P  E  R  M  E  R  I  C  A  .  C O M

being    in    love

sarah vaughan

big maybellle

smokey robinson

the whispers


♦       Sep 17, 2020  .. Fed. Cir.:  Ramirez v. DHS  ..  The petitioner seeks review of an arbitrator’s final award sustaining his removal from his job as a Customs and Border Protection Officer for the Department of Homeland Security.     The petitioner contends that the arbitrator lacked the authority to order another psychiatric evaluation after stating, in an interim award, that the prior evaluations failed to preponderantly establish that Mr. Ramirez was unfit for duty.     The petitioner further contends that he was denied due process when the agency refused to provide him with the records of the written psychological assessments underlying his psychiatric evaluations.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 17, 2020  .. D.C. Cir.:  Menoken v. Dhillon (EEOC)  ..  Appellant, Menoken, worked as an attorney for the Equal EEOC from 1982 until 2019.     In 2016, Menoken filed a lawsuit against the EEOC alleging that EEOC engaged in a pattern of harassment and hostility in retaliation for her filing various anti-discrimination and retaliation claims.     She alleged that the EEOC’s hostile behavior caused her to experience and seek medical treatment for “depression, acute stress, severe hypertension and ‘complex’ post-traumatic stress disorder.”     As a result of these medical conditions, Menoken sought a reasonable accommodation from the EEOC under the Rehabilitation Act, which requires that federal employers such as the EEOC accommodate individuals with disabilities under the same standards as the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et seq.     The EEOC denied Menoken’s request for a reasonable accommodation.     In her complaint, Menoken raised four separate claims under the Rehabilitation Act.     The district court dismissed Menoken’s complaint in its entirety.     The district court erred. We therefore reverse and remand.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 17, 2020  .. FLRA:  EIB v. AFGE  ..  The Union petitioned the Federal Labor Relations Authority (FLRA) to clarify the bargaining-unit status of numerous Agency positions. As relevant here, the parties continued to dispute the bargaining-unit status of seven positions, and the FLRA Regional Director Jessica Bartlett (the RD) concluded that those positions are non-professional. Accordingly, she directed that the employees occupying the seven positions, and the employees that the parties stipulated are non-professional, be included in the bargaining unit.     Subsequently, the Agency filed an application for review of the RD’s decision, and, in Export, the Authority reversed the decision as to the seven disputed positions.     Specifically, the Authority found that those positions are professional and directed the RD to exclude them from the unit of nonprofessional employees.     Regarding the stipulated non-professional employees, the Authority held that because they outnumbered the employees already in the unit, the RD erred by including them in the unit without an election.     Thus, the Authority also directed the RD to conduct an election to determine whether the affected employees desire to be represented by the Union.     The Union has now filed the motion for reconsideration (motion) at issue here.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 17, 2020  .. D.D.C.:  Mapes v. Reed  ..  In late 2018, U.S. Senator Jack Reed appointed Plaintiff to the newly created National Commission on Military Aviation Safety.     Upon a recommendation from the Air Force, the Senator removed Mapes from that position approximately fourteen months later. Plaintiff believes that his discharge was unlawful.     He asks this Court to reinstate and compensate him.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 15, 2020  .. 7th Cir.:  Mlsna v. Union Pacific Railroad  ..  When the Federal Railroad Administration put in place new regulations related to hearing, a train conductor—who has been hearing-impaired since youth and has worn hearing aids for years—was caught in a bind. He passed a hearing acuity test, but only when using hearing aids without additional hearing protection.     According to the railroad, this placed him in violation of a policy which requires that protection be worn if the employee is exposed to noise above a certain level. The railroad and the conductor could not agree on an accommodation for him to use other hearing devices. The railroad would not recertify the conductor, and he lost his job.     The conductor sued arguing that the railroad discriminated against him because of his hearing disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 15, 2020  .. Fed. Cl.:  Honse v. U.S. (VA)  ..  On January 22, 2008, Plaintiff began employment as a health technician in the ophthalmology department of the U.S. Department of Veteran Affairs in the Long Beach Medical Center.     On April 7, 2017, Plaintiff was removed from federal service on the grounds of “one charge of Failure to Follow Instructions . . . and one charge . . . of Conduct Unbecoming a Federal Employee.”     Plaintiff filed an appeal of her removal from federal service with the MSPB, alleging disability discrimination.     Ms. Honse, was subsequently reinstated and compensated for the period of removal through two decisions of the Merit Systems Protection Board (MSPB).     Plaintiff brings this claim against the United States, seeking compensation for amounts she contends the VA improperly charged her for certain health and unemployment benefits.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 15, 2020  .. D.D.C.:  Sargent v. Department of State  ..  Sargent took a job as a K9 handler and kennel master with SOC LLC, a government contracting firm responsible for providing security to the U.S. Embassy in Baghdad, Iraq.     After Sargent reported multiple instances of alleged sexual harassment by a State Department employee, SOC transported her back to the United States and promised to resolve the problem and then return Sargent to the Embassy to continue her work.     Rather than following through on its promises, SOC fired Sargent and allegedly caused the State Department to censure her, effectively foreclosing any future opportunities as a security contractor.     After engaging with the EEOC and various State Department offices, Sargent filed this suit alleging violations of the Civil Rights Act and common-law intentional infliction of emotional distress against both SOC and the State Department.  ..  D.D.C.:   (.pdf)   (.html)

♦       Sep 11, 2020  .. FLRA:  VA v. AFGE  ..  The Arbitrator determined that the VA did not have just cause to suspend the grievant for alleged abuse of leave.     The VA argues that the Arbitrator denied it a fair hearing because he did not consider evidence that the VA submitted in its post-hearing brief, that the award fails to draw its essence from the parties’ agreement, the attorney fees is contrary to the Back Pay Act.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 11, 2020  .. D.D.C.:  Small v.  Cuellar  ..  For four months, Kristie Small worked as Deputy Chief of Staff in the Office of Congressman Henry Cuellar (the “Office”) until Cuellar terminated her employment. Small claims he fired her because she asked for maternity leave.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 11, 2020  .. 6th Cir.:  Harrison v. Soave  ..  In December 2005, Harrison became a manager of Parts Galore, a self-service used auto parts salvage yard. In 2007, she moved to a second location, “Parts Galore II,” where she also served as a manager. At these facilities customers can pay a two-dollar entrance fee, which allows them to harvest and purchase parts from scrap cars and trucks located throughout many acres.     Harrison inspected the yard two to three times a day in a John Deere “Gator” vehicle. As part of those inspections, she checked for improperly placed cars, monitored employees, and assessed holes in the fence to help prevent theft.     Stephan Murell, Parts Galore's Regional Manager, prepared a preliminary report that documented problems at Parts Galore II.     The underperformance at the facility included holes along the fence (linked to possible incidents of theft), poorly inspected vehicles (with dangerous parts (i.e., jacks) not having been removed), slacking employees, and a deficient video feed monitor.  ..  DECISION:   (.pdf)   (.html)

♦       Sep 11, 2020  .. 5th Cir.:  Scott-Benson v. KBR  ..  Scott-Benson was employed with KBR from 2013–2016. During this time, Scott-Benson worked as a Health Safety and Environment (HSE) Inspector on a construction project in Waggaman, Louisiana.     While working on the Waggaman project, Scott-Benson’s co-workers reported to KBR’s Ethics Hotline that Scott-Benson was in a relationship with her HSE Supervisor, Danny Geisinger, and they believed she was receiving favorable treatment.     KBR commenced an investigation, and though the relationship was not substantiated, both were written up and advised to change their workplace conduct.     Scott-Benson then filed her first of two EEOC charges, alleging (1) sex discrimination because “co-workers accused [her] of being romantically involved with her Supervisor,” and (2) retaliation because she had “informed corporate of a possible HIPPA violation” regarding her medical records.     In November 2016, the Waggaman project ended, and Scott-Benson was laid off.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 10, 2020  .. FLRA:  VA v. AFGE  ..  With this case, we again remind the federal labor-relations community that procedural deadlines pursuant to a collective-bargaining agreement must be taken seriously.     At issue in this case are the procedural requirements for invoking arbitration provided by Article 44 of the parties’ agreement.     Arbitrator Cary Morgen found that the Agency had waived any timeliness objections by failing to raise them prior to arbitration. He further found that even in the absence of waiver, the fact that the grievance alleged a continuing violation meant the Union could invoke arbitration at any time.     The Agency ignores the clear language of Article 44.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 10, 2020  .. FLRA:  AFGE v. AirForce  ..  The grievants are fuel systems aircraft mechanics. Their work entails repairing fuel tanks and fuel systems within confined spaces.     Article 28 of the parties’ collective-bargaining agreement provides for EDP to be paid “in accordance with applicable laws, rules, and regulations” if employees perform duties that involve “physical hardship or hazard.”     The Union requested backpay for the grievants.  ..  (.pdf)   (.html)

♦       Sep 10, 2020  .. Fed. Cir.:  Lewis v. Treasury  ..  In November 2017, Ms. Lewis learned that Mr. McCreight rated Ms. Lewis in her performance review as “met expectations” (also referred to as “met”), and in response she filed a complaint with the Treasury’s Inspector General for Tax Administration (TIGTA) alleging that Mr. McCreight engaged in poor and improper management practices.     For her part, Ms. Henby described that “Lewis did well in some aspects of her job but had difficulties with other aspects. For example, Lewis was quick to point out variances in the accounting for the group. . . . She believed that Lewis struggled in getting past the variances and was unable to find viable solutions to the problems.”      TIGTA did not refer the case for any further action.      Ms. Lewis resigned in November 2017. After she resigned, the Agency issued Ms. Lewis’s finalized performance evaluation, rating her as a “met.”      Thereafter, Ms. Lewis filed a complaint with the Office of Special Counsel (OSC).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 10, 2020  .. Fed. Cir.:  Gibson v. OPM  ..  Rita Gibson sought survivor-annuity benefits, asserting that she was a “widow” of a retired federal employee. 5 U.S.C. § 8341(b)(1).      To qualify as a “widow,” she had to have been married to her husband “for at least 9 months immediately before his death.” Id. § 8341(a)(1).      Her marriage lasted from May 21, 2018, to the date of her husband’s death, February 15, 2019—a total of 270 days, but six days shy of the 9-month “anniversary.”      The Office of Personnel Management (OPM) concluded that she had not been married for at least 9 months before February 15, 2019, and denied the benefits claims.      Gibson appealed OPM's decision.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 9, 2020  .. FLRA:  EPA v. AFGE  ..  In February 2016, the Union notified the Agency that its membership failed to ratify the tentative agreement. In September 2016, the parties agreed to commence the reopened negotiations.     After years of back and forth discussion about reconvening bargaining and the matters that would be open for renegotiations, in May 2018, the Agency notified the Union that pursuant to Article 41, Section 3 of the CBA, the Agency was reopening the full CBA in light of President Trump’s Executive Orders, issued May 25, 2018.     In June 2018, the Agency sent AFGE new Ground Rules proposals.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 9, 2020  .. FLRA:  EDUCATION v. FEA  ..  This case, filed by the U.S. Department of Defense Education Activity (DODEA or Agency), concerns a dispute over the parties’ successor collective-bargaining agreement (CBA) between it and the Federal Education Association (FEA or Union). This dispute was filed pursuant to §7119 of the Federal Service Labor-Management Relations Statute (the Statute). The Federal Service Impasses Panel (Panel or FSIP) asserted jurisdiction over this dispute and directed the matter to be resolved in the manner discussed below.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 8, 2020  .. D.D.C.:  Breiterman v. Capitol Police  ..  United States Capitol Police employee Jodi Breiterman sued USCP, alleging that her suspension and demotion resulted from unlawful gender discrimination and retaliation in violation of the Congressional Accountability Act and the First Amendment.     USCP tells a different story, asserting that it suspended Breiterman for remarking to fellow employees that women had to “sleep with someone” to get ahead there, and that it demoted her for leaking a picture of an unattended USCP firearm to the press.     In response, Breiterman claims that USCP singled her out because of her gender and in retaliation for her protected activity.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 8, 2020  .. D.D.C.:  Savignac v. Jones Day  ..  Jones Day is a large, international law firm.     Mark Savignac and Julia Sheketoff are attorneys who formerly worked as associates in the Issues & Appeals group in Jones Day’s Washington, D.C. office.     Defendants Jones Day, Stephen Brogan, and Beth Heifetz move to dismiss Plaintiffs Mark Savignac and Julia Sheketoff’s complaint alleging sex discrimination and retaliation.     Jones Day determines the size of annual salary adjustments for each associate based in part on reviews submitted by the partners who worked with the associate during the relevant period.     These reviews are compiled by the partnership into a “consensus statement” for the associate, and Jones Day’s managing partner, Stephen Brogan, approves each associate’s salary change based on his or her consensus statement.     Associates are not provided copies of their consensus statements or evaluations, and they are not permitted to discuss their salaries with others at the firm.     Plaintiffs allege that this “black-box compensation system . . . enables and conceals sex discrimination” because salary raises are made at the discretion of the predominantly male partnership and because associates are not permitted to share their salaries with others.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 8, 2020  .. 11th Cir.:  Fleck v. Transportation  ..  Paul E. Fleck appeals the district court’s order granting the Secretary of the U.S. Department of Transportation’s (“DOT”) motion for summary judgment on his complaint alleging discrimination and retaliation under the Rehabilitation Act.     On appeal, Fleck argues that -- although he never filed a complaint related to his claims with the Equal Employment Opportunity Commission (“EEOC”) -- his claims were exhausted because they presented a mixed case of discrimination and actions appealable to the Merit Systems Protection Board (“MSPB”) and, therefore, he exhausted his administrative remedies through that appeal.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 8, 2020  .. 7th Cir.:  Marshall v. Indiana  ..  Robbie Marshall claims his former employer, the Indiana Department of Correction, discriminated against him because of his sexual orientation and retaliated against him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 4, 2020  .. DOJ OIG INVESTIGATIONS :    (1)  Investigative Summary : Findings of Misconduct by an Assistant United States Attorney for Providing Assistance to a Target of a Federal Investigation and Related Misconduct.   summary

