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♦        OPM   ...   Recent Pay And Leave-Related Legislative Changes.    OPM

♦       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)

♦       Dec 31, 2021  .. FLRA:  Homeland v. NTEU  ..  In 2018, the Union filed a grievance alleging that the Agency impermissibly moved Customs and Border Protection officers (officers) and agriculture specialists (specialists) out of their cargo-enforcement work unit. Specifically, the Union claimed that the Agency, in violation of Article 13 of the parties’ agreement, included “catch-all phrases” within cargo-enforcement bid announcements that required these employees to perform passenger-operations duties.     Article 13, Section 2(B) states, as relevant here, that the Agency “will not include ‘catch-all’ phrases in unit descriptions so as to require employees to work in units other than their bid work unit. A catch-all phrase is a statement within a work[-]unit description that captures duties that are not regular or recurring within the work unit.”     After the Agency denied the grievance, the parties submitted the matter to arbitration and agreed to bifurcate the proceedings into a merits phase and a remedy phase. The Arbitrator framed the issue as follows: “Did the Agency violate the [parties’ agreement], including Article[] 13 . . . , when it scheduled [o]fficers and . . . [s]pecialists assigned to the [c]argo[-e]nforcement work unit to work [p]assengers [o]perations?”  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 31, 2020  .. CCA:    Yumori-Kaku v. Santa Clara  ..  Five Asian American residents sued the City of Santa Clara (City) contending that at-large elections for the office of city council violated the California Voting Rights Act of 2001.     The trial court agreed after a bench trial that occurrences of racially polarized voting impaired the ability of Asian American voters, as a result of vote dilution, to elect their preferred candidates to Santa Clara’s seven-member city council.     It ordered the City to implement district-based city council elections and awarded attorney fees and costs to plaintiffs totaling more than $3 million.     On appeal, the City challenges the trial court’s liability finding and the resulting award of attorney fees and costs.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 31, 2020  .. CCA:    Choochagi v. Barracuda  ..  Choochagi’s Allegations:     Choochagi alleged the following in his complaint:     In March 2012, Barracuda hired Choochagi as a Technical Support Manager. During his initial training period, Choochagi reported to Hossein Ghazizadeh. In July 2012, Choochagi was transferred to the position of Sales Engineering Manager, and began reporting to Michael Hughes.     In May 2013, Choochagi reported to Human Resources (HR) that Hossein Ghazizadeh made inappropriate sexual comments to Choochagi about having sex with women at the office, and about Choochagi not being “ ‘man enough’ ” for his position.     Choochagi was also told he was not part of the “ ‘boys club’ ” and “that there was a dark cloud over his head . . . .” Choochagi contended that he was terminated based on his complaint about Ghazizadeh’s conduct.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 30, 2020  .. CCA:    Dai v. ACI  ..  A trial jury found defendants and appellants American Curvet Investment(defendants) liable to plaintiff and respondent Ping Dai (Dai) on hostile work environment, failure to prevent harassment, and wrongful constructive discharge causes of action.     Defendants appeal the trial court’s denial of their post-trial motion for judgment notwithstanding the verdict, which chiefly argued insufficient evidence supported the jury’s hostile work environment verdict.     We are asked to decide whether substantial record evidence establishes Dai experienced severe and pervasive harassment and whether this harassment, by defendant Wang who was Dai’s supervisor at the hotel where she worked, is sufficiently connected to her employment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 30, 2020  .. FLRA:  AFGE v. Defense (DCMA)  ..  With this case, we again remind the federal labor relations community that the burden of demonstrating mootness is heavy and falls on the party urging mootness, and that arguments will be deemed waived if a party fails to support them.     This case involves a dispute over a Memorandum of Understanding (MOU) between the parties. 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).     For the reasons that follow, we find the proposal within the duty to bargain. Accordingly, we grant the petition.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 30, 2020  .. FLRA:  Prisons v. AFGE  ..  In this case, we reexamine Authority precedent related to the carve-out doctrine and find that § 7131(d) of the Federal Service Labor-Management Relations Statute (the Statute) is not an exception to management rights under § 7106 of the Statute.     Arbitrator Michael G. Whelan issued an award finding that the Union’s grievance was arbitrable and that the Agency violated the parties’ collective-bargaining agreement by denying a portion of an official-time request.     