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OPM WEBSITE ALL OPM CORONAVIRUS GUIDANCE   ...   MORE GUIDANCE AND NOTIFICATIONS FOR FED EMPLOYEES

♦        OPM :    Guidance On Labor-Management Relations In The Executive Branch    OPM GUIDANCE AND NOTIFICATIONS
♦        OPM :    Extension Of The Coronavirus COVID-19 Schedule A Hiring Authority    OPM
♦        OPM :    Revocation Of Executive Order 13950.    OPM
♦        OPM :    Guidance for Implementation of Executive Order 14003 - Protecting the Federal Workforce.    OPM

♦       July 23, 2021  .. DOJ OIG INVESTIGATIONS :    The Department of Justice (DOJ) Office of the Inspector General (OIG) substantiated the allegation that the Assistant Director was engaged in a romantic relationship with a subordinate and failed to timely report the relationship, in violation of FBI policy. The OIG investigation also found that the Assistant Director allowed the relationship to negatively affect an appropriate and professional superior-subordinate relationship and to disrupt the workplace by interfering with the ability of other FBI employees to complete their work, and that the Assistant Director participated in a hiring or organizational decision involving the subordinate, all in violation of FBI policy.   .pdf

♦       July 23, 2021  .. 3rd Cir.:    Hooker v. Novo Nordisk  ..  In August 2006, Hooker began working at NNI, a subsidiary of Novo Nordisk, A/S, a Danish pharmaceutical company. Hooker served as a manager of strategic sourcing in NNI’s Plainsboro, New Jersey office and was fifty-four years old when he was hired. In 2008, senior director Bernard Wright promoted Hooker to senior manager.    Appellant William Hooker alleges that his employer, Novo Nordisk, Inc. (“NNI”), terminated his employment in violation of the Age Discrimination in Employment Act (“ADEA”.    He also alleges unlawful retaliation pursuant to the same statutes. Hooker also brought a retaliation claim.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 23, 2021  .. FLRA:  VA v. AFGE  ..  On September 28, 2018, the Union filed a grievance seeking environmental-differential pay (EDP) for housekeepers and pipefitters at the Agency’s medical facility.    The Union alleged that the employees are continuously exposed to, and in direct contact with, hazardous microorganisms in performing their duties. The matter was not resolved and the Union invoked arbitration.    In an award dated April 18, 2020, the Arbitrator framed the issue as: “Is the grievance procedurally arbitrable? If so, did the [Agency] violate Article 29, Section 28 of [the] [collective-bargaining agreement (CBA)] and [the] [Code of Federal Regulations (CFR)] when it failed to pay housekeepers and pipefitters EDP?    If so, what is the remedy?”  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 22, 2021  .. 11th Cir.:    Colton v. FEHRER  ..  Ms. Colton was assigned, through a temp agency, to work for FEHRER Automotive, an automobile interior manufacturing facility.   She had worked there a few years earlier without incident.    But this time, there was a problem: they assigned her to work at a table that was too tall for her 4’6” stature. When she asked the individuals training her for a shorter table or a step stool, they declined.    Undeterred, Colton complained to FEHRER’s human resource representative. But she was brushed off. Instead, a few days later, FEHRER terminated her employment and marked her personnel file as ineligible for rehire.    The company said that she was “not a good fit” for FEHRER, but the training coordinator confided that she was labeled as a “red flag” because she “asked too many questions.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 22, 2021  .. D.D.C.:    Milowski v. Wolf (Homeland)  ..  Mr. Milowski brings this action against Alejandro Mayorkas, the Secretary of the United States Department of Homeland Security, asserting claims under the Rehabilitation Act and the Americans with Disabilities Act.    Milowski was employed by the Department of Homeland Security as a Deportation Officer and Course Developer Instructor at the U.S. Immigration and Customs Enforcement (ICE) Training Academy.    Milowski alleges that from January 2016 through February 2017, he suffered discrimination on account of his disability, was denied reasonable accommodations, and faced retaliation for seeking those accommodations.    Among other things, Milowski’s supervisor “made an unauthorized disclosure regarding [his] medical information,” and Milowski was denied “training consistent with his colleagues,” was assigned “collateral duties” in addition to his “primary duties,” and was “yelled at” by his supervisor shortly after he requested an accommodation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 21, 2021  .. 7th Cir.:    Chatman v. Chi BOE  ..  Ms. Chatman worked in the Chicago Public Schools for over two decades. In 2009, she was laid off. She then filed a discrimination charge against the Board of Education of the City of Chicago. That matter later settled.     As part of the settlement, Ms. Chatman secured the opportunity to interview for open positions within the Chicago Public Schools. She interviewed for positions at several schools, four of which are relevant to this appeal, but received no job offer.     She brought this action, alleging race and age discrimination, as well as retaliation based on her prior discrimination charge. The district court granted summary judgment for the Board.     Ms. Chatman now contends that the district court erred.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 21, 2021  .. ACA:    In Re Ruben P  ..  Ruben began having contact with law enforcement in September 2018, just before he turned 14. Over the next 26 months, four police departments and the Maricopa County Sherriff’s Office had significant contacts with Ruben.     The State filed delinquency petitions accusing Ruben of a dozen felonies and additional misdemeanors. The charges included shoplifting, assault of a teacher, possession of marijuana, possession of a firearm, unlawful discharge of a firearm, unlawful use of means of transportation, theft of means of transportation and burglary.     Ruben P. argues the superior court’s order committing him to the Arizona Department of Juvenile Corrections (ADJC) was an abuse of discretion.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 21, 2021  .. D.D.C.:    Sourgoutsis v. Capitol Police  ..  On June 13, 2016, Plaintiff Chrisavgi Sourgoutsis initiated the instant legal action against the United States Capitol Police (“USCP”), alleging that USCP had discriminated and retaliated against her, in violation of Title VII of the Civil Rights Act of 1964, as incorporated by the Congressional     Sourgoutsis’s claims ultimately proceeded to trial, where a jury made three relevant determinations: (1) that Sourgoutsis’s sex was a motivating factor in USCP’s decision to terminate her; (2) that USCP would have terminated her regardless of any discriminatory motive; and (3) that Sourgoutsis had failed to demonstrate that USCP had retaliated against her for cooperating in an internal investigation.     After the jury rendered its verdict, and also after the Clerk of Court entered judgment in USCP’s favor, Sourgoutsis filed motions for an amended judgment and a permanent injunction.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 20, 2021  .. FLRA:  Army v. NFFE  ..  Since 2007, the parties have been litigating a Union grievance alleging widespread overtime violations of the Fair Labor Standards Act (FLSA) and the parties’ collective-bargaining agreement.     As discussed further below, we determine that the Agency’s exceptions are either untimely, interlocutory, or barred by the Authority’s Regulations.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 20, 2021  .. D.D.C.:    Robb v. Perdue  ..  Plaintiff Ms. Robb joined the Department in November 2013, as a GS-14, Step 1 Senior Agricultural Scientific Advisor (Biofuels), in the Office of Global Analysis, Global Policy Analysis Division, Foreign Agricultural Service. In this position she was responsible for the “analysis and communication of science and Agency policy of bio-based products.”    In December 2015, Ms. Robb was notified that her position was being unexpectedly terminated, so she accepted a GS-13 position as an Agricultural Economist, a non-biofuels position and one in a lower pay grade.    However, just a few months later, Ms. Robb was notified that there was a need for her at her old position, and that she could return to her former role. She was told that while the original reassignment would initially be at the GS-13 level, the job would eventually be elevated to a GS-14 position, the same pay grade it had been before.    She accordingly accepted the reassignment on May 15, 2016. In the interim, the biofuels trade policy had been transferred within the Department from the Office of Global Development to the Plant Division. As a result, in her new role, Ms. Robb was overseen by Mayra Caldera, her first line supervisor, while her second line supervisor was Mark Rasmussen, the Director of the Plant Division.    Despite the assurances she had received, Ms. Robb’s new position as International Economist (Biofuels), was never elevated back to a GS-14 position.    Ms. Robb contends that beginning in February of 2017, less than a year after she accepted her new position with the promise of an eventual grade increase, “management went on a campaign to intimidate, devalue, and degrade” her.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 19, 2021  ..  No New Cases To Post Today. SORRY.

♦       July 16, 2021  .. Fed. Cir.:    Staley v. DVA  ..  Ms. Staley appeals from a final decision of the Merit Systems Protection Board (Board) denying her request for corrective action by the Department of Veterans Affairs (VA) for a personnel action prohibited under the Whistleblower Protection Act.     Ms. Staley alleges the VA engaged in retaliatory personnel action against her—specifically, the revocation of previously approved leave without pay (LWOP) under the Family and Medical Leave Act (FMLA), and its conversion into absence without leave (AWOL).     On July 1, 2019, Ms. Staley filed an individual right of action (IRA) with the Board, claiming that the VA retroactively revoked her FMLA leave in retaliation for the protected activity of filing her OSC (Whistleblower Protection Act) complaint.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 15, 2021  .. FDCA:    Garcia v. Junior  ..  The early morning hours of New Year’s Day, 2021, found sixteen-year- old Alex Garcia at the wheel of his mother’s black Chevrolet Tahoe. Despite testimony from Garcia’s mom that she gave permission only for Garcia to listen to music in the car.    Speeding down West Flagler at 79th Avenue, Garcia plowed into a blue Hyundai Elantra pulling into the intersection.    While Garcia survived the crash unharmed, the impact killed all four occupants of the Elantra and seriously injured Garcia’s two 16 year old passengers.    On April 16, 2021, the State charged Garcia with four counts of driving under the influence (DUI), manslaughter, a second-degree felony, and multiple other charges.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 15, 2021  .. Fed. Cir.:    Craft v. MSPB  ..  In 1983, Ms. Craft, an employee of the Defense Information Systems Agency, incurred a work-related injury for which she was awarded workers’ compensation benefits by the Department of Labor (DOL).     Ms. Craft has since contested a variety of issues associated with this award. On March 19, 2019, she filed an appeal with the Board, contesting previous decisions from the DOL’s Office of Workers’ Compensation (OWC) that issued between 2001 and 2012.     While that appeal was pending, on September 18, 2020, the OWC terminated Ms. Craft’s workers’ compensation benefits, reasoning that Ms. Craft had fully recovered from her injuries and did not require further compensation.     Because Ms. Craft alleges retaliation for potential whistleblowing activity, we vacate the decision and remand for further proceedings.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 15, 2021  .. 3rd Cir.:    Yingst v. Coatesville  ..  Yingst began working as a nurse at Brandywine in 1987. Yingst was diagnosed with breast cancer in July 2014. Yingst’s cancer caused her to be unavailable for work on several occasions in 2014 and 2015. Her unavailability often lasted two to three weeks but at one point lasted almost two months. After Yingst returned to work, the hospital filled three nursing positions but did not promote Yingst.     Yingst filed this action. Yingst alleged that Brandywine discriminated against her because of her disability (breast cancer), and retaliated against her for complaining about the discrimination, when her supervisor refused to hire her for three regular nursing positions.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 15, 2021  .. 11th Cir.:    Adams v. St. Johns  ..  Drew Adams is a young man and recent graduate of Nease High School in Florida’s St. Johns County School District (the “School District”). Mr. Adams is transgender, meaning when he was born, doctors assessed his sex and wrote “female” on his birth certificate, but today Mr. Adams knows “with every fiber of [his] being” that he is a boy. While Mr. Adams attended Nease High School, school officials considered him a boy in all respects but one: he was forbidden to use the boys’ restroom. Instead, Mr. Adams had the option of using the multi-stall girls’ restrooms, which he found profoundly “insult[ing].” Or he could use a single-stall gender-neutral bathroom, which he found “isolati[ng],” “depress[ing],” “humiliating,” and burdensome. After unsuccessful negotiations with the School District over his bathroom use, Mr. Adams brought suit against the St. Johns County School Board (the “School Board”)1 through his next friend and mother, Ms. Erica Adams Kasper.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 14, 2021  .. D.D.C.:    Cobb v. WMATA  ..  Plaintiff Charles Cobb alleges that on the evening of December 6, 2019, he slipped on a foreign substance on the ground in the Gallery Place/Chinatown Metro station, fell awkwardly to the floor, and badly injured his left leg.     As he lay on the ground in great pain, unable to move, and calling for help, employees of the Washington Metropolitan Area Transit Authority (“WMATA”) at the station allegedly did nothing to help him.     In the instant lawsuit, plaintiff alleges that WMATA was negligent in failing both to notice and clean the substance that caused his slip and fall, and to summon medical assistance for him after his injury, and he seeks to recover damages for the injury he suffered to his knee as well as emotional damages.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 14, 2021  .. FLRA:  NTEU v. HHS  ..  In 2017, the Union filed a ULP charge alleging, as relevant here, that the Agency bargained in bad faith while negotiating a new collective-bargaining agreement (term agreement).     While the ULP charge was pending, the Union and Agency continued negotiating the term agreement. But, the parties could not reach agreement, and, in 2018, the Union filed four grievances, each alleging that the Agency committed a ULP by bargaining in bad faith in violation of § 7116(a)(1), (5), and (8) of the Statute.     The main question before us is whether the Union’s ULP charge bars the later‑filed grievances.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 14, 2021  .. MCA:    Firmand v. MDES  ..  In May 2016, Claimant was employed as Director of Learning and Organizational Development at the University of Missouri (“Employer”) and received an annual salary of $166,000.     On May 22, 2019, Claimant’s supervisor informed Claimant that he “was just not getting the job done[.]” The supervisor told Claimant that he was being demoted from his director position, that his salary was being reduced to an annual rate of $140,000, and that he would be discharged in six months.     Claimant felt humiliated by the demotion, and he soon left his employment, claiming that he had accepted an offer from his supervisor to receive a “severance package if he left ahead of his termination in six months.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 13, 2021  .. CAC:    Fernandez v. Mac Motors  ..  The plaintiff sought to recover damages from the defendant, her former employer, Mac Motors, Inc. for alleged discrimination and the creation of a hostile work environment on the basis of her gender.     The plaintiff, who had been a finance manager at the defendant’s car dealership, claimed that she had been paid less than male employees who performed the same job and that she had been subjected to mistreatment by four male managers, which included sporadic incidents of yelling.     She further alleged that male employees made remarks in the workplace that were crude and demeaning to women.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 13, 2021  .. 9th Cir.:    Thomas v. Harker (Navy)  ..  Discrimination, Retaliation, And Hostile Work Environment Claims.    Mr. Thomas argues that his $300 performance award in 2014;    his temporary reassignment to the Office of the Product Line Coordinator;    his subsequent reassignment to the Wastewater Treatment Plant;    his non-selection for two supervisory positions;    and the Navy’s failure to provide him with boiler inspector training were discriminatory and retaliatory.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 12, 2021  .. 1st Cir.:    Perez-Abreu  v. Metropol  ..  Appellant, Mr. Pérez-Abreu, brought suit against his employer, a restaurant called the Metropol Hato Rey. Pérez asserted claims of age-based discrimination under the Age Discrimination in Employment Act ("ADEA").     His employer promptly moved to dismiss the complaint, pointing out that Pérez failed to exhaust required administrative remedies before filing suit.     That is, he neglected to first file a complaint with the Equal Employment Opportunity Commission.     In response, Pérez acknowledged his failure to exhaust but pressed the district court to excuse that failure by adopting and applying the "single filing rule," also known as the "piggyback rule."  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 12, 2021  .. 7th Cir.:    Demkovich v. St. Andrew  ..  Demkovich is a gay man.     St. Andrew the Apostle Parish in Calumet City, Illinois is a Roman Catholic church of the Archdiocese of Chicago.     In September 2012, the church hired Mr. Demkovich as its music director, choir director, and organist. Reverend Jacek Dada, a Catholic priest and the church’s pastor, supervised Demkovich in these roles.     Over the next two years, their relationship deteriorated, culminating in Demkovich’s termination by Reverend Dada in September 2014.     According to Demkovich, Reverend Dada repeatedly subjected him to derogatory comments and demeaning epithets showing a discriminatory animus toward his sexual orientation and physical condition.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 9, 2021  .. 8th Cir.:    Henson v. Union Pacific  ..  Randy Henson began working for the predecessor of Union Pacific Railroad Company in 1979. Following more than thirty years with the railroad, Henson filed a charge [...] in October 2017, alleging a hostile work environment and ongoing age discrimination and retaliation.     Henson asserted that he had been subjected to position changes and harassing comments. Henson retired effective August 1, 2018, at the age of 63. Soon thereafter, Henson received a requested right-to-sue letter from the EEOC.     As relevant to this appeal, Henson filed suit against Union Pacific in Missouri state court, alleging age discrimination, constructive discharge, and hostile work environment claims. Henson also sued Missouri resident Foster B. McDaniel, claiming that McDaniel aided and abetted Union Pacific in its discriminatory acts.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 8, 2021  .. 6th Cir.:    Umfress v. Memphis  ..  Vivian Umfress began to work for the City of Memphis, Tennessee in 1982. Thirty-three years later, in 2015, she believed that the City was discriminating against her because of her age, so she filed a complaint with the Equal Employment Opportunity Commission.    A few months after that, the City restructured its finance division, eliminating two positions. One was Ms. Umfress’s position.     At some point after the City eliminated Ms. Umfress’s job, an unknown city employee placed Ms. Umfress’s name in a security binder that the City maintained to keep track of people who needed an escort to enter city hall.     Ms. Umfress sued, alleging retaliation under the Age Discrimination in Employment Act and a constitutional “stigma-plus” violation.     The jury did not believe the City of Memphis' explanation, so it awarded Ms. Umfress $341,981.49 in damages for her ADEA claim.    The jury also awarded her $750,000 in damages on the stigma-plus claim.    The City of Memphis appealed.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 7, 2021  .. Fed. Cir.:    Adams v. Homeland  ..  Mr. Adams worked as a human resources specialist with U.S. Customs and Border Patrol (the agency) and was also a member of the Arizona Air National Guard. From April to September 2018, Mr. Adams performed three peri- ods of military service with the National Guard.     Mr.Adams appeals a final decision of the Merit Sys- tems Protection Board denying his request for differential pay for three separate periods of military service during which he performed duties in the Arizona Air National Guard.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 6, 2021  .. 6th Cir.:    Corbin v. Steak 'n Shake  ..  Hannah Corbin was a minor who worked as a server at a Steak ‘n Shake restaurant.     Corbin filed suit for sexual harassment, alleging a hostile work environment, gender discrimination, and retaliation pursuant to Title VII of the Civil Rights Act of 1964 and Ohio law.     After a five-day trial, the jury returned a verdict for Corbin on the hostile work environment claim, and awarded her $308 in back pay, $1000 in compensatory damages, and $50,000 in punitive damages.     The jury ruled in favor of Steak ‘n Shake on the gender discrimination claim. Steak ‘n Shake appeals the district court’s evidentiary rulings and the jury’s award of punitive damages.     Corbin cross-appeals, arguing that the district court erred in granting summary judgment to Steak ‘n Shake and that it miscalculated the attorney’s fees.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 6, 2021  .. CCA:    Briley v. West Covina  ..  Respondent Jason Briley worked for appellant, the City of West Covina (the City), as a deputy fire marshal.     During his employment, Briley complained that various City officials, including his then-direct superior Larry Whithorn, had ignored his reports of safety issues and engaged in misconduct. He later complained that Whithorn and others had retaliated against him in various ways.     The City commissioned an investigation of Briley’s claims but ultimately concluded they were unfounded. While this investigation was still pending, the City commissioned an investigation of allegations that Briley had repeatedly engaged in misconduct and unprofessional behavior.     At the conclusion of this second investigation, Whithorn initiated Briley’s termination, and another City official upheld the decision.  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 6, 2021  .. 5th Cir.:    Garcia v. EEOC  ..  Valerie Garcia served as an Associate Municipal Judge in the City of Brownsville, Texas. As her second two-year term expired in the summer of 2018, the City had ninety days to notify her whether she would be reappointed by the city manager, who was vested with the authority to appoint (and reappoint) judges like Garcia.     She met with the City’s court administrator to discuss her potential reappointment; their discussion led her to believe she would be reappointed for a third term without controversy.     Shortly afterward, she and the court administrator met again—this time to discuss Garcia’s concerns over her pay.     Garcia raised alleged disparities between her compensation and that of the other similarly- titled judges, all men. She alleges that the court administrator confirmed her suspicions: she was paid less than her male colleagues, but the presiding judge had noted funds were available to compensate her for this difference.     Roughly two months later, Garcia received a letter from the interim city manager informing her that she would not be reappointed as a municipal judge. Garcia filed charges of discrimination against the City.  ..  COURT DECISION:   (.pdf)   (.html)