♦       Sep 4, 2020  .. D.D.C.:  Reid-Witt v. DC  ..  C.W. was a student at Washington’s Benjamin Banneker High School before her disabilities interfered with her studies.     She was granted various accommodations but her multiple requests for special-education services were denied. Unable to maintain consistent attendance, C.W. fell below the requirements for continued enrollment and the school asked her to withdraw.     After exhausting administrative remedies, C.W’s mother, Karla Reid-Witt, filed this suit alleging a violation of the Individuals with Disabilities Education Act (IDEA) and disability discrimination under the Rehabilitation Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 3, 2020  .. FLRA:  AFGE v. VA  ..  Arbitrator found that the grievant’s nonselection for a position outside of the bargaining unit was not substantively arbitrable under the parties’ collective-bargaining agreement. The Union filed exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 3, 2020  .. Fed. Cir.:  Wynkoop v. Defense  ..  Wynkoop began working as a program analyst at the United States Department of Defense (DoD) in June 2015.     On August 13, 2015, Ms. Wynkoop met with Carol Ensley, Chief of Acquisition Management. Ms. Ensley informed Ms. Wynkoop that several employees had expressed concerns about Ms. Aviles-Wynkoop’s behavior, which they characterized as “inappropriate, overly aggressive, and unprofessional.”     DoD placed her on administrative leave. In October 2015, DoD proposed to terminate Ms. Wynkoop’s employment, and after receiving her response, DoD terminated her employment in January 2016. Ms. Wynkoop appealed to the Merit Systems Protection Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 3, 2020  .. 10th Cir.:  Baca v. Army  ..  In October 2017, Mr. Baca was hired by the U.S. Army as a Supervisory Engineer, GS-13, and Chief of the Operations and Maintenance Division. In July 2018, Mr. Baca received a notice of proposed removal that charged him with: (1) conduct unbecoming a federal employee; (2) interfering with an agency investigation; (3) abusive, offensive, disgraceful or inflammatory language; and (4) lack of candor.     On September 18, 2018, Baca was removed from his position in the Directorate of Public Works at the U.S. Army White Sands Missile Range, New Mexico. Mr. Baca sought review of this decision by the Merit Systems Protection Board (MSPB), asserting three affirmative defenses to his removal.     The MSPB rejected all of Mr. Baca’s defenses and affirmed his removal.     He appeals only the MSPB’s determination with respect to one of his affirmative defenses, that his firing was unlawful retaliation for whistleblowing in violation of the Whistleblower Protection Act (WPA).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 3, 2020  .. D.D.C.:  Hunter v. WMATA  ..  Hunter (“Plaintiff”) was an employee of the Washington Metropolitan Area Transit Authority (“WMATA”) from May 20, 2013 through the time of his termination, on October 14, 2017. Plaintiff filed suit against WMATA under Title VII of the Civil Rights Act alleging claims of gender discrimination and retaliation. Plaintiff also raises separate claims of breach of contract, negligent supervision, defamation, and for certain whistleblower violations.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 2, 2020  .. 7th Cir.:  Demkovich v. St. Andrew  ..  The First Amendment prohibits enforcement of federal employment discrimination statutes against decisions of churches and other religious organizations to hire or fire their “ministerial employees.”     This interlocutory appeal presents a question about extending this exemption beyond hiring and firing decisions: should the constitutional exemption be extended to categorically bar all hostile environment discrimination claims by ministerial employees, even where there is no challenge to tangible employment actions like hiring and firing?     Our answer is no.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 2, 2020  .. 6th Cir.:  Khalaf v. Ford  ..  The jury found that (1) Dr. Khalaf was neither demoted nor terminated by Ford because of his race or national origin; (2) neither Ford as a corporate entity nor Zhou subjected him to a hostile work environment, but Dr. Khalaf’s subordinates at Ford had done so (based on national origin or race), and so had Fowler (based on national origin, but not race); and (3) Dr. Khalaf was subjected to retaliatory demotion by Ford and Fowler, retaliatory placement on a PEP by Zhou, and retaliatory termination by Ford alone, but was not subjected to retaliatory placement on a PEP by Fowler or Ford or retaliatory termination by Fowler or Zhou.     For the collective actions of all defendants, the jury awarded Dr. Khalaf $1.7 million in pension and retirement losses and $100,000 in emotional-distress damages. For the actions of Ford only, the jury awarded Dr. Khalaf $15 million in punitive damages. The district court ...  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 2, 2020  .. N.M.C.C.A.:  U.S. v. Torres  ..  Appellant and three other Marines, all of whom worked in a supply warehouse at 3d Marine Raider Battalion, pleaded guilty in accordance with their pretrial agreements to charges involving stealing military property from that warehouse and selling it to a local pawnshop. Appellant’s crimes consisted of stealing military equipment including multi-tools, knives, lights, and GPS wristwatches on divers occasions and selling that material to a local pawn- shop. In exchange, Appellant admitted to receiving approximately $1,050.00.     He also admitted to helping his cohorts load additional military proper- ty—scores of rifle buttstocks and buttstock subassembly parts valued at $27,566.40—into a personally owned vehicle so that those cohorts could sell that property to the pawnshop. For this action, he pleaded guilty as an aider and abettor under Article 77, UCMJ, to stealing military property valued at greater than $500 and to wrongfully selling that same property. Finally, admitting that he was aware that his cohorts had stolen other military property from the warehouse, Appellant admitted to being derelict in the performance of his duties for not reporting those thefts.     At sentencing, the Government presented portions of Appellant’s military personnel file, reports of the investigation into his misconduct, evidence indicating the cost of the stolen military property, and the testimony of the Battalion Supply Officer.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 31, 2020  .. A.F.C.C.A.:  U.S. (AirForce) v. Perkins  ..  THANK YOU, FOR YOUR SERVICE. ..  From 2009 until 2016, Appellant was a Special Agent with the Air Force Office of Special Investigations (AFOSI). In 2013, while he was deployed, Appellant began communicating with KS. Appellant had known KS since they were in middle school together. At some point following his deployment, Appellant and KS began to casually see each other, but did not have an exclusive relationship.     In July 2016, Appellant married SP. Subsequently, in August 2016, KS learned through a friend that Appellant was now possibly married, and reached out to him via text message and phone calls to confront him about his relationship with SP. In response, Appellant created an email account using the name of his spouse and—posing as SP—exchanged multiple emails with KS. In those emails, Appellant directed KS not to contact either of them anymore. At the same time, using his own cellphone, Appellant also exchanged text messages with KS and in a series of messages on or about 15 August 2016, Appellant told KS, “I too am a lawyer whore,” and “[y]ou are f**king with the wrong one.” The messages also contained KS’s first name, middle name, and social security number, followed by “[d]o not f**k with me!” That same day, feeling threatened, KS wrote a final email to Appellant requesting that he stop all contact with her. On 16 August 2016, believing that her personal information was breached through government access, KS reported these text messages to civilian law enforcement authorities..  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 28, 2020  .. FLRA:  FAA v. AFGE  ..  Bargaining-unit employees of the Agency (the employees), who worked in accounts receivable, were notified by the Agency that they would be moving to accounts payable after some noticed their names were moved already in the facility directory.     The employees heard unconfirmed reports that the Agency would use contractors to accomplish the accounts-receivable work. Thereafter, the Agency responded to the Union’s inquires by stating that some employees had been moved into accounts receivable, but there would be a meeting to discuss the inquires. The employees were then ordered to train the contractors to do all the work in accounts receivable.     The Union filed the grievance alleging that the Agency violated the parties’ agreement by failing to notify and bargain with the Union when it replaced all the employees with contractors. The parties could not resolve the grievance and it proceeded to arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       August 27, 2020  .. 6th Cir.:  Lowe v. Walbro  ..  Walbro describes itself as “a global market leader in engine management and fuel systems for the outdoor power equipment, recreational, marine, and personal transportation markets.     Lowe, who was born in 1958, began working for Walbro as a stock handler at the age of 18. Over the course of his 41-year career with the company, he was promoted on several occasions. At the time that he was fired, he held the title of Area Manager, a position that he assumed in 2014.     In June 2018, Kenneth Lowe was fired from his job at Walbro LLC. Lowe was 60 years old at the time and had worked at Walbro for more than four decades. He responded by filing this lawsuit against Walbro, alleging that the company had discharged him because of his age.     The district court granted summary judgment in favor of Walbro.     For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this Opinion.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 26, 2020  .. Fed. Cir.:  Harris v. SEC  ..  Ms. Harris petitions for review of a decision by the Merit Systems Protection Board upholding her performance-based removal by the Securities and Exchange Commission (SEC).     Ms. Harris was the Branch Chief of the Continuity of Operations (COOP) branch, a division of the SEC’s Office of Support Operations (OSO) in Washington, D.C. The COOP branch is responsible for ensuring that the SEC can continue performing essential functions in the event of an emergency, such as a natural disaster.     In February 2018, Ms. Harris was removed from the agency for “unacceptable performance” of her duties, pursuant to chapter 43 of title 5.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 26, 2020  .. 11th Cir.:  Henderson v. Birmingham  ..  Henderson has worked as a police officer for the City since March 2007. His claims here arise from a series of events that occurred in 2017 and 2018.     On January 9, 2017, Henderson was dispatched from his post at the North Precinct to assist someone who called to report a theft in Bessemer.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 26, 2020  .. 5th Cir.:  Simmons v. UBS  ..  Simmons was employed by Prelle Financial Group as a third-party wholesaler of life-insurance products to clients of UBS Financial Services. Simmons frequently worked out of UBS’s offices.     Simmons’s daughter, Jo Aldridge, was a UBS employee who submitted an internal complaint of pregnancy discrimination and filed a charge with the EEOC. Aldridge eventually resigned and settled her claims.     In the months that followed, Simmons’s third-party relationship with UBS deteriorated. Allegedly in retaliation for his daughter’s complaints, UBS revoked Simmons’s right of access to the UBS offices and then eventually forbade him from doing business with its clients.     That effectively ended Simmons’s employment at Prelle Financial, and he left. Simmons sued, among others, UBS. He theorized that the company “retaliated against his daughter by taking adverse actions against him.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 24, 2020  .. FLRA:  IBEW v. DOE  ..  The Union requests that we reconsider our decision in IBEW, Local 1002 (IBEW)[1] and stay implementation of that decision. In IBEW, the Union filed a petition for review (petition) concerning the negotiability of two proposals.     The Authority determined that, because the Union’s proposals contained only minor modifications from those previously declared nonnegotiable, the Union failed to file a timely petition.     Accordingly, the Authority dismissed the petition.     In a motion for reconsideration (motion), the Union argues that the Authority erred in its legal conclusions.     The Union also requests that the Authority stay IBEW while the Authority considers its motion.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       August 24, 2020  .. Fed. Cir.:  Dyer v. Air Force  ..  Mr. Leonard Dyer petitions for review of a decision by the Merit Systems Protection Board (“Board”) affirming the West Virginia adjutant general’s termination of Mr. Dyer from his position as a dual-status military technician with the U.S. Air Force.     The WV adjutant general terminated his dual-status position because he no longer met the military membership requirement of his employment.     Mr. Dyer appealed the termination to the Board, arguing that he was not provided the due process he is entitled to under Title 5.     A threshold issue in this petition for review is whether the Board had jurisdiction to review Mr. Dyer’s termination from his dual-status position as a result of his separation from the WVANG.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 21, 2020  .. D.D.C.:  FLEOA v. Weichert (OPM)  ..  This case concerns the 2016 decision of Defendants, the Director of the United States Office of Personnel Management and the United State Office of Personnel Management (“OPM”), to implement a policy which resulted in the reduction of supplemental annuity payments for many retired law enforcement officers who are divorced. Plaintiff, the Federal Law Enforcement Officers Association (“FLEOA”), represents 27,000 current and retired federal law enforcement officers and challenges the 2016 supplemental annuity payment policy (“Policy”) under the Administrative Procedure Act (“APA”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 20, 2020  .. 11th Cir.:  Vaughn v. Fedex  ..  Vaughn has been a truck driver since the late 1980s. In 1992, Vaughn started driving for American Freightways, which later became part of FedEx.     On the night of September 26, 2012, Vaughn left Decatur, Georgia for his regular route to Atlanta. He began having “thoughts of craziness” as he was driving.     On the way back to Decatur the following morning, Vaughn experienced hallucinations and paranoia.     Vaughn called a friend and said he was going to die that day. Vaughn eventually made it home.     He told his wife he was going to die that day, too. Vaughn then went to his bedroom, put his handgun in his mouth and pulled the trigger.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 20, 2020  .. 9th Cir.:  Hardesty v.  Sacramento  ..  The jury found Defendants liable for violating Plaintiffs’ substantive due process rights and awarded $105 million in compensatory damages against the County and Individual Defendants jointly and severally, and $1,775,000 in punitive damages against the Individual Defendants.     Defendants argue the verdict is not supported by substantial evidence, the court erred by failing to offer a proposed jury instruction regarding campaign finance, the damages are excessive, and the Individual Defendants are entitled to immunity.  ..  DECISION:   (.pdf)   (.html)

