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SNILLUS-DIGITAL MIX

Divine SLK, Lil LaLa, R.E.I.G.N, ASON

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PLEASE, DRIVE SAFELY OVER THE HOLIDAY WEEKEND
-OR-
DRIVE CARELESSLY IN A WAY THAT ONLY ENDANGERS YOUR FAMILY.




   May 22, 2015  ...  4thCir:  Foster v. UM-ES  ...   SHORTLY AFTER HER SEXUAL HARASSMENT COMPLAINT, SHE WAS RECOMMENDED FOR TERMINATION.  ...   Plaintiff-Appellant Iris Foster was hired by Defendant-Appellee the University of Maryland-Eastern Shore (the University) as a campus police officer.   ...   According to Foster’s uncontradicted evidence, Jones began sexually harassing Foster before she even started work: He spied on her while she was being fitted for her new uniform in a state of partial undress. The harassment continued during Foster’s first month on the job. Among other things, Jones stared at her, made lewd or suggestive comments about her, kissed and pinched her on the cheek, and pressed his groin against her buttocks while laying his arm across her breasts.   ...   This appeal concerns the effect of the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), on what Title VII retaliation plaintiffs must show to survive a motion for summary judgment.   ...   COURT DECISION:   (.pdf)   (.html)


   May 21, 2015  ...  CAI:  GIBSON v.  Buckley  ...   SHE FEELS THAT SHE IS A DISCRIMINATION VICTIM. .... HER BOSS FEELS LIKE HE SHOULD HAVE FIRED HER MUCH SOONER.  ...   Appellant Pamela Gibson filed suit against her former employer, dentist Jay Buckley. As relevant here, Gibson alleged Dr. Buckley unlawfully retaliated against her in response to her filing a complaint with the Iowa Dental Board (hereinafter “Board”). The matter was tried before a jury, and the jury returned a verdict in favor of Dr. Buckley. Gibson challenges several evidentiary rulings made during the course of trial.  ...   COURT DECISION:   (.pdf)   (.html)


   May 20, 2015  ...  MSPB:  Tillman v. VA  ...   SHE DENIES THAT SHE COMMITTED THE CHARGED MISCONDUCT AND ALLEGES THAT VA’S ACTION WAS DISCRIMINATION ON THE BASES OF AGE, RELIGION, RACE, AND RETALIATION.   ...   Department of Veterans Affairs removed the appellant from the GS-6 position of Program Support Assistant based on the following charges:      (1) willful use of a government owned vehicle (GOV) for other than official purposes; (2) unauthorized use of a GOV; (3) disrespectful conduct (three specifications); (4) inappropriate conduct; (5) failure to follow instructions (four specifications); (6) lack of candor (two specifications); and (7) AWOL (eight specifications).      The appellant appealed the agency’s action, denying that she committed the charged misconduct and alleging that the agency’s action was discrimination on the bases of age, religion, race, and retaliation for her prior equal employment opportunity (EEO) activities.  ...   MSPB DECISION:   (.pdf)   (.html)


   May 14, 2015  ...  MSPB:  Archuleta (OPM) v. Hopper  ...   OPM APPEALS MSPB'S DECISION THAT OPM DIRECTED SUITABILITY TERMINATIONS ARE SIMPLE ADVERSE ACTIONS.   ...   Katherine Archuleta, Director of the Office of Person- nel Management (“OPM”), petitions for review of a final order of the Merit Systems Protection Board (“the Board”) holding that an individual who meets the definition of an “employee” under 5 U.S.C. § 7511(a)(1) has a statutory right to appeal his OPM-directed suitability removal as an adverse action under 5 U.S.C. chapter 75, subchapter II.  ...   MSPB DECISION:   (.pdf)   (.html)


   May 13, 2015  ...  CAAF:  United States (Air Force) v. Torres  ...   I WAS SLEEP WALKING WHEN I TRIED TO CHOKE MY WIFE TO DEATH.  ...   The evidence adduced at trial showed that on May 12, 2008, Appellant and his wife hosted a party at their on-base residence. During the course of the party, Appellant consumed approximately eight to ten shots of alcohol. At approximately 2:00 a.m. on May 13, 2008, Appellant and his wife went to bed while some of their guests went to sleep elsewhere in the home. Upon rising several hours later, Appellant’s wife discovered Appellant partially clothed and curled up on the floor, apparently asleep. She shook Appellant and informed him that she was driving some of their guests home. Appellant did not respond.      Appellant’s wife returned to their home a short time later. She again shook Appellant trying to rouse him, but again he did not respond. When she tried to lift Appellant to an upright position, Appellant grabbed his wife, threw her on the bed, squeezed her head, punched her, choked her, and hit her head against the bed’s headboard.      Appellant’s wife finally managed to escape by hitting Appellant in the head with a bedside telephone base and running out of the bedroom. Appellant walked into the living room, and asked a remaining guest what happened to his wife.      At trial, the defense sought to show that Appellant assaulted his wife while in an altered state of consciousness following an epileptic seizure, and that Appellant’s conduct was therefore involuntary. The defense asked the military judge to instruct the panel accordingly.      At a general court-martial composed of officer members, Appellant was convicted contrary to his plea of one specification of aggravated assault. Specifically, Appellant was found guilty of “commit[ting] an assault . . . [on his wife] by choking her throat with his hands with a force likely to produce death or grievous bodily harm.”.  ...   COURT DECISION:   (.pdf)   (.html)


   May 8, 2015  ...  MSPB:  Thibeault v. MSPB  ...   FIRST, POSTAL SERVICE CONSTRUCTIVELY SUSPENDED ME. THEN THEY CONSTRUCTIVELY REMOVED ME TOO !   ...   Thibeault was a mail handler for the United States Postal Service (“USPS”), who had operated mail pro- cessing machines before the USPS replaced these ma- chines in late 2012.      Because these new machines were to be operated by mail- processing clerks, and not mail handlers, USPS informed Thibeault that his services as a mail handler were no longer required, and invited him to bid for a new assign- ment.      When Thibeault did not bid on a new assignment, USPS assigned him to a new shift—from 8:00 p.m. to 4:30 a.m.      Thibeault objected to this assignment, arguing that his psoriatic arthritis would be exacerbated by the cold weather he would be exposed to while travel- ling to and from work. He, thus, requested a reasonable accommodation in light of this disability, asking to be returned to his original shift—4:00 p.m. to 12:30 a.m. When USPS did not grant this request, Thibeault used his sick leave beginning in January 2013 in order to avoid working the overnight shift. When his sick leave was exhausted in June 2013, he retired from USPS.      On July 5, 2013, Thibeault filed an action with the Board, contending that USPS had constructively suspended him from February to June 2013, and constructively removed him from his position when he was forced to retire in June 2013.   ...   MSPB DECISION:   (.pdf)   (.html)


   May 6, 2015  ...  Va. Ct. App:  Giraldi v. Giraldi  ...   I DIVORCED HER FOR ADULTERY, BUT THE COURT ERRED BY GIVING HER SPOUSAL SUPPORT.  ...   On August 11, 2014, the circuit court entered a final decree of divorce between David Kenneth Giraldi (husband) and Eva Maria Giraldi (wife), in which it awarded husband a divorce a vinculo matrimonii from wife on the ground of adultery.      On appeal, husband raises two assignments of error.      First, husband argues that the circuit court erred by awarding a reservation of spousal support to wife because there was not clear and convincing evidence – based on the respective degrees of fault during the marriage and the relative economic circumstances of the parties – to support a finding that denial of a reservation of spousal support to wife would constitute a manifest injustice.      Second, husband contends that the circuit court erred when it allowed wife’s counsel to elicit evidence of condonation and when it indicated that it would consider such evidence when deciding whether to grant wife a reservation of the right to spousal support.  ...   COURT DECISION:   (.pdf)   (.html)


   May 5, 2015  ...  CSC:  Williams v. CVIFD  ...   SHOULD THE LOSING DISCRIMINATION SUIT PLAINTIFF HAVE BEEN ORDERED TO PAY THE DEFENDANT'S COURT COSTS ?  ...   Plaintiff Loring Winn Williams sued defendant Chino Valley Independent Fire District (the Fire District) for employment discrimination in violation of the California Fair Employment and Housing Act.      The trial court granted summary judgment for the Fire District. In a separate order, the trial court awarded the Fire District its court costs.      Williams appealed from the latter order, contending that in the absence of a finding his action was frivolous, unreasonable or groundless, defendant should not have been awarded its costs.   ...   COURT DECISION:   (.pdf)   (.html)


   May 5, 2015  ...  MSPB:  Jonson v. FDIC  ...   HE WAS FIRED FOR A PATTERN OR PRACTICE OF DEFALCATION. ???   ...   FDIC removed the appellant from his position as Case Manager for conduct prohibited by its regulations at 12 C.F.R. Part 336, Subpart B, concerning minimum standards of fitness for employment (the minimum fitness regulations).      The basis of the removal was the appellant’s alleged failure to satisfy eight separate debts to FDIC-insured institutions.      The agency found that this conduct violated the prohibition in the minimum fitness regulations against “a pattern or practice of defalcation.”      A pattern or practice of defalcation is defined in the regulations, in pertinent part, as “[a] history of financial irresponsibility with regard to debts owed to insured depository institutions which are in default in excess of $50,000 in the aggregate.”      The regulations provide that employees who are not in compliance “shall be terminated.”   ...   MSPB DECISION:   (.pdf)   (.html)


   May 4, 2015  ...  MSPB:  Spurlock v. AirForce  ...   A REVERSAL OF FORTUNE   ...   The appellant holds the position of Readiness Specialist.      On October 17, 2012, the agency notified the appellant that his access to classified information had been suspended based upon the initiation of an unfavorable administrative security file stemming from his failure to comply with requisite drug testing.      Subsequently, the agency proposed and then effectuated his indefinite suspension for failure to maintain a security clearance.      The appellant appealed his indefinite suspension to the Board.  ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 29, 2015  ...  SCP:  Com v. Smith  ...   THIS TEACHER APPEALS HER 14 TO 30 YEAR IMPRISONMENT SENTENCE FOR SEX WITH STUDENT.  ...   In 2008, J.J., a 15-year-old sophomore at a public school in Lancaster, was a student in Appellant’s English class. J.J. confided in Appellant, first spending a significant amount of time with her at school during and after normal school hours. Later, J.J. began to see Appellant outside of school as well.      Eventually, their relationship took on a sexual dimension. J.J. testified that he engaged in three sexual encounters with Appellant. During the first occasion, in November of 2008, the two engaged in oral and vaginal intercourse.      Later that same month, the two showered together, engaged in oral and vaginal intercourse and, at one point, Appellant used a vibrating sex toy on J.J. On the third occasion, during Christmas break the following month, Appellant and J.J. showered together and then engaged in oral and vaginal intercourse.      The sexual contact between the two ended in January of 2009 as a result of an investigation by the school district into their relationship.      However, Appellant and J.J. continued to communicate by phone. J.J. testified that he had fallen in love with Appellant and was devastated when their physical relationship ended.    On May 20, 2014, Appellant was sentenced to an aggregate term of 14 to 30 years’ imprisonment.    Appellant, Christy L. Smith, appeals from the judgment of sentence.   ...   COURT DECISION:   (.pdf)   (.html)


   Apr 28, 2015  ...  Permerica Opinion:  ...   Stephanie Rawlings Blake's First Big Mistake: Referred To Looters As THUGS. The Term has Negative Racial Connotations. She should walk back her inappropriate comment. Unfortunately she's probably too stubborn to see her own wrongs. Stephanie Rawlings Blake please walk back your comment.


   Apr 28, 2015  ...  C.A.A.F.:  US (Army) v. Adams  ...   GOTTA READ THIS CASE  ...  HOW CAN I BE GUILTY OF A MADE-UP CONFESED CRIME ?  ...   SPC DT implicated himself and Adams in a robbery of cocaine from a local drug dealer and also alleged that Adams had a weapon and cocaine in his house. Based on this information, Special Agents (SA) McKinney and Villegas of the Army’s Criminal Investigation Division (CID) obtained a search authorization for Adams’ house. While searching the house, the agents found a Smith & Wesson “Sigma” .40 caliber handgun. No cocaine was found.      Specialist (SPC) Matthew R. Adams Jr. was charged with numerous offenses, including robbery. Consistent with his plea, Adams was acquitted of all charges but was found guilty of larceny, as a lesser included offense of robbery.      This Court granted review to determine whether the confession admitted by the military judge was properly corroborated.   ...   COURT DECISION:   (.pdf)   (.html)


   Apr 23, 2015  ...  MSPB:  EEOC v. New Breed  ...   OUR COMPANY APPEALS THE $1.5 MILLION DOLLAR DECISION AGAINST US FOR SEXUAL HARASSMENT.   ...   The Equal Employment Opportunity Commission (“EEOC”) brought this Title VII sexual harassment and retaliation action against New Breed Logistics (“New Breed”). The EEOC alleged that James Calhoun, a New Breed supervisor, sexually harassed Jacquelyn Hines, Capricius Pearson, and Tiffany Pete and retaliated against the women after they objected to his sexual advances.      The EEOC also alleged that Calhoun retaliated against Christopher Partee, a male employee, who verbally opposed Calhoun’s sexual harassment and supported the women’s complaints.      A jury found New Breed liable under Title VII for Calhoun’s sexual harassment and retaliation and awarded all four employees compensatory and punitive damages totaling over $1.5 million dollars.   ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 23, 2015  ...  MSPB:  McDowell v. Defense  ...   FAILURE TO TIMELY REPORT MISCONDUCT -and- REFUSAL TO COOPERATE IN AN INVESTIGATION   ...   The appellant was employed as a GS-14 Supervisory Human Resources Specialist in the Department of Defense Education Activity (DoDEA), Pacific Area.      On February 28, 2013, the agency proposed to remove her from her position based on four charges: (1) failure to timely report misconduct to the proper authorities; (2) refusal to cooperate in an investigation conducted by her supervisor; (3) unprofessional conduct toward her supervisor; and (4) unprofessional conduct towards one or more employees.      After providing her with the opportunity to respond to the notice of proposed removal, the deciding official issued a decision letter sustaining the first two charges but not the last two charges regarding unprofessional conduct.      The deciding official determined that the sustained charges did not warrant the penalty of removal.      Instead, he demoted her to the position of AD-12 Human Resources Specialist.      The demotion was effective July 28, 2013.      Thereafter, the appellant filed an appeal contesting her demotion.      She also raised claims of discriminatory hostile work environment, harmful procedural error, discrimination based on race, and retaliation for whistleblowing activities and prior Equal Employment Opportunity activity.  ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 22, 2015  ...  MSPB:  Goerold v. Homeland  ...   AGENCY: I LOST THE CASE, SO I APPEALING  ...  APPELLANT: I WON MY CASE -AND- I'M APPEALING TOO.   ...   The following background facts are undisputed. At all times relevant to this appeal, the appellant served as the Assistant Federal Security Director (Inspections) with the Aviation Operations Division of the Transportation Security Administration (TSA) for the Denver International Airport.      Effective September 2012, the agency reduced the appellant in pay band and pay based on a charge of unacceptable performance, which was supported by three specifications concerning her work performance in three critical areas of her position.      The appellant filed a timely appeal with the Board and raised affirmative defenses of disability, age, and sex discrimination, retaliation, harmful error, and several prohibited personnel practices. Following a hearing, the administrative judge reversed the agency’s action, finding, among other things, that the agency failed to prove that the appellant’s performance standards were in compliance with its management directive governing such standards, and that it therefore could not sustain its charge of unacceptable performance.     DECISION:   (.pdf)   (.html)