The Agency filed exceptions to the award, arguing that it fails to draw its essence from the parties’ agreement and that it is contrary to law because it excessively interferes with management’s right to assign work under § 7106(a).     For the reasons set forth below, we deny these exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 30, 2020  .. NJSC:    Herbe v. Rutgers  ..  We begin by summarizing the most salient facts submitted by the parties on defendant's summary judgment motion, viewed in a light most favorable to plaintiff, the non-moving party.     Plaintiff is a licensed nurse and began working for defendant as a Health Care Case Manager in 2009. 1 Plaintiff did well in this position and, in September 2011, was promoted to the position of Clinical Nurse Coordinator in the Child Health Program.     Plaintiff Debra Herbe appeals from the Law Division's April 22, 2019 order, which granted defendant Rutgers University's motion for summary judgment and dismissed the complaint plaintiff filed against defendant under the New Jersey Conscientious Employee Protection Act (CEPA),     For the reasons that follow, we reverse and remand for further proceedings.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 29 2020  .. D.D.C.:    Rae v. CNMC  ..  Plaintiff, an African-American man of Antiguan descent, was employed as an Investigational Research Pharmacist at Children’s National Medical Center (“CNMC”) from February of 2010 until CNMC terminated his employment in December of 2014.     Rae has brought the instant action against CNMC and various CNMC employees (collectively, “Defendants”) under both federal and state law, alleging that he was not promoted, and was eventually terminated, due to his race and national origin, and also that Defendants ultimately fired him in retaliation for his having repeatedly expressed legitimate concerns about CNMC’s pharmacy operations and for filing a police report accusing his supervisor of assault.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 29, 2020  .. FLRA:  NOAA v. NWSEO (union)  ..  In this case, we remind the federal labor-relations community that contracts have consequences and that a party cannot avoid a provision’s consequences when it agrees to that provision.     The Arbitrator found that the Agency violated the parties’ ground rules agreement (the ground rules) by failing to answer the Union’s requests for formal declarations of nonnegotiability. As a remedy, he ordered the Agency to make a good-faith attempt to review the Union’s requests and to declare any proposals nonnegotiable where appropriate.     The Agency argues that the award is contrary to law and that it fails to draw its essence from the ground rules.     We deny the Agency’s essence exception because it constitutes mere disagreement with the Arbitrator’s findings and it fails to demonstrate that the award does not draw its essence from the ground rules.     Furthermore, because the agency fails to demonstrate that the award is contrary to law, we deny this exception. Consequently, we deny the Agency’s exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 28, 2020  .. 9th Cir.:    Kemsley v. Brennan (Postal))  ..  The availability of protection under Title VII’s “participation clause” requires “the underlying discrimination … be reasonably perceived as discrimination prohibited by Title VII.”     The district court properly concluded that Kemsley’s EEOC complaint’s claim that she was fired for identifying leave-use violations did not qualify as “protected activity” under Title VII’s broad categories of race, color, religion, sex, or national origin.     Kemsley now maintains that her complaint noted that her EEOC action was not entirely predicated on the leave-use violations, but rather leave-use violations “among other things.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 28, 2020  .. FLRA:  POPA (union) v. PTO  ..  Statement of the Case:     With this case, we remind the federal labor-relations community that executive orders issued pursuant to statutory authority are afforded the force and effect of law.     This case involves ground-rules disputes between the parties over proposals concerning matters addressed in Executive Order (EO) 13836[2] and EO 13837. 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 seven proposals from a ground-rules memorandum of understanding (MOU) between the parties.     For the reasons that follow, we find that all seven proposals are outside the duty to bargain. Accordingly, we dismiss the petition.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 28, 2020  .. 10th Cir.:    Sylvia v. Trevino  ..  Plaintiff, Sylvia’s longtime employer, The Goodyear Tire & Rubber Company, fired him on May 8, 2009. Sylvia responded with an EEOC charge alleging disability discrimination, and he eventually received a right-to-sue letter.     On March 28, 2011, Sylvia retained Trevino and his law partner, James Wisler, to represent him in a lawsuit against Goodyear.     