October 21, 2016 ... FLRA: IFPTE v. NAVY ... ONCE AGAIN, WHEN THE UNION LOSES, IT SLIVERS BACK TO FLRA FOR SPECIAL 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 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). 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.” The Agency denied this request, stating that having the grievant at Quantico full time would “ensure efficient and timely processing of material.” 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.” ... 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 ... 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)
August 30, 2016 ... CA 2nd Cir:
Vasquez v. Empress ...
ZERO TOLERANCE 2.0: WE DO NOT TOLERATE SEXUAL HARASSMENT COMPLAINERS ! ...
Plaintiff Andrea Vasquez, an emergency medical technician working for Empress Ambulance Service, Inc. (“Empress”), was subjected to unwanted sexual overtures by another Empress employee while on the job.
This conduct came to a head in January 2014. On January 8, while Vasquez and Gray both worked in Empress’s office, Gray approached Vasquez, placed his arm around her, and asked “When are you going to let me take you out?” When Vasquez replied that she had a boyfriend and was not interested in a romantic relationship, Gray insisted that “I bet I can make you leave your man” and promised to “send . . . something between you and me.”
Around midnight that night, while out on shift, Vasquez received a picture message from Gray: a photograph of his erect penis, captioned “Wat u think.” Vasquez did not respond to this message or to a follow-up text message from Gray as she continued her work. When Vasquez returned to the office at the conclusion of her shift, however, she was “extremely embarrassed, distraught, and crying.” And she promptly informed an Empress field supervisor about Gray’s conduct.
Vasquez promptly complained of her co-worker’s conduct and was assured by supervisors that her complaint would be investigated. That investigation, however, consisted of Empress crediting false documents manufactured by Vasquez’s co-worker that purported to show Vasquez’s eager assent to a sexual relationship and refusing to consider further contradictory evidence.
In reliance on these documents, Empress fired Vasquez. ... COURT DECISION: (.pdf) (.html)
August 29, 2016 ... 7th Cir: Lane v. Riverview Hospital ... WAS HE FIRED DUE TO RACIAL DISCRIMINATION -OR- WAS IT ALL ABOUT THAT SLAP ? ... Lane is African American and began working as a security guard at Riverview Hospital in 1999. He had a successful employment record at the hospital, without any formal discipline until the event at the center of this lawsuit. In August 2012, a 17-year-old male autistic patient started hitting, swinging at, and kicking his caregivers. The situation had gotten so far out of hand that the health care professionals were afraid to approach the young man or to enter the room. A nurse summoned security. Lane responded and entered the room. He saw the patient kick one of the staff in the back. Lane then tried to restrain the patient, who tried to bite him and then spit in Lane’s mouth. As the patient prepared to spit again, Lane slapped him in the face with his open palm, making “solid contact.” The patient settled down and stopped swinging and kicking at Lane and the health care professionals in the room. ... COURT DECISION: (.pdf) (.html)
August 26, 2016 ... DCCA: Rodriguez v. District Of Columbia ... NICE TRY DUDE, NICE TRY. ... Florentino Rodriguez (“appellant” or the “Employee”) challenges a decision of the District of Columbia Office of Employee Appeals (“OEA”) that upheld his termination from his position as an Urban Park Ranger with the District of Columbia (“District”) Department of Parks and Recreation after he failed a random drug test. He contends, inter alia, that his termination was improper because, in violation of the applicable collective bargaining agreement (the “CBA”). ... COURT DECISION: (.pdf) (.html)
August 26, 2016 ... FLRA: AFGE v. Veterans Affairs (69 FLRA 538) ... HEY VA: WHEN YOU GET CAUGHT DOING WRONG, JUST DO THE RIGHT THING. DON'T BE A GRASS HOLE JUST BECAUSE YOU CAN. ... Arbitrator Jonathan S. Monat issued an award finding that Veterans Affairs had violated the parties’ collective-bargaining agreement when it improperly withheld state income taxes from the grievant’s pay. The Arbitrator awarded backpay under the Back Pay Act (Act) but denied the Union’s request for attorney fees because he found that the Agency’s actions were not “willful, malicious[,] or discriminatory.” The Union raises one exception to the award. The Union alleges that the Arbitrator’s denial of attorney fees is contrary to the Act. ... FLRA DECISION: (.pdf) (.html)
August 25, 2016 ... FLRA:
AFGE v. U.S. Customs and Border Protection (69 FLRA No. 75) ...
ONCE AGAIN, FLRA CONDONES UNION OFFICIAL'S EXTREME DISRESPECT AND INSUBORDINATION TOWARD MANAGEMENT OFFICIALS. ...
IN HIS DISSENT, FLRA AUTHORITY MEMBER, PATRICK PIZZELLA IS SO FRUSTRATED BY FLRA'S UNION LOVING BIAS AND THEIR CONTINUING EXTREME HATE OF FEDERAL MANAGEMENT OFFICIALS.
I have no doubt that there is a direct correlation between the increasingly lenient view of the Authority and this majority − of what conduct is protected by § 7102 – and the recurrence of the confrontational behavior which is at issue in this case. As I outlined in AFGE Local 2595,76 it may be an inconvenient history but my colleagues seem oblivious to the consequences of these ill-advised decisions the impact which they have on labor-management relations throughout the federal government.
Consider that since 2000, thirty cases concerning union representative misconduct have been considered by the Authority and its administrative law judges. Nineteen of those cases have involved the misconduct of representatives of AFGE. Relatedly, the Department of Labor’s Office of Labor-Management Standards reported in June of 2015 that AFGE leads all American unions in serious misconduct by its officials.77 It can be reasonably presumed, therefore, that the same AFGE attorney, which advised the AFGE representative in AFGE Local 2595 (just five months after the arbitration in that case)78 and who advised and represented Dolan here, would encourage Dolan to challenge the procedures by which an AFGE representative requests official time. It is particularly telling that the manual provided by AFGE National Council of Prison Locals to its representatives advises on how to engage in such conduct.