♦       August 20, 2020  .. 5th Cir.:  Aguillard v. Louisiana College  ..  Louisiana College is a private Baptist college located in Pineville, Louisiana and accredited by the Commission on Colleges of the Southern Association of Colleges and Schools (Southern Association).     Aguillard became president of Louisiana College on January 15, 2005. On July 31, 2014, Aguillard stepped down as president of Louisiana College for health reasons, but he continued to be employed as a tenured faculty member and president emeritus.     Aguillard’s relationship with his successor was, in a word, contentious. Ultimately, Aguillard was fired for cause on March 31, 2016.         After he was fired, Joe Aguillard sent misconduct allegations to the college’s accrediting body. Those accusations prompted Louisiana College to sue Aguillard in state court for defamation. Aguillard countered by suing the college in federal court, alleging—among other things— that the defamation suit violated anti-retaliation provisions found in the Americans With Disabilities Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 19, 2020  .. D.D.C.:  Clinton v. Perry  ..  Rita Clinton brings this action against Dan Brouillette in his official capacity as the Secretary of the United States Department of Energy (“the Department”).    She alleges that while working for the Department she was subjected to a hostile work environment in violation of Title VII.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 19, 2020  .. CCA:  Kuigoua v. CCH  ..  In 2010, plaintiff, a man of Cameroonian descent, began working as a registered nurse with the California Department of Corrections to provide health care services to prison inmates.     In the present lawsuit, plaintiff asserted that CCHCS subjected him to adverse employment actions beginning in late 2013 and wrongful termination in May 2015 as a result of gender discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦        August 19, 2020  .. CCA:  De Martin v. La Jolla  ..  Plaintiff accepted a position with Defendant on March 14, 2016.     One week later, Plaintiff, emailed his supervisor, Kimberly Bieder, to request religious leave on Good Friday, March 25.     Being “a bit taken back [sic] by him asking for a day” off after only a week on the job, Bieder called Plaintiff an “ ‘idiot,’ ” a “ ‘lazy ass,’ ” and a “ ‘slacker’ ” and said in “loud and mean tones” during the conversation: “ ‘I saw your request. . . . It seems kind of unreasonable, kind of out of place for you to be requesting time off work so soon. . . . How could you put me in this position?     The next day, March 24, Plaintiff told Kimberly Bieder that he “ ‘didn’t appreciate a lot of the things’ ” that Bieder had said about his request for religious leave .     James Rolke (Defendant’s Vice President of Research and Development) overheard Plaintiff's comment to and Bieder.     Within minutes, Rolke instructed human resources to have Plaintiff terminated at the end of the workday.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 19, 2020  .. MCA:  Wiedner v. Ferrellgas  ..  Wiedner was employed by Ferrellgas, Inc., as a senior database administrator from February 28, 2011, until his dismissal from the company on October 25, 2016.     On January 2, 2017, Wiedner filed a Charge of Discrimination ("Complaint") against "Ferrellgas" with the Missouri Commission on Human Rights ("MCHR").     Wiedner had a chronic pain condition which, based on a doctor's recommendation, resulted in Ferrellgas granting him the reasonable accommodation of his working from home.     However, following approved FMLA leave from April 25, 2016, through July 25, 2016, Wiedner's supervisor, Phillip Legate, began harassing him regarding the work accommodations he was receiving.     Wiedner's department manager, Aravind Sreedharan , informed him he could no longer work from home and he suffered harassment from Legate creating a hostile working environment.     Wiedner filed a formal complaint with Ferrellgas, Inc.'s Employee Relations department.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 18, 2020  .. NJSC:  Fox v. DGMB  ..  Plaintiffs Ann Fox and Theresa Campana appeal the April 12, 2019 summary judgment order dismissing their complaint with prejudice.     In May 2016, plaintiffs Fox and Campana filed a complaint in the Law Division against defendants DGMB Casino (DGMB), Barbara Hulsizer and Mark Sachais (defendants).     Plaintiff alleged a violation of CEPA (count one); a hostile work environment under LAD based on gender, sexual orientation and age, and unlawful retaliation (count two); and the negligent infliction of emotional distress (count three).     She requested compensatory and punitive damages for each count and an award of counsel fees and costs. Plaintiff Campana alleged a loss of consortium (count four), seeking damages, attorney's fees and costs. Defendants' answer included separate defenses.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 18, 2020  .. N.M.C.C.A.:  U.S. (Marines) v. Lewis  ..  The Few, The Proud, The Marines ..  While Cpl Harris was taking a shower, Appellant entered his room. Appellant then entered the bathroom and began pulling open the shower curtain, startling Cpl Harris, who stopped the curtain from being opened fully.     Appellant asked permission to join Cpl Harris in the shower.     He asked Appellant to leave, and Appellant left the bathroom.     In late-May or early-June 2016, Cpl Harris and Appellant were at a party together at an off-base residence where they had been drinking alcohol late into the night.  ..  COURT DECISION:   (.pdf)   (.html)

♦       DOJ OIG INVESTIGATIONS :    (1)  Investigative Summary: Findings of Misconduct by a BOP Executive Assistant Who Engaged in an Inappropriate Relationship With a BOP Contractor Who Had Been a Federal Inmate, Failed to Cooperate in Our Investigation, Destroyed Evidence, & Related Misconduct.   summary       (2)  Investigative Summary: Findings of Misconduct by a then Bureau of Prisons Manager for Harassing and Threatening Employees at a Training Seminar.   summary

♦       August 17, 2020  .. FLRA:  NWSO v. NOAA  ..  The parties have been attempting to negotiate a successor agreement since 2015. After utilizing the services of the Panel to resolve their ground-rules-negotiation impasse in 2016, the parties began substantive negotiations on a successor agreement in early 2017.     The parties bargained for over two years and engaged in 146 bargaining sessions – including fifty-five sessions with three mediators – but reached agreement on only four articles.     On December 19, 2019, the Agency requested the Panel’s assistance, and, on March 12, 2020, the Panel asserted jurisdiction over an impasse related to forty-two articles.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       August 17, 2020  .. D.D.C.:  Bozgoz v. James (VA)  ..  Mr. Bozgoz is a former employee of the VA, and he claims that he was denied reasonable accommodations and discriminated against when a request for overtime was denied in January of 2018 and during the events that ensued thereafter.     Mrs. Bozgoz acts as her husband’s “Americans with Disabilities Act Representative,” and in that role, she has pursued administrative relief on Mr. Bozgoz’s behalf.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 17, 2020  .. 10th Cir.:  Hickey v. Brennan  ..  Hickey was employed as a letter carrier for the USPS. On September 30, 2017, she pushed one of her co-workers while they were both on the workroom floor. On October 20, 2017, the USPS issued Hickey a notice of removal from employment for “[u]nacceptable [c]onduct.”     Six days later, on October 26, 2017, Hickey filed a grievance to challenge her removal pursuant to the procedures set forth in a collective bargaining agreement between the USPS and her union, the National Association of Letter Carriers.     In her grievance, she alleged that the USPS’s decision to terminate her employment was due to her supervisors’ discriminatory animus and the agency’s related failure to accommodate her disability of deafness. Hickey’s removal became effective on December 5, 2017.     The USPS and the union were not able to reach a resolution on the grievance, and it was submitted to an arbitrator on December 20, 2017. On May 3, 2018, the arbitrator denied the grievance, finding that the USPS had just cause for her removal.     On March 29, 2018, Hickey contacted an EEO counselor. A few months after that, she filed a formal EEO complaint of discrimination, which was dismissed by the agency on the ground that Hickey’s arguments amounted to an inappropriate collateral attack on the union grievance procedure.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 14, 2020  .. 9th Cir.:  Nguyen v. UC  ..  Nguyen, a former UCI engineering professor, asserted employment discrimination and retaliation claims against the Regents and the individual Defendants.     Nguyen alleged that the individual Defendants denied him tenure because of his sexual orientation, in violation of the Equal Protection Clause of the Fourteenth Amendment, and that the Regents’ conduct amounted to deliberate indifference to these acts, in violation of Title IX.     Nguyen also appeals the district court’s award of attorney’s fees to Defendants.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 14, 2020  .. FLRA:  AFGE v. VA  ..  The Union filed a grievance challenging two reprimands and a five-day suspension that the Agency imposed on the grievant. The parties were unable to resolve the grievance, and it proceeded to arbitration. The issues before the Arbitrator were: “Did [the Agency] violate the [parties’] [c]ollective[b]argaining [a]greement . . . when it reprimanded and suspended the [g]rievant? If so, what is the remedy?”     At arbitration, the Union requested, and the Agency agreed, that the Arbitrator retain jurisdiction over the issue of attorney fees for consideration after issuance of the merits award.     The Arbitrator found that the Agency had not met its burden with regard to the two reprimands or the five‑day suspension. Thus, she rescinded the reprimands and mitigated the suspension to a reprimand. As a remedy, the Arbitrator awarded the grievant backpay, but concluded that “[n]o attorney’s fees are awarded.”   The Arbitrator did not provide any explanation for that conclusion.     On February 21, 2020, the Union filed exceptions to the award, and, on March 20, 2020, the Agency filed an opposition to the Union’s exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       August 13, 2020  .. FLRA:  HHS v. NTEU  ..  This case involves a grievance filed by the Union alleging that HHS violated the Federal Service Labor-Management Relations Statute and the parties’ agreement when it failed to authorize the Union’s email communications to bargaining-unit employees.     The arbitration concerned two grievances over two emails HHS declined to authorize.     HHS only raised an exception to the Arbitrator’s finding concerning the second email.    Therefore, we will limit the background to the relevant email at issue.     As relevant here, the Union submitted an email for Agency approval on January 17, 2019.    The email contained information on back pay for furloughed employees, government funding for fiscal year 2019, and the upcoming federal holiday in honor of Martin Luther King, Jr. (MLK), and a link to Standard Form (SF) 1187.    HHS disapproved the email because the attachments did not concern representational matters as required by the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       August 13, 2020  .. FLRA:  USDA v. AFGE  ..  During bargaining over a successor collective-bargaining agreement, the parties failed to reach agreement on several articles, and the Agency requested the assistance of the Federal Service Impasses Panel (the Panel). After the Panel issued a decision and order, the Union filed a motion asking the Authority to stay the Panel’s order. We deny the Union’s request because the Union has not exhibited that a stay is appropriate under the circumstances of this case.     The parties failed to agree on eighteen articles while negotiating a successor collective-bargaining agreement, and the Agency requested Panel assistance. After resolving two of those articles in mediation, both parties submitted arguments on the remaining articles to the Panel. Before the Panel, the Union also contended that the Panel lacked jurisdiction. The Panel rejected that contention and issued USDA, resolving the sixteen disputed articles.     On June 2, 2020, the Union filed a motion to stay (the motion) the Panel’s order. The Agency requested leave to file, and did file, an opposition to the motion on June 8.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       August 12, 2020  .. 7th Cir.:  U.S. v. Gamble  ..  On November 9, 2017, defendant Latasha Gamble robbed a branch of Chase Bank in Chicago, a branch where she had worked until three months earlier.     Only two Chase employees were working at the time of the robbery, Kelly Green and Lesley Rendon. Gamble entered the bank wearing a disguise and waited for a few customers to leave.     When they did, Gamble pulled out a gun and pushed Green to the ground as Green opened a secured door to leave the lobby. Gamble then pointed the gun at Green and ordered her to open the bank’s vault.     When Green said that both employees were needed to open the vault, Gamble grabbed Rendon by the hair, pressed the gun against the back of her head, threatened to shoot her, and brought her to the vault. At trial, Rendon testified that the gun felt cold and made a clicking noise when it was against her head. Once Green and Rendon had opened the vault, Gamble ordered them to put their heads down and again threatened to shoot them.     Gamble took over $126,000 from the vault and left the bank.     Despite Gamble’s attempts at disguise, both Green and Rendon had recognized her.     FBI agents arrested Gamble several hours later when she showed up for work at another Chase branch, oddly enough.         Defendant Latasha Gamble was found guilty of armed bank robbery and sentenced to 151 months in prison.         She challenges her sentence on two grounds.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 12, 2020  .. 7th Cir.:  Morris v. BNSF  ..  Ron Morris worked for nine years as a train conductor for Burlington Northern Santa Fe Railway.    The company fired him after he committed two speeding infractions during a single shift.    Morris, who is African-American, invoked Title VII and brought suit to challenge his termination, alleging that BNSF punished him more severely than non-black employees who committed similar safety violations.    His case proceeded to trial and a jury found in his favor.    BNSF challenges the district court’s decisions at every stage of the case, from the viability of Morris’s theory of discrimination and sufficiency of his evidence to discovery rulings and remedies.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 12, 2020  .. 9th Cir.:  Hukman v. Southwest  ..  Plaintiff Sheida Hukman appeals the district court’s order granting summary judgment to defendant Southwest Airlines.    The district court properly dismissed all of Hukman’s Title VII claims because she failed to file her complaint within ninety days of receiving her right-to-sue letter. Hukman received the letter from the EEOC in April 2017 but did not file her complaint until November. We thus affirm the summary judgment grant on the first, second, fourth, fifth and sixth causes of action set forth in the complaint.    Alternatively, the district court properly granted summary judgment on these claims because Hukman either failed to establish a prima facie case of discrimination or failed to demonstrate that Southwest’s proffered reasons for terminating her within her 180-day probationary hiring period were pretextual.  ..  COURT DECISION:   (.pdf)   (.html)

♦        OPM : Paid Parental Leave For Federal Employees Interim Regulations   chcoc.gov

♦       August 11, 2020  .. CCA:  BFPS v. Superior  ..  Daisy Arias suffered sustained, egregious sexual harassment for most of the time she was employed by defendant and petitioner, Blue Fountain Pools & Spas Inc.     The primary culprit was defendant and petitioner, Sean Lagrave, a salesman who worked in the same office as Arias. Arias says Lagrave did everything from repeatedly asking her for dates to grabbing her buttocks to praising his own sexual prowess to describing his sexual conquests to confronting her with smartphone photographs of himself engaging in sex acts with other women. This list is not complete.     Arias complained about Lagrave’s conduct repeatedly over the course of her employment, but things came to a head on April 21, 2017. On that day, Lagrave yelled at Arias in front of coworkers, used gender slurs, and then physically assaulted her, bumping her chest with his own. Arias called the police and later left work.     Arias told the owner, defendant and petitioner, Farhad Farhadian, she wasn’t comfortable returning to work with Lagrave. Farhadian did nothing initially, refused to remove Lagrave, then terminated Arias’s health insurance, and finally told Arias to pick up her final paycheck. Though Farhadian claimed Arias had quit, she says she was fired.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 11, 2020  .. 3rd Cir.:  Wright v. Providence  ..  Ms. Wright was fired from her job as a Licensed Practical Nurse (“LPN”) after getting into a verbal altercation at the nursing home where she worked.     In response, Wright, who is disabled within the meaning of the Americans with Disabilities Act (“ADA”), and who had returned from medical leave pursuant to the Family Medical Leave Act (“FMLA”) less than three months before her firing, sued her now-former employer, Providence Care Center LLC (“Providence”).     As relevant to this appeal, she alleges that the real reasons Providence let her go were disability discrimination and retaliation for exercising her rights under the ADA, PHRA and FMLA.     In addition, she says she was subjected to a hostile work environment because of her disabilities, which is also a violation of the ADA.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 10, 2020  .. D.D.C.:  Simelton v. Georgetown  ..  Tammi Coakley-Simelton brings this action against her employer, Georgetown University, and three of its employees. She alleges that the defendants retaliated and discriminated against her based on her race.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 10, 2020  .. 10th Cir.:  Robinson v. Barrett  ..  Robinson, an African-American, worked at Tinker Air Force Base, OK.     Until her termination, Robinson alleges that Lewis subjected her to discrimination and harassment, culminating in Robinson filing an informal complaint with the EEOC.     Robinson alleges that after Lewis was notified of the informal complaint, she took the following four retaliatory actions against her :  ..  DECISION:   (.pdf)   (.html)

