Affairs, brought suit against her former employer alleging discrimination on the basis of race in violation of Title VII of the Civil Rights Act[...] and discrimination on the basis of disability and retaliation in violation of the Rehabilitation Act [...].   ...   COURT DECISION:   (.pdf)   (.html)

☀       August 28, 2017  ...  DcDc:  Webster v. Energy  ...   Plaintiff, who is an African American female, was employed by DOE as an attorney- examiner in the Office of Hearings and Appeals (“OHA”) from August 2007 through April 2012. Plaintiff’s supervisors were Ms. Ann S. Augustyn, Ms. Janet N. Freimuth, Mr. Fred L. Brown, and Mr. Poli A. Marmolejos.         Plaintiff’s complaint is based on several specific events that occurred throughout the course of her employment, some of which occurred during her high risk pregnancy from October 2010 through July 2011.         They are as follows: 1) she was denied regular flexi-place in February 2011; 2) she was denied medical flexi-place in February 2011; 3) she was denied the reasonable accommodation of a chair for her pregnancy in January and February 2011; 4) she was denied a promotion in May 2011; 5) she was issued a fourteen day suspension on October 3, 2011; 6) she received a performance rating of “needs improvement” on November 3, 2011; 7) she was given a counseling memorandum on November 3, 2011; 8) she was placed on a Performance Improvement Plan (“PIP”) on February 24, 2012; 9) DOE management refused to return her personal banking information to her; 10) DOE officials “loaded [her] Personal Security Investigative File and OPM File with defamatory and inappropriate statements” thereby affecting her ability to get a security clearance; and 11) she was terminated from her position at DOE and removed from federal service employment on April 16, 2012.  ...   COURT DECISION:   (.pdf)   (.html)

☀       August 28, 2017  ...  9thCir:  Alamillo v. BNSF  ...   In 2012, Alamillo worked as a locomotive engineer for BNSF. Due to his seniority, he had the choice to work either (1) a five-day-per-week schedule with regular hours or (2) on the “extra board,” which requires employees to come to work only when called. Alamillo chose to work on the 4 ALAMILLO V. BNSF RAILWAY CO. extra board from January 2012 through June 2012. If an extra board employee failed to answer or respond to three phone calls from BNSF within a single 15-minute period, the employee would be deemed to have “missed a call” and marked as absent for the day. BNSF’s attendance policy provided that a fifth missed call during any twelve-month period “may result in dismissal.”         Alamillo missed a call on ten dates in 2012: January 28, January 29, January 31, March 16, March 18, March 20, April 23, May 13, May 21, and June 16. He chose to receive “Alternative Handling” for the three January missed calls, which meant that he received additional training instead of discipline. After his next four missed calls, Alamillo received a 10-day suspension and a 20-day suspension. At that point, Richard Dennison, the superintendent of the terminal where Alamillo worked, advised him to get a landline or a pager (he had given BNSF only a cell phone number) to ensure that he would not miss another call.         Alamillo did not give BNSF a pager or landline phone number; he was having an affair at the time, and he did not want BNSF to call a landline number because there were occasions when he left the house to see his girlfriend when his wife thought he was at work. Nor did Alamillo (1) seek transfer to a five-day-per-week job; (2) set his alarm for 5:00 a.m., the most common time for BNSF to call, like he had done when he previously worked on the extra board; (3) ask his wife to wake him up if his mobile phone rang while he was sleeping; or (4) check the electronic job board to see the jobs for which he could be called the next day. Sure enough, he missed three more calls.  ...   COURT DECISION:   (.pdf)   (.html)

☀       August 24, 2017  ...  United States Court of Federal Claims:  Young v. United States (SEC)  ...   WOW ... THIS IS A REAL MEATY CASE. I RECOMMEND THIS FOR READING AND DISCUSSION BY EMPLOYEE RELATIONS AND OTHER HR STAFF.  ...   Background     Mr. Young has been an employee of the SEC since October 2012 and currently serves as Senior Counsel in the SEC Office of the Whistleblower.     During the relevant time period, Mr. Young served as an Attorney-Advisor in the SEC’s Office of Equal Employment Opportunity (“OEEO”).     On February 27, 2014, Mr. Young allegedly sent an inappropriate email to his colleagues discussing his frustrations with members of another culture.     On March 5, 2014, Mr. Young allegedly had an “outburst” in another co-worker’s office. Id. These two events prompted the Chief Human Capitol Officer, Ms. Lacey Dingman, to issue Mr. Young a “Notice of Proposed Fourteen Calendar Day Suspension” (“the Notice”) on June 6, 2014.     The Notice informed Mr. Young that “[t]his is only a proposal” and described his rights to challenge the proposed suspension.         Mr. Young disputed the factual allegations set forth in the Notice and objected to the proposed suspension.     On July 17, 2014, following negotiations, Mr. Young and the SEC entered into a Settlement Agreement.     Under the Settlement Agreement, Mr. Young agreed to take four actions: (1) “accept a ten (10) day suspension, which will be documented permanently in [Mr. Young’s] Office Personnel Folder;” (2) perform a “nine (9) month interagency detail to the U.S. Attorney’s Office;” (3) “[n]ot to challenge the voluntariness of the ten (10) day suspension or detail before the Merit Systems Protection Board . . . or in any other forum”; and (4) to waive any other claims Mr. Young may have against the SEC. ... CONTINUED  ...   COURT DECISION:   (.pdf)   (.html)

☀       August 18, 2017  ...  3rd Cir:  Grant v. Homeland  ...   Grant is a former employee of the Transportation Security Administration (“TSA”) of the U.S. Department of Homeland Security (“DHS”). He began his employment with the TSA in 2002, and he was issued a letter of termination, effective July 18, 2008, based on allegations of falsification of time and attendance records.   ...   The termination notice advised Grant that he could seek relief through an appeal to TSA’s Disciplinary Review Board (“DRB”), and, with the apparent representation of counsel, Grant appealed by completing a DRB appeal form in early August 2008. The appeal form advised Grant that if he believed he had been discriminated against on the basis of, among other things, race, “you may contact an [Equal Employment Opportunity (‘EEO’)] counselor within 45 days of the effective date of the action being appealed.”   ...   Appellant Garnet Grant alleges his employment was terminated based on his race and color in violation of Title VII of the Civil Rights Act of 1964     DECISION:   (.pdf)   (.html)

