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   December 2, 2016  ...  OPM GUIDANCE:      OPM is pleased to announce a new fact sheet titled " DISABLED VETERAN LEAVE FACT SHEET "


   November 28, 2016  ...  5th Cir:  Campbell v. LIT  ...   THIS IS NOT A "REASONABLE" ACCOMMODATIONS CASE ... IT'S A "RIDICULOUS" ACCOMMODATIONS CASE.  ...   Russell Campbell is a former student at Lamar Institute of Technology (LIT) where he earned an Associate’s Degree in Emergency Medical Services (EMS) and subsequently enrolled in LIT’s Respiratory Care Program. Due to an anoxic brain injury, Campbell struggles to retain and process information. While he was enrolled in the EMS program, LIT accommodated his learning disability by extending time for all of his exams and providing a laptop and a recorder to help with note-taking during class.         In addition, on her own initiative, one of Campbell’s professors, Stephanie Lanoue, created a unique accommodation by permitting Campbell to take two exams: one at the same time as the rest of the class and a second exam—which was different, but covered the same material—two weeks later.         In response to his declining performance, Campbell met with Rebecca Cole, the Coordinator of Special Populations Programs, to request another accommodation.         In addition to the accommodations he was already receiving, Campbell requested that, similar to his arrangement with Professor Lanoue, he be permitted to take two exams in each class: one at the same time as the other students and another two weeks later.         Alternatively, he requested two extra weeks of study time after the other students had taken the exam (which would also require creation of a second exam to prevent cheating).   ...   COURT DECISION::   (.pdf)   (.html)


   November 28, 2016  ...  MSPB:  Elder v. Air Force  ...   THIS IS AN INTERSTING CASE.   IF YOU CAN FOLLOW IT UNTIL THE END.  ...   The appellant was employed by the agency as an Electrician. The agency removed him, effective May 17, 2013, for alleged use of offensive language and tardiness. Elder v. Department of the Air Force. He appealed his removal, raising a claim of retaliation for whistleblowing.         The parties settled that appeal with an agreement providing that the appellant would be reinstated, the removal action would be canceled, and he would serve a 90-day suspension.         However, in connection with the back pay that resulted from the agreement, the agency failed to provide the appellant with the opportunity to elect whether to reinstate his health benefits retroactively.         Because of this failure, the appellant was incorrectly assessed a debt for unpaid health benefits premiums, and the Defense Finance and Accounting Service (DFAS) began deducting from his salary to repay this debt.  ...   Merit Systems Protection Board Decision::   (.pdf)   (.html)


   November 22, 2016  ...  1st Cir:  United States v.  Swan  ...   INTERESTING CASE ABOUT A CITY COUNCIL WOMAN ON THE TAKE ... AND THE STING  ...   The citizens of Chelsea, Maine (the "Town"), elected Carole Swan to serve as a selectperson, and she held that position for nineteen years. During the course of her tenure, however, Swan came under investigation for allegedly using her public office to profit at the Town's expense.         In early 2011, a deputy from the Kennebec County Sheriff's Office ("KCSO") met with Frank Monroe, a local businessman. Monroe told the deputy that Swan had instructed him to over-bill the Town for sand delivery and pay her a $10,000 kickback.         After receiving this information, the KCSO set up a sting operation. Under the direction of the sheriff's office, Monroe submitted an inflated bill to the Town for the amount indicated by Swan. The invoice was subsequently approved and a check to Monroe was issued.  ...   COURT DECISION:   (.pdf)   (.html)


   November 22, 2016  ...  MSPB:  Khan v. Homeland   ...   PROPOSED HIS REMOVAL BASED UPON A SINGLE CHARGE OF FALSIFICATION WITH 15 SPECIFICATIONS.  ...   The agency appointed the appellant to a Customs and Border Patrol Officer position in January 2005. In April 2015, the agency proposed his removal based upon a single charge of falsification.         In short, the 15 specifications underlying the charge alleged that the appellant provided false information on a number of occasions concerning his background information and true identity.         After the appellant responded, the deciding official sustained the removal. The deciding official concluded that the evidence supported each sp ecification, but also indicated any one of the specifications would have presented a sufficient basis for removal.         The appellant appealed his removal to the Board.         He stipulated to specifications 12-14 of the falsification charge, each concerning representations made during his periodic background reinvestigation with the agency.         Specification 12 alleged that the appellant falsely claimed that he rented a townhouse owned by another individual named Sohail Mohammad.         Specification 13 alleged that the appellant falsely denied owning any real property.         Specification 14 alleged that the appellant provided a fabricated rental agreement and had a friend falsely pose as his landlord, both with the intent to deceive the agency’s background investigator into thinking that the listed owner of the property, Sohail Mohammad, was someone other than the appellant.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 22, 2016  ...  MSPB:  Watson  v. Veterans Affairs   ...   SHE WAS TERMINATED FOR DISPLAYING INAPPROPRIATE CONDUCT AND FAILING TO MAINTAIN REGULAR ATTENDANCE.  ...   The appellant, a preference-eligible veteran, was appointed pursuant to a Veterans Recruitment Appointment (VRA) to the excepted-service position of GS-5 Medical Support Assistant on November 15, 2015.         The appellant was subject to a 1-year trial period. She was terminated effective June 23, 2016, for displaying inappropriate conduct and failing to maintain regular attendance.         The appellant filed the instant appeal, alleging, among other things, that she was terminated maliciously under false allegations, given assignments that were not consistent with her position, subjected to a hostile work environment, and retaliated against for filing discrimination complaints with the Equal Employment Opportunity Commission (EEOC).   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 21, 2016  ...  MSPB:  Hess v. Postal  ...   DOES MSPB LACK THE AUTHORITY TO AWARD COMPENSATORY DAMAGES IN DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY (EEO) REPRISAL CLAIMS ?  ...   The agency removed the appellant effective September 27, 2013.         She appealed her removal, and raised affirmative defenses of sex and disability discrimination, reprisal for EEO activity, and whistleblower reprisal.         Subsequently, the agency rescinded the action, removed all references thereto from the appellant’s official personnel folder, and retroactively returned her to the nonpay status that she occupied prior to her removal.                 This appeal is before us on the administrative judge’s July 22, 2016 [...] ruling that the Board lacks the authority to award compensatory damages in discrimination and equal employment opportunity (EEO) reprisal claims.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 18, 2016  ...  MSPB:  Roach v. Justice  ...   IS THIS A CASE OF AGE DISCRIMINATION ?  ...   The appellant is a preference-eligible veteran currently employed with the agency as a GS-10 Safety and Occupational Health Specialist.         In March 2015, the agency announced a vacancy for the Safety and Occupational Health Manager (Environmental and Safety Compliance Administrator) position, GS-0018-12/13.         The announcement was open to Federal Government employees nationwide and certain others, including “[p]reference eligibles or veterans who have been separated from the armed forces under honorable conditions after three years or more of active service.”         The appellant applied for the vacancy and was later notified that her application was reviewed but not referred to the selecting official because she exceeded the age requirement for Federal law enforcement employment.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 16, 2016  ...  8th Cir:  Grant v. Blytheville  ...   THE SUPERVISOR FALSELY ACCUSED THE BLACK GARBAGEMAN OF INSUBORDINATION, THEN FIRED HIM.  ...   Johnny Lee Grant, a black male, was fifty-nine years old and had been an atwill employee of the City of Blytheville, Arkansas, (the City), for twenty-seven years when he was fired on September 26, 2012, by Public Works Director Marvin Crawford. Grant filed this action against the City, alleging that he was fired on account of his race and age [...].         The district court concluded that Grant had established a prima facie case of race and age discrimination but that he had not shown that the City’s legitimate, nondiscriminatory reason for firing him—insubordination—was pretextual. Grant appeals.  ...   COURT DECISION:   (.pdf)   (.html)