   Apr 21, 2015  ...  TxApp:  Palumbo v. Texas  ...   ENTRAPMENT:  I DID NOT HAVE SEX WITH THAT MAN -and/or- UNLAWFULLY OBTAINED EVIDENCE.  ...   On December 17, 2012, officers from the vice division of the Houston Police Department conducted an undercover investigation at the Pink Spa, to determine whether prostitution was occurring at the business. As part of the investigation, Officer Bobby Smith entered the Pink Spa posing as a customer.    Upon entering the business, Officer Smith paid a $60 door fee and was escorted to a room. Ms. Lawan Palumbo then entered the room, wearing lingerie. After Palumbo provided Smith with a short massage, she inquired what else Smith would like. Smith, using street language, asked how much it would cost to have sexual intercourse with Palumbo.    After some negotiation, Officer Smith offered Lawan Palumbo $140 in exchange for Palumbo engaging in sexual intercourse and ___ sex with him. Smith testified that Palumbo agreed to his proposition and that they agreed to exchange $140 for the provision of sexual intercourse and ___ sex.    COURT DECISION:   (.pdf)   (.html)


   Apr 20, 2015  ...  MSPB:  Gonzalez v. Agriculture  ...   MY TERMINATION WAS FOR A PRE-APPOINTMENT REASON AND WAS BASED ON RETALIATION FOR MY PROTECTED EQUAL EMPLOYMENT OPPORTUNITY (EEO) ACTIVITY, DISABILITY DISCRIMINATION, AND REPRISAL FOR WHISTLEBLOWING.   ...   The agency appointed the appellant to the position of Area Technician, effective June 8, 2014.      Her appointment was in the competitive service and was subject to completion of a 1-year initial probationary period beginning on the date of her appointment.      At the time of her appointment, the appellant did not have prior creditable federal service.    The agency terminated the appellant during her probationary period, effective October 1, 2014, due to both conduct and performance deficiencies.    The appellant filed this appeal alleging that her termination was for a pre-appointment reason and was based on retaliation for her protected equal employment opportunity (EEO) activity, disability discrimination, and reprisal for whistleblowing.  ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 20, 2015  ...  DCDC:  Johnson v. DC  ...   DEAR SCHOOL PSYCHOLOGIST: YOU ARE CRAZY IF YOU THINK THAT WE ARE ACTUALLY LISTENING TO YOU.  ...   Andrew Johnson worked as a DCPS school psychologist from 1994 until his termination in 2011.      Johnson had generally received positive performance reviews during his career, but his reviews dropped when DCPS implemented the IMPACT program.      Under IMPACT, Johnson’s final combined standards and professionalism scores resulted in a “Minimally Effective” rating for the 2009–2010 school year, based on the scores provided by his program manager, Dr. Jamila Mitchell.      When Johnson learned that his “Minimally Effective” rating was based on a student named J.F. who, in fact, was not assigned to either of Johnson’s schools.     Johnson also spoke with Dr. Mitchell, who explained that Mitchell had conveyed his concerns to the DCPS official who calculated his timeliness score but that she, as a supervisor, could not be involved in the process.      According to Johnson, Dr. Jamila Mitchell “giggled” and responded by saying “well, you can retire.”      DCPS terminated Johnson on August 12, 2011.     Johnson filed an appeal with the DC School Chancellor’s Impartial Review Board, which was denied.      This suit followed.   ...   COURT DECISION:   (.pdf)   (.html)


   Apr 17, 2015  ...  3rd Cir:  Alvarez v. AGUS  ...   IF SHE VOMITS 6 TO 8 TIMES AND LAY UNCONSCIOUS, SHE'S PROBABLY NOT JONESING FOR SEX WITH YOU.  ...   During the night of August 11, 2000 and early the following morning, Chavez-Alvarez had nonconsensual sexual contact with a female platoon member. As provided in the Stipulation of Fact from Chavez-Alvarez’s court-martial, Chavez-Alvarez was drinking alcohol with his platoon members at a bar outside of the army base in Tongduchon, Korea.      Chavez-Alvarez escorted a visibly intoxicated female platoon member back to the army base; the female platoon member was unable to walk on her own.      Chavez-Alvarez assisted the woman back to her bedroom and began helping her change out of her clothing. During this time, the woman vomited between six to eight times and eventually lay unconscious on her bed.      Despite being aware that she was unable to give consent due to her incapacitation, Chavez- Alvarez began to touch her genitals, including performing ____ sex on her.      She began to protest, but Chavez-Alvarez believed her movement indicated consent. He then had sexual intercourse with the woman.  ...   COURT DECISION:   (.pdf)   (.html)


   Apr17, 2015  ...  MSPB:  Jones v. Labor  ...   IF YOU GET CAUGHT DOING THIS STUFF, DON'T RUIN YOUR BAD REPUTATION BY APPEALING FOR THE WORLD TO SEE.   ...   Effective September 11, 2013, the appellant was removed from his Equal Opportunity Specialist position for Failure To Provide Accurate Information and Lack Of Candor. The Failure To Provide Accurate Information charge was supported by two specifications and the Lack Of Candor charge was supported by three specifications.      SPECIFICATION 1 of the Failure To Provide Accurate Information charge alleged that the appellant failed to provide accurate information in response to question 12 of Optional Form 306 (OF-306), Declaration for Federal Employment, by failing to disclose his resignation after being removed from his prior position at the Department of Agriculture in 2008.      SPECIFICATION 2 alleged that the appellant failed to provide accurate information in his employment application regarding his employment history as a Criminal Investigator with the Department of Homeland Security (DHS).      SPECIFICATION 1 of the Lack Of Candor charge alleged that, during his recruitment interview, the appellant was not forthright about the fact that he only performed his job duties as a Criminal Investigator for the DHS for approximately 2 weeks and failed to disclose that he was on extended administrative leave during the majority of the 21 months he indicated that he was employed there on his résumé.      SPECIFICATION 2 of the Lack Of Candor charge alleged that during the same interview, the appellant was not forthright about the fact that he went from a GS-12 Criminal Investigator to a GS-6 Deportation Assistant, not because he was in a “holding pattern” regarding his top secret clearance as he stated but because he had been removed from his Criminal Investigator position for failure to obtain a top secret clearance, and, as a result of a settlement agreement, the agency agreed to place him in the Deportation Assistant position.      On September 26, 2014, the appellant electronically filed an “appeal .  ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 15, 2015  ...  MSPB:  Smith v. Postal  ...   THIS CASE IS PROOF THAT MSPB ADMINISTRATIVE JUDGES DO NOT UNDERSTAND RIF PROCEDURES ANY MORE THAN ANYONE ELSE.   ...   The agency has filed a petition for review of the initial decision, which found that it had improperly demoted the appellant without using required reduction in force (RIF) procedures.     ...     Here, it is undisputed that the agency made an undue disruption determination and that the appellant has been paid and provided benefits as a PS-4 Laborer Custodial at all times pertinent to this appeal. We further note that the Board has held that it cannot demand that an agency conduct a RIF as a final remedy.     Therefore, it would be improper for us to order the agency to conduct a RIF as interim relief.   ...   MSPB DECISION:   (.pdf)   (.html)


Apr 15, 2015  ...  VAOIG:  AS YOU DO UNTO OTHERS, WILL ALSO BE DONE UNTO YOU  ...  VAOIG HAS DETERMINED THAT ITS TIME FOR VA OIT CHIEF, STEPHEN WARREN, TO GO BYE BYE, TOO.  ...  DISPITE NUMEROUS WARNINGS, THE VA OIT CHIEF LEFT VA NETWORKS AS WIDE OPEN AS A CHEAP TRICK.   Mr. Warren knew as early as 2010 that there were “uninvited visitors” in VA’s network, one being China, who compromised or attacked it by taking advantage of “weak technical controls within the VA network.” Mr. Warren said that he took any potential incident or incident seriously; however, when he learned that VA contractor employees worked remotely from China and India, his only instructions were to cease the practice, as his focus was to determine what “the rules should be” rather than was there any compromise to any VA data. Had he and other OIT employees taken a more active approach, they would have found that at least one VA OIT employee and numerous VA contractor employees improperly accessed VA’s network from foreign countries on numerous occasions using both CAG and RESCUE-GFE, with one leaving the computer he used in China.    ...     Mr. Warren did not ensure that the instructions he gave Mr. Lowe and Mr. Gonzalez in his February 5, 2014, email for a “risk/impact analysis” were thoroughly completed. He asked them to determine what “level of risk was taken on by the VA and if there was a likely exposure of data,” yet the reports given to us appeared as though the VA-NSOC Digital Forensics Team conducted a very limited analysis and did not fully address the items outlined in Mr. Warren’s instructions. Due to the passage of time and with no access to the computer left in China, there was no way for us to determine what was contained on it or if it was still being used to remotely access VA’s network.   Summary  ...  Full Report


   Apr 14, 2015  ...  MSPB:  Carder v. Defense  ...   THE 2 STOOGES:   CLUELESS DECISION OFFICIAL; CLUELESS AGENCY LAWYER   ...   In March 2014, she notified the agency that she had been arrested for possession of marijuana and drug paraphernalia.      The agency proposed the appellant’s removal for illegal marijuana use and failure to comply with the drug-free workplace program.      The deciding official upheld the illegal marijuana use charge and mitigated the removal to a 15-day suspension.      The appellant appealed her suspension to the Board.      Without addressing the merits of the charged misconduct, the administrative judge cancelled the suspension.      The administrative judge found that the agency violated the appellant’s right to due process by failing to notify her that it would be considering some attendance issues as an aggravating factor in determining the appropriate penalty.      The agency has filed a petition for review. (Appeal)   ...   MSPB DECISION:   (.pdf)   (.html)

PERMERICA CONSIDERATIONS: Had the Proposed Removal been sustained, then the flawed "aggravation issue" (on which the case fell) would be relevant. However, the fact that the decision official mitigated the Proposed Removal down to a 15 day suspension should have rendered the "aggravation issue" as harmless.  ...  ON THE OTHER HAND: Since the decision official only sustained one of the two charges in the Propose Removal letter, maybe the MSPB AJ got it right after-all.   ...    ...   That said, this case might have fallen based on the actual charged misconduct.  ...    ...   FINALLY: Once the decision official decided to mitigate the Proposed Removal down to a Suspension, why did he intentionally place the action into MSPB jurisdiction with the 15 day suspension, when a 14 day suspension (outside MSPB jurisdiction) would suffice ?


   Apr 9, 2015  ...  MSPB:  Thompson v. Army  ...   PLAY CLOSE ATTENTION ... THIS DOD / OPM CONTRIVED "CONTRIBUTION-BASED" SCHEME WILL REPLACE THE CURRENT "PERFORMANCE BASED" SYSTEM .   ...   This is an Office of Personnel Management (OPM) demonstration project known as the “Contribution-based Compensation and Appraisal System” (CCAS). The intent is to implement a “contribution-based” appraisal system as opposed to the “performance-based” systems normally contemplated under 5 U.S.C. chapter 43.      Positions under CCAS are grouped into four “broadbands,” rather than assigned particular grades and steps as under the General Schedule.      Contribution is rated through “contribution scores” in each of the following critical factors: (1) Problem Solving, (2) Teamwork/Cooperation, (3) Customer Relations, (4) Leadership/Supervision, (5) Communication, and (6) Resource Management.      Each factor has multiple levels of increasing contribution corresponding to the broadband levels and contains descriptors for each respective level within the relevant career path.      Because CCAS is a contribution-based system, undercontributing employees are subjected to “contribution-based,” rather than “performance-based,” actions.  ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 9, 2015  ...  MSPB:  Miller v. Justice  ...   I RAN THE US GOVERNMENT'S PRISON LABOR PROGRAM -UNTIL- I GOT CANNED FOR BLOWING THE WHISTLE.   ...   The appellant formerly held the position of Superintendent of Industries, GS-13, with the agency’s Federal Bureau of Prisons.      The appellant’s primary duty as Superintendent of Industries was to supervise the running of a UNICOR factory that produced helmets for the military.      UNICOR is the trade name for Federal Prison Industries, a government-owned corporation that employs inmates incarcerated in correctional facilities under the Federal Bureau of Prisons.      The appellant filed an appeal with the Board alleging that he was reassigned out of his position into a series of temporary assignments, and then finally to the position of Management Analyst, GS-13, in retaliation for whistleblowing activity, specifically, a verbal disclosure on October 7, 2009, and verbal and written disclosures on December 16, 2009, of gross mismanagement and the gross waste of funds in the factory’s operations.      After holding a hearing, the administrative judge issued an initial decision finding that the appellant had established by a preponderance of the evidence that he had made protected disclosures under 5 U.S.C. § 2302(b)(8) that were a contributing factor in the decision to reassign him, but the agency had established by clear and convincing evidence that it would have reassigned the appellant in the absence of his disclosures.      The appellant has filed a petition for review of the initial decision arguing that the administrative judge incorrectly found that the agency met its burden of proving by clear and convincing evidence that it would have reassigned him in the absence of his disclosures.  ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 8, 2015  ...  5th Cir:  McMullin v. Mississippi  ...   WHO DOES A WHITE WOMAN HAVE TO ____ TO GET A PROMOTION ? ... THIS CASE WILL TAX YOUR BRAIN (if you have one)  ...   Lieutenant McMullin is white female; Colonel Berry is black male; and Master Sergeant Pack is black male.     Master Sergeant Pack was promoted to the position Director of Mississippi Highway Patrol’s Training Division (“HP Training Division”) promotion.