☀       August 17, 2017  ...  FLRA:    Citation# 70 FLRA 316   Issuance# 66    Case# 0-AR-5264    Arbitrator: Ross      Parties:  International Federation of Professional and Technical Engineers, Association Administrative Law Judges (Union) and Social Security Administration, Office of Disability and Appeals Review (Agency)    Statement of the Case:   Arbitrator Jerome H. Ross denied the Union’s grievance challenging a telework memorandum issued by the Agency, finding that the grievance was not arbitrable based on the same final sentence in two telework-related sections of the parties’ collective-bargaining agreement (agreement). Specifically, the Arbitrator found that both telework provisions required telework to have been restricted before the Union could challenge the Agency’s action. The Union filed exceptions to the award.      First, we must decide whether the award fails to draw its essence from the parties’ agreement.      Second, we must decide whether the award is contrary to the Telework Enhancement Act.      (.pdf)   (.html)

☀       August 15, 2017  ...  Fed Cir:  Dale v. Navy  ...   Mr. Dale is employed as an attorney in the Navy’s Office of General Counsel. On May 28, 2013, Mr. Dale was issued a Notice of Proposed Furlough. The May 2013 Notice stated that the Navy proposed to furlough Mr. Dale no earlier than 30 days after his receipt of the notice. It further stated that the furlough “is necessitated by the extraordinary and serious budgetary challenges facing [DoD] for the remainder of Fiscal Year (FY) 2013, the most serious of which is the sequester that began on March 1, 2013.” J.A. 223. On June 24, 2013, Mary Wohlgemuth, Technical Director, Naval Undersea Warfare Center (“NUWC”) Division, Newport, Rhode Island, issued to Mr. Dale a Notice of Decision to Furlough. The June 2013 Notice upheld the reasoning provided in the Notice of Proposed Furlough and required Mr. Dale to be on discontinuous furlough for up to 11 workdays between July 8, 2013 and September 30, 2013. The June 2013 Notice advised Mr. Dale of his right to appeal the Navy’s furlough decision to the Board. In July 2013, Mr. Dale filed an appeal with the Board. In August 2013, following congressional and agency budgetary action, Secretary Hagel reduced the furlough from 11 days to 6 days..  ...   COURT DECISION:   (.pdf)   (.html)

☀       August 14, 2017  ...  FLRA:  Parties: AFGE, Defence (DLA)    Citation# 69 FLRA 567   Issuance# 65    Case# 0-AR-5166    Arbitrator: Moffett      Statement of the Case:   Arbitrator Kenneth E. Moffett issued an award (first award) in AFGE, Local 1992 ( AFGE I ) denying the Union’s grievance alleging that the Agency improperly denied the grievant’s reasonable-accommodation request. The Union filed exceptions to the Arbitrator’s award, and the Authority granted the Union’s exceptions, remanding the award to the parties for resubmission to the Arbitrator, absent settlement.           On remand, the Arbitrator reversed his original finding and issued an award (remand award) finding that the Agency “ha[d] not made an effort to find reasonable accommodations” for the grievant. The Arbitrator granted relief in the form of telework, but did not grant any monetary damages. Both parties filed exceptions to this remand award.           The Agency’s first exception argues that the award is contrary to law because the Arbitrator failed to comply with the remand instructions in AFGE I and did not cure the contrary-to-law deficiencies of the first award. Because the Arbitrator failed to make any necessary findings—and by doing so the Authority again cannot determine whether the award is contrary-to-law—we again remand the matter to the parties for resubmission to the Arbitrator—or a different one—absent settlement, for further proceedings consistent with this decision.           The Agency’s remaining exceptions and the Union’s exceptions challenge the remedy granted in the remand award. Because we are remanding this case on the merits, we will not consider them now.      (.pdf)   (.html)

☀       August 14, 2017  ...  Fed Cir:  Licari v. Transportation  ...   Mr. Licari worked for the United States Department of Transportation (“agency”) from 2004 until his removal in March 2016. At the time of his removal, Mr. Licari was a senior transportation analyst for a division of the agency responsible for reviewing and approving oil spill response plans.         During his tenure at the agency, Mr. Licari was subject to annual performance appraisals. A July 2015 appraisal of Mr. Licari’s 2014–2015 performance resulted in an “unacceptable” rating in three job elements. See S.A. 93, 95–96. The only job element relevant to this appeal is Critical Element 4, which states that employees must “perform[] reviews of onshore pipeline oil spill response plans . . . [and] accurately follow[] review guidelines 85% of the time.” S.A. 19, 96. Each response plan required Mr. Licari to review oil operators’ answers to 38 questions. Mr. Licari accurately reviewed several of the 38 questions less than 85% of the time. For example, he correctly reviewed Question 16 only 33% of the time.         In September 2015, the agency placed Mr. Licari on a Performance Improvement Plan (“PIP”) and issued a memorandum explaining how he needed to improve his performance. S.A. 101–05. The memorandum allowed Mr. Licari 90 days “to demonstrate acceptable performance,” assigned him a mentor, and set regular check-in meetings.         The agency issued its decision to remove Mr. Licari and denied Mr. Licari’s Step 3 Grievance. The agency noted that if Mr. Licari was unsatisfied, he could proceed to arbitration through his union.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)

☀       August 14, 2017  ...  MiCtApp:  Payment v. Transportation  ...   Plaintiff appeals by right the trial court’s grant of summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). This matter arose because defendant repeatedly passed plaintiff over for a promotion in favor of applicants plaintiff contends were less qualified. Plaintiff alleges that defendant discriminated against her for her depression and anxiety contrary to the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq. The trial court concluded that plaintiff was not “disabled” under the PWDCRA and Michigan case law interpreting the act, and even if she was disabled, she had failed to show that defendant either relied on any such disability or retaliated against her in making its hiring decisions.  ...   COURT DECISION:   (.pdf)   (.html)

☀       August 10, 2017  ...  MSPB:  Griesbach v. DVA (Tuscaloosa, AL)  ...   BACKGROUND:    Ms. Griesbach was appointed to the position of Nurse Practitioner at the Tuscaloosa Veterans Administration (“VA”) Medical Center in August 2008. She worked in the mental health unit, treating patients admitted to the center’s homeless domiciliary unit. In September 2014, the VA announced a vacancy for the position of Certified Registered Nurse Practitioner (“CRNP”) in Research and Development Service, to which Ms. Griesbach applied. Ms. Griesbach interviewed for the position, but she was not selected. Ms. Griesbach filed a complaint with the Office of Special Counsel (“OSC”) on March 14, 2015, alleging whistleblower retaliation by the VA.     Here, Dana Griesbach appeals from a Merit Systems Protection Board (“Board”) decision denying her request for corrective action pursuant to the Whistleblower Protection Act (“WPA”).   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)