   November 15, 2016  ...  10th Cir:  Acha v. AGRICULTURE  ...   HARD TO CHARACTERIZE THIS CASE. THIS A AN IMPORTANT CASE TO READ AND UNDERSTAND ... (A RECOMMENDED "MUST READ" FOR EMPLOYEE RELATIONS SPECIALISTS).  ...   Petitioner was eventually terminated during his probationary period from his position with the Forest Service. He filed a complaint with the Office of Special Counsel (OSC), the independent agency responsible for protecting federal employees from prohibited personnel practices, alleging that he was actually terminated because he had disclosed to the Inspector General in April that (1) his fellow employee’s unauthorized deposit violated the FAR, (2) his supervisor had directed him to cover this up, and (3) he had been punished for helping in the cover-up. Petitioner, in other words, alleged that he had been terminated because he was a whistleblower.  ...   COURT DECISION:   (.pdf)   (.html)


   November 14, 2016  ...  VAOIG:  ADMINISTRATIVE INVESTIGATION – CONDUCT PREJUDICIAL TO THE GOVERNMENT AND MISUSE OF POSITION IN THE VA OFFICE OF GENERAL COUNSEL WASHINGTON, DC.       The VA Office of General Counsel (OGC) asked VA’s Office of Inspector General (OIG) to investigate allegations that Mr. John Thomas Burch, Jr., a GS-14 General Attorney and Deputy Director of OGC’s Homeland Security and Operations Division, used his official position for private gain, misused Government property, and misused official time in connection with his outside employment as President of a non-profit charity organization, National Vietnam Veterans Foundation, Inc. (NVVF).      Summary   Report


   November 14, 2016  ...  MSPB:  Brinson v. Navy  ...   WHILE HIS SUSPENSION APPEAL WAS PENDING, NAVY REMOVED HIM FOR DISRESPECTFUL CONDUCT.  ...   Prior to the appellant’s removal, he served as an Electronics Industrial Controls Mechanic with the agency’s Naval Facilities Engineering Command in Dahlgren, Virginia.         In January 2014, the agency suspended the appellant for 30 days based on two disrespectful conduct charges and an insubordination charge.         In pertinent part, one of the disrespectful conduct charges and the insubordination charge involved the appellant’s interactions with his fifth-level supervisor, Commander J.B.         Among other things, the agency alleged that the appellant: (1) refused to obey Commander J.B.’s instructions; (2) told Commander J.B. that he did not care who he was; (3) told Commander J.B to get out of his office and to “make like a tree and leave”; and (4) told Commander J.B. to “get the hell out of the building” and slammed a door in his face.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 9, 2016  ...  MSPB:  Brown v. Veterans Affairs  ...   HE SAYS VA DISCRIMINATED AGAINST HIM BASED ON HIS RACE, NATIONALITY, SEX, AND DISABILITY.  ...   The appellant, a preference eligible, applied for a promotion to Supervisory Police Officer, GS-0083-09/11, but he was not selected for the position.         He filed a Board appeal of his nonselection, alleging that the agency violated his rights under VEOA and USERRA, discriminated against him based on his race, nationality, sex, and disability, and committed prohibited personnel practices.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 8, 2016  ...  Fed. Cir:  Jimenez v. DVA  ...   FAILURE TO OBSERVE PRECAUTIONS FOR CONTAINMENT AND CONTAMINATION OF A RADIOACTIVE MATERIAL  ...   Joe M. Jimenez, Jr. appeals the decision of the Merit Systems Protection Board denying him relief for an employment action taken by the Department of Veterans Affairs (“V.A.”).         Mr. Jimenez worked as a Nuclear Medicine Technologist for the V.A., where his job duties included injecting patients undergoing PET/CT scans with radiological substances. During a November 21, 2011, injection Mr. Jimenez conducted the radiological substance Flourine 18 escaped from its tubing and struck a patient’s arm and clothing.         Following the investigation, the V.A. proposed Mr. Jimenez’s removal for “Endangering the Patient’s Health and Safety of Others” and for “Failure to Observe Precautions for Containment and Contamination of a Radioactive Material.” Mr. Jimenez was removed effective March 5, 2012.         Mr. Jimenez brought a Whistleblower Protection Act (“WPA”) claim before the Merit Systems Protection Board.  ...   COURT DECISION:   (.pdf)   (.html)


   November 7, 2016  ...  Fed Cir:  Hood v. United States  ...   CLAIMS, CLAIMS, CLAIMS, COURT OF FEDERAL CLAIMS  ...   Julian R. Hood, Jr. (“Hood”), Hood began working as a mail processing clerk with the United States Postal Service (“USPS” or “the agency”) in Grand Rapids, Michigan.         Hood alleges that, while he was employed with the USPS, “he suffered from numerous medical disabilities, including post-traumatic stress disorder (PTSD), depression, and anxiety.”         Between 2014 and 2015, Hood filed several complaints in the United States District Court for the Western District of Michigan stemming from his employment with the USPS. Relevant to this appeal, on October 24, 2015, Hood filed Case alleging that the USPS discriminated against him, denied him reasonable accommodations for his disability, and interfered with his ability to obtain FMLA coverage.  ...   COURT DECISION:   (.pdf)   (.html)