QUALIFICATIONS COMPARISON : ( It's clear that the writer favors the white female ) (very biased writer)
At the time of Master Sergeant Pack’s promotion, Lieutenant McMullin had twenty-five years of experience with the Department and had been a full- time, training coordinator and instructor for the MS Academy for six years (2006 to March 2012). Lieutenant McMullin spent approximately half of her career with the Department in training, including serving as a training officer and counselor in twelve patrol schools. Lieutenant McMullin had never been disciplined by the Department. The Department does not dispute that Lieutenant McMullin was qualified for the Director’s position.

(the biased writer understates Pack's qualifications -and- attempts to disqualify him based on expunged disciplinary incidents)
Master Sergeant Pack, by contrast, had a lower rank, seven fewer years of service with the Department, and served as training officer and counselor in four or five patrol schools. And, he had been fired twice while working for the Department and assigned to the Mississippi Bureau of Narcotics. Master Sergeant Pack was terminated first in October 1995 for having sex with a confidential informant. He was later reinstated because other officers who engaged in similar activity had not been terminated. He was again terminated in December 2001 for (1) seizing cash from a potential target without accounting for the seizure, (2) participating in sexually explicit behavior during a vacation in Florida, and (3) observing but not reporting illegal drug activity during that vacation. Subsequently, Master Sergeant Pack and the Department entered into a settlement which rescinded his second termination, restored him to the same rank and grade, and gave him full benefits and back pay.      (SOUNDS BAD UNTIL YOU "GO BACK" AND READ IT CAREFULLY ... both terminations were rescinded. = clean record)

Colonel Berry stated that he did not know that Master Sergeant Pack had been fired before he promoted him to the Director position, but Colonel Berry added that the prior terminations and misconduct would not have affected his decision to promote Master Sergeant Pack.   ...   COURT DECISION:   (.pdf)   (.html)


   Apr 7, 2015  ...  MSPB:  Zoe v. Parker v. Veterans   ...   VA REMOVED HER FOR PATIENT ABUSE AND VIOLATION OF EMPLOYEE/PATIENT BOUNDARIES   ...   The appellant was a GS-07 Social Work Associate with the Department of Veterans Affairs (VA) Medical Center.     The agency proposed her removal based on the following four charges: (1) violation of Medical Center policy, LD-19-09, patient abuse and employee/patient boundaries; (2) filing false reports/statements; (3) violation of VA Directive 6001; and (4) lack of candor.     After providing the appellant with an opportunity to respond, the deciding official issued a decision sustaining the proposed removal.     The appellant was removed from federal service.     The appellant filed an appeal contesting her removal.   ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 6, 2015  ...  CAAF:  US (Army) v. Bennitt  ...   I DIDN'T KILL THAT GIRL, SHE KILLED HERSELF  ...   Army soldier, Timothy E. Bennitt’s sixteen-year-old girlfriend, LK, died of an overdose in Appellant’s barracks room sometime in the early morning hours of February 15.      In the first, Bennitt testified that around 1:00 a.m. or 1:30 a.m. on February 15, he picked up his girlfriend, LK, and her friend, TY, and brought them back to his room on base. He stated that around 1:45 a.m. he snorted an oxymorphone pill LK gave him; around 2:00 a.m. or 2:15 a.m., he left the room; he later returned and found LK and TY asleep; around 3:00 a.m., Appellant laid down with them and fell asleep; and at 4:30 a.m., he woke to find LK foaming at the mouth and pale.      A military judge sitting as a general court-martial convicted Appellant of four specifications of wrongful distribution of a controlled substance and three specifications of wrongful use of a controlled substance.      Contrary to Appellant’s plea, the military judge convicted Appellant of the involuntary manslaughter of LK. Appellant was sentenced to a reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for a period of seventy months, and a dishonorable discharge.  ...   COURT DECISION:   (.pdf)   (.html)   ...   Original Decision


   Apr 3, 2015  ...  MSPB:  Hawes v. OPM  ...   THIS CASE IS A COMEDY OF INCOMPETENTS. IT IS UNCLEAR IF "OPM" OR THE "MSPB ADMINISTRATIVE JUDGE" IS THE MOST INCOMPETENT.  ...  EXAMPLE: On review, the appellant argues that the administrative judge erred by shifting the burden of proof for Charge 1 to the appellant.     We agree. The initial decision states, “the appellant presented no evidence on specifically what he was doing on these dates to establish that he was actually on duty or had properly recorded his time.”     It was not the appellant’s burden to disprove the charge. OPM had the burden of proving the charge by a preponderance of the evidence.   ...   DECISION:   (.pdf)   (.html)


   Apr 2, 2015  ...  NYCA:  New York  v. Brown & Thomas  ...   CASES LIKE THIS MAKE POLICE OFFICERS AND VICTIMS SAY  ...   " WTF ? "  ...   While sitting in an unmarked police van, the officers spotted defendants Brown and Thomas running down the middle of Broadway in Times Square, looking back over their shoulders as they ran. Officer Carey apprised his colleagues of Brown's identity. Sergeant Monahan recognized Thomas as someone who associated with people, other than Brown, who preyed on victims in the Times Square area.      The officers exited the van, called to defendants and both men stopped. Brown, who was out of breath, sat on the ground. Neither Brown nor Thomas was placed in handcuffs.      Sergeant Monahan contemporaneously located a robbery victim outside of the club where Officer Carey had seen Brown three hours earlier. After the victim identified both Brown and Thomas as the perpetrators, they were placed under arrest. The victim's Rolex and $185 in cash was recovered from Thomas.      Defendants thereafter moved to suppress the showup identification. After a suppression hearing where the court heard testimony from two of the police officers and the victim, Supreme Court denied the motion. A divided Appellate Division reversed, ordered suppression of the victim's out-of-court identification, and remanded for a new trial, holding that "[t]he fact that the officers observed defendant[s] . . . running does not elevate the level of suspicion"   ...   COURT DECISION:   (.pdf)   (.html)


   Apr 2, 2015  ...  ICA:  Mobley v. Indiana  ...   I'M A VICTIM OF ENTRAPMENT !  ---  NOT GUILTY OF "PATRONIZING A PROSTITUTE"  ---  WHAT PROSTITUTE ?  ...   Indianapolis Metropolitan Police Department Detective Tabatha McLemore was posing as a prostitute on East Washington Street in Indianapolis. Detective McLemore performs approximately 100 undercover investigations a year where she poses as a prostitute.      Around noon, Mobley drove slowly past Detective McLemore, staring at her “the whole time.”      Mobley then stopped his car in the middle of the next street near Detective McLemore. Detective McLemore walked up to Mobley and asked, “What’s up?”      In response, Mobley asked Detective McLemore, “How much?” State’s Detective McLemore told Mobley it would be “twenty for some head.”   ...     ...   COURT DECISION:   (.pdf)   (.html)


   Apr 2, 2015  ...  MSPB:  Lu v. Homeland  ...   MY SUSPENSION WAS RACIALLY MOTIVATED.   and   REMOVAL DECISION OFFICIAL DISCRIMINATED AGAINST ME.   ...   The appellant was employed by the agency as a Supervisory Transportation Security Officer. On January 24, 2014, the agency proposed the appellant’s removal for failure to follow standard operating procedures and failure to follow directions.      On March 21, 2014, the agency issued a decision removing the appellant.     The appellant filed the instant IRA appeal on September 11, 2014. In his initial appeal, the appellant alleged that the deciding official had retaliated and discriminated against him. He also alleged that his 2012 suspension was racially motivated.   ...   MSPB DECISION:   (.pdf)   (.html)


   Apr 1, 2015  ...  WSC:  Celina Apodaca v. Safeway  ...  MY ASSISTANT MANAGER CALLED ME A “FUCKIN[G] LIAR” IN FRONT OF TWO CO-WORKERS" On February 4, 2014, Ms. Apodaca filed a complaint alleging the following incidents occurred during her employment with Safeway:   (1) she did not receive a 90-day evaluation and pay increase;  (2) her work schedule was changed against her wishes; (3)  her assistant manager called her a “fuckin[g] liar” in front of two co-workers; (4)  a co-worker shoved her with the bathroom door while she was mopping the bathroom and called her a “fuck;” and  (5)  an unspecified person broke into her work locker.   COURT DECISION:  (.pdf)   (.html)


Mar 31, 2015  ...  VAOIG:  ADMINISTRATIVE INVESTIGATION, PROHIBITED PERSONNEL PRACTICE AND MISUSE OF VA TIME AND RESOURCES, VETERANS HEALTH ADMINISTRATION, CHIEF BUSINESS OFFICE PURCHASED CARE, DENVER, CO.   We substantiated that Ms. Cynthia Kindred, Deputy Chief Business Officer (DCBO) for Purchased Care (PC), engaged in a prohibited personnel practice when she gave preference in hiring to Mr. Roger Sigley, a former VA coworker and VA contractor employee. Ms. Kindred, to reach her favored candidate, created a program manager position, defined the scope and manner of competition through a misuse of a noncompetitive reinstatement authority for Federal status employees, and defined the requirements of the position by writing the position description (PD) while she possessed Mr. Sigley’s resume. To ensure the desired result, Ms. Kindred created a full time employee equivalency (FTE) and routed the position classification around the customary PC human resources (HR) path, after Mr. Sigley reached out to her and expressed a desire to return to VA..   Summary Report    Full Report


Mar 30, 2015  ...  VAOIG:  BACK IN THE OLD DAYS, VA HOSPITAL AND VETERAN BENEFITS REGIONAL OFFICE HEADS WERE UNTOUCHABLE KINGS & QUEENS NOW THEY ARE QUICK TO REPORT EVERYTHING TO THE VA OIG TO SAVE THEIR OWN HIDES.   Director of the Honolulu VA Regional Office (VARO) asked that the OIG to investigate allegations that a supervisor improperly removed controls from veteran's records and directed staff to disregard policy.   Summary Report    Full Report


Mar 27, 2015  ...  TECH:  Every Single Road In The U.S., In Mind-Boggling Detail.   The maps reflects the country's population density and topography.    Wash Post


Mar 25, 2015  ...  MSPB:  Heimer v. Veterans Affairs  ...   THE VA COMMITTED A FATAL ERROR: TRYING TO IMPLEMENT A "UNILATERAL" (ONE SIDED) PERFORMANCE BASED REMOVAL LAST CHANCE ABEYANCE   ...   PERMERICA SPEAKS:  When the removal decision official decided to give the employee another chance to prove that she could perform her duties satisfactory, he only had two clean options: (1) rescind the proposed removal and and place the employee on a new performance improvement plan (PIP) -or- (2) Issue a decision letter to remove the employee --then and only then-- offer the employee a last chance agreement. Instead, the deciding official entered into a last chance agreement without having issued a removal decision letter first. That was an error. A fatal error indeed. And an rookie mistake, ta boot.  ...  FINAL THOUGHT: Even after the error had been committed, an ER Expert could have easily spotted the shortcoming and stopped it from going over the cliff. Unfortunately, 95 percent of ER Specialists and agency lawyers are not sufficiently technically expert to spot or fix such obvious dangerous errors. A real shame. MSPB DECISION:   (.pdf)   (.html)


LINDA JONES  -  SIMPLY THE BEST, EVER:   Most music experts around the world generally agree that the Americans are the best singers in the world.      When asked who was their favorite singer, great American singers like Aretha Franklin, Gladys Knight, Patti LaBelle, and Luther Vandross named Linda Jones as the best ever.      Snillus Digital:   I agree. I am embarrassed to admit that the first time I heard Linda Jones sing, she made me cry. It was like I had heard an Angel sing. As a man, I was embarassed about my feelings but I felt good all the same. It's been many, many years since I first heard Linda Jones sing, and sometimes she still makes me cry. And over the years I've come to strongly believe that she was heaven sent.      A Strong Professional:   When American singer, Linda Jones, died at the young age of 27, she had been a singing professional for over 21 years.      A Baby Called To Sing For The Lord:  Before she could talk, baby Linda Jones was singing for the lord. Her family was steeped in gospel music, and at the age of six she began performing with her siblings in a sacred group, the Jones Singers. Audiences were mesmerized by the depth and beauty of the young Linda's voice. (Angel)      A Music Critic Speaks:   Linda Jones talent often defies mere words. Rashod Ollison, The Virginian-Pilot's music and entertainment writer, put it like this " ... whereas many of those gospel-bred vocalists tempered the sanctified elements when they went pop, Linda didn’t change one fiery note. Every song she sang pulsed and ached with a ferocity that never let up. Her thunderous wails sometimes caused distortion on the microphone. She exploited her wide range, the notes soaring, spiraling, leaping, whirling, and exploding. Listening to Linda is always a visceral experience; it can be thrilling, and it can be exhausting. Either way, it’s impossible not to feel something. "     Snillus Digital:   As a professional music and video editor, I spend a lot of time listening to and editing American music recorded over the past 50 to 60 years. The O'Jays 1967 hit song "I'll Be Sweeter Tomorrow (Than I was yesterday)" has always been one of my favorite songs of all times. I ranked it a 10 out of 10. The prison singing group "The Escorts" 1973 version also ranks high, but the O'Jays still ruled. I ranked The Escorts version as a 9 out of 10.      Then one day Linda Jones stepped to the mike. She eased into the song and quickly made it her own. With Linda still easing into the song, I could hear the sweet, rich multi-textured notes bouncing, rolling, floating, souring through the air. The O'Jays now flat black and white notes were brought to millions of brilliant colors as Linda continued easing into the song. The multi-textured notes were blowing my mind and Linda hadn't even broken a sweat. With a spiritually-infused voice and and range of an Angel, she stole my heart. By the time she sang "You Call Me You Sugar And Spice Girl, Your Everything Nice Girl" I was all hers, and enjoying the beautiful ride. What a wonderful ride. It was like I was hearing the song for the first time. By the time the song ended Linda Jones had DESTROYED / SMOKED / OBLITERATED / ANNIHILATED / WIPED OUT the O'Jays beyond recognition. And yes, she was much, much, much sweeter. And, all I could do was to bow down ... Bow Down.      This Strong Woman Fought All Her Life:   For over 21 years, Linda fought her way through many, many, many promises, challenges and setbacks in the sexist and racist musical industry. And just as she was on the verge of a breakthrough, her life was suddenly cut.     Miss Linda Jones Final Performance:   After completing a National Tour in early 1972, Miss Linda Jones returned to New York. On March 14, 1972, Linda Jones performed the afternoon matinee at New York City's Apollo Theater in Harlem. She went to her mother's home to rest before performing the evening show at the Apollo Theater. While sleeping, she slipped into a diabetic coma and died. Called Back Home at just 27 years old.      Snillus Digital:   In my humble opinion, Linda Jones is the best singer (man or woman) to ever grace a microphone.       Thank You Linda.      (CREDIT:   Much of the information above was gathered from numerous websites, comments, reviews across the internet.)    So many people love Linda Jones.