☀       August 10, 2017  ...  FLRA:  Citation# 70 FLRA 309    Issuance# 64    Case# 0-AR-5258    Arbitrator: Reed      Statement of the Case:   The Union filed a grievance alleging that the Agency violated the parties’ agreement by not selecting the grievant for a position for which she applied. Arbitrator Mark L. Reed sustained the grievance, but did not award backpay under the Back Pay Act (BPA). Moreover, the Arbitrator denied the Union’s request for attorney fees.      The Union, having prevailed on the merits, argues that the Arbitrator erred by not granting the grievant backpay, and by not awarding attorney fees.      (.pdf)   (.html)

☀       August 10, 2017  ...  FLRA:  Citation# 70 FLRA 306    Issuance# 63    Case# 0-NG-3322      This matter is before the Authority on a negotiability appeal filed under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of one proposal that reserves to the Union the right to contest lack of appropriate nurse training. The Agency filed a statement of position (statement) and the Union did not respond to the statement.     Background    The Agency notified the Union that it intended to make a change to the required competency of registered nurses (RNs) who staff the operating rooms. The Agency also employs surgical-scrub technicians who are outside this bargaining unit, and whose primary duty is to “scrub cases.” This entails assisting in the operating room by passing instruments to surgeons, retracting tissue during surgery, or performing other duties as instructed. Previous to the notice, if also qualified, RNs could perform these duties, but only if they volunteered to do so. The Agency notified the Union that following training, it would require all operating room RNs be available to do so as needed. (.pdf)   (.html)

☀       July 19, 2017  ...  VAOIG:  ADMINISTRATIVE INVESTIGATION – CONFLICTING INTERESTS AND MISUSE OF GOVERNMENT EQUIPMENT, OVERTON BROOKS VA MEDICAL CENTER (VAMC), SHREVEPORT, LOUISIANA (LA)      VA Office of Inspector General Administrative Investigations Division investigated an allegation that Dr. [xxxxxxx] (GS-14), Assistant Chief, and Ms. [xxxxxxx] (GS-12), Operations Manager, Mental Health Service (MHS), engaged in conflicting interests when they received wages, salaries, and/or profits from educational institutions that operated for profit. We also investigated whether Dr. [xxxxxxx] and Ms. misused [xxxxxxx] Government equipment in support of their outside employment activities. Further, we investigated an allegation that Ms. [xxxxxxx] (GS-6), Supervisory Medical Support Assistant, Primary Care Service (PCS), and Ms. [xxxxxxx] improperly accumulated compensatory time since August 2012 due to Dr. James Patterson (GS-15), Chief of MHS, failing to properly manage them. Finally, we investigated an allegation that Dr. [xxxxxxx] (GS-13), MHS Staff Psychologist, improperly accumulated overtime since January 2013.      Summary   Report

☀       July 18, 2017  ...  5th Cir:  Patton v. JEG  ...   COWORKERS MOCKED HIS STUTTERING AND MADE LOUD NOISES RIGHT BEHIND HIM ?   ...   Patton designs electrical and instrumentation systems. He also has an obvious stutter.         Around the time he was hired, Patton told Emily Wimbley, a Talascend recruiter, about his stuttering and anxiety problems, which he said “all go[] together.”         Patton alleges that his coworkers at Jacobs harassed him on account of his stutter. For example, coworkers would call him names such as lawnmower and bush hog (a type of lawnmower). Additionally, coworkers who passed him in the hallway or met him on the elevator would mock his stuttering, and coworkers who sat near him would mock him and make loud noises right behind him. Even his supervisor, Greg Guillory, allegedly mocked him at a department-wide meeting in front of fifty coworkers.         According to Patton, the harassment and excessive noise at Jacobs caused him to experience severe anxiety.         As a result of this stress, Patton suffered a panic attack while driving and got into a car accident on February 28, 2014.         Patton did not return to work at Jacobs after this accident.   ...   COURT DECISION:   (.pdf)   (.html)

☀       July 18, 2017  ...  FLRA:  AFGE v. NTEU(union)  ...   AFGE TO NTEU: DONT MAKE ME CUT YOU !  ...   AFGE has filed an application for review of the attached decision of FLRA Regional Director Philip T. Roberts (RD).         As relevant here, the National Treasury Employees Union (NTEU) petitioned the RD to represent the Agency’s professional employees, and submitted a sufficient showing of interest. AFGE requested that this petition be held in abeyance until AFGE’s petition to consolidate a unit of professional and nonprofessional employees at the Agency was resolved. After the RD certified the consolidated unit, he reopened NTEU’s case. AFGE objected to an election between the two unions, citing the certification bar of § 7111(f)(4) of the Federal Service Labor-Management Relations Statute (Statute).[1] After a hearing, an election was held and the bargaining-unit employees voted for NTEU.         In its application, AFGE argues that the RD failed to apply established law, and that, in the alternative, there is an absence of precedent on this issue.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       July 14, 2017  ...  Dc Ndi:  Sommerfield  v. Chicago  ...   HE WON $30,000 FOR HIS DISCRIMINATION CASE ... HIS ATTORNEY DEMANDS $1.5 MILLION IN FEES.  ...   After years of protracted litigation, a jury awarded Chicago Police Officer Detlef Sommerfield $30,000 in his workplace discrimination suit. For his efforts, Sommerfield’s lawyer requested $1.5 million in attorney’s fees, a sum the district court reduced to $430,000. Sommerfield now appeals, challenging the district court’s handling of his case and, in particular, its refusal to grant his attorney the full $1.5 million.   ...           Sommerfield has been an officer with the ChicagoPolice Department (CPD) since 1994. From 2000 to 2007 he was assigned to the Eighth District, where he worked withSergeant Lawrence Knasiak. Sommerfield is Jewish and German, which evidently bothered Knasiak.         Throughout that time Knasiak publicly made offensive remarks about Sommerfield’s ethnicity. Examples include “Jews are bloodsucking parasites” and “Germans are like niggers, couldn’t get rid of them then, can’t get rid of them now.” We will not belabor the point—Knasiak’s other comments were similarly outrageous.         Sommerfield complained, and in March 2004 CPD’s Internal Affairs Division launched an investigation of Knasiak that culminated in his suspension in April 2007. (Knasiak retired that June and so he never served this suspension.)         Sommerfield also filed a charge with the Equal Employment Opportunity Commission (EEOC), which found “reasonable cause to believe that [CPD] violated Title VII by harassing [Sommerfield] based on his national origin, German, and religion, Jewish.”   ...   COURT DECISION:   (.pdf)   (.html)