♦       JuLY 2, 2021  ..  No New Cases To Post Today.    HAPPY HOLIDAY WEEKEND.

♦       July 1, 2021  .. FLRA:  Customs and Border v. NTEU  ..  Arbitrator Carol A. Vendrillo found that the Union’s grievance filed on behalf of two grievants is not moot despite their voluntary retirements from the Agency. The Agency filed exceptions to the award on exceeded-authority grounds. Because the Arbitrator considered issues not specific to the two named grievants in determining that the grievance was not moot, we find that she exceeded her authority. Accordingly, we grant the Agency’s exception and set aside the award.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       July 1, 2021  .. CCA:    Vega v. YapStone  ..  YapStone, Inc. is a payment services company located in Walnut Creek, California. YapStone hired Marcela Vega as an accounting associate in December 2014.     Marcela was granted a leave of absence beginning August 31, 2016, to travel to Colombia, the sisters’ country of origin, for a second opinion on treatment for carpal tunnel syndrome and epicondylitis. A doctor detected a hernia during a physical examination, and Marcela underwent surgery on October 18, 2016, then developed sepsis and pancreatitis and was placed in the intensive care unit. ... [ The Story Continues ].  ..  COURT DECISION:   (.pdf)   (.html)

♦       July 1, 2021  .. 6th Cir.:    Doe v. Detroit  ..  Jane Doe is transgender and began presenting publicly as a woman while working for the City of Detroit.     During her transition, an unknown city employee left Doe harassing messages that commented on her transgender identity and stated that people such as Doe should be put to death. Doe reported these incidents to the city, which took various steps to uncover the perpetrator and protect Doe’s safety.     Doe sued the city under Title VII and Michigan’s Elliott-Larsen Civil Rights Act, alleging that the city subjected her to a hostile work environment and then retaliated against her.     The district court granted summary judgment to the city, concluding that the city responded reasonably to Doe’s complaints and there were no triable issues with respect to retaliation.     Here, Jane Doe appeals the district court decision.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 30, 2021  .. Tex.:    TxDOT v. Lara  ..  Petitioner Texas Department of Transportation (TxDOT) terminated respondent Albert Lara, Jr.’s employment after he exhausted his five months of sick leave while recovering from surgery. Lara sued under the Texas Commission on Human Rights Act (TCHRA), alleging in part that TxDOT (1) failed to reasonably accommodate his disability by granting him additional leave without pay in accordance with its policy and (2) discharged him in retaliation for his request for additional leave.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 30, 2021  .. D.C. Cir.:    Farrar v. Nelson  ..  Andrew Farrar began working for NASA’s Equal Opportunity and Diversity Management Division in 2010. When NASA fired him five months later, he filed an administrative action alleging disability discrimination under the Rehabilitation Act of 1973.    For the most part, Farrar prevailed. NASA’s    NASA awarded him compensatory damages, costs, and fees totaling just under $13,000.    EEOC increased the amount NASA would pay Farrar to about $35,000.    After NASA paid him, Farrar filed a civil action, alleging disability discrimination under the Rehabilitation Act.    But because Farrar had already accepted and retained the monetary award from NASA, the district court said “he does not get another bite at the apple” and dismissed his case.    Farrar appealed.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 30, 2021  .. Tex.:    Apache Corporation  v. Davis  ..  In 1995, in Texas Department of Human Services v. Hinds, we held that an employee claiming retaliation must prove that but for his protected conduct, his employer’s prohibited conduct “would not have occurred when it did.”    In Office of Attorney General v. Rodriguez, we emphasized that “an adverse employment action ‘based solely’ on reasons unrelated to [protected conduct] destroys the causal link.”    Because evidence of but-for causation is often circumstantial, we have suggested several factors that may be considered in determining whether the standard of proof has been met.    In this case, we explain the factors’ role in applying the causation standard when evidence shows that the employer took action against the employee for a legitimate reason unrelated to the employee’s protected conduct.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 29, 2021  .. 8th Cir.:    Richardson v. BNSF Railway  ..  Richardson’s complaint alleged the following facts. In 2015, after eighteen years of employment with BNSF, Richardson received a new supervisor. Shortly thereafter, BNSF “pulled [Richardson] out of service,” alleging that he had left a company vehicle at a hotel bar.    According to the supervisor, Richardson had been drinking while driving. After a six-week investigation produced no evidence that Richardson had been drinking while driving, BNSF returned Richardson to service. BNSF then required Richardson to complete from memory expense reports related to events that had occurred before his removal. Upon identifying alleged errors in Richardson’s expense reports, BNSF terminated Richardson’s employment.     Scott T. Richardson sued BNSF Railway Co., alleging constructive discharge and intentional infliction of emotional distress.    BNSF moved to dismiss both claims. The district court granted BNSF’s motion.    Richardson appeals.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 29, 2021  .. WCA:    Carroll v. Renton Schools  ..  In June 2017, Samiha Carroll was hired to work for the Renton School District (District) as the Lakeridge Elementary School (Lakeridge) assistant principal. Carroll is an African-American woman, and was six months pregnant at the time she was hired. Holly Thompson, principal at Lakeridge, served on the committee that conducted interviews of applicants for the assistant principal position. Neither the District nor the hiring committee knew that Carroll was pregnant at the time it hired her.     On July 3, 2017, Carroll began her role as assistant principal. However, she was asked by Thompson to take a week of vacation her first week because Thompson would also be on vacation. Thompson was on vacation for three or four weeks during Carroll’s first month of employment. Thompson returned from vacation in late July.     On or around July 10, 2017, Carroll informed Thompson that she was pregnant and had a September 15, 2017 due date. She relayed that she was planning to take six weeks of maternity leave.2 Carroll stated that she was subsequently subjected to “constant comments from Ms. Thompson” regarding her pregnancy, such as “‘make sure you don’t go into labor early’” and “‘keep that baby in until its due date.’” She said it caused her anxiety about her due date.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 29, 2021  .. FLRA:  VA v. NVAC  ..  The Agency requests that we reconsider our decision in U.S. Department of VA, Veterans Benefits Administration (Veterans Benefits).    That case involved an award finding the Agency violated the parties’ agreement when it ceased providing a ninety-day performance improvement plan (PIP) as a prerequisite for performance‑based actions.    The Authority denied the Agency’s exceptions because they failed to demonstrate that the award was contrary to law, failed to draw its essence from the parties’ agreement, or that the Arbitrator exceeded his authority.    In a motion for reconsideration (motion), the Agency argues that the Authority erred in its legal conclusions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 29, 2021  .. FLRA:  AFGE v. Prisons  ..  Arbitrator Kathy Fragnoli denied the Union’s grievance alleging that the Agency violated the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union access to the Agency’s premises and records in response to the Union’s information requests.    The Union filed exceptions challenging the award on contrary-to-law and essence grounds.    Because the Arbitrator erred by finding that the Union could not grieve the alleged violations of the Statute, the award is contrary to law.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 28, 2021  .. 10th Cir.:    Ombe v. Cook  ..  Mr. Ombe worked as a cashier at Clines Corners Travel Center. A former university professor and mathematician, he was diagnosed with autism later in life and reports he has also suffered from depression and anxiety. Mr. Ombe sued his former employers alleging violations of the Americans with Disabilities Act (ADA), the Civil Rights Act of 1964, and the Civil Rights Act of 1866.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 28, 2021  .. 5th Cir.:    Fisher v. Bilfinger  ..  Appellant Keonta Fisher contends that he was subject to racial discrimination by his bosses, Tommy Coutee and Kendall Martin, and suffered retaliation from Daniel Long when he was employed as a welder by the Appellee, Bilfinger Industrial Services.    Fisher claims he was harassed from when he was hired on September 10, 2015 to February 3, 2016, when he was assigned to a different crew. He also claims two instances of retaliation: first, when he was threatened with firing after he complained about harassment, and second, when he was terminated.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 28, 2021  .. SCI:    Rumsey v. Millwork  ..  This case involves the not uncommon, yet often murky, intersection between worker’s compensation and disability discrimination. In this case, an injured employee with a preexisting hearing impairment continued to work while rehabilitating from a workplace injury.     The employer assisted the rehabilitation by providing light-duty work consistent with the temporary workplace restrictions imposed by the employee’s doctors.     A disagreement arose concerning whether the employee was entitled to a specific work restriction, and the employee was fired. In the ensuing disability discrimination litigation, the employer claimed the firing was based on insubordination. The employee claimed the employer discriminated against him by firing him when he sought a reasonable accommodation for a disability. A jury accepted the employee’s claim and awarded damages.     Here, the defendants appeal the jury decision and award.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 28, 2021  .. 11th Cir.:    Matamoros v. Broward Sheriffs  ..  Carolina Matamoros alleged that her former employer, the Broward Sheriff’s Office, violated the FCRA by discriminating against her not because of any “handicap” of her own, but because of her association with her son, who suffers from severe asthma. Finding no support for that sort of “associational discrimination” claim in the FCRA’s text or prior court decisions, the district court dismissed it, and the court later granted summary judgment to the Sheriff’s Office on Matamoros’s other claims under the FCRA and the federal Family and Medical Leave Act.     On appeal, Matamoros challenges both the dismissal of her associational- discrimination claim and the district court’s grant of summary judgment on the others. As to the former, Matamoros candidly asks us to work “a change in the law” and hold that the FCRA prohibits associational discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 25, 2021  .. FLRA:  F.O.P v. Navy  ..  The Union filed a petition seeking review of one proposal concerning the chain of command for the Agency’s bargaining-unit civilian police officers. Because we find that the proposal affects management’s rights to determine its organization under § 7106(a)(1) and assign work under § 7106(a)(2)(B) of the Federal Service Labor-Management Relations Statute and the Union has not demonstrated that the proposal is negotiable under § 7106(b)(2) or (3) of the Statute, the proposal is outside the duty to bargain. Accordingly, we dismiss the petition.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 25, 2021  .. FLRA:  VA v. AFGE  ..  Before 2019, the Agency regularly permitted the grievant to take LWOP for medical treatment. In early 2019, the Agency required the grievant to provide a medical “treatment plan” to receive future approvals.     The grievant provided additional medical documentation, but the Agency found it insufficient and charged the grievant as absent without leave (AWOL) for several absences.     The Union grieved the denials of LWOP. During the pendency of the arbitration proceedings, the Agency suspended the grievant based on the AWOL charges.     Arbitrator Ed W. Bankston subsequently issued an award finding that the Agency violated the parties’ agreement by changing a past practice without notifying the Union and by denying the grievant’s requests for LWOP. As a remedy, the Arbitrator directed the Agency to rescind the grievant’s suspension.     The Agency filed exceptions, arguing that the award is contrary to Executive Order 5396.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 25, 2021  .. NJSACD:    McNichol v. Route One  ..  Sansone operates three retail car dealerships: Route One Toyota, Route One Hyundai, and Route One Kia. In March 2011, Sansone hired plaintiff as a sales manager at the Toyota dealership. As a manager, plaintiff's compensation was based solely on the commissions he earned from selling vehicles.     Like other similarly-situated employees, plaintiff received a weekly advance on these commissions, which was referred to as his "draw." When plaintiff's draws in any given month exceeded the amount of commissions he actually earned, he was responsible for the shortfall, either by paying Sansone back the difference or by deductions taken from his future commissions.     In his deposition, plaintiff testified this arrangement was standard practice in the industry and that it would be fair to terminate an employee who had a consistent shortfall.     When he began working at the Toyota dealership, plaintiff's draw was $2000 per week. At the end of 2011, plaintiff transferred to the Hyundai dealership, where he received an increased weekly draw of $2200. His new title was assistant sales manager.     By January 2014, plaintiff owed Sansone $6095.95 in unearned draws.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 24, 2021  .. 4th Cir.:    Fairfax v. CBS  ..  In April 2019, the television news program CBS This Morning broadcast interviews with two women who accused Justin Fairfax, the Lieutenant Governor of Virginia, of sexual assault. Fairfax denied the allegations and subsequently sued CBS Corporation and CBS Broadcasting, Inc. (collectively, CBS) for defamation and intentional infliction of emotional distress.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 24, 2021  .. 8th Cir.:    Gardner v. Wal-Mart  ..  Gardner worked for Walmart from 1993 until February 2017. He served as a private fleet safety manager in Mount Pleasant, Iowa, responsible for implementing Walmart’s safety program.     In January 2016, Gardner disclosed an employee’s medical condition during a training session. Walmart placed him on a “Third Written”—meaning he could be fired if disciplined again. One of Gardner’s job responsibilities was enforcing Walmart’s Hazardous Materials Endorsement (HME) policy. It required him to “identify all current and new hire drivers without a valid hazmat endorsement and notify the local Transportation Operations Managers.” In January 2017, Gardner violated the policy. As acknowledged in his statement of undisputed material facts, a driver failed to get an HME after the 90-day deadline, but Gardner did not notify Operations that the driver continued working. Instead, after about 30 more days, he suspended the driver.     In February 2017, Walmart gave Gardner the option to resign or be dismissed. He resigned. He then sued, alleging he was fired because of age (58).  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 24, 2021  .. CCA:    Moinuddin v. CDT  ..  Plaintiff Sheik Moinuddin (Moinuddin) was demoted from a managerial position at defendant California Department of Transportation (Caltrans) and he unsuccessfully contested the demotion before the State Personnel Board (the Board)—without claiming the demotion had been motivated by unlawful discrimination or retaliation. Before the result of the Board proceedings was final, Moinuddin sued in court for violation of the Fair Employment and Housing Act (FEHA). He alleged his demotion was discriminatory and retaliatory (the issue he reserved raising before the Board), and he also complained about Caltrans’ decisions to deny him other promotions and to remove an employee from his supervisory purview. A trial jury concluded Caltrans discriminated and retaliated against Moinuddin but awarded no damages because it found his poor job performance meant Caltrans would have taken the same actions absent the discriminatory and retaliatory motives. Though damages were unavailable, the trial court granted declaratory and injunctive relief and awarded attorney fees. We principally consider, in resolving the parties’ cross-appeals, whether Moinuddin’s choice to proceed before the Board precluded him from litigating his FEHA claims in court, whether the trial court erred by granting declaratory and injunctive relief, and whether there is substantial evidence Caltrans’ adverse actions were partly motivated by legitimate reasons.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 23, 2021  .. FLRA:  Army v. NFFE  ..  The Union filed a grievance alleging that the Agency failed to properly compensate some employees for overtime, and incorrectly classified certain employees as FLSA exempt. The grievance also included an information request under § 7114(b)(4) of the Federal Service Labor‑Management Relations Statute.     The parties entered into settlement negotiations, which led to three partial settlement agreements in which the Agency agreed to reclassify three groups of employees from FLSA exempt to FLSA non‑exempt.     The settlement agreements did not resolve any damages owed to employees in the three affected groups, and the Agency later denied the remainder of the grievance.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 23, 2021  .. 5th Cir.:    Oldenburg v. U T  ..  This case is about employment decisions made by the Facilities Services Training department at the University of Texas (UT). The department provides trade-skills training and career training to facilities and maintenance staff at the university. In mid-2016 and early 2017, supervisors began to restructure the department and opened up hiring for a key position. Alana Oldenburg applied for the job along with about 100 other candidates. Oldenburg came close to getting the position but finished as the runner up.     Another employee in the department, Debrah Fields, participated in the hiring process and believed that some members of the hiring committee made age-based comments against Oldenburg in the selection meeting. As part of a reduction-in-force that UT says was also part of the department restructuring, the university eliminated Fields’s position around the same time Oldenburg did not receive the job.     Oldenburg sued UT, alleging age discrimination in the hiring process, and Fields joined a claim for retaliatory termination stemming in part from her reports of the alleged age discrimination against Oldenburg.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 23, 2021  .. NCA:    Kier v. Hall, Ne  ..  This case involves an employment relationship between the Hall County Sheriff’s Department (the Department) and Melissa Kier, a deputy sheriff. Kier and the Fraternal Order of Police, Lodge #10 (FOP #10), filed a grievance concerning the application of shift-bidding provisions in each applicable collective bargaining agreement (CBA) that governed the employment relationship.     This dispute centers on whether the Hall County Sheriff’s Department Merit Commission (Merit Commission) properly interpreted and applied provisions of each CBA, as well as the Merit Commission’s own regulations.     Kier and FOP #10 appeal from the order of the district court for Hall County, which affirmed the decision of the Merit Commission.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 22, 2021  .. CCA:    People v. Hamburg  ..  On October 4, 2019, police received a call about a burglary at Glenn’s Repair shop. Someone had cut through a fence, removed a portable generator and gasoline from two lawnmowers. Surveillance video recorded the theft. It showed a male, wearing a mask, a hoodie, pants and boots, “siphoning gas” from the lawnmowers. Police found “boot prints” near the fence.     That same morning police were dispatched involving a call about another burglary at Solarponics. A “van had been broken into” and several “Milwaukee power tools” were missing.     Surveillance video from a nearby business showed a “mid 90s Ford Thunderbird” had pulled into the back lot and a driver who got out of the vehicle was wearing the same clothing as the suspect at the burglary at Glenn’s Repair.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 22, 2021  .. FLRA:  Air National Guard v. ACT Union  ..  FLRA Regional Director Jessica Bartlett (RD) dismissed the Union’s representation petition, which asked the RD to order an election to determine whether a proposed nationwide bargaining unit of 104 social workers wished to have the Union recognized as its exclusive representative.     The RD found that the proposed unit was not appropriate under § 7112(a) of the Federal Service Labor‑Management Relations Statute (the Statute).     On the merits, we agree with the RD’s decision to dismiss the petition, but for a more basic reason. Each of the social workers is an employee of both the National Guard Bureau and the Adjutant General of a particular state air national guard, and the social workers are located throughout all fifty states, as well as several U.S. territories. As explained further below, if the Authority were to recognize the Union’s proposed nationwide unit, the bargaining obligations that would flow from that unit certification would infringe upon the sovereign immunity of every state in the union.     Consequently, we dismiss the petition for lack of jurisdiction.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 21, 2021  ..  No New Cases To Post Today. SORRY.