♦       August 10, 2020  .. Fed. Cir.:  Freeland v. DHS  ..  In the course of the background investigation, an OPM investigator interviewed Mr. Freeland after obtaining additional information regarding Mr. Freeland’s separation from ACHRA.     During this interview, Mr. Freeland initially denied any issues with ACHRA until being confronted by the interviewer directly that ACHRA had proposed a disciplinary action against him. Mr. Freeland also initially denied the sexual harassment allegation until he was directly confronted by the inter- viewer with the allegation.     After completing the investigation, OPM issued its findings to the Agency’s Office of Security and Integrity, Investigations Division (OSI).     OSI sent its review and excerpts from the OPM background investigation to the Chief of the HROC.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 7, 2020  .. Fed. Cir.:  Jenkins v. Transportation  ..  Jenkins was employed by the FAA for nearly 30 years until her removal in March 2018. During her final year of employment, she served as the Chief of Staff to the FAA’s Associate Administrator for Human Resources.     In 2017, one of Jenkins’s subordinates, Sharon Bartley, complained to the FAA Accountability Board that Jenkins had created a hostile work environment.     In support of her complaint, Bartley provided the Accountability Board with a number of personal cell phone text message exchanges that she had with Jenkins.     Many of the text messages were disparaging toward Jenkins’s colleagues, including senior officials at the FAA. Moreover, many of the messages con- tained derogatory comments about the race and gender of Jenkins’s colleagues.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 7, 2020  .. FLRA:  Air Force v. AFGE  ..  The grievant worked as a firefighter at the March Air Reserve Base Fire Department. At some point, “perhaps beginning in 2017,” the Agency began a command-directed investigation into issues at the fire department relating to possible bullying and conflicts between employees.    The grievant was interviewed as part of the investigation along with several other members of the department.    The grievant was also a union steward. On December 6, 2018, in a separate and unrelated matter, the grievant left the fire station to conduct Union business without getting permission from his immediate supervisor or entering his official time on his timecard.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       August 7, 2020  .. 11th Cir.:  McConico v. Tampa  ..  Benita McConico appeals the district court’s decision on her claims of racial discrimination under Civil Rights Act and retaliation under the Americans with Disabilities Act (“ADA”) concerning her termination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 7, 2020  .. 7th Cir.:  Pierri v. Medline  ..  Frank Pierri was a chemist for Medline Industries.    Initially, he did well at the company, but problems arose after he asked for accommodations to enable him to take care of his ailing grandfather.    Medline was receptive, and it ultimately gave him limited time off for this purpose under the Family and Medical Leave Act (FMLA).    Pierri asserts that his supervisor then became so hostile to him that he needed personal time off because of the stress.    He left on FMLA leave and never returned. Medline eventually terminated his employment, causing Pierri to sue the company.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 6, 2020  .. Fed. Cir.:  Kent v. MSPB (IRS)  ..  Mr. Kent was appointed to the position of Contact Rep- resentative at the IRS on July 26, 2004.    Then, on May 27, 2005, Mr. Kent’s employment was terminated for “leave and AWOL issues.    Fourteen years later, Mr. Kent filed an appeal with the Board contesting his termination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 6, 2020  .. 10th Cir.:  Jensen v. West Jordan  ..  Plaintiff-appellant Aaron Jensen sued defendant-appellees West Jordan City and Robert Shober for Title VII retaliation, First Amendment retaliation, malicious prosecution, and breach of contract.     At trial, the jury returned a verdict in favor of Jensen on all his claims and awarded Two Million, Seven Hundred Seventy Thousand dollars ($2,770,000) in damages.     Because the district court concluded that Title VII’s statutory damages cap applied, the court reduced the total amount of the award to $344,000.     Both parties appealed.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 6, 2020  .. 9th Cir.:  Simmons v. Safeway  ..  We have jurisdiction and we reverse and remand for further proceedings.     The district court erred in holding that no reasonable jury could conclude that Andrew Shaffer’s conduct was sufficiently “severe or pervasive” and that Haggen failed to take “prompt and effective remedial action.”     To establish a hostile work environment under Title VII and the Washington Law Against Discrimination, an employee must show that “     1)   [she] was subjected to verbal or physical conduct of a sexual nature,     2)   this conduct was unwelcome, and     3)   this conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”     4)   “The working environment must both subjectively and objectively be perceived as abusive, and the objective analysis is done from the perspective of a reasonable woman.”     5)   Additionally, “an employee must show that her employer is liable for the conduct that created the environment.”     We have jurisdiction and we reverse and remand for further proceedings.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 5, 2020  .. D.D.C.:  Tennant v. DC  ..  Plaintiff Denise Tennant, a former Probation Officer in the Court Social Services Division (“CSSD”) of the Superior Court of the District of Columbia, has sued her former employer under [the Civil Rights Act]; the ADA and the FMLA, alleging discrimination and retaliation based on sex and her disabilities, and interference with her FMLA rights in a five-count complaint.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 5, 2020  .. A.F.C.C.A.:  U.S. v. Robertson  ..  In 2008, AO arrived at Offutt Air Force Base (AFB), Nebraska, where she was assigned to an aircraft maintenance unit. AO became part of a close-knit group of maintainers, including Appellant.    Although AO was the only female member of the core group of friends, she was treated and behaved as “one of the guys.” Crude references to male and female genitalia and other sexual banter were common within the group.    Beginning in approximately August 2010, while AO was going through a divorce with her then-husband, for about six months AO lived in the house Appellant and SSgt MM shared. On one occasion, when SSgt MM was away on temporary duty, AO decided to lie down on SSgt MM’s bed to sleep, instead of in her own room.    Appellant got in the bed and began “cuddling behind” her.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 5, 2020  .. 5th Cir.:  Hauser v. Schneider  ..  Hauser was a project manager from 2010 until his termination in 2017. In this role, Hauser supervised engineering projects related to safety systems and industrial process controls; he also managed customer relationships. Around 2016, when Hauser was 62 years old, his supervisor James Austin began inquiring about Hauser’s retirement plans. Hauser said he had no plans to retire.     In early 2017, customers began reporting problems with Hauser’s performance. Two customers complained to James Weber, a client sales executive, about Hauser’s delaying and poorly executing projects. One of those customers told Weber they planned to not work with Schneider in the future. A third customer threatened to pull their business after seeing an email in which Hauser described the customer’s invoicing as “chicanery.” Austin verbally warned Hauser about his unprofessional communications, but his performance did not improve.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 4, 2020  ..  NO NEW CASES TO POST TODAY

♦       DOJ OIG INVESTIGATIONS :    (1)  Findings of Misconduct by a then Federal Bureau of Investigation Unit Chief for Approving a Subordinate’s Outside Employment Form Knowing that the Form Contained Misleading Information and Dereliction of Supervisory Responsibilities.   summary

♦       August 3, 2020  .. 11th Cir.:  Gilliam v. VA  ..  Gilliam was employed by the VA as a police officer at an outpatient clinic. According to Gilliam, his troubles with the VA began in late 2011 after police chief Robert Shogren became aware of Gilliam’s romantic relationship with Lizabeth Marsh, who worked as a medical support assistant at the clinic.     Marsh’s then-husband had discovered text messages between Gilliam and Marsh and complained to the VA that Gilliam and Marsh were having an affair and were having sex at the clinic.     Shogren proposed removing him from service based on four charges of misconduct:   (1)   placing his supervisor in a chokehold on two    separate occasions;   (2)   yelling and using profanity during a verbal altercation with Marsh;   (3)   kissing Marsh in the office hallway; and   (4)   having sex with Marsh at the clinic during Gilliam’s duty hours.  ..  COURT DECISION:   (.pdf)   (.html)

♦       August 3, 2020  .. 6th Cir.:  Funk v. Lansing  ..  Plaintiff Charles Funk is an African American man who worked for Defendant City of Lansing, Michigan’s Police Department from 1997 until his resignation in 2016.    Funk brings a failure to promote claim and a constructive discharge claim under Title VII. He also alleges retaliation claims in violation of the First Amendment and Title VII.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 31, 2020  .. 6th Cir.:  Allman v. Walmart  ..  Joe B. Allman was employed as a commercial truck driver by Walmart, Inc.     After Allman’s supervisors required him to wear a continuous positive airway pressure (CPAP) machine at night based on medical reports that Allman had sleep apnea, he resigned.     Allman has alleged that he was in fact constructively discharged from Walmart due to its requirement that he wear the CPAP machine. He also claims that Walmart retaliated against him by requiring him to wear the device and that he was wrongfully terminated.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 31, 2020  .. 9th Cir.:  Bell v. Jeanswear  ..  Plaintiff Lori Bell appeals and defendant VF Jeanswear (“VFJ”) cross-appeals the district court’s awards of damages, punitive damages, and attorneys’ fees in an employment discrimination action.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 30, 2020  .. CAC:  Kovachich v. DMHAS  ..  The plaintiff suffered from allergic and non-allergic rhinitis and asthma.     The plaintiff alleged that the defendant discriminated against her on the basis of her disability as a result of the defendant’s failure to provide her with a reasonable accommodation and retaliated against her for filing a complaint of disability discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 30, 2020  .. 11th Cir.:  Gogel v. KIA  ..  After being fired by Kia Motors Manufacturing Georgia, Inc. (“Kia”), Andrea Gogel sued her former employer, asserting claims for gender and national- origin discrimination and retaliation under Title VII of the Civil Rights Act [...].     The district court granted summary judgment in favor of Kia on all claims, and Gogel appealed to our court.     A panel of this Court [...] reversed the district court’s grant of summary judgment as to Gogel’s claim that Kia fired her in retaliation for her exercise of protected conduct.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 30, 2020  .. Fed. Cir.:  Lee v. FAA  ..  Petitioner, petitions for review of an arbitrator’s award imposing a 30-day suspension of her employment with the Federal Aviation Administration.         Petitioner is a civil engineer for the FAA, where she has worked since 2012.     In April 2017, a co-worker sent an unsolicited email containing inappropriate pictures to Petitioner’s work email address.     When that email came to light, Petitioner’s second-line manager, John Smith, requested that the agency’s investigations unit pull the internet and email history from both the sender’s and Petitioner’s work computers.     Mr. Smith saw concerning levels of activity on eBay, Amazon, and Etsy, among other non-work-related sites. He was particularly concerned that, both during and after work hours, Petitioner was frequently visiting Etsy where, as he discovered, she sold handmade crafts through her account, “BoosTinyBits.”     After receiving this report, Petitioner was called to an investigatory interview.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 29, 2020  .. CAW:  Chambers v. Rodda  ..  Chambers began working at Rodda in 2001. She subsequently became the manager of Rodda’s Lacey store. In April 2015, Stan Osborne became Rodda’s district manager, and Chambers’supervisor. During the times relevant to this case, the Lacey store had another female employee, Melanie Heatherington.     Ms. Chambers appeals the trial court’s dismissal on summary judgment of claims for hostile workplace based on sexual harassment, outrage, and wrongful termination in violation of public policy against her former employer, Rodda Paint Company.     She claims that the court erred in dismissing her claims for hostile workplace and outrage ...  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 29, 2020  .. FLRA:  Homeland v. AFGE  ..  In this case, we find that when arbitrators are tasked with resolving a stipulated issue concerning the timeliness of allegations made in a grievance, they should stick to the task at hand.     Following the grievant’s arrest for driving while intoxicated (DWI), the Agency assigned the grievant to administrative duty. Eighteen months later, after the grievant was acquitted of the DWI charge, the Agency restored him to his regular duties. Shortly thereafter, the Union filed a grievance alleging that the Agency improperly placed the grievant on administrative duty.     The main question before us is whether the Arbitrator exceeded her authority by concluding that the Union timely filed the grievance.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 29, 2020  .. VA OIG:  Alleged Misuse of Official Time and Possible Ethics Violation by an Information Technology Employee.       (1)  The Office of Special Reviews investigated allegations that a GS-14 employee in VA’s Office of Information and Technology misused his government email by sending personal emails during work hours, and also took advantage of his telework arrangement to handle personal matters during his duty hours.     The OIG could not substantiate the misuse of official time or improper use of VA resources because the employee routinely worked outside of his regular duty hours with his supervisor’s approval, and VA has not established criteria defining how much personal use of VA email is excessive.    (2)  While investigating these issues, the OIG became aware that the employee had referred staff who were planning conferences for his group to his wife, a sales manager for a large hotel chain, and sent emails providing direction about the arrangements for these conferences.     The staff subsequently booked rooms for these events at hotels for which the employee’s wife had sales responsibility. Although the staff made the decision and the arrangements were advantageous to VA, the OIG determined that the employee’s conduct appeared contrary to ethical rules prohibiting an employee from using his public office for “his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity….”     The OIG made one recommendation relating to a supervisory review of the employee’s conduct and consideration of appropriate administrative action, if any. VA concurred with this recommendation. .      Summary   Report

♦       July 28, 2020  .. FLRA:  Prisons v. AFGE  ..  Because an Agency memorandum issued after the Union filed its grievance cannot have provided the basis of the Union’s grievance, we set aside the award as based on a nonfact and we find the award fails to draw its essence from the parties’ agreement.    The Union filed a grievance on February 14, 2017, alleging, as relevant here, that the Agency violated the parties’ agreement by unilaterally terminating a compressed work schedule on February 12, 2017. Arbitrator Norman J. Stocker issued an award finding that the Agency terminated the compressed work schedule on March 10, 2017 – twenty-four days after the Union filed the grievance.    The main questions before us are (1) whether the award is based on a nonfact and (2) whether the award fails to draw its essence from the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 28, 2020  .. 7th Cir.:  Perkins v. Brennan (Postal)  ..  About a year after her mother, Alice, died from a heart attack on the job at the post office on July 24, 2012, Perkins sued the U.S. Postal Service for “wrongful death.” The two had worked together for several years at a mail distribution center in Illinois. Perkins alleged that the Postal Service knew that Alice suffered from “work related stress”; that as a result of the stress, she was receiving “medical treatment” to address “long-term” and “ongoing” workplace harassment from a coworker; that she and her mother talked about this harassment on the morning of her heart attack; that the heart attack resulted from an “intense verbal altercation” with the coworker; and that the Postal Service negligently failed to follow an emergency protocol that would have prevented Alice’s death.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 28, 2020  .. 6th Cir.:  Robinson v. MGM Grand  ..  Robinson began his employment with MGM in 2002 as a valet attendant. Robinson would often have to run on concrete as part of his job, and he eventually developed plantar fasciitis in both feet. Robinson sought treatment and had custom orthotics made to alleviate the pain caused by the plantar fasciitis. Robinson applied to take intermittent leave under the FMLA in March 2016, but MGM denied the leave request because Robinson’s physician failed to adequately complete a medical certification form.     Robinson reapplied for intermittent FMLA leave, based on his foot pain, in September 2016. While his application was pending, he used a combination of sick and vacation leave to miss thirteen days of work over the next thirty days. MGM approved the request on September 29, 2016, and it made the approval retroactive to September 14, 2016. The approval granted Robinson 480 hours of unpaid leave that he could use as needed to manage the pain in his feet.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 24, 2020  .. 10th Cir.:  Vazirabadi v. DPS  ..  Alireza Vazirabadi alleges that he was not hired for a Process Improvement Engineer position, in the Denver Public Schools, because of his national origin and age.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 24, 2020  .. 10th Cir.:  Brown v. USD  ..  Mr. Brown, who is African-American, began working for the Topeka Unified School District in 1982. He resigned in 1996. During his tenure, Mr. Brown received several poor performance evaluations.     Mr. Brown was removed from his position as an assistant coach for the boys basketball team due to performance issues.     Mr. Brown continued working for the school district until he resigned in 1996. Mr. Brown brought a lawsuit against the school district claiming race discrimination and retaliation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 24, 2020  .. 7th Cir.:  Williams v. Dart  ..  Cook County, Illinois recently revised its pre-trial detention policies in favor of broader access to pretrial release.     Plaintiffs are nine black residents of Chicago, arrested and charged with felonies, whom the Cook County trial courts admitted to bail subject to electronic monitoring supervised by the Sheriff.     The nine plaintiffs allege that defendant, Thomas Dart, the Cook County Sheriff, disagreed with the revised policies and substituted in their place policies of his own making that denied them release. Instead, they languished in the Sheriff’s jail for up to two weeks after the bail orders were issued.  ..  COURT DECISION:   (.pdf)   (.html)