☀       July 13, 2017  ...  FedCir:  Solis v. MSPB (Homeland)  ...   EVEN THOUGH LIE DETECTORS ARE FAKE AND EASILY DEFEATED, SOME FEDS STILL USE THEM.  ...   Fernando Solis appeals the Merit Systems Protection Board’s (Board) conclusion that it lacked jurisdiction to review U.S. Customs and Border Protection’s (CBP) non-selection of Mr. Solis for positions as a Customs and Border Protection Officer (CBPO) and a Border Patrol Agent (BPA).         Although CBP extended tentative offers for these law enforcement positions to Mr. Solis, it rescinded these tentative offers when he failed a polygraph examination. Generally, an unsuccessful candidate for a Federal civil service position has no right to appeal to the Board his non-selection.         However, where a hiring agency undertakes a “suitability action” that could broadly preclude hiring the candidate for any position at the agency, the candidate may appeal that action to the Board.         Mr. Solis argued below that he was subjected to an appealable “suitability action,” as defined in 5 C.F.R. § 731.203. CBP disagreed, contending that its non-selection of Mr. Solis for these two positions was simply an “objection to an eligible” under 5 C.F.R. § 332.406, which is not appealable.  ...   COURT DECISION:   (.pdf)   (.html)

☀       July 12, 2017  ...  MSPB:  TOTAL POWER v. FERC  ...   WE ARE "TOTAL POWER" SO WE DON'T GOTTA LISTEN TO NO STINKIN' GOV'T AGENCY!  ...   We are presented with a challenge to the authority of the Federal Energy Regulatory Commission to adjudicate violations of the Natural Gas Act and to impose civil penalties on violators.         TOTAL Gas & Power North America, Inc., a company that trades in North American natural gas markets, and two of its trading managers brought this declaratory judgment action against the Commission arguing that the Commission was precluded from adjudicating violations or imposing civil penalties because the Natural Gas Act vests authority for those activities exclusively in federal district courts.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)

☀       July 12, 2017  ...  FLRA:  NLRB [Prof Union] v. NLRB  ...   THESE NLRB EMPLOYEES/UNION SHOULD BE ASHAMED OF THEMSELVES ... BUT THEY ARE NOT.  ...   This case is before the Authority on a negotiability appeal (petition) that the Union filed under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition involves the negotiability of three proposals that concern the Agency’s implementation of WebTA, an electronic timekeeping system.         The parties’ instant dispute arose when the Agency notified the Union that it intended to transition from its existing automated timekeeping system to WebTA, an electronic timekeeping system.         WebTA requires all employees to enter their own work time online and to certify the accuracy of the entry. The Union made a number of proposals concerning WebTA.         Three of those proposals would, in effect, exempt all bargaining-unit employees from their obligations under WebTA. The Agency declared those three proposals outside the duty to bargain as contrary to management’s right to assign work under § 7106(a)(2)(B) of the Statute.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       July 11, 2017  ...  11th Cir.:  Welcome v. Mabus   ...   DID HIS DISTRICT COURT APPEAL .. WAIVE MIXED CASE CLAIMS .. AFTER UNFAVORABLE MSPB RULING ?   ...   James Welcome appeals the District Court’s grant of the Secretary of the Navy’s motion to dismiss, or, in the alternative, for summary judgment, in his lawsuit under the Civil Rights Act of 1964 [...] and the Americans With Disabilities Act (“ADA”).         Welcome argues that the district court erred when it dismissed his complaint on the ground that he had waived all of his claims by pursuing an appeal of those claims to the Federal Circuit Court of Appeals after the Merit Systems Protection Board (“MSPB”) entered an unfavorable ruling.   ...   COURT DECISION:    (.pdf)   (.html)

☀       July 11, 2017  ...  9th Cir.:  Karczewski v. Dch   ...   PLAINTIFF, A PARAPLEGIC, DEMANDS USED CAR DEALER TO INSTALL HAND CONTROLS FOR A TEST DRIVE.    ...   Plaintiff “is a level T10/11 paraplegic who is paralyzed from the waist down, cannot walk, and . . . uses a wheelchair for mobility.” “He drives a specially equipped vehicle with hand controls,” and he “has a disabled persons placard . . . [and] a driver’s license.” Defendant is “a facility open to the public . . . and a business establishment” that sells cars. Defendant permits potential buyers “the opportunity to test drive vehicles that they are considering buying.”         Plaintiff visited Defendant’s business with the intention of buying a used car. He asked Defendant’s employees “for the opportunity to test drive a vehicle and informed them that he could not use his legs and, therefore, needed to have vehicle hand controls temporarily installed on the vehicle so that he could avail himself of this opportunity.” The employees told Plaintiff that Defendant “does not install vehicle hand controls on any vehicles for sale and that they would not do so for him as an accommodation.”         Following Defendant’s refusal to facilitate a test-drive, Plaintiff brought this action, alleging that Defendant’s failure to install temporary vehicle hand controls violated the ADA.        Plaintiff also alleged violations of state law.   ...   COURT DECISION:   (.pdf)   (.html)