♦       June 18, 2021  .. FLRA:  Prisons v. AFGE  ..  In this case, we once again remind arbitrators that they may not disregard the plain wording of parties’ collective‑bargaining agreements.     Arbitrator Carol A. Vendrillo issued an award finding, as relevant here, that the Union timely filed its grievance. On the merits, the Arbitrator concluded that the Agency violated Article 18, Section p.(1) of the master agreement (Article 18) by failing to equitably distribute and rotate overtime assignments.     The primary questions before us are: (1) whether the Arbitrator’s procedural‑arbitrability determination fails to draw its essence from the master agreement; (2) whether the award is contrary to the covered‑by doctrine; and (3) whether the award violates management’s rights under § 7106(a)(2) of the Federal Service Labor‑Management Relations Statute (the Statute).     We find that the Arbitrator’s procedural‑arbitrability determination fails, in part, to draw its essence from the master agreement.     Accordingly, we grant that Agency exception, in part, but deny the remaining exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 17, 2021  .. 7th Cir.:    Eaton v. Findorff  ..  Debra Eaton brought a Title VII claim against J.H. Findorff & Son, Inc. (“Findorff”), asserting that the company twice refused to hire her in retaliation for an earlier sex discrimination charge that she had leveled against the company.    Eaton is an operating engineer. Findorff is a construction company that contracts with unions in order to staff its job sites. Eaton was an apprentice when she first interacted with Findorff in March 2011.    On that occasion, Local 139 dispatched her to Findorff to work as a telehandler operator at a job site in Milwaukee known as the Moderne Project.    At the end of Eaton’s first day on the Moderne Project, Findorff’s Project Superintendent, Mark Szymkowski, terminated Eaton after concluding that her operation of the telehandler was unsafe and that she was inadequately trained.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 17, 2021  .. N.J.:    Rios v. Meda  ..  In this appeal, the Court considers whether a supervisor’s use of two offensive slurs could support a hostile work environment claim. The key question is whether the alleged slurs, directed at a Hispanic employee, were severe or pervasive enough for the claim to survive summary judgment and proceed to trial.    Plaintiff Armando Rios, Jr. a Hispanic male, was hired by defendant Meda Pharmaceutical, Inc. (Meda) in May 2015. Defendant Tina Cheng-Avery was Rios’s direct supervisor. Rios asserts that Cheng-Avery twice directed the ugly term “Sp--” toward him at their place of work. Rios says he reported her comments to Meda’s Director of Human Resources after each incident. Cheng-Avery placed Rios on probation in February 2016 for poor performance. Meda fired Rios in June 2016.    Rios filed a complaint alleging in part that defendants violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by creating a hostile work environment. The trial court granted defendants’ motion for summary judgment, finding that no rational factfinder could conclude Cheng-Avery’s alleged comments were sufficiently severe or pervasive to create a hostile work environment.       For the reasons set forth above, we reverse the judgment of the Appellate Division and remand for further proceedings.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 15, 2021  .. OCA:    State v. Pallo  ..  Around 2:00 a.m. on September 3, 2018, an Ohio State Highway Patrol trooper was on patrol when two vehicles, both Camaros, passed his position on State Route 32. The trooper observed the white Camaro move into the left lane without signaling and then, with notable acceleration, pass the black Camaro at a high rate of speed. Believing the cars were racing, the trooper initiated a traffic stop of the passing car. The trooper then made contact with the driver, later identified as Pallo. The trooper noticed a strong odor of an alcoholic beverage emanating from Pallo's side of the vehicle. Furthermore, Pallo had bloodshot, watery eyes.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 15, 2021  .. Fed. Cir.:    Vestal v. Treasury  ..  Ms. Vestal was an IRS Internal Revenue Agent for approximately ten years.    Her duties included performing examinations, usually in the field of small businesses or self-employed taxpayers.    In October 2018, Ms. Vestal received a notice of proposed suspension for displaying discourteous and unprofessional conduct and for failing to follow managerial directives.    In preparing her defense, she sent her attorney an Examining Officer’s Activity Record from a taxpayer’s file.    This record included personally identifiable and other taxpayer information and that Ms. Vestal’s attorney was not authorized to receive such information.    Ms. Vestal’s supervisor, Mr. Tonnie Buggs, issued a proposed removal letter for making an unauthorized disclosure.    The deciding official, decided to remove Ms. Vestal from service, explaining in his removal letter “that a removal will promote the efficiency of the Service and that a lesser penalty would be inadequate.”    Ms. Vestal appealed her removal to the Board. Here, Ms. Sarah Vestal petitions for review of a decision by the Merit Systems Protection Board (“Board”) sustaining her removal.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 14, 2021  .. Fed. Cir.:    Stern v. DVA  ..  From about 2012 to November 2018, Ms. Stern worked as a Military Service Coordinator (MSC) with the Department of Veterans Affairs.     It is undisputed that Ms. Stern generally did not meet agency deadlines for processing IDES files. Ms. Stern maintained that the delay was caused by her unwillingness to improperly process files with incomplete medical records. She therefore “engaged in numerous disputes” with the agency concerning the timeliness of her IDES claims.     Ms. Stern made protected disclosures to her supervisor, alleging that Army Physical Evaluation Board Liaison Officers, who also work on IDES claims, were violating regulations governing the IDES process.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 14, 2021  .. 5th Cir.:    Friend v. McAdams  ..  Ms. Friend was a police officer for the City of Greenwood, Mississippi. After she resigned, she sued the City and numerous officials, alleging she was passed over for promotions, subjected to a hostile work environment, and constructively discharged due to race and sex discrimination.     In 2016, while assigned to the juvenile division, Friend responded to an incident involving an eleven-year-old child who was causing a disturbance at a residence. Friend took the child into custod and whipped him with a belt at his grandmother’s request.     An internal affairs investigation concluded that Friend violated GPD policies, resulting in a suspension without pay, a year of probation, and a [demotion].  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 14, 2021  .. KCA:    State v. Brady  ..  Just after midnight on a Sunday in September 2018, Barton County Sheriff's Deputy Sierra Thorne observed Brady's pickup going 67 mph in a 55 mph zone, so she followed. Deputy Thorne saw the westbound pickup cross the center line of the road and move almost completely into the eastbound traffic lane. The road was clearly marked with a center line and fog lines.     Deputy Thorne initiated a traffic stop. Upon contacting Brady in his pickup, Deputy Thorne immediately recognized a strong odor of alcohol about him. Brady's speech was slurred, and his eyes were bloodshot. Brady had difficulty retrieving his driver's license and insurance card in response to Deputy Thorne's request. Brady admitted to having drunk one beer.     Deputy Thorne demonstrated and then asked Brady to perform a pair of field sobriety tests:  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 11, 2021  .. TCA:    Tennessee v. Martin  ..  At the August 2019 trial, Eric Scott, an officer with the Greeneville City Police Department, testified that he responded to the scene of a vehicle crash at 1:30 a.m. on August 3, 2017.     He stated that it took him and Officer Chad Ricker “a few minutes to actually find where the vehicle had left the roadway” because it was “an area where there was a lot of undergrowth and it was a wooded area.”     The vehicle had left the roadway and had “gone down into a ravine,” which Officer Scott estimated to be approximately 30-feet deep.     The defendant, Mr. Martin, appeals his Greene County Criminal Court jury conviction of driving under the influence (“DUI”), arguing that the trial court erred by denying his motions to dismiss and suppress and that the evidence was insufficient to support his conviction.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 11, 2021  .. 8th Cir.:    Towery v. MCAEOC  ..  The Commission is a non-profit in Blytheville, Arkansas that provides community-based services with the goal of alleviating poverty and assisting low-income people and families.     Towery, a naturalized citizen from Mexico, started working for the Commission in 1997 and was the Healthy Start Program Director from 1998 until she was fired in June 2017.     Towery made claims for both discrimination and retaliation.     Towery argues her suspension, probation, and termination were discrimination based on race and national origin.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 10, 2021  .. D.D.C.:    Trant v. Murray  ..  Plaintiff Jennifer Trant, an Officer in the United States Secret Service Uniformed Division, brings this action under Title VII of the Civil Rights Act.     In her two-count Complaint, Plaintiff alleges Defendants discriminated against her on the basis of sex and retaliated against her for engaging in protected activity, when they:   (1) scheduled her to work at the same post with her alleged harasser;   (2) informed her that she was no longer being considered for hiring as a Special Agent;   (3) did not select her for a Counter Surveillance Unit officer position; and   (4) failed to respond to an email inquiring about a future training opportunity.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 10, 2021  .. FLRA:  ALJ Union v. SSA  ..  Arbitrator Malcolm Pritzker issued an award finding that the Agency violated § 7114(b)(4) of the Federal Service Labor‑Management Relations Statute (Statute).[1] The Arbitrator denied some of the requested remedies, and the Union filed exceptions. As discussed below, we find that the remedy portion of the award is contrary to law, in part. Accordingly, we remand to the parties to resubmit to the Arbitrator, absent settlement, for further action consistent with this decision.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 10, 2021  .. 5th Cir.:    Offord v. Fulshear  ..  Offord began working in the position of City Secretary in May 2006. Offord was hired as an “at-will” employee meaning that either party could terminate the employment relationship at any time, with or without cause.     She was generally supervised by the mayor, the city council, and the planning commission. James Roberts was serving as mayor when Offord was hired, and Tommy Kuykendall was elected as mayor in 2010. C.J. Snipes served as city manager during most of the time Offord worked for the City. He was replaced by Kenny Seymour in 2018.     In March 2018, Seymour terminated Offord’s employment on grounds that she had violated the City’s employment policies against “misrepresentation or lying to a . . . member of the public” to the potential detriment of the City and for violating various “laws relating to dishonest activities or fraud.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 9, 2021  .. 5th Cir.:    Ernst v. Methodist  ..  Ernst worked as a Senior Transportation Analyst for Methodist Hospital System until his termination.     The hospital fired him after a job applicant alleged that Ernst had winked at him, grabbed and rubbed his own penis suggestively, and nodded for the candidate to follow him around the corner to the men’s room.     On receiving the complaint, Houston Methodist immediately launched an investigation.    Ernst sued Houston Methodist, alleging sex discrimination, retaliation, and race discrimination under Title VII.  ..  DECISION:   (.pdf)   (.html)

♦       June 9, 2021  .. SCNJ:    Richter v. Oakland BOE  ..  Richter was a science teacher employed by defendant Oakland Board of Education.     Plaintiff Mary Richter, a longtime type 1 diabetic and teacher, experienced a hypoglycemic event in a classroom. She sustained serious and permanent life-altering injuries.     Richter pursued through this action a claim under the Law Against Discrimination (LAD), alleging that her employer failed to accommodate her pre-existing disability.     The Court addresses two issues:  (1) whether Richter is required to establish an adverse employment action -- such as a demotion, termination, or other similarly recognized adverse employment action -- to be able to proceed with an LAD failure-to- accommodate disability claim; and   (2) whether plaintiff’s claim is barred by the “exclusive remedy provision” of the Worker’s Compensation Act (WCA) because she recovered workers’ compensation benefits.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 8, 2021  ..  No New Cases To Post Today. SORRY.