   November 3, 2016  ...  MSPB:  Holton v. Navy  ...   NAVY SUPERVISOR REMOVED FOR MARIJUANA USAGE.  ...   The appellant was employed as a WS-10 Rigger Supervisor in the Navy Portsmouth Naval Shipyard.         On March 11, 2014, the appellant was overseeing a crane team of approximately 11 people. While in transit, the boom of the crane struck a building, causing approximately $30,000 in damage.         The agency required that all members of the crane team, including the appellant, provide a urine sample that evening to an agency contractor.         The appellant’s urine sample was tested twice and found positive for marijuana both times.         On March 31, 2015, following the first positive test result, the agency placed him in a paid, nonduty status. On May 15, 2015, the agency proposed his removal. The appellant was removed for use of an illegal drug, marijuana, effective July 8, 2015.         The appellant filed an appeal.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 3, 2016  ...  MSPB:  Campbell v. Army  ...   THE GS-15 INITIATED AN INVESTIGATION WHICH RESULTED IN HIS DEMOTION TO GS-12  ...   The appellant occupied a GS-15 position as Director of the agency’s Directorate of Plans, Training, Mobilization, and Security (DPTMS) at Fort Bliss, Texas.         In May 2012, several employees of the Range Branch were arrested and charged with theft of Government property, including furniture, which had been acquired for use in military training villages.         Following an internal review that led to some actions, the appellant requested an external audit. The Garrison Commander then initiated an investigation of GPC use in the Range Branch pursuant to Army Regulation (AR) 15-6.         Following the AR 15-6 investigation, the agency proposed the appellant’s removal based on a charge of negligent performance of duty.         After the appellant responded to the notice of proposed removal, the deciding official sustained the charge but mitigated the penalty to a demotion to a GS-12 Workforce Development Specialist position.         The appellant filed a Board appeal of his demotion.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   November 2, 2016  ...  MSPB:  Morris v. Navy  ...   REMOVED FOR INAPPROPRIATE CONDUCT AND FAILURE TO FOLLOW POLICY, PROCEDURE, OR INSTRUCTION.  ...   The appellant was employed as a GS-13 Physical Security Specialist with the Department of the Navy.         The agency removed the appellant based on Inappropriate Conduct (10 specifications) and Failure to Follow Policy, Procedure, or Supervisory Instruction (6 specifications).         He challenged the action by filing a Board appeal. Following a hearing, the administrative judge issued an initial decision in which she affirmed the agency’s action.         She sustained both charges, and found that the appellant did not establish any of his affirmative defenses, that the agency demonstrated a nexus between the appellant’s misconduct and the efficiency of the service, and that the penalty of removal was reasonable for the sustained charges.         The appellant timely submitted via e-Appeal Online.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   October 31, 2016  ...  Fed Cir:  English v. SBA  ...   NO ONE HAS SYMPATHY FOR THE WHISTLEBLOWING "OFFICE SNITCH"  ...   English is a Surety Bond Guarantee Specialist with the Small Business Administration (“SBA”).         English sent an email to his first-line supervisor, Jennifer Vigil, expressing concerns about a co-worker, including allegations that the co-worker was abusing the time and attendance policies.         English subsequently received a disciplinary letter of reprimand and an annual performance appraisal that included a rating of 3 out of 5 for overall performance.         The Board found that English's disclosure was a contributing factor in the adverse personnel actions. But the Board concluded that SBA had established by clear and convincing evidence that it would have taken the same personnel actions absent the protected disclosure.  ...   COURT DECISION:   (.pdf)   (.html)


   October 28, 2016  ...  FLRA:  LABOR v. AFGE  ...   IF AMERICA REALLY KNEW HOW MUCH TIME AND TAX-PAYER MONEY IS WASTED BY THESE FEDERAL UNIONS.  ...   The Department of Labor (Agency) contracted out one of its medical-review functions without giving the Union notice, or otherwise consulting with the Union.         Among its effects, the Agency’s contracting-out decision “impacted”[1] the conditions of employment of a bargaining-unit employee, who filed a grievance.         The Agency argued that it has a management right to contract out work. Additionally, the Agency contended that the contracting out was not done pursuant to A-76, and, therefore, Article 31 did not apply.         Arbitrator Richard Trotter issued an award finding that the Agency violated the parties’ collective-bargaining agreement and committed an unfair labor practice (ULP) under § 7116(a)(1) of the Federal Service Labor‑Management Relations Statute (the Statute)[2] when it made its contracting-out decision without following the notice and consultation procedures in the parties’ agreement.         As a remedy, the Arbitrator ordered a notice posting, but denied the Union’s other requested remedies, including individual remedies for the grievant.         Both parties filed exceptions to the award.   ...   FLRA DECISION:   (.pdf)   (.html)


   October 25, 2016  ...  DcDc:  Huckstep v. WMATA  ...   WAS THIS BUS DRIVER TERMINATED FOR A PREVENTABLE BUS ACCIDENT -OR- WAS IT DISCRIMINATION ?  ...   On January 29, 2014 Ms. Huckstep was driving Metrobus #2519 eastbound on Lee Highway in Virginia.         Video footage from a camera in the Metrobus showed Ms. Huckstep approaching the intersection of Lee Highway and Kirkwood Drive, traveling down an incline at a speed of 30 miles per hour.         Ms. Huckstep reacted to the changed traffic light by initially lowering her speed to 25 miles per hour, [as if preparing to stop,] she then accelerated to 37 miles per hour to try to cross the intersection before the light turned red.  ...   COURT DECISION:   (.pdf)   (.html)


   October 25, 2016  ...  MSPB:  Vinson v. Postal Service   ...   WAS HER RETIREMENT VOLUNTARY -OR- A CONSTRUCTIVE REMOVAL ?  ...   A retirement is presumed to be a voluntary act and, therefore, beyond the Board’s jurisdiction.         A retirement is involuntary if it is obtained by agency misinformation or deception.         The misleading information can be negligently or even innocently provided; if the employee materially relies on such misinformation to her detriment, based on an objective evaluation of the circumstances, her retirement is considered involuntary.                 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal of an alleged involuntary retirement.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   October 24, 2016  ...  Sixth Circuit:  Camp v. Bi-Lo  ...   WAS THEIR FAILURE TO ACCOMMODATE LEGIT -OR- A VIOLATION OF THE ADA ?  ...   Plaintiff Kenneth Camp worked for 38 years for defendant Bi-Lo grocery store, or its predecessors, as a stock clerk. In March 2012, Camp was employed on the overnight third shift in one of Bi-Lo’s stores in Chattanooga, Tennessee.         Plaintiff appeals the district court’s decision granting summary judgment to his employer, defendant Bi-Lo, LLC, on his claims that he was discriminated against on the basis of his disability and unlawfully dismissed in violation of the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Tennessee law.         Camp claims that Bi-Lo failed to accommodate his back impairment and discharged him from his position as a stock clerk in violation of the Americans with Disabilities Act.   ...   COURT DECISION:   (.pdf)   (.html)


   October 24, 2016  ...  MSPB:  Huynh v. SSA  ...   WAS HER REMOVAL, INSTEAD OF A DEMOTION, DUE TO RETALLIATION ?  ...   The appellant ... argued that K.B.’s decision to remove rather than demote her after she failed the Opportunity to Perform Successfully (OPS) plan was retaliatory and “strongly suggestive of mendacity.”         K.B. testified that she had created a position description for a noncareer ladder GS-11 position at the behest of her manager during the OPS and she had considered placing the appellant in that job. K.B. ultimately decided not to demote the appellant, and instead, proposed her removal.         The appellant asserted that K.B. was obligated to offer her the GS-11 position after having created it and that her decision not to offer the position could only be interpreted as retaliatory.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   October 21, 2016  ...  FLRA:  IFPTE v. NAVY  ...   ONCE AGAIN, WHEN THE UNION LOSES, IT SLIVERS BACK TO FLRA FOR ANOTHER "BIASED" SIDE-DEAL (WINK).  ...   During bargaining over several issues related to the relocation of bargaining-unit employees, the parties reached impasse, and the Union requested the assistance of the Federal Service Impasses Panel (the Panel).         The Panel directed the parties to participate in mediation-arbitration with the Chair of the Panel (the arbitrator).         The arbitrator issued a decision in Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, resolving the parties’ impasse over the remaining issues related to the relocation (the Panel’s decision).         The Union has filed a motion, with the Authority, asking the Authority to stay the Panel’s decision.  ...     FLRA DECISION:   (.pdf)   (.html)