♦       DOJ OIG INVESTIGATIONS :    (1)  Findings of Misconduct by a former DOJ Executive Officer for making inappropriate comments contributing to sexual harassment to a subordinate on three occasions.   summary      (2)  Findings of Misconduct by a then United States Attorney for Violating DOJ Policy Regarding Possible Conflicts of Interest --AND-- by a then First Assistant United States Attorney for Failing to Report Those Possible Conflicts.   summary      (3)  Findings of Misconduct by a then Federal Bureau of Investigation Unit Chief for Engaging in an Improper, Intimate Relationship with a Subordinate and Related Misconduct   summary

♦       July 23, 2020  .. FSIP:  SLSDC v. AFGE  ..  The U.S. Department of Transportation, Saint Lawrence Seaway Development Corporation (Agency or SLSDC) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the American Federation of Government Employees, Local 1968, AFL-CIO (Union) over a dispute related to the parties’ successor collective bargaining agreement (CBA).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 23, 2020  .. 11th Cir.:  Robbins v. Vonage  ..  Robbins, an individual with a degenerative bone disorder, worked at Vonage from May 2014 until July 2017. According to his complaint, while employed at Vonage, Robbins filed a charge of discrimination with the EEOC on November 3, 2016 due to his belief that Vonage had taken actions related to his employment that violated the ADA and the Family and Medical Leave Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 23, 2020  .. SCAC:  SCHAC v. Yang  ..  The South Carolina Human Affairs Commission brought this action against Zeyi Chen and Zhirong Yang (Respondents), alleging they violated the South Carolina Fair Housing Law by discriminating against a prospective tenant.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 22, 2020  .. CCA:  Estes v. Eaton  ..  For nearly a decade, Norman Estes worked for the Navy as an electrician in two Bay Area naval shipyards, Hunters Point Naval Shipyard (from approximately 1966 to 1973) and then after Hunters Point closed down, Mare Island Naval Shipyard (for about a year, until 1974). Later, he developed asbestos-related mesothelioma.     It is undisputed that Estes’s work in the shipyards in that era exposed him to what quite literally has been described as “snowstorms” of asbestos dust, from both his own work and a wide variety of maintenance and repair activities carried out in his vicinity by other shipyard workers.     Estes stipulated he was exposed to asbestos-containing products manufactured or supplied to the Navy by approximately fifty companies. In this lawsuit, he also claimed he was exposed to harmful levels of asbestos contained in a product manufactured by another Navy supplier, Eaton’s predecessor, Cutler-Hammer, Inc.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 22, 2020  .. 10th Cir.:  Stuart v. Erickson  ..  In December 2016, Defendants hired Ms. Stuart as a Care Associate for patients suffering from dementia and Alzheimer’s Disease at the Wind Crest facility in Highlands Ranch, Colorado. Her co-workers soon began complaining that she was bossy toward them, unreceptive to feedback, and rude toward residents and their family members.     In March 2017, she received a written warning for failing to adhere to Defendants’ values of respect, caring, teamwork, and excellence.     During his evaluation, Mr. Dickson, Director of Continuing Care, received complaints from a resident’s family members regarding Ms. Stuart’s demeanor and care for residents, as well as complaints from co-workers.     Mr. Dickson concluded Ms. Stuart’s conduct violated Defendants’ policies and standards of conduct and terminated her in June 2017.     Believing Defendants discriminated against her because she is Black, Ms. Stuart filed a discrimination charge with the Equal Employment Opportunity Commission.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 21, 2020  .. FLRA:  NFFE v. State  ..  The Union requested to negotiate a memorandum of agreement (MOA) covering procedures for random audits of bargaining-unit employees.    The Agency refused to bargain over the proposed MOA at the local level, and the Union responded by filing a local grievance. The Agency processed the grievance as a step three national grievance and denied it.    Thereafter, the Union requested, in writing, a written allegation of nonnegotiability for the MOA on December 16, 2019.    The Agency did not respond. The Union filed its petition for review on January 10, 2020, submitting the MOA as seven proposals.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 20, 2020  .. 7th Cir.:  Kotaska v. FedEx  ..  Federal Express Corporation (FedEx) twice fired Janet Kotaska because she could not lift up to 75 pounds. The first time, she was limited to lifting only 60 pounds after a shoulder injury.    Eventually, her condition improved so that she could lift 75 pounds to her waist, and a FedEx supervisor rehired her “oě the books.”    Within three weeks, though, FedEx discovered her capabilities above the waist remained severely limited and dismissed her again. Kotaska contends that this second dismissal was a violation of the ADA.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 20, 2020  .. Fed. Cir.:  Eby v. U.S.  ..  Eby was employed by the National Institute of Health (“NIH”), an agency within the Department of Health and Human Services (“HHS”), between 1989 and 2010. The NIH promoted Eby to a GS-13 position in 2001, and subsequently to a GS-14 position in 2003.     In 2009, Eby filed a complaint with the EEOC against the government alleging disability discrimination.     In April 2010, the dispute resulted in a settlement agreement between Eby and the government, pursuant to which Eby agreed to resign and the government agreed that her supervisor would provide a neutral job reference for any future job applications.     Upon resigning from the NIH, Eby applied for a position as a Regulatory Health Project Coordinator in the Division of Drug Oncology Products in the Food and Drug Administration (“FDA”). The position had a maximum promotion potential to the GS-13 level. Eby asserts that, despite this, the hiring official at the FDA indicated that, if she performed well, she could be promoted to a GS-14 position within “a couple of years.” Eby did not receive a job offer from the FDA after the FDA contacted the NIH for a reference.     In 2011, Eby notified the HHS’s [EEO Office] that she believed the NIH had violated the terms of the settlement agreement.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 20, 2020  .. 6th Cir.:  George v. YSU  ..  John George is a sixty-nine-year-old man with a background in engineering. In the 1970s, George received a Bachelor of Science degree in mathematics (with a physics minor), a Bachelor of Engineering degree in mechanical engineering, and a Master of Science degree in education with a focus on mathematics, all from Youngstown State University. He was also licensed by Ohio to teach grade 7–12 mathematics and physics, but instead worked in engineering-related jobs in the private sector for twenty years.     In 1999, YSU’s School of Engineering Technology hired George as an instructor on a one-year term contract, but George then applied for and was hired as a tenure-track assistant professor.     A little over five years later, and after obtaining his Professional Engineer license, George applied for tenure. George was supported by the chair of the School of Engineering Technology and a majority of the faculty, but the dean of the College of Engineering and Technology—Cynthia Hirtzel—opposed his application, which was denied by the president of YSU, David Sweet.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 17, 2020  .. 7th Cir.:  McCray v. Wilkie (VA)  ..  McCray is an employee of the Department of Veterans Affairs (“VA”). McCray worked at the Milwaukee VA Vet Center as a readjustment counselor from July 1997 until September 2000, when he left for graduate studies.     After earning a Master’s degree in Educational Psychology/ Community Counseling and practicing as a community psychologist, he returned to the VA in March 2004 as a Mental Health Case Manager.     McCray alleges that he was subject to multiple forms of workplace discrimination. Two of the three claims he has pursued on appeal are claims that the VA failed to accommodate his disabilities; the third is a disparate treatment claim positing that other VA employees received more favorable accommodations than he did based on their race (white women).  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 17, 2020  .. 3rd Cir.:  Teamsters v. UPS  ..  UPS and the Union are parties to a collective bargaining agreement (the “Agreement”). It governed the terms and conditions of employment of bargaining unit employees, including package car drivers who operate UPS trucks and provide delivery and pick-up services.    Local 177 represents more than 9,000 workers employed at various UPS facilities in northern and central New Jersey, and New York City and Orange County in New York.    Article 46, Section 3 of the Agreement groups areas of principal responsibility.    The Union filed two grievances, one in July 2014 and the other in February 2015, respectively, alleging that UPS violated Article 46.    UPS denied the grievances, and the Union filed a demand for arbitration.    The Arbitrator sustained the grievances and ordered UPS to “cease and desist assigning package car drivers to work in buildings outside the areas designated in Article 46.    The Union alleges that UPS has subsequently violated the Award.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 16, 2020  .. 3rd Cir.:  Gresham v. Delaware  ..  In 2010, DHSS hired Ms. Gresham and promoted her three years later. Gresham, who is black, contends that after she was promoted her immediate supervisors initiated a pattern of bullying and discriminatory behavior toward her, which included hurling personal attacks, racial taunts, insults, and vulgarities at her. This pattern of behavior began in November 2013 when her supervisor, Kieran Mohammed—at various times identified by Gresham as a Middle Eastern or Asian man born in Trinidad—approached Gresham and said that he would have “preferred a White woman, a White man or a Middle Eastern Woman [got] the position” into which Gresham was promoted. He explained that he preferred this because he anticipated fallout for “having too many Black people” in the unit. Gresham concedes that before this incident she had “never had any prior worries/concerns of race issues or relations.” She alleged no other incidents of explicit race or gender discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 16, 2020  .. D.D.C.:  Gulley v. DC  ..  Jason Gulley, who is Caucasian, joined the D.C. Metropolitan Police Department (“MPD”) in March 2000. Over the next 16 years, he was promoted twice, ultimately becoming a Lieutenant. But that lofty rank was short-lived. Within a year, Gulley was demoted back to Sergeant. A few years later, MPD terminated him altogether.     Gulley sued the District of Columbia for racial discrimination and retaliation, claiming that MPD favored minority officers in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Pending here is the District’s motion for summary judgment.     The District argues that most of Gulley’s allegations are administratively barred. And for those that remain, the District maintains that it terminated him because of his long history of disciplinary infractions, not for any discriminatory purpose.     Gulley claims that the District’s explanations are an illegal pretext for its discriminatory intent.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 16, 2020  .. DCAF:  Broward v. Hamby  ..  Ms. Hamby was hired by BSO as a deputy sheriff and placed on probationary status as a new hire. Eighteen months later, she was terminated while still on probationary status. After being terminated, she filed a complaint in circuit court against BSO asserting a claim under the WBA.    In an amended complaint, Hamby alleged that she was retaliated against for making disclosures protected under the WBA. She alleged that she attended a “roll call” meeting with a department head, a major, who was investigating complaints that her supervisor was creating a hostile work environment. She alleged that she made her disclosures directly to, and at the request of, the major. Regarding the content of the protected disclosures, she alleged that she corroborated allegations made by a fellow deputy in an Equal Employment Opportunity Commission complaint that her supervisor had created a “discriminatory, harassing, and hostile work environment.” She further disclosed that she herself had experienced similar conduct by the supervisor and that the supervisor had a continuous pattern of managerial abuse.    Hamby subsequently filed a verified motion for temporary reinstatement under section 112.3187(9)(f), Florida Statutes.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 15, 2020  .. 9th Cir.:  Schmitt v. Kaiser  ..  Plaintiffs allege that Kaiser (a health insurer) violated the Patient Protection and Affordable Care Act’s nondiscrimination mandate by excluding coverage of all hearing loss treatment except cochlear implants.    Plaintiffs claimed that the insurer’s plans discriminated against hearing disabled people in violation of section 1557 of the ACA, which incorporates by reference the grounds protected by four earlier nondiscrimination statutes, including the Rehabilitation Act, and prohibits discrimination on those grounds in the health care system, including in health care contracts.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 15, 2020  .. 5th Cir.:  DeValentino v. HISD  ..  DeValentino, an African American woman, worked as an assessment administrator in HISD’s Student Assessment Department for approximately two years.    In April 2016, DeValentino was moved to the online assessment team. The team consisted of DeValentino, two additional online assessment administrators who were Hispanic, and their supervisor, Diana Bidulescu, who is Caucasian. DeValentino and Bidulescu did not get along. DeValentino filed two complaints against Bidulescu, one of which alleged racial discrimination.    DeValentino was fired in September 2016 for poor performance.    DeValentino sued HISD, claiming that HISD violated Title VII and the TCHRA by terminating her because of her race and retaliating against her based on her discrimination complaints.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 15, 2020  .. WCA:  Atwood v. MSA  ..  Following a month-long trial, a jury found in favor of Julie Atwood on her claims of gender discrimination and retaliation against her former employer, Mission Support Alliance, LLC (MSA), and her former supervisor, Steve Young.    It awarded her $2.1 million in economic damages and $6 million for emotional harm.    The trial court awarded her tax-adjusted attorney fees and costs. MSA appeals the judgment on the jury’s verdict and the trial court’s denial of its motions for a new trial or remittitur.    Whether the verdict should stand turns on aggressive positions taken by Atwood, sustained by the trial court, on issues affecting both liability and damages.      We agree that the trial court committed reversible error, reverse the judgment on the jury’s verdict, and remand for further proceedings consistent with this opinion.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 14, 2020  .. FLRA:  AFGE v. NIH  ..  This case concerns the negotiability of sixteen provisions disapproved by the Agency head under § 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute).    After the parties executed a collective-bargaining agreement, the Agency head disapproved sixteen provisions contained in the agreement under § 7114(c) of the Statute. The disapproval letter stated that “the [Agency] disapproved the Articles,” without explanation. The Union then timely filed a petition for review of the sixteen disapproved provisions. The Authority conducted a post-petition conference. the Agency filed a statement of position (statement); and the Union filed a response to the Agency’s statement.    In its statement the Agency asserted that the provisions were disapproved because they “are contrary to law, rule, or regulation” and requested that the FLRA dismiss the Union’s petition.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 14, 2020  .. FLRA:  VA v. AFGE  ..  This matter is before the Authority on exceptions to an award of Arbitrator Joseph M. Schneider filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exceptions.    Pursuant to § 7122(a) of the Statute, the Authority lacks jurisdiction to review exceptions to an arbitration award “relating to a matter described in [§] 7121(f)” of the Statute. The matters described in § 7121(f) include adverse actions, such as removals, which are covered under 5 U.S.C. §§ 4303 or 7512. In determining whether an award resolves – or is inextricably intertwined with – a matter covered under § 7512, the Authority looks not to the outcome of the award, but whether the claim advanced in arbitration is reviewable by the Merit System Protection Board (MSPB), and on appeal, by the United States Court of Appeals for the Federal Circuit (Federal Circuit). Arbitration awards resolving these matters are reviewable by the Federal Circuit, rather than the Authority.    We have determined that this case is appropriate for issuance as an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations.  ..  FLRA DECISION:   (.pdf)   (.html)

