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

♦        OPM :    Extension Of The Coronavirus COVID-19 Schedule A Hiring Authority    OPM GUIDANCE AND NOTIFICATIONS
♦        OPM :    Revocation Of Executive Order 13950.    OPM
♦        OPM :    Guidance for Implementation of Executive Order 14003 - Protecting the Federal Workforce.    OPM
♦        OPM :    Assessing The Suitability/Fitness Of Applicants Or Appointees On The Basis Of Marijuana Use; Maintaining A Drug-Free Workplace.    OPM
♦        OPM :    Recent Pay And Leave-Related Legislative Changes.    OPM

♦       DOJ OIG INVESTIGATIONS :    Investigative Summary : Findings of Misconduct by then Assistant United States Attorney for Misuse of Position and Misuse of Government Computer.   .html          Investigative Summary : Findings of Misconduct by a then Senior Department of Justice Official for Failing to Appear for a Compelled Office of the Inspector General Interview.   .html          Investigative Summary : Findings of Misconduct by former FBI Special Agent in Charge for Making Two False Statements.   .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)

♦       Mar 12, 2021  .. FLRA:  VA v. AFGE  ..  With this case, we remind arbitrators that they must limit their decisions to those issues submitted to arbitration.     We also remind agencies that merely complying with Occupational Safety and Health Administration (OSHA) standards does not demonstrate that an award of environmental-differential pay (EDP) is contrary to law.     Arbitrator Pilar Vaile found that the grievants were entitled to EDP because they worked in close proximity to high-hazard microorganisms, high-hazard toxic chemicals, and/or low-hazard toxic chemicals.[3] The Agency argues that the Arbitrator’s award is contrary to law, ambiguous and contradictory, fails to draw its essence from the parties’ agreement, and that the Arbitrator exceeded her authority.     As described below, the Agency fails to demonstrate how the award is contrary to law, ambiguous and contradictory, or fails to draw its essence from the parties’ agreement.     However, we agree that the Arbitrator exceeded her authority, in part.     Accordingly, we vacate the award, in part.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Mar 12, 2021  .. FLRA:  NFFE v. VA  ..  The Union filed a grievance against the Agency for the alleged breach of a settlement agreement. The Arbitrator ruled that the matter was not arbitrable because the alleged breach should have been addressed through the Authority’s General Counsel’s (GC) office.     We find that the award is contrary to law because no caselaw or Authority Regulation took subject matter jurisdiction away from the Arbitrator.     Therefore, we vacate the award and remand the matter to the parties for resubmission to arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Mar 12, 2021  .. Fed. Cir.:    Santos v. Nasa  ..  In early 2017, Fernando Santos joined the newly created Ground Systems Branch in the Commercial Systems Division of the Engineering Directorate of the National Aeronautics and Space Administration (“NASA”)     As a mechanical engineer in the Ground Systems Branch, Santos’s supervisor was Balles.     In 2018, Fernando Santos was placed under the supervision of Angela Balles, chief of the Ground Systems Branch of the Commercial Division.     Despite working at NASA for over 18 years and receiving multiple accolades for his service, Santos began receiving letters of instruction and reprimand under his new supervisor alleging deficient performance.     On May 31, 2018, Balles placed Santos on a PIP for 45 days and assigned him eleven deliverable assignments.     Throughout this period, Balles met with Santos to discuss his progress and give him feedback on his work product.     Balles ultimately determined that Santos’s deliverables were unsatisfactory and proposed his removal based on a charge of unacceptable performance. Accordingly, Santos was re- moved from his position on September 26, 2018. Santos appealed his removal, arguing (inter alia) that it was retaliatory and violated USERRA.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 11, 2021  .. DOJ OIG INVESTIGATIONS :    Findings of Misconduct by a Drug Enforcement Administration Assistant Special Agent in Charge for Violating the AntiNepotism Statute and DEA Personal Conflict of Interest Policy.   .html         .pdf