   Mar 24, 2015   ...   MSPB:  Shahin v. Geithner  ...   THE IRS DECIDED TO PUT "SANCTIONS" ON MY PROMOTION, BECAUSE I WAS BORN IN UKRAINE AND SPEAK RUSSIAN.   ...   Plaintiff is a female citizen of the United States, who “was born raised and educated in Ukraine (and speaks Russian), and who at all times relevant to the complaint was more than 40 years of age.      In February 2009, the plaintiff applied for the IRS posted Vacancy Announcement for the position of Supervisory Tax Analyst [...] in Washington, DC. A Supervisory Tax Analyst is “a first level supervisor with managerial responsibilities and authorities [...] .      Generally, she alleges that she applied, but was not selected, for the Supervisory Tax Analyst position with the Internal Revenue Service (“IRS”) because of her national origin (Russian speaking Ukrainian), sex, and age.      She brings this action under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”).   ...   MSPB DECISION:    (.pdf)   (.html)


   Mar 23, 2015  ...  NSC:  State v. Cook  ...   I SWEAR ON A BIBLE, I DID NOT HAVE SEX AND KILL NOBODY !  ...   On April 29, 2000, Amy Stahlecker’s body was found on the banks of the Elkhorn River near the intersection of Highway 275 and West Maple Road in Douglas County, Nebraska. Witnesses last saw Stahlecker alive around 1 a.m. on April 29, when she left Omaha to drive back to Fremont, Nebraska. The white Ford Explorer Stahlecker was driving was found with a blown tire on the side of Highway 275.      Stahlecker’s body was found underneath a bridge that was a part of West Maple Road. Stahlecker had been shot multiple times, including once to the back of the head and twice to the face. An autopsy revealed multiple contusions and abrasions on Stahlecker’s body. The autopsy also found semen in the vaginal area, but no specific evidence of sexual assault. DNA testing of the semen revealed that it was consistent with Cook’s DNA.      On May 2, 2000, Michael Hornbacher, a friend of Cook, contacted a Washington County deputy sheriff and told him that Cook had confessed to Hornbacher that Cook killed Stahlecker.  ...   COURT DECISION:   (.pdf)   (.html)


   Mar 23, 2015  ...  MSPB:  Jeanmarie v. Air Force  ...   BECAUSE THE MILITARY GAVE ME A JOB WHEN I WAS UNEMPLOYED, I FEEL LIKE I SHOULD BE TREATED BETTER THAN OTHERS FOR THE REST OF MY LIFE.   ...   The appellant applied for and was tentatively offered a position as a Firefighter with the agency.      After reviewing the appellant’s responses on the Office of Personnel Management’s (OPM’s) Optional Form (OF) 306 (Declaration for Federal Employment), the agency withdrew its tentative offer of employment due to suitability issues identified in the appellant’s responses.      The appellant appealed to the Board alleging that the agency failed to provide him with due process, including notice and an opportunity to respond, before the tentative job offer was withdrawn, and that the agency may have committed harmful procedural error.      The appeal also alleged that the withdrawal of the tentative job offer may have been prohibited by USERRA as a denial of retention in employment.   ...   MSPB DECISION:   (.pdf)   (.html)


   Mar 23, 2015  ...  MSPB:  Young v. Army  ...  REMOVED ON THE CHARGE OF CONDUCT UNBECOMING A FEDERAL EMPLOYEE, INCLUDING SEXUAL HARASSMENT.   ...   The appellant worked as a vocational nurse for the agency’s Brooke Army Medical Center at Fort Sam Houston, Texas. In December 2012, two medical center employees made complaints to supervisors regarding the appellant’s behavior. The agency placed the appellant on administrative leave while it conducted an investigation into the employees’ allegations. The agency’s investigator concluded upon completion of multiple interviews of medical center employees that the appellant engaged in inappropriate behavior and sexual harassment based on agency regulations.      Based upon the results of the investigation, the agency proposed to remove the appellant for the charge of conduct unbecoming a federal employee. The charge included four specifications, one for each incident included in the complaints by the two employees that were the subject of the agency’s investigation.   ...  The deciding official directed the appellant’s removal.      The appellant initiated a Board appeal challenging his removal and requested a hearing. In addition, the appellant alleged that his due process rights were violated during the removal process.   ...   MSPB DECISION:   (.pdf)   (.html)


   Mar 19, 2015  ...  Cal. Ct. App. :  City of Glendale v. Marcus Cable  ...   IT TAKES A FOOL TO LEARN:   ...   DON'T "F " WITH THE CABLE MAN !  ...   This action arose from a dispute between Glendale and Charter over whether Charter, as Glendale’s cable service provider, could realign Glendale’s public, educational, and government (PEG) channel numbers without Glendale’s consent.      Glendale initiated the litigation by filing a complaint and a request for a temporary restraining order preventing Charter from realigning its PEG channel numbers.      In its operative cross-complaint, Charter sought declarations that it had no obligation to provide Glendale with (a) free video programming and (b) cable modem services or (c) with free institutional network (I-Net) services;      it was entitled to recover possession and control of the I-Net and damages for wrongful possession and detention of the I-Net;      it had the right to realign Glendale’s PEG channel numbers; Glendale was unlawfully using PEG access fees;      and it had a right to offset past PEG access fee overpayments against future franchise fee payments.   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 19, 2015  ...  SCNJ:  State v. Sumulikoski / Sopel  ...   HAVING SEX WITH THREE 17 YEAR OLD GIRLS      STAYS IN GERMANY      RIGHT ???     Defendants Michael Sumulikoski and Artur Sopel were the only chaperones who accompanied the group to Germany. Both worked at Paramus Catholic High School. Sumulikoski, who was twenty-eight years old at the time, was a permanent substitute teacher and an athletic coach. Sopel, then age thirty-one, was the vice president of operations. Both agreed to serve as chaperones. At oral argument, the State represented in general that both had conversations and signed documents that spelled out their responsibilities as chaperones.      A week after the trip ended, a teacher contacted the Division of Youth and Family Services1 and reported that sexual misconduct had occurred between the chaperones and students during the trip. An investigation followed. It uncovered evidence that the chaperones engaged in acts of sexual misconduct with three seventeen-year-old students, Jill, Kate, and Anne. (We use pseudonyms to protect the identity of the victims, who were underage at the time.)
     Each of the victims spoke with a sergeant from the prosecutor’s office on one or more occasions.      They recounted a number of events that took place during the trip.      We focus briefly on the acts of sexual misconduct in Germany, which form the basis for the indictment.      Jill stated that she and Sumulikoski performed oral sex on each other and had sexual intercourse.      Kate recounted that Sopel inserted his finger into her vagina and had sexual intercourse with her. Anne stated that Sopel put his finger in her vagina and had sexual intercourse with her on two different occasions.      Jill and Kate also relayed that Sopel spoke with each of them about what to say to the authorities.      A Bergen County Grand Jury indicted defendants.   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 17, 2015  ...  10th Cir:  EEOC v. Beverage Distributors Company  ...   WAS HIS BLINDNESS A SAFETY CONCERN -OR- WAS IT DISCRIMINATION ?  ...   This case involves a claim of employment discrimination. Mr. Michael Sungaila, who is legally blind, worked for Beverage Distributors Company. When his position was eliminated, Mr. Sungaila obtained a higher-paying job in the company’s warehouse. But, Mr. Sungaila’s employment was conditioned on passing a physical examination.      Mr. Sungaila passed the physical. But, the examining doctor stated that Mr. Sungaila would require workplace accommodations to mitigate the risks from his impaired vision. Beverage Distributors concluded that it could not reasonably accommodate Mr. Sungaila’s condition and rescinded the offer of a job in the warehouse. Shortly thereafter, Mr. Sungaila found a lower-paying position with another company.      Mr. Sungaila filed a discrimination claim with the Equal Employment Opportunity Commission, which then sued Beverage Distributors on Mr. Sungaila’s behalf under the Americans with Disabilities Act.   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 13, 2015  ...  TCA:  Tennessee  v. Davidson  ...   THE DEFENDANT APPEALS THE JURY CONVICTIONS OF TWO COUNTS OF FIRST DEGREE MURDER, TWO COUNTS OF ESPECIALLY AGGRAVATED ROBBERY, TWO COUNTS OF ESPECIALLY AGGRAVATED KIDNAPPING, THREE COUNTS OF AGGRAVATED RAPE, AND ONE COUNT OF FACILITATION OF AGGRAVATED RAPE.  ...   The defendant claims that: the trial court erred by refusing to suppress evidence obtained during the searches of his residence, his statements to the police following his arrest, and evidence obtained during searches of his person;     the trial court erred by admitting into evidence postmortem photographs of the victims;     the trial court should have excluded testimony and evidence regarding fingerprint examination and ballistics testing;     the trial court erred by permitting courtroom spectators to wear buttons emblazoned with photographs of the victims during the guilt phase;     the State violated his constitutional rights by intercepting and examining privileged communications to and from his attorneys;     structural constitutional error occasioned by the out-of-court behavior of the trial judge entitles him to a new trial;     the second successor trial judge erred by concluding that he could fulfill the statutory duty of thirteenth-juror review;   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 12, 2015  ...  DCDC:  Clay v. Howard University  ...   PLAINTIFF ASSERTS CLAIMS AGAINST HER FORMER EMPLOYER RELATED TO THE END OF HER EMPLOYMENT IN THE HUMAN RESOURCES DEPARTMENT AT HOWARD UNIVERSITY.

Plaintiff, a 50-year old African-American female, joined Howard’s HR department as a Benefits Analyst in January 2006. She received “excellent performance reviews” and took on “significant responsibility as the sole Benefits Analyst.” She was promoted to Senior Benefits Analyst in September 2011. In February 2012 her direct supervisor David Greene informed Plaintiff that she would be promoted to a position in the Leadership Academy under Senior HR Director Valeria Stokes. This was an “excellent opportunity to train for advancement.”

On February 27, 2012, another HR employee in the Benefits section, Rosemarie Thompson, approached Clay. Several Howard University paystubs had been delivered to Thompson’s office in error. Neither Clay nor Thompson recognized the name on the paystubs, Cynthia Edwards, as that of a current or former Howard employee. The employee number on the paystubs belonged to another HR employee, Robert Jackson, who was a friend of Edwards’.

Given the friendship between Edwards and Jackson, Clay “was concerned that the paystubs had been improperly generated and were fraudulent.” She elected not to report the paystubs to her direct supervisor, David Greene, based on Greene’s relationship with Jackson and Edwards, all three of whom worked at PRM, a private human resources company which had “numerous contracts” with Howard. Instead of reporting the paystubs to Greene, Plaintiff reported them to Defendant Jones, who was then Howard’s Executive Vice President and Chief Human Resources Officer.

Howard terminated Jones for cause in November 2012. In December 2012, Plaintiff learned that her former Senior Benefits Analyst position had been posted. Plaintiff submitted an application and received an interview. One week after her interview she learned the position had been filled by Jackson, the man whose employee number appeared on the questionable paystubs. Jackson, who was not as qualified as Plaintiff, and had not served in that position before, was paid $14,000.00 more per year than Plaintiff.   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 11, 2015  ...  DCDC:  Lamb v. Holder (FBI)  ...   THE FBI TREATED ME BADLY.  ...   Lamb was an FBI employee from October 1995 to August 2013.      On February 28, 2013 FBI employee Lamb received a letter from the FBI’s Office of Professional Responsibility (“OPR”) proposing to dismiss Lamb based on allegations of a lack of candor, not under oath.      OPR issued a letter to Lamb on August 14, 2013 dismissing Lamb from the FBI, based on both sets of allegations.      The Aug. 14 Letter stated that Lamb had engaged in “gross misconduct,” a finding which precluded Lamb from electing to receive continued health insurance coverage.      Lamb appealed the gross misconduct finding, but the FBI upheld the gross misconduct determination.      Three months later, on December 13, 2013, Lamb filed this suit against Attorney General Eric Holder in his capacity as head of the Department of Justice.   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 10, 2015  ...  SCI:  Iowa  v. Moothart  ...  THE "CAKE AND EAT" CASE  ...   THEY VOLUNTARILY ENGAGED IN SEXUAL RELATED ACTIVITIES WITH THEIR ATTORNEY (AKA THE FAMILY GUY'S GLENN QUAGMIRE) AND RECEIVED A "SEXUAL DISCOUNT" ON EXCELLENT LEGAL REPRESENTATION, THEN TURNED AROUND AND SUED HIM FOR HARASSMENT.   ...   JANE DOE #1 was a twenty-two-year-old college student who was arrested and charged with operating while intoxicated (OWI).      At a meeting with Jane Doe #1, ... Moothart mixed and served her three or four vodka lemonade drinks and she became intoxicated.      At some point, Moothart asked Jane Doe #1 to ... show him her breasts. ... Jane Doe #1 was “extremely uncomfortable” when Moothart looked at her breasts.          JANE DOE #2 On the day of D.A.’s probation revocation hearing, Moothart met with Jane Doe #2 alone in a conference room at the courthouse. At this second meeting, Moothart started kissing her “and stuff” while they were alone together. Jane Doe #2 did not object because she “was going to do anything to help [D.A.].” She stated, “I really didn’t want to do it but I did it so [Moothart] would do his best to get my boyfriend out.”          JANE DOE #3 During her first meeting with Moothart, Moothart questioned Jane Doe #3 extensively about her past work in the escort business and work as a prostitute.      During a subsequent meeting, Moothart complimented her appearance and asked her to “flash him.” In response, Jane Doe #3 showed Moothart her breasts, which generated a crude sexual compliment from Moothart. Jane Doe #3 was uncomfortable with his requests; however, she complied because, as she stated, “Well, he was my lawyer. I mean, and I was in a pretty tough situation. Going to lose my kids.”   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 9, 2015  ...  MSPB:  Ashe v. VA  ...   VA SHOULDN'T NAH REMOVED ME: I DID NOT VIOLATE THAT STINKING LAST CHANCE SETTLEMENT AGREEMENT.   ...   In 2012, the agency removed the appellant, a former GS-10 Recreational Therapist, but returned him to duty several months later pursuant to an LCSA.      The LCSA provided that the agency would hold the removal in abeyance so long as the appellant did not commit any offense that would “normally” result in disciplinary action during a 2-year last chance period.      The appellant further agreed to waive his Board appeal rights if his removal was reinitiated due to a violation of the LCSA.      On August 27, 2013, the agency reinitiated the appellant’s removal on the ground that he had violated the LCSA by engaging in conduct that, individually or collectively, normally would result in disciplinary action when, on specified dates, he: (a) failed to follow instructions to relocate to a new office and to change his telephone extension; (b) failed to communicate important information to another staff member in connection with an off-site patient trip; (c) failed to respond to two emails from his supervisor that explicitly requested a response; and (d) displayed in his office in plain view of visitors and patients an inappropriate calendar showing a woman posing in a suggestive manner and a synthetic skeleton.      The appellant filed an appeal.   ...   MSPB DECISION:   (.pdf)   (.html)