   October 21, 2016  ...  MSPB:  Acosta v. Postal Service  ...   WAS POSTAL WRONG WHEN THEY DENIED HER RESTORATION REQUEST ?  ...   The Federal Employees’ Compensation Act and OPM’s implementing regulations provide, inter alia, that Federal employees who suffer compensable injuries enjoy certain rights to be restored to their previous or comparable positions.         The appellant, a Mail Processing Clerk at the agency’s Dallas Processing and Distribution Center, experienced a series of compensable injuries.         The Office of Personnel Management approved the appellant’s disability retirement application in December 2012, and the agency removed her from its rolls; she elected to receive Office of Workers’ Compensation Programs benefits until April 7, 2015, after which she elected to collect disability retirement benefits.         The appellant has filed a petition for review of the initial decision, which denied her restoration appeal.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   October 20, 2016  ...  USCFC:  Taylor v. US (ARMY)  ...   DID THE ARMY REQUIRE HIM TO PERFORM GS-9 DUTIES WHILE CLASSIFYING HIM AS A GS-5 ?  ...   Plaintiff, Robert L. Taylor, who appears prose, is an employee of the Department of the Army at Tripler Army Medical Center in Honolulu, Hawaii.         He alleges in his complaint here (plaintiff initially filed in district court) that the Army improperly categorized his position as a General Schedule ("GS")-5 Decedent Affairs Assistant when it should have been categorized as a GS-9 Casualty Affairs Coordinator/Officer.         As a result, plaintiff alleges that he was underpaid and improperly required to perform ce11ain duties while serving in the position. According to plaintiff, he was hired pursuant to a contract, which was breached when the Army required him to perform the duties of a GS-9 position while classifying him as a GS-5 employee.   ...   COURT DECISION:   (.pdf)   (.html)


   October 20, 2016  ...  MSPB:  Trinkl v. Commerce  ...   DID COMMERCE CONSTRUCTIVELY REMOVE THIS ECONOMIST ?  ...   The appellant was formerly employed by the agency as an Economist until he retired, effective January 10, 2015.         On February 25, 2016, he filed a Board appeal alleging that he had involuntarily retired because he had been discriminated against and subjected to a hostile and dangerous work environment.         He alleged that his supervisors had threatened him and subjected him to a “near physical attack” and that the agency had denied his request to be reassigned to a new and safe work environment.         The appellant also alleged that the agency engaged in harmful procedural error and committed prohibited personnel practices of unlawful discrimination and retaliation for whistleblowing activity.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   October 18, 2016  ...  8th Cir:  Kowitz v. Trinity  ...   WHAT CAUSED THE 8TH CIRCUIT TO OVERTURN THE DISTRICT COURT DECISION IN FAVOR OF TRINITY ?  ...   Roberta Kowitz had cervical spinal stenosis, a degenerative disease of the spine. On         Roberta Kowitz began working for Trinity Health in 2007 as a respiratory therapist in the cardiopulmonary department. She later assumed additional duties as a lead technician in the blood gas laboratory. Her direct supervisor was Douglas Reinertson, and Reinertson’s direct supervisor was Mark Waldera.         Kowitz had cervical spinal stenosis, a degenerative disease of the spine. On July 21, 2010, Kowitz requested leave under the Family and Medical Leave Act (FMLA) to have corrective neck surgery.         Roberta Kowitz appeals the district court’s adverse grant of summary judgment on her claims that her former employer, Trinity Health, and former supervisors, Douglas Reinertson and Mark Waldera, violated her rights under the Americans with Disabilities Act (ADA) and the North Dakota Human Rights Act.         The district court concluded that Kowitz failed to show she was capable of performing the essential functions of her position, and that Trinity did not have a duty to reassign Kowitz to an alternate position.         Because we conclude that Kowitz produced evidence that she could have performed the essential functions of her position with reasonable accommodation, we reverse.   ...   COURT DECISION:   (.pdf)   (.html)

   October 17, 2016  ...  FLRA:  AFGE v. JUSTICE (PRISONS)  ...   THE UNION DEMANDS ATTORNEY FEES AFTER PARTIAL GRIEVANCE VICTORY  ...   The Agency had suspended the grievant for two days after the grievant attempted to board an airplane with a personal firearm, stating that he was a federal law‑enforcement officer; the grievant was not authorized to carry a personal firearm on an airplane. The Union then filed a grievance. The parties failed to resolve the grievance, and they submitted it to arbitration.         The Arbitrator found that the grievant had misused his position, but the Arbitrator reduced the grievant’s two‑day suspension to a reprimand and awarded backpay for the two days. In doing so, the Arbitrator did not make a finding that the suspension violated the parties’ agreement or any law, rule, or regulation. Additionally, the award was silent as to attorney fees, but the Arbitrator emailed the parties and informed them that the award denied attorney fees.         The Union filed exceptions to the Arbitrator’s denial of attorney fees.  ...   FLRA DECISION:   (.pdf)   (.html)

   October 17, 2016  ...  FLRA:  AFGE v. JUSTICE (PRISONS)  ...   DID PRISONS FAIL TO EQUITABLY ROTATE OVERTIME . . . WHAT IS THE APPROPRIATE REMEDY?  ...   The Union filed a grievance alleging that the Agency violated the overtime provisions in Article 18. In particular, the Union claimed that the Agency had failed to equitably distribute overtime assignments and had failed to retain overtime records for a period of two years. The parties submitted the grievance to arbitration.         As relevant here, the issue before the Arbitrator was whether the Agency violated Article 18 “by failing to equitably rotate . . . overtime [assignments] and/or failing to maintain [the] required records relating to . . . overtime[.] [And, i]f so, what is the appropriate remedy?”.   ...   FLRA DECISION:   (.pdf)   (.html)

   October 14, 2016  ...  Fed Cir:  Cleaton v. DOJ  ...   CORRECTIONAL OFFICER APPEALS HIS REMOVAL FOR BEING CONVICTED OF A FELONY.  ...   Alesteve Cleaton was removed from his position as Correctional Officer pursuant to 5 U.S.C. § 7371, which mandates the removal of any law enforcement officer who is convicted of a felony. Mr. Cleaton appeals the Merit Systems Protection Board’s decision sustaining his removal.         Mr. Cleaton argues that even if he was convicted of a felony under the initial plea agreement, the initial plea agreement was withdrawn and therefore the conviction was nullified.   ...   COURT DECISION:   (.pdf)   (.html)


   October 14, 2016  ...  OPM NOTICE:  Issuance of OPM’s Web-Based Training Course, “Basic Employee Relations:   Your Accountability as a Supervisor or Manager
   October 14, 2016  ...  OPM NOTICE:  National Work & Family Month