They agreed that they would sue on “one or more” of the following theories: “disability discrimination and FMLA [Family Medical Leave Act] violation/retaliation and Workers Compensation retaliation.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 28, 2020  .. D.D.C. :    Copeland v. DC  ..  Plaintiff Ms. Copeland (“Copeland” or “plaintiff’”) worked as a Correction Treatment Specialist at the District of Columbia Department of Corrections (“DOC”) between 1988 and 2017.     Plaintiff brings this suit against the District of Columbia (“the District” or “defendant”) under Title VII of the Civil Rights Act of 1964, alleging hostile work environment sexual harassment, quid pro quo sexual harassment, and retaliation based on the alleged conduct of one of her supervisors, James Riddick (“Riddick”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 23, 2020  .. Fed. Cir.:    Pak v. DVA  ..  Mr. Pak was appointed on October 29, 2017 as a Gen- eral Engineer for the VA Northern Indiana Health Care System. His career-conditional appointment was subject to a one-year probationary period.    During his probationary period, the record shows Mr. Pak failed to follow department protocols, received complaints from contractors regarding his behavior, and interacted with a contractor in an unprofessional manner.    On September 7, 2018, Mr. Pak was terminated because of “unacceptable conduct and performance.”     On November 29, 2018, Mr. Pak filed a complaint with the Office of Special Counsel (“OSC”) regarding his termination alleging that it amounted to prohibited personnel action taken in response to his protected disclosures under the Whistleblower Protection Act.     Mr. Pak asserted five disclosures he made that he believed were reasonable and were con- tributing factors to his termination. These disclosures are summarized as follows:  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 23, 2020  .. FLRA:  EPA v. NAIL  ..  The Union filed a petition seeking to clarify the bargaining-unit status of a single position that the Agency appointed under 42 U.S.C. § 209(g).     Federal Labor Relations Authority Regional Director (RD) Richard Jones granted the petition, finding that Title 42 of the U.S. Code does not exclude the ecological-toxicologist position from the coverage of the Federal Service Labor-Management Relations Statute (Statute), and that the position is included in the bargaining unit that the Union represents.     The Agency filed an application for review (application) of the RD’s decision.     In an August 21, 2020 order, the Authority granted review and deferred action on the merits.     For the reasons that follow, we conclude that the RD erred in finding that the Title 42 ecological-toxicologist position is covered by the Statute.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 23, 2020  .. FLRA:  AFGE v. DCMA  ..  AFGE, Council #170 (Union) and U.S. Department of Defense, Defense Contract Management Agency (Agency)   With this case, we again remind the federal labor relations community that arguments will be deemed waived if a party fails to support them.         This case involves a dispute over a Memorandum of Understanding (MOU) between the parties. 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).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 22, 2020  .. 1st Cir.:    Tolentino v. Iancu (USPTO)  ..  Appellant Juan C. Perez-Tolentino ("Perez") challenges the dismissal of his disability discrimination suit against the United States Patent and Trademark Office ("USPTO") and its director.     The district court held that the action could not proceed because Perez waived his discrimination claim in a settlement agreement that allowed him to resign from his job in lieu of being terminated.     Although Perez acknowledges the waiver, he argues that it is void because he did not knowingly and voluntarily agree to it.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 22, 2020  .. FSIP:  ARMY v. AFGE  ..  This case was filed by the Fort Campbell, Kentucky, 101st Airborne Division (Agency), and concerns the negotiations of ground rules over the Successor Collective Bargaining Agreement (CBA) between the Agency and the American Federation of Government Employees, Local 2022 (Union).  ..  FSIP DECISION:   (.pdf)   (.html)

♦       Dec 22, 2020  .. FLRA:  EEOC v. AFGE  ..  This case, filed by the Equal Employment Opportunity Commission on September 24, 2020, concerns one article in the parties’ successor collective bargaining agreement between it and the American Federation of Government Employees, Local No. 216 (Union).     This article covers the topic of “maxiflex.”     The parties are governed by a collective bargaining agreement that expired on November 01, 2019, but is in a year-to-year rollover status.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 21, 2020  .. 6th Cir.:    Kilpatrick v. HCA  ..  After his termination by HCA Human Resources, Montrell Kilpatrick filed suit in federal district court alleging claims of discrimination and hostile work environment based on race and sex, retaliation, tortious interference with contract and business relations, and intentional infliction of emotional distress. The district court granted summary judgment in HCA’s favor.