   Mar 9, 2015  ...  1st Cir:  Ayala v. Shinseki (VA)  ...   SHE CLAIMS THAT VA RETALIATED AGAINST HER FOR HAVING REPORTED FRAUD AND HER SUPERVISOR SEXUALLY HARASSING INTERNS.  ...   Ayala is a retired employee of the VA. She worked for the VA for approximately thirteen years. While at the VA, she worked primarily as a GS-4 Program Support Assistant in the VA's Caribbean Healthcare System, Office of Geriatrics and Extended Care.      Between 2001 and August 6, 2004, Ayala filed three EEO complaints against the VA alleging that she suffered retaliation for having reported her supervisor for allegedly sexually harassing interns.      She was transferred to work under a new supervisor, Dr. Melba Feliciano ("Dr. Feliciano"); and assigned sporadic work for which she did not have the proper training to complete.      In September 2004, Ayala reported Dr. Feliciano to "top management" at the VA for alleged fraud. According to Ayala, Dr. Feliciano would come to the VA in the morning, punch her time card, and leave shortly thereafter to treat patients at her private practice.      Ayala alleges that, in retaliation for having reported Dr. Feliciano's activity, she was stripped of all of her duties and transferred to a small windowless office. On June 11, 2007, Ayala filed a fourth EEO complaint that recounted these allegations. Ayala alleges that these employment conditions lasted until her retirement on December 31, 2012.  ...   COURT DECISION:   (.pdf)   (.html)


   Mar 6, 2015  ...  ICA:  Jones v. Indiana  ...   I REALLY FEEL LIKE I'M A VICTIM. I MIGHT ALSO HAVE BEEN DISCRIMINATED AGAINST (OR SOMETHING).  ...   On December 30, 2013, Jones was involved in a domestic dispute with his girlfriend, N.Y., in which he grabbed her hair and pulled her head toward his waist, applying pressure to her neck. On January 22, 2014, Jones pled guilty to Class A misdemeanor domestic battery and was sentenced to 365 days incarceration, with a suspended sentence of 319 days on probation.      The order required that Jones pay a court-ordered fee, complete twenty-six weeks of domestic violence classes, refrain from new criminal charges, and be subjected to random drug screens and GPS monitoring. Additionally, Jones was prohibited from making contact with N.Y.      On April 16, 2014, the probation department filed a notice alleging that Jones had violated several conditions of his probation.   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 5, 2015  ...  MSPB:  McDonald v. Army  ...   AFTER SHE SUCCEEDED IN GETTING HER REMOVAL REVERSED, SHE DECIDED IT WAS TIME TO BE DIFFICULT.   ...   Prior to her removal, McDonald worked for the Army as an administrative assistant. In March 2012, the Army decided to remove her from her position for “failure to obtain and maintain a favorable background investigation for Federal employment.”      Before the effective date of her removal, however, McDonald retired from the federal service. McDonald subsequently filed an appeal with the board, challenging the Army’s decision to remove her.      An administrative judge determined that the Army violated McDonald’s due process rights because it considered information obtained ex parte in deciding to remove her from her position.     The judge reversed the Army’s decision to remove McDonald and ordered it to provide her with “the appropriate amount of back pay,” after making adjustments and deductions.           McDonald ... responded that it was her “decision not to return to the same hostile environment and [the] same original department/agency.”   ...   MSPB DECISION:   (.pdf)   (.html)


   Mar 5, 2015  ...  2d Cir:  Johnson v. Nextel  ...   HIRED TO REPRESENT EMPLOYEES IN CLASS DISCRIMINATION CASE, THE LAW FIRM REACHED A SWEET SIDE-DEAL WITH THE COMPANY.  ...   The law firm of Leeds, Morelli & Brown PC (“LMB”), was hired to represent 587 plaintiffs with discrimination claims against their employer, defendant-appellant Nextel Communications, Inc.      In the event of a settlement or monetary award, the proceeds would be split, with the client receiving two-thirds of the total settlement or award figure and LMB receiving one-third.      Rather than pursue separate settlements for each of the 587 individual claimants, however, LMB agreed with Nextel to settle the claims en masse. The agreement, known as the Dispute Resolution and Settlement Agreement (“DRSA”), created a dispute resolution process whereby (1) Nextel would interview each claimant, (2) a non-binding mediation of claims would be conducted, and (3) any claims left unresolved by the mediation would be referred to binding arbitration.      The DRSA provided that Nextel would pay LMB $2 million up front to persuade its clients to drop their pending lawsuits against Nextel and sign individual agreements to participate in the dispute resolution process.      The DRSA further provided that Nextel would pay another $1.5 million to the firm upon resolution of half of the claims and a final $2 million upon resolution of the remaining claims. However, the final payment came with a time limit: if LMB did not resolve all of the claims within forty-five weeks of the effective date of the DRSA, Nextel was permitted to deduct $50,000 each month until all claims were resolved.      Finally, the DRSA provided that Nextel would retain LMB as a consultant for a period of two years following the resolution of all claims for a fee of $2 million, bringing the total value of the DRSA for the firm to $7.5 million.   ...   COURT DECISION:   (.pdf)   (.html)


   Mar 4, 2015  ...  C.A.A.F. :  United States v. McFadden  ...   AIRMAN FIRST CLASS WAS CHARGED WITH CONSPIRACY TO DESERT HER UNIT, TWO SPECIFICATIONS OF DESERTION, AND MAKING A FALSE OFFICIAL STATEMENT.   ...   To each of the two desertion specifications, Appellant pled not guilty but guilty of absence without leave.      She pled not guilty to the other charges. A general court-martial composed of members convicted Appellant of absence without leave, desertion, conspiracy, and making a false official statement. Court members sentenced her to a bad- conduct discharge, confinement for twenty-four months, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, a fine of $1,650, and additional confinement of thirty-six days if she failed to pay the fine.      Except for the contingent confinement, the convening authority approved the adjudged sentence.   ...     ...  After Appellant testified on her own behalf, a court member asked if she was aware of the concept of lying by omission.     We granted Appellant’s petition for review to consider whether the military judge abused his discretion by failing to grant a mistrial. COURT DECISION:   (.pdf)   (.html)


   Mar 3, 2015  ...  MSPB:  Silberman v. Treasury  ...   MAKING FALSE STATEMENTS; MISUSE OF GOVERNMENT PROPERTY; INAPPROPRIATELY DISCLOSING TAXPAYER INFO   ...   Effective September 5, 2012, the agency suspended the appellant for 15 days from her GS-11 Revenue Agent position within the Internal Revenue Service (IRS) based on the following three charges: (1)making false statements in matters of official interest (22 specifications); (2)misuse of government property (22 specifications); and (3) inappropriately disclosing taxpayer information to coworkers (1 specification).      The first two charges were based on the appellant’s conduct over an approximately 1-year time period during which she allegedly used her government-owned computer during work hours for nonwork-related activity and failed to properly account for these nonwork time periods on her Examiner’s Time Input Documents (EITD).      The third charge was based on an incident where the appellant allegedly disclosed taxpayer information to two coworkers who did not have a need to know such information.      The appellant appealed her suspension to the Board and requested a hearing.   ...   MSPB DECISION:   (.pdf)   (.html)


   Mar 3, 2015  ...  MSPB:  Wilson v. Justice   ...   AFTER HER "FAKE SEXUAL ASSULT" REPORT DIDN'T WORK, SHE DECIDED TO TRY OUT THE OLD "FAKE CONSTRUCTIVE DISCHARGE" ROUTINE.   ...   The appellant was a Correctional Officer with the Bureau of Prisons at the Federal Correctional Institution in Bastrop, Texas.     On April 18, 2000, the appellant reported that she had been sexually assaulted by a co-worker the previous day.     The agency placed the alleged perpetrator on home duty pending an investigation of the incident by the agency’s Office of Internal Affairs (OIA).     As a result of its investigation, OIA determined that the appellant’s allegations could not be sustained, and the alleged perpetrator returned to duty in June 2000.     The appellant was absent from work following the incident, and she began seeing a physician in May 2000, who recommended that the appellant not work through June 4, 2000.     ...     December 10, 2003, she applied for disability retirement, citing, inter alia, PTSD and recurrence of PTSD as the bases for her request.     The Office of Personnel Management (OPM) approved the appellant’s application for disability retirement on August 4, 2004, and her retirement became effective on August 8, 2004.     On July 26, 2011, the appellant filed an appeal with the Board, alleging that she was forced to retire due in part to the agency’s failure to accommodate her disabilities, sexual harassment, and retaliation for her prior equal employment opportunity (EEO) activity.  ...   MSPB DECISION:   (.pdf)   (.html)


   Mar 2, 2015  ...   MSPB:  Thome v. Homeland  ...   MY REMOVAL FOR “UNAVAILABILITY FOR FULL PERFORMANCE OF DUTIES.” WAS REALLY "NEW MOMMY" DISCRIMINATION.   ...   By notice dated February 22, 2012, the Port Director (who was also the proposing official) proposed to remove the appellant on a charge of “Unavailability for Full Performance of Customs and Border Protection Officer Duties.”      The proposal letter described the proposed removal as a “non-disciplinary adverse action.”      By letter dated April 2, 2012, the DFO for the El Paso Field Office (who also served as the deciding official) notified the appellant of her decision to remove her effective the following day.      The deciding official sustained the charge, noting that there was no dispute regarding the appellant’s “fifteen month unavailability for full performance of [her] duties.”      The appellant filed an appeal with the Board      In addition to contesting the charge and penalty, the appellant alleged that the agency had violated her constitutional due process rights, unlawfully imposed discipline for taking FMLA leave or other approved leave, and engaged in unlawful discrimination based on sex and disability, as well as retaliation for protected equal employment opportunity activity.   ...   MSPB DECISION:   (.pdf)   (.html)


   Mar 2, 2015  ...  MSPB:  Bills v. AirForce  ...   SHE BESTED THOSE GOOD OLD BOYS IN HER REMOVAL CASE, NOW SHE WANTS THEM TO "BOW DOWN" !   ...   On December 12, 2012, the agency issued a final decision sustaining the proposed removal, for: (1) making a false accusation; (2) engaging in unprofessional conduct; and (3) carelessness in the performance of her duties.      The appellant timely appealed her removal to the Board. On August 1, 2013, the administrative judge issued an initial decision reversing the removal, finding that the agency failed to prove any of its charges by preponderant evidence.      The administrative judge ordered the agency to cancel the removal action, retroactively restore the appellant to her position, and pay her back pay with interest and benefits in accordance with the regulations of the Office of Personnel Management (OPM).       On December 13, 2013, the appellant timely filed a petition for enforcement (Failure to Comply).   ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 27, 2015  ...  MSPB:  Kraft v. Transportation (FAA)  ...   FAA HAD NO LEGAL "NEXUS" BASIS TO FIRE ME FOR SOLICITING A FAKE 14 YEAR OLD FOR SEX   ...   Prior to his removal, the appellant was employed as an Air Traffic Control Specialist in Austin, Texas. The Air Traffic Manager at that facility proposed the appellant’s removal on a charge of criminal conduct.      As described in the proposal notice, the appellant on two occasions engaged in online communication with individuals he believed were 13- or 14-year-old girls, which included not only sexually explicit conversation, but also his engaging in lewd conduct via webcam.      On the second occasion, when he believed he also was communicating with the girl’s mother, the appellant made arrangements to meet both of them.      He was arrested when he arrived at the designated location, later pleaded guilty to Attempted Online Solicitation of a Minor under the Texas Penal Code, and was sentenced to 10 years deferred adjudication, 90 days in the county jail, and a fine.      The Air Traffic Manager cited the agency’s Standards of Conduct, which state that employees are expected to conduct themselves in a manner that will not adversely reflect on the agency’s ability to discharge its mission, cause embarrassment to the agency, or cause the public or managers to question the employee’s reliability, judgment, and trustworthiness.      He stated that the appellant’s criminal conduct was serious and cast grave doubt on his judgment, trustworthiness, integrity, and reliability.           The appellant challenges that nexus was established between his off-duty misconduct and the efficiency of the service and that the removal penalty was reasonable.  ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 26, 2015  ...   DEAR WHITE HOUSE: They All Laughed And Bet That You Wouldn't Have The Balls To Veto The KeyStone Pipeline Bill. I Feared The Same Too. They Will Show You More Respect Now: Since They Know That You're Ballsy. Keep It Up.