   October 13, 2016  ...  Fed. Cir:  Edwards v. USPS  ...  POSTAL SERVICE DEMOTED THE SUPERVISOR AND HIS SUPERVISOR, TOO.  ...   Mr. Edwards was employed by the USPS as Supervisor of Maintenance Operations in the Rochester Processing and Distribution Center in Rochester, NY. On March 17, 2014, Mr. Edwards reported to work for an eight hour shift and found that there was no work for him following a scheduling error.         Mr. Edwards’s supervisors told him he could leave before his shift ended, and he left after one and a half hours on duty. Mr. Edwards did not submit a form requesting leave and later told the acting supervisor overseeing attendance to credit him with eight hours of work for March 17, 2014.         The USPS shortly thereafter began investigating Mr. Edwards’s actions, and a pre-disciplinary interview was held on April 9, 2014. The USPS determined that Mr. Edwards should not have received credit for time worked when he left on March 17. Postal Service charged him with improper conduct and reduced his grade and pay.         Mr. Edwards’s supervisor, Ms. Robin Swan, similarly received a reduction in grade and pay for leaving an eight hour shift without working four hours.   ...   COURT DECISION:   (.pdf)   (.html)


   October 12, 2016  ...  OPM & HHS GUIDANCE:  " Seasonal Flu Prevention and Protection for the Federal Workforce "     Flu Immunizations, frequent hand washing and proper etiquette for coughs and sneezes. To avoid spreading the flu, please consider staying home if you develop symptoms and not shaking hands with someone who appears ill.


   October 12, 2016  ...  MSPB:  Boppre v. Interior  ...   MISUSE & DELINQUENCY ON A GOVERNMENT CHARGE CARD, OFF-DUTY CRIMINAL MISCONDUCT   ...   The appellant was formerly a GS-5 Telecommunications Equipment Operator for the Turtle Mountain Agency in the agency’s Bureau of Indian Affairs.         On April 8, 2014, the agency proposed to remove her based on four charges: (1) misuse of a Government charge card (2 specifications); (2) failure to follow instructions (1 specification); (3) delinquency on a Government charge card (1 specification); and (4) off-duty criminal misconduct (5 specifications).         After hearing the appellant’s oral reply, the deciding official sustained all charges and imposed the penalty of removal.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   October 11, 2016  ...  MSPB:  Gardner v. DVA  ...   THE VA REMOVED HER ON FIVE CHARGES.  ...   The Department of Veterans Affairs (the agency) appointed the appellant to the position of Contract Specialist, effective March 13, 2011.         VA removed her effective July 13, 2014, based on the following charges: (1) forging and/or using falsified Government documents or records; (2) misuse of position; (3) failure to receive or maintain proper certification for a GS-13 Veterans’ Administration (VA) Contract Specialist; (4 failure to follow instructions; and (5) lack of candor.         The appellant has filed a petition for review of the initial decision, which affirmed her removal.  ...   MSPB Decision:   (.pdf)   (.html)


   October 6, 2016  ...  7th Cir:  Lord v. H.V.S.  ...  DOUBLE STANDARD? ... HE COMPLAINED OF SEXUAL HARASSMENT, SO THEY FIRED HIM AND THE HARASSER.  ...   High Voltage (HVS) develops software for video games. HVS hired Lord as an associate producer and initially assigned him to its Omni team, a working group named after a game then under development.         Lord’s new working group was known as the Responder team, and Lord began sharing an office with Nick Reimer, another associate producer and fellow Responder team member.         Lord claims that between July 18 and July 27, Reimer initiated unwanted physical contact on four separate occasions. First, on July 18 Reimer poked Lord in the buttocks as Lord was bending over to put coins into a vending machine. Next, on July 23 while Lord was talking with another coworker, Reimer slapped Lord’s buttocks as he walked past. Two days later Reimer again slapped Lord’s buttocks while Lord was purchasing something from the vending machine. Finally, on July 27 Reimer grabbed Lord between his legs while Lord was writing on a white board.         Ryan Lord claims that he was sexually harassed by male coworkers at High Voltage Software, Inc., and that High Voltage fired him for complaining about it.         High Voltage responds that the conduct Lord complained about wasn’t sexual harassment and that it fired Lord for other reasons including failing to properly report his sexual harassment concerns.  ...   COURT DECISION:   (.pdf)   (.html)


   October 5, 2016  ...  Fed. Cir:  Purifoy v. DVA,  ...  VA REMOVED HIM; MSPB MITIGATED TO 40 DAY SUSPENSION; MSPB REVERSED TO SUSTAIN REMOVAL; APPEAL.   ...   VA removed Lamonte L. Purifoy from his position over two charges of extended unauthorized absence.         The MSPB AJ determined that, in light of the reduced charge and the mitigating factors concerning Mr. Purifoy’s absence, the maximum reasonable penalty in light of the sustained charges was a 40-day suspension.         VA petitioned the Board for review.         The Board reversed the AJ and reinstated the Agency’s original penalty of removal.         Lamonte L. Purifoy appeals a final order by the Merit Systems Protection Board affirming the Agency’s decision to remove him.  ...   COURT DECISION:   (.pdf)   (.html)


   October 3, 2016  ...  DcDc:  Bowe-Connor  v. McDonald  ...   SHE IS SUING THE VA SECRETARY BECAUSE SHE GOT FIRED.  ...  Plaintiff was an employee of the Department of Veterans Affairs Medical Center from 1984 until her removal on May 17, 2013.         Plaintiff appealed her removal to the Merit Systems Protection Board (“MSPB”) in June 2013 on the ground that the penalty of removal was disparate, and, in addition, alleged harmful procedural error.         Plaintiff contends that she was improperly terminated from her position with the VA based on, inter alia, disparate treatment on account of her disability as well as reprisal for prior protected EEOC activity.  ...   COURT DECISION:   (.pdf)   (.html)


   September 30, 2016  ...  DcDc:  Burton v. AG (HUD)  ...  SHE SUFFERED MULTIPLE SUSPENSIONS, HOSTILE WORK ENVIRONMENT, FORCED RESIGNATION ?  ...   Plaintiff Sandra Burton ("Plaintiff," "Burton") brings this lawsuit against the Secretary of the United States Department of Housing and Urban Development ("Defendant," "Government," or "HUD"). Plaintiff alleges two counts of retaliation in violation of Title VII of the Civil Rights Act.         Plaintiff alleges she was retaliated against because she had previously complained of racial discrimination by a supervisor at HUD. Plaintiff seeks to prove retaliation on the basis of both:   1)  discrete, materially adverse actions taken by HUD, including multiple suspensions and her forced resignation [...] and   2)  a hostile work environrnent.  ...   COURT DECISION:   (.pdf)   (.html)