♦       June 7, 2021  .. FLRA:  IUPDJ v. USPBGC  ..  For decades, the United States Pension Benefit Guaranty Corporation (Agency) has contracted out certain administrative functions.     On May 17, 2018, the Union filed an institutional grievance concerning the decision to contract out the specialists’ remaining administrative duties. The parties advanced the grievance to arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 7, 2021  .. FLRA:  VA v. AFGE  ..  The Union filed a grievance alleging that the Agency was violating Article 48 of the parties’ agreement by denying requests for the use of allocated official time. The Agency denied the grievance, finding that it was not in violation of Article 48, and that the matter was not grievable.The Union thereafter invoked arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 7, 2021  .. FLRA:  Air Force v. AFGE  ..  The Union requests that we reconsider our decision in U.S. Department of the Air Force, Warner Robins Air Logistics Center (Warner Robins).     That case involved an equal employment opportunity (EEO) complaint and a grievance stemming from discipline based on information gained during the investigation of the EEO complaint. The Authority found that the grievance was barred under § 7121(d) because the grievance concerned the same matter as the earlier-filed EEO complaint.     In a motion for reconsideration (motion), the Union argues that the Authority erred in its factual findings and legal conclusions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 4, 2021  .. USC:    Williams v. Kingdom Hall  ..  Ms. Williams filed an Intentional Infliction Of Emotional Distress claim based on the manner in which Elders of the Kingdom Hall of Jehovah‘s Witnesses (Church) conducted a disciplinary hearing.     Ms. Williams and her family attended the Roy Congregation of the Jehovah‘s Witnesses Church. When Ms. Williams was fourteen years old, she met another Jehovah‘s Witnesses congregant. Initially, Ms. Williams and this congregant began seeing each other socially.     But the relationship quickly changed and over the next few months the congregant physically and sexually assaulted Ms. Williams.     Soon after, the Church began investigating Ms. Williams to determine whether she had engaged in the serious sin of ―porneia.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 4, 2021  .. 3rd Cir.:    Shropshire v. Shropshire  ..  In May 2018, Shropshire filed an Employment Discrimination Action against Pivot Physical Therapy (“Pivot”), his former employer, and Elizabeth Wheeler, his supervisor at Pivot. Shropshire, who is African American, claimed that he was wrongfully fired on the basis of his race.     Shropshire alleged that he was fired about a week after the May 31 incidents. He stated that, prior to the May 31 incidents, his performance was “perfect,” he was never late, and he never received complaints from clients. Shropshire also alleged that he was never given a written or oral warning about his behavior before being fired and that he had not seen the written evaluation from his May 10 meeting until after he filed a complaint with the Equal Employment Opportunity Commission (“EEOC”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 3, 2021  .. 7th Cir.:    Taylor v. Ways  ..  Plaintiff Percy Taylor was fired from his job as a police officer with the Cook County Sheriff’s Office. Taylor contends it was because of his race. He has sued the Sheriff’s Office under Title VII of the Civil Rights Act of 1964 and defendants Joseph Ways, Zelda Whittler, and Gregory Ernst under 42 U.S.C. § 1983 for violating the Equal Protection Clause of the Fourteenth Amendment.     Defendants maintain that Taylor was terminated for having fired pellets with an air rifle at his neighbor in March 2011, a charge that Taylor denies.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 3, 2021  .. CAT:    McCain v. Saint Thomas  ..  In 2016, Plaintiff/Appellant Teresa McCain (“Appellant”) worked as a Licensed Practical Nurse with Defendant/Appellee Saint Thomas Medical Partners (“Appellee”). According to Appellant, from November 2015 to April 2016, Dr. Stephen May engaged in a pattern of sexual harassment toward Appellant. The alleged sexual harassment consisted of unwanted hugging and touching, as well as one attempt on April 11, 2016, to kiss Appellant. On April 15, 2016, Appellant complained to her nursing supervisor, Diane Cooper, about Dr. May’s behavior.     According to Appellant, Dr. May thereafter verbally abused her. On May 2, 2016, Appellant further alleged that Dr. May pressed his backside to her while talking to another physician. Around May 6, 2016 was the last specific date that Appellant alleged that Dr. May touched her.     On June 3, 2016, Ms. Cooper gave Appellant a coaching feedback form related to multiple complaints of rude behavior by Appellant; at least one of the complaints came from an outside vendor. On the same day, Appellant complained to the office manager that Ms. Cooper was trying to “pad [the] record” to get her fired.  ..  COURT DECISION:   (.pdf)   (.html)

♦       June 2, 2021  .. FLRA:  Education v. AFGE  ..  In April 2018, the Union filed a grievance alleging that the Agency failed to timely pay the Union president and took retaliatory actions against her. The grievance proceeded to arbitration, where the Agency argued in a motion to dismiss that the Union’s grievance was not arbitrable. The Arbitrator denied the motion, but directed the parties to address arbitrability at the scheduled hearing.     Leading up to the hearing, the parties disagreed about whether the 2018 agreement – or an earlier agreement – governed the grievance and arbitration proceedings. In a July 2018 email, the Arbitrator stated that the validity of the 2018 agreement was a threshold issue that needed resolution but that he was not empowered to consider it. Accordingly, he postponed the hearing for five months to allow FLRA to resolve a ULP charge concerning the validity of the 2018 agreement.     Several months later, the Union requested that the Arbitrator place the arbitration in abeyance pending resolution of the ULP charge. The Agency objected, arguing that the Arbitrator should apply the terms of the 2018 agreement to resolve the grievance.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 1, 2021  .. FLRA:  IRS v. NTEU  ..  Arbitrator Joshua M. Javits issued two awards (the Javits awards) finding that the Agency violated the parties’ collective-bargaining agreement by not retroactively paying eligible employees’ transit subsidies.     As a remedy, he directed the Agency to reimburse the affected employees up to the maximum nontaxable amount in 26 U.S.C. § 132(f) – a part of the Tax Code.     After issuance of the Javits awards, the Agency paid the employees but withheld taxes from the transit‑subsidy payments.     Subsequently, the Union filed a grievance alleging the Agency committed an unfair labor practice (ULP) by not complying with the Javits awards. That grievance proceeded to arbitration before Arbitrator Andrew M. Strongin (the Arbitrator). He found that the Javits awards were ambiguous because they did not state whether the transit‑subsidy payments were subject to taxation. But, he also found that the Agency’s interpretation of those awards – as permitting it to withhold taxes – was inconsistent with the intent of the transit‑subsidy payment as a nontaxable subsidy. As a result, the Arbitrator concluded that the Agency failed to comply with the Javits awards, and he directed the Agency to reimburse the withheld taxes.     The main question before us is whether the grievance asking the Arbitrator to resolve the taxability of the transit‑subsidy payments is a “grievance” within the meaning of § 7103(a)(9)(C) of the Federal Service Labor-Management Relations Statute (the Statute).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       June 1, 2021  .. D.D.C.:    Chloe v. Dent  ..  Mr. Chloe alleges “that on October 1, 2020 George Washington University [GWU] violated [the] Family and Medical Leave Act of 1993 by terminating [him] while [he] was actively on [FMLA leave].”     Mr. Chloe alleges that his supervisor was aware that he was on FMLA leave.     Mr. Chloe also alleges that he is qualified to receive unemployment insurance benefits because GW “did not provide evidence to show that [he] engaged in misconduct.” In support, Mr. Chloe cites the “Determination by Claims Examiner,”     The District of Columbia Department of Employment Services Office of Unemployment Compensation Determination by Claims Examiner states: “The claimant indicated he was discharged for not being able to take a test required by the employer. The claimant stated he was not able to follow the instructions of the employer because he was out on approved FLMA” leave.     The determination further indicated that GWU “was contacted and instructed to provide proof of misconduct” but GWU did not do so.     Accordingly, Mr. Chloe was deemed qualified to receive unemployment benefits effective October 4, 2020.     Plaintiff Kenneth Antoine Chloe (“Mr. Chloe”), proceeding pro se, brings this lawsuit against the George Washington University (“GWU”) alleging a violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, et seq., in connection with the termination of his employment with GWU. Pending before the Court is GWU’s Second Motion to Dismiss.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 27, 2021  .. FLRA:  Border v. AFGE  ..  The grievant worked as a border patrol agent and served as a Union steward at the Lordsburg Border Patrol Station in New Mexico. Seeking eight hours of official time, the grievant submitted a written request to her watch commander.     The Agency denied the official-time request in part, approving two hours for the step-two grievance presentation and four of the six hours that the grievant requested for investigating complaints.     In this case, Arbitrator Bruce Ponder sustained a grievance alleging that the Agency wrongfully denied an employee (the grievant) official time.     The Agency filed exceptions to the award on nonfact, essence, and contrary‑to‑law grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 27, 2021  .. FLRA:  NATCA v. FAA  ..  The grievant missed a shift due to illness, and he requested sick leave to cover the absence. A week later, the Agency discovered that the grievant did not have enough sick leave, so the Agency converted the grievant’s sick-leave request to a leave-without-pay (LWOP) request and granted it.     The Union filed a grievance arguing that the Agency violated the parties’ agreement and Agency policy by not automatically converting the requested sick leave to annual leave.     Arbitrator Alan A. Symonette issued an award denying the grievance. He concluded that the parties’ agreement did not require the Agency to grant annual leave in lieu of the requested sick leave and that the Agency could deny annual leave based on staffing considerations.     The Union filed exceptions to the award, arguing that (1) the award conflicts with an annual-leave provision in the parties’ agreement, and (2) the Arbitrator effectively rewrote a provision of the parties’ agreement that requires the Agency to approve sick‑leave requests under certain circumstances.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 24, 2021  .. 4th Cir.:    Roberts v. Glenn  ..  This appeal arises out of a former employee’s allegations of same-sex sexual harassment by his supervisor and retaliatory termination.     Chazz Robert appeals from the district court’s entry of summary judgment in favor of his former employer, Glenn Industrial Group, Inc., on claims of sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.     We affirm the district court’s summary judgment as to Roberts’ retaliation claim, but vacate summary judgment as to his sexual harassment claim and remand for further proceedings.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 24, 2021  .. 6th Cir.:    Nitch v. EGCC  ..  Dr. William Nitch claims that Eastern Gateway Community College (EGCC) discriminated against him because of his age. But this appeal is not about age discrimination; it’s about timing. Because Nitch’s complaint was untimely, he cannot pursue his argument in federal court at all, so we affirm the district court’s dismissal.     In May 2018, Nitch received a right-to-sue notice from the Equal Employment Opportunity Commission. He promptly sued EGCC in federal district court within 90 days as required by 29 U.S.C. § 626(e). He contends (and EGCC doesn’t seem to dispute) that EGCC dragged its heels in discovery. But instead of pursuing a tailored remedy for EGCC’s conduct, he decided it was in his best interest to dismiss the case without prejudice and seek to refile later. He communicated his intent to EGCC, and the parties filed a stipulation of dismissal without prejudice in June 2019.     He refiled in October 2019. And EGCC moved to dismiss, arguing that Nitch’s case was barred by the ADEA’s 90-day statute of limitation. The district court dismissed his untimely claim because he brought the second iteration of his lawsuit outside the 90-day window.     Nitch argues that the dismissal was inappropriate because 1) the court should have equitably tolled the limitations period, 2) a contract implied in law between the parties tolled the limitations period, and 3) a three-year limitations period should apply.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 21, 2021  .. 6th Cir.:    Kaminsky v. Wilkie (VA)  ..  Kaminsky began working at the VA in 2001 as an education and training specialist in Chaplain Services at the VA Wade Park Medical Center, Cleveland, Ohio.    In 2004, the VA created a new position specifically for Kaminsky within the Social Work Service (SWS) because of her interest in grief and bereavement counseling. The VA categorized the position as “Training Specialist,” but the organizational descriptive title was “Grief/Bereavement Counselor & Educator.”    In May 2016, the VA assigned Debra King as the Assistant Chief of SWS.    King learned that, although Kaminsky had been working as a grief counselor since 2004, she was not licensed by the Ohio Counselor, Social Worker, and Marriage and Family Therapist Board (Ohio Board).    Medical Center Director Susan M. Fuehrer, the leadership decided to move Kaminsky to a different position in HR where she could maintain her GS-12 grade. Franks notified Kaminsky of the change on July 18, 2017, and she received official word of her reassignment change on July 31, 2017. Kaminsky was informed her new position, beginning on September 3, 2017, would be Human Resources Specialist (Employee Education and Development).    On February 28, 2020, Kaminsky retired from the VA.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 20, 2021  .. 6th Cir.:    Nichols v. Dwyer  ..  Patrol officer Matthew Nichols worked in the bargaining unit of the Warren Police Department for nearly two decades before he was appointed Deputy Police Commissioner, a non-bargaining unit position governed by his individual Employment Agreement.    Under that contract and the applicable collective bargaining agreement (CBA), if Nichols was removed from his position as Deputy Commissioner and from the Department altogether for disciplinary reasons, he had the right to return to the bargaining unit and to invoke the four-step grievance procedure of the CBA, which authorized the union to compel arbitration.    In the summer of 2018, Nichols was placed on unpaid administrative leave for his conduct during an arrest. A disciplinary hearing was held in June 2019, and he was fired from the Department soon after.    When Nichols tried to compel arbitration under the CBA, the City informed him that he was not entitled to the rights provided by the CBA.    Nichols brought this suit seeking damages for violations of his due process rights and state law and an order compelling arbitration under the CBA.    The district court denied his motion to compel arbitration and granted Defendants’ motion to dismiss the complaint.    HERE, Nichols appeals the district court's denied.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 19, 2021  .. CCA:    People v. Ricks  ..  “On July 24, 2016, at approximately 7:00 a.m., Ricks, a second male, and a female were standing by the entrance door to T. Singh’s minimart in Fresno when Singh unlocked the door. As Singh began walking towards the back of the store, Ricks approached him from behind, put an object to his back, and told him to get on the ground.       Ricks and the other male then took $370 from the cash register, a safe, and several packs and packages of cigarettes valued at $504 and left the store. After reviewing surveillance video, Fresno police officers identified Ricks as one of the robbers.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 19, 2021  .. 3rd Cir.:    Doe v. TCNJ  ..  Doe began her employment as a tenure-track Assistant Professor at TCNJ's School of Business in the fall of 2016. Before starting, she gave birth to her third child.    She alleges that the Dean of the School of Business and the School of Business’s Department of Finance Chair made inappropriate comments about her recent pregnancy and her family, suggesting that they were relieved to think she was through having children and would not need pregnancy related accommodations in the future.    Doe received positive peer reviews for classes she taught in 2017. But, after becoming pregnant with her fourth child, Doe says that the College faculty began to turn on her.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 19, 2021  .. 9th Cir.:    Walsh v. Arizona Logistics  ..  The Department of Labor brought an enforcement against Larry Browne and his companies Arizona Logistics Inc. [...]. Only Browne is party to this appeal.    The Secretary alleged that Browne and his entities violated the FLSA’s minimum wage, overtime, record-keeping, and anti- retaliation requirements by misclassifying delivery drivers as independent contractors rather than employees.    Browne moved to compel arbitration of the Secretary’s enforcement action based on arbitration agreements that he and his entities entered into with the delivery drivers.    The district court denied Browne’s motion, concluding that the Secretary cannot be compelled to arbitrate based on the Supreme Court’s decision in Waffle House. Browne timely appealed.       The question before us is whether a private arbitration agreement binds the Secretary of Labor when bringing a Fair Labor Standards Act (FLSA) enforcement action that seeks relief on behalf of one party to the arbitration agreement against the other party to that agreement.    We conclude that despite the Federal Arbitration Act’s (FAA) policy favoring arbitration agreements, the Supreme Court’s decision in EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), requires us to answer this question in the negative.    Therefore, we affirm the district court’s denial of the alleged employer’s motion to compel arbitration.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 18, 2021  .. 2d Cir.:    Asante v. Saks  ..  Plaintiff-Appellant Mr. Asante sued his former employer, the department store Saks [...] alleging discrimination [...]and “constructive discharge.”    Asante’s claims arise from his 2014 suspension without pay from his job at a Saks store in New York City following an internal investigation.    The investigation focused on a group of sales associates suspected of facilitating fraudulent purchases with stolen credit card information, working with non-employee conspirators.    In 2014, Asante facilitated two transactions that Saks flagged as suspicious because of the zip code associated with the credit card used. Upon review of relevant CCTV footage, the Store’s investigators concluded that the transactions were fraudulent. The Store then forwarded the footage to law enforcement authorities for further investigation. This referral resulted in Asante’s arrest and suspension without pay.    The criminal charges against Asante were subsequently dropped on speedy trial grounds.    Asante alleges that his suspension and Saks’s failure to reinstate him after the charges were dropped were unlawfully motivated by race.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 17, 2021  .. 6th Cir.:    Koch v. Thames  ..  Plaintiff-Appellant Amity Koch was a nursing-home nurse employed by the Defendant-Appellee Thames Healthcare Group.    Koch, who has Attention Deficit Hyperactivity Disorder (ADHD) and Major Depressive Disorder (MDD), was terminated by Thames after she violated its no-call/no-show attendance policy.    Koch sued Thames for disability discrimination and retaliation and interference and retaliation under the Family and Medical Leave Act (FMLA).  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 17, 2021  .. Fed. Cir.:    Doyle v. DVA  ..  Ms. Jocelyn Doyle appeals a decision from the Merit Systems Protection Board that affirmed the Department of Veterans Affairs’s denial of her request for corrective action in connection with her whistleblower complaint.     The Board determined that although Ms. Doyle had made whistleblower protected disclosures and that the agency had at least a slight motive to retaliate against her, the Department of Veteran Affairs established that it would have taken the same action in the absence of those protected disclosures.     Because the Board erred in that determination, we reverse.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 17, 2021  .. Fed. Cir:    Beck v. Navy  ..  This appeal marks the decade-long journey of a hard-working man who served his country honorably, only to face workplace discrimination on the basis of that service.     Jerry Edward Beck challenges a decision of the Merit Systems Protection Board denying corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994. The Board determined that Beck’s prior military service was a motivating or substantial factor in the United States Department of the Navy’s decision not to select him for an employment position. The Board, however, found that the Navy had permissibly preselected the successful applicant and, thus, met its evidentiary burden to establish that it would have hired her regardless of Beck’s military service.     In view of the totality of this record, we conclude that the Navy’s preselection determination is not supported by substantial evidence. We further hold that under the Uniformed Services Employment and Reemployment Rights Act of 1994, preselection can buttress an agency’s personnel decision to hire a less qualified candidate, but only when the preselection is not tainted by an unlawful discriminatory intent. Because we hold that the Board erred in finding that Beck’s nonselection would have occurred regardless of his prior military service as required under 38 U.S.C. § 4311(c)(1), we affirm in part and reverse in part the Board’s decision denying Beck’s request for corrective action.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 13, 2021  .. D.D.C:    Brigda v. Transportation  ..  Plaintiffs Andrew Brigida and Matthew Douglas-Cook, on behalf of themselves and a putative class, assert employment discrimination claims against the Federal Aviation Administration (FAA) under Title VII of the Civil Rights Act.     Before the Court is the FAA’s Motion to Dismiss in Part the Plaintiffs’ Fourth Amended Complaint.     The Court will deny the motion.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 13, 2021  .. ICA:    Iowa v. Solis  ..  After consuming “six or seven beers at the club” and then crashing his pickup into the back of a parked police vehicle that had its light bar on, Salvador Solis Ortega was charged with operating while intoxicated (OWI) and failure to maintain control of a vehicle.     The investigation leading to the charges consisted of discussions with and observations of Solis at the scene, transportation to a law enforcement facility where standardized field sobriety testing was conducted, administration of a preliminary breath test, invocation of implied consent procedures resulting in a request for a sample of Solis’s breath for testing, Solis providing a sample of his breath, and a Datamaster breath test result of .207.     Following a bench trial, Solis was found guilty of both charges and sentenced.     He appeals from the OWI conviction claiming (1) the evidence was insufficient to support the conviction; (2) his due process rights were violated by failing to provide a Spanish interpreter during the investigation and implied consent procedures; and (3) his Miranda1 rights were violated.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 12, 2021  ..  No New Cases To Post Today. SORRY.