   Feb 24, 2015  ...  C.A.A.F.:  United States v. Gutierrez  ...   APPELLANT WAS CONVICTED FOR AGGRAVATED ASSAULT STEMMING FROM HIS FAILURE TO DISCLOSE THAT HE HAD HUMAN IMMUNODEFICIENCY VIRUS (HIV) PRIOR TO ENGAGING IN OTHERWISE CONSENSUAL SEXUAL ACTIVITY WITH MULTIPLE PARTNERS.   ...   Appellant was convicted of aggravated assault encompassing unprotected oral sex, protected vaginal sex, and unprotected vaginal sex.  ...   In the case of protected vaginal sex, we have previously concluded that “[t]he fact that a male uses a condom during sexual intercourse is not a defense to [aggravated] assault. ”     Contrary to his pleas, a military judge sitting as a general court-martial convicted Appellant of offenses including aggravated assault, in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928 (2012). He was sentenced to confinement for eight years, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  ...  Here, he appeals the decision.    COURT DECISION:   (.pdf)   (.html)


   Feb 24, 2015  ...  MSPB:  Bowman v. SBA  ...   SMALL BUSINESS ADMINISTRATION REMOVED THE APPELLANT FROM HIS SUPERVISORY CONSTRUCTION ANALYST POSITION BASED ON CHARGES OF EXCESSIVE UNAUTHORIZED LEAVE AND FAILURE TO FOLLOW PROPER LEAVE REQUESTING PROCEDURES.   ...   The agency petitioned for review of an initial decision that mitigated its removal action to a 30-day suspension without pay.   ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 23, 2015  ...  4th Cir:  EEOC v. Freeman  ...   THE COURTS ARE GETTING SICK AND DAMNED TIRED OF EEOC'S CONTINUED GROSS INCOMPETENCE ... HERE, ONCE AGAIN, THE COURT SMACKS DOWN EEOC FOR "SLIPSHOD WORK, FAULTY ANALYSIS, AND STATISTICAL SLEIGHT OF HAND".  ...  Freeman is a provider of integrated services for expositions, conventions, and corporate events, with offices in major cities throughout the United States.    In 2001, Freeman began conducting background checks on its job applicants, which the Equal Employment Opportunity Commission (“EEOC”) alleges had an unlawful disparate impact on black and male job applicants.      The case proceeded to discovery. The EEOC produced a report by Kevin Murphy, an industrial/organizational psychologist, and one by Beth Huebner, an associate professor of criminology, which purported to replicate Murphy’s results.      Most troubling, the district court found a “mind-boggling” number of errors and unexplained discrepancies in Murphy’s database.      For example, looking at a subset of 41 individuals for whom the EEOC is seeking back pay, 29 had at least one error or omission. Seven were missing from the database altogether. Seven were listed in the database without a race code, “one was incorrectly coded as passing the criminal background check, two were incorrectly coded as failing the criminal background check, one ha[d] an incorrect race code, five ha[d] incorrect gender codes, nine [we]re listed twice and double-counted in Murphy’s results, and three who failed the credit check [we]re not coded with a credit check result.” The EEOC claims these errors were present in the original data, a contention dispelled by comparing the information from the discovery materials to Murphy’s database. It was in fact Murphy who introduced these errors into his own analysis.   ...   The sheer number of mistakes and omissions in Murphy’s analysis renders it “outside the range where experts might reasonably differ.”   ...   COURT DECISION:   (.pdf)   (.html)


   Feb 23, 2015  ...  FedCir:  Kerner v. Interior  ...   AS A VETERAN, I FEEL THAT I SHOULD BE TREATED, NOT EQUAL, BUT BETTER THAN OTHER AMERICANS.  ...   In 2010, while Edward Kerner was an Evidence Custodian, GS-05, with the Department’s Fish and Wildlife Service, he applied for two vacancies within the Department: Wildlife Inspector, GS-09/11, and Wildlife Inspector, GS-11/11. Both positions were merit-promotion vacancies. Each required federal employee applicants to meet a time-in-grade requirement.      A federal civil service applicant must have completed at least fifty-two weeks of experience equivalent to GS-07 to be qualified for the GS - 09 position, and at least fifty-two weeks of experience equivalent to GS-09 to be qualified for the GS-11 position. 5 C.F.R. § 300.604. The vacancies also required one year of specialized experience in the federal civil service equivalent to GS-07 or GS-09, respectively. Mr. Kerner had no federal civil service experience at the GS-07 or GS-09 level and, therefore, did not meet the time-in-grade requirements. Accordingly, the Department determined that he did not qualify for either of the Wildlife Inspector vacancies.      Mr. Kerner now claims that the agency violated the Veterans Employment Opportunity Act (VEOA) by not crediting his military and non-federal service when determining whether he met the time-in-grade requirements.   ...   COURT DECISION:   (.pdf)   (.html)


   Feb 20, 2015  ...  DCDC:  Dick v. Holder (FBI)  ...   THIS IS THE TALE OF HOW "AGENT DICK" ROSE UP TO STICK IT TO HIS DISCRIMINATORY FBI MANAGERS.  ...   Plaintiff Michael G. Dick (“Agent Dick”), a Special Agent with the Federal Bureau of Investigation (“FBI”), brought this action against the United States Attorney General and FBI Director (collectively, “Defendants”) in their official capacities. His first amended complaint alleges that he suffered discrete acts of discrimination and a hostile work environment because of his disability, in violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., and because of his age, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. Agent Dick also claims that he suffered retaliation for his opposition to this alleged discrimination, in violation of both statutes. Defendants have moved to dismiss or for summary judgment on most of Agent Dick’s claims on the basis of failure to exhaust or failure to state a claim.   ...   COURT DECISION:   (.pdf)   (.html)


   Feb 20, 2015  ...  MSPB:  Dwight v.Lundy v. Homeland  ...   HERE, HOMELAND APPEALS THE MSPB DECISION THAT REVERSED HIS REMOVAL FOR THESE REASONS:   ...   The appellant worked as a Materials Handler Leader for the agency’s Federal Emergency Management Agency (FEMA) at a distribution center in Fort Worth, Texas.     In May 2010, the agency’s Office of Inspector General (OIG) began an investigation into allegations that another employee was stealing items from the distribution center for his personal use.     During the investigation, the employee informed the OIG that the appellant gave him permission to take items home from the distribution center for personal use including large plastic bags filled with rolls of toilet paper.     The OIG interviewed the appellant who provided a written sworn statement admitting to removing items.     The appellant allowed a search of his residence and the OIG discovered evidence, including tissue, soap, hand sanitizer, toilet paper and paper towels.     The OIG completed its investigation in 2011, and provided its findings to FEMA.         Also in 2010, an anonymous note was left under a door of the information technology server room alleging that two employees of the center, including the appellant, were accessing explicit web sites from their work computers.     The agency conducted an investigation into this allegation during 2010 and 2011.         In March 2012, the agency placed the appellant on administrative leave. On April 1, 2013, the agency proposed to remove the appellant based on three charges: (1) unauthorized removal of government property—ten specifications; (2) unauthorized possession of government property—nine specifications; and (3) misuse of government computer—two specifications. Accompanying the notice of proposed removal was the proposing official’s Douglas factors worksheet which identified three aggravating factors for penalty consideration: the nature and seriousness of the offense, the effect of the offense on the supervisor’s confidence in the appellant’s ability to perform assigned duties, and whether the appellant was on notice of the rules that were violated.         The appellant’s union submitted a written reply on his behalf. The deciding official sustained seven specifications for charge one, five specifications for charge two, and both specifications for charge three.     He reviewed the Douglas factors in an accompanying worksheet and identified seven of them to be aggravating factors in his decision.     He directed the appellant’s removal effective August 8, 2013, and advised him of his Board appeal rights.     The appellant initiated a Board appeal challenging his removal.   ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 19, 2015  ...  FedCir:  Herring v. MSPB  ...   FED CIR SMACKS DOWN MSPB FOR ABUSING AUTHORITY IN RETIREMENT TIMELINESS DECISION  ...   In March 2010, Ms. Herring was removed from her position as a cytotechnologist with the Department of the Navy. After her removal, she filed an application for disability retirement benefits with the Office of Personnel Management (“OPM”), which was denied.     Ms. Herring received the relevant OPM denial letter on July 14, 2012. Under the applicable regulations, the due date to file an appeal of the OPM denial was August 13, 2012.     However, because her attorney’s law office negligently failed to transmit to her attorney the documents submitted by Ms. Herring (while confirming to Ms. Herring that the neces- sary documents and payment had been received)     Ms. Herring did not file the appeal until August 23, 2012. Thereafter, an administrative judge dismissed the appeal as untimely filed, and the MSPB affirmed.     Ms. Herring timely appealed. This court has jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).  ...   COURT DECISION:   (.pdf)   (.html)


   Feb 17, 2015  ...  MSPB:  Rosario-Fabregas  v. Army  ...   EMPLOYEE RELATIONS SPECIALISTS: PLEASE READ AND SAVE THIS CONSTRUCTIVE SUSPENSION CASE.   ...   Although various fact patterns may give rise to an appealable constructive suspension, all constructive suspension claims are premised on the proposition that an absence that appears to be voluntary actually is not.      To demonstrate that the absence was, in part, not voluntary, and is an actionable constructive suspension, an appellant must show that: (1) the employee lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived the employee of that choice. Romero v. U.S. Postal Service, 121 M.S.P.R. 606, 8 (2014). Assuming that the jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these two things is sufficient to establish Board jurisdiction.      This analysis extends to situations in which the agency prevented the appellant’s return to work after an initially voluntary leave of absence.   ...  MSPB DECISION:   (.pdf)   (.html)


Dear, White House:
Please, take time from your vacation(s) and help the people in New England. On several occasions recently, I've heard numerous New England officials indicate that they don't know what to do with the massive amounts of snow that have been piling up. For weeks, they warned about the possibility of heavy snow collapsing homes. Now homes are starting to collapse. Don't wait for the looming disaster, on your watch. Stop being a tin ear. ... Show some leadership.  THE TIME TO ACT IS NOW !


   Feb 13, 2015  ...  MSPB:  Reid v. VA  ...   MY RESIGNATION WAS A CONSTRUCTIVE DISCHARGE CAUSED BY RACE DISCRIMINATION AND REPRISAL FOR MY PRIOR EEO ACTIVITY.   ...   Effective May 21, 2010, the appellant resigned from his position as a GS-05 Secretary with the agency’s Veterans Affairs Medical Center (VAMC) in Indianapolis, Indiana.      On June 8, 2010, the appellant filed an equal employment opportunity (EEO) complaint with the agency, alleging, inter alia, that his resignation was a constructive discharge caused by race discrimination and reprisal for his prior EEO activity.      On July 12, 2011, the agency issued a final decision finding that the appellant’s resignation was voluntary and that the evidence failed to substantiate his allegations of discrimination and reprisal.      On October 24, 2014, the appellant filed an appeal with the Board and requested a hearing, alleging that his resignation was involuntary.   ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 13, 2015  ...  C.A.A.F.:  U.S. v. Castillo  ...   I OBJECT TO THIS PANEL MEMBER WHO FOUND ME GUILTY OF RAPE AND ASSAULT  ...   Appellant was charged with raping and assaulting Specialist CC while stationed in Korea. Following individual voir dire, trial defense counsel challenged several panel members on the basis of actual and implied bias.     The military judge granted the defense’s challenge for cause against a panel member whose wife had been the victim of sexual assault, but denied the other challenges. This appeal centers on the defense’s challenge for cause against Lieutenant Colonel (LTC) DS.     During voir dire, LTC DS testified that he had been a victim of sexual assault as a child “twenty, almost thirty years ago.” He testified that the assault would not impact his ability to judge the case, because he did not view the case on trial “as the same issue at all.” He also testified that he was acquainted with the trial counsel.   ...   COURT DECISION:   (.pdf)   (.html)


   Feb 13, 2015  ...  N.M.C.C.A.:  U.S. v. Pearce  ...   CONVICTED OF ATTEMPTING TO HAVE SEXUAL INTERCOURSE WITH A WOMAN NOT HIS WIFE -and- SODOMY.  ...   Pursuant to his pleas, the military judge found the appellant guilty of one specification of failure to go, one specification of violating a lawful general order, one specification of conduct unbecoming an officer and a gentleman, two specifications of fraternization, one specification of solicitation to disobey a lawful general order, two specifications of breaking restriction, and one specification of solicitation to alter an official document.     The members then convicted the appellant, contrary to his pleas, of one specification of attempting to have sexual intercourse with a woman not his wife, one specification of violating a lawful general order, two specifications of sodomy, one specification of adultery, and two specifications of solicitation to commit an offense.  ...   COURT DECISION:   (.pdf)   (.html)


   Feb 12, 2015  ...  MSPB:  Patel v. Postal  ...   THE APPELLANT WAS REMOVED FROM HIS POSITION AS POSTMASTER   ...   The appellant was removed from his position as Postmaster of Flemington, New Jersey, EAS-21, effective July 19, 2013.     He had been serving an extended detail as Officer-in-Charge, EAS-22, at the Edison, New Jersey Post Office at the time of his removal, and the conduct for which he was removed occurred in Edison.     The agency charged him with Unacceptable Conduct, a single narrative charge that described the results of investigations of incidents of harassment involving three women under his supervision, X.C., R.G., and K.S.     The women claimed that the appellant touched them inappropriately at various times, misconduct that he categorically denied.     He appealed, and after a 2-day hearing, the administrative judge issued an initial decision sustaining the charge and relying on the testimony of the three complainants, whom she found to be credible.     She also rejected the appellant’s assertion that the notice of proposed removal was so vague as to violate his right to due process. ID at     On review, the appellant argues that the agency’s decision letter relied upon a superseded version of the notice of proposed removal.   ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 11, 2015  ...  PANEL COULD SCRAP ADVICE ON DIETARY CHOLESTEROL         Longstanding advice about avoiding cholesterol for heart health may be on the way out.     In a draft report issued in December, an influential federal panel — the Dietary Guidelines Advisory Committee — scrapped longstanding guidelines about avoiding high-cholesterol food. In the draft, cholesterol — found in foods such as egg yolks — is no longer listed as a "nutrient of concern."     ... Steven Nissen, chairman of cardiovascular medicine at the famed Cleveland Clinic. "We got the dietary guidelines wrong. They've been wrong for decades."     He noted that only 20% of a person's blood cholesterol — the levels measured with standard cholesterol tests — comes from diet. The rest comes from genes, he said.     "We told people not to eat eggs. It was never based on good science," Nissen said.     Advice to avoid foods high in fat and cholesterol led many Americans to switch to foods high in sugar and carbohydrates, which often had more calories. "We got fatter and fatter," Nissen says. "We got more and more diabetes."     Recent studies even suggest that longtime advice on saturated fat and salt may be wrong, Nissen says.    (usatoday.com)


   Feb 11, 2015  ...  MSPB:  Frederick  v. Homeland  ...   HEY WAIT A MINUTE, YOU CAN'T SUSPEND ME TWICE FOR THE SAME INCIDENT !   ...   The appellant serves as a Supervisory Immigration Enforcement Agent with the U.S. Immigration and Customs Enforcement.     Shortly after the agency imposed the appellant’s first indefinite suspension, the Board issued its decision in Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, ¶¶ 13, 28 (2010), in which it held that an internal agency investigation into alleged employee wrongdoing does not constitute cause for imposing an indefinite suspension under chapter 75.     Thereafter, the agency issued the appellant a second notice of proposed indefinite suspension, this time citing its reasonable belief that the appellant had committed a crime for which a sentence of imprisonment could be imposed.     Similar to its prior notice and letter of decision imposing the first indefinite suspension, the agency again cited the issuance of the warrant for the appellant’s arrest on charges that he had violated Florida’s wiretap laws as the supporting specification for the second indefinite suspension.     In its second letter of decision, the agency explained that the appellant would be indefinitely suspended “based solely on the charge and specification outlined in the December 13th , 2010 proposal and no longer based upon the charge and specification sustained in the decision issued . . . on June 17th , 2010.” Id. On April 2, 2012, the agency returned the appellant to work after the criminal charges against him were dismissed.    The appellant argues that the agency subjected him to double punishment by imposing two indefinite suspensions based on the same incident.   ...  MSPB DECISION:   (.pdf)   (.html)