♦       Mar 11, 2021  .. TCA:    Phelps v. Tennessee  ..  Plaintiff Kelly Phelps brought this action for sexual harassment, discrimination, and retaliation under the Tennessee Human Rights Act (“THRA”) against her employer, the State of Tennessee.     Plaintiff worked as a server at the restaurant at Paris Landing State Park (“the park”).     She alleged that Josh Walsh, the assistant park manager who was described as “second in command” at the park, sexually assaulted her at an “after-party” on State property that immediately followed a Halloween party hosted by the park at the restaurant and inn. She further alleged that after she reported the incident, Defendant, among other retaliatory actions, allowed Walsh to continue working around her at the park as usual, and to continue harassing and threatening her.     Following extensive discovery, Defendant moved for summary judgment. The trial court found that there were genuine issues of material fact as to whether Walsh was Plaintiff’s supervisor; whether he “sexually harassed women at Paris Landing State Park prior to the Halloween party” and Defendant was aware of it; and whether “a reasonable fact-finder could conclude that Mr. Walsh’s action in grabbing [Plaintiff] by the neck and thrusting his body against her in a sexual manner was ‘extremely serious’ and sufficient to impose liability on the Defendant.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 11, 2021  .. Fed. Cir.:    Brenner v. DVA  ..  Generally, federal agencies “have two procedural routes available to them” to remove an employee: 5 U.S.C. Chapter 75 (for misconduct and poor performance) and 5 U.S.C. Chapter 43 (for poor performance).     Further, as of 2017, the VA has a third procedural route available to it: the Act, as codified at 38 U.S.C. § 714. Each route entails different procedures and, therefore, different protections for federal employees.     Petitioner, Mr. Brenner, seeks review of a final decision of the Merit Systems Protection Board (“MSPB”) affirming the U.S. Department of Veterans Affairs’ (“VA”) decision to remove Mr. Brenner from his position as General Attorney, GS-14, with the VA’s Collections National Practice Group (“CNPG”) pursuant to 38 U.S.C. § 714, enacted as part of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (“the Act”).     We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).     We vacate and remand.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 10, 2021  .. 10th Cir.:    Dennis v. Fitzsimons  ..  Although employers cannot discriminate against disabled individuals, both the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act recognize a distinction between alcoholism the disease and alcohol-related misconduct.     In early July 2016, the Summit County Sheriff’s Office (“SCSO”) promoted Plaintiff to Detective Sergeant. While he served in that role, Plaintiff’s wife filed criminal charges against him in neighboring Park County, Colorado. When the Sheriff learned of the charges, he put Plaintiff on paid leave. At that time, the SCSO issued Plaintiff a letter notifying him of his obligations during paid leave. The letter required Plaintiff to “remain at a pre-arranged place, available by phone beginning Thursday, July 28, 2016 from 0900 hrs to 1700 hrs,” and to call the SCSO commander on and off duty daily.     On July 28, Plaintiff reported to the Park County jail for booking and arraignment around 7:00 a.m.—two hours before SCSO expected him to be on duty. Jail personnel gave Plaintiff a Portable Breathalyzer Test (“PBT”), which revealed a breath-alcohol content (“BrAC”) level of .107—a level indicative of impairment.1 Over a three-hour period, jail personnel gave Plaintiff two additional PBTs, each of which showed impairment.2 After the third PBT, jail personnel postponed his arraignment until the next day because the judge could not arraign Plaintiff while he was legally impaired from alcohol use. Jail personnel kept Plaintiff in custody until that time.     Plaintiff did not call the SCSO commander as required by the terms of his paid leave status. A corporal from Park County, however, called the SCSO to let the Sheriff know that Plaintiff was in custody and the judge could not arraign him that day because of his elevated BrAC levels.     The Sheriff and his staff met by conference call and decided to terminate Plaintiff for violating several SCSO policies. The SCSO notified Plaintiff of his termination and explained that he violated four SCSO policies.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 8, 2021  .. D.D.C.:    Pitt v. Duke  ..  Pitt is an African-American woman who worked for the Department of Homeland Security (DHS) as a Management Program Analyst. In 2015, she applied for two openings for a Protective Security Advisor (PSA) position: one in Arkansas and the other in Washington, D.C.     A PSA works with federal agencies, local agencies, and private companies on security and enforcement measures to protect critical infrastructure. Pitt interviewed for both positions in June 2015, but she was ultimately not selected for either. Two white men were hired instead.     Later that summer, Defendant sought to fill two vacant PSA positions in Atlanta, Georgia, as internal, lateral reassignment opportunities, rather than through competitive selection processes, and as such, the positions were available only to GS-14 and GS-15 level employees.     Pitt, at the GS-13 level, was thus ineligible.     An African-American man and Indian-American man were ultimately selected.     Pitt then filed an Equal Employment Opportunity (EEO) complaint alleging Defendant discriminated against her on account of her race and sex when she was not selected for the PSA positions in Arkansas and Washington, D.C.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 8, 2021  .. 10th Cir.:    Vette v. Sanders  ..  Defendant-appellant Keith Sanders, a sergeant with the Montrose County Sheriff’s Office, appeals the district court’s denial of his summary judgment motion based on qualified immunity.         On December 31, 2017, Steve Gustin, a sergeant with the Montrose County Sheriff’s Department, observed Mr. Vette driving on a public road in Montrose, Colorado. Sergeant Gustin attempted to pull Mr. Vette over to run a warrant check.     Mr. Vette drove away, and Sergeant Gustin pursued. Mr. Vette eventually drove into a field and fled on foot; Sergeant Gustin continued his pursuit. Sergeant Sanders and his police dog, Oxx, arrived at the field after Sergeant Gustin.     Sergeant Gustin and another officer apprehended Mr. Vette. After Mr. Vette was apprehended, Sergeant Sanders “punched [him] and hit [him] in the face with a dog chain” and “let Oxx attack him. Oxx bit Mr. Vette’s right shoulder.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 5, 2021  .. OCA:    Hudson v. GCRTA  ..  The underlying issues in this matter stem from an internal discrimination complaint brought by Mr. Hudson, a lieutenant in the Greater Cleveland Regional Transit Authority (GCRTA) police force, against GCRTA Police Chief John Joyce (“Joyce”), among others. GCRTA hired the law firm of Tucker Ellis to conduct an investigation into Hudson’s complaint.     According to the affidavit of GCRTA’s Deputy General Counsel, GCRTA retained outside counsel Tucker Ellis in order to provide advice and legal recommendations to GCRTA in anticipation of possible future litigation and because Hudson’s allegations were lodged against upper-level management employees at GCRTA.     During the investigation, Hudson filed a second discrimination complaint, adding further allegations against Joyce and some against Commander Michael Gettings.     At the conclusion of its investigation, Tucker Ellis provided a report and executive summary to GCRTA, which provided legal advice and recommendations regarding the allegations.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 5, 2021  .. 7th Cir.:    Howard v. Cook County  ..  The Chicago Cook County Jail is one of the largest single-site jails in the country. It fills 36 buildings that span eight city blocks. About 100,000 inmates pass through the jail each year. At any given time approximately 6,500 inmates reside at the jail while awaiting trial.     The named plaintiffs are ten women who work at the jail complex. They include four sworn correctional officers, a civilian correctional rehabilitation worker, a civilian paramedic, and four sworn deputy sheriffs who work at the courthouse.     In their suit against the Sheriff’s Office and Cook County, the plaintiffs allege that they have endured frequent and extreme sexual harassment by male inmates, which the defendants have failed to take reasonable measures to prevent. The harassment occurs “on a daily or nearly daily basis throughout the Jail.”     The plaintiffs allege that male inmates expose their genitals to them, masturbate at them, direct sexual remarks and gestures at them, grope and grab them, and threaten and commit sexual violence against them.     The plaintiffs say they have complained of this horrible harassment to no avail.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 4, 2021  .. 10th Cir.:    Dennis v. Fitzsimons  ..  Although employers cannot discriminate against disabled individuals, both the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act recognize a distinction between alcoholism the disease and alcohol-related misconduct.     Summit County Sheriff Jared Fitzsimons (“the Sheriff”) terminated Plaintiff Jared Dennis for being impaired and unavailable as required by the terms of his employment.     Plaintiff contends the termination violated the ADA and Rehabilitation Act because the Sheriff fired him for being an alcoholic.     Under our case law, Plaintiff bore the initial burden of establishing a prima facie case of disability discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 4, 2021  .. 3rd Cir.:    Gibbs v. Pittsburgh  ..  Governments have a right to ensure that their policemen are mentally fit. But they may not use psychological testing as a cover to discriminate.     Christopher Gibbs alleges that Pittsburgh did just that. When he applied for a job as a policeman, two psychologists who screened him recommended not hiring him. Gibbs has ADHD, and he claims that they rejected him because of that, even though it is under control. Although he has a history of youthful misbehavior, he adds that the city hired other police- men with similar histories who did not have ADHD.     With those allegations, Gibbs has plausibly alleged that the psychologists discriminated against him. If he is right, Pittsburgh is liable for relying on them. And the city cannot dodge liability by labeling the psychologists’ approval as a job qualification.     Because Gibbs has plausibly stated claims for disability discrimination, we will reverse the District Court’s dismissal.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 4, 2021  .. 1st Cir.:    Gonzalez-Bermudez  v. Abbott  ..  After being demoted, threatened with termination, and denied several promotions, Luz González-Bermúdez filed suit against her employer, Abbott Laboratories (Abbott), alleging age discrimination and retaliation under the Age Discrimination in Employment Act (ADEA).     After a six-day trial, the jury found for González, awarding back pay in the amount of $250,000 and an additional $4 million for emotional distress.     The district court upheld the liability verdict and entered judgment against Abbott on all counts but reduced the damages to just over $500,000.     On appeal, Abbott Laboratories argues that the evidence was insufficient to support the jury's verdict.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Mar 2, 2021  .. FLRA:  SSA v. IFPTE  ..  The grievant is an administrative law judge (judge).     On June 30, 2017, the Agency issued the grievant a directive instructing him to schedule more hearings per month [...] to meet the Agency’s annual scheduling expectations.     The grievant failed to schedule more hearings, and the Agency issued a reprimand for failure to follow the directive.     The Union filed a grievance and invoked arbitration regarding the June directive and the reprimand.     The issues, as framed by the Arbitrator, were whether the grievance was arbitrable, whether the directive violated the parties’ agreement or federal law, and whether the reprimand violated the parties’ agreement or federal law.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Mar 1, 2021  .. FLRA:  SBA v. AFGE  ..  The grievant’s supervisor issued an overall level-two (marginal) rating on the grievant’s annual performance appraisal, and withheld the grievant’s within-grade pay increase on the basis of that appraisal.     Subsequently, the Union filed a grievance alleging, as relevant here, that the Agency violated the parties’ agreement by rating the grievant’s performance as marginal and withholding her within-grade pay increase.     Because the parties were unable to resolve the grievance, the dispute proceeded to arbitration.     Arbitrator Roger C. Williams sustained the Union’s grievance protesting, among other things, the grievant’s performance rating and denial of a pay increase. The main question before us is whether the Arbitrator’s award is based on nonfacts.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Mar 1, 2021  .. FLRA:  U.S. Park Police v. F.O.P  ..  To comply with the General Service Administration’s Motor Vehicle Management regulations (the motor‑vehicle regulations), the Agency implemented a memo notifying its law‑enforcement officers that when they “operate[] a [g]overnment vehicle, it is [their] responsibility to pay any fine associated with a [traffic or parking] violation,” unless they were “responding to [an] emergency” (the 2011 memo).     In 2018, the Agency directed an officer who received a speeding ticket to either successfully contest the violation or pay the fine.     The Union filed a grievance alleging that the Agency’s sudden enforcement of the 2011 memo, without first providing notice and an opportunity to bargain that change, violated the parties’ agreement. The dispute proceeded to arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Mar 1, 2021  .. 11th Cir.:    Tsavaris v. SLS  ..  This appeal arises from an age discrimination action filed by law professor Maggie Tsavaris against her former employer Savannah Law School (“SLS”).     On January 18, 2017, Morris told Tsavaris that he was considering not reappointing her for the 2017–2018 academic year. At Tsavaris’ request, Morris sent Tsavaris a letter explaining his reasons. His reasons were twofold.     First and foremost, Morris was considering not reappointing Tsavaris because the teaching performance he observed from her fell short of the standard of “strong teaching” described in the Faculty Handbook.     Second, Tsavaris’ student evaluations confirmed Morris’ impression of her teaching.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 25, 2021  .. 11th Cir.:    Hughes v. Wal-Mart  ..  Mrs. Hughes has been diagnosed with several medical disorders which limit her fine motor skills and ability to stand for long periods of time. These ailments include Lupus, Ehlers Danlos Syndrome (hypermobility syndrome), joint subluxation, muscle spasms, rheumatoid arthritis, degenerative disk disease, unclassified connective tissue disorder, and fibromyalgia.     Hughes first made her supervisor, Mr. Harris, aware of these conditions during a conversation with him in February of 2015 about her potential inability to comply with a new Walmart policy requiring certification to deliver injections by syringe due to her medical disabilities.     