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 21, 2020  .. 1st Cir.:    Brader v. Biogen  ..  Brader, a pharmaceutical scientist by trade, worked for Biogen from October 8, 2007 until his termination on November 6, 2015.     At all times relevant to this appeal, Brader was employed as a principal scientist within Biogen's Protein Pharmaceutical Development ("PPD") group, i.e., a group that develops new drug candidates for Biogen. Brader reported to Dr. Andrew Weiskopf, one of PPD's directors. Weiskopf, in turn, reported to Jessica Ballinger, the Senior Director responsible for PPD. Ballinger's supervisor, Dr. Alphonse Galdes, served as the Senior Vice President of the Technical Development department.     Nearly seven years into his employment at Biogen, on or around June 30, 2014, Brader experienced what he has described as an "acute mental episode." Because the events leading up to and surrounding Brader's mental health crisis provide the landscape for our review of his claims on appeal, that's where we begin our recap of relevant events.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 21, 2020  .. 6th Cir.:    EEOC  v. Pelzer  ..  Pelzer is an automotive manufacturing facility located in Athens, Tennessee. Larry Strange, Pelzer’s plant human resources manager, hired Estela Black as a production worker in the fall of 2014. Black attended a new employee orientation on October 6, 2014 with ten or twelve other new hires. Strange led portions of the orientation, including presentations pertaining to company policies, roles, and the dress code.     At the orientation, during a fifteen-minute break, all the employees left the room except for Strange, Black, and another new employee, Sarah Kennedy. Black approached Strange to learn more about the laptop he was working on. Strange mentioned he was preparing a presentation on the dress code. Strange stated that employees could not wear tank tops or “wife beater[s]”—a type of undershirt—but could wear shorts. Black joked, “I [don’t] want to see no crack.” Kennedy testified that she thought she and Black chuckled at the remark. According to Black, Strange then said, “drop your pants, I’ll take a picture of you and use you as an example.” Black did not respond. Shortly thereafter, other employees began to return to the room.         HP Pelzer Automotive Systems, Inc., an automotive manufacturing company, appeals the district court’s post-judgment order denying its motion for attorney’s fees and costs filed pursuant to Title VII of the Civil Rights Act of 1964.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 21, 2020  .. TAC:    Proctor v. State  ..  Appellant was involved in a vehicular accident near the intersection of Garfield Street and Industrial Avenue in Midland, Texas. Officer Deanna Torres of the Midland Police Department was dispatched to Midland Brake & Tire, a business located near the scene of the accident. At the accident scene, Francis Cheauma advised Officer Torres that he had been involved in a hit-and-run accident with a gray or silver Hummer bearing the license plate “CARLTON.” The driver of the Hummer was not at the scene. Officer Torres checked the license plate description to determine the identity of the vehicle’s registered owner. After determining that a Hummer was involved in the accident and that Appellant was the registered owner, Officer Torres immediately went to Appellant’s address.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 17, 2020  .. 4th Cir.:    Bracey v. Lancaster  ..  Bracey began working as a truck driver for Lancaster in 2008. After Bracey suffered an on-the-job injury, he and Lancaster disagreed about the restrictions on his work activities. Ultimately, Lancaster interpreted Bracey’s position as a resignation, which it documented in a letter sent to Bracey in July 2015.     In December 2015, Bracey filed a claim with the Equal Employment Opportunity Commission (“EEOC”). In February 2017, the EEOC notified Bracey [...] that there was not reasonable cause to believe discrimination occurred.     Several months later, Bracey sued Lancaster in Maryland state court, asserting various employment claims. Lancaster moved to dismiss and compel arbitration.     Bracey opposed the motion arguing that the ADRA was unconscionable because it shortened all applicable statutes of limitation to one year.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 17, 2020  .. 3rd Cir.:    Lerner v. Citigroup  ..  Ms. Lerner was employed by Citigroup, a global financial services firm, as an Apps Support Senior Analyst in Jersey City, New Jersey. She was terminated from her position in May 2015.     Citigroup maintained that the termination was due to a cost saving program which entailed moving her position to India. Ms. Lerner contended the termination was motivated by discrimination and filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging sex and disability discrimination.     The EEOC dismissed the complaint in February 2016, stating it was “unable to conclude” that any of the statutes enforced by the Commission had been violated.     In March 2016 Ms. Lerner filed a complaint in the District Court, alleging that Citigroup failed to accommodate her disability, discriminated against her race, sex and disability, and illegally retaliated against her for filing a complaint with the EEOC.  ..  COURT DECISION:   (.pdf)   (.html)