One does not need a psychic reading from Miss Cleo to conclude that, when Congress enacted § 7102, it never intended to sanction planned defiance, disrespect, and sarcasm by union representatives when those representatives engage with their supervisors in the workplace on routine, ministerial procedures. Turning a blind eye to such misconduct most certainly does not “interpret [our Statute] in a manner consistent with the requirement of an effective and efficient Government.”80 I believe the D.C. Circuit accurately reflected Congress’ intent when it observed that our Statute, which was “enacted to facilitate collective bargaining and protect employees’ right to organize [does not]prohibit employers from seeking to maintain civility in the workplace.”81 Supervisors do not have to look the other way when employees, whether or not they carry the title of union representative after their name, refuse to comply with established procedures and act in a manner that can only be considered sarcastic and confrontational.. ... FLRA DECISION: (.pdf) (.html)
AUGUST 24, 2016 ... VAOIG: ADMINISTRATIVE INVESTIGATION - VAOIG SUBSTANTIATED MISUSE OF OFFICIAL TIME, DENVER VA REGIONAL OFFICE, LAKEWOOD, CO. VA’s Office of Inspector General (OIG) investigated allegations that Ms. Melanie Murphy, Director of the Denver VARO, was habitually absent from work during her designated duty hours and submitted incorrect timecards [including] allegations that Ms. Murphy was absent for several weeks without taking the appropriate sick leave and frequently came to work late. Summary Report ( WAS SHE A VICTIM OF VA'S FAILURE TO EMBRACE HER NEED FOR MAXIMUM WORK/LIFE FLEXIBILITIES ? )
August 24, 2016 ... NLRB: ... NLRB: GRADUATE STUDENTS WHO WORK AS TEACHING AND RESEARCH ASSISTANTS AT PRIVATE UNIVERSITIES ARE ENTITLED TO COLLECTIVE BARGAINING ... The threshold question before us is whether students who perform services at a university in connection with their studies are statutory employees within the meaning of Section 2(3) of the National Labor Relations Act. ... NLRB DECISION: (SEE Case Name: "COLUMBIA UNIVERSITY") ... (.PDF Copy of NLRB Decision)
August 24, 2016 ... OPM: PATHWAYS PROGRAMS’ FOURTH ANNIVERSARY: NEWLY RELEASED REPORT AND TECHNICAL SUPPORT FOR RECRUITING STUDENTS AND RECENT GRADUATES OPM.COM
August 23, 2016 ... MSPB: Foster v. Interior ... TALKING ABOUT A "SLAP ON THE WRIST" PENALTY ... NOW THAT'S A "SWEET DEAL" ... The U.S. Department of Interior demoted the appellant from his position as a Supervisory Civil Engineer, GS-13, to that of a Civil Engineer, GS-12, on based on three charges: (1) failure to follow instructions; (2) unauthorized purchases; and (3) inappropriate conduct. The administrative judge affirmed the agency’s action. The appellant has filed a petition for review of the initial decision, which affirmed his demotion. ... Merit Systems Protection Board Decision: (.pdf) (.html)
August 23, 2016 ... MSPB: Prager v. Joyce Honda ... WAS SHE MORE CONCERNED WITH BEING A "VICTIM" THAN A "TEAM PLAYER" FOR THE DEALERSHIP ? ... Plaintiff was twenty years old and worked as a receptionist for Joyce Honda in Denville. She had been there eleven months when a customer of the dealership leaned over the counter while she was on the phone and tugged at the sleeve of her off-the-shoulder shirt, exposing her bra. The matter was quickly referred to the service manager, who asked whether she wished to press charges. When plaintiff said she wasn't sure, the service manager told her she had fifteen minutes to decide and sent her back to her desk. The customer was a valued customer, having purchased about twenty cars over the years. He came into the dealership about twice a month to have one of his cars serviced. ... Merit Systems Protection Board Decision: (.pdf) (.html)
August 23, 2016 ... Fed. Cir: Jones v. HHS ... SOME FEEL THAT “USERRA” (AKA "ENTITLEMENT") IS ONE OF THE WORST LAWS EVER PASSED BY CONGRESS. ... On various dates in 2015, veteran John Paul Jones, III, filed sixteen appeals with the Merit Systems Protection Board (“MSPB”), alleging that the U.S. Department of Health and Human Services (“HHS” or “Government”) violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), when it did not select him for various job vacancies. An administrative judge (“AJ”) consolidated the appeals and ultimately denied Mr. Jones’s request for relief in an Initial Decision. The AJ’s Initial Decision became the Final Decision of the MSPB when Mr. Jones did not timely file a petition for review of that decision before the MSPB. Mr. Jones appeals, contending the AJ’s decision contains various legal and factual errors. The Government alleges that we lack jurisdiction to hear Mr. Jones’s appeal or, in the alternative, that the AJ’s decision was correct and should be affirmed. ... COURT DECISION: (.pdf) (.html)
August 22, 2016 ... DcDc: Husain v. Shah (USAID) ... HE ALLEGED UNLAWFUL DISCRIMINATION, AND MUCH MORE ... This is action against the United States Agency for International Development (“USAID”) (Rajiv Shah was the former Acting Administrator of USAID) and the United States brought by a former USAID employee, Musarrat Roohi Husain. During her tenure at USAID, Husain filed six administrative complaints against the agency alleging unlawful discrimination, and two related claims against the United States under the Federal Torts Claims Act (“FTCA”). These administrative complaints alleged various forms of workplace discrimination and other mistreatment under a host of federal and local statutes. Husain subsequently filed this action, asserting twenty-four claims against USAID and the United States, including, among other things, claims for violations of the Fifth and Fourteenth Amendments of the U.S. Constitution, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Rehabilitation Act, the District of Columbia Whistleblower Protection Act (“DCWPA”), the federal Whistleblower Protection Act (“WPA”), and the FTCA. ... COURT DECISION: (.pdf) (.html)
August 19, 2016 ... MSPB: Henderson v. VA ... WAS VA RIGHT -OR- WRONG TO INDEFINITELY SUSPEND THIS EMPLOYEE ? ... The agency employed the appellant as a GS-13 Program Analyst at the Health Eligibility Center in Atlanta, Georgia. On July 8, 2015, a Federal grand jury indicted him on 50 counts of making false statements relating to heath care matters in violation of 18 U.S.C. § 1035, an offense punishable by fines, imprisonment, or both. The indictment alleged that, between February 6 and February 11, 2014, the appellant “ordered employees of [the agency] under his direction to close over 2700 unresolved authorized consults for medical care for veterans by falsely declaring the consults to have been completed or refused by the patients, when in truth and fact, as [the appellant] then well knew, the consults were still pending and unresolved, and the veteran patients were still waiting for the authorized medical consults.” On July 22, 2015, the agency proposed to indefinitely suspend the appellant because, based on the indictment, there was reasonable cause to believe that he was guilty of a crime punishable by imprisonment. The appellant was allowed 7 calendar days to respond to the proposed action, and, on July 29, 2015, his representative submitted a response on his behalf denying the charges and requesting a stay of the personnel action. On August 7, 2015, the agency issued its decision imposing the indefinite suspension effective August 9, 2015. The decision letter stated that the suspension would remain in effect until completion of the judicial proceedings pertaining to the conduct charged in the indictment [...]. The appellant timely appealed the indefinite suspension to the Board. ... Merit Systems Protection Board Decision: (.pdf) (.html)
August 18, 2016 ... 7th Cir: Riano v. McDonald (VA) ... WAS VA WRONG FOR FIRING HIM FOR REFERRING TO MALE GENITALS AS “PECKER” AND “BALLS” ? ... James Riano worked as a registered nurse for the Veterans Health Administration, which is part of the U.S. Department of Veterans Affairs. While examining male patients for genital warts, Riano manipulated their penises with his hands, attempting to induce erections. He also used words like “pecker” and “balls,” rather than medical terms. The agency found his examination technique and his language to be inappropriate, so he was fired. He appealed and was given a hearing that included representation by counsel, live testimony from medical experts, written testimony from patients, and a written report from an investigator who had interviewed the patients. The appeals board affirmed his termination. Riano now appeals to this court, arguing that the agency’s procedures were constitutionally inadequate. ... COURT DECISION: (.pdf) (.html)
August 17, 2016 ... FLRA: AFGE v. Agriculture ... WAS ARBITRATOR'S FAILURE TO ADDRESS ATORNEY FEES UNLAWFUL ? -OR- WAS THE UNION SIMPLY UNTIMELY ? ... ANOTHER EXAMPLE OF FLRA PRO-UNION BIAS ? (DISSENTING MEMBER'S OPINION WAS THE PROPER FLRA DECISION) ... Arbitrator James M. O’Reilly issued an award finding that the Agency had a contractual right to adjust an overtime roster, but that the Agency failed to provide notice to the Union and an opportunity to bargain before doing so. The award was silent as to the Union’s request that the Arbitrator retain jurisdiction over the issue of attorney fees. The Union contacted the Arbitrator after the award became final and binding to ask him whether he intended to exercise jurisdiction over the question of attorney fees. The Arbitrator subsequently responded by email that he “did not retain jurisdiction over the [a]ward or attorney fees.” The substantive question before us is whether the Arbitrator’s award, as clarified by the Arbitrator’s email, is contrary to law. ... Here, AFGE Appeals To FLRA: FLRA DECISION: (.pdf) (.html)