Mrs. Hughes alleges that this disclosure was the first domino in a series of protected activities followed by retaliation which has led to the current suit.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 25, 2021  .. 7th Cir.:    McFarland-Lawson v. Ammon  ..  Jamesetta McFarland-Lawson appeals the dismissal of her suit against her former employer, the United States Department of Housing and Urban Development (HUD), alleging employment discrimination based on her disability, race, gender, and veteran status. Because the district court erred in dismissing for lack of jurisdiction and in resolving a factual dispute at the motion to dismiss stage, we affirm in part, vacate in part, and remand for further consideration.     This appeal involves a complicated history of several administrative proceedings alleging employment discrimination against HUD. To assist in untangling this history, we note at the outset that federal employees must follow certain administrative procedures when pursuing employment discrimination claims before they can sue in federal court. Under the Civil Service Reform Act of 1978, if the employee works for an agency covered by a collective bargaining agreement that permits the filing of grievances alleging discrimination, she may begin the administrative process by filing either a union grievance or an Equal Employment Opportunity Commission (EEOC) charge, but not both.     McFarland-Lawson filed her first EEOC charge in March 2012 after HUD, where she was employed from 2002 to 2014, partially denied her request for numerous workplace accommodations for her disabilities. McFarland-Lawson asserted that HUD discriminated against her during the accommodation-negotiation process based on her race and disability and created a hostile work environment in retaliation for her request. More than four years later, in May 2016, an EEOC administrative judge decided partially in McFarland-Lawson’s favor and partially in HUD’s favor, concluding that HUD engaged in harassment based on disability, created a hostile work environment, and should have granted additional accommodations.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 24, 2021  .. FLRA:  Transportation v. AFGE  ..  The grievant was the head coach of the Agency’s men’s soccer team. While the grievant was travelling on a bus with the team, a member of the team was attacked and sexually abused in a hazing incident that was later reported to the Agency.     Following two internal investigations of the incident, the Department of Transportation’s Office of Inspector General (OIG) launched a criminal investigation of the men’s soccer program. Based on preliminary findings from the OIG, the Agency suspended the men’s soccer program. The grievant was assigned to non-coaching duties and verbally instructed to have no contact with the team or potential recruits. Two weeks later, he was given a written directive to abide by the no-contact order.     While the investigation was still ongoing, the Agency reinstated the men’s soccer team with a new interim coaching staff. The Union filed a grievance challenging the Agency’s decision not to return the grievant to coaching duties.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Feb 23, 2021  .. FLRA:  AFGE v. SSA  ..  The Social Security Administration (agency) closed its Batavia, New York office at approximately 2:00 p.m. due to a loss of power caused by a windstorm. The Agency granted employees administrative leave for the rest of the day. The next day, when electricity had not been restored to the Batavia office, the office manager decided to delay opening the office and to redeploy employees to other offices or allow them to not report to work. Six employees decided not to deploy to other offices and requested administrative leave for that day. The Agency denied the employees’ requests for administrative leave. The Union filed a grievance on behalf of the employees who were denied administrative leave, and the parties advanced the grievance to arbitration.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Feb 23, 2021  .. FLRA:  Navy v. IAFF  ..  The grievants are firefighters at three fire stations covered by the agreement. The Union filed a grievance alleging that the Agency violated the agreement when it implemented a policy that unilaterally modified the staffing at certain posts. The Agency did not immediately reply to the Union’s grievance and it took more than two years for the grievance to advance to arbitration.     In this case, the question before us is whether an award of attorney fees under the Back Pay Act (BPA) is contrary to law without an accompanying backpay award. Arbitrator Thomas E. Crowley found that the Agency violated the parties’ national agreement (agreement) when it unilaterally modified the staffing at particular posts. However, he found that he could not retroactively determine which employees would have received overtime so he was unable to award backpay.     Nevertheless, he directed the Agency to pay the Union’s attorney fees. The Agency filed a contrary-to-law exception challenging the award of attorney fees.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Feb 22, 2021  .. Cal. Ct. App:    Rael v. Sybron  ..  A jury found Sybron Dental Specialties, et al, liable for age-based harassment and discrimination and awarded their former employee Codie Rael $5,282 in economic damages, slightly more than $3 million in noneconomic damages and punitive damages of $28 million ($16 million against Sybron Dental and $12 million against KaVo Kerr).     On appeal defendants contend the court erred.     Because we agree the court committed prejudicial error in excluding defense evidence during the liability phase, we reverse without reaching the other issues raised by defendants.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 22, 2021  .. D.C. Cir.:    Chambers v. District Of Columbia  ..  Over the years, the District of Columbia’s Office of the Attorney General (OAG) denied Mary Chambers’s multiple requests for a lateral transfer to a different unit within OAG.     Chambers alleges that under Title VII of the Civil Rights Act of 1964, those lateral transfer denials constituted unlawful sex discrimination and unlawful retaliation for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 22, 2021  .. D.D.C.:    Husain v. Warren  ..  Plaintiff is “a foreign-born, Asian woman of the Muslim faith” “raised and educated in Zambia.”     She began working at USAID in March 2011 as a GS-13 Management and Program Analyst, and received a promotion to GS-14 on January 29, 2012.     Plaintiff Musarrat Roohi Husain alleges that Defendant U.S. Agency for International Development (“USAID”) discriminated against her on the basis of her race, sex, religion, and national origin in violation of Title VII of the Civil Rights Act; retaliated against her for filing EEO complaints; and discriminated against her by denying her reasonable accommodations for her disabilities.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 22, 2021  .. 1st Cir.:    Alston v. Brookline  ..  Mr. Alston is a black firefighter who began working for the Brookline Fire Department (the Department) in 2002. On May 30, 2010, Paul Pender, a lieutenant in the Department, left a voicemail on Alston's telephone in which he used a racial slur when referring to Alston.     Alston reported the lieutenant's comment to the Department's chief operating officer, but the Department took no corrective action. The Department did, however, communicate to Pender that Alston had reported the incident. Pender responded by telling Alston that reporting him "was the stupidest thing [Alston] could have ever done."     Alston alleges that the Board, the entity responsible for hiring, firing, and disciplining the Town's firefighters, failed to take appropriate action. Instead of disciplining Pender for his racist comment, the Board protected and rewarded the lieutenant.     Alston asserts that, since the 2010 incident, the Town and other defendants, as well as the Department, have punished him in various ways, including ... denying him promotions, and constantly harassing him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 22, 2021  .. D.D.C.:    Walker v. Wheeler  ..  Plaintiff Mr. Walker served as a scientist at the Environmental Protection Agency (EPA) until 2017.     Believing that his supervisors had discriminated against him, he sued under Title VII of the Civil Rights Act of 1964.     Defendant, EPA’s acting administrator, moves to dismiss on several grounds, including that Walker has sued in an improper venue, failed to exhaust his administrative remedies, and failed to state a claim.     In response to the motion, Walker moved to amend his complaint, and Defendant opposed, arguing that amendment would be futile on the same grounds.     For the following reasons, the Court grants the motion in part because venue is improper in this District and transfers the case to the Eastern District of Virginia rather than dismiss it.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 19, 2021  .. 11th Cir.:    Green v. Georgia DHHS  ..  Ms. Green appeals pro se the district court’s dismissal of her complaint against the Georgia Department of Health and Human Services, Gerlda B. Hines, Keith V. Horton, Shirley St. Hillare, and Lashone Starr for violations of the Georgia Whistleblower Act, Family Medical Leave Act, and Americans with Disabilities Act and for intentional infliction of emotional distress.     After four years working for the Fulton County Department of Family and Children Services, Ms. Green was terminated for allegedly falsifying case documents. According to the DFCS, that falsification left a child in an unsafe and dangerous situation.     After being denied unemployment benefits, Green filed a complaint with the U.S. Equal Employment Opportunity Commission in which she alleged that her termination constituted discrimination on the basis of disability and retaliation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 18, 2021  .. 7th Cir.:    Igasaki v. IDFPR  ..  Igasaki, a gay, Japanese-American man, suffers from gout. From January 1994 until his termination in March 2015, Igasaki, who was 62-years old at the time of his complaint, worked as a staff attorney in the Medical Prosecutions Unit of the Illinois Department of Financial and Professional Regulation (IDFPR).     His responsibilities included preparing for disciplinary proceedings, participating in settlement conferences, and litigating cases at administrative hearings.     Igasaki eventually sued the Department over his termination. In his amended complaint, Igasaki alleged five claims: (1) race discrimination, arising from the Department’s treatment of his job performance and termination; (2) sex discrimination, arising from gender stereotyping and a hostile work environment based on his homosexuality; (3) age discrimination, arising from the Department’s treatment of his job performance and termination; (4) retaliation, arising from his termination after his EEOC charge; and (5) disability discrimination, arising from the Department’s failure to accommodate his gout disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 17, 2021  .. 8th Cir.:    Kempf v. Hennepin  ..  Kempf worked as an architect in the County’s Facility Services Department from 1997 to 2016. A dispute arose on March 9, 2016, when Jay Biedny, Kempf’s division manager, went to Kempf’s office to discuss a project. In Kempf’s version of the discussion, Biedny aggressively came into her office and asked her about the project in a “loud and hostile voice.” Kempf, who was sitting at her desk facing away from the door, told Biedny that she needed to finish an email.     Unsatisfied with that response, Biedny walked towards Kempf and yelled at her to stop emailing; Kempf turned around, found Biedny close to her, and involuntarily screamed. At her deposition, Kempf recounted that Biedny “was totally up against the back of [her] chair,” “his crotch was within six inches of [her] face,” and “it felt like an assault was imminent.” Kempf said that she repeatedly told Biedny to leave and then shut her door to compose herself.     According to Biedny, he tried to diffuse the situation but “a rage came over” Kempf, and she ordered him out of her office and slammed the door in his face.     Both Biedny and Kempf reported the incident to the Deputy Director of Facility Services, Barbara O’Brien, that very day. Biedny reported to O’Brien that Kempf yelled and slammed her door. Kempf reported to O’Brien that Biedny physically threatened her. The County has alleged that Kempf was agitated during her conversation with O’Brien and poked O’Brien in the chest. Kempf has admitted the poke but described it as “jovial.” With the competing reports in hand, O’Brien launched an investigation.     On March 17, 2016, the County determined that Kempf committed “a continuing pattern of misconduct” and suspended her for five days without pay. The written suspension notice included the following: Kempf’s disciplinary history, a determination that Kempf failed to meet performance expectations, and a finding that Kempf violated County rules when she shouted at Biedny and poked O’Brien.     Kempf returned to work on April 4, 2016, having served her suspension. The next day, she met with Michael Sable, Director of Facility Services, to discuss her concerns about management.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 16, 2021  .. FLRA:  VA v. AFGE  ..  The Agency removed the grievant from federal employment. The Union filed a grievance (the initial grievance) contesting the removal and invoked arbitration.     However, no arbitrator was selected due to a dispute between the Agency and the Union regarding the arbitral selection procedures set forth in the parties’ agreement.     Thereafter, the Union filed two grievances concerning disputes over the selection of arbitrators in various cases, including the initial grievance.     The Agency filed exceptions to Arbitrator Cary Morgen’s procedural-arbitrability determination of a grievance contesting the removal of the grievant from federal employment.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Feb 16, 2021  .. Fed. Cir.:    Brown v. Air Force  ..  On April 2, 2018, the Air Force hired Ms. Brown as a Supply Technician GS-2005-05 ST with the 9th Physiological Support Squadron (“9PSPTS”) at Beale Air Force Base in Yuba, California. In her position, Ms. Brown was required to perform tasks related to the receipt, storage, issue, and replenishment of supplies for 9PSPTS.     Ms. Brown’s appointment was subject to a two-year probationary period.     By regulation, “[t]he agency shall utilize the probationary period as fully as possible to determine the fitness of the employee.” 5 C.F.R. § 315.803(a). The regulation further provides that the agency “shall terminate [the employee’s] services during [the probationary] period if the employee fails to demonstrate fully [her] qualifications for continued employment.”     On February 14, 2019, Ms. Brown received a notice of termination from her supervisor.     The notice stated that Ms. Brown had failed “to perform a portion of Duty 3” for five days in January 2019, and that two of her coworkers, Staff Sergeants Aaron Espinoza and Ariel Schlenther, had submitted complaints expressing frustrations with Ms. Brown’s lack of civility in the workplace and her refusal to perform certain work, because she claimed it was not her responsibility.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 12, 2021  .. DOJ OIG INVESTIGATIONS :    Findings of Misconduct by an FBI Assistant Special Agent in Charge for Asking a Supervisory Special Agent to Convey Knowingly Inaccurate Information to Their Chain of Command.   .html         .pdf