   September 29, 2016  ...  MSPB:  Kilby-Robb  v. Duncan (Education)  ...  WAS HER POOR PERFORMANCE RATING THE RESULT OF DISCRIMINATION, RETALIATION ?  ...   Kilby-Robb, an African-American over the age of sixty, has been employed since November 2009 as an Educational Program Specialist in the Charter Schools Programs office of the Department’s Office of Innovation and Improvement (“OII”), which administers over two dozen discretionary grant programs for schools across the country.         Plaintiff Kilby-Robb alleges that the U.S. Department of Education engaged in race- and age-based discrimination and retaliation, in violation of Title VII of the Civil Rights Act [...], and the Age Discrimination in Employment Act (“ADEA”), [...].         She claims that the poor performance evaluation she received from the Department, as well as a number of measures taken by the Department in connection with her extended medical leave, were discriminatory and retaliatory in violation of law.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   September 28, 2016  ...  FLRA:  NFFE v. State Department  ...  YET ANOTHER ANTI-MANAGEMENT RIGGED FLRA DECISION.  ...   This case is before the Authority on a negotiability appeal (petition) filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).[1] We must decide upon the negotiability of three proposals – Proposals 1, 2, and 5 – which address changes to Appendix N of the Foreign Affairs Manual (Appendix N). Appendix N sets forth the procedures for adjudicating emergency-passport applications.  ...   Federal Labor Relations Authority Decision:   (.pdf)   (.html)


   September 28, 2016  ...  MSPB:  Thomas v. Navy  ...   IS THIS A LEGITIMATE CONSTRUCTIVE SUSPENSION APPEAL ?  ...  The appellant, a Program Analyst employed with the Regional Contracting Office at Marine Corps Base Quantico, Virginia, filed a request for reasonable accommodation on June 4, 2012, citing her condition of allergic rhinitis due to mold, carpet mites, and other allergens throughout her building (Building 2010).         As noted, on June 25, 2015, the agency instructed the appellant to work 2 days a week in a telework status, with the remaining 3 days classified as LWOP.         The appellant filed an appeal in which she alleged that she is able to work every day with reasonable accommodation, but that the agency constructively suspended her by placing her on LWOP on every Monday, Wednesday, and Friday since August 18, 2015.         This case is before the Board on the appellant’s petition for review of the initial decision, which dismissed her constructive suspension appeal for lack of jurisdiction.         Merit Systems Protection Board Decision:    (.pdf)   (.html)


   September 27, 2016  ...  OPM:  NEW BACK PAY INTEREST CALCULATOR   The U.S. Office of Personnel Management (OPM) is pleased to announce the release of a new back pay interest calculator and fact sheet to assist agencies with the computation of back pay awards and interest payments.        The new back pay interest calculator can be found at    Back Pay Interest Calculator (opm)        The new back pay fact sheet can be found at    Back Pay Fact Sheet (opm)


   September 27, 2016  ...  MANY CALLS FOR PRESIDENT, CONGRESS TO BAN LAWYERS: TERRORIST LAWYER GOES ON SHOOTING SPREE IN HOUSTON, TEXAS    ...    Houston lawyer opens fire at strip mall, 9 injured on Monday before being killed by police.    The terrorist lawyer was driving a black Porsche, which had numerous weapons in it.    According to Houston Mayor, Sylvester Turner, the terrorist lawyer has been identified as 46 year old Nathan DeSai.    According to the State Bar of Texas website, DeSai practiced family law, business law and criminal law.


   September 23, 2016  ...  MSPB:  Hicks v. Agriculture   ...   WAS HER REMOVAL A HARMFUL PROCEDURAL ERROR AND/OR DISCRIMINATION BASED ON RACE ?  ...   Effective October 29, 2015, the agency removed the appellant from her position as a Food Inspector based on a single charge of conduct prejudicial to the best interests of the service supported by two specifications.         In specification one, the agency alleged that, on April 30, 2014, after the appellant’s supervisor, Dr. R.L., informed her that he had denied her leave request, the appellant called Dr. R.L. over to her vehicle at the end of her shift, pulled what appeared to be a gun from under the seat of the car, and showed it to him.         In specification two, the agency alleged that, on May 6, 2014, the appellant came to the door of an agency office, asked for Dr. R.L., and then pointed her finger at him and made a noise as if she were firing a gun.         The appellant filed a Board appeal challenging her removal and raised affirmative defenses of a denial of due process in connection with an agency investigation of the charges, harmful procedural error, and discrimination based on race.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   September 23, 2016  ...  DcDc:  Blount v. Jeh Johnson (Homeland)  ...   AFRICAN AMERICAN, NON-SELECTION, SETTLEMENT, AGE, RACE, DISCRIMINATION.  ...   Lester Blount, a 47-year-old African American, is employed by the United States Secret Service.         Settlement Agreements are contracts; each side gives up something and each side gets something to resolve a dispute. In this case, Lester Blount signed a settlement agreement with the Department of Homeland Security (DHS), his employer, to resolve multiple charges alleging that DHS had violated his rights to equal employment opportunity (EEO). In the days just before the settlement agreement was signed, Mr. Blount learned that he had not been selected for a particular job opportunity. He immediately contacted an EEO Counselor and complained. Nonetheless, with advice of counsel, he signed the settlement agreement and agreed, in part, that he would not complain further about anything related to his job that had occurred prior to and as of the date of his signature.         With new counsel, Mr. Blount now sues Jeh Johnson, DHS Secretary, alleging that his non-selection was due to race and age discrimination and in retaliation for Mr. Blount’s prior EEO activity.  ...   COURT DECISION:   (.pdf)   (.html)


   September 22, 2016  ...  DcDc:  Hisgen v. McHugh  ...   WAS THIS FEMALE ARMY COLONEL A "VICTIM" -OR- WAS SHE A WHISTLE BLOWER RETALIATOR ?  ...   Colonel (Ret.) Jennifer A. Hisgen, U.S. Army, sues Erik K. Fanning, Acting Secretary of the Army, in his official capacity. Col. Hisgen served with distinction for 30 years, mostly in the Judge Advocate General Corps. She has brought suit to overturn a decision of the Army Board for Correction of Military Records (Board) confirming that she violated the Military Whistleblower Protection Act by reprising against a service member who made a protected communication. Col. Hisgen disagrees with the decision and alleges that the Board violated the standards set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 706(2).  ...   COURT DECISION:   (.pdf)   (.html)


   September 22, 2016  ...  N.M.C.C.A.:  United States v. Stout  ...   WHY DID THE MARINES DISCHARGE THIS POOR INNOCENT HERO FOR SUCH A TINY INFRACTION ?  ...   In October 2015, the appellant, as a squad leader, conducted unit training in Yuma, Arizona. During the training evolution, he required his squad members to hold their rifles by the front sight post and charging handle and to carry serialized rocks in their pockets. He required one Marine to “plank” at parade rest on top of a rock.         Threatening his Marines, he told the squad, “I am not afraid to put my hands on you, I am gonna kill you, and I will beat your ass.” Finally, after consuming a large quantity of alcohol, he got into a loud, heated argument with the duty Marine and punched another Marine.   ...   COURT DECISION:   (.pdf)   (.html)