August 17, 2016 ... Fed Cir: Rosario-Fabregas v. MSPB ... IS THIS A CONSTRUCTIVE SUSPENSION ? YOU BE THE DECIDER: WAS HIS ABSENCE FORCED -OR- VOLUNTARY ? ... Mr. Jose Rosario-Fabregas seeks review of a final decision of the Merit Systems Protection Board dismissing his appeal for lack of jurisdiction after concluding that Mr. Rosario was not constructively suspended during his four month absence from work. We have jurisdiction under 5 U.S.C. §§ 7703(b)(1)(A), 7702(a)(1)(A), and 28 U.S.C. § 1295(a)(9). The Board’s appellate jurisdiction is limited to agency actions over which it has been granted jurisdiction by law, rule, or regulation. 5 U.S.C. § 7701(a). Appealable agen- cy actions include removals and suspensions for more than 14 days. 5 U.S.C. §§ 7512, 7513(d). Additionally, this court has recognized that “seemingly voluntary actions in some circumstances may be considered adverse actions” over which the Board has jurisdiction. Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). Specifically, the Board has jurisdiction “if the employee proves, by a preponderance of the evi- dence, that [his or her action] was involuntary and thus tantamount to [a forced enumerated adverse action].” Id. at 1329 (alterations in original) (citing Shoaf v. Dep’t of Agric., 260 F.3d 1336, 1341 (Fed. Cir. 2001)). One such involuntary action that the Board has juris- diction over is an appeal based on a “constructive suspen- sion”—an involuntary absence from an agency for more than 14 days. Halloway v. U.S. Postal Serv., 993 F.2d 219, 220–21 (Fed. Cir. 1991) (the dispositive inquiry for whether there has been a suspension for jurisdictional purposes is “whether the employee’s absence from the agency was voluntary or involuntary”). In the context of constructive resignations and re- tirements, the decision to retire or resign is presumed voluntary “and this presumption will prevail unless plaintiff comes forward with sufficient evidence to estab- lish that the resignation [or retirement] was involuntarily extracted.” Garcia, 437 F.3d at 1329. Claimants general- ly allege involuntariness by establishing that the resigna- tion or retirement was the product of (1) misinformation or deception by the agency or (2) coercion by the agency. Conforto v. Merit Sys. Prot. Bd., 713 F.3d 1111, 1121 (Fed. Cir. 2013). This court has determined that the Board has jurisdiction over involuntary coercion claims if the em- ployee first establishes that: “(1) the agency effectively imposed the terms of the employee’s resignation or retirement; (2) the employee had no realistic alternative but to resign or retire; and (3) the employee’s resignation or retirement was the result of improper acts by the agency.” Garcia... COURT DECISION: (.pdf) (.html)
August 15, 2016 ... MSPB: Perrin v. Navy ... RARE REMOVAL OF FEMALE (aka "The Victim") FOR CONDUCT THAT ROUTINELY REMOVES MALE EMPLOYEES ... Effective May 17, 2013, the agency removed the appellant from her position as a Wastewater Treatment Plant Operator based on five specifications of Inappropriate Conduct. Specification 1 alleged that, during an exchange on March 21, 2013, the appellant took an aggressive step toward a Human Resources Specialist and asked her why she needed the military police present to give the appellant a letter placing her on administrative leave. Specifications 2 through 4 alleged that on March 19, 2013, the appellant threw the keys to a Government-owned vehicle at her supervisor after he asked to see her driver’s license, and stated “Fine, I’m not driving the truck anymore and you will be sorry,” and “Ok, I see now. Let me tell you. We will both be outside the gate kicking rocks.” Specification 5 alleged that on October 23, 2012, after the appellant’s supervisor informed her that he could not approve all of her requested leave, the appellant became loud and disrespectful, refused to leave his office, took a confrontational stance, and blocked the door so he could not leave. The appellant filed an equal employment opportunity (EEO) complaint concerning her removal. EEOC issued a notice finding jurisdiction over the appellant’s mixed-case appeal was with the Board (MSPB) not the EEOC. The appellant has filed a petition for review of the initial decision, which sustained her removal. ... Merit Systems Protection Board Decision: (.pdf) (.html)
August 12, 2016 ... MSPB: Osman v. Army ... CAREFUL HOW YOU WRITE YOUR CHARGE: IF YOU INCLUDE IT ... YOU GOTTA PROVE IT. ... The appellant was formerly employed as a Sheet Metal Worker, WG-3806-08, at the agency’s Tobyhanna Army Depot (TYAD) in Tobyhanna, Pennsylvania. In January 2014, a coworker, M.K., reported to his supervisor and the agency’s equal employment opportunity (EEO) office that the appellant had been harassing him by making obscene sexual and racial comments, thus creating a hostile work environment. The EEO office forwarded the matter to the military police for investigation. On March 10, 2014, the investigator issued a report including sworn statements from the appellant, M.K., and two other TYAD employees, who at least partially corroborated M.K.’s account. For his part, the appellant admitted to asking M.K. a sexually graphic question and to making a “duck face” (which was misconstrued as a blown kiss), but he otherwise denied M.K.’s allegations. On April 1, 2014, the agency proposed to remove the appellant for “Conduct Unbecoming a Federal Employee related to Violation of Tobyhanna Army Depot Policy Memorandum #4--Equal Employment Opportunity and the Prevention of Unlawful Harassment.” ... Merit Systems Protection Board Decision: (.pdf) (.html)
AUGUST 11, 2016 ... VAOIG: VAOIG SUBSTANTIATED A MASSIVE ($311, 000) WASTE OF FUNDS AT THE VA MEDICAL CENTER IN DETROIT, MICHIGAN VA Medical Center (VAMC) in Detroit, MI, purchased 300 televisions (TVs) and accessories in September 2013 for about $311,000. The complainant alleged the facility never installed the TVs because they were the wrong type. Thus, the facility could not use the TVs, which remain in storage. We substantiated the allegation the Detroit VAMC had not installed and used 282 of the 300 TVs, or associated accessories it purchased. Summary Report
August 10, 2016 ... 5th Cir: Heinsohn v. Carabin & Shaw ... REVERSED: SHE ALLEGED VIOLATIONS OF THE FAMILY MEDICAL LEAVE ACT (“FMLA”) ... In 2011, C&S hired Heinsohn as a legal assistant and assigned her to work exclusively on Social Security Administration (“SSA”) cases. Her wages were $10 an hour, and her responsibilities included (1) updating case notes in C&S’s electronic case management system, (2) communicating with clients and with the SSA, and (3) monitoring deadlines. She was assigned to assist George Escobedo, an “of counsel” lawyer responsible for all SSA cases, and Maria Carvajal, his legal assistant. Late in 2011, Heinsohn decided to accept a better-paying position with another employer and tendered her resignation to C&S. Escobedo, who “thought she was doing a good job, and . . . didn’t want to see her leave,” convinced James Shaw, the managing partner of C&S, to raise her pay. He did so, and Heinsohn withdrew her resignation. Her wages eventually rose to $14 an hour. Heinsohn became pregnant early in 2012. Shortly before she left on maternity leave later that year, Escobedo informed Heinsohn that he would reassign each of her cases to Becky Rendon, another legal assistant in the SSA section. Although it appears that Escobedo requested Heinsohn to perform some specific tasks before she left, it is not entirely clear what those tasks were. In their respective depositions, Escobedo and Heinsohn provided differing descriptions of those requests and tasks. The gist, however, appears to be that Escobedo simply requested Heinsohn to complete all outstanding tasks in each of the cases that he had assigned to her. Heinsohn began her maternity leave late in 2012, after telling Escobedo that she had completed all tasks that he had requested. Within days after Heinsohn’s departure, Rendon told Escobedo that, according to the notes in the case management system, deadlines had been missed in some of Heinsohn’s cases and good-cause letters had been sent on Escobedo’s behalf. Neither Rendon nor Escobedo sought an explanation from Heinsohn. Instead, after reviewing the notes himself, Escobedo informed Tracy Leonard, who assisted with human resources, that it appeared deadlines had been missed by Heinsohn. Leonard then informed Shaw. After speaking with Escobedo, Shaw decided to fire Heinsohn without providing her an opportunity to explain the situation. Approximately two weeks after Heinsohn had begun her maternity leave, Leonard—at Shaw’s behest—wrote to Heinsohn, informing her that C&S had terminated her employment. Leonard did not give any reason for firing Heinsohn. Early in 2013, Heinsohn filed a claim with the Equal Employment Opportunity Commission (“EEOC”), alleging “sex and retaliation discrimination.” C&S responded, asserting that it had nondiscriminatory reasons for terminating her. ... COURT DECISION: (.pdf) (.html)