♦       Feb 12, 2021  .. Fed. Cir.:    Harty v. OPM  ..  Ms. Harty served as a mail clerk at the Internal Revenue Service (IRS) for a number of years before her removal on April 1, 2019.     Ms. Harty alleges that during her performance of the duties of her job on August 22, 2018, she injured her back while lifting a heavy “bucket of work.”     Following her removal, Ms. Harty sought disability retirement benefits from the IRS, submitting various doctors’ notes as supporting evidence, including one from three days after the alleged injury occurred (August 25, 2018), and a report from an MRI taken on May 23, 2019.     OPM denied Ms. Harty’s claim for benefits on Novem-ber 1, 2019.     OPM determined that Ms. Harty did “not meet the criteria for federal disability entitlement and [is] not disabled within the meaning of the retirement law.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 12, 2021  .. 11th Cir.:    Annarumma v. High Springs  ..  Mr. Annarumma, a Florida Army National Guard member, served the City of High Springs police department as a probationary patrol officer for 18 months.     He then gave his two weeks’ notice, cashed out his retirement, and resigned.     Three years later, Annarumma sued the City, alleging discrimination based on his Caucasian race and military service.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 12, 2021  .. 11th Cir.:    Willis v. Koch  ..  Mr. Willis appeals the magistrate judge’s grant of summary judgment in favor of his former employer, Koch Agronomic Services, LLC (“Koch”) on his claim of racial discrimination [...].     He argues that the magistrate judge erred in granting summary judgment to Koch for several reasons.     First, he argues that the magistrate judge overgeneralized Koch’s articulated reasons for its termination of Willis and ignored that Willis had rebutted each reason Koch proffered to the Equal Employment Opportunity Commission (“EEOC”) and during the district court proceedings.     Second, he alleges that there were inconsistencies between the proffered reasons Koch raised in its response to the EEOC and in the district court proceedings from which a jury could reasonably infer pretext.     Third, he argues that the magistrate judge erred in determining that Jeff Ogle, another Koch employee, was not a proper comparator.     And finally, he asserts that a jury could reasonably infer pretext based on racial comments made by Brett Coughlin, Willis’s supervisor, and Coughlin’s pattern of terminating black managers.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 11, 2021  .. 11th Cir.:    Dandridge v. Wal-Mart  ..  Clyde Dandridge appeals the summary judgment entered in favor of Walmart, Inc., and against his complaint of discrimination and retaliation under the Florida Civil Rights Act.     Walmart removed this action to the district court based on diversity of citizenship.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 11, 2021  .. Fed. Cir.:    Shu v. MSPB (Postal)  ..  Mr. Shu began working for the United States Postal Service as a letter carrier in 2000 or 2001. On September 21, 2003, Mr. Shu was injured on the job, after which he was absent from work. On November 7, 2003, during his absence, he was discharged on a charge of irregular attendance.     After an appeal, Mr. Shu was reinstated on November 6, 2010 and continued to work as a letter carrier.     The administrative law judge in Mr. Shu’s case ordered the Postal Service to credit Mr. Shu with the period of his absence from work for purposes of receiving retirement benefits.     On September 21, 2013, while on duty and driving a postal vehicle, Mr. Shu was involved in an accident with a privately-owned vehicle.     On November 4, 2013, the Postal Service terminated Mr. Shu’s employment on the basis of workplace misconduct for failure to report an accident. In 2015, an arbitrator found just cause for removal, and the removal became effective on March 24, 2015.         Mr. Shu appealed to the Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 10, 2021  .. D.D.C.:    Mahmoud v. Library of Congress  ..  Plaintiff Zuhair Mahmoud is a blind information-technology specialist working at the U.S. Library of Congress.     His suit alleges that the Library violated the Rehabilitation Act by both refusing him reasonable accommodations related to the adoption of new software platforms that functioned poorly for those without sight and then retaliating against him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 10, 2021  .. 4th Cir.:    Jones  v. Lowe's  ..  In January 2013, Lowe’s hired Jones, an African-American executive, to fill the role of Chief Merchandising Officer.     Greg Bridgeford, the Chief Customer Officer, initially selected Jones, but CEO and President Robert Niblock ultimately authorized and approved the hire.     As Bridgeford later testified, there was an understanding at the outset that Jones would replace Bridgeford, who was planning to retire, as Chief Customer Officer.     Because of this expectation, Bridgeford testified that he wanted to make sure that CEO Niblock was comfortable with Jones.     Bridgeford also testified that Niblock showed no hesitation “at all” in approving the hire and that Niblock thought Jones’ “upside” was “very strong.”         Things started off well.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 10, 2021  .. 11th Cir.:    Powers v. Homeland  ..  Powers was hired to work as an auditor for the Department of Homeland Security on a one-year probationary period, but she was terminated after nine months.     After pursuing administrative remedies through the Equal Employment Opportunity Commission and the Merit Systems Protection Board, Powers, who is African-American, filed a complaint against the Secretary of Homeland Security alleging that her supervisor began treating her unfairly after she wore her hair in an afro style during a training seminar.     Powers alleged that her supervisor tried to have her fired immediately after the training and that “months of disparate treatment followed,” including the supervisor giving a white coworker credit for Powers’s work.     She further alleged that she filed formal and informal grievances, which were not addressed, and that when she appealed to her supervisor’s superiors to “review [her] work for fairness,” her supervisor immediately initiated her termination.     Powers used a form for pro se employment discrimination complaints and checked blanks on the form indicating that she was claiming harassment, discrimination, and retaliation based on race in violation of Title VII of the Civil Rights Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 9, 2021  ..  IT’S THE BIRTHDAY OF AUTHOR ALICE WALKER, born in Eatonton, Georgia (1944). She was the youngest of eight children, the daughter of poor sharecroppers. Walker graduated first in her high school class and won a scholarship to Spelman College (1961). She transferred to Sarah Lawrence after two years, and a short story she wrote there was sent to Langston Hughes, who became an early champion of her writing. In 1968, she published her first collection of poetry, Once, and her first novel, The Third Life of Grange Copeland, in 1970, about a family of poor sharecroppers in the 1920s. Throughout the ’60s and ’70s, Alice Walker had a modest following, but it wasn’t until her third novel, The Color Purple (1982), won both the Pulitzer Prize and the National Book Award, that her work reached a much larger audience. She once wrote, “Writing saved me from the sin and inconvenience of violence.”    the writers almanac