☀       July 10, 2017   ...  DcDc:  Poole v. GPO   ...   PLAINTIFFS ARE FIFTEEN CURRENT OR RECENT AFRICAN-AMERICAN EMPLOYEES OF THE GPO.   ...   Plaintiffs are fifteen current or recent African-American employees of the GPO and the estate of a sixteenth such individual who died during the course of this litigation.         They work or worked in the GPO’s Digital Print Center, the staff of which is “exclusively African-American.” In July 2008, they contacted the GPO’s Equal Opportunity Office and subsequently filed several EEO complaints in which they alleged that “they were paid less than Caucasian employees of the GPO doing the same work because of their race.”         More specifically, the problem was that DPC employees were classified for pay-scale purposes as printing-plant workers — a lower-paid non-craft position — rather than journeymen bookbinders — a higher-paid craft position — even though their responsibilities, training, and expertise had evolved alongside advancements in technology such that “they performed the same work as higher-paid workers, more efficiently.”         “[T]he GPO refused to establish performance standards and update [its] antiqu[ated] job descriptions,” which Plaintiffs contend was based on race.         Shortly after Plaintiffs filed their pay-discrimination EEO complaints, they began to experience what they argue was retaliatory harassment at work.  ...   COURT DECISION:   (.pdf)   (.html)

☀       July 05, 2017  ...  FLRA:  Air Force v. NAIL (union)  ...   WAS THE ARBITRATOR'S AWARD CONTRARY TO LAW ?  ...   Statement of the Case:    The Union filed a grievance alleging that the Agency unlawfully required Air Reserve Technicians (ARTs), who are members of the Air Force Reserve, to wear military uniforms while performing civilian duties. The Agency contended that this requirement was authorized under 10 U.S.C. § 772(j)(2) which, according to the Agency, allows it to require ARTs to wear military uniforms even when they are not on active military duty. Arbitrator Ellen S. Saltzman rejected the Agency’s contention and found that requiring ARTs to wear military uniforms when they are not on active duty is contrary to law.         The question before us is whether the award is contrary to law.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       July 05, 2017  ...  MSPB:  Special Counsel v. Navy  ...   WAS NAVY'S DECISION TO REINSTATE MR. SCHWARZ’S REMOVAL WHISTLE-BLOWER RETALIATION ?  ...   OSC alleges that Mr. Schwarz made disclosures beginning in September 2013 through his chain of command and in a disclosure complaint to OSC on June 9, 2015, that employees were improperly testing aircraft fueling equipment and fuel and improperly and hazardously disposing of jet fuel.         OSC states that, after it referred Mr. Schwarz’s disclosures for further investigation to the Secretary of the Navy, an investigation by the Navy Inspector General substantiated the disclosures.                 In its June 28, 2017 stay request, OSC alleges that it has reasonable grounds to believe that on June 8, 2017, the Department of the Navy (Navy) reinstated Mr. Schwarz’s removal, which previously had been held in abeyance pursuant to a settlement agreement, as a result of a prohibited personnel practice.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)

☀       June 30, 2017  ...  DcDc:  SAMUEL v. MPD  ...   I'M A VICTIM BECAUSE I'M FEMALE & CANADIAN & MPD DIDN'T LIFT A HAND STOP MY VISA FROM EXPIRING.  ...   This is a case where there simply is no “there” there. Ms. Laurie Samuel was forced to resign from the District of Columbia Metropolitan Police Department because her visa expired and she could not obtain permanent residency status. Ms. Samuel claims that her employer, through human resources director Ms. Diane Haines-Walton, withheld information from her that would have given her the opportunity to apply for a visa extension, which would allow her to continue working in the United States.         Neither side disputes that Ms. Samuel was threatened with termination and that it would have been illegal for the D.C. Metropolitan Police Department to continue to employ her. Understandably frustrated, Ms. Samuel contends that her resignation was the inevitable consequence of Ms.         Haines-Walton’s sabotage of her visa application, a sabotage Ms. Samuel asserts was carried out because she is from Canada and because she complained about Ms. Haines-Walton’s discriminatory treatment.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 28, 2017  ...  FLRA:  SATCO v. AirForce  ...   THE ANSWER IS NO.  ...   Sport Air Traffic Controllers Organization (Union)      United States Department of the Air Force, Edwards Air Force Base, California (Agency):    The Agency denied the grievant’s reimbursement request for medical expenses related to maintaining his air-traffic-controller certification. The Union filed a grievance alleging, in part, that the reimbursement denial is contrary to a government-wide regulation. Arbitrator Richard B. Danehy denied the grievance. The main question before us is whether the award is contrary to law because, according to the Union, an Office of Personnel Management (OPM) regulation, 5 C.F.R. § 339.304, requires the Agency to reimburse employees for certain medical tests.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       June 28, 2017  ...  VAOIG:   Review of Alleged Mismanagement of VHA's Patient Transportation Service Contract for the Jesse Brown VAMC in Chicago, IL        Summary: In March 2015, the Office of Inspector General received an allegation of mismanagement of the patient transportation service contract for the Jesse Brown VA Medical Center, Chicago, IL, which resulted in a waste of funds. We substantiated the allegation of contract mismanagement. Specifically, the Great Lakes Acquisition Center (GLAC) contracting officer (CO) did not adequately validate performance requirements to determine the required quantity of transportation trips. The CO did not adequately determine price reasonableness or fully fund the contract prior to obligating the Government.    SUMMARY: (.html)       REPORT: (.pdf)

☀       June 28, 2017  ...  VAOIG:   Review of Alleged Irregular Use of Purchase Cards by VHA’s Engineering Service at the Carl Vinson VA Medical Center in Dublin, Georgia       Summary: The Office of Inspector General conducted this review in response to allegations that Dublin VA Medical Center (VAMC) purchase cardholders split purchases and made duplicate payments to Ryland Contracting Incorporated and Sterilizer Technical Specialists. We substantiated the allegation that VAMC Dublin cardholders in Engineering Service made unauthorized commitments by splitting purchases and exceeding micro purchase limits. Of 130 sampled purchases made from October 2012 through March 2015, 23 were split purchases that avoided the $3,000 limit for supplies and 14 were purchases that exceeded the $2,500 limit for service.    SUMMARY: (.html)       REPORT: (.pdf)

☀       June 23, 2017  ...  VAOIG:  ADMINISTRATIVE INVESTIGATION MISUSE OF OFFICIAL TIME AND FAILURE TO PROPERLY SUPERVISE VA HEALTH CARE SYSTEM OKLAHOMA CITY, OKLAHOMA.      ISSUE 1: DR. [REDACTED] Made False Claims And Was Dually Compensated When He Certified And Submitted Va Subsidiary Timecards For Hours He Worked At Jhu.                 ISSUE 2: Dr. [REDACTED] Misused His Official Time By Performing Non-Va Duties On Va Time And For Teleworking Without Authorization                 ISSUE 3: Dr. [REDACTED] Frequently Travelled To Participate In Non-Va Sanctioned Events While Claiming Va Hours On His Timecard.                 ISSUE 4: Dr. Comp Failed To Properly Supervise Dr. [REDACTED] And Certified His Timecards Without Verifying Dr. [REDACTED] Worked The Hours For Va.      Summary   Report (.pdf)