August 10, 2016 ... 9th Cir: Daniels v. MSPB ... WERE HIS FIVE DISCLOSURES PROTECTED WHISTLEBLOWING ACTIVITY UNDER THE WPA ? ... Under the Whistleblower Protection Act (WPA), a federal employer is prohibited from taking personnel action against an employee who has disclosed information that evidences a violation of law, or gross mismanagement, gross waste of funds, abuse of authority, or substantial danger to public health or safety. An aggrieved employee, such as petitioner, may file with the MSPB an individual right of action that includes “non- frivolous allegations.” Petitioner was employed by the Social Security Administration, and he was suspended for fourteen days by an administrative law judge based on three charges. He filed an individual right of action with the MSPB, arguing that he made five disclosures that were protected whistleblowing activity under the WPA. ... COURT DECISION: (.pdf) (.html)
August 8, 2016 ... MSPB: White v. HHS ... YOU CAN CALL THIS THE "RIP VAN WINKLE CASE" ... The following facts are undisputed. On September 10, 2008, the agency issued a letter proposing the appellant’s removal from her GS-13 Behavioral Scientist position based on a charge of physical/medical inability to perform the duties of her position. The appellant received the letter at her home address and thereafter refused to receive or read any further correspondence from the agency. On October 14,2008, the agency issued a decision letter, addressed to the same home address, indicating that the appellant would be removed effective October 17, 2008. The agency’s removal notice informed the appellant of her right to appeal her removal to the Board within 30 days. It also informed her that if she believed her removal was discriminatory she could file an equal employment opportunity (EEO) complaint within 45 days of the effective date of her removal and that she could file a Board appeal within 30 days of a final agency decision (FAD) on her discrimination complaint. On October 3, 2015, the appellant appealed her removal to the Board. She indicated that she received the removal decision letter on October 14, 2008, the date of issuance, but that her untimely filing should be waived because the removal notice lacked information regarding her right to file a mixed-case appeal. ... Merit Systems Protection Board Decision: (.pdf) (.html)
August 4, 2016 ... DcDc: Savage v. Burwell (HHS) ... CAN THE COURT UNTANGLE SAVAGE’S SPRAWLING COMPLAINT ? ... Wanda Savage, a former management-level employee at the U.S. Department of Health and Human Services (“HHS”), brings this pro se employment discrimination action against the Department’s current Secretary, Sylvia Mathews Burwell. While it is somewhat difficult to untangle Savage’s sprawling Complaint, her claims appear to rest on the following central allegations: (1) that she was not permitted to work remotely from her home in Los Angeles, which she contends was necessary due to complications from injuries she sustained in a 2007 car accident that required two surgeries. (2) that HHS failed to provide her other reasonable accommodations, such as an oversized computer monitor and ergonomic office equipment, for a variety of physical disabilities arising from her injuries; (3) that she was not permitted to continue an alternative work schedule if she wanted to assume the Deputy Director position on a permanent basis; (4) that she was denied a permanent Deputy Director position, reassigned to a different position, and relocated to another building due to her age, gender, race, and disability, and in retaliation for having filed administrative claims with the Equal Employment Opportunity Commission (“EEOC”); (5) that she received lower performance ratings and associated pay than her white, male, and non-disabled counterparts and (6) that she was subjected to a hostile work environment by virtue of the personnel actions noted above and a laundry list of other perceived instances of mistreatment. ... COURT DECISION: (.pdf) (.html)
August 1, 2016 ... DcDc: Etokie v. Duncan ... DID EDUCATION DISCRIMINATE AGAINST HIM ON THE BASIS OF DISABILITY, AGE, NATIONAL ORIGIN, AND GENDER ? ... Plaintiff Ephraim Etokie claims that he was the victim of discrimination when he was not hired for an Equal Employment Opportunity Specialist position at the United States Department of Education. Plaintiff is a Nigerian-American man born in 1951 who has a hearing disability, deafness. In this case, he claims that Defendant discriminated against him on the basis of disability, age, national origin, and gender [...] In addition, he brings claims in tort for intentional infliction of emotional distress and for tortious interference with prospective advantage. ... COURT DECISION: (.pdf) (.html)
July 29, 2016 ... ACCA: United States v. Hines (Army) ... HAVE YOU EVER WONDERED ABOUT THE LEGITIMACY OF RAPE ALLEGATIONS ? ... Private First Class (PFC) JJ testified that she and Specialist (SPC) Garcia, a female friend, attended a “house party” in Killeen, Texas, just outside of Fort Hood. Appellant was also at the party. While PFC JJ was familiar with appellant, and had “friended” him on Facebook, she stated they had never “spoke[n] on a personal level, it was just an, I’ve seen you before [sic].” At the party, PFC JJ had at least three “triple shot” alcoholic drinks. She testified it was the first time she drank alcohol in any quantity. During party, PFC JJ did not dance, drink, or spend time with appellant. Well into the night, local police disrupted the party. Hearing of the police presence, SPC Garcia and PFC JJ were concerned. They were too drunk to drive home and PFC JJ was not old enough to drink alcohol legally. They decided to go to one of the bedrooms, where they got in bed and quickly both fell asleep. Specialist Garcia testified that her next memory was of appellant grabbing her leg and climbing into bed with the two women. She testified that she left the bedroom when she heard moaning coming from PFC JJ. Private First Class JJ testified that her next memory was waking up to appellant rubbing her buttocks. She recalled SPC Garcia then leaving the room. While she admitted that her memory was “poor,” she said her next memory was appellant’s penis penetrating her. At this point, she said she “froze up” but was able to murmur the word “stop.” Appellant did not stop. ... COURT DECISION: (.pdf) (.html)
July 29, 2016 ... MSPB: Tripathi v. National Aeronautics and Space Admin ... THE AGENCY REMOVED THE APPELLANT FROM THE GS-15 POSITION OF RESEARCH PHYSICIST BASED ON A CHARGE OF UNACCEPTABLE PERFORMANCE. ... Title 5 C.F.R. § 432.103(b) defines “critical element” as “a work assignment or responsibility of such importance that unacceptable performance on the element would result in a determination that an employee’s overall performance is unacceptable.” The agency removed the appellant from the GS-15 position of Research Physicist based on a charge of unacceptable performance. Specifically, the agency charged that the appellant’s performance in critical element 2 2 (CE-2) of his performance standards, Nuclear Fragmentation Code Comparison (NUCFRG), was unacceptable. The notice indicated that, during the performance improvement plan (PIP) period, the overall expectations were lowered since the work to be accomplished during the PIP did not include comparison of NUCFRG3 to other codes, as was required in the original performance standard. Nonetheless, the agency charged that the appellant failed to achieve minimally successful performance during the PIP period. The appellant appealed the agency’s action, alleging that his performance was not unacceptable and that the agency discriminated against him on the basis of his age. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 26, 2016 ... DcDc: Wang v. Washington Metropolitan Area : Transit Authority ... MS. WANG ALLEGES THAT WMATA DISCRIMINATED AGAINST HER BASED ON HER NATIONAL ORIGIN, RACE, AND SEX. ... Citing acts of insubordination and communication issues, Defendant Washington Metropolitan Area Transit Authority (WMATA) placed its former Financial Control Manager, Plaintiff Amy Wang, on a thirty-day corrective action plan. After Ms. Wang’s supervisor found Ms. Wang’s performance on the corrective action plan unacceptable, WMATA terminated Ms. Wang’s employment. This suit followed. Ms. Wang alleges that WMATA violated Title VII of the Civil Rights Act of 1964 by discriminating against her based on her national origin, race, and sex, and by retaliating against her in response to her opposition to those discriminatory acts. Ms. Wang also alleges that WMATA retaliated against her in response to her whistleblowing in relation to federal funds WMATA received under the American Recovery and Reinvestment Act of 2009 (ARRA). ... COURT DECISION: (.pdf) (.html)
July 25, 2016 ... MSPB: Perry v. MSPB ... WHICH COURT IS THE RIGHT COURT FOR THIS APPELLANT ? ... Anthony Perry, the appellant in this case, worked for the Census Bureau until 2012. In 2011, the Bureau sent Perry a memorandum notifying him that he would be terminated because of problems with his attendance. The Bureau alleged that Perry had refused to document his hours properly and had been absent from his desk for hours at a time. Perry responded, explaining that he had an informal agreement with his supervisor allowing him to take walking breaks during the workday due to his osteoarthritis. As a general matter, Board decisions are reviewed in the Federal Circuit. An exception to that default rule arises with so-called “mixed cases.” Mixed cases are ones in which an employee not only challenges an adverse action within the Board’s jurisdiction but also alleges discrimination in violation of certain federal statutes. If the Board in a mixed case rules against the employee on the merits of her discrimination claim, she must seek review in district court, not the Federal Circuit. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 22, 2016 ...