♦       Feb 9, 2021  .. 6th Cir.:    EEOC v. Meade  ..  This case turns on whether there was sufficient evidence to establish that an employer “regarded” an employee as having a physical or mental impairment under the Americans with Disabilities Act (ADA).     Ms. Kean has a documented history of an anxiety disorder. Approximately six months into working as a laundry assistant at West Meade Place, LLP, an ongoing situation with her co-workers triggered “flare ups” of her disorder.     As a result, Kean asked her employer for leave under the Family Medical Leave Act (FMLA), supported by a certification from her doctor attesting to Kean’s “serious [mental] health condition.”     Theresa Jarvis, Director of Nursing at West Meade, informed Kean that she did not qualify for FMLA, based on the length of her employment.     Jarvis also explained that, in any case, leave would be unpaid. Kean, unable to go without pay, asked to return to work immediately, but Jarvis would not let Kean come back without a note from her doctor stating that she was medically fit to return.     Two days later, Jarvis terminated Kean and noted in Kean’s file that the termination was caused by her inability to perform her job duties.     The Equal Employment Opportunity Commission brought this case, alleging that West Meade violated the ADA when it terminated Kean.  ..  COURT DECISION:   (.pdf)   (.html)

   

♦       Feb 9, 2021  .. 2d Cir.:    Gong v. New York  ..  Gong, an Asian American professor of geography at CUNY Hunter College, brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, alleging discrimination, hostile work environment, and retaliation.     In fall 2017, CUNY removed Gong from the graduate advisor and fellowship coordinator positions at the university.     CUNY says that it decided to remove her based on its finding pursuant to an investigation that Gong mismanaged graduate student funds.     But Gong claims that CUNY has long discriminated against her because of her race and national origin, including by delaying her professorship promotions, assigning her to teach two courses on East Asian and Chinese geography, directing her to hold evening office hours for graduate advising while Caucasian faculty members who also advised graduate students were not similarly required, replacing her with a Caucasian adjunct professor on a search committee, and organizing a faculty meeting that included presentations criticizing certain actions by the People’s Republic of China, particularly in the South China Sea.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 5, 2021  .. 8th Cir.:    Starkey v. Amber  ..  Lana L. Starkey claims her resignation from Amber Enterprises, Inc., doing business as Amber Pharmacy, (“Amber Pharmacy”) was because of discrimination, retaliation, demotion and a hostile work environment.     She brought this employment action asserting various federal and state claims against [her employer].  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 5, 2021  .. 11th Cir.:    Andrews v. Marshall  ..  On election night in November 2012, Plaintiff, Anita Andrews, was a passenger in a pickup truck when police stopped that truck on account of a broken headlight. In the back of the truck were a number of campaign signs that Ms. Andrews had collected after the polls closed. The officers suspected her of having stolen the signs. The encounter ended with Ms. Andrews’s arrest and her detention at a county jail.     Ms. Andrews brought suit pursuant to 42 U.S.C. § 1983 against Defendants, Deputy Brandon Marshall; Sergeant Robert Kizzire; Carmine Marceno in his official capacity as Sheriff of Lee County, Florida.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 5, 2021  .. FLRA:  AFGE v. VA  ..  The Union requests that we reconsider our decision in AFGE, Local 2338.     In that case, we denied the Union’s exceptions challenging Arbitrator Gerard A. Fowler’s findings that exposure to asbestos was not raised in the grievance and that the grievants were not entitled to environmental differential pay for exposure to microorganisms.     In a motion for reconsideration, the Union again argues that the Arbitrator erred and “prejudiced” the Union by not considering the asbestos issue.     Because the Union’s motion raises the same arguments the Authority considered in Local 2338 and does not otherwise establish extraordinary circumstances warranting reconsideration, we deny it.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Feb 4, 2021  .. ICA:    Munoz v. Adventure Lands  ..  Ms. Munoz began working as a seasonal employee for Adventureland in May 2017.     Munoz worked at Adventureland’s amusement park in Altoona, first in the rides department operating rides.     Due to concerns Munoz could lose consciousness without warning, Adventureland quickly moved her to the foods department, where she typically served food and waited on customers.     On September 3, Munoz verbally told her supervisor that she intended for the next day—Labor Day—to be her final day working for Adventureland.     The supervisor told Munoz that day—September 3—would be her final day of work, but Adventureland paid Munoz a season bonus as if she had worked through Labor Day.     Munoz filed a complaint with the Iowa Civil Rights Commission and later obtained a right-to-sue letter.     Munoz then filed a petition with the district court, which she later amended to claim disability discrimination, gender discrimination, workplace harassment, and wrongful discharge against public policy.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 4, 2021  .. Fed. Cir.:    Goodson v. DVA  ..  Beginning in 2012, Mr. Goodson worked in food service at the Veterans Medical Center in Coatesville, Pennsylvania.     In a February 15, 2019 letter, the Chief of Nutrition and Food Service at the Medical Center, Laura Sarmento, proposed removing Mr. Goodson from employment for in-appropriate conduct in a verbal confrontation with a patient.     Ms. Sarmento reasoned that removal was the proper penalty (1) because of Mr. Goodson’s prior suspension for “making lewd comments” and engaging in “sexually suggestive actions, along with disrespectful behavior towards a supervisor,” (2) because “[e]mployees are expected to treat Veterans with kindness and respect at all times,” and (3) because “it is the responsibility of all employees to promote a productive work environment free of inappropriate conduct and vulgarities.”     On February 27, 2019, the Director of the Medical Center, Carla Sivek, found substantial evidence supported the charge of inappropriate conduct and removed Mr. Goodson.     Mr. Goodson appealed his removal to the Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 4, 2021  .. Supreme Court:    Salinas v. RRB  ..  In 1992, petitioner Manfredo M. Salinas began seeking disability benefits under the Railroad Retirement Act of 1974 (RRA) based on serious injuries he suffered during his 15-year career with the Union Pacific Railroad. Salinas’ first three applications were denied, but he was granted benefits after he filed his fourth application in 2013.     He timely sought reconsideration of the amount and start date of his benefits.     After reconsideration was denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened because the U. S. Railroad Retirement Board (Board) had not considered certain medical records. An intermediary of the Board denied the request to reopen because it was not made “[w]ithin four years” of the 2006 decision, and the Board affirmed.     Salinas sought review with the Fifth Circuit, but the court dismissed the petition for lack of jurisdiction, holding that federal courts cannot review the Board’s refusal to reopen a prior benefits determination. Held:     The Board’s refusal to reopen a prior benefits determination is subject to judicial review.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 4, 2021  .. 6th Cir.:    Hannah v. SSA  ..  Throughout the 2000s and early 2010s, attorney Eric Conn obtained social security benefits for his clients by “submitting fraudulent reports to the Social Security Administration” and bribing an Administrative Law Judge.     After the government discovered this fraud, the SSA decided to redetermine whether each of Conn’s clients (over 1,500 claimants) were actually eligible for disability benefits.     The SSA held hearings for each of the claimants and allowed them to submit evidence that they were entitled to benefits.     However, the SSA categorically excluded medical reports created by the four doctors with whom Conn had conspired because it had “reason to believe” fraud was involved in the creation of the reports.     The claimants were not given the opportunity to challenge the factual finding that there was reason to believe that fraud was involved in the creation of the medical reports.     After individual hearings before administrative law judges, plaintiffs’ claims for disability benefits were denied.     Fifty-seven plaintiffs then filed suit in the Eastern District of Kentucky challenging the exclusion of the medical reports.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 3, 2021  .. 1st Cir.:     Burnett v. Ocean  ..  Appellee Mr Burnett, who relies on a wheelchair for mobility, sued Appellants AmeriPort, LLC, and Ocean Properties, Ltd., for failing to accommodate his disability at work, as required under the Americans with Disabilities Act     He prevailed and a jury awarded Burnett compensatory and punitive damages for his troubles.     Over Appellants' protestations, the district court upheld the verdicts and entered judgment in Burnett's favor but remitted the punitive damages award.     Appellants are here challenging the verdicts.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 3, 2021  .. 3rd Cir.:    Henderson v. OPM (IRS)  ..  Ms. Henderson is a former employee of the Internal Revenue Service. In early 2017, Henderson sought clarity about her disability annuity payments under the Federal Employees Retirement System (FERS).     With clarity came disappointment, however; the Office of Personnel Management (OPM) notified Henderson that it had adjusted her annuity payment downward, as of her recently celebrated 62nd birthday.     Contending that OPM’s adjustment calculation was based on an erroneously low salary input, Henderson sought administrative appellate review with the Philadelphia Regional Office of the Merit Systems Protection Board (MSPB).     A single MSPB administrative judge (“AJ”) dismissed Henderson’s appeal for lack of jurisdiction. The AJ reasoned that OPM’s annuity decision was merely preliminary; it was not “final” and subject to immediate review.     Henderson then filed a pro se petition for review in this Court.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 3, 2021  .. Fed. Cir.:    Durr  v. MSPB (Postal)  ..  Mr. Durr previously served in the U.S. Army, and was honorably discharged on January 8, 1993 for medical reasons with a service-connected physical disability rating of 30 percent.     In March 1994, Mr. Durr was hired by the United States Postal Service (“USPS”) as a full-time Mailhandler at the Chicago Bulk Mail Center in Forest Park, Illinois. Beginning on January 16, 1996, Mr. Durr’s supervisor at USPS recorded Mr. Durr as being absent without leave (“AWOL”) from his position.     By written notice dated April 24, 1996, Mr. Durr’s supervisor charged him with being AWOL since January 16 and proposed his removal. Mr. Durr did not respond to this notice.     On May 16, 1996, USPS issued a written deci- sion sustaining Mr. Durr’s removal from his position effective June 1, 1996.     Because Mr. Durr is a preference- eligible disabled veteran, the USPS removal decision in- cluded a notice to Mr. Durr that he could appeal his removal to the MSPB within 30 days of its effective date.     Mr. Durr appealed his removal to the MSPB on May 14, 2015, almost 19 years after the effective date of the removal.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 1, 2021  .. 3rd Cir.:    Martinez v. UPMC  ..  At the pleading stage, an age-discrimination plaintiff does not have to know his replacement’s exact age. That age can come out in discovery.    A hospital allegedly fired orthopedic surgeon Zeferino Martinez without much explanation and replaced him with two younger doctors.    The District Court dismissed his age-discrimination suit, treating as conclusory his allegation that his replacements were “significantly younger.”    But that age gap, we hold, is a factual allegation that the District Court must take as true. It does enough to put the employer on notice.    The hospital knows the younger doctors’ exact ages and specialties, and discovery will let Martinez uncover those and other details in time for summary judgment and trial.    We will thus reverse.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Feb 1, 2021  .. CCA:    Stafford v. Avenal  ..  Plaintiff, Ms. Stafford, sued defendant Avenal Community Health Center, her former employer, alleging thirteen causes of action: (1) whistleblowing; (2) racial discrimination; (3) workplace violence; (4) failure to prevent harassment, discrimination, or retaliation; (5) wrongful termination in violation of public policy; (6) unlawful and unfair business practices; (7) breach of contract; (8) libel; (9) slander; (10) intentional misrepresentation; (11) harassment on the basis of race; (12) retaliation; and (13) conspiracy.     She alleged she was hired by defendant to work as a physician in its clinics. She expressed concerns about defendant’s non-physician chief executive officer (CEO) becoming involved in medical decisions and in creating a peer review process; when nothing was done, she complained to the Medical Board of California and defendant retaliated against her. Other employees made derogatory comments and sent a vulgar text message that plaintiff found offensive. On one occasion, an employee yelled at plaintiff and threw a pen at her. Because of plaintiff’s expressed concerns or complaints, she was excluded from participating in events at a company retreat and was denied the privilege of working with patients.     Plaintiff also alleged defendant breached its contractual obligations to her by not allowing her all of her vacation time, placing her on call, and not paying her overtime compensation. On May 31, 2017, plaintiff gave 30 days’ notice of her resignation after defendant failed to prevent harassment. Defendant allegedly then terminated plaintiff’s employment in breach of her employment contract and in violation of public policy.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 29, 2021  .. VA OIG :  ..   False Statements And Concealment Of Material Information By Va Information Technology Staff ... The VA Office of Inspector General (OIG) conducted an administrative investigation.    Investigators found that two VA employees involved in creating the CRADA made false representations to and concealed material information from VA’s approving official for the agreement.    The OIG concluded that the approving official relied on the information received from the two VA employees and was led to approve the CRADA under false pretenses.    As a result of the two VA employees’ actions, the health data of tens of millions of veterans would have been placed at risk of disclosure if VA officials had not detected a problem and cancelled the CRADA before information was shared with the private company.  ..  FSIP DECISION:   va oig   (.pdf)

♦       Jan 29, 2021  .. FSIP:  Agriculture v. AFGE  ..  The U.S. Department of Agriculture (USDA), Food Safety and Inspection Service (Agency or FSIS) filed a request for assistance with the Federal Service Impasses Panel (Panel) under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, concerning a dispute from negotiations over a successor collective bargaining agreement (CBA).     The AFGE (Union) represents a bargaining unit consisting of approximately 6,300 food and consumer safety inspectors located throughout the country.  ..  FSIP DECISION:   (.pdf)   (.html)