♦        Superme Court: President Trump. You Must Release Your Financial Records To New York Grand Jury.    trump v. vance
♦        Superme Court: US Congress. You Can Have Trumps Financial Records ... Must Refine Your request First.    trump v. mazars

(1)  Findings of Misconduct by a then Federal Bureau of Investigation Unit Chief for Engaging in an Improper, Intimate Relationship with a Subordinate and Related Misconduct   summary      (2)  Findings of Reasonable Grounds to Believe that an FBI Analyst Suffered Reprisal as a Result of Protected Disclosures in Violation of FBI Whistleblower Regulations   summary     (3)  Findings of Misconduct by an FBI Senior Official for Retaliating Against an FBI Employee for Suspected Reporting of Alleged Ethics Violations   summary     (4)  Findings of Misconduct by FBI Senior Officials for Violations of Federal Ethics Rules and FBI Policies   summary

♦       July 9, 2020  .. Superme Court:  Little Sisters v. Morrissey-Berru  ..  Employers Can Deny Providing Contraceptives For Religious Or Moral Reasons.  ..  THE Affordable Care Act of 2010 (ACA) [Obama Care] requires covered employers to provide women with preventive care, screenings and FDA approved contraceptive methods without any cost sharing requirements.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 9, 2020  .. Superme Court:  Guadalupe v. Morrissey-Berru  ..  Teachers At Religious Schools Are Not Protected By Fair Employment Laws.  ..  The First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 9, 2020  .. FLRA:  AFGE v. VA  ..  Arbitrator Vicki Peterson Cohen sustained an Agency grievance alleging that the Union violated the parties’ national-level settlement agreement (the settlement agreement) by not paying for half the cost of the arbitrator’s copy of a transcript in an earlier case.    The Union filed exceptions to the award based on essence, exceeds-authority, and nonfact grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 9, 2020  .. 3rd Cir.:  Chieke v. Pennsylvania  ..  Rafael Chieke appeals the District Court’s [judgment] in favor of his former employer and supervisors, collectively the Pennsylvania Department of Corrections (DOC), on his various Title VII claims of discrimination, hostile work environment, and retaliation, as well as parallel claims brought under the Pennsylvania Human Relations Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 9, 2020  .. 10th Cir.:  Manna v. Phillips  ..  Manna worked for Phillips 66 and its predecessors for about 18 years, most recently in Bartlesville, Oklahoma. He was a salaried employee who could and sometimes did work remotely. In September 2014, Rebecca Ginyovszky, who was based in Houston, Texas, became Manna’s supervisor. Ginyovszky rated Manna’s overall performance in 2014 as “below expectations” for, among other reasons, failure to complete several projects on time. In May 2015, Ginyovszky disciplined Manna with a written warning for “routine late arrival to the office.” The warning directed Manna to “arriv[e] at the office no later than 9:00 a.m.” and to advise Ginyovszky when he “would not be in the office or not able to make the designated timeframe.” Although Manna testified that he complied with the warning, Ginyovszky testified that she continued to receive reports from coworkers that he was arriving late.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 8, 2020  .. 11th Cir.:  Sprowl v. Mercedes  ..  In March 2017, Sprowl, a black male, resigned from his position as a maintenance technician at Mercedes-Benz, which he had held since September 2012. Approximately a year later, on March 22, 2018, Sprowl filed a complaint against Mercedes-Benz, alleging violations of Title VII and 42 U.S.C. Specifically, Sprowl’s amended complaint alleged that Mercedes-Benz denied him promotion to team leader because of his race, retaliated against him for filing a racial discrimination complaint, and constructively discharged him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 8, 2020  .. Fed. Cir.:  Skinner v. DVA  ..  Skinner was formerly employed as a GS-07 Supervisory Health Technician with the United States Department of Veterans Affairs (“the VA” or “the agency”) North Florida/South Georgia Veterans Health System in Gainesville, Florida. Effective September 2017, Skinner accepted the VA’s offer to reassign her to the position of a GS-06 Practical Nurse.    She subsequently filed a complaint with the Office of Special Counsel (“OSC”) alleging that the VA engaged in whistleblower reprisal after she made protected disclosures.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 8, 2020  .. 6th Cir.:  Amini v. RiteAid  ..  Born in Iran in 1949, Michael Kheibari became an American citizen in 2003. He began working as an assistant manager with Rite Aid in 2007. From 2007 to 2011, Kheibari interacted with his supervisors, store managers, and other Rite Aid employees without a major incident. But he received mixed performance reviews—some good, some bad.    Tragedy struck Kheibari and his family in October 2011 when his daughter committed suicide. The death understandably affected him, prompting his seeking treatment for depression, anxiety, and insomnia from his primary care physician and a psychologist, who prescribed antidepressants.    The difficulty in his personal life coincided with a change of manager at work. According to Kheibari (only), his new district manager, Daniel Snyder, allegedly treated him disparagingly. Rite Aid disputes Kheibari’s story. But at this stage, we view the record in his favor.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 8, 2020  .. PCC:  Rusecky v. UCBR  ..  Claimant worked full-time for Right Steps of Rittenhouse Square (Employer), a boutique preschool and childcare center, as an Assistant Group Supervisor. She was dismissed on August 22, 2018.    Claimant filed a claim for unemployment compensation benefits, which the(UC) Service Center denied. Claimant appealed, and the Referee held a hearing on October 24, 2018.    Employer presented the testimony of Koren Clark, Site Director.    Clark explained that she discharged Claimant and another teacher for leaving a child unattended for approximately 20 minutes.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 7, 2020  .. 6th Cir.:  Kenney v. Aspen  ..  Karen Kenney asserts claims under both Title VII of the Civil Rights Act and Michigan’s Elliott-Larsen Civil Rights Act. Those claims turn on her allegation that her former employer, Aspen Technologies, Inc., terminated her employment in retaliation for her complaints regarding Aspen’s alleged discriminatory hiring practices.  ..  COURT DECISION:   (.pdf)   (.html)

(1)  Findings of Misconduct by a then Federal Bureau of Investigation Unit Chief for Engaging in an Improper, Intimate Relationship with a Subordinate and Related Misconduct   summary      (2)  Findings of Reasonable Grounds to Believe that an FBI Analyst Suffered Reprisal as a Result of Protected Disclosures in Violation of FBI Whistleblower Regulations   summary     (3)  Findings of Misconduct by an FBI Senior Official for Retaliating Against an FBI Employee for Suspected Reporting of Alleged Ethics Violations   summary     (4)  Findings of Misconduct by FBI Senior Officials for Violations of Federal Ethics Rules and FBI Policies   summary

♦       July 7, 2020  .. 11th Cir.:  D'Onofrio v. Costco  ..  This case concerns the obligations of an employer to accommodate a deaf employee. The dispute arose after Costco Wholesale Corporation terminated the employment of Christine D’Onofrio, who has been deaf since birth. She sued Costco in Florida state court for violations of the FCRA, and Costco removed the case to federal court.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 3, 2020  .. D.D.C.:  Jackson v. Omniplex  ..  On July 7, 2014, Omniplex hired Alice Jackson, a 60-year-old female, to work as an Armed Special Police Officer at the Federal Communications Commission. Jackson alleges that in mid-March 2015 her male co-workers discriminated against and harassed her in various ways. For instance, on or around March 18, 2015, three younger, male colleagues surrounded Jackson at her post, pushed her, accused her of lying, and threatened to strike her. They also ridiculed the role of women in the workplace by saying things like “women don’t know their place” and that “women shouldn’t be allowed to work.” Afterwards, Jackson reported the incident, and her supervisors sent her home for the day. When Jackson returned for her next shift on or around March 20, her project manager informed her that Omniplex had indefinitely suspended her. Although Jackson repeatedly sought to return to work, Omniplex never responded to her requests or sent her a termination notice. After Jackson applied for unemployment benefits, she learned that Omniplex had permanently terminated her. Jackson filed a “charge of discrimination” with the District of Columbia Office of Human Rights on February 25, 2016.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 2, 2020  .. 7th Cir.:  Tyburski v. Chicago  ..  In 2014, Romuald (“Roman”) Tyburski, then age seventy-four, applied for a promotion with his employer, the City of Chicago’s Department of Water Man- agement, but the City rejected his application. Tyburski sued, claiming that the City denied him the promotion because of his age in violation of the Age Discrimination in Employment Act (“ADEA”). He also brought a hostile work environment claim under the ADEA regarding harass- ment he allegedly experienced at two Department of Water Management facilities: Central Park Pumping Station (“Central Park”) and Jardine Water Purification Plant (“Jardine”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 1, 2020  .. 7th Cir.:  Reese v. Krones  ..  Reese worked for Krones, a manufacturer, on its maintenance support staff, a job that required him to carry heavy objects, use heavy machinery, and spend most of his day standing and walking. After seven years with the company, Reese dual-filed a discrimination charge with the Equal Employment Opportunity Commission and the Wisconsin Department of Workforce Development Equal Rights Division, contending that Krones was discriminating against him on the basis of his age and disability. Reese, who in late 2015 had torn two tendons in his right ankle, alleged that his supervisors had disciplined him on several occasions because he worked too slowly as a result of his depression and ankle injury. In June 2017, while the Equal Rights Division was investigating the charge, Reese sent the investigator a follow-up letter detailing additional instances of alleged discrimination, including his supervisor’s refusal to provide him a motorized cart. The investigator ultimately concluded that there was no probable cause to believe that that Krones had discriminated against Reese.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 1, 2020  .. SCI:  Cohen v. Clark  ..  This case involves a tenant with pet allergies who moved into an apartment building due to its no-pets policy, a neighboring tenant who sought a waiver of the no-pets policy for his emotional support dog, and a landlord in a pickle trying to accommodate both of them. In an attempt to please both parties, the landlord allowed the emotional support dog on the premises while requiring the two tenants to use different stairways and providing an air purifier for the tenant with pet allergies. These measures failed to prevent the tenant from suffering allergic attacks. She sued the landlord and her neighboring tenant in small claims court for breach of the lease’s no-pets provision and interference with the quiet enjoyment of her apartment. As a defense, the landlord asserted that its waiver of the no-pets policy was a reasonable accommodation that it had no choice but to grant under the Iowa Civil Rights Act (ICRA).  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 30, 2020  .. FLRA:  Navy v. AFGE  ..  In this case, we remind the federal labor-relations community that arbitrators may not disregard the plain wording of parties’ collective-bargaining agreements.    AFGE filed a grievance alleging that the Agency’s overtime-distribution practices violated the parties’ master collective-bargaining agreement. Arbitrator Joseph M. Sharnoff issued an award finding that AFGE improperly filed a step-three institutional grievance instead of a step-one group grievance.    The main question before us is whether the award – addressing AFGE’s failure to properly file the grievance by granting the Union the right to refile at any time – fails to draw its essence from the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 30, 2020  .. 11th Cir.:  Rainey v. UPS  ..  Rainey worked for UPS from 1977.    On Friday, September 27, 2013, Rainey delivered three packages to Dialysis Clinic, Inc. of Southpoint (DCI) as part of his job as a package car driver for UPS.    He delivered the first package during the afternoon, when DCI was still open. Rainey knew that he had a total of three boxes for DCI on his package car, but he could not find the other two boxes at the time of his first delivery there.    That evening, Rainey located the two remaining boxes for DCI on his package car and returned to the business to deliver them.    The following Monday, DCI complained to UPS about Rainey’s Friday evening delivery.  Rainey was terminated in 2013.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 30, 2020  .. CSC; Ward v. United  ..  From the air, the borders that divide state from state disappear. But in our federalist system, those borders still matter—even for those who make their living flying the friendly skies. In these consolidated cases and Oman v. Delta Air Lines, Inc. (June 29, 2020, S248726) ___ Cal.5th ___, we confront questions about how the laws of a single state might apply to employees who perform duties across the country, on behalf of an employer in the business of connecting the world. Plaintiffs are pilots and flight attendants for a global airline based outside California. Plaintiffs reside in California but perform most of their work in airspace outside California’s jurisdiction. They are not paid according to California wage law, but instead according to the terms of a collective bargaining agreement entered under federal law. The United States Court of Appeals for the Ninth Circuit has asked us to decide whether, given these circumstances, the airline is required to provide plaintiffs with wage statements that meet the various requirements of California law.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 30, 2020  .. NJSCA:  Cook v. Prime  ..  Plaintiffs, paramedics Douglas Cook and Glenn M. Deitz, filed an amended complaint in which they alleged the same two causes of action but added more detail. On Prime's motion to dismiss for failure to state a claim, the court granted the motion as to plaintiffs' CEPA theory based on the operational shift change but denied the motion as to plaintiffs' CEPA theory based on Prime refusing them per diem work. The court also granted the motion as to the complaint's second count alleging plaintiffs were constructively discharged contrary to a strong public policy mandate.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Gross Mismanagement in the VA Office of General Counsel.   The VA Office of Inspector General (OIG) substantiated that   [ VA OFFICE OF GENERAL COUNSEL TOLERATED ATTORNEY MISCONDUCT FOR 8 YEARS ] :    The review team discovered that VA’s OGC received complaints about the attorney using VA time and resources to engage in his outside law practice as early as 2012.    The OIG found that OGC's failure to appropriately supervise or meaningfully investigate the attorney's misconduct allowed it to continue. It was not until the OIG alerted OGC to this review’s preliminary findings that the OGC investigated the attorney, which ultimately led to his removal from federal employment in March 2020.  REPORT:  (.pdf)