SORRY, NO GOOD CASES TODAY. ... WHEN THERE ARE NO CASES TO CITE, THERE ARE NONE TO CITE. ...
Search high and low, somedays there are no worthwhile cases on the relevant websites to cite. Search MSPB, find nothing worthwhile.   Search EEOC and FLRA, nothing, nothing, nothing.
July 22, 2016 ... MSPB: Rumsey v. Justice ... THIS IS AN ATTORNEY FEE CASE. ... The appellant is a GS-14 Compliance Monitoring Coordinator in the Office of Juvenile Justice and Delinquency Prevention (OJJDP). One of the functions of OJJDP is to award grants to organizations and then ensure that they use the grant money in compliance with the terms of the grant. The Board ordered the agency to take corrective action regarding the cancellation of the appellant’s telework agreement with the agency and her 2007 performance rating. The appellant subsequently filed a motion for attorney fees in which she sought fees for all three of the attorneys who had represented her: Beth Slavet, who represented the appellant before the Office of Special Counsel (OSC), as well as through the hearing in the IRA appeal; the DiMuroGinsberg law firm, which represented the appellant from June through July 2011, including at the hearing; and Robert Burka, who represented the appellant on petition for review to the Board and in this attorney fee (addendum) proceeding. In her addendum initial decision, the administrative judge granted attorney fees of $7,084, which was limited to the representation by the DiMuroGinsburg law firm, plus costs of $2,801. The administrative judge found that no award of attorney fees should be made for the legal services of either Ms. Slavet or Mr. Burka. The administrative judge further found that the lodestar amount (hourly rate multiplied by the number of reasonable hours) for the DiMuroGinsburg law firm, as well as awardable costs, must be reduced by 80% because of the appellant’s limited degree of success in her IRA appeal. In a timely filed petition for review, the appellant argues, among other things, that she is entitled to an award of attorney fees for the work performed by all three of her lawyers and that her attorney fees award should not have been reduced by 80%. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 15, 2016 ... MSPB: Mattison v. Veterans Affairs ... THE VA HOUSEKEEPING AID (LEADER) FILED THIS APPEAL CHALLENGING HIS INDEFINITE SUSPENSION. ... The appellant held the position of Housekeeping Aid (Leader) at a Veterans Administration Medical Center in Hampton, Virginia. During the first half of 2015, local police arrested him on charges of stalking and violation of a protective order. The alleged victim was another agency employee. In July 2015, the agency proposed the appellant’s indefinite suspension, citing his arrest and stating that there was reasonable cause to believe that he might be guilty of a crime for which a sentence of imprisonment might be imposed. After the appellant responded to the proposal, the deciding official upheld the indefinite suspension. Thereafter, the appellant filed the instant appeal, challenging his indefinite suspension. To sustain an indefinite suspension, the agency must show: (1) it imposed the suspension for an authorized reason; (2) the suspension has an ascertainable end, i.e., a determinable condition subsequent that will bring the suspension to a conclusion; (3) the suspension bears a nexus to the efficiency of the service; and (4) the penalty is reasonable. Sanchez v. Department of Energy, 117 M.S.P.R. 155, ¶ 9 (2011). One of the authorized circumstances for imposing an indefinite suspension is when the agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed, pending the outcome of the criminal proceeding or any subsequent agency action following the conclusion of the criminal process. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 14, 2016 ... MSPB: Calderon v. Justice ... IF YOU WERE THIS PRISON GUARD, WOULD YOU FILE THIS APPEAL, WITH MORE ATTENTION TO YOURSELF ? ... Prior to his removal, the appellant was a Correctional Officer with the agency at the Federal Detention Center in Miami, Florida (FDC Miami). In this capacity, he was responsible for the supervision, care, and correctional treatment of inmates, and the maintenance of institutional security. The agency removed the appellant, effective August 25, 2014, based on the following charges: (1) AWOL; (2) giving an inmate something of value in violation of agency standards of conduct; (3) off-duty misconduct; and (4) failure to follow policy (2 specifications). The AWOL charge stemmed from an incident where the appellant was absent from work from January 13, 2014, through February 3, 2014, due to his incarceration in the Broward County jail for a domestic violence charge. The charge of giving an inmate something of value was based on an incident in which the appellant gave an inmate, B.V., a bag of commissary items that B.V. did not pay for and were not hers. The off-duty misconduct charge was based on the appellant’s arrest for and plea of “no contest” to a charge of driving under the influence (DUI). The failure to follow policy charge was based on incidents in which the appellant: (1) allowed inmate B.V. to go through a bag of inmate mail; and (2) took a tray of food intended for inmates and ate it. The appellant filed a timely Board appeal challenging his removal. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 13, 2016 ... MSPB: Clark v. Postal Service ... THE APPELLANT PETITIONS FOR REVIEW OF AN INITIAL DECISION THAT DISMISSED HER RESTORATION APPEAL FOR LACK OF BOARD JURISDICTION. ... The appellant is a Distribution Clerk for the U.S. Postal Service. She filed the instant appeal, alleging that the agency improperly denied her restoration for a period of several months. Following the appellant’s initial pleading, the administrative judge issued two orders. The first was an acknowledgment order, providing general information, such as the procedures for engaging in discovery. The second provided the jurisdictional burdens of proof for restoration claims and directed the appellant to file argument and evidence to meet her jurisdictional burden. After the appellant failed to respond within the allotted time, the administrative judge dismissed the appeal for lack of jurisdiction, without holding the requested hearing. The appellant has filed a petition for review. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 12, 2016 ... 1st Cir: Burns v. Johnson (Homeland Security) ... SEX DISCRIMINATION & HARASSMENT: SHE LOST, FOUGHT ON -AND- LIVES ANOTHER DAY. ... This case arises from plaintiff Kathleen Burns's claims of sex discrimination and sex harassment. Burns worked for over ten years as a Transportation Security Administration ("TSA") employee in the Boston Field Office of the Federal Air Marshals Service ("FAMS"), where her primary role was scheduling international flights for the Federal Air Marshals ("FAMs"). She was considered an "excellent employee," and the scheduling system she in part designed was recognized as a "best practice" for other field offices to follow. In May 2012, David Johnson assumed the role of Supervisory Air Marshal in Charge ("SAC") at the Boston Field Office and within weeks transferred Burns's flight assignment duties to a group of male employees. Johnson also spoke to and interacted with Burns in a way that Burns asserts was hostile and unlike his treatment of male employees. This included Johnson holding a baseball bat in what Burns described as "a swinging position" in almost every interaction with her. In late June, Burns took early retirement. She then filed this suit against Johnson and the Department of Homeland Security ("DHS"),1 alleging, inter alia, violations of Title VII of the Civil Rights Act of 1964. The district court dismissed Johnson from the suit and later allowed summary judgment in favor of DHS. On appeal, Burns argues that the district court erred by requiring her to present direct evidence to establish sex discrimination under the mixed-motives theory. We agree with Burns. The district court also erred by requiring her to show that Johnson's conduct was severe and pervasive to establish sex harassment. Furthermore, we conclude that under the correct legal frameworks, there is sufficient circumstantial evidence from which a reasonable jury could find in Burns's favor on both claims. We reverse the entry of summary judgment and remand for further proceedings. ... COURT DECISION: (.pdf) (.html)
July 12, 2016 ... DcDc: Wright v. LYNCH (Justice) ... WHEN THE WHITE GUY SCREWED UP THE IT SYSTEM, THE BLACK WOMAN WAS SENT IN TO FIX ALL THE PROBLEMS AND GOT THE BLAME FOR THE WHITE GUY'S MESS. ... Plaintiff Barbara Wright, an African-American woman, has worked as an IT manager for over 20 years. Over the course of her career, she has successfully managed the updating of and transition to new technologies for IT systems in both the federal government and the private sector. In this civil action under Title VII of the Civil Rights Act of 1964 (“Title VII”), Plaintiff Barbara Wright brings claims against the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) for race- and sex-based hostile work environment. Defendant has moved for judgment on the pleadings and summary judgment (the “Motion”). ... COURT DECISION: (.pdf) (.html)