♦       Jan 29, 2021  .. 10th Cir.:    DeSanzo v. Southcrest  ..  Ms. DeSanzo, a registered nurse, was born in 1952. She worked as a charge nurse overnight on the weekend shifts (known as the “weekend option”) in the postpartum unit at Hillcrest South Hospital. The overnight weekend option paid more per shift than daytime or non-weekend shifts. Ms. DeSanzo began working for the Hospital in 2009, switching to the night shift and weekend option in 2014.     Starting in 2013, Ms. DeSanzo’s supervisor was Krista Fouke. After Ms. Fouke resigned in April 2016, India Jackson became Ms. DeSanzo’s supervisor. Both Ms. Fouke and Ms. Jackson reported to Jamie Heitgrass, the Director of Nursing Operations and Director of Women and Children’s Services.     Ms. Fouke never formally disciplined Ms. DeSanzo, but she counseled her about completing her patients’ medical charts in a timely fashion. In August 2016 Ms. Jackson spoke to Ms. DeSanzo about the same issue, telling her she could not clock out and then stay after her shift to chart; charting was to be completed in real time. Ms. Jackson followed up the conversation by issuing a written confirmation of a verbal warning, the first step in the Hospital’s disciplinary process.     In early September a physician and a patient complained that Ms. DeSanzo had not appropriately medicated the patient. On September 12, Ms. Jackson and Ms. Heitgrass issued Ms. DeSanzo a written warning. A few weeks later a nurse reported that a patient did not want Ms. DeSanzo to return to her room. On October 5, Ms. Jackson and Ms. Heitgrass suspended Ms. DeSanzo without pay for three shifts and removed her from the charge-nurse position and the weekend option.     Soon after the October 5 discipline, Ms. DeSanzo filed an internal complaint asserting that she was being subjected to age discrimination.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 28, 2021  .. FLRA:  NTUE v. IRS  ..  In this case, we remind the federal labor‑management community that arbitrators do not exceed their authority by directly responding to the issues framed in the absence of stipulated issues.     The Union filed a grievance alleging that the Agency violated the parties’ national collective-bargaining agreement by failing to provide employees (the grievants) a higher rate of pay for a portion of time that they were detailed to a higher-graded position. Arbitrator Michael D. Gordon issued an award finding that under the national agreement, the grievants were not entitled to General Schedule (GS)-8 pay for the first two weeks of the detail, because the Union president and Agency management agreed to a different payment timeline.     The main questions before us are: (1) whether the Arbitrator exceeded his authority, and (2) whether the award fails to draw its essence from the national agreement. The Arbitrator framed the issue because the parties failed to stipulate to an issue for resolution at arbitration, and the award responds directly to the framed issue. Further, the Arbitrator’s resolution of the grievance does not conflict with the national agreement, and the Union’s essence exception simply reiterates the exceeds‑authority argument. Thus, the award neither exceeds the Arbitrator’s authority nor fails to draw its essence from the national agreement.     Accordingly, we deny the Union’s exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 27, 2021  .. 3rd Cir.:    Belles v. Wilkes Barre  ..  Thomas Belles sued Wilkes Barre Area School District, Frank Castano and Sean Flynn claiming that they violated the Americans with Disabilities Act [...] during the time that he served as head varsity wrestling coach at Coughlin High School.     Thomas Belles is quadriplegic. He has taught in the School District since 1993 and had been head coach of the junior high school wrestling team from 2008.     The School District hired him as the high school’s head varsity wrestling coach on May 12, 2014.     Belles resigned from the position on August 28, 2014.     Within that span of time, he claims the School District and Castano discriminated against him by failing to accommodate his ability to practice his team; retaliating for his accommodation request when the School District hired an associate head coach; creating a hostile work environment; and constructively discharging him.     To establish an ADA failure-to-accommodate claim, Belles had to show he is disabled, his employer was aware of it, he requested accommodation, a reasonable accommodation was possible, and the employer did not make a good faith effort to respond.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 27, 2021  .. 9th Cir.:    Bayer v. Neiman Marcus  ..  As a preliminary matter, the parties dispute the standard1 that applies to § 503(b), which provides that “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere” with any individual in the “exercise or enjoyment” of ADA rights. 42 U.S.C. § 12203(b).     Although in Brown v. City of Tucson, we appear to treat § 503(b) “interference” differently from § 503(a) “retaliation,” we did not resolve the precise legal standard that applied because the employer’s conduct in Brown clearly violated the plain statutory language.     We take the same approach here because Bayer presented sufficient evidence to prevail on his § 503(b) claim regardless of which legal standard applies.     After Bayer returned to work from medical leave, Neiman Marcus denied his request to modify his work schedule to accommodate his ADA-qualifying medical condition. Shortly thereafter, Bayer filed an administrative charge with the EEOC, charging Neiman Marcus with an ADA violation for its failure to accommodate his work schedule request.     The same day, Neiman Marcus presented Bayer with a mandatory arbitration agreement.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 26, 2021  .. FLRA:  AFGE v. HOMELAND (Immigration)  ..  In this case, we resolve several disputes that arose between the parties during negotiations for a new collective-bargaining agreement (CBA).     This matter is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (Statute).     The petition for review (petition) involves three proposals.     For the reasons that follow, we find that all three proposals are outside the duty to bargain.     Accordingly, we dismiss the Union’s petition.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 26, 2021  .. FLRA:  VA v. AFGE  ..  Prior to the merits hearing, the Agency claimed that the national grievance was not arbitrable under the parties’ agreement because the Union had previously filed a separate local grievance over the same matter.     Subsequently, Arbitrator Richard Trotter issued a prehearing award, finding that the national grievance is procedurally arbitrable because the parties’ agreement permits the Union to file a national grievance by either elevating a local grievance to the national level or by independently filing a national grievance—even when the national grievance pertains to similar matters as the previously filed local grievance.     Therefore, the Arbitrator ordered the parties to proceed to a hearing on the merits of the national grievance.     The Agency argues that the award does not draw its essence from the parties’ agreement and that it is based on a nonfact.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 25, 2021  .. D.D.C.:    Wilson v. Wolf  ..  Plaintiff Kenneth Duronn Wilson, a former employee of the Federal Emergency Management Administration (“FEMA”), has filed a six-count complaint against the head of the Department of Homeland Security, arising out of his employment as a reservist between 2011 and 2016.     Plaintiff brought claims [...] alleging that he was subjected to racial and gender discrimination, retaliation, and a hostile work environment.     He also brought a claim of retaliation under the False Claims Act and conspiracy to interfere with civil rights.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 25, 2021  .. FLRA:  AFGE v. VA  ..  The Union filed two sets of exceptions to Arbitrator Lewis G. Brewer’s award denying its grievance. We dismiss the first set because it but did not provide any supporting arguments and dismiss the second set as untimely.     The Arbitrator issued an award dated March 30, 2020 denying the Union’s grievance. On April 28, the Union used the Authority’s eFiling system to file exceptions to the award (April 28 exceptions) and attached a brief to its exceptions form. The attached brief was the “Union’s Closing Brief” to the Arbitrator (post-hearing brief). The Union did not include any arguments in the electronic exceptions form.     On May 1, the Union used the eFiling system to refile its exceptions (May 1 exceptions), with a different brief than the one attached to the April 28 exceptions. The brief attached to the May 1 exceptions was the “Union’s Exceptions to Arbitral Award”, which argued that the award is deficient on contrary‑to‑law and essence grounds.     Subsequently, the Authority’s Office of Case Intake and Publication issued an order directing the Union to show cause (the order) why the May 1 exceptions should not be dismissed as untimely.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 25, 2021  .. FLRA:  Prisions v. AFGE  ..  With this case, we remind the federal labor relations community that an award of backpay requires a finding that the grievant was subject to an unjustified or unwarranted personnel action.     The Agency reassigned the grievant, a correctional officer, to a different position due to security concerns pending an investigation into the grievant’s interactions with an inmate. While in the reassigned position, the grievant did not have the opportunity to work overtime. The Union filed a grievance alleging that the Agency inappropriately denied the grievant overtime during the reassignment.     After finding the grievance timely, Arbitrator Donald J. Petersen partially sustained the grievance on the merits. The Agency excepted to the Arbitrator’s award on the ground that his procedural‑arbitrability finding did not draw its essence from the parties’ agreement, and that the award is contrary to the Back Pay Act (BPA).     Because the Arbitrator’s interpretation of the relevant provision of that agreement is plausible, we find that his procedural-arbitrability determination draws its essence from the parties’ agreement.     However, we find that the award of backpay is contrary to the BPA because the Arbitrator did not find that the Agency violated an applicable law, rule, regulation, or provision of the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 22, 2021  .. Fed. Cir.:    Searcy v. Agriculture  ..  Mr. Searcy joined the Department of Agriculture in 1974. Subsequently, he enrolled in a full-time post-graduate program at Northwestern University under an agreement to remain in the employment of the agency in exchange for tuition benefits.     Mr. Searcy left Northwestern University in 1977, however, without completing his program and did not return to his position with USDA. Id. As a result, the agency terminated him for separation by abandonment, effective May 30, 1977. At the time of his termination, Mr. Searcy was in debt to the agency in the amount of $11,036.99. For that reason, USDA placed a lien in that amount on his Civil Service Retirement System account.     On June 12, 2006, Mr. Searcy was notified that his application for deferred retirement was denied because his retirement contributions had been forfeited to pay his debt to USDA.     On February 6, 2008, Mr. Searcy filed an EEOC complaint alleging discrimination on the basis of race.     In his complaint, Mr. Searcy alleged that his retirement contributions were forfeited because of his forced termination by USDA on the basis of race.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 21, 2021  .. 4th Cir.:    Benjamin v. Sparks  ..  Saul Hillel Benjamin, the former headmaster of the Epiphany School of Global Studies.     Benjamin alleged various acts of unlawful discrimination and retaliation, breach of contract, and tortious injuries.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 21, 2021  .. 11th Cir.:    Perry v. Pediatrix  ..  Dr. Perry, an African-American male, specializes in pediatric critical care. In 2013, he was hired as a temporary pediatric critical care doctor by Pokroy Medical Group of Nevada, Ltd. Pokroy Medical is an affiliate of Pediatrix, a third-party medical provider of specialty services—like pediatric critical care—for hospitals and other health care facilities. Pediatrix is part of Mednax.     Pokroy Medical assigned Dr. Perry to work at a hospital in Nevada. While he was working in Nevada, Dr. Perry had a confrontation with a pregnant white pharmacist employed by the hospital. The pharmacist changed the medication regimen for one of Dr. Perry’s patients without consulting him, and Dr. Perry confronted her about it. Dr. Perry and the pharmacist raised their voices at one another within earshot of a nearby patient area. After the incident, the pharmacist told another employee that she was afraid of Dr. Perry because he was a “big black guy.”     When Dr. Perry learned of the pharmacist’s comment, he filed a race discrimination complaint with the Nevada Board of Pharmacy.     Dr. Perry did not tell anyone at Pokroy Medical about the incident or the complaint.     Two weeks later, Pokroy Medical terminated Dr. Perry’s contract.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 21, 2021  .. WCA:    WWCI v. WDES  ..  This appeal raises questions surrounding judicial review of an administrative agency’s findings of fact and concerning disqualification for unemployment compensation based on alleged employee misconduct.     Wayne Terry and Jan Kopet concluded that Fred Stevens fabricated his time sheet. On January 10, 2019, Wayne Terry fired Fred Stevens from White Water Construction employment for falsifying the time sheet.     After his termination from employment at White Water Construction, Fred Stevens applied for unemployment compensation with ESD. ESD initially granted the application and began payments to Stevens.     ESD later denied Stevens’ application after determining that Stevens falsified his time sheet and the falsification constituted misconduct that disqualified him from benefits.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 20, 2021  .. FSIP:  National Park Service v. F.O.P  ..  The parties had twelve negotiation sessions between June 2020 and August 2020. With the assistance of the Federal Mediation and Conciliation Services (FMCS), the parties had 2 mediation sessions in August and September 2020.     As a result of their efforts, the parties reached agreement on 16 articles.     But, they continued to disagree on 7 articles after mediation. Accordingly, on September 21, 2020, the Mediator released the parties from mediation. The Agency subsequently filed this request for Panel assistance on September 28.     On November 10, the Panel voted to assert jurisdiction over all issues in dispute and to resolve them through a Written Submissions process with an opportunity for rebuttal statements.     By way of Order dated November 12, 2020, the Panel ordered the parties to provide their initial arguments by December 2nd and any rebuttal statements by December 14th. The parties timely provided their submissions.  ..  FSIP DECISION:   (.pdf)   (.html)