   September 21, 2016  ...  FLRA:  AFGE v. DOD  ...   I'M A MILITARY VETERAN: DON'T REASSIGN ME BECAUSE I HAVE POST-TRAUMATIC STRESS DISORDER (PTSD).  ...   The grievant, a military veteran, is an employee with a disability – specifically, Post-Traumatic Stress Disorder (PTSD). As part of his position, the grievant interacts with military commands and units to assist them in disposing of excess property and equipment. When the Agency informed the grievant that it was reassigning him from Richmond, Virginia, to the U.S. Marine base at Quantico, Virginia, the grievant submitted a request for a reasonable accommodation.         His first request asked the Agency to not reassign him to Quantico. In that regard, his request “indicated [that] he suffered from [PTSD] and [that] his [d]octors recommended [that] he not be stationed on a military base for an extended period of time.”[3]         The Agency denied this request, stating that having the grievant at Quantico full time would “ensure efficient and timely processing of material.”[4]                 The issue before the Arbitrator was “[w]hether the Agency had the right to turn down the [g]rievant[’]s request for a reasonable accommodation.”[7]   ...   FEDERAL LABOR RELATIONS AUTHORITY DECISION:   (.pdf)   (.html)


   September 20, 2016  ...  REVEAL PODCAST:  NO CHOICE: FAILING AMERICA’S VETERANS   ...    WHY THE VA "CHOICE" FIX IS WAY WORSE THAN THE PROBLEM.   (By The Center for Investigative Reporting)   Two years ago, the system that provides American veterans with health care was rocked by scandal when whistleblowers told the world that vets were dying while the Phoenix VA concealed them on a secret waiting list. Reveal revisits the scandal, then investigates what happened next, examining how a national effort to get veterans faster care turned Alaska’s homegrown health care system upside down, and how a deeply troubled VA hospital in Cincinnati responded to its own scandal by blaming the messengers..    Revealnews.Org


   September 20, 2016  ...  MSPB:  Scoggins v. Army  ...   ARMY GETS CAUGHT REMOVING EMPLOYEE IN RETALIATION FOR HIS PROTECTED WHISTLEBLOWING.  ...   In sum, we agree with the administrative judge that the evidence presented by the agency in support of the appellant’s proposed removal was weak, the agency had a motive to retaliate against the appellant, and there is no evidence that the agency took similar actions against similarly situated employees who were not whistleblowers.         Accordingly, we find no reason to disturb the administrative judge’s finding that the agency failed to prove by clear and convincing evidence that it would have proposed the appellant’s removal and postponed his 2012 performance evaluation in the absence of his protected whistleblowing.         ORDER We ORDER the agency to rescind the proposed removal and issue the appellant’s 2012 performance evaluation, along with any awards, bonuses, or similar items that result from the performance evaluation. See Kerr v. National Endowment for the Arts,         The agency must complete this action no later than 20 days after the date of this decision.         We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service Regulations, as appropriate, no later than 60 calendar days after the date of this decision.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   September 19, 2016  ...  11th Cir:  EEOC v. CMS  ...  (A JOB OR YOUR HAIR) EEOC GETS SMACKED DOWN FOR PLAYING THE "DREADED" RACE-HAIR CARD, AGAIN.   ...   Ms. Jones, who is black, completed an online employment application for the customer service position and was selected for an in-person interview. She arrived at CMS for her interview several days later dressed in a blue business suit and wearing her hair in short dreadlocks.         After waiting with a number of other applicants, Ms. Jones interviewed with a company representative to discuss the requirements of the position. A short time later, Ms. Jones and other selected applicants were brought into a room as a group.         CMS’ human resources manager, Jeannie Wilson—who is white—informed the applicants in the room, including Ms. Jones, that they had been hired.         Before Ms. Jones got up to leave, Ms. Wilson asked her whether she had her hair in dreadlocks. Ms. Jones said yes, and Ms. Wilson replied that CMS could not hire her “with the dreadlocks.”         When Ms. Jones said that she would not cut her hair, Ms. Wilson told her that CMS could not hire her, and asked her to return the paperwork she had been given. Ms. Jones did as requested and left.   ...   COURT DECISION:   (.pdf)   (.html)


   September 15, 2016  ...  MSPB:  Seigars v. AirForce  ...   WAS HIS REMOVAL FOR 22 INNOCENT TIMECARD IRREGULARITIES TOO HARSH ?  ...   The appellant, a GS-12 Air Traffic Control Specialist (Terminal) with the 80th Flying Training Wing at Sheppard Air Force Base in Texas, was removed for “Deliberate Misrepresentation.”         The agency charged that, between approximately January 1 and May 1, 2014, he inflated the hours he worked by submitting Automated Time Attendance and Production System (ATAAPS) entries or other time cards showing that he worked approximately 91.75 hours more than he actually did. The agency referenced 22 incidents representing approximately $5000 in pay.         In effecting the action, the agency considered the appellant’s past disciplinary record, an August 26, 2014 letter of reprimand he received for sleeping on duty.         On appeal, the appellant argued that the penalty of removal was too harsh.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   September 15, 2016  ...  FSIP:  Social Security Administrtion v. NTEU  ...   THE IMPACT AND IMPLEMENTATION ... TELEWORK MATTERS.  ...   FEDERAL SERVICE IMPASSES PANEL:    Chapter 224, National Treasury Employees Union (Union or NTEU) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse [...] between it and the [SSA] Office of Disability Adjudication and Review (ODAR), Falls Church, Virginia (Employer or Agency).       ISSUES AT IMPASSE:    The parties disagree over three issues; (1) the number of days bargaining·unit employees may telework per week; (2) telework during emergency closures of an employee's official duty station (ODS); and (3) rescheduling missed telework days (or “in-lieu of days").  ...   FSIP DECISION:   (.pdf)   (.html)


   September 14, 2016  ...  FSIP:  Homeland Security v. NTEU  ...   THE IMPACT AND IMPLEMENTATION OF POLYGRAPH TESTING OF EMPLOYEES.  ...   FEDERAL SERVICE IMPASSES PANEL:    This case arises from a request for assistance, filed by the National Treasury Employees Union (Union), under the Federal Service Labor—Management Relations Statute (Statute), 5 U.S.C. § 7119, which concerns a dispute between it and the [HOMELAND] Bureau of Customs and Border Protection (Agency) over the impact and implementation of polygraph testing of current employees who apply for law enforcement positions.       ISSUES AT IMPASSE:    The parties disagree over three matters: (1) whether an employee—applicant may have a Union representative observe the polygraph test; (2) whether an employee who receives a polygraph result of “No Opinion—Counter Measure" may retest only after a 2—year waiting period; and (3) the information to be provided to the employee and/or Union concerning an employee's polygraph results and the situations under which the information should be provided. .  ...   FSIP DECISION:   (.pdf)   (.html)


   September 13, 2016  ...  DcDc:  Clark v. Johnson (Homeland)  ...  WAS FEMA WRONG TO REVOKE HER SECURITY CLEARANCE AND TERMINATE HER EMPLOYMENT?   ...   Sheila Clark, who is proceeding pro se, alleges that her former employer, Federal Emergency Management Agency (“FEMA”), discriminated against her on the basis of race and retaliated against her for engaging in protected conduct, in violation of Title VII of the Civil Rights Act of 1964.         FEMA, which is a component of the Department of Homeland Security (“DHS”), revoked Clark’s security clearance and terminated her employment following investigations into alleged misconduct.         The first investigation, which was conducted by FEMA, arose from allegations made in an anonymous letter, and the second investigation—which FEMA referred to another component of DHS for investigation—arose from evidence of unrelated misconduct discovered in the course of the initial investigation.         Clark alleges that she was subjected to disparate treatment on the basis of her race during both investigations, and that in the second investigation, FEMA retaliated against her for filing Equal Employment Opportunity (“EEO”) and whistleblower complaints.  ...   COURT DECISION:   (.pdf)   (.html)