July 11, 2016 ... MSPB: Mellick v. Interior ... DID HE REALLY VIOLATE HIS LAST CHANCE AGREEMENT (LCA) -or- WAS HE FRAMED ? ... The agency removed the appellant from the position of Electrician based on his violation of a last-chance settlement agreement (LCA) provision that, during the 2-year term of the agreement, he would comply with all applicable rules, management directives/instructions, regulations, policies, and laws required of him by the agency, and that any misconduct that would warrant a suspension or greater discipline would be a breach. Specifically, the agency charged the appellant with four acts of misconduct that violated the agreement: (1) ranting at a coworker during a meeting using obscene language; (2) failing to follow a supervisory instruction to return to the meeting after he left; (3) placing the only working elevator on hold, endangering others who might need the elevator in an emergency; and (4) putting his arms around a coworker and licking his ear. The appellant appealed the agency’s action. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 7, 2016 ... MSPB: Felix v. Wisconsin ... WAS SHE ACTUALLY FIRED BECAUSE OF HER DISABILITIES OR BECAUSE SHE POSED A SAFETY RISK ? ... Eileen Felix sued her former employer, the Wisconsin Department of Transportation, under the Rehabilitation Act of 1973 [...] contending that she was discharged solely because of an anxiety disorder and related disabilities. The district court entered summary judgment against Felix, reasoning that the undisputed facts demonstrated that she was discharged not solely because of her disabilities but rather based on workplace behavior that indicated to her employer that she posed a safety risk to herself and others. At the time of her discharge in 2013, she held the position of DMV Field Agent Examiner-Advanced. Her duties included administering road tests to new drivers applying for licenses (approximately 20 per week) and performing a variety of duties behind the counter at the DMV office, including processing paperwork for vehicle and driver’s licenses and other DMV documentation and collecting the fees associated with these transactions. She was regarded as a good employee overall: “she was punctual, reliable, friendly with customers, and patient with new drivers.” ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 6, 2016 ... MSPB: LeMaster v. Veterans Affairs ... DID HIS PROBATION AGREEMENT, AFTER HIS RELEASE FROM PRISON FOR BANK FRAUD, PREVENT HIM FROM DOING HIS JOB ? ... Effective November 16, 2014, the appellant received an appointment to the competitive service position of GS-05 Program Support Clerk, subject to a 1-year probationary period. While the appellant was still serving his probationary period, the agency notified him that he would be terminated from his position, effective February 13, 2015, due to “conduct issues” relating to the terms of a June 22, 2007 court-ordered probation agreement that was entered following his release from prison for bank fraud. The agency’s termination notice cited the terms of the appellant’s probation agreement, which, among other things, required him to inform any employer or prospective employer of his current conviction and supervision status, prohibited him from possessing or using a computer with access to any online computer service without the prior written approval of the court, and prohibited him from possessing or using any public or private data encryption technique or program. The termination notice also stated that, during his employment, the appellant failed to disclose to the agency that his computer access and use was in violation of his probation agreement and that his inability to use the agency’s computer system prevented him from performing his job duties. The appellant filed a Board appeal challenging his termination and requesting a hearing. ... Merit Systems Protection Board Decision: (.pdf) (.html)
July 6, 2016 ... MSPB: Beg v. HHS ... THE PROPOSING AND DECISION OFFICIAL COLLUDED TO REMOVE ME BEFORE I FINISHED MY PIP. ... The appellant appealed the agency’s decision to remove him effective April 13, 2012, from the position of Chemist, GS-1320-13, based on unacceptable performance. Prior to his removal, the appellant worked as a Chemist in the agency’s Office of the Director, Center for Biological Evaluation and Research (CBER), Food & Drug Administration (FDA). The appellant’s duties included performing DNA sequencing, oligonucleotide services, DNA synthesis; gene quantitation; amino acid sequence analysis, amino acid analysis, RNA synthesis; providing expert advice and assistance pertaining to procedures and methods; and assisting the Facility for Biotechnology Resources Director in performing a variety of other work. On July 29, 2011, Dr. N.N. placed the appellant on a 60-day performance improvement plan (PIP) due to his unacceptable performance under three (3) critical elements. On January 11, 2012, Dr. N.N. notified the appellant that he had failed to improve his performance to at least minimally successful under all three (30 critical elements and proposed his removal for unacceptable performance. The agency removed the appellant, effective April 13, 2012, based on unacceptable performance. ... Merit Systems Protection Board Decision: (.pdf) (.html)
June 30, 2016 ... DcDc: Perry-Anderson v. Howard University Hospital ... AFTER MY STROKE, HOWARD REFUSED TO ACCOMODATE MY DISABILITY. ... The plaintiff, Donna Perry-Anderson, brings this action against her former employer, Howard University Hospital (“HUH”), pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., asserting two counts of failure to accommodate her disability. The plaintiff alleges that, after suffering a stress-induced stroke, she requested to be reassigned to a position in a less stressful environment or to return to her former position with a modified work schedule in order to accommodate her disability, but that her requests were denied by her employer. ... COURT DECISION: (.pdf) (.html)
June 29, 2016 ... 5th Cir: Morris v. Town of Independence ... THE MAYOR GAVE THE BLACK FEMALE A JOB OUT OF THE “KINDNESS OF [HIS] HEART. NOW SHE IS SUING HIM. ... Patricia Morris, an African-American woman, was a part-time employee of the Town of Independence (the Town). According to both parties, Mayor Ragusa hired Morris after a mutual acquaintance informed Mayor Ragusa that Morris needed a job. Mayor Ragusa later testified that he extended employment to Morris out of the “kindness of [his] heart.” Morris’s exact role of employment with the town was seemingly undefined. Morris testified that she was ultimately asked to collect water and sewer bills. Mayor Ragusa similarly testified that Morris’s job was to “be at the window and collect the water bills, sewer, tickets and things like that.” Morris characterizes this position as that of a “water clerk.” It is undisputed that throughout her employment with the Town, Morris worked in a part-time capacity. Mayor Ragusa discharged Morris seven months after she was hired. According to Morris, Mayor Ragusa stated that the discharge was due to budget cuts. Morris filed suit against the Town and Mayor Ragusa (Defendants). Morris alleged, among other things, that she was terminated on the basis of her race. ... COURT DECISION: (.pdf) (.html)
June 28, 2016 ... Supreme Court of the United States: Whole Woman's Health v. Hellerstedt (Texas) ... Supreme Court Strikes Down Abortion Restrictions In Texas. ... Whole Woman’s Health v. Hellerstedt (argued March 2, 2016). This is a challenge to the constitutionality of two provisions of a Texas law regulating abortion in that state. One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers. Texas contends that these new laws are constitutional because they were intended to protect women’s health, while the challengers argue that the law was actually intended to close most clinics and therefore limit women’s access to abortions. The justices ruled 5-3 that a Texas law setting requirements for clinics that provide abortions — a law that was expected to cause many clinics to close — was unconstitutional. ... COURT DECISION: (.pdf) (.html) NPR LAW BLOG DISCUSSION
June 27, 2016 ... DcDc: Egei v. Napolitano ... THIS TITLE VII RETALIATION ACTION TURNS ON WHETHER AN EMPLOYER MAY LAWFULLY FIRE AN EMPLOYEE FOR MAKING FALSE OR MALICIOUS ACCUSATIONS DURING THE COURSE OF EQUAL EMPLOYMENT OPPORTUNITY (“EEO”) PROCEEDINGS. ... The plaintiff, Ominoba Egei, alleged in 2009 that she had been sexually harassed by a supervisor while working at the Federal Emergency Management Agency (“FEMA”). When Egei brought an administrative complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., she submitted written and oral testimony under oath making the same allegations. The administrative law judge found that Egei’s allegations were not credible, and rejected her claim. A year and a half later, FEMA terminated Egei’s employment on the ground that she had lied in the course of the EEO proceeding that she had initiated in 2009. Egei then brought a second EEO complaint, and now this action, alleging that her termination was retaliatory. ... COURT DECISION: (.pdf) (.html)