   Feb 10, 2015  ...  MSPB:  Agoranos v. DOJ (DEA)  ...   HOW THE HELL LONG DOES IT TAKE DEA TO DEAL WITH A POOR PERFORMING "WHITE MALE" EMPLOYEE ?   ...   Agoranos served as an Intelligence Research Specialist for the DEA’s Chicago Field Division starting on November 4, 2001. Agoranos began working under the supervision of Group Supervisor Lynette Georgevich. His initial job performance ratings were “acceptable,” but by 2003 his evaluation identified a need for performance improvement and coworkers had entered complaints regarding the quality of Agoranos’s work product and interpersonal skills. Georgevich consequently issued a written notice on January 27, 2004, informing Agoranos that he needed to improve his work product. In response, Agoranos filed a grievance against Georgevich.     Although Agoranos’s interactions with coworkers continued to be strained in 2005, Georgevich again gave Agoranos an acceptable rating for his job performance. In 2006, Agoranos’s performance declined once more. After another complaint by Agoranos against Georgevich, Georgevich felt she could no longer effectively manage Agoranos, and the DEA reassigned Agoranos to Field Intelligence Manager Patrick O’Dea in October 2006. Agoranos’s performance continued to wane, meriting a “less than acceptable level” by 2007. Special Agent in Charge Gary Olenkiewicz also “strongly recommended” that Agoranos seek a psychological exam in June 2007.     Because of the low performance rating, O’Dea issued a performance expectations memorandum outlining Agoranos’s job expectations, but Agoranos failed to meet those expectations due to, inter alia, poor writing, inadequate reports, and inaccurate information. O’Dea thus denied Agoranos a within-grade pay increase in 2008 because of his inability to perform at acceptable levels, and gave him an “unacceptable” performance rating on his 2008 evaluation. From July 2007 to June 2009, Agoranos also requested reassignment to vacant Intelligence Research Specialist positions thirty-one times—the DEA rejected all of his requests.     After his 2008 evaluation, the DEA placed Agoranos on a performance improvement plan (“PIP”) under the supervision of Group Supervisor Kevin Quinlan. Quinlan met with Agoranos weekly, but Agoranos still failed to consistently correct writing deficiencies, such as reporting inaccuracies, grammar, and formatting. Based on the PIP results, on May 6, 2009, O’Dea recommended that Agoranos be removed from his position as an Intelligence Research Specialist. The DEA issued a notice of proposed removal on January 7, 2010, requesting Agoranos’s removal due to his alleged failure to achieve acceptable performance in Critical Element 1 – Technical Competence/Results and Critical Element 2 – Communications.     Special Agent James Reed acted as the deciding official in Agoranos’s removal.   ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 10, 2015  ...  MSPB:  McCray v. VA  ...   SHE WAS SUSPENDED 21 DAYS: FOR (1) FAILURE TO FOLLOW SUPERVISOR INSTRUCTIONS ; AND (2) FAILURE TO ANSWER AND RESPOND TO TELEPHONE CALLS AND/OR EMAILS FROM CUSTOMERS.   ...   The appellant filed an appeal of the agency’s action suspending her for 21 calendar days from her position as a GS-07 Purchasing Agent within the agency’s Prosthetics Treatment Center.     The agency based its action on the following two charges: (1) failure to follow supervisor instructions (two specifications); and (2) failure to answer and respond to telephone calls and/or emails from customers (two specifications).     On appeal, the administrative judge sustained the first charge, finding that the agency proved both specifications.     Regarding the second charge, the administrative judge did not sustain the first specification, finding that the agency did not prove that the appellant failed to answer telephone calls on December 9, 2013.     The administrative judge did, however, sustain the second specification, finding that the agency proved by preponderant evidence that the appellant failed to answer emails and telephone calls from a customer on January 31, 2014, and, thus, sustained the second charge.     The administrative judge concluded that the penalty of a 21-day suspension was not excessive and, thus, affirmed the agency’s action.     On review, the appellant accuses the administrative judge of bias.  ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 10, 2015  ...  MSPB:  Fraser v. Commerce  ...   WHEN NO MEATY CASES EXIST, JUST GO WITH A "TIMELINESS CASE".   ...   The appellant was an Air Conditioning Equipment Mechanic Helper at the agency’s National Institute of Standards and Technology.   On June 17, 2013, the agency issued a letter proposing his removal due to medical inability to perform an essential function of his position. The letter was mailed to the appellant’s then-residence of record. On August 7, 2013, the appellant responded orally.     The agency issued a letter of decision on September 27, 2013, upholding the appellant’s removal effective that day.     The removal letter provided the appellant with notice of his right to file an appeal with the Board within 30 days of his receipt of the letter or the effective date of his removal, whichever was later. The letter of decision was mailed to the appellant’s address of record and was received by someone other than the appellant on September 30, 2013.     On February 6, 2014, the appellant filed this appeal of his removal.     The agency filed a motion to dismiss the appeal as untimely, to which the appellant responded.     The administrative judge issued an initial decision dismissing the appeal as untimely without holding the requested hearing.     The appellant has submitted a timely petition for review.  ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 05, 2015  ...  MSPB:  Stovall v. Defense  ...   LCA:    A TEACHABLE MOMENT FOR EMPLOYEE RELATIONS SPECIALISTS  /  AGENCY COUNSEL
  ...   THE ADMINISTRATIVE JUDGE FAILED TO GIVE THE APPELLANT PROPER BURGESS NOTICE. The Board lacks jurisdiction over an action taken pursuant to a LCA in which an appellant waives his right to appeal to the Board unless the appellant establishes that the appeal rights waiver should not be enforced. Because this issue raises a question of Board jurisdiction, the administrative judge must apprise the appellant of what he must submit to establish that the Board has jurisdiction over his appeal. Trotta, 73 M.S.P.R. at 11 (citing Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985)).     Here, the administrative judge’s acknowledgment order did not advise the appellant of the showing he was required to make to establish Board jurisdiction, i.e., that, in light of the waiver of appeal rights contained in the LCA, he was required to show that the waiver should not act as a bar to the Board’s adjudication of his appeal because: (1) he complied with the LCA; (2) the agency materially breached the LCA or acted in bad faith; (3) he did not voluntarily enter into the LCA; or (4) the LCA resulted from fraud or mutual mistake. The administrative judge should also have made the appellant aware that he was required “to make nonfrivolous allegation[s] . . . supported by some factual evidence, and that the production of such evidence would be necessary for him to show entitlement to a hearing on his appeal.     Thus, the administrative judge did not provide the appellant proper Burgess notice.  ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 05, 2015  ...  MSPB:  Ortolano v. SSA  ...   SSA APPEALS THE MSPB DECISION THAT REVERSED HER REMOVAL FOR "EXCESSIVE ABSENCE"   ...   The agency removed the appellant from her position as a Service Representative, GS-0962-08, in the East Village District Office, New York, New York, based on a charge of excessive absence, alleging that she worked only 482.25 hours between March 12, 2009, and August 31, 2012.     This appeal followed. The appellant raised an affirmative defense of disability discrimination, claiming that she suffered from a compensable back injury that caused her ongoing pain and mobility issues. While the appeal was pending, the Office of Personnel Management (OPM) approved her application for disability retirement.     After a hearing, the administrative judge determined that the agency proved its charge but that the appellant failed to establish her affirmative defense, concluding that she did not meet the definition of a qualified individual with a disability.     The administrative judge nevertheless reversed the agency’s removal action on the ground that the agency had violated her right to due process.     Specifically, the administrative judge determined that the deciding official, an Assistant District Manager, lacked the authority to reassign the appellant, that she was the decisionmaker in name only, and that the District Manager and the Area Manager made the actual decision to remove her.     The agency has filed a petition for review of the initial decision, which reversed its removal of the appellant.  ...   MSPB DECISION:   (.pdf)   (.html)


   Feb 03, 2015  ...  CAC:  Davis v. Unemployment  ...   DID THEY VIOLATE HIS FREEDOM OF SPEECH RIGHTS -or- DID HIS MOUTH WRITE A CHECK ... ?  ...   The plaintiff was an employed driver for the defendant Teddy’s Transportation System, Inc. (Teddy’s), from July 21, 2010, until his termination on January 7, 2012. After a formal complaint was filed by a coworker, the plaintiff was disciplined for making racially inappropriate comments. John Martinez, a manager at Teddy’s, met with the plaintiff on January 2, 2012, and warned him that his job was in jeopardy due to his inappropriate actions.      Two days later, on January 4, 2012, Martinez e-mailed the plaintiff, as well as other employees, and informed them that they were scheduled to attend a mandatory monthly harassment class on January 18, 2012.      Martinez informed the employees to notify him in the event that they had any ‘‘issues.’’      The plaintiff responded to the e-mail as follows: ‘‘Yes I do have issues. I don’t harass anyone and I don’t feel like I’m being [harassed]. In the course of working daily or nightly [sometimes] people have differences and express themselves differently, [does] that mean they need therapy?      I have no problems with the customers or being on time and taking them to their location [without] incident what more you want, if [that’s] not good enough I suggest you give me a pink slip I’ll walk.’’      The plaintiff’s employment was terminated on January 7, 2012, and he applied to receive unemployment benefits.      On January 30, 2012, the defendant Administrator of the Unemployment Compensation Act ruled that the plaintiff was eligible to receive compensation benefits effective January 8, 2012. Teddy’s thereafter filed a timely appeal.  ...   COURT DECISION:   (.pdf)   (.html)


   Jan 29, 2015  ...  CCA:  People v. Espinoza  ...   WHY DID THEY FIND THIS JUDGE GUILTY OF ACTIONS RESULTING IN REVERSAL OF THE JURY'S CONVICTION ?  ...   The jury found defendant guilty on six counts: Two counts of possession of a firearm by a felon; possession of morphine; possession of marijuana; possession of ammunition by a felon; and possession of diazepam without a prescription.     The trial court sentenced defendant to an aggregate term of two years eight months.   ...   We hold the trial court erred by proceeding with trial in the absence of defendant and defense counsel because defendant did not knowingly waive several fundamental trial rights. We hold that this error was structural, requiring automatic reversal. We further conclude the trial court erred in denying defendant’s motion for a one-day continuance after granting his Faretta motion––a separate ground for reversal.     Finally, we conclude defendant’s Pitchess claim is without merit. We will reverse the judgment of conviction.  ...   COURT DECISION:   (.pdf)   (.html)


   Jan 29, 2015  ...  SCOL:  In Re: John D. Conry  ...  HOW BAD CAN A BAD ASSED ATTORNEY BE?   The Whitney National Bank Matter; The Watson Matter;The First Chase Bank Matter;The Ardoin Matter;The Second Chase Bank Matter;The Melendez Matter;The Moses Matter;The Wells Matter;The Joseph Matter;The Haydel Matter;The Butler Matter;The Froeba Matter;The Parker Matter;The Brown Matter.  ...  This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John D. Conry, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public.  ...  COURT DECISION:   (.pdf)   (.html)


   Jan 28, 2015  ...  MSPB:  Freeze v. Navy  ...   HAS THE US MILITARY BECOME THE MOST UNDERHANDED, ABUSIVE, DISHONEST, CORRUPT AND UN-AMERICAN ORGANIZATION IN UNITED STATES ???   ...   The appellant held the position of Intelligence Specialist with the agency’s Naval Special Warfare Development Group.     The position required him to obtain and maintain a Top Secret clearance with access to Sensitive Compartmented Information (SCI).     By memorandum dated June 18, 2012, the agency suspended the appellant’s security clearance pending an investigation by the Department of the Navy Central Adjudication Facility to determine the final status of his clearance.     On June 19, 2012, the agency proposed to indefinitely suspend the appellant without pay based on the suspension of his Top Secret security clearance.     The appellant responded orally and in writing, and by letter dated August 29, 2012, which the agency amended on September 4, 2012, the deciding official notified the appellant that he was suspended without pay, effective September 5, 2012.     The deciding official also informed the appellant that the suspension would remain in effect until the completion and disposition of all issues regarding his security clearance and through the notice period of any subsequent adverse action in the event that a final determination was made to revoke his security clearance.  ...   MSPB DECISION:   (.pdf)   (.html)


   Jan 26, 2015  ...  7th Cir:  Association Of Administrative (Law Judges) v. Colvin  ...   AN INTERESTING PEAK BEHIND THE CURTAIN OF SSA's FRUSTRATION WITH ATTEMPTS TO IMPROVE PERFORMANCE STANDARDS FOR DISABILITY JUDGES  ...   Association Of Administrative Law Judges, together with three administrative law judges employed by the Social Security Administration, are the plaintiffs in this suit.    ...   The plaintiffs contend that, by requiring its administrative law judges to decide at least 500 social security disability cases a year the Administration has interfered with the administrative law judges’ decisional independence.    The plaintiffs argue that because it takes less time for an administrative law judge to award social security disability benefits than to deny benefits, because an award is not judicially appealable and therefore the administrative law judge doesn’t have to be as careful in his analysis of the disability claim (doesn’t, in short, have to try to make his decision appeal proof), the effect of the quota (as we’ll call the “goal,” thus giving the plaintiffs the benefit of the doubt) is to induce administrative law judges to award more benefits. ...  DECISION:   (.pdf)   (.html)


   Jan 26, 2015  ...  SCI:  Iowa v. Love  ...   FLAWED JUSTICE?   SHE HIT HIM FIRST, BUT HE WAS CHARGED WITH ATTEMPTED MURDER. SHE WAS NOT CHARGED.  ...   They returned to Pruett’s house in Council Bluffs at about 10:30 p.m. and resumed drinking. They had sex. When Love tried to initiate sex again, Pruett refused. Love got upset and threw a weight at a living room wall, shattering a mirror. Frightened, Pruett ran into the bedroom and locked the door. Love pounded on the door, threatening to break the windows out of her car if she did not let him in.     Pruett relented. When she opened the door, Love took a swing at her and missed. Love’s errant blow punched a hole in the wall. Pruett ran to the bed, and when Love came after her, she grabbed a ceramic coffee mug and threw it at him, hitting Love in the forehead and cutting his scalp. Love then punched and kicked Pruett, bit her, hit her with the legs of a broken TV tray, burned her with a cigarette, and poured fingernail polish remover on her wounds.     Love was charged with Kidnapping In The First Degree, Attempted Murder, Willful Injury Causing Bodily Injury and Assault With Intent To Inflict Serious Injury.  ...  COURT DECISION:   (.pdf)   (.html)