   September 12, 2016  ...  DcDc:  Hargrove v. AARP  ...   SOMETIMES A REASONABLE ACCOMMODATION REQUEST IS CLEARLY ... UNREASONABLE !  ...   AARP was previously known as the American Association of Retired Persons.         Plaintiff Earnestine Hargrove brought this suit against her now-former employer, AARP, for alleged violations of the Americans with Disabilities Act (“ADA”) [...] and the D.C. Human Rights Act (“DCHRA”).         Hargrove, who suffers from carpal tunnel syndrome, alleges that the AARP: (1) unlawfully refused to accommodate her disability; (2) retaliated against her for requesting accommodations; and (3) constructively terminated her by forcing her to work in conditions that were intolerable in light of her medical conditions.  ...   COURT DECISION:   (.pdf)   (.html)


   September 9, 2016  ...  VAOIG:  ADMINISTRATIVE INVESTIGATION - VAOIG SUBSTANTIATED YET ANOTHER MASS SECURITY BREACH AT A VA ACTIVITY.       The VA Office of Inspector General (OIG) Hotline received an allegation that ProCare Home Medical, Inc. (ProCare) was improperly storing and sharing VA sensitive data on contractor personal devices in violation of Federal information security standards. More specifically, the complainant alleged that ProCare was allowing its employees to use personal computers and phones to access the company computer system and download VA sensitive data, including veterans’ personal health information.      Summary   Report


   September 8, 2016  ...  MSPB:  Tyner v. Agriculture  ...   THIS IS A REALLY ODD CASE AND DECISION.  ...   After holding the appellant’s requested hearing, the administrative judge found that the agency failed to prove the charges of fighting, attempting to inflict bodily harm on duty, and creating a disturbance or disruption in the workplace.         She found the appellant’s testimony that he did not strike or push J.L. to be more credible than the testimony of two contractors, M.W. and R.P., who testified that the appellant did so.         Therefore, the administrative judge concluded that any fighting or attempting to inflict bodily harm on duty or creating a disturbance or disruption in the workplace was most likely the result of J.L.’s conduct, rather than the appellant’s.         The administrative judge found that the agency proved the charge of misrepresentation or concealment of facts on official documents.         She found that the appellant misrepresented the cause of his injury on the incident report and concealed that J.L. had assaulted him with a hammer.         The administrative judge further found that the appellant failed to prove his affirmative defenses of discrimination based on race and national origin.         Finally, she found that the penalty of a 30-day suspension was within the bounds of reasonableness for the sole sustained charge.         The appellant has filed a petition for review of the initial decision, which sustained his 30-day suspension.   ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)


   September 7, 2016  ...  TECH:  CONGRESSIONAL PROBE FINDS THAT U.S. PERSONNEL MANAGEMENT HACK PREVENTABLE   (By Washington Post Writter, Ana Swanson)   The U.S. Office of Personnel Management (OPM) did not follow rudimentary cyber security recommendations that could have mitigated or even prevented major attacks that compromised sensitive data belonging to more than 22 million people, a congressional investigation being released on Wednesday has found.         Two breaches at the federal agency detected in 2014 and 2015 were made worse by lax security culture and ineffective leadership, which failed to harness available tools that could have stopped or limited the intrusions, according to the report from the Republicans on the U.S. House of Representatives’ Committee on Oversight and Government Reform, a copy of which was seen by Reuters.    Numerous Sources


   September 7, 2016  ...  FLRA:  AFGE v. HOMELAND  ...   IS CUSTOMS AND BORDER PROTECTION OBLIGATED TO PROMOTE THESE EMPLOYEES ?  ...   The Union and several individual employees filed grievances, which were subsequently consolidated, alleging that the Agency violated the law when it failed to upgrade inspection assistants from General Schedule (GS)-5 to GS-7. Arbitrator Salvatore J. Arrigo found that the grievances involved a classification matter and therefore denied them. The Union designated a bargaining-unit employee (the grievant) as its representative for purposes of filing exceptions to the award, and she filed the exceptions.         The first question we must decide is whether the grievant has standing to file the exceptions.         The second question is whether the award is contrary to law and regulation because, contrary to the Arbitrator’s determination, the grievances do not involve a classification matter.         The third question is whether the grievant’s remaining exceptions support the grounds on which each exception is based, as required by § 2425.6 of the Authority’s Regulations.   ...   FLRA DECISION:   (.pdf)   (.html)


   September 7, 2016  ...  9th Cir:  Kerr v. Jewell (Interior)  ...   WHEN CASES ARE SCARCE, YOU GET A CASE LIKE THIS.  ...   Leslie Kerr, a former employee of the United States Fish and Wildlife Service (FWS), contended she was discriminated and retaliated against in violation of Title VII and retaliated against in violation of the Whistleblower Protection Act (WPA).   ...   COURT DECISION:   (.pdf)   (.html)


   September 6, 2016  ...  DcDc:  McFadden v. WMATA (DC Metro Transit)  ...   IS IT DISCRIMINATORY TO PROHIBIT DRUG USE BY PUBLIC TRANSIT WORKERS ?  ...   The plaintiff, Corey McFadden, proceeding pro se, brings this action against his former employer, the Washington Metropolitan Area Transit Authority (“WMATA”), and three WMATA employees (the “individual defendants”), asserting claims for disability discrimination, retaliation, defamation, and civil conspiracy.         WMATA hired the plaintiff as a bus mechanic in October 2008.         In June 2009, the plaintiff was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and prescribed the drug Adderall “to increase his focus and concentration.”         Pursuant to a WMATA policy forbidding employees in “safety-sensitive positions” from using amphetamines, the defendants prohibited the plaintiff from working as a bus mechanic while taking Adderall, and suspended his employment after he tested positive for use of the drug.         WMATA later fired the plaintiff for violating the authority’s substance abuse policy, but then reinstated his employment pursuant to an agreement with the Amalgamated Transit Union, Local 689, of which the plaintiff was a member.         On June 8, 2012, the plaintiff instituted this action, asserting multiple claims against all defendants under the Rehabilitation Act and ADA.  ...   COURT DECISION:   (.pdf)   (.html)


   September 2, 2016  ...  MSPB:  Bradley v. Homeland  ...   WAS HE NOT SELECTED FOR THE POSITION IN RETALIATION FOR WHISTLEBLOWING DISCLOSURES ?  ...   The appellant is employed at the Federal Protective Service (FPS or the agency) as a GS-14 Deputy Regional Director for Region 5.         The appellant filed a previous IRA appeal alleging that he had been retaliated against for making protected whistleblowing disclosures when the agency conducted a series of investigations and issued him a letter of counseling.         The appellant filed the current IRA appeal, identifying the same protected disclosures and retaliatory actions, and additionally alleging that he was not selected for the Region 5 Director position in retaliation for whistleblowing disclosures.  ...   Merit Systems Protection Board Decision:   (.pdf)   (.html)




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