♦       June 29, 2020  .. Fed. Cir.:  Avalos v. Hud  ..  This is a case about the removal of a federal employee who was illegally appointed to his position in the civil service. Mr. Edward M. Avalos appealed his removal from employment as the Field Office Director in Albuquerque, New Mexico, for the United States Department of Housing and Urban Development to the Merit Systems Protection Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 29, 2020  .. D.D.C.:  EEOC v. GWU  ..  The Equal Employment Opportunity Commission (“EEOC”) filed this action on behalf of Sara Williams against The George Washington University (“Defendant” or “GW”).      EEOC alleges that Ms. Williams, who was employed as Executive Assistant to GW’s Director of Athletics, Patrick Nero, was treated less favorably—by being paid less for equal work and being denied employment opportunities and advancement—than a male comparator, Michael Aresco, who was hired as Special Assistant to Mr. Nero.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 29, 2020  .. CCA:  Fresno v. FDSA  ..  Appellants Greg Isaac and Kirby Alstrom are employed by the Fresno County Sheriff’s Office (the department) as deputy sheriffs. They filed a grievance challenging their involuntary reassignment from their specialty assignments to patrol assignments.    A specialty assignment is an assignment to a detective unit, a non-patrol function. Specialty assignments include positions in units such as the U.S. Marshals Fugitive Task Force, the Multi-Agency Gang Enforcement Consortium (MAGEC), the ag task force, and vice intelligence.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 29, 2020  .. 6th Cir.:  Banerjee v. UTK  ..  As a tenure-track assistant professor at the University of Tennessee, Knoxville (“UTK”), Dr. Damayanti Banerjee knew she had to publish or perish. She failed to publish, so she perished. Unhappy with being denied tenure, she then brought a lawsuit,     Damayanti Banerjee is a female sociologist who was born in India. On August 1, 2008 she began work as an assistant professor at the University of Tennessee’s sociology department in a tenure-track position. After multiple warnings over several years that her published work was not adequate, the university elected in 2014 not to retain her, and on July 31, 2015, her employment ended. Dr. Banerjee now makes a number of claims regarding her employment. We set out the facts as pertinent below.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 26, 2020  .. FLRA:  IUPEDJ v. PBGC  ..  Arbitrator Charles Feigenbaum found that the Union’s grievance was not arbitrable because the Union failed to actively pursue the grievance as required by the parties’ collective-bargaining agreement.     The Union argues that the award should be vacated on contrary-to-law, essence, and exceeds-authority grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 25, 2020  .. FLRA:  AFGE v. VA  ..  Arbitrator Steve Bourne issued an award denying the Union’s grievance alleging that the Agency discriminated against the grievant and suspended him without just and sufficient cause. The Union filed an exception on the ground that the award is contrary to law because it did not find that the Agency discriminated against the grievant. Because the award is consistent with law governing reasonable-accommodation requests, we deny the Union’s exception.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 25, 2020  .. FLRA:  VA v. AFGE  ..  This matter is before the Authority on exceptions to an award of Arbitrator Phillip E. Ray filed by the Agency under § 7122(a) of the Federal Service Labor‑Management Relations Statute (the Statute)[1] and part 2425 of the Authority’s Regulations.[2] The Union filed an opposition to the Agency’s exceptions.     Consequently, the Authority issued a show-cause order (SCO) directing the Agency to show cause why its exceptions should not be dismissed because the Authority is without jurisdiction to review exceptions relating to an award pertaining to the removal of the grievant from the Agency.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 25, 2020  .. D.D.C.:  Young v. Perdue  ..  Plaintiff, an African-American male, started working as the Chief Information Officer (“CIO”) for USDA’s FAS in January 2015.     This case involves Plaintiff’s claims of discrimination, brought pursuant to Title VII of the Civil Rights Act of 1964, against his employer, the United States Department of Agriculture’s (“USDA”) Foreign Agriculture Service (“FAS”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 24, 2020  .. NJSC:  Krebs v. UCC  ..  In August 2004, defendant Union County College (UCC) hired Plaintiff Howard Krebs as a student service specialist, to advise students seeking career advice, and develop programs to address student retention goals. In December 2014, plaintiff was diagnosed with Type-I Diabetes, which rendered him insulin dependent.     Plaintiff took short-term disability leave in August 2015. In October 2015, when he exhausted all his sick leave and was cleared to work full-time without restrictions, he returned to work.     After his return to work, plaintiff's attendance became inconsistent.     In December 2015, Heather Keith, Director of the Advising, Career, and Transfer Department, sent plaintiff a First Written Warning for "excessive absences." The warning noted: "Since our [verbal warning] on 11/9/15, you have . . . been absent from work on 11/17 [and] 12/3 sick, and 12/2 half day emergency vacation.     Furthermore, as reported by the floor manager, you disappear from the floor for extended periods of time throughout the day." Keith advised plaintiff that failure to improve would result in further disciplinary action up to and including discharge.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 24, 2020  .. OCA:  Nance v. Lima Auto Mall  ..  Facts and Procedural History    Angelina’s father, Henry Nance (“Henry”), worked as the manager of the Detail Department at Lima Auto Mall, Inc. (“Lima Auto Mall”).    In 2015, a male detailer who worked for Henry at Lima Auto Mall was terminated for insubordination.    Henry spoke to Rodger McClain (“McClain”), who was the vice president and general manager at Lima Auto Mall, about hiring Angelina to fill this vacant detailing position.    Henry stated that Angelina had previous experience at detailing vehicles and was a “really good worker.    Henry then offered Angelina a job as a detailer at the Lima Auto Mall.    Angelina accepted this offer and was hired without having been interviewed.    She began working a full-time job as a detailer at Lima Auto Mall on May 8, 2015.    While Lima Auto Mall has employed a number of women, Angelina was the only woman to have applied for a job in their detail department and was the first woman to work in the detail department.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 23, 2020  .. FLRA:  Prisons v. AFGE  ..  In this case, we remind arbitrators not to look beyond the plain wording of parties’ collective-bargaining agreements when making procedural-arbitrability determinations.    The main question before us is whether the award fails to draw its essence from the local supplemental agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 23, 2020  .. 9th Cir.:  Wooten v. BNSF  ..  Zachary Wooten worked as a conductor for BNSF Railway Company until September 2015, when he was terminated after reporting a work-related injury. In this action, Wooten claims that the firing violated the Federal Railroad Safety Act(“FRSA”), Federal Employers’ Liability Act (“FELA”), and Locomotive Inspection Act (“LIA”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 23, 2020  .. NJSC:  Brickell v. Cablevision  ..  Plaintiff Curt Brickell worked at Cablevision a/k/a CSC TKR, LLC (Cablevision) from December 1996 until he was terminated for cause on February 26, 2014. On January 23, 2015,1 nearly a year after his termination, plaintiff filed a six-count civil action against his former employer predicated on violations of the Law Against Discrimination    Plaintiff also named as defendants Mark Lime and Robert Knapp, two of his former supervisors. In Counts I through III of the complaint plaintiff alleged he was subject to a hostile work environment, discrimination, and retaliation    According to plaintiff, his supervisors and coworkers incessantly harassed and taunted him based on his alleged cognitive deficits and/or developmental disabilities.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 23, 2020  .. 11th Cir.:  Bligh v. Collier  ..  This appeal arises from Mr. Bligh’s age discrimination suit against his former employer, the District School Board of Collier County, Florida.    After the Board failed to renew his annual contract, Bligh sued under the federal Age Discrimination in Employment Act and the Florida Civil Rights Act.    The Board says that they terminated Bligh because of poor performance, not his age.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 19, 2020  .. FLRA:  AFGE v. VA  ..  The Union filed a grievance alleging that the Agency violated the parties’ collective-bargaining agreement and 5 C.F.R. § 531.223 when it set the grievant’s pay in her new position.    Arbitrator Robert G. Williams found that the Agency had set the grievant’s pay at the maximum payable rate under the parties’ agreement and applicable regulations.     The Union filed exceptions to the award on essence and contrary-to-law grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 17, 2020  .. Fed. Cir.:  Doyle v. DHS  ..  Ms. Doyle, seeks review of a MSPB final decision sustaining her removal from [Homeland Security].    Prior to her removal, Ms. Doyle was employed as an Education Specialist with the U.S. Coast Guard.    The CDC provided Ms. Doyle with a performance plan, outlining the Core Competencies that would be used to evaluate her performance.    The Core Competencies included: (1) customer service; (2) communication; and (3) timeliness and quantity of work.    Ms. Doyle was notified that she received a “Fails to Meet” rating in all three Core Competencies.    As a result of her unacceptable performance, Ms. Doyle was placed on a Performance Improvement Plan.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 17, 2020  .. FLRA:  NTEU v. Homeland  ..  Statement of the Case :    This case is before the Authority on remand from the U.S. Court of Appeals for the District of Columbia Circuit (the Court).    In NTEU v. FLRA, the Court reversed the Authority’s finding that Proposal 1 was nonnegotiable because it is contrary to 41 C.F.R. § 300-3.1 of the Federal Travel Regulation (FTR).    Accordingly, the Court remanded the case to the Authority for proceedings consistent with its opinion. Based on the foregoing, we find that Proposal 1 is within the duty to bargain because it is not contrary to law and the Agency does not have sole and exclusive discretion to define a “duty station” for purposes of calculating employees’ travel compensation. Additionally, Proposal 1 is not contrary to management’s right to determine its organization because it does not affect the Agency’s right to allocate employees to certain duty stations or agency subdivisions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 17, 2020  .. FLRA:  OPM v. AFGE  ..  The United States Office of Personnel Management (OPM) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the American Federation of Government Employees, Local 32 (Union or AFGE) concerning negotiations over six articles in the parties’ collective bargaining agreement (CBA).      The parties are governed by a CBA that became effective in August 1999. Since that time, the agreement has rolled over every three years and is currently in effect until the parties reach a successor agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 16, 2020  .. Supreme Court:  Bostock v. Clayton  ..  The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”    SUPREME COURT:    An employer who fires an individual merely for being gay or transgender defies the law.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 16, 2020  .. Fed. Cir.:  Oliva v. DVA  ..  Mr. Oliva worked as an Associate Director of Pharmacy Customer Care at the Department of Veterans Affairs (“VA”) Health Resource Center in Waco, Texas. In a series of emails beginning on December 30, 2014, Mr. Oliva accused his supervisor of preselecting an applicant for a position at the agency, which his supervisor contested as an allegation that he had acted improperly. On January 9, 2015, the agency issued Mr. Oliva a letter of reprimand for “Inappropriate Conduct.”     On March 13, 2017, Mr. Oliva filed an individual right of action alleging that the agency’s issuance of the retaliatory letter of reprimand was a prohibited personnel action under the Whistleblower Protection Act.    Mr. Oliva sought damages for:   (1)   lost relocation incentive pay for a job he alleges he would have received in El Paso absent the letter of reprimand,   (2)   non-pecuniary damages for emotional harm.     The Board found that the agency had taken a prohibited personnel action against Mr. Oliva because it perceived him to be a whistleblower, its perception was a contributing factor to the issu- ance of the letter of reprimand, and the agency had not shown by clear and convincing evidence that it would have issued the letter of reprimand absent its perception of Mr. Oliva as a whistleblower. The Board awarded Mr. Oliva $3,500 in emotional harm damages.  ..  COURT DECISION:   (.pdf)   (.html)          Second Case : Oliva v. United Staes :  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 16, 2020  .. 5th Cir.:  Williams v. Waste  ..  Waste Management, Inc. (WM), employed Mr. Williams, Sr. (a black male, then age 50), initially in Oklahoma before his transfer to Texas. In Texas, Williams worked on the “roll-off” line’s (construction-site or industrial- site pickup) morning shift, beginning at 4:30; the evening shift began at 6:00. WM also had a residential line, paying less than roll-off but with the shift’s beginning at 6:00 a.m.     Williams stated in his deposition that he suffers from post-traumatic- stress disorder (PTSD) and takes sleep medication as a treatment (difficulty sleeping). In mid-June 2013, Williams informed his then-supervisor, route- manager Short, that he felt his health had improved while WM had assigned him temporarily to a later start time. Williams explained to Short that the 4:30 a.m. start time he ordinarily worked required him to take his medication earlier in the evening, sometimes leaving him insufficient time to complete errands and family obligations. Williams had not previously discussed his medication with Short, who referred him to WM’s contract medical provider. Short also noted to Williams that he could switch to a residential shift beginning at 6:00 a.m.     Based on Williams’ taking sleep medication, WM’s contract medical provider temporarily disqualified him from work, pending his physician’s confirming he could safely operate a commercial vehicle. On 28 June, his physician did so and stated Williams could return without restrictions, provided he used his medication properly.     Williams, however, did not return to work. Around July, he instead telephoned defendant Mark Johnson—Short’s replacement as his direct supervisor/route-manager.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 16, 2020  .. 5th Cir.:  Jones v. Mississippi  ..  Jones is an African-American man who worked as a Lobbying Compliance Officer for the Mississippi Secretary of State. After working there for nearly ten years, he applied to become the Director of Compliance. He interviewed but was told he was not the “right fit.” The person hired was white and had significantly less career experience and education.     Jones filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”). The EEOC found there was reasonable cause to believe that the Secretary of State’s office violated Title VII of the Civil Rights Act. Within a couple months of the EEOC’s determination, someone reported that Jones violated the Secretary of State’s office policy by being in the building after hours. An investigation ensued, and Jones was fired. He subsequently brought this suit.     In Jones’s complaint, he alleged that defendants Doug Davis, Kim Turner, and Carla Thornhill—all employees in the Secretary of State’s office— “conspired, colluded, and collaborated to deny” him the promotion. Additionally, Jones said that the investigation into his violation of office policy was “pre-textual” and that his eventual termination was retaliation for his EEOC complaint.     We vacate and remand.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 15, 2020  .. D.C. Cir.:  IUP v. FLRA  ..  The Independent Union of Pension Employees for Democracy and Justice (“Union”) petitions for review of a Federal Labor Relations Authority (“Authority”) order finding that it committed unfair labor practices by attempting to dismantle the pool of arbitrators selected by a predecessor union and thereby impeding access to the grievance process.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 12, 2020  .. Fed. Cir.:  Young v. MSPB (IRS)  ..  Ms. Young, a former Internal Revenue Service employee, asserts that she was removed from her position with the agency for engaging in protected whistleblowing activity.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 12, 2020  .. 6th Cir.:  Gibson v. MGMGrand  ..  Ms. Gibson alleges that she suffered gender discrimination under Title VII and ELCRA over the course of two years when MGM denied her three different promotions. First, in 2015, Gibson applied for an engineering job (Engineer I-FACE) on the Fix and Clean Everything (FACE) team in the hotel. Next, in 2016, Gibson applied for an engineering position (Engineer II-FACE) in the hotel. Soon after, Gibson applied for another engineering position (Engineer III- Journeyman) in the plumbing department. Gibson did not receive any of the three positions, and each went to a man. Jimmie Valentine and Ernest Lewis made all three hiring decisions. MGM and Gibson’s union partially negotiated the job requirements for each of the positions for which Gibson applied; we begin there.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 12, 2020  .. 6th Cir.:  Wingo v. MichBell  ..  Mr. Wingo, an African American male, was a long-time employee of Michigan Bell. He worked as a customer-service specialist, responsible for installing, repairing, and maintaining Michigan Bell’s network infrastructure. Despite his long tenure, Wingo’s record at Michigan Bell was not unblemished. To the contrary, he had a history of disciplinary incidents throughout his employment. This string of disciplinary issues continued following Wingo’s 2013 transfer to Michigan Bell’s garage in Pontiac, where the violations quickly piled up. Wingo alleges that his violations in Pontiac were attributable not to improper conduct, but rather race discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 11, 2020  .. D.D.C.:  Wright v. Ross (Commerce)  ..  Mr. Wright is a veteran employee of the Office of Sustainable Fisheries within the National Oceanic and Atmospheric Administration (“NOAA”). In 2018 and 2019, he filed three separate administrative complaints with the agency’s Office of Civil Rights alleging various instances of discrimination and retaliation based on his sex, age, and disability during the course of his employment.     The agency issued final decisions finding no discrimination or retaliation with respect to the first two complaints and has not yet issued an investigative report or final decision on Wright’s third complaint.     Wright sued the agency in this Court under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1964 (“ADEA”), and the Rehabilitation Act, based on the discrimination and retaliation claims raised in all three administrative complaints.     The Government has filed [a request] for summary judgment.     Agreeing that the claims raised in Wright’s first and third administrative complaints are barred, the Court will grant summary judgment to the Government on those claims.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 11, 2020  .. FLRA:  Prisons v. AFGE  ..  In this case, we again emphasize that when determining the procedural arbitrability of a grievance, arbitrators may not disregard unambiguous deadlines that parties establish in a collective-bargaining agreement.     The Union filed a grievance alleging that the Agency violated the Federal Service Labor-Management Relations Statute (the Statute) and the parties’ collective-bargaining agreement by bypassing the Union when it assigned two bargaining-unit employees to revise “post orders” – instructions for staff to follow at a given post of duty. Arbitrator Joseph M. Schneider issued an award finding the grievance arbitrable and sustaining it on the merits.     The main issue before us is whether the Arbitrator’s procedural-arbitrability determination fails to draw its essence from the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 10, 2020  .. Fed. Cir.:  Cerulli v. Defense  ..  Plaintiff, a Fire Protection Inspector at the Defense Logistics Agency, appeals a Merit Systems Protection Board decision denying plaintiff’s request for corrective action under the Whistleblower Protetion Act (WPA).  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 10, 2020  .. FLRA:  HUD v. AFGE  ..  The Agency requests that we reconsider our decision in U.S. Department of HUD and stay implementation of that decision.     In a motion for reconsideration (motion), the Agency argues that (1) the Arbitrator’s award and (2) the Authority’s decision are contrary to public policy.     The Agency also requests that the Authority stay HUD while the Authority considers its motion.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 10, 2020  .. 5th Cir.:  Jordan v. Houston  ..  Ms. West, an African American woman, is employed as an engineer/operator paramedic with the Houston Fire Department.     Ms. West took issue with her fellow firefighters’ behavior. Her colleagues would tell jokes to one another that she found inappropriate, including jokes about “men’s testicles.” They passed gas, burped, and occasionally grabbed their private parts at the dinner table. They brought adult magazines to the station and left them in common spaces.     In addition to finding fault in her coworkers and subordinates, West alleged that her station superiors denied her overtime opportunities because of her race and sex.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 9, 2020  .. 3rd Cir.:  Kissell v. PennDepCor  ..  Appellant Mr. Kissell sued his former employer, the Pennsylvania Department of Corrections (Penn DOC), for retaliatory harassment and termination; he won at trial. Kissell was reinstated and assigned to work at a different prison.     When new environs allegedly brought new, albeit familiar mistreatment, Kissell retired, and then—proceeding pro se—sued the Penn DOC again. This time, he lost at the pleading stage. [BASICALLY] Kissell “did not sufficiently allege the second and third elements of retaliation,” and that he “also failed to plead facts sufficient to allege discrimination”).     Many months later Kissell, through counsel, filed another suit against the Penn DOC, alleging the same misconduct.     The District Court dismissed the complaint for failure to state a claim.     Kissell, now proceeding pro se, filed a notice of appeal.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 9, 2020  .. WCA:  Salazar v. EraLiving  ..  Between 2008 and 2015, Salazar worked as the admissions coordinator at a senior care facility in North Seattle.     On August 6, 2018, Salazar sued “Era Living. Salazar alleged claims of sexual harassment based on a hostile work environment, unlawful retaliation, and constructive discharge     Era Living did not appear or respond to the complaint.     The trial court entered an order of default and a default judgment in the amount of $542,650.     Angelina Salazar appeals a trial court order vacating a default judgment against Era Living.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 8, 2020  .. 10th Cir.:  Bussey v. Esper  ..  Mr. Bussey worked for the DTRA as a logistics management specialist.     On August 15, 2015, Bussey filed a confidential IG complaint about his supervisor, Paul Collins. The complaint alleged Collins engaged in widespread wrongdoing and mismanagement.     On August 31, 2015, Collins issued Bussey the first of three proposed disciplinary actions that culminated with Collins’s November 2015 recommendation that the DTRA terminate Bussey due to his “conduct unbecoming a federal employee, abusive language towards co-workers, failure to comply with leave procedures, lack of candor, and Absence Without Leave.”     [DTRA] fired Bussey in January 2016.     Bussey appealed his termination to the MSPB, claiming that it lacked factual support and stemmed from (1) race, color, and age discrimination, (2) retaliation for filing a prior equal opportunity employment (EEO) complaint and testifying in support of a former employee at a prior MSPB hearing, and (3) and reprisal for protected disclosures.  ..  DECISION:   (.pdf)   (.html)