♦       Jan 20, 2021  .. FSIP:  VA v. NAGE  ..  This case, filed by the U.S. Department of Veterans Affairs (Agency or VA) on September 19, 2020, concerns ground rules for the reopener of the parties’ successor collective bargaining agreement (CBA).     The mission of the Agency is to fulfill President Lincoln's promise “To care for him who shall have borne the battle, and for his widow, and his orphan” by serving and honoring the men and women who are America’s veterans.     There are three main components within the VA: the Veterans Health Administration (VHA), the Veterans Benefit Administration (VBA), and the National Cemetery Administration.     The National Association of Government Employees (Union) represents over 16,000 bargaining unit employees in a variety of positions throughout the United States.     The parties are governed by a collective bargaining agreement that expired in September 2019.     This dispute concerns negotiations over ground rules that will be used to bargain a new contract.  ..  FSIP DECISION:   (.pdf)   (.html)

♦       Jan 20, 2021  .. Fed. Cir.:    Miller v. MSPB  ..  Deborah Mouton-Miller was promoted from her supervisory position at the United States Postal Service to a different supervisory position at the Department of Homeland Security, subject to a one-year probationary period.     After less than a year, Homeland Security informed Ms. Mouton-Miller that her performance had been unsatisfactory and that she was being reassigned from a supervisory to a non-supervisory role.     Ms. Mouton-Miller appealed that decision to the Merit Systems Protection Board..  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 19, 2021  .. 6th Cir.:    Drews v. Berrien Cnty  ..  Lori Drews was born in 1960.     From 1982 to 2017, she worked for the Berrien County Road Commission.     The Commission managed local road maintenance and was an independent municipal entity, separate from the Berrien County government.     Lori Drews had a lengthy career at the Berrien County Road Commission. Most recently, she worked as its payroll specialist.     But when the local county government, which had its own payroll staff, absorbed the Road Commission, Drews’ position was eliminated.     Drews was terminated, and she sued Berrien County for age discrimination. The district court granted summary judgment in favor of the County.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 19, 2021  .. 6th Cir.:    Thompson v. Fresh Products  ..  Fresh Products hired Thompson as a production worker in July 2016, after she interviewed with Shaferly, Fresh Products’ human-resources manager, at a hiring event. Thompson did not mention her arthritis diagnosis to Shaferly during her interview.     Thompson is African-American and was fifty-two years old at all times relevant to this appeal. Thompson has arthritis, which affects her knees, back, and neck and restricts her from doing heavy lifting.     Because of her inability to do heavy lifting, her doctor gave her weight restrictions at one of her previous jobs, and she sought work “that doesn’t require heavy lifting.”     Thompson testified that she receives treatment for her arthritis, including injections, pain medication, and pain cream, and that her arthritis inhibits her ability to “[l]ive a full life.”     She testified that she was approved for Social Security Disability (SSD) payments in 2014 based on a primary disability of morbid obesity and a secondary disability of arthritis.     Thompson was no longer morbidly obese at the times relevant to this litigation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 18, 2021  .. SORRY, NO NEW CASES TODAY