♦       May 11, 2021  .. 6th Cir.:    Davis v. Parks & Rec  ..  Plaintiff Sara Davis appeals the district court’s decision to grant summary judgment to her former employer, the Metropolitan Parks and Recreation Department, in the Nashville, Tennessee area.     Plaintiff claims that Director Lynch created a “good ole’ boys atmosphere.     Plaintiff claims that her former employer retaliated against her. For the reasons set forth below, we affirm in part and reverse in part.         Plaintiff Ms. Davis was an employee at the Metropolitan Parks and Recreation Department in the Nashville, Tennessee area for over 38 years, from October 1978 to July 2017. During her tenure at the department, she worked in two divisions: the Community Recreation Division, where she spent 15 years, and the Revenue Producing Division, where she spent the rest of her time until her retirement. ... continued  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 11, 2021  .. Fed. Cir.:    Copeland v. Army  ..  Mr. Copeland worked as a sandblaster for the Army. On August 7, 2017, he was reported for being intoxicated in a work area and cited for Public Intoxication. Based on that incident, the Army proposed removing Mr. Copeland from employment.     To avoid removal, Mr. Copeland entered into a Last Chance Agreement (LCA) with the Army.     For a period of two years beginning on November 20, 2017, he agreed to “avoid alcohol consumption prior to and during the hours of work,” to “never report to work or perform official duties with alcohol and/or an illegal substance in [his] system,” and to submit to random alcohol testing.     The LCA noted that failure to comply with any of those requirements would constitute breach, and that any breach could result in Mr. Copeland’s removal “immediately without prior notice,” Mr. Copeland expressly “waive[d] all appeal rights,” including those to the Merit Systems Protection Board.     On May 13, 2019, Mr. Copeland submitted to random alcohol breathalyzer tests that indicated a blood alcohol level of 0.081 and 0.085. The Directorate for Emergency Services Law Enforcement Division cited Mr. Copeland for “Public Intoxication Endangering.” On May 16, 2019, the Army advised Mr. Copeland of his removal effective May 21, 2019, because he breached the LCA by “being on duty under the influence of alcohol.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 10, 2021  .. Fed. Cir.:    Tao v. MSPB  ..  Before the Board, Dr. Tao raised sixteen actions that she contended were protected under § 2302(b)(8), (9), or both.     The AJ appears to have addressed seven of these, and the AJ dismissed Dr. Tao’s appeal for lack of jurisdiction because she had not sufficiently alleged making protected disclosures under § 2302(b)(8). The AJ’s decision became the final decision of the Board on March 17, 2020. Dr. Tao petitions for review.     On review, of the sixteen total items, the Board admits that the AJ’s ruling was erroneous with respect to five of them, admits that the AJ erroneously failed to consider two items, and takes no position as to the remainder.     The Office of Special Counsel (OSC) has filed a brief as amicus curiae and argues that the AJ committed reversible error with respect to five of the actions raised by Dr. Tao.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 10, 2021  .. 8th Cir.:    Watson v. McDonough (VA)  ..  Monica Watson sued the Secretary of the Department of Veterans Affairs under Title VII of the Civil Rights Act [...] for race discrimination, retaliation, constructive discharge, and the hostile work environment she experienced during her employment at the Kansas City Veterans Affairs Medical Center.     Watson, who is a Black woman, began working for the VA as a Medical Records Technician Coder in 2006. In that role, she was responsible for inputting healthcare providers’ notes into patient medical records. In September 2014, the VA received new qualification standards for certain agency positions, including Watson’s. Under this new framework, Medical Records Technician Coders could rise only to General Schedule (GS) 8, a pay grade one level below the one Watson already held.     To avoid reducing the salaries of GS-9 medical coders like Watson, the VA “grandfathered” them into new roles at their existing pay grade. Watson and four other GS-9 medical coders were accordingly reclassified as Coding Document Improvement Program (CDI) coders. The new CDI coders, now in a working group referred to as the CDI program, remained responsible for performing some coding but also took on the role of auditing and training healthcare providers to improve the quality of their medical documentation. Watson’s salary remained the same.     Laurie Schwab was Watson’s supervisor during this period. According to Watson, Schwab failed to provide the CDI coders, three out of four of whom were Black women, with training and guidance on their new auditing and teaching duties, but she nonetheless “expected [them] to perform perfect work.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 6, 2021  .. FLRA:  NLRB v. NLRB Union  ..  Statement of the Case :     In this case, we take the opportunity to further clarify the standard for determining whether an agency action constitutes a change to a condition of employment, thereby triggering a duty to bargain. In the instant case, the Arbitrator found that the Agency violated a contractual duty to bargain because it changed a condition of employment by terminating the health services contract which provided employees with access to health service units at their workplace.     The Arbitrator also found that the Agency violated the parties’ agreement by cancelling the health services contract. As remedies, the Arbitrator ordered the Agency to restore the health services contract, to reimburse bargaining‑unit employees for medical expenses incurred for obtaining services elsewhere, to restore any leave that the employees used for receiving healthcare that would have been provided by the health service units, and to post notices regarding the outcome of the award.         The Agency appeals the arbitrator's findings.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 6, 2021  .. 4th Cir.:    Tinsley v. Charlotte  ..  This appeal involves the firing of a Charlotte-Mecklenburg Police Officer, Mr. Tinsley. Although City police officers were not prohibited from engaging in romantic relationships with other police officers, Tinsley alleged that he was subject to sex discrimination because he was fired while the female officer with whom he had a sexual relationship was not also fired for related misconduct.     The female officer had accused Tinsley of rape but, after an internal investigation, the charge was not sustained.     The defendant, the City of Charlotte (the City), argued at trial that the City fired Tinsley for misconduct unrelated to the rape allegation, and that Tinsley’s evidence was insufficient as a matter of law to establish Tinsley’s former romantic partner as a valid “comparator.”     In unsuccessfully arguing that Tinsley had failed to present evidence of a valid “comparator,” the City relied, among other things, on Tinsley’s different and more extensive record of misconduct.     The district court submitted the case to the jury, which returned a verdict for Tinsley in the amount of $125,000 on the sex discrimination claim and for the City on the race discrimination claim.     The City now appeals that decision, as well as the court’s award of back pay, front pay, tax offset, and attorneys’ fees.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 5, 2021  .. Fed. Cir.:    Martin v. Homeland  ..  Mr. Martin began working for ICE in August 2008, and he eventually became a Deportation Officer, a GS-12 position, in the Detroit Field Office. His removal stems from events that began on the evening of May 18, 2017, when Mr. Martin was off duty and driving in his personal vehicle in Macomb Township, Michigan, with his 10-year-old son. The prelude to the disputed aspects was Mr. Martin driving on a road when a car, driven by Donald Van Zile III, merged into Mr. Martin’s lane very closely in front of him. According to a traffic-camera video, Mr. Van-Zile braked, and Mr. Martin braked behind Mr. Van Zile’s car. Mr. Van-Zile then turned right into an apartment complex and stopped his car in the driveway. Mr. Martin soon stopped behind Mr. Van-Zile’s car, though he testified that he did not purposely follow Mr. Van-Zile into the driveway; instead, he asserted, his car slid into the driveway after he braked on the road.     On recordings from County Sheriff’s body cameras, Mr. Martin can be heard telling them, in his account of the preceding events, that he “grabbed” Mr. Van-Zile by the arm, took him back to Mr. Van-Zile’s vehicle, and told him to sit down and shut his engine off; that he asked for Mr. Van-Zile’s identification; and that he believed Mr. Van-Zile was intoxicated. See In his interaction with the deputies, Mr. Martin grew upset with Deputy Macioce, partly due to a previous incident between the two, involving Mr. Martin’s stepdaughter. Mr. Martin also had some conflict with Deputy Szalkowski, who advised Mr. Martin several times to return to his vehicle, which he refused to do.     On the following day, Mr. Martin accessed the National Criminal Information Center (NCIC) database, which re- quired him to first log into the Agency’s Treasury Enforce- ment Communication System (TECS), to conduct a record inquiry for Mr. Van-Zile.     Both databases are for official use only.     Mr. Martin was removed from his position as a Deportation Officer with the United States Immigration and Customs Enforcement (ICE or Agency) in the Department of Homeland Security in October 2018, based on four charges: (1) conduct unbecoming a law enforcement officer, (2) unauthorized use of a government database, (3) unauthorized use of an agency resource, and (4) lack of candor.     Mr. Martin and the American Federation of Government Employees, Local 46 (the Union) invoked arbitration following removal.     An arbitrator affirmed the Agency’s decision, finding that all four charges were supported by the evidence and the penalty of removal reasonable.     Mr. Maring appealed to the Federal Circuit.  ..  COURT DECISION:   (.pdf)   (.html)

♦       May 4, 2021  .. FLRA:  ARMY v. NFFE  ..  Arbitrator Gail Smith issued a preliminary award finding that the Union properly filed its grievance under the parties’ agreement.     The Agency filed exceptions arguing that the award fails to draw its essence from the parties’ agreement and is contrary to law. For the reasons set forth below, we grant the Agency’s essence exception and set aside the award.         In this case, we reaffirm that the Authority will grant review of interlocutory exceptions whose resolution will obviate the need for further arbitral proceedings.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 4, 2021  .. FLRA:  VA v. AFGE  ..  In this case, the Union filed a national grievance alleging that the Agency violated the parties’ collective-bargaining agreement (CBA) and various provisions of the Federal Service Labor-Management Relations Statute (Statute)[1] by submitting pre-hearing briefs to arbitrators in advance of arbitration hearings.     Arbitrator Gary L. Eder issued an award sustaining the Union’s grievance in its entirety.     The Agency argues that the award is contrary to law, that it fails to draw its essence from the parties’ CBA, and that the Arbitrator was biased.     For the reasons discussed below, we find the award so unclear that we are unable to determine whether it is deficient as contrary to law.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       May 4, 2021  .. OCA:    Caldwell v. Niles  ..  Plaintiff-appellant, Tami Caldwell, appeals the judgment of the Trumbull County Court of Common Pleas granting summary judgment to defendants- appellees, Niles City Schools (the “district”) [...] on Ms. Caldwell’s disability discrimination claims.     In her sole assignment of error, Ms. Caldwell contends that the trial court erred by granting summary judgment to the defendants because genuine issues of material fact exist.     After a careful review of the record and pertinent law, we find that the record contains sufficient evidence to create genuine issues of material fact as to whether     (1) the defendants took an adverse employment action against Ms. Caldwell based on her disability in the form of a constructive discharge, and     (2) the defendants made a good faith effort to reasonably accommodate her. Therefore, the trial court erred in granting summary judgment to the defendants.     Thus, we reverse the judgment of the Trumbull County Court of Common Pleas and remand for proceedings consistent with this opinion.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 29, 2021  .. CCA:    Wilson v. SEIU  ..  Wilson is a former employee of the State Lands Commission (the Commission). She was hired in July 2014 as an “Office Technician (Typing)” under the Limited Examination and Appointment Program, which is designed to help persons with disabilities get jobs in the state civil service.     She held her position for just over two years, resigning on October 25, 2016. During her employment with the Commission, Wilson was a member of SEIU, the exclusive bargaining representative for the Office and Allied Bargaining Unit.     Wilson alleges that while employed by the Commission, she was the target of sexual harassment, bullying, intimidation, and discrimination by various coworkers, including other SEIU members. Wilson filed a grievance with her employer and attempted to secure SEIU’s assistance with that grievance, but was told that, due to a conflict of interest, SEIU would not assist her.     In October 2018, Wilson filed a complaint against the Commission, SEIU, and others, predominantly alleging sexual harassment, privacy violations, and discrimination based on age, gender, and disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 29, 2021  .. FLRA:  VA v. AFGE  ..  Following a series of incidents, the grievant, a probationary nursing assistant, reported to her supervisor that a coworker was harassing her on the basis of race.     Several months later, the Agency investigated but the matter was unresolved. The grievant was intermittently absent during this period and ultimately stopped reporting to work.     The Union then filed a grievance asserting that the Agency had violated provisions in the parties’ agreement pertaining to equal employment opportunity and general working conditions by failing to protect the grievant from a pattern of bullying and harassment on the basis of race.     While the grievance was pending, the Agency terminated the grievant during her probationary period for failing to follow leave request procedures, which had resulted in a charge of about 776 hours of absence without leave. The parties then submitted the grievance to arbitration.         Arbitrator Timothy B. Tobin sustained a grievance challenging a probationary employee’s termination. The Agency filed exceptions contesting the Arbitrator’s jurisdiction to resolve the grievance on contrary-to-law grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       April 27, 2021  .. CCA:    Sanchez v. Brown Automotive  ..  Sanchez’s Complaint :    Sanchez worked as a receptionist at one of Brown Automotive’s dealerships, Puente Hills Nissan. In December 2019, Sanchez filed this action against Brown Automotive and two of its male employees, alleging she resigned from her position because she was subjected to “severe sexual harassment, discrimination, and abusive conduct” in connection with her employment at the dealership, including, but not limited to:    (1) male employees hugging her from behind without her consent and holding onto her until she pushed them away;    (2) male employees asking her on dates and, when she declined the advances, circulating rumors that she was involved sexually with someone else;    (3) male employees staring at her “in a sexually suggestive manner” and attempting to “look down her shirt”;    (4) a male employee walking behind her desk chair where she was sitting and “mimicking ‘humping’ her from behind,” while other male employees watched and laughed;    (5) a male employee sending her sexually suggestive text messages “at all hours of the day, but mostly at night,” although she never gave him her cell phone number; and    (6) a male employee making sexually suggestive comments to her at work. She alleged Brown Automotive was aware of its employees’ inappropriate conduct but failed to do anything to prevent or stop it.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 26, 2021  .. D.D.C.:    Vaughan v. CCPS  ..  The Complaint describes two allegations of sexual assault that occurred in Maryland. The first occurred after Gordon informed Vaughan that the company “was granting her transfer request” and invited her to the company’s Prince George’s County headquarters in Maryland to sign the necessary paper work.    When Vaughan first appeared, Gordon informed her to return later in the evening because the paperwork was not ready.    When Vaughan returned to the headquarters, she found a group of officers, including Gordon, gathered together.    Gordon and another officer invited Vaughan to drink; she felt awkward but accepted, drinking only a small amount.    Gordon then invited Vaughan into his office to sign the paperwork.    He “closed the door, turned off the lights, undid his belt, walked up behind her, and started taking off her pants . . . and . . . began sexually assaulting her.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 26, 2021  .. FLRA:  VA v. AFGE  ..  The Union requests that we reconsider our decision in U.S. Department of VA, John J. Pershing Veterans Administration Medical Center (Pershing). In that case, the Union filed a grievance in March 2017. The Union invoked arbitration on that grievance in October 2018. The Arbitrator found that that the Agency had waived any timeliness objections by failing to raise them prior to arbitration; and even if it had not, the grievance alleged a continuing violation which allowed the Union to invoke arbitration at any time. The Authority found that the award failed to draw its essence from the parties’ agreement.     In a motion for reconsideration (motion), the Union argues that “the Authority’s decision is so erroneous in its application of the facts it is a wrongful conclusion of law,” and the Authority erred by “fail[ing] to recognize the Arbitrator’s findings as stated in [then‑]Member DuBester’s dissenting opinion.”  ..  FLRA DECISION:   (.pdf)   (.html)