♦        OPM     Issuance of Regulations on Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions.   opm

♦       Dec 14, 2020  .. D.D.C.:    Moore v. Brouillette (Department of Energy)  ..  In this case, Mr. Moore (“Plaintiff”) raises three claims under the Rehabilitation Act of 1973 against Secretary Dan Brouillette, in his official capacity as the Secretary of the United States Department of Energy (“Defendant”).     Specifically, Plaintiff’s Complaint asserts claims for a hostile work environment (Count I), disclosure of confidential medical information (Count II), and constructive discharge (Count III).     Plaintiff’s claims each derive from the alleged mistreatment he suffered as an employee of the Department of Energy (“DOE” or the “Agency”) in 2019, while he was undergoing cancer treatment.     Now pending before the Court is Defendant’s [12] Motion to Dismiss or, Alternatively, for Summary Judgment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 14, 2020  .. Fed. Cir.:    Miller v. DVA  ..  Between 2014 and 2019, Ms. Miller was employed as an LPN at a DVA medical facility.     A condition of her employment as an LPN was that she maintain her LPN license.     In 2018, she was given a courtesy notice by the DVA that her LPN license was about to expire. She renewed her license that year on the day before her license was set to expire.     In August 2019, shortly before Ms. Miller’s license was set to expire, the DVA again gave her a courtesy notice that her license was about to expire. This time, Ms. Miller did not renew her license, and it expired on September 5, 2019.     The DVA subsequently proposed to remove her from her position because of her failure to maintain her LPN license.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 14, 2020  .. TCA:    Light v. Pattman  ..  On June 3, 2019, Plaintiff Kelsey Light (“Ms. Light”) commenced the present litigation by filing a complaint for damages in the Henry County Chancery Court. Ms. Light’s complaint was brought against her former employer, Defendant Pattman, LLC (“the Defendant”), a Kentucky entity that operates a Wendy’s restaurant in Paris, Tennessee. The complaint alleged that Ms. Light had been constructively discharged from her employment at Wendy’s and specifically contended that she had been the victim of unlawful sexual harassment, sex discrimination, and a hostile work environment, among other things.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 11, 2020  .. FLRA:  IRS v. NTEU  ..  The National Treasury Employees Union (NTEU) filed a step-three grievance asserting mass and institutional claims against the Internal Revenue Service (IRS).     Arbitrator Howard S. Bellman issued an award finding, as relevant here, that the claims were procedurally arbitrable.     The main question before us is whether the Arbitrator’s procedural-arbitrability determinations fail to draw their essence from Article 41 of the parties’ agreement.     Because the Arbitrator ignored the plain wording of that article, we find that the award fails to draw its essence from the parties’ agreement, and we set it aside.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Dec 11, 2020  .. 10th Cir.:    Clancy v. Miller (DOD)  ..  Plaintiff, Clancy, started working for the Defense Commissary Agency at Fort Riley in November 2015. In the summer and fall of 2016, she received negative performance evaluations. And in November 2016, she resigned after a meeting with her supervisors.   She later unsuccessfully tried to withdraw her resignation.    Clancy filed this lawsuit just over a year later, claiming under the Rehabilitation Act that her supervisors at Fort Riley discriminated against her and subjected her to a hostile work environment because of her disability—anxiety, depression, and post-traumatic stress disorder (PTSD).    The district court granted summary judgment to the defense.    In this appeal, Clancy challenges the summary judgment and several other rulings the district court made along the way.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 11, 2020  .. PCC:    Garten v. PHRC  ..  Complainant was born with exstrophy of the bladder requiring rerouting of his urethra through his anus and the loss of a kidney and part of his colon. Surgeries in his late teens resulted in severe scarring and a hole in his pubic area that remains open. Polyps develop around the hole which are surgically removed. When chafed by tight clothing, and zippers in particular, the area becomes irritated and may bleed. Complainant generally wears sweatpants to prevent irritation.      Harold Richard Garten, sole owner of Above All Chimney & Masonry (Employer), petitions for review from an order of the Pennsylvania Human Relations Commission (PHRC) adopting the hearing examiner’s findings and conclusions that enforcement of his dress code to refuse David Riccardi’s (Complainant) requested accommodation to wear sweatpants at work constituted disability discrimination under Section 5(a) of the Pennsylvania Human Relations Act (Act)[...].  