☀       June 22, 2017  ...  IA.CT.APP:  Tibodeau v. CDI  ...   THE JURY FOUND TIBODEAU WAS CONSTRUCTIVELY DISCHARGED.  ...   Plaintiff Brittney Tibodeau sued her former employer, CDI, LLC (hereinafter “CDI”), and her former supervisor at CDI, David Monoit, for sex discrimination, sexual harassment, and retaliation.         Tibodeau worked at CDI in Forest City in 2013. During the summer of that year, Tibodeau took leave for a medical issue. While on leave, Tibodeau attempted suicide. She was treated for depression and anxiety and returned to work.         The workplace was hostile. Tibodeau’s coworkers discussed her body in offensive terms, called her derogatory names, started a rumor she was having an affair with another employee, looked at a nude photo of her, displayed provocative photos of women throughout the work area, made phallic shapes out of tape, made humping motions behind her when she bent over, discussed the intimate hygiene practices of a female coworker, made sexually suggestive jokes, discussed pornography, made comments about raping women and children, and threw balled-up tape at Tibodeau’s breasts and backside. As a result of this conduct, Tibodeau terminated her employment with CDI after her boyfriend, who also worked at CDI, was fired.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 21, 2017  ...  FLRA:  AFGE v. ARMY  ...   ANOTHER GOOD-FOR-NOTHING FED UNION WASTING TAXPAYER MONEY INTERFERING WITH MGMT DECISIONS.  ...   Statement of the Case: Arbitrator Joe M. Harris Jr. issued an award denying the Union’s non-selection grievance on the merits. He found that the Agency did not violate the parties’ agreement, Policy Memorandum CG-50 (CG-50), or any other law, policy, rule, or regulation when the Agency selected two individuals for two supervisory positions.         Specifically, the Arbitrator found that the Union’s numerous factual challenges to the selection process failed to meet the Union’s burden of demonstrating that, but for these violations and incongruities, the grievant would have been selected. The Union filed exceptions.         First, we must decide whether the award is contrary to 5 C.F.R. § 335.103. The Union argues that since the selectee was not qualified to be on the certificate of eligibles, management did not select from among properly ranked and certified candidates for promotion.         Second, we must decide whether the award fails to draw its essence from Article 19 of the parties’ agreement.         Third, we must decide whether the award is based on nonfacts.         Fourth, we must decide whether the Arbitrator was biased. The Union states that the Arbitrator may have been biased against it because the Union alleges it contacted the Federal Mediation and Conciliation Service (FMCS) after the award was more than five months overdue.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       June 19, 2017  ...  DOJ.OIG:  IF YOU ARE GONNA BE AN SES SLEAZE, MAKE SURE YOU HIT ALL THE "INAPPROPRIATE" BASES.       INVESTIGATIVE SUMMARY: Findings Concerning Improper Hiring Practices, Inappropriate Interactions with Subordinates and a Contractor, and False Statements by a Senior Executive with the Executive Office for Immigration Review         The Department of Justice (DOJ) Office of the Inspector General (OIG) initiated an investigation of a senior executive with the Executive Office for Immigration Review (EOIR).         The OIG found that the executive engaged in improper hiring practices when, on seven separate occasions, the executive disregarded merit system principles to hire close friends and associates as DOJ employees or DOJ contract personnel over applicants with superior qualifications for the positions.         The OIG also found that the executive initiated and approved the promotion of a friend before the individual was eligible for promotion, nominated a friend for a monetary award without sufficient justification, and promoted a friend who lacked qualifications for the position.         In addition, the OIG found that the executive maintained an inappropriate personal relationship with a subordinate, and solicited and accepted gifts and donations from subordinates, in violation of federal statutes and regulations, and DOJ policy.      Summary (.pdf)

☀       June 19, 2017  ...  D.C. Cir.:  Lee v. AID  ...   THEY FIRED ME BECAUSE I'M CHINESE.  ...   Jim Lee, proceeding pro se, appeals the grant of the motion for judgment on the pleadings to the USAID and NOAA. Lee contends that the agencies violated Title VII of the Civil Rights Act[...], by terminating his employment because of his national origin.         According to the complaint, Lee was employed by a federal contracting firm and worked at USAID from 2008 until he was fired in 2013. Lee alleges that USAID terminated his employment after the Department of Defense denied his application for a security clearance in 2012, and that he was denied a clearance because he and his family are from China.         He also contends that NOAA violated 18 U.S.C. § 1001, which criminalizes false statements to the government, by lying about why he was terminated.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 15, 2017  ...  Fed. Cir.:  McDermott v. USPS  ...   THE PETITIONER CHALLENGES THE POSTAL SERVICE'S DECISION TO PLACE HIM ON ENFORCED LEAVE.   ...   Mr. McDermott was a maintenance mechanic at the Seattle Priority Mail Annex. His position involves “trouble-shooting and complex maintenance work throughout the system of mail processing equipment,” and performing “preventative maintenance inspections of mail processing equipment, building and building equipment. The position is technically and physically demanding, and requires the “ability to distinguish colors.”         After his employer instituted a color-coded system to track maintenance operations, Mr. McDermott disclosed that he was colorblind. Even though the use of the color-coded system ceased due to Mr. McDermott’s objections, Mr. McDermott’s superiors expressed concerns as to whether Mr. McDermott could safely perform his job, which included working with colored electric wiring for buildings and machinery.         Thus, USPS attempted to engage Mr. McDermott in an established reasonable accommodation and light duty process to address the issue. Mr. McDermott, however, did not respond to these attempts.         Mr. McDermott reportedly stated that he did not want to participate in the reasonable accommodation process or go on light duty because of his belief that another employee was fired on light duty.  ...   COURT DECISION:   (.pdf)   (.html)