♦       April 26, 2021  .. OCA:    State v. Hamilton  ..  Defendant-appellant Ms. Hamilton was convicted of operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and speeding in violation of R.C. 4511.21.     She has appealed, arguing in three assignments of error that (1) her right to due process was violated by the law enforcement officer’s avoidance of the field of view of his police cruiser camera while administering the field-sobriety tests, (2) she was denied the effective assistance of trial counsel, and (3) her conviction for driving while under the influence of alcohol was based upon insufficient evidence and against the manifest weight of the evidence. Hamilton does not challenge her speeding conviction.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 26, 2021  .. KCA:    State v. O'Dell  ..  After pleading guilty to theft on June 21, 2018, the district court sentenced Tiffany L. O'Dell to 9 months in prison but granted her a 12-month term of probation. About six months after sentencing, O'Dell admitted to violating her probation by failing to report and failing to get written permission before leaving the state. The district court imposed a three-day jail sanction and modified and extended the probation.     A few months later, on April 16, 2019, O'Dell pled guilty to possession of methamphetamine and theft. She was sentenced to a controlling 18 months in prison with the sentence to run consecutive to any other sentences previously imposed, but the district court then granted O'Dell an 18-month term of probation.         Three months later, O'Dell admitted to violating her probation when she failed to report and failed to enter inpatient substance abuse treatment.     The district court once again modified her probation and ordered that she remain in the county jail for up to 60 days or until a bed became available at the treatment facility.     Two months later, a warrant was issued alleging O'Dell violated her probation when she was unsuccessfully discharged from impatient treatment and failed to notify her probation officer of her change of address. By December 2019, a second warrant was filed against O'Dell. The warrant alleged that O'Dell left the state without permission, was arrested in Pawnee County, Oklahoma, and pled guilty to a new felony—unauthorized use of a vehicle—in that county.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 23, 2021  .. 11th Cir.:    Suber v. Lowes  ..  Suber worked at a Lowe’s Home Improvement in Georgia. On August 3, 2017, after shopping at that Lowe’s as a customer, Suber began to exit the store. On his way out, Suber encountered another customer who threatened to kill both him and everyone in the store. On several occasions afterwards, Suber reported the incident to Lowe’s—both in conversation and through emails. In one email sent to human resources manager Randi Gordon and store manager Scott Campbell, dated August 11, 2017, Suber critiqued the response of Lowe’s to the August 3, 2017 incident. Suber alleges that Lowe’s later terminated him in retaliation for “his opposition to Lowe’s” and for emails that he wrote to the corporate office at Lowe’s.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 22, 2021  .. FLRA:  FDA v. NTEU  ..  The grievant spends a quarter to half of his time in the field. Pursuant to the parties’ agreement, the grievant submitted a request for a recurring telework agreement to his supervisor in August 2017. The supervisor denied the request in September. The Union subsequently filed this grievance. The Agency denied the grievance, and the Union invoked arbitration.     The issue, as framed by the Arbitrator, was “[d]id the Agency violate [the] law or the parties’ [agreement] when it denied [the g]rievant’s request for a recurring telework agreement in September, 2017.”     As relevant here, Article 26 of the parties’ agreement provides for two types of telework agreements, episodic and recurring. Recurring telework “may be used when there is recurring opportunity to perform work at an alternate site,” and episodic telework may be used “for individual days or hours within a pay period, or for a special assignment or project on a short[‑]term basis.”     The Arbitrator found that the grievant has been teleworking since 2011, his work has been satisfactory since 2011, and his situation meets all of the requirements for telework. The Arbitrator further found that “[a]lthough a position with significant fieldwork doesn’t perfectly fit the definitions [of recurring or episodic telework], it is a closer fit to the definition of recurr[ing] telework.” Based on this, the Arbitrator found that the Agency “violated [the] law and [Article 26] when it refused to provide [the g]rievant a recurr[ing] telework agreement.” As a remedy, the Arbitrator ordered the Agency to enter into a recurring telework agreement with the grievant.     The Agency filed exceptions on March 23, 2020, and the Union filed its opposition on April 22, 2020.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       April 22, 2021  .. 10th Cir.:    Nazinitsky v. IntegrisIBM  ..  Dr. Allison Nazinitsky was paid less, but purportedly worked harder, than three of her more experienced male colleagues. She claims that this arrangement violated the Equal Pay Act.     In 2015, INTEGRIS Baptist Medical Center, Inc. d/b/a Nazih Zuhdi Transplant Institute (“Integris”) hired Dr. Nazinitsky for a two-year term as a transplant-infectious- disease physician, her first physician position after her residency and fellowship.     Her desired compensation was $250,000. Integris provided this in base compensation ($225,000 in base salary and $25,000 for medical-director services) and, additionally, offered a second-year performance bonus of up to $25,000.1 Integris set this compensation after reviewing an opinion letter from Navigant, an independent consulting firm, regarding the market compensation for a physician of Dr. Nazinitsky’s specialty, experience, and skills.     Dr. Nazinitsky left Integris after the two-year term, choosing not to renew her contract after learning of staff misconduct allegations made against her. About a year later, she filed an administrative proceeding with the Oklahoma Attorney General’s Office and the Equal Employment Opportunity Commission, charging discrimination, and the next year, she filed this lawsuit.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 22, 2021  .. 11th Cir.:    Blash v. Cape  ..  Blash, who is African American, worked as a deputy sheriff in the Pulaski County Sheriff’s Office from 2010 until he was fired on December 1, 2014 by then-Sheriff Cape, who was Caucasian. Brannen, who is also Caucasian, held the position of Captain at the time and was Blash’s supervisor.     Brannen demonstrated racial bias against African Americans by using the word “n***er” to refer to African Americans on several occasions and by making other racially derogatory comments while on the job at the Sheriff’s Office. For example, during a dispute with an African-American businessman about whether the man had a business license, Brannen said to the man, “You know how you can tell if a black person is lying?” When the man’s wife responded, “How?” Brannen said, “If they are black and moving their lips.”     Sheriff Cape was aware of and condoned—or at least tolerated—Brannen’s racial bias. Cape was present on one occasion when Brannen was discussing a call by an African-American civilian and referred to the caller as a “dumbass n***er.” When a deputy who was also present objected to Brannen’s racist language, Cape just laughed and Brannen kept talking.     One time, during a “town hall” meeting at a local church, several African-American citizens complained to Sheriff Cape about racist and abusive treatment by Brannen. Cape generally made excuses for Brannen’s racist conduct and language or took Brannen’s side in denying that any incidents of discrimination occurred.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 21, 2021  .. 11th Cir.:    Tonkyro v. VA  ..  This appeal arises from a Title VII action filed by four ultrasound technologists at the James A. Haley VA Healthcare System (“Tampa VA”) against the Secretary of the Department of Veterans Affairs (“the Secretary”).     All Plaintiffs allege that their supervisors and coworkers retaliated against them and subjected them to a hostile work environment because they engaged in protected EEOC activity. One Plaintiff also alleges that she was subjected to a hostile work environment based on her sex.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 20, 2021  .. 8th Cir.:    Weatherly v. Ford  ..  After Ford Motor Company fired Malik Weatherly, an assembly-line worker at one of its plants, Weatherly sued, asserting that Ford had terminated him (twice), and had taken other adverse employment action against him, because of his asthma and scoliosis. He laid claims under the Family and Medical Leave Act, the Americans with Disabilities Act, and the Missouri Human Rights Act. The district court dismissed Weatherly's FMLA claims as time-barred, and it dismissed his ADA and MHRA claims on the ground that he had failed to exhaust his administrative remedies. Weatherly appeals these dismissals, and we affirm in part and reverse in part.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 20, 2021  .. WCA:    Becker v. VMC  ..  Jose Gomez was the only male Medical Assistant (MA) at Valley Medical Center’s (VMC) New Castle Clinic. He was a known jokester who frequently poked his colleagues and pulled their hair. Colleague Fawn Becker complained to management about Gomez’s harassing conduct. After an investigation, VMC told Becker her complaints were unsubstantiated. Becker found another job and resigned. She filed claims for sexual discrimination/harassment hostile work environment, constructive discharge, and wrongful discharge in violation of public policy against VMC.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 20, 2021  .. PCC:    Dunn v. PA DHS  ..  Dunn initiated this case by writ of summons in 2017.2 In January 2020, he filed a “complaint” asserting a claim under the Whistleblower Law (Petition),3 against his former employer, Warren State Hospital (Hospital or Employer),4 alleging the following facts. .     From his hire in February 2016, until his discharge from employment in July 2017, Dunn was the Institutional Safety Manager. In that capacity, it was Dunn’s job to report safety issues and threatening behavior. See Pet.     Dunn alleges he was the victim of workplace violence (threats and humiliation) throughout his 17-month tenure at the Hospital at the hands of Ronnie Cropper, the Hospital Chief Operating Officer (COO). Dunn was on probationary status and he consistently received unsatisfactory performance reviews from COO until his termination from employment on July 21, 2017. .     Dunn reported a near physical assault by COO on March 9, 2017. He made a second report related to an incident on July 12, 2017 outlining COO’s poor treatment of him days before his discharge. Both incidents involved COO yelling at Dunn in anger in the workplace.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 19, 2021  .. FLRA:  AFGE v. VA  ..  Statement of the Case :    The Union filed a motion for reconsideration (motion) of the Authority’s decision in AFGE, Local 2338 (AFGE) two days after the regulatory filing deadline.    Background :    On December 11, 2020, the Authority issued its decision in AFGE to the parties via certified mail. In that decision, the Authority denied the Union’s exceptions challenging the Arbitrator’s award. On December 30, the Union filed its motion to reconsider AFGE via fax.     Subsequently, the Authority’s Office of Case Intake and Publication issued an order directing the Union to show cause (the order) why the motion should not be dismissed as untimely filed. The Union filed a timely response to the order (response).     In the response, the Union’s attorney acknowledges the “delay” in filing the motion, but claims that his “illness and mandatory absence, quarantine, from his office prevented [him] from filing the motion on an earlier date.”  ..  FLRA DECISION:   (.pdf)   (.html)

♦       April 16, 2021  .. FLRA:  Customs and Border v. NTEU  ..  The Union filed two grievances, one on behalf of a grievant who received a fourteen‑day suspension, and a second concerning how the Agency conducted the investigation. Both grievances were submitted to the Arbitrator. Before a hearing was scheduled on either grievance, the Agency filed a motion to exclude the Union’s representative from both grievance proceedings before the Arbitrator.     The Arbitrator concluded that she “[did] not have the authority to grant the Agency’s [m]otion.” On February 27, 2020, the Agency filed exceptions to the Arbitrator’s decision.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       April 16, 2021  .. FLRA:  Customs and Border v. NBPC  ..  The grievant, Border Patrol Agent Claritza Perez, is assigned to Laredo South Border Patrol Station. On February 13, 2016, while in the processing area of the Laredo South Station, Supervisory Border Patrol Agent Kent Galindo overheard other agents discussing an incident where Perez allegedly pointed a taser and her Agency-issued firearm at Border Patrol Agent Charles Mellado. Galindo reported the matter.         On February 23, 2016, [...] Mario Martinez, issued written notification to Perez that her law enforcement status was temporarily suspended; that she was required to relinquish her badge, credentials, and agency issued firearm; and would be assigned administrative duties pending completion of a full investigation.     The Union filed a grievance.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       April 16, 2021  .. CCA:    Rubio v. CIA Wheel Group  ..  CIA Wheel Group dba The Wheel Group (CWG) and Wheel Group Holdings dba The Wheel Group (Holdings) appeal from a judgment entered against them after a bench trial in a wrongful termination action brought by former employee Maria Teresa Lopez. Lopez alleged, inter alia, that CWG terminated her in violation of public policy because she had cancer. Lopez died during the first trial of this matter, and the court declared a mistrial. The court appointed Lopez’s three children (hereafter plaintiffs) as her successors in interest.     Following a second trial, the court found CWG terminated Lopez due to her medical condition, awarded plaintiffs $15,057 in economic damages, and added Holdings as a judgment debtor as the alter ego of and/or successor in interest to CWG, which had been dissolved. The court determined punitive damages were warranted, found Lopez’s noneconomic damages to be in the $100,000 to $150,000 range but not recoverable by plaintiffs after her death due to the provisions of Code of Civil Procedure section 377.34,1 and awarded punitive damages in the amount of $500,000 against appellants.         Appellants contend: 1) the punitive damages award is constitutionally excessive because it is 33 times the amount of the economic damages award; 2) the punitive damages award is excessive under California law; 3) the trial court erred in considering Holdings’s financial condition in determining the amount of punitive damages; and 4) substantial evidence does not support the trial court’s finding that an officer, director or managing agent of CWG acted with fraud, oppression or malice, or that any such conduct was ratified by CWG.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 15, 2021  .. 10th Cir.:    Thomas v. Farmers  ..  Farmers Insurance Exchange (“Farmers”) employed Mr. Thomas as a service advocate in its Olathe, Kansas, office.    Mr. Thomas is gay and male. He claims Farmers discriminated against him by not selecting him for an Account Underwriter Specialist (“AU”) position, retaliated against him by issuing a final warning when he filed a discrimination complaint, and then retaliated against him again by terminating his employment when he filed this lawsuit.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 15, 2021  .. DOJ OIG INVESTIGATIONS :    A Wisconsin man pleaded guilty to bank fraud for his role in fraudulently obtaining over $600,000 in Paycheck Protection Program (PPP) loans ... under the Coronavirus Aid, Relief, and Economic Security (CARES) Act..   .html