♦       Jan 13, 2020  .. D.D.C.:    Pappas v. MPD (DC Police)  ..  Plaintiffs Pappas, Lindsay, Mathies, and Malik, former employees of the District of Columbia Metropolitan Police Department (“MPD”), brought this class action against MPD, the District of Columbia, and Peter Newsham in his official capacity as Chief of Police of the MPD, challenging the MPD’s practice of requiring employees who spend 172 cumulative days within any 24-month period at less than full-duty status to take disability retirement, without offering reasonable accommodations through reassignment, job restructuring, or extended leave.     They argue this policy violated the Americans with Disabilities Act (“ADA”)and the Rehabilitation Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 13, 2021 .. FLRA:  BMTC v. Navy  ..  This matter is before the Authority on exceptions to an Arbitrator's award filed by the Union under § 7122(a) and part 2425 of the Authority’s Regulations.     The Agency filed an opposition to the Union’s exceptions.     Upon full consideration of the circumstances of this case – including the case’s complexity, potential for precedential value, and similarity to other, fully detailed decisions involving the same or similar issues, as well as the absence of any allegation of an unfair labor practice, we have determined that this case is appropriate for issuance as an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 13, 2021  .. FLRA:  Army v. AFGE  ..  The Union filed a grievance and request for information (RFI) with the Agency. The grievance asserts that the violations arise from the Agency’s failure to properly classify bargaining-unit employees as nonexempt under the Fair Labor Standards Act, failure to pay proper compensation for overtime worked, failure to allow employees a proper choice of compensatory time or overtime, and failure to pay “suffer or permit” overtime.     The Union made a request for all outstanding RFI response data. Agency counsel refused to provide much of the requested data. The parties participated in several hearings before the Arbitrator until the Union notified the Arbitrator that it could not proceed in further hearings without the requested RFI data. The Arbitrator issued a written ruling on the RFI issue (the ruling).     In the ruling, the Arbitrator found that “under current law a union has a right to information for which it can present a particularized need in order to investigate and present grievances.”  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 12, 2021  .. Fed. Cir.:    Lowe v. Navy  ..  On October 10, 2018, the Department of the Navy removed Mr. Lowe from his position as a GS-0301-13 Regional Dispatch Center Manager. The Navy took this action based upon two charges.     Charge One was “Careless or Negligent Performance of Duties” and contained six specifications.     Charge Two was “Conduct Unbecoming” and contained one specification.     Mr. Lowe timely appealed his removal to [the MSPB].     The MSPB administrative judge (“AJ”) found that the Navy had not proved any of the specifications of Charge One,     but that it had proved the single specification of Charge Two.     Based upon her findings, the AJ mitigated Mr. Lowe’s penalty to a reduction in grade to a non-supervisory GS-12 position.     Mr. Lowe timely petitioned MSPB for review of the administrative judge's decision.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 12, 2021  .. D.D.C.:    Panarello v. Bernhardt  ..  Lori Panarello filed this employment discrimination-related lawsuit while another case she brought against the same defendant alleging very similar claims was still pending in this courthouse. That action was ultimately unsuccessful. Her case here meets the same fate.     Panarello challenges her termination as a United States Park Police supervisor following her guilty plea for driving while intoxicated (“DWI”), her third disciplinary infraction overall and second involving alcohol. She sues the Secretary of the Department of Interior, who has ultimate authority over the Park Police, under Title VII. She claims that the Park Police discriminated against her on the basis of sex and sexual orientation and removed her in retaliation for her other Title VII lawsuit, as well as another Title VII action she filed more than fifteen years ago.     The Secretary of Interior moves for summary judgment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 12, 2021  .. FLRA:  BMTC v. Navy  ..  This matter is before the Authority on exceptions to an award of Arbitrator Dean A. Martin filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute)[1] and part 2425 of the Authority’s Regulations.[2] The Agency filed an opposition to the Union’s exceptions. .     Upon full consideration of the circumstances of this case – including the case’s complexity, potential for precedential value, and similarity to other, fully detailed decisions involving the same or similar issues, as well as the absence of any allegation of an unfair labor practice, we have determined that this case is appropriate for issuance as an expedited, abbreviated decision under § 2425.7 of the Authority’s Regulations.[3] .     The Union challenges the award on nonfact, essence, and exceeds-authority grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 11, 2021  .. 10th Cir.:    Bowles v. Grant  ..  Bowles worked for Grant Trucking as a dump truck driver from 2006 to mid- 2014.     In his First Amended Complaint, he sued Grant Trucking for disability discrimination in violation of the ADA.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 11, 2021  .. FLRA:  Defense v. OFT  ..  In the attached recommended decision, the Federal Labor Relations Authority’s (FLRA) Chief Administrative Law Judge David L. Welch (Judge) found that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (Statute) by discontinuing personalized workplace package delivery to employees without first providing the Union notice of, and an opportunity to bargain over, the change.      FLRA :    Because the Judge erred in concluding that this dispute affected employees’ conditions of employment, we find that he erred in concluding that the Respondent violated its duty to bargain.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 11, 2021  .. FLRA:  Border Protection v. AFGE  ..  Border patrol agents inspect individuals’ immigration status and vehicles trying to enter the United States. The agents conduct inspections using “primary” and “secondary” inspection areas.     The primary purpose of these inspections is to “apprehend illegal aliens and smugglers.”     Based on discovered deficiencies in primary lane inspections, the Agency issued an inspection memorandum (memo) that directed the agents to perform vehicle inspections in the secondary area when certain criteria were met.     The Arbitrator found that the inspection memo constituted a change to a condition of employment that was more than de minimis.     Border Patrol appealed the arbitrator's findings.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Jan 8, 2021  .. 11th Cir. :    Williams-Evans  v. Advance  ..  Williams-Evans, a salesperson at an Advance store in Augusta, Georgia, injured her lower back at work when picking up a car battery. That injury, which occurred on June 19, 2014, prompted a three week leave of absence. Though she returned to work the next month, she continued to suffer from substantial back pain.     Advance provided her with a metal folding chair to sit on while she worked to help alleviate her pain, but she thinks that wasn’t enough. According to Williams-Evans, the chair was so low that she had to repeatedly sit and stand throughout the day to perform her job duties—aggravating her injuries further.     She requested that the chair be replaced with a stool with back support, but to no avail; Advance denied her request.     Prior to initiating this lawsuit, Williams-Evans filed a charge with the Equal Employment Opportunity Commission asserting that Advance violated the ADA by discriminating against her on the basis of disability and retaliating against her. The EEOC issued her a right-to-sue letter on August 24, 2018, and she filed an action in district court the next month.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 8, 2021  .. Fed. Cir. :    Beckstead v. OPM  ..  Mrs. Beckstead was married to Mr. Beckstead on February 4, 1965. In 1971, Mr. Beckstead became a federal employee covered under the Civil Service Retirement System. In 2007, he applied for retirement and elected a survivor annuity for his spouse, Mrs. Beckstead. Each year after Mr. Beckstead’s retirement, the Office of Personnel Management (“OPM”) sent him an Annual Notice of Survivor Annuity Election Rights (“Annual Notice”).     On December 3, 2009, Mr. and Mrs. Beckstead divorced.     The Divorce Decree did not specifically provide for a survivor annuity, and no QDRO was issued while Mr. Beckstead was alive. Following the divorce, Mr. Beckstead did not notify OPM of the divorce and he never made a new election of a survivor annuity for Mrs. Beckstead.     Mr. Beckstead died on July 9, 2018, and Mrs. Beckstead applied for survivor annuity benefits thereafter. OPM informed Mrs. Beckstead that her application could not be processed because her Divorce Decree did not include the referenced QDRO. On January 18, 2019, more than seven months after Mr. Beckstead’s death, the New Mexico state court issued a QDRO.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 7, 2021  .. Fed. Cir.:    Newman v. Air Force  ..  Mr. Newman was employed as a sheet metal aircraft mechanic at Robins Air Force Base in Warner Robins, Georgia.     On May 29, 2018, the Air Force proposed removing Mr. Newman for misconduct based on two charges: unauthorized absence and failure to comply with leave procedures.     Two specifications supported the charges: (1) Mr. Newman was absent without leave for eight hours on April 13, 2018; and (2) Mr. Newman was absent without leave for five hours on April 16, 2018.     The agency also considered his four previous disciplinary actions for unauthorized absence and failure to comply with leave procedures as aggravating factors.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 7, 2021  .. ACNY:    Doe v. NYC Police  ..  Plaintiff is a homosexual man who graduated from the Police Academy in 2006 and by November 2008 rose to the rank of detective, third grade.     Viewing the record in the light most favorable to plaintiff as nonmovant, beginning within a short time after he joined defendant New York City Police Department (NYPD), it became widely known that he was gay, because, among other factors, homophobic colleagues vindictively published that fact by calling officers wherever plaintiff was stationed and telling them to harass plaintiff because he was gay.     When plaintiff began his assignment at NYPD's Internal Affairs Bureau's (IAB) Command Center beginning in the summer of 2007, plaintiff was immediately exposed to two sergeants who quickly surmised, based on his responses to their constant homophobic slurs directed at civilians and gay officers, that plaintiff was gay.     Other officers joined in, condoned and encouraged by the sergeants, and plaintiff thereafter endured over a year of homophobic derision, harassment, and verbal abuse.     The foregoing establishes a claim for employment discrimination, via hostile work environment.  ..  COURT DECISION:   (.htm)   (.html)

♦       Jan 7, 2021  .. Fed. Cir.:    Shealayno'sun v. Army  ..  Plaintiff Lena Shealayno’sun, an engineer with the U.S. Army Corps of Engineers (“the Corps”), brings this action against Defendant Ryan D. McCarthy, in his official capacity as Secretary of the Army, asserting claims of discrimination and retaliation under the Rehabilitation Act of 1973.     Plaintiff was diagnosed with stage IV metastatic cancer in November 2015 and was subsequently granted reasonable accommodations, including full-time telework and a flexible schedule.     She alleges that the U.S. Army Corps of Engineers (1) discriminated against her by failing to accommodate her disability and (2) retaliated against her on the basis of her disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 6, 2021  .. (Fed. Cir.:    Moore v. Navy  ..  Mr. Moore was appointed the role of Contract Specialist with the Department of the Navy (Navy) on January 22, 2018. This employment was subject to a two-year probationary period.     During the initial six months of his civilian employment, Mr. Moore was required to report for training in his role as a military reservist, taking leave from his civilian employment at the Navy to do so.     On June 8, 2018, the Navy terminated Mr. Moore’s employment, citing poor performance as the reason for termination. Mr.     Moore appealed his termination to the Board, alleging that the termination was improper because it was motivated by his military service and thus, violated USERRA, which prohibits discrimination in employment on the basis of military service.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 6, 2021  .. 10th Cir.:    English v. SBA  ..  Plaintiff is an African-American who began working in 2007 for the United States Small Business Administration (SBA) as a Surety Bond Guarantee Specialist in the SBA’s Denver Office of Surety Guarantees.     During the relevant time English’s first-level supervisor was Jennifer Vigil, who is Caucasian, and his second-level supervisor was Peter Gibbs, who is African-American.     Plaintiff claims he was subject to racial discrimination and retaliation that began after he complained in April 2014 to Vigil about the conduct of an Hispanic co-worker and continued until his termination in September 2016.     During that time, English filed multiple complaints of discrimination and retaliation with SBA officials, his congressman, and the Equal Employment Opportunity Commission (EEOC) regarding Vigil, Gibbs, and others.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 6, 2021  .. Fed. Cir.:    Bell v. Defense  ..  Ms. Bell was employed by the Department of Defense (DoD) Defense Travel System as a Program Analyst beginning in November 2009.     After the Defense Travel System was absorbed by the Defense Logistics Agency (DLA or the Agency), Ms. Bell began working for DLA as a Program Analyst in July 2011. DLA approved Ms. Bell’s request to telework four days a week as a medical accommodation.     Ms. Bell subsequently requested full-time telework as a reasonable accommodation, but her new supervisor, Davis McLemore, denied the request in December 2013, reducing her telework schedule to two days per week from the previous four-day telework schedule. Ms. Bell refused to sign the new two-day-a-week telework agreement and did not return to work for six months despite repeated requests to report to work. This resulted in six months of absence without leave (AWOL).     Mr. McLemore sent Ms. Bell a proposed notice of removal based on her AWOL.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 5, 2021  .. CCA:    Tzovolos v. Worldwide  ..  Chrisavgi Tzovolos (Tzovolos) sued her former employer Worldwide Flight Services, Inc. (WFS), alleging she was terminated on the basis of gender and in violation of public policy.     She also asserted wage and hour causes of action. WFS moved to compel arbitration and stay all proceedings, invoking an arbitration agreement (the Agreement) Tzovolos signed.     The trial court denied WFS’s motion, finding the Agreement was substantively unconscionable.     WFS argues the trial court incorrectly concluded the Agreement was substantively unconscionable because the plain text of the Agreement reveals mutuality of obligation.     WFS also argues reversal is required because the trial court’s ruling failed to address procedural unconscionability.     We reverse and remand with directions.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Jan 4, 2021  .. FLRA:  Prisons v. AFGE  ..  The Union filed a grievance alleging that the Agency violated the parties’ collective-bargaining agreement by partially denying an official-time request.     Arbitrator Fredric R. Ditcher issued an award finding the grievance procedurally arbitrable and sustaining it on the merits.     The Agency now argues that the award fails to draw its essence from the parties’ agreement because the Arbitrator misinterpreted the agreement’s (1) procedural-arbitrability requirements and (2) official-time approval procedure.     Because the Agency does not establish that the Arbitrator’s contractual interpretations were irrational, unfounded, implausible, or in manifest disregard of the parties’ agreement, we deny the exceptions  ..  FLRA DECISION:   (.pdf)   (.html)



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