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 09, 2020  .. (5th Cir.:    Salazar v. LCH (UMC)  ..  Salazar was employed by University Medical Center (“UMC”) for twenty-seven years. She began as a respiratory therapist in 1990 and transitioned to adult respiratory educator in 2004. Although Salazar was the assistant director of the department from 2012 to 2014, she returned to her position as an educator in 2015 and remained there until her termination in 2017—spending at least ten years as an educator.     UMC contends that Salazar’s performance began to decline in 2016. Its former director and assistant director—Robert Lopez and Anthony Trantham, respectively—assert that they observed her struggle to communicate and claim that her disorganization caused scheduling confusion and frustration for many members of the staff.     On March 13, 2017, UMC terminated Salazar. At the time she was discharged, Salazar was 57 years old. Salazar brought this lawsuit, alleging age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 08, 2020  .. Fed. Cir.:    Harrington  v. DVA  ..  We Vacate Mr. Harrington’s Removal And Remand To The Board For Further Proceedings.     Before his removal, Mr. Harrington was a police officer at the Bay Pines VA Healthcare System.     On June 9, 2017, Mr. Harrington sent a photograph of a document contained on the secure agency server to a former VA police officer, Carlton Hooker, who was no longer employed by VA.     Two weeks after Mr. Harrington sent the photo to Mr. Hooker, on June 23, 2017, Congress enacted the VA Accountability and Whistle-blower Protection Act of 2017.     Soon after § 714’s enactment, VA brought a removal action under § 714 against Mr. Harrington.     The Notice of Proposed Removal alleged, among other things, that Mr. Harrington committed misconduct by sending the photograph of documents kept on the agency server to Mr. Hooker. VA issued a decision removing Mr. Harrington, and Mr. Harrington appealed to the MSPB, representing himself pro se.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 08, 2020  .. Fed. Cir.:    Flynn v. DVA  ..  Mr. Flynn was a registered nurse at the VA Wenatchee Community Based Outpatient Clinic in Spokane, Washing- ton.     On July 14, 2016, Mr. Flynn submitted a report claiming that an HR specialist had violated privacy rules while giving a presentation. He claimed the HR specialist had disclosed confidential information about prior disciplinary cases, including discussing one of Mr. Flynn’s cases in detail.     On September 15, 2016, Mr. Flynn was removed for “inappropriate conduct” relating to a confrontation with his supervisor, Karla Spangler. Believing his termination had been retaliatory, Mr. Flynn appealed to the MSPB.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 08, 2020  .. 5th Cir.:    Anderson v. LA  ..  Crystal Anderson was fired after she complained of her supervisor’s alleged racist and sexist behavior to his superior at the Louisiana Department of Transportation and Development.     The district court granted the Department’s motion for summary judgment.     We REVERSE and REMAND to the District Court.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 07, 2020  .. D.D.C.:    Tumblin v. Justice  ..  Teresa Tumblin, an employee of the Federal Bureau of Investigation (FBI), alleges that she was retaliated against for engaging in protected activity in violation of Title VII of the Civil Rights Act.     The underlying events that gave rise to Tumblin’s complaints began in 2012, when she began working as a quality assurance reviewer under team lead Cheryl Waddell.     Tumblin believed that Waddell was aware of her 2009 EEO complaint and treated her with hostility as a result.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 07, 2020  .. 5th Cir.:    Stingley v. Watson  ..  Stingley, an African-American woman, was hired as a sales associate in March 2018 by Watson Quality, a car dealership. In early May, about two months into her tenure, Stingley had an altercation with Cade Usry, a white male colleague.     Usry approached Stingley, who was talking with another co- worker, and directed profanities at her. Stingley briefly responded—asking if Usry was “threatening” her—before walking away.     Stingley reported the incident both to her superiors and to the human resources department.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 07, 2020  .. TCA:    Maraschiello v. Tennessee  ..  Michael F. Maraschiello, was convicted of first degree murder, arson, possession of a shotgun with an altered serial number, and theft after a jury trial in 1997.     He was sentenced to life plus five years for the convictions. Petitioner appealed and this Court affirmed the conviction.     Over 19 years ago, Petitioner filed a petition for post-conviction relief alleging various grounds for relief including ineffective assistance of counsel.     