♦       June 8, 2020  .. MCA:  Jewett v. Mesick CSD  ..  Plaintiff was hired in 1992 by defendant, the Mesick Consolidated School District (the School), as a custodian. According to a psychological evaluation, plaintiff suffers from attention deficit hyperactivity disorder (ADHD), an unspecified anxiety disorder, a “reading disorder,” and a “disorder of written expression.” Plaintiff contends that he also suffers from dyslexia and hypoglycemia.     It is not seriously disputed that plaintiff is unable to read, although plaintiff contends that he has no difficulty understanding, memorizing, and following verbal directions.     By plaintiff’s own admission, he never actually described himself as “disabled;” rather, he only described himself as dyslexic and unable to read.     Throughout the course of plaintiff’s employment, his various supervisors and administrators provided plaintiff with verbal instructions regarding his job. Plaintiff was given colored charts of where he was to clean, and laminated photographs of what and how to clean; those visual aids were attached to plaintiff’s cleaning cart.     Nevertheless, school personnel complained about the quality of plaintiff’s work for many years. Those complaints included leaving floors and bathrooms dirty, failing to follow directions, and attendance problems. Plaintiff’s personnel file reflects an extensive history of disciplinary action, and plaintiff admitted that he was disciplined by numerous supervisors or superintendents.     [Former] superintendent, Michael Corey, personally observed plaintiff’s work to be substandard, believed plaintiff willfully disregarded instructions and knowingly shirked his duties when he thought no one would know, or performed unacceptable work that plaintiff believed was good enough despite knowing it would not be acceptable to a supervisor.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 5, 2020  .. FLRA:  IBEW v. Energy  ..  The dispute in this case concerns two Union proposals involving the Agency’s pay practices.     The Union presented the Agency with the two proposals at issue and requested a written allegation of nonnegotiability.     On March 5, 2019, the Agency provided a written allegation stating that it had previously declared the two proposals nonnegotiable in the October 26, 2017 letter.     In response, the Union filed this petition on March 19, 2019.    FLRA DECISION:    Where a petition for review concerns a proposal that is not substantively changed from one that had previously been alleged to be nonnegotiable by the agency, the effect of the petition is to seek review of the previous allegation.     Because the Union submitted proposals containing only minor modifications from those previously declared nonnegotiable, we find that the Union failed to file a timely petition for review (petition).     Thus, we dismiss the petition.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 5, 2020  .. 2d Cir.:  Sooroojballie v. Port Authority  ..  Plaintiff Neil Sooroojballie commenced this action against his former employer and supervisor under Title VII of the Civil Rights Act, alleging employment discrimination on the basis of his race and national origin.    On September 17, 2018, a jury found in favor of Sooroojballie on his hostile work environment claim, awarding him compensatory damages in the amount of $2,160,000 against the Port Authority and Frattali, and punitive damages in the amount of $150,000 against Frattali.    Defendants challenge the judgment.  ..  Court Decision:    (.pdf)   (.html)

♦       June 4, 2020  .. FLRA:  NAGE v. Defense  ..  The Defense Commissary Agency (Agency) notified the Union and the grievant of its decision to suspend the grievant on May 21, 2018 (the suspension decision).    The Union filed a grievance on the grievant’s behalf on June 28. The grievance alleged that the Agency violated Agency policy and the grievant’s “ability to use the established grievance procedure” in Article 43 of the parties’ agreement (Article 43) when it issued the suspension.    The parties were unable to resolve the grievance and invoked arbitration.    The Arbitrator determined the grievance was untimely and therefore [should be] withdrawn.    The union appeals the Arbitrator's decision.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 4, 2020  .. 2d Cir.:  Tulino v. New York  ..  Plaintiff-Appellant Michelle Tulino appeals from a February 27, 2019 decision by the United States District Court for the Southern District of New York (Rakoff, J.) granting judgment as a matter of law to the Defendants-Appellees and dismissing Tulino’s constructive discharge claim.     From 2007 to 2015, Tulino worked for the City of New York in a variety of positions principally within the Department of Small Business Services (“SBS”).     Tulino left her job in 2015 after complaining of gender-based harassment by her supervisor, Shaazad Ali, and she brought suit against the Defendants-Appellees asserting a variety of claims, four of which (hostile work environment, retaliation, and constructive discharge and common-law battery proceeded to trial.     The jury then found for Tulino on her hostile work environment and retaliation claims. The district court subsequently denied Tulino’s motion for reconsideration of its constructive discharge ruling and Tulino timely appealed.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 4, 2020  .. 9th Cir.:  Lezama v. Clark  ..  Lezama was employed as a maintenance worker by the Clark County Department of Aviation. He injured his back while at work in April 2014, which resulted in his being placed on light duty and then on unpaid leave. Over a year later, he was notified that his employment would be terminated unless he was eligible for an accommodation under the ADA.     As part of the process to determine whether he was eligible for an accommodation, Lezama underwent a medical assessment. The doctor conducting the assessment erroneously stated on the assessment form that Lezama did not have a physiological disorder requiring an accommodation. Lezama’s employment was then terminated on January 13, 2016.     Lezama was later retroactively reinstated, to the date of his termination, when his doctor determined Lezama did have a physiological disorder requiring an accommodation.     A further evaluation determined that Lezama could not perform the duties of a maintenance worker, with or without a reasonable accommodation. The County determined that Lezama could not perform the essential functions of the position with or without reasonable accommodation. Because no position was found that Lezama could perform, his employment was terminated at the end of the thirty-day period.     Lezama then filed suit in federal district court alleging wrongful termination in violation of Nevada state law; racial discrimination, discrimination, failure to accommodate, and retaliation in violation of the ADA.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 3, 2020  .. FLRA:  IRS v. NTEU  ..  In this case, we remind the federal labor-management community that a grievance allegedly seeking a temporary promotion is a non-arbitrable classification matter under § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute) when, as relevant here, the assigned duties providing the basis for the claim were not different from duties the employee performed in his or her permanent position.    Arbitrator Samuel A. Vitaro issued an award finding that the Union’s grievance was arbitrable because it sought a temporary promotion.    The main issue before us is whether the award is contrary to law.       Applying the clarified standards set forth in U.S. Small Business Administration (SBA I), we find that § 7121(c)(5) bars the grievance, and we set aside the award in its entirety.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 3, 2020  .. 5th Cir.:  Daniel v. UTSMC  ..  Plaintiff-Appellant Gwendolyn M. Daniel filed an Americans with Disabilities Act (ADA) action against Appellee-Defendant University of Texas Southwestern Medical Center (UTSMC).     She is seeking recovery for UTSMC’s alleged discrimination and retaliation against her in connection with her employment as a UTSMC nurse.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 1, 2020  .. 2d Cir.:  Carter v. Autozone  ..  This case concerns Plaintiff-Appellant Faith Carter’s demotion from the position of store manager to parts sales manager following AutoZone’s investigation into a heated altercation between Carter and a subordinate employee, DaJavon White-Hall (“White- Hall”).     Carter’s complaint alleges that her demotion was the result of gender discrimination and retaliation for her decision to file a complaint against White-Hall following their verbal dispute.         During the investigation and then later at her deposition, Carter admitted to the above conduct, all of which violated AutoZone’s policies and subjected her to discipline up to and including termination.     Carter argues on appeal that a jury could decide that her admittedly disrespectful and unprofessional responses were reasonable responses to his inflammatory statements.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 1, 2020  .. FLRA:  VA v. AFGE  ..  In this case, we address an arbitrator’s failure to make the necessary factual findings to support an award of hazard pay for certain nursing professionals.      The Union filed a grievance contending that Registered Nurses (RNs), Licensed Practical Nurses (LPNs), and other employees are entitled to environmental or hazard pay differential for dealing with certain hazardous materials.      Arbitrator George Deretich determined that the grievance was not arbitrable as to the RNs, but that it was arbitrable as to the LPNs and other employees, and he awarded hazard pay.      We deny the Union’s exceptions that challenge the Arbitrator’s conclusion that the grievance was not arbitrable as to the RNs under 38 U.S.C. § 7422 because the Union fails to explain how the Arbitrator erred.      The Agency argues that the Arbitrator’s award of a hazard pay differential for the LPNs is contrary to law, contrary to public policy, and based on a nonfact.      Because we find that the Arbitrator failed to make the necessary findings to award a hazard pay differential, we grant the Agency’s contrary-to-law exception and set aside that portion of the award.  ..  FLRA DECISION:   (.pdf)   (.html)