☀       June 14, 2017  ...  10th Cir:  Jones v. Price  ...   THIS IS A TYPICAL AGE DISCRIMINATION CASE.  ...   HHS issued vacancy announcements for seven positions with the Centers for Disease Control and Prevention (CDC). Three of the positions were for Public Health Advisors, and four were for Health Communications Specialists. Each position required one year of specialized experience at or equivalent to the GS-11 or GS-12 level, defined as experience that had equipped the applicant to successfully perform the duties of the position.         Mr. Jones, who was sixty-four years old at the time, submitted an online application for each of the seven positions. Human Resources (HR) specialists concluded that he was not a qualified applicant because he lacked the required year of specialized experience. As a result, Mr. Jones’s name was not forwarded to the selecting official for any of the positions.         Mr. Jones filed a complaint of employment discrimination with HHS, alleging that the non-referrals were due to age discrimination.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 13, 2017  ...  FedCir:  Whittaker v. DVA  ...   IN THE HISTORY OF THE WORLD, HAS ANYONE EVER SURVIVED A 3 YEAR LAST CHANCE AGREEMENT ?.  ...   Ms. Whittaker worked as a Clinical Dietetic Technician at the U.S. Department of Veterans Affairs (“VA”) hospital in Oklahoma City, Oklahoma.         In 2014, Ms. Whittaker received a notice of proposed removal for providing inaccurate information.         The Notice stated that Ms. Whittaker represented to the VA that she was employed part-time as an instructor at a university, allowing her to maintain a flexible work schedule at the VA, when she actually had not been employed at the university for over a decade.         After a deciding official at the VA sustained the removal, Ms. Whittaker and the VA entered into a last chance settlement agreement (“LCA”) to allow Ms. Whittaker to continue her employment at the VA.         The LCA placed a number of restrictions on Ms. Whittaker’s employment given Ms. Whittaker’s prior actions. In relevant part, the LCA provided that if Ms. Whittaker “fails to comply with any term of th[e LCA], on even one occasion during the three (3) calendar years from the date of th[e LCA], the original removal will be reinstated.”         Further, the LCA provided that any offense punishable under the VA’s Table of Penalties would be grounds for reinstatement of the removal.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 13, 2017  ...  4th Cir:  EEOC v. CONSOL  ...   CONSOL REFUSED TO ACCOMMODATE BUTCHER’S RELIGIOUS OBJECTION.  ...   For 37 years, Beverly R. Butcher, Jr. worked without incident as a coal miner at the Robinson Run Mine, owned by appellant Consol Energy, Inc. But when Consol implemented a biometric hand scanner to track its employees, Butcher, a devout evangelical Christian, informed his supervisors that his religious beliefs prevented him from using the system. And although Consol was providing an alternative to employees who could not use the hand scanner for non-religious reasons, it refused to accommodate Butcher’s religious objection.         Forced to choose between his religious commitments and his continued employment, Butcher retired under protest.         The United States Equal Employment Opportunity Commission (EEOC) sued on behalf of Butcher, alleging that Consol violated Title VII by constructively discharging Butcher instead of accommodating his religious beliefs.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 12, 2017  ...  6th Cir:  EEOC v. UPS  ...   EEOC REQUESTS INFORMATION ABOUT HOW UPS STORED AND DISCLOSED EMPLOYEE MEDICAL INFORMATION ... UPS OPPOSES THE SUBPOENA.  ...   This case concerns the scope of evidence that Plaintiff-Appellee Equal Employment Opportunity Commission (“EEOC”) may obtain in investigating charges of discrimination.         Sinisa Matovski, an operations manager for Defendant- Appellant United Parcel Service, Inc. (“UPS”) who has a disability, filed an EEOC charge claiming that UPS discriminated and retaliated against him in violation of the Americans with Disabilities Act of 1990 (“ADA”).         In particular, Matovski claims that UPS published confidential medical information about him and other employees on its intranet page.         The EEOC began an investigation into Matovski’s claims, which resulted in a subpoena that requested information about how UPS stored and disclosed employee medical information.         UPS opposed the subpoena, claiming that the requested information was irrelevant to Matovski’s charge. This resulted in the EEOC filing an application to enforce the subpoena.         The district court granted the application, and UPS has appealed.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 9, 2017  ...  Fed. Cir:  Tartaglia v.  DVA  ...   BECAUSE THE MSPB ABUSED ITS DISCRETION WHEN IT UPHELD MR. TARTAGLIA’S REMOVAL, WE VACATE AND REMAND..  ...   Mr. Tartaglia served as a Supervisory Security Officer and the Chief of Police at the VA’s Veterans Administration Medical Center in Hampton, Virginia.         The VA proposed Mr. Tartaglia’s removal based on three charges, some with multiple specifications: (1) “Abuse of Authority” (six specifications);    (2) “Lack of Candor” (two specifications); and    (3) “Misuse of Government Property” (one specification).         The VA’s deciding official rejected Charge 3 as unsubstantiated, sustained Charge 1 based on five of the six specifications and Charge 2 based on both specifications, and removed Mr. Tartaglia from service.         Mr. Tartaglia subsequently appealed to the MSPB.         In an initial decision, an administrative judge (“AJ”) affirmed Mr. Tartaglia’s removal.                 Petitioner Mark J. Tartaglia appeals a final order of the Merit Systems Protection Board (“MSPB”). , which upheld his removal from employment with the U.S. Department of Veterans Affairs (“the VA”).         BECAUSE THE MSPB ABUSED ITS DISCRETION WHEN IT UPHELD MR. TARTAGLIA’S REMOVAL, WE VACATE AND REMAND.   ...   THIS COURT DECISION:   (.pdf)   (.html)      THE MSPB DECISION THAT SUSTAINED THE REMOVAL:   Tartaglia v. Dep’t of Veterans Affairs, No. DC-0752-14-1108-I-1,(M.S.P.B. May 5, 2016)        

☀       June 9, 2017  ...  FLRA:  FAA v. PAACE  ...   DID FAA VIOLATE THE PARTIES’ COLLECTIVE-BARGAINING AGREEMENT (AGREEMENT)  ...   Statement of the Case:    Arbitrator Stephen Crable found that the Agency violated the parties’ collective-bargaining agreement (agreement) when it failed to fully counsel the grievant, prior to his acceptance of a term instructor position at the FAA Academy, of his return rights, benefits, and obligations. After the parties were unable to reach an agreeable remedy, the Arbitrator directed the Agency to reinstate the grievant’s original level of pay retention, thereby adjusting his pay to the amount as it existed immediately prior to the grievant’s acceptance of the instructor position.         The first question is whether the Arbitrator exceeded his authority when he found that the Agency violated Article 49, Section 5.B.4 of the agreement (Section 5) because this issue was allegedly not submitted to arbitration.         The second question is whether the Arbitrator’s remedy of restoration to the original level of pay‑retention protection is contrary to agency-wide regulation.  ...   FLRA DECISION:   (.pdf)   (.html)