June 24, 2016 ... DcDc: Geter v. GPO ... WEIGHING OVER 300 POUNDS, GPO FAILED TO ACCOMMODATE MY NUMEROUS ABSENCES AND ON THE JOB INJURIES. ... Plaintiff Henry Geter has worked for the Government Publishing Office (GPO) on and off since 2002. Geter started out as a helper to the motor vehicle operator but eventually was promoted to motor vehicle operator himself. As a motor vehicle operator, Geter was required to have a valid commercial driver’s license and the ability to “load and unload by hand cartons weighing up to 50 pounds.” On March 25, 2009, Geter injured his back while on the job and eventually stopped working. Plaintiff Henry Geter alleges in a one-count complaint that the defendant, the GPO, violated the Americans with Disabilities Act (“ADA”) [ ... ]. Specifically, Geter, who purports to weigh nearly 300 pounds and suffers from a back injury, claims that the GPO failed to accommodate his disability, intentionally discriminated against him after he engaged in statutorily protected activity, and harassed him. Geter is also suing the GPO for discrimination based on race and age and for intentional infliction of mental harm. ... COURT DECISION: (.pdf) (.html)
June 23, 2016 ... Supreme Court: Fisher v. Univ Tex ... SUPREME COURT UPHOLDS UNIVERSITY OF TEXAS' AFFIRMATIVE ACTION PROGRAM. ... Argued December 9, 2015—Decided June 23, 2016. The University of Texas at Austin (University) uses an undergraduate admissions system containing two components. First, as required by the State’s Top Ten Percent Law, it offers admission to any students who graduate from a Texas high school in the top 10% of their class. It then fills the remainder of its incoming freshman class, some 25%, by combining an applicant’s “Academic Index”—the student’s SAT score and high school academic performance—with the applicant’s “Personal Achievement Index,” a holistic review containing numerous factors, including race. Petitioner Abigail Fisher, who was not in the top 10% of her high school class, was denied admission to the University’s 2008 freshman class. She filed suit, alleging that the University’s consideration of race as part of its holistic-review process disadvantaged her and other Caucasian applicants, in violation of the Equal Protection Clause. The District Court entered summary judgment in the University’s favor, and the Fifth Circuit affirmed. ... COURT DECISION: (.pdf) (.html) SEE NPR LAW BLOG DISCUSSION OF THIS DECISION: NPR Law Blog
June 23, 2016 ... FedCir: De Santis v. MSPB ... DOES THIS FAA EMPLOYEE HAVE APPEAL RIGHTS TO MSPB ? ... The Federal Aviation Administration hired Frank De Santis in 2013. The FAA fired him less than one month later, while he was still in his probationary period. As now relevant, he appealed to the Merit Systems Protection Board under regulations, 5 C.F.R. §§ 210.101, 315.805, and 315.806, that have at all times relevant to this case applied only to employees in the competitive service. The Board dismissed the appeal for lack of jurisdiction because Mr. De Santis was in the excepted service, not in the competitive service. Whether the Board has jurisdiction to hear Mr. De Santis’s appeal turns on the meaning of 49 U.S.C. § 40122(g)(3), which authorizes FAA employees to appeal certain actions to the Board. ... COURT DECISION: (.pdf) (.html)
June 20, 2016 ... MSPB: Graves v. Veterans Affairs ... WHISTLEBLOWER: VA TERMINATED ME BECAUSE I MADE A PROTECTED DISCLOSURE AND ENGAGED IN PROTECTED ACTIVITY ... The agency terminated the appellant’s appointment to the position of GS-0404-05 Biological Science Lab Technician based on a lack of work available in the agency’s Research Service. The appellant filed this IRA appeal disputing the agency’s rationale for his termination and asserting that the agency committed a prohibited personnel practice because it terminated him in retaliation for protected activity, i.e., his truthful testimony before an Administrative Investigation Board (AIB) in support of a lead researcher, C.K., who was being investigated by the agency for scientific research misconduct. ... Merit Systems Protection Board Decision: (.pdf) (.html)
June 17, 2016 ... DcDc:
Grant v. Treasury ...
YES, I'M SUING BOTH, THE US TREASURY SECRETARY AND THE MSPB CHAIRMAN. ...
Aaron Grant worked as a Special Agent in the Criminal Investigation Unit of the Internal Revenue Service (IRS) until his removal for alleged misconduct on January 30, 2013.
According to Treasury Mr. Grant was removed from his job because, ... Mr. Grant: (1) grabbed the ponytail of a co-worker, Special Agent Tara Reed, pushed her against a wall, and kissed her against her will; (2) wore a firearm while consuming alcohol; (3) drove an official vehicle after consuming alcohol; (4) displayed nude photographs of women on his cellphone to a government attorney; and (5) failed to report a collision while driving an official vehicle. On October 8, 2010, Treasury proposed Mr. Grant’s removal in light of these allegations. Mr. Grant responded in writing to the proposed removal, but Treasury sustained the removal effective December 10, 2010.
Mr. Grant appealed his removal and the agency’s final decision to the Merit Systems Protection Board (MSPB). An administrative judge upheld Mr. Grant’s removal and MSPB, in turn, affirmed the administrative judge’s decision. Thereafter, Mr. Grant, proceeding pro se, brought this action complaining generally about his removal, discrimination, and retaliation, as well as seeking judicial review of procedural improprieties during the administrative process. He sues Jacob J. Lew in his official capacity as Secretary of the Department of Treasury, MSPB, and the MSPB Chairman, Susan Tsui Grundmann. ... COURT DECISION: (.pdf) (.html)
June 16, 2016 ... Supreme Court of New Jersey: Rodriguez v. Furniture ... IN THIS APPEAL, THE COURT ADDRESSES WHETHER THE LAW AGAINST DISCRIMINATION (LAD), N.J.S.A. 10: 5-1 to 5-49, WHICH WAS ESTABLISHED TO FULFILL A PUBLIC - INTEREST PURPOSE, CAN BE CONTRAVENED (BROKEN, BREACHED, VIOLATED, INFRINGED) BY PRIVATE AGREEMENT. ... In August 2007, plaintiff Sergio Rodriguez, applied for a job with defendant Raymours Furniture Company, Inc., t/a Raymour & Flanigan. The last page of the job application contained a section which applicants were instructed to read carefully before signing. A portion of that section read, in bolded capital letters, “I agree that any claim or lawsuit relating to my service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.” Plaintiff signed the application and returned it. In mid-September 2007, plaintiff was hired as a Helper, an at-will position. In November 2008, he was transferred to another location and promoted to Driver. Early in April 2010, plaintiff injured his knee in a work- related accident, requiring surgery and physical therapy. On October 1, 2010, two days after he returned to full-duty work, plaintiff was terminated. Although informed that his termination was due to a company-wide reduction in force, plaintiff asserted that others with less seniority or distinguishing features were retained. On July 5, 2011, nearly seven months after his termination, plaintiff filed a complaint against defendant (Raymours Furniture) in Superior Court, alleging, in part, illegal employment discrimination based on actual or perceived disability, in violation of the LAD. Defendant moved for summary judgment based on the waiver provision, asserting that plaintiff’s complaint was filed beyond the agreed-upon six-month limitations period. Plaintiff contended, in part, that the provision was unconscionable and unenforceable. The trial court granted summary judgment to defendant, finding that the provision was clear and unambiguous, and that the contractual shortening of the limitations period was neither unreasonable nor against public policy. Plaintiff appealed, and the Appellate Division affirmed. [ Here, the plaintiff (Sergio Rodriguez) appeals the Appellate Division decision upholding the employment agreemnet over the New Jersy LAW AGAINST DISCRIMINATION (LAD). ... COURT DECISION: (.pdf) (.html)
June 15, 2016 ... D.C. Cir: Morris v. McCarthy ... SHE ALLEGES THAT BOTH HER SUSPENSION AND TERMINATION VIOLATED TITLE VII. ... Morris, a white woman, worked as a manager in EPA’s Office of Civil Rights (OCR) for ten years, most recently as Assistant Director for Affirmative Employment. Her supervisor was Director Karen Higginbotham, who in turn reported to Ray Spears, EPA’s Deputy Chief of Staff. Both Higginbotham and Spears are African-American. ... ... Morris received several awards for leadership and service during her time at EPA, but her career path at the agency hit a snag in 2007 when she disagreed with EPA employee Nancy Tommelleo over the naming of an agency advisory group that was asked to look into the concerns of gay and lesbian employees. ... ... Morris filed suit in district court on April 8, 2011, alleging that both her suspension and termination violated Title VII. As relevant here, she claimed that the agency took these actions against her because of her race and because she complained of discrimination. ... COURT DECISION: (.pdf) (.html)