♦       April 15, 2021  .. 11th Cir.:    Henderson v. LabCorp  ..  LabCorp operates clinical laboratories throughout the country. In 1973, Ms. Henderson began working as a laboratory technician in LabCorp’s Birmingham office. By 2011, Henderson oversaw four departments in LabCorp’s Birmingham office.     As part of a 2011 restructuring led by Rudy Menendez, Vice President of Laboratory Organizations, Henderson’s responsibilities were reduced to overseeing only two departments. The next year, Henderson’s responsibilities were reduced again, leaving her with oversight of only the Birmingham microbiology department.     ...     After working for Laboratory Corporation of America (“LabCorp”) for 42 years, Ms. Henderson was terminated on April 13, 2016, at the age of 65. Henderson sued LabCorp for age discrimination under the Age Discrimination in Employment Act (“ADEA”), claiming LabCorp fired her because of her age.     LabCorp denied the allegation and asserted that it terminated Henderson because of her poor performance over multiple years in violation of its policies. Upon LabCorp’s motion, the district court granted LabCorp summary judgment because it found that Henderson failed to identify evidence from which reasonable jurors could find that LabCorp terminated Henderson because of her age.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 13, 2021  .. CCA:    Fail v. DMV  ..  At approximately 10:50 p.m. on February 3, 2018, California Highway Patrol Officer E. Soltero Jr. was on patrol in his vehicle when he noticed a sedan with its tail lights not functioning properly traveling near him. Officer Soltero initiated a traffic stop. After stopping the vehicle, Officer Soltero approached the vehicle and spoke with the driver, later identified as Fail.     While speaking with Fail, Officer Soltero observed that Fail’s eyes were red and watery and that he smelled of alcohol. Fail admitted to having consumed three or four Heineken Lights before driving.         After being arrested for driving under the influence and driving with a blood alcohol content of .08 percent or more. Mr. Fail filed a petition for writ of mandate in the trial court seeking to overturn the suspension of his driver’s license by the Department of Motor Vehicles.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 13, 2021  .. 7th Cir.:    Lymon v. UAW  ..  In July 2004, after Lymon lost his job, his union agreed to grieve the discharge but had him wait seven years for a resolution. Lymon was a dues‐paying member in good standing with his union, the United Auto Workers Union, Local 2209. Believing that his discharge violated the collective bargaining agreement, he asked his union to contest the discharge. In late 2004, the union agreed to file the grievance. But unknown to Lymon, the union let the grievance sit idle for three years, during which time the union refused to answer Lymon’s inquiries about its status. In June 2007, the union withdrew the grievance. Even then, it did not tell Lymon about the withdrawal, despite his further inquiries.     He learned of the withdrawal only four years later, in April 2011, when the local union’s new leader finally responded to Lymon. The leader saw that Lymon never received notice of the withdrawal, so that month—seven years after the grievance’s filing, and four years after its withdrawal—the union notified Lymon that his case had been withdrawn.     Lymon immediately appealed within the union, a step that the union requires of its members before they may sue. Lymon first appealed locally. Because the withdrawal occurred four years earlier, the union ruled in July 2011 that his appeal of the withdrawal was untimely. Lymon appealed that decision to the union’s international board. It notified him in March 2012 that his appeal was pending and then rejected it in December 2012 as untimely.     Anticipating this result, Lymon filed a charge of discrimination with the EEOC within nine months of the local union’s rejection of his appeal.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 12, 2021  .. 7th Cir.:    Melton v. Pavilion  ..  The Pavilion Behavioral Health System, a childcare facility, hired Melton to work in its kitchen and serve meals to young residents.     As a state-licensed childcare facility, Pavilion is required by the Department of Children and Family Services to run background checks on its employees. About two years into Melton’s employment, and while he was on medical leave for carpal-tunnel surgery, Pavilion ran background checks on several employees, including Melton.     Melton’s background check revealed a criminal history that included convictions for domestic battery and sexual abuse.     The Department informed Pavilion that Melton was ineligible to keep his job, so Pavilion fired him.     Melton sued Pavilion for unlawful discharge.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 12, 2021  .. D.D.C.:    Jackson v. Starbucks  ..  The basis for this suit concerns an alleged altercation that occurred between Jackson, an African American man and Starbucks customer, and various Starbucks employees. Jackson entered the Starbucks located at 2130 H Street, NW, Washington D.C. on the afternoon of April 24, 2018.     After picking up a small package of pre-wrapped madeleine cookies from the counter, he started to walk towards the end of the line of customers waiting to make their purchase.     At this time, the Starbucks cashier, Richard Washington, said to Jackson something to the effect of “Sir, you’re not supposed to touch those” or “Sir, you have to pay for those.”     Jackson responded by saying, “What, do you think I’m going to steal it?”     Washington continued to insist that Jackson return the cookies to the shelf, at which point Jackson asked to speak to a manager.     Jackson then had a brief, roughly two-minute conversation with White-Hunt, the store manager, after which time Jackson walked to the end of the customer line to wait to make his purchase.     Shortly thereafter, Washington, “a large and physically imposing man” came out from behind the counter and “walked aggressively towards [] Jackson.”     Jackson alleges that he did so “on White-Hunt’s instruction or with his encouragement.”     White-Hunt followed after Washington. Washington then moved White-Hunt out of the way, muttered “he gotta get out,” and pushed Jackson. Jackson responded by telling Washington, “Big man, don’t put your hands on me no more,” at which point Washington pushed Jackson to the floor.     As a result of the fall, Jackson briefly lost consciousness and apparently suffered a seizure. Within five minutes, medical personnel arrived on the scene and took him to a nearby hospital.     Later that day, White-Hunt called a Starbucks reporting line to file an oral incident report of the physical altercation, representing that “[p]olice were not called” and that “[n]obody was injured.”     He also reported a starkly different situation than the one painted by Jackson in his amended complaint, stating that “[Jackson] shouted at [White-Hunt] using profanity words . . . [White-Hunt then] overheard the customer yell at the front end barista, Chelsie, that he was going to mess her up and yelled at her. . . [a]t that time, another barista, [Washington], approached the customer and advised the customer to leave the premises. [Jackson] got more aggravated and proceeded to attack [Washington]. In defense, [Washington] held the customer back until the campus police arrived . . .”     Jackson continues to experience back and neck pain as a result of the incident, and has incurred medical expenses to treat these injuries.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 9, 2021  .. 4th Cir.:    Kitlinski v. DOJ  ..  The Drug Enforcement Administration (DEA) 1 terminated the employment of Plaintiffs-Appellants Darek and Lisa Kitlinksi after they refused to participate in an internal investigation into their own allegations of misconduct by the DEA. At the time of his termination, Darek was serving on active duty with the U.S. Coast Guard. The Kitlinskis contend that the DEA terminated Darek in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Kitlinskis further assert that the DEA terminated Lisa in retaliation for her support of Darek’s USERRA claims against the DEA. The Kitlinskis also argue that the DEA retaliated against them for their prior protected activity in violation of Title VII of the Civil Rights Act of 1964.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 9, 2021  .. Fed. Cir.:    Terry v. Agriculture  ..  Petitioner Mr. Terry appeals from a decision of the Merit Systems Protection Board upholding his removal from his position as an Information Technology Specialist with the U.S. Department of Agriculture (“USDA”).     Mr. Terry was appointed to his position with the USDA on November 30, 2014. As an Information Technology Specialist, he had access to sensitive information. The agency accordingly classified his position as requiring a high degree of trustworthiness.     The Office of Personnel Management (“OPM”) completed its background investigation of Mr. Terry on November 9, 2015.     The Personnel and Document Security Division of the USDA reviewed the background investigation report in early 2018. In the course of assessing the issue of financial responsibility, a USDA personnel security specialist noted that Mr. Terry had gone through bankruptcy in 2009 and that OPM’s investigation had identified twelve unpaid debts, of which nine had been sent for collection and three had been charged off as uncollectable, see J.A. 186, 195. On April 24, 2018, the personnel security specialist sent a letter to Mr. Terry regarding those delinquent accounts, requesting that he respond to the letter within 30 days.     Mr. Terry did not respond to the letter, nor did he respond to a follow-up email raising the same issue.     On May 30, 2018, the Personnel Security Branch of the USDA’s Personnel and Document Security Division deterraised by the investigation, that it could not make a favorable determination on Mr. Terry’s eligibility to occupy a position designated as a moderate risk public trust level position.     The agency placed Mr. Terry on administrative leave as of June 15, 2018, due to the issues surrounding his background investigation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 8, 2021  .. 6th Cir.:    Million v. Warren County  ..  Million was a corrections officer for the Warren County Jail (the “Jail”) from September 2006 to January 2016. The Jail required at least two female corrections officers to work every shift. As a result, female officers sometimes had to work forced, female-only overtime and received unequal priority compared with male coworkers when bidding for shifts. Million challenged this policy as discriminatory in several internal grievances, beginning in 2012, and a 2013 charge with the Equal Employment Opportunity Commission. From March 2014 to December 2015, the Jail disciplined her several times, audited her internet usage, initiated several sick-leave reviews, and revoked her position as a “field training officer.” Believing these actions were taken in retaliation for her discrimination complaints and would continue, she submitted a resignation letter in late December 2015 and worked her last day in early January 2016. She then filed this action alleging discrimination and retaliation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 8, 2021  .. Fed. Cir.:    Sphatt v. DHS  ..  Ms. Sphatt began working for the Office of Security and Integrity (OSI) within the Agency in 2002 and eventually became a Senior Immigration Services Officer. In March 2016, the Agency received an internal complaint that, in May 2015, in connection with an immigration matter involving Ms. Sphatt’s close friend, Jing Pei Mao, and his wife Ghun Feng Gan, Ms. Sphatt had included her official job title and a photocopy of her government credentials when submitting an affidavit to attest to the bona-fide nature of Mr. Mao and Ms. Gan’s marriage.     The complaint came from an Agency employee handling the immigration matter of Mr. Mao and Ms. Gan. The same employee also filed a second complaint after Ms. Sphatt, on March 17, 2016, again included her official title and her credentials when submitting another affidavit in the same matter in support of Mr. Mao and Ms. Gan. In both documents, Ms. Sphatt also provided her government e-mail address and office phone number as preferred contact information for any further inquiries.     Following an internal investigation, on May 2, 2017, a Disciplinary Review Board of the OSI issued a Notice of Proposed Seven Day Suspension to Ms. Sphatt for misuse of her government position and misuse of government credentials.         On June 27, 2017, while Ms. Sphatt’s suspension notice was pending review, the Agency received a separate complaint stating that, during the internal investigation, Ms. Sphatt made certain representations that conflicted with information she provided in employment security paperwork.     Ms. Sphatt was removed from her position as an Immigration Officer at the Department of Homeland Security’s United States Citizenship and Immigration Services (the Agency) in April 2019 for misuse of her government position and government credentials, lack of candor, and unauthorized use of a government database.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 7, 2021  .. FLRA:  AFGE v. SSA  ..  On April 17, 2017, the grievant attended an “[i]ntervention” meeting held by Agency and Union officials to discuss official time and its usage. On November 8, 2017, the Agency issued the grievant a reprimand for his failure to request official time for a meeting at his duty station regarding an equal employment opportunity matter.         Subsequently, the Agency met with the grievant on or about December 18, 2017 concerning his alleged failure to adequately document his official time. The Agency then conducted “Weingarten” investigatory interviews regarding the grievant’s documentation of his official time use. The first interview occurred on March 12, 2018 for official time use on January 31. The second interview occurred on March 26 for official time use on March 14-16. The Agency then suspended the grievant for two days on June 8.     The Union grieved the suspension and ultimately invoked arbitration.         At arbitration, the parties stipulated that the issues were whether the Agency had “just cause to discipline the [g]rievant for failing to follow Agency rules regarding the use of [o]fficial [t]ime,” and if so, was the “two-day suspension an appropriate penalty?”         Arbitrator David J. Weisenfeld found that the Agency had just cause to suspend the grievant, a Union official, for two days for violating official-time rules (rules) in the parties’ collective-bargaining agreement. The Union filed exceptions on nonfact, fair‑hearing, essence, and contrary-to-law grounds. We find that the Union’s exceptions do not demonstrate that the award is deficient and we deny them.  ..  FLRA DECISION:   (.pdf)   (.html)

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♦       April 1, 2021  .. 7th Cir.:    EEOC v. Walmart  ..  The Walmart store in Hayward, Wisconsin, is open 24 hours a day, 7 days a week. It is especially busy on Fridays and Saturdays from late May to late August, the peak tourism season.     Assistant managers help the manager run the store, which tries to have assistant managers on hand all the time. The store also hires additional managers and supervisors who work by the hour.     In April 2016 Walmart offered Edward Hedican a job as one of eight full-time assistant managers.     After receiving the offer, Hedican revealed that, as a Seventh-day Adventist, he cannot work between sundown Friday and sundown Saturday.     That disclosure led to a reevaluation of the offer and to this suit under Title VII of the Civil Rights Act of 1964.     Lori Ahern, the store’s human resources manager, assessed whether Walmart could accommodate Hedican’s religious practices. She concluded that doing so would require assigning the other seven assistant managers to additional Friday night and Saturday shifts, even though they prefer to have weekends off.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 1, 2021  .. 6th Cir.:    Nathan v. GLWA  ..  Nicole Massey began working for the Detroit Water and Sewerage Department as a security guard in 2004. Massey alleges that she was harassed during her time at Detroit Water.     According to Massey, Massey’s supervisors and co-workers discussed “her medical condition”; commented on “her weight, the size of her breast, her looks and body [odor]”; and referred to her as the “Queen of FMLA.”     The Chief of Security, Barnett Jones, had a female supervisor check to see if Massey was wearing a bra by putting her hand inside Massey’s shirt in 2012.     Another one of Massey’s supervisors, Sergeant Tonya McNair, repeatedly denied Massey FMLA leave for Massey’s asthma. On one occasion, McNair’s denial of leave to Massey resulted in Massey’s hospitalization.     McNair also refused to grant a leave request after Massey started her period on the job and bled through her clothes, which led to further harassment by McNair and Massey’s co-workers.  ..  COURT DECISION:   (.pdf)   (.html)