☀       June 8, 2017  ...  FedCir:  Wilson v. Agriculture  ...   DID THE USDA BREACH THE SETTLEMENT AGREEMENT ?  ...   After Mr. Wilson was removed from his position as a Processor with the USDA’s Rural Housing Service, he filed a Board appeal challenging his removal.         While his appeal was pending, Mr. Wilson and the USDA entered into a settlement agreement that resolved Mr. Wilson’s Board appeal and two separate equal employment opportunity claims. The settlement agreement required the USDA to: (1) support Mr. Wilson’s disability retirement application with the Office of Personnel Management (“OPM”); (2) permit Mr. Wilson to voluntarily resign, effective the date of his removal; and (3) pay Mr. Wilson $5,000.         The administrative judge entered the settlement agreement and dismissed the appeal.         Approximately six months later, Mr. Wilson filed a petition for enforcement of the settlement agreement. He argued the USDA breached the agreement in four ways:   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 7, 2017  ...  NEWS:  WORKPLACE VIOLENCE ... A REGULAR, ALL-AMERICAN (NON-TERRORIST) KILLS 5 EMPLOYEES AT FORMER WORKPLACE      Millions of Americans breathed a sigh of relief when they learned that the killer was not Muslim or foreign born.

☀       June 5, 2017  ...  Fed. Cir.:  Kitlinski v. MSPB (DEA)  ...   DEA DENIED MY TRANSFER REQUEST BECAUSE I LIKE TO FILE COMPLAINTS.  ...   During the period at issue in this case, Mr. Kitlinski was employed by the Drug Enforcement Administration (“DEA”), an agency within the U.S. Department of Justice. He was assigned to the DEA’s field office in San Diego. At the same time, Mr. Kitlinski served as a reservist in the United States Coast Guard. In 2011, he was recalled to active duty in the Coast Guard, and for an extended period he served full-time at the Coast Guard headquarters in Washington, D.C.         Mr. Kitlinski has had several run-ins with the DEA. At the time of the events at issue in this case, Mr. Kitlinski had two USERRA complaints and an equal employment opportunity (“EEO”) complaint pending against that agency. His USERRA complaints were based on the DEA’s responses to his requests to be transferred from the DEA’s San Diego field office to either the Washington, D.C., field office or DEA headquarters in Arlington, Virginia, where Mr. Kitlinski’s wife worked.         His EEO complaint alleged that the agency had unreasonably denied his request for a transfer and had failed to select him for two positions in DEA’s Washington, D.C., Division. He alleged that the denial of his transfer request and his non-selection for the two Washington positions was the product of sex discrimination.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 5, 2017  ...  10th Cir:  Hiatt v. Colorado Seminary  ...   WAS IT A CONSTRUCTIVE DISCHARGE OR NOT ?  ...   The Demotion Decision:     On February 22, 2013, Dr. Hiatt met with Dr. Kent and Dr. Palmateer. Dr. Kent         presented Dr. Hiatt with three options: (1) resign; (2) be demoted and undergo six months of outside counseling about her supervisory style; or (3) remain in her position and allow Human Resources (“HR”) to handle the matter.         Dr. Kent and Dr. Palmateer explained they were presenting these options because:     (1) a “majority” of trainees refused to be supervised by Dr. Hiatt and she had lost “credibility and authority in their view”;     (2) her conduct posed a “grey ethical issue,” and a Training Director needed to display “exemplary ethics, boundaries, and professionalism”; and     (3) her “approach to therapy and supervision requires a strict adherence to boundaries which weren’t demonstrated in this situation” and her response to the students’ reactions showed a “lack of personal responsibility.”         On February 27, 2013, before Dr. Hiatt chose an option, her attorney sent DU a letter claiming DU’s request for Dr. Hiatt to leave her position as Training Director amounted to sex discrimination.         On March 4, 2013, Dr. Hiatt accepted the second option—demotion.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 2, 2017  ...  VAOIG:  REVIEW OF ALLEGED MISMANAGEMENT OF VA'S HUMAN RESOURCES AND ADMINISTRATION CONTRACT FUNDS:   VA Paid Nearly 4 Million Dollars For A Software Product, But Withheld 3 Thousand Dollars To Make It Functional.    Summary   Report

☀       June 2, 2017  ...  Fed. Cir.:  Swartwoudt v. Homeland  ...   TSA SUPERVISOR REMOVED FOR INAPPROPRIATE CONDUCT.  ...   Beginning in April 2013, Allen L. Swartwoudt was employed as a Transportation Security Inspector Explosive Detection Canine Handler with the Transportation Security Administration (“Agency”).         Swartwoudt was assigned as a team leader over three other Transportation Security Inspectors.         Effective February 7, 2014, the Agency removed Swartwoudt based on a charge of inappropriate conduct. The charged inappropriate conduct included outbursts directed at management, co-workers, and members of the public that served as volunteers         Allen L. Swartwoudt petitions for review of a final order of the Merit Systems Protection Board (“Board”) sustaining his removal and denying his whistleblower retaliation affirmative defense.   ...   COURT DECISION:   (.pdf)   (.html)

☀       June 1, 2017  ...  FLRA:  SSA v. AFGE  ...   ARBITRATOR FOUND THAT SSA VIOLATED THE PARTIES’ COLLECTIVE-BARGAINING AGREEMENT. HERE, SSA CHALLENGES THE AWARD.   ...   Arbitrator David P. Clark sustained a grievance and found that the Agency violated the parties’ collective-bargaining agreement (agreement) when it delegated the grievance-reviewing authority of a step 3 official to a deciding official on the same level of authority as a step 2 official. As a remedy, the Arbitrator ordered the Agency to cease this practice.         The Agency challenges the award on two grounds. The first question is whether the award is contrary to law because it allegedly excessively interferes with management’s right to assign work under § 7106(a)(2)(B) of the Federal Service Labor-Management Relations Statute (the Statute).         Second, the Agency argues that the award fails to draw its essence from the agreement. The Agency argues [...]   ...   FLRA DECISION:   (.pdf)   (.html)


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