June 14, 2016 ... 7th Cir: Wheatley v. Factory Card ... FMLA: DID FACTORY CARD VIOLATE THE ADA WHEN IT TERMINATED HER EMPLOYMENT ? ... In March 2009, Wheatley injured her foot in an incident at her home. She was unable to work for several days, but returned to work on March 27 with a note from her primary care physician, Dr. James A. Bogan, stating that she could work “without restrictions.” At the end of her shift that day, however, Wheatley could not walk and she returned to Dr. Bogan. He provided a note indicating that Wheatley should not work for one week, and recommended that she see Dr. Karolyn Senica, an orthopedist. Wheatley was off work for the ensuing months because of the injury. In April 2009, Factory Card sent her a letter acknowledging that she had requested leave under the Family and Medical Leave Act (FMLA) beginning April 8, and stating that she had 9.3 of her 12 weeks of FMLA leave remaining. In that letter Factory Card also asked Wheatley to have her physician fill out a “Certification of Healthcare Provider for Employee’s Serious Health Condition” form and return it within 15 days. Finally, Factory Card provided Wheatley with the forms necessary should she choose to seek disability benefits through Aetna Insurance. ... COURT DECISION: (.pdf) (.html)
JUNE 13, 2016 ... D.C. Cir: Wallaesa v. FAA ... FALLING IN LOVE: HOW WE MET WAS REALLY SPECIAL. ... On November 6, 2009, Wallaesa, a passenger on Southwest Airlines flight 3049 from Baltimore to Las Vegas, struck up a conversation in the boarding line with a female passenger, Jaime T. Once onboard, Jaime sat in the third row aisle seat on the captain’s side. Wallaesa joined her, taking the window seat. After another passenger took the middle seat, Wallaesa switched seats with him. Before lifting off, the crew delivered the by-now familiar safety briefing, instructing passengers to keep their seatbelts fastened while the fasten seatbelt sign was illuminated and to follow crewmember instructions. What began as innocuous “plane chatter” between Wallaesa and Jaime fast became an annoyance. Wallaesa asked questions, and Jaime “parried with polite attempts to end the conversation.” Trying to tune him out, Jaime put on headphones and opened a book. Wallaesa did not take the hint. He tapped her on the shoulder and asked whether she would mind if he put his arm around her. She did mind, telling him “that is weird and uncomfortable,” and that she had a boyfriend. Not long after, Wallaesa again tapped Jaime’s shoulder. He wanted to ask a “corny” question. She told him not to ask, reminding him that she had a boyfriend. Wallaesa asked anyway, wanting to know whether he could “hold something beautiful today.” Jaime told him he crossed the line. She got up and exchanged seats with a passenger across the aisle in the middle seat of row two. She also flagged down a flight attendant, Wendy Moorman, and relayed what happened. Moorman brought Wallaesa to the back of the plane. She explained that his behavior made Jaime uncomfortable. Wallaesa expressed surprise. He told Moorman that he loved Jaime, “and that she was the one for him.” ... COURT DECISION: (.pdf) (.html)
JUNE 13, 2016 ... Fed Cir: Rainey v. MSPB ... BEFORE YOU DISOBEY AN ORDER, MAKE SURE IT VIOLATES AN ACTUAL LAW (A STATUTE) ... Dr. Rainey now appeals to this court, raising the same legal issue regarding the scope of section 2302(b)(9)(D). The right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(9)(D), protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law.” Dr. Rainey argues that Congress could not have intended to limit section 2302(b)(9)(D) to situations in which the employee refuses to obey an order that would violate a statute. Section 2302(b)(8)(A) of the Whistleblower Protection Act, which was at issue in MacLean, provides that a federal employee may disclose information that the employee reasonably believes evidences a violation of any law, rule, or regulation or gross mismanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety “if such disclosure is not specifically prohibited by law, and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” 5 U.S.C. § 2302(b)(8)(A). The question before the Court in MacLean was whether a disclosure prohibited by an agency regulation was “prohibited by law.” COURT DECISION: (.pdf) (.html)
June 10, 2016 ... 8th Cir: Jones v. St. Louis ... DISCRIMINATED AGAINST HIM BASED ON HIS RACE AND HAD RETALIATED AGAINST HIM FOR FILING CHARGES OF UNLAWFUL DISCRIMINATION ? ... Keith Jones is an African-American man who has diabetes. He has worked as an electrician for the City’s Facilities Management Division since March 2000. Jones’s position requires that he periodically be on call and respond to emergencies that occur after normal operating hours. Jones filed a charge of discrimination with the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission (EEOC). He alleged that the City “charged [him] with stealing time,” that it threatened to terminate him, and that it took these actions based on Jones’s race. Keith Jones filed suit against his employer, the City of St. Louis (City), alleging that it had discriminated against him based on his race and had retaliated against him for filing charges of unlawful discrimination [...]. We affirm the district court’s1 grant of summary judgment in favor of the City. ... COURT DECISION: (.pdf) (.html)
June 8, 2016 ... MSPB: Corthell v. Homeland Security ... HE ALLEGED THAT THE AGENCY RETALIATED AGAINST HIM FOR DISCLOSING FRAUD, WASTE, AND ABUSE. ... On November 25, 2014, the appellant retired from his position as a Supervisory Criminal Investigator with the agency’s Office of Immigration and Customs Enforcement (ICE). At some point thereafter, he filed a complaint with the Office of Special Counsel (OSC), in which he alleged that the agency retaliated against him for disclosing fraud, waste, and abuse. According to the notice of appeal rights issued by OSC, the appellant identified the following disclosures: that an “employee was committing time fraud because she disappeared from the office for a couple [of] hours after lunch each day; that another employee was not producing the level of work [the appellant] expected because she was working from a different location; and that [the appellant] had concerns about a trainee and proposed that he be moved to a different office.” He further alleged that management retaliated against him based on its perception that he reported other matters to the agency’s Office of Inspector General (OIG) concerning other employees under investigation. ... Merit Systems Protection Board Decision: (.pdf) (.html)
June 7, 2016 ... DcDc: Williams-Jefferies v. AARP ... WAS SHE DENIED THE POSITION BECAUSE OF HER RACE ? ... Plaintiff Darlene Williams-Jefferies worked at AARP, which was formerly known as the American Association of Retired Persons, from 1980 to 2008. For much of that time, Williams-Jefferies, who is an African-American woman, worked as an “administrative associate.” In October 2006, she applied for a promotion to the position of Executive Secretary to the Director of the Office of Board Support. In March 2007, her application was denied and the position was instead offered to a less experienced white male “contract employee” whom she had trained. In June 2007, Williams-Jefferies filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging that she was denied the position because of her race. In the ensuing investigation, AARP defended its decision not to select Williams-Jefferies for the position on the ground that the white employee was better qualified. . ... COURT DECISION: (.pdf) (.html)
June 3, 2016 ... VAOIG: Administrative Investigation - Alleged Preferential Treatment and Potential Misuse of Travel Funds, Veterans Benefits Administration, VA Central Office, Washington, DC She was promoted to a supervisory GS-15 position then voluntarily downgraded to a non-supervisory GS-14 virtual position. Summary Report
June 2, 2016 ... (8th Cir: Henry v. Burl ... THIS IS A STORY ABOUT A PRISON GUARD ACCUSED OF BEING ON THE TAKE. ... Jerry Henry, a former employee of the Arkansas Department of Corrections (“ADC”), brought this action against Warden Danny Burl, Deputy Warden Dexter Payne, and Major Jeremy Andrews in their individual capacities. Henry was employed by the ADC as a correctional officer. In March 2011, Major Andrews began an investigation involving the introduction of contraband into the ADC. During this investigation, a confidential informant told Andrews that ADC inmate David Morgan was receiving tobacco from a staff member and selling the tobacco throughout the unit. The inmate also claimed that Morgan was receiving the tobacco from Henry and that he had witnessed Morgan give Henry $500 on one occasion. ... COURT DECISION: (.pdf) (.html)