♦       April 1, 2021  .. D.D.C.:    McCrea v. D.C.  ..  Plaintiff Nicole McCrea is a former firefighter with the District of Columbia Fire and Emergency Medical Services Department (EMS). McCrea, who is proceeding pro se, alleges that in May 2013, two fellow firefighters sexually assaulted her while she was on duty.     After reporting the incident, EMS managers, city employees and mental health professionals allegedly conspired to deny her requests to classify her subsequent behavioral health challenges as job- related injuries and to force her into retirement.     Before the court is a motion to dismiss filed by the District of Columbia, Mayor Muriel Bowser, the D.C. Police and Firefighters’  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 31, 2021  .. 6th Cir.:    Nathan v. Great Lakes Water Authority  ..  This case involves numerous claims initiated by Nicole Massey against her former employer, Great Lakes Water Authority. After Massey filed bankruptcy proceedings, Kenneth Nathan, the Chapter 7 trustee of Massey’s bankruptcy estate, was substituted as plaintiff. Nathan alleges that Great Lakes subjected Massey to a hostile work environment through sexual harassment, retaliated against Massey for opposing sexual harassment, and retaliated against Massey for taking leave guaranteed by the Family and Medical Leave Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 31, 2021  .. 10th Cir.:    Bacy v. Chickasaw  ..  Chickasaw Nation Industries (CNI) is a federal contractor that provides aviation-related professional services to the Federal Aviation Administration (“FAA”). During the relevant period, Bacy was employed by CNI as a Remote Pilot Operator Lead at the FAA’s Air Traffic Control Academy in Oklahoma City. On October 11, 2017, Bacy was involved in a heated dispute with her supervisor, Sandy Laminack, in Laminack’s office. Another supervisor, Sean Wise, was on the phone with Laminack and overhead the conversation. Although Bacy disputes Wise’s assessment that she was yelling at Laminack, she does not dispute Laminack asked her to turn in her badge but she refused and walked out of Laminack’s office. Later that afternoon, Bacy was suspended by Nathan Jones and Conrad Ennis pending an investigation.         The investigation was conducted by Wendy Hutton from CNI’s human resources department. Hutton’s investigation included a telephone discussion with Bacy and interviews with Sean Wise, Conrad Ennis, and Laminack. Based on her investigation, Hutton concluded Bacy had yelled at Laminack and directly disobeyed Laminack’s instruction to hand in her badge and headset. Hutton forwarded her report to CNI Project Manager, Ryan Groce, and advised him she believed Bacy had acted in an insubordinate manner toward Laminack. On October 13, 2017, Groce penned a letter to Bacy advising her she had been terminated for “unprofessional and insubordinate” behavior.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 30, 2021  .. KCA:    State v. Simpson-Nelsen  ..  Michelle Lee Simpson-Nelsen was convicted of possession of methamphetamine in three separate criminal cases. At sentencing, the district court granted a downward dispositional departure in each case and placed her on probation with underlying consecutive sentences totaling 57 months' imprisonment.     Simpson-Nelsen stipulated to violating her probation on three separate occasions which resulted in her serving intermediate sanctions. Subsequently, while on probation, Simpson-Nelsen stipulated to a new crime—possession of opiates—whereupon the district court revoked her probation in all three cases and ordered her to serve the controlling 57-month sentence.     Here, Michelle Lee Simpson-Nelsen appeals.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 30, 2021  .. PCC:    Bertram v.  UCBR  ..  Sean J. Bertram (Claimant), worked as a full-time salesperson for Tom Hesser Chevrolet/BMW (Employer) from September 16, 1993, until his last day of work on January 19, 2017.     After his separation from employment, Claimant applied for unemployment compensation benefits.     The Unemployment Compensation (UC) Service Center determined that Claimant was ineligible for unemployment compensation benefits because he was discharged for insubordination, which constituted disqualifying willful misconduct     Claimant appealed, and a referee held a hearing on April 27, 2017.         Here, Claimant Bertram petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. §802(e).1     Claimant argues that the Board’s findings of fact are not supported by substantial evidence and its legal conclusion is erroneous.     Upon review, we reverse.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 29, 2021  .. 9th Cir.:    Miller v. U.S.  ..  Plaintiff alleged claims arising from his termination as a police officer with the Reno-Sparks Indian Colony, a federally-recognized Indian Tribe. The Tribe manages its police force through a contract with the Bureau of Indian Affairs (“BIA”), and that contract designates the Tribe’s police officers as Federal Government employees for purposes of tort liability.     The district court dismissed the action on the sole ground that all of plaintiff’s claims were barred by the Federal Tort Claims Act’s discretionary function exception and that the court therefore lacked subject matter jurisdiction.     The panel first addressed plaintiff’s claims that his termination was undertaken in retaliation for his having complained about workplace discrimination and harassment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 29, 2021  .. 6th Cir.:    Meriwether v. Hartop  ..  Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides.     But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue.     Mr. Meriwether is a philosophy professor at Shawnee State University. Meriwether believes that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.”     He also believes that he cannot “affirm as true ideas and concepts that are not true.”     Shawnee punished Professor Meriwether despite the constitutional protections afforded by the First Amendment.     The district court dismissed the professor’s free-speech and free-exercise claims.     We see things differently and reverse.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 26, 2021  .. 7th Cir.:    Nelson v. Chicago  ..  Plaintiff Kimberly Nelson is a Chicago police officer who developed post-traumatic stress disorder after responding to an armed robbery. She alleges that a supervising sergeant failed to intervene when a dis- patcher ignored her calls for back-up. She alleges that another sergeant edited her incident report to remove complaints about the failures to respond to her calls for back-up. In de- ciding this appeal, we assume that the sergeants acted or failed to act as Officer Nelson alleges, and we assume that they acted contrary to police department policy. This lawsuit is not about department policy, however. Officer Nelson seeks to recover damages under 42 U.S.C. § 1983 on the unusual theories that the sergeants violated her substantive and pro- cedural due process rights under the Fourteenth Amendment to the United States Constitution. She also seeks to hold the City of Chicago liable as the sergeants’ employer.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 26, 2021  .. 5th Cir.:    Harrison v. Lilly  ..  Before her termination on July 12, 2017, Amy Harrison worked as Licensing Director for the Texas Alcoholic Beverage Commission (“TABC”). Her job duties included supervising and running the TABC Licensing Department, which regulates the persons and entities who receive alcoholic beverage licenses in Texas.     In May 2017, Governor Greg Abbott appointed Kevin Lilly to serve as TABC Chairman. In preparation for his new role, Lilly attended a legally required training on conflicts of interest. One day in June 2017, Lilly contacted Harrison about his stock portfolio and requested her interpretation of a conflict-of-interest provision in the Texas Government Code. Harrison told Lilly that providing legal advice was beyond the scope of her position and recommended that he consult an attorney.     On June 30, Harrison learned that TABC might be planning to fire her.     Harrison met with Swedberg, who informed her that she could work through August 2017 and then retire.     Harrison told Swedberg she had not planned on retiring at that time.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 25, 2021  .. 11th Cir.:    Tonkyro v. VA  ..  This appeal arises from a Title VII action filed by four ultrasound technologists at the James A. Haley VA Healthcare System (“Tampa VA”) against the Secretary of the Department of Veterans Affairs.     All Plaintiffs allege that their supervisors and coworkers retaliated against them and subjected them to a hostile work environment because they engaged in protected Equal Employment Opportunity Commission (“EEOC”) activity.     One Plaintiff also alleges that she was subjected to a hostile work environment based on her sex.         This appeal presents two issues and two main arguments.    Rashad first argues that the court abused its discretion by not considering a particular email, in which he complained of racial discrimination to county officials, and which he attempted to introduce pro se1 after the magistrate judge submitted her final report and recommendation to the district court.    Second, he contends that the district court erred in concluding that he failed to show a causal link between his protected activity and his termination and thus didn’t establish a prima facie case of Title VII retaliation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 25, 2021  .. 11th Cir.:    Rashad v. Fulton  ..  Mahmoud Rashad, an African-American Muslim man, sued Fulton County, his former employer. Rashad alleged that the County retaliated against him and violated Title VII of the Civil Rights Act of 1964 by terminating his position after he filed a complaint with the Equal Opportunity Employment Commission concerning racial and religious discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 24, 2021  .. Fed. Cir.:    McLaughlin v. MSPB  ..  Ms. McLaughlin appeals from a final decision of the Merit Systems Protection Board (“Board”) dismissing her whistleblower Individual Right of Action (“IRA”) appeal for lack of jurisdiction and failure to exhaust certain claims.     Because the administrative judge (“AJ”) did not consider all of McLaughlin’s timely-filed pleadings and did not apply the correct law to all aspects of his analysis, we vacate the Board’s decision.     We remand for the Board to reconsider.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 24, 2021  .. 7th Cir.:    Foggey v. Chicago  ..  When Chicago police officer Foggey received a call for help from his rookie partner, he was slow to respond and effectively watched his partner struggle to arrest someone on the ground. After investigating the incident, the City of Chicago fired Foggey for violating several department rules, including failing to assist his partner. Foggey, who is an African American male, sued the City for race and gender discrimination in violation of Title VII of the Civil Rights Act of 1964.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 24, 2021  .. 5th Cir.:    Newbury v. Windcrest  ..  Ms. Newbury worked as an officer for the Windcrest Police Department but resigned during her first, probationary year. She then sued the City of Windcrest (“the city”), bringing sex-discrimination, retaliation, and constructive-discharge claims and a claim for intentional infliction of emotional distress.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 24, 2021  .. FLRA:  AFGE v. HHS  ..  In response to the Agency’s realignment of its Office of Regulatory Affairs (ORA), the parties executed a Program Alignment MOU. The Program Alignment MOU required the Agency, “[w]ithin [ninety] days of implementation of the new organizational structure” to “begin working with NTEU to develop a Bridge Program for employees who would like to switch programs at some point in their career.”     Arbitrator Robert A. Creo found that the Agency did not violate the parties’ collective-bargaining agreement and §§ 7114(b)(5) or 7116(a)(1), (5), or (8) of the Federal Service Labor-Management Relations Statute (the Statute)[1] when it failed to execute a Bridge Program Memorandum of Understanding (MOU) between the parties.     The Union filed exceptions to the award on contrary-to-law, nonfact, and essence grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Mar 23, 2021  .. 3rd Cir.:    Hernandez v. WalMart  ..  Hernandez was hired as a cashier at a Wal-Mart store in Linden, New Jersey, in November 2011. In December 2016, the store’s asset protection program alerted managers to several suspicious purchases.     An investigation led the managers to Hernandez’s register, where she was found to have charged another associate (Rosa Diaz) a lower price than the one marked on two occasions.     Rather than scanning Diaz’s items, Hernandez had grouped the items together and entered the lower price into her register by hand. See Hernandez Dep.     On December 24, 2016, a manager interviewed Hernandez. She told the manager that Diaz had said that the items were on clearance, and that she had no reason to doubt her.     Hernandez acknowledged that she knew that seasonal items were not on sale, and that she had not followed the appropriate procedure for obtaining a price check.     Hernandez was fired after the interview.     Hernandez, who is Hispanic, filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) claiming [...] that she was terminated because of her, hispanic, national origin.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 22, 2021  .. FLRA:  Homeland v. AFGE  ..  The Union filed a grievance after the Agency denied a Union representative official time under the parties’ collective-bargaining agreement to represent an employee with a disability at a reasonable-accommodation meeting.     Arbitrator Dennis Maloney issued an award sustaining the Union’s grievance and finding that the Agency violated the parties’ agreement and the Federal Service Labor-Management Relations Statute (the Statute) because all reasonable-accommodation meetings constitute formal discussions.     The Agency filed exceptions, arguing that the Arbitrator exceeded his authority, that the award failed to draw its essence from the parties’ agreement, and that the award was contrary to law. For the reasons that follow, we grant the Agency’s exceptions, in part, and remand the award for further findings.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Mar 22 2021  .. 11th Cir.:    Swauger v. Defense  ..  After the DIA terminated Swauger’s employment, he filed an Equal Employment Opportunity complaint with the DIA, alleging violations of the Rehabilitation Act. These alleged violations included claims of disability discrimination, hostile work environment, and unlawful retaliation. The DIA investigated Swauger’s complaint and provided Swauger with a copy of its report. Swauger requested a hearing before an Equal Employment Opportunity Commission administrative law judge.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 19, 2021  .. 9th Cir.:    Kennedy v. Bremerton  ..  Mr. Kennedy, the District’s former high school football coach, who alleged that his rights were violated under the First Amendment and Title VII of the Civil Rights Act of 1964 when the District prohibited him from praying at the conclusion of football games, in the center of the field, potentially surrounded by Bremerton students, and members of the community.     The panel held that the record before it and binding Supreme Court precedent compelled the conclusion that the District would have violated the Establishment Clause by allowing Kennedy to engage in the religious activity he sought.     Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties.     The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students.     The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 17, 2021  .. 10th Cir.:    Fisher v. Basehor-Linwood  ..  Ms. Fisher was employed by the District as a certified teacher at Basehor-Linwood Middle School for school years 2015-16, 2016-17, and 2017-18. During the relevant time period, Amy Garver served as principal, Garold Baker served as assistant principal, and David Howard served as superintendent.     Ms. Fisher has Post-Traumatic Stress Disorder (PTSD), which “stems from a sexual assault she sustained.” “Her symptoms include stress, anxiety, elevated heart rate, shortness of breath, panic attacks, nightmares, and insomnia.” “Dr. Kevin Mays, a psychiatrist, began treating her in November 2017.” According to Fisher, “[d]uring [her] first year teaching . . . she had shared with some co-workers—including Principal Garver—that she was a victim of a sexual assault. But . . . Garver didn’t remember [Fisher] disclosing a disability diagnosis. Nor did [Fisher] seek accommodation for a disability.”     According to Principal Garver, Ms. Fisher “struggled” with “classroom management,” which is a “huge part of teaching.” . “[F]or the 2015-16 school year . . . [Garver noted that] students [in Fisher’s classroom] were visiting with each other, working on homework for other classes, and goofing off.” (internal quotation marks omitted). Also in 2015, Garver issued Fisher a disciplinary reprimand after she told “her class—out of frustration—‘this is why I hate this class.’” Fisher received “a second written reprimand in . . . 2016 after she said the word ‘shit’ in front of her students.”     And in 2017, Garver called Fisher’s attention to an “incident . . . where she had explained the meaning of the word ‘gangbanging’ to students.”     On or about November 16, 2017, Ms. Fisher “was in her classroom supervising 25 eighth grade students,” when she had a panic attack. “[S]he stepped . . . into the hallway,” where she was observed by another teacher who “went to the school office to seek help.” Principal Garver came to assist and “walked [Fisher] to the school nurse’s office. The nurse checked [her] blood pressure and pulse. Both were elevated,” and she also had a racing heartbeat. The nurse told her to go to an urgent care facility. “Principal Garver drove [Ms. Fisher] to the urgent care.” But when Fisher “could not remember basic information like her birthdate,” Garver helped “complete the [paperwork] for her.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 16, 2021  .. 9th Cir.:    Freyd v. University of Oregon  ..  Ms. Freyd, a Professor of Psychology, alleged that the University paid her several thousand dollars less per year than it paid four of her male colleagues, despite their being of equal rank and seniority.     Reversing the district court’s summary judgment on the Equal Pay Act claim, the panel held that on such a claim, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work.     The plaintiff must show that the jobs being compared (not the individuals holding the jobs) are substantially equal.     The panel concluded that, viewing the evidence in the light most favorable to Freyd, a reasonable jury could find that she and her comparators performed a common core of tasks and did substantially equal work.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 16, 2021  .. D.D.C.:    Hill v. Barr  ..  Plaintiff Denise Adams Hill, a Black woman over the age of sixty, worked as a contract attorney for the Department of Justice for approximately two and one-half years. Unhappy with her treatment there and particularly the Government’s decision to terminate her employment in 2017, she brought this suit alleging a number of discriminatory actions by her supervisors in violation of Title VII and the Age Discrimination in Employment Act.     The Government Defendants now move to dismiss those claims or, alternatively — even though no discovery has yet occurred — for summary judgment. Hill counters with a request for such discovery, pointing to several categories of documents in the Government’s possession that she insists are necessary to support her allegations.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 16, 2021  .. D.D.C.:    Acosta v. DC  ..  Plaintiff Shari Acosta, a former employee of the District of Columbia’s Department of Housing and Community Development, has brought this action against the District of Columbia and Michael Spencer, the Chairman of the District’s Rental Housing Commission, alleging that she experienced workplace retaliation for protected acts while working for Defendant Spencer and that she was ultimately terminated from her position, all in violation of the District of Columbia Human Rights Act (“DCHRA”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 15, 2021  .. 4th Cir. :  Thomas v. Annapolis  ..  Mr. Thomas, a black American man and former police officer for the City of Annapolis and Annapolis Police Department, sued the City, the Department, and the chief of police, asserting that he was wrongfully terminated because of his race and disability, was denied reasonable accommodations for his disability, and was denied his request for disability retirement because of his race, in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (the “ADA”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 15, 2021  .. FLRA:  Air Force v. AFGE  ..  The parties’ current agreement was implemented on December 7, 2018.    Article 20, Section K (Article 20) of the parties’ agreement provides as relevant here: “[t]he Agency will provide an initial uniform allowance of $400 to all current and newly assigned ARTs.” On December 14, 2018, the Agency notified all ARTs that funding for the initial uniform allowance was approved, but that “ARTs needed to fill out the necessary forms to obtain the [initial] uniform allowance.”   In April 2019, after receiving the necessary paperwork from the ARTs, the Agency did not provide the initial uniform allowance because it “found this provision of the CBA to be unnecessary as the ARTs already received a military uniform [for their separate reservist duties].”    The Union subsequently filed a grievance. The Agency denied the grievance, and the Union invoked arbitration.     The issue, as framed by the Arbitrator, was “whether th[e] payment [of the initial uniform allowance] violates the law and whether the Agency may unilaterally decide a provision of the [parties’ agreement] is illegal, even after it has been approved, where there is no subsequent change in the law.”     The Agency asserted that 5 U.S.C. § 7114(c) allowed it to revisit a previously approved provision at any time. Accordingly, the Agency argued that once the Agency Head found Article 20’s uniform allowance illegal, the Agency had no duty to comply with that provision.  ..  FLRA DECISION:   (.pdf)   (.html)



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