   Jan 22, 2015  ...  SUPREME COURT:  Homeland v. MacLean  ...   SUPREME COURT SAYS TSA SHOULD NOT HAVE FIRED THIS FEDERAL AIR MARSHAL FOR REVEALING AN UNSAFE MANAGEMENT DECISION  ...   Robert J. MacLean became a federal air marshal for the TSA in 2001.     ..............     MacLean contacted an MSNBC reporter who published a story about the TSA’s decision, titled “Air Marshals pulled from key flights.”     The story reported that air marshals would “no longer be covering cross-country or international flights” because the agency did not want them “to incur the expense of staying overnight in hotels.” Ibid. The story also reported that the cancellations were “particularly disturbing to some” because they “coincide[d] with a new high-level hijacking threat issued by the Department of Homeland Security.”     After MSNBC published the story, several Members of Congress criticized the cancellations. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights.     At first, the TSA did not know that MacLean was the source of the disclosure. In September 2004, however, MacLean appeared on NBC Nightly News to criticize the TSA’s dress code for air marshals, which he believed made them too easy to identify. Although MacLean appeared in disguise, several co-workers recognized his voice, and the TSA began investigating the appearance.     During that investigation, MacLean admitted that he had disclosed the text message back in 2003. Consequently, in April 2006, the TSA fired MacLean for disclosing sensitive security information without authorization.   ...   COURT DECISION:   (.pdf)   (.html)


   Jan 20, 2015  ...  MSPB:  Sanders v. Homeland  ...   THIS IS A NICE AND MEATY PERFORMANCE / MEDICAL (INABILITY TO PERFORM) CASE   ...   The appellant was a Customs and Border Protection Officer (CBPO). Following an incident at work on August 3, 2011, the agency rescinded the appellant’s authority to carry a firearm and ordered him to undergo physical and psychiatric fitness-for-duty evaluations.     The appellant was examined by Dr. Brian Skop, who is certified in general and forensic psychiatry.     Dr. Skop conducted a general medical and mental health history with the appellant and asked him questions about the events he believed precipitated the fitness-for-duty evaluation.     Dr. Skop observed the appellant’s behavior through cognitive testing and conducted psychological testing using the Minnesota Multiphasic Personality Inventory (MMPI) 2, a standard psychological test that looks for significant mental health issues and personality styles.     Dr. Skop concluded that the appellant was unable to work in a stressful law enforcement environment and that he was not fit for duty.     Dr. Paul Prunier, a consulting psychiatrist for the agency, reviewed Dr. Skop’s report and its supporting medical documentation and several memoranda and emails concerning the appellant’s behavior.     Dr. Prunier, who also has significant experience assessing agency employees, reached the same conclusion as Dr. Skop—that the appellant was not fit for duty.     The Homeland proposed the appellant’s removal based on a charge of inability to perform the essential duties of his position, and a decision was issued on June 4, 2012, sustaining the removal           Homeland has petitioned for review of an initial decision that reversed its action removing the appellant for inability to perform the essential duties of his position.  ...   MSPB DECISION:   (.pdf)   (.html)


   Jan 13, 2015  ...  COFC:  Jordan v. US  ...   FEMALE "VICTIM" WITH LITTLE SENIORITY, WANTS SAME PAY AS HER MORE SENIOR MALE CO-WORKERS  ...   This action was brought by plaintiff, Marlene Jordan, under the Equal Pay Act alleging gender-based discrimination in pay.     Ms. Jordan is employed by the Department of Transportation, Federal Aviation Administration (“FAA”), as a Management and Program Analyst; in “the FV-343-H Series, H-band pay grade” at the FAA’s Service Center, Administrative Service Group, in Renton, Washington.     She alleges in her complaint that one named male co-worker earned $20,679 more per year than she did as of February 2012, and that four additionally named male employees occupying positions as H-band Management and Program Analysts also earned a higher salary than she did.     She coupled these allegations with the claim that she and the five named male co-workers “perform equal work on jobs requiring equal skill, effort, and responsibility, and the jobs are performed under similar working conditions.”     Ms. Jordan avers that “[t]he differential rate of pay was not part of or occasioned by a seniority system, merit system[,] a system based on quantity or quality of production, or upon a legitimate ‘factor other than sex.’”   ...   COURT DECISION:     (.pdf)   (.html)


   Jan 12, 2015  ...  CAC:  State v. Ayala  ...   SOMEONE IS LYING ABOUT WHAT HAPPENED THAT NIGHT: THE POLICE -or- THE DRUNK(S)  ...   The defendant was arrested at the scene of the traffic stop for disrupting Buck’s motor vehicle investigation.     Thereafter, the defendant was placed in Phillips’ police cruiser and taken to the police station where he exited the cruiser in a secure garage. The surveillance video demonstrates that the defendant exited the police vehi- cle and walked into the police station where he was placed against a wall while the holding cell was readied for him.     None of the officers claimed that the defendant’s behavior from the time he entered the police cruiser until he entered the holding cell was disruptive or constituted interference.     The officers claimed that the defendant became disruptive and interfered when they attempted to remove his vest.     We conclude that the defendant’s alleged interference at the traffic stop on Hanover and Orange Streets and his alleged refusal to let the officers remove his vest at the police station comprised not one, but two distinct acts or transactions separated by time and location.     Because we conclude that the state failed to demon- strate good cause to permit the information to be amended at the conclusion of evidence, and because the second amended long form information alleged an additional crime, the court abused its discretion by per- mitting the amendment. We therefore reverse the judg- ment of conviction.     The judgment is reversed and the case is remanded for a new trial.  ...   COURT DECISION:     (pdf)   ...   (HTML)


   Jan 12, 2015  ...  CAC:  Taylor v. Commissioner  ...   DEVON TAYLOR BROKE THE DRUG DEALER'S HONOR CODE: DON'T KILL YOUR CUSTOMER  ...   Devon Taylor On August 27, 1993, ‘‘[Jay Murray, the victim,] and Ronald Wightwood, [Murray’s] companion, were attempting to purchase drugs [in Hartford]. They met Devon Taylor and indicated to him that they wanted cocaine.      Devon Taylor and the victim dis- cussed the purchase and the [petitioner] entered the victim’s pickup truck and drove it to the vicinity of a car wash on Albany Avenue.      Devon Taylor exited the truck and retrieved a plastic bag containing a white powdery substance, which he gave to the victim. After the victim sampled and rejected the substance, the [peti- tioner] drove the truck and its occupants to Milford Street.      Devon Taylor left the truck but returned sev- eral minutes later and shot the victim with a revolver through the driver’s side window of the truck. All of those events occurred in the presence of Wightwood. The police found $150 in the truck and also found the [petitioner’s] fingerprints on the exterior and interior of the truck.’’      The victim later died in a hospital. The petitioner was charged with murderand criminal possession of a firearm. In 1997, a jury found Devon Taylor guilty on both charges. The trial court, Barry, J., sentenced the petitioner to a total effective term of sixty years imprisonment.  ...   COURT DECISION:     (pdf)   ...   (HTML)


   Jan 09, 2015  ...  DCDC:  Kilby-Robb v. Education  ...   SHE ALLEGED DISCRIMINATION FOR AGE, RACE AND RETALIATION.   ...   Plaintiff Patricia Kilby-Robb, an African-American woman in her fifties, applied for a promotion to a vacant Management Analyst position at the United States Department of Education (“DOE”). After interviewing Kilby-Robb and Stacy Kreppel, another DOE employee, the Department selected Kreppel. Kilby-Robb has now brought suit, alleging that DOE discriminated against her on the basis of her age and race and retaliated against her for having filed a prior EEOC complaint.   ...   COURT DECISION:     (pdf)   ...   (HTML)


   Jan 08, 2015  ...  TECH:  BLU ANNOUNCES NEW 4.8", SUPER THIN, UNLOCKED PHONE FOR $199 ... PLUS 6 MORE SUB-$199   ...   gsmarena.com


   Jan 08, 2014  ...  DCAF:  Nucci v. Target  ...   SHE WAS SLICK PIMPING A SWEET PAYDAY SLIP AND FALL CASE AT TARGET, UNTIL TARGET'S LAWYER ASKED TO DISCOVER HER FACEBOOK PICTURES  ...   In her personal injury lawsuit, Nucci claimed that on February 4, 2010, she slipped and fell on a foreign substance on the floor of a Target store. In the complaint, she alleged the following:   (a)    Suffered bodily injury   (b)    Experienced pain from the injury   (c)    ncurred medical, hospital, and nursing expenses, suffered physical handicap   (d)    Suffered emotional pain and suffering   (e)    Lost earnings   (f)    Lost the ability to earn money   (g)    Lost or suffered a diminution of ability to enjoy her life   (h)    Suffered aggravation of preexisting injuries   (i)    Suffered permanent or continuing injuries   (j)    Will continue to suffer the losses and impairment in the future       Target took Nucci’s deposition on September 4, 2013. Before the deposition, Target’s lawyer viewed Nucci’s Facebook profile.  ...   COURT DECISION:     (pdf)   ...   (HTML)


   Jan 07, 2015  ...  TECH:  ASUS INTRODUCES A NEW 5.5" SMARTPHONE FOR $199 (Off Contract) TO MAKE "APPLE SUCKERS" FEEL LIKE FOOLS, AGAIN.   ...   The new ZenFone 2 announced today isn't just better-looking, but it's also packed with great specs: 64-bit quad-core Intel processor, 5.5-inch (1080p) IPS display, Gorilla Glass 3, 802.11ac Wi-Fi, fast-charge technology, up to 4GB of RAM, microSD slot, Android 5.0 (with ASUS' pretty ZenUI) and more. Better yet, this dual-SIM LTE phone starts from just $199 unsubsidized.    Engadget.com    ...    TheVerge.com


   Jan 07, 2015  ...  TECH:  SUCKER WATCH: Ever wonder how Verizon , AT&T can sell you the latest $650 iPhone for just $200? It's because the $200 iPhone really costs you $680 on Verizon, AT&T and Sprint.   ...   I was talking with friend recently. Trying to get her to jump from Verizon to a low cost contract-free carrier (Boost, Virgin Mobile, Straight Talk, Cricket, etc). During our conversation we discussed phone costs. I told her about great phone deals she could get for $199 or less. At this point, she interrupted me to proudly announce that she'd only paid $100 for her Sammy S5 on Verizon. I responded "you mean you paid $580" . She insisted that she'd only paid $100 for her Sammy S5 on contact with Verizon. I went on to explain that $20 of her monthly cellphone bill was to pay for the phone. So a FREE phone really costs $480 on contract ($20 x 24 months). She finally saw the light and is now waiting for her two year Verizon contract to end so she can break out of her on-contact prison cell.     Permerica.com  ...  (If you are off contract (month to month) with Verizon, AT&T and Sprint, you are paying $20 a month of $480 a year for nothing)


   Jan 07, 2015  ...  MSPB:  Reed v. VA  ...   TWO EXAMPLES OF ENTITIES THAT SHOULD HAVE KNOWN BETTER; MSPB AND THE APPELLANT   ...   In this whistleblower appeal, the appellant alleges that the agency took various personnel actions, including a 3-day suspension, against her in retaliation for disclosures that she made concerning violations of its procedures in the handling of her administrative grievance. The facts, as the appellant alleges them, are as follows.       The appellant is a Human Resources Specialist (Employee Relations) for the agency. On February 13, 2012, the Assistant Chief of Human Resources issued the appellant an admonishment for disrespectful conduct toward her supervisor. The appellant filed an informal grievance, challenging the factual basis of the admonishment. On April 9, 2012, the Assistant Chief denied the grievance.     -----   The appellant filed this grievance under administrative—not negotiated—grievance procedures. The appellant is not part of a collective bargaining unit because the nature of her position excludes coverage.   -----     On April 18, 2012, the appellant filed a formal grievance, again challenging the factual basis for the admonishment. On May 14, 2012, the Chief of Human Resources denied the appellant’s formal grievance and the appellant requested that a grievance examiner be appointed.     The agency appointed a grievance examiner, and on June 20, 2012, the grievance examiner issued a memorandum to the Chief recommending that the grievance be denied. Citing the examiner’s findings and recommendations, the Chief again informed the appellant that her grievance was denied.     On June 22, 2012, the appellant emailed the Medical Center Director and informed him of what she believed to be a “futile grievance process.”   ...   MSPB DECISION:     (PDF)   ...   (HTML)


   MSPB:  Goeke and Bottini v. Justice  ...   THIS CASE IS ABOUT THE US ATTORNEYS WHO SUCCESSFULLY PROSECUTED ALASKA SENATOR, TED STEVENS.   ...   The appellants are Assistant United States Attorneys who participated in the 2008 federal criminal prosecution of a United States Senator for failing to report gifts and liabilities on his financial disclosure statements.     After a jury convicted the Senator, the government moved to vacate the conviction because its prosecution team had failed to disclose information to which the defense was constitutionally entitled, specifically, information that was exculpatory or could have been used to impeach the prosecution’s witnesses.     The agency’s Office of Professional Responsibility (OPR) investigated the appellants’ conduct and issued a Report of Investigation (ROI) concluding that they had recklessly, although not intentionally, committed professional misconduct in handling some of this information.        This case is before the Board on the agency’s petition for review of the administrative judge’s initial decision, which reversed the appellants’ suspensions on the grounds of harmful procedural error.  ...   MSPB DECISION:     (PDF)   ...   (HTML)


   MSPB:  Prouty & Weller  v. GSA  ...   QUITE OFTEN, THE OIG INVESTIGATORS ARE WAY MORE INCOMPETENT THAN THE ALLEGED CORRUPT MANAGERS   ...   In light of the record and the agency’s arguments before us, we are constrained to agree with the administrative judges’ decisions to reverse these removal actions.    ORDER   We ORDER the agency to cancel the appellants’ removals and to restore them effective June 25, 2012. 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 appellants the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellants to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellants the undisputed amount no later than 60 calendar days after the date of this decision.   ...   MSPB DECISION:     (PDF)   ...   (HTML)











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