Petitioner sought funding for a medical and psychological expert in 2005, and the post-conviction court denied the request. The post-conviction court granted Petitioner permission for an interlocutory appeal.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 07, 2020  .. 4th Cir:    U.S. v. Lucas  ..  In 2008, Baltimore City Police wrongfully pinned the murder of Rob Long on Demetrius Smith. And a local jury convicted him based on the testimony of two witnesses.     He served four years of a life sentence before federal investigators uncovered evidence that led to his release. That federal investigation revealed that Long’s demise resulted from a remarkable scheme to stop Long’s cooperation in an investigation of Jose Morales for theft. Just days after learning from his lawyer that Long was cooperating in the theft investigation, Morales hired Troy Lucas to kill Long. Federal authorities convicted Morales of murder in 2013, and with Morales’ cooperation, federal efforts turned to Lucas. Lucas was then convicted by a federal jury for his involvement in the murder-for-hire plot.     Lucas appeals, claiming the district court erred in excluding the testimony of a deceased witness who had testified at Smith’s trial. He also argues that murder-for-hire is not a crime of violence under the force clause of 18 U.S.C. § 924(c).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Dec 07, 2020  .. 11th Cir.:    Munoz v. Selig  ..  This is Kendra Munoz’s appeal of the District Court’s grant of summary judgment to her former employer, Selig Enterprises, Inc. (“Selig”), on her claims under the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”).     After careful consideration, and with the benefit of oral argument, we reverse the grant of summary judgment on Ms. Munoz’s claim of retaliation under the FMLA.     We otherwise affirm.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 27, 2020  .. FLRA:  Prisons v. AFGE  ..  We once again remind arbitrators that they may not disregard the plain wording of parties’ collective-bargaining agreements.     Arbitrator Dennis R. Nolan issued an award finding that the Union violated ... the parties’ master agreement by not filing its grievance with the proper Agency official.     Nevertheless, he found the grievance arbitrable because the Union’s violation was substantively harmless. On the merits of the grievance, the Arbitrator concluded that the Agency violated the parties’ agreement and the Fair Labor Standards Act (FLSA) by not providing employees with a thirty‑minute duty-free lunch break or compensation in lieu of a break.     The main question before us is whether the Arbitrator’s procedural-arbitrability determination fails to draw its essence from the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 27, 2020  .. TCA:    Smith v. ANCOG  ..  Former employee sued her former employer for retaliatory discharge under the Tennessee Public Protection Act, disability discrimination, and religious discrimination.     Former employee voluntarily dismissed the religious discrimination claim prior to trial; the jury returned a verdict in favor of the former employee on only the retaliatory discharge claim, awarding total damages of $15,500.00, inclusive of punitive damages. Former employee then sought an award of over $100,000.00 in attorney’s fees under the applicable statutes, which the trial court reduced to $12,500.00, the same amount of punitive damages awarded by the jury.     Former employee appeals only the attorney’s fee award.     We vacate the judgment of the trial court and remand for further proceedings.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 27, 2020  .. CCA:    Foroudi v. Aerospace  ..  Foroudi has degrees in mathematics and computer science, industrial engineering and operations research, and computer and information science. He was hired by Aerospace in 2007, when he was 55 years old, to work as a senior project engineer.     In 2009, the program Foroudi had been hired to work on was cancelled, and he was transferred to Aerospace’s Navigation division. His position was a “Level 3” Senior Project Engineer/Technical Lead for the GPS/OCX Program Office.     Over the course of his employment at Aerospace, Foroudi’s supervisors counseled him regarding deficiencies in his interpersonal and communication skills. He was warned that his failure to improve his performance in these areas could result in corrective action. Foroudi’s annual performance evaluations in 2010 and 2011 identified his interpersonal and communication skills as areas for improvement, but noted he “meets expectations” in those areas.     Foroudi was also counseled for failing to comply with Aerospace’s corporate travel policies and procedures on several occasions, although no corrective action was ever taken against him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 27, 2020  .. D.D.C.:    Dahl v. Dickson  ..  Plaintiff “is a licensed pilot, holding [FAA] Commercial and Flight Instructor Certificates,” who seeks “to exercise the privileges of those certificates.” In order to do so, he brings this action in furtherance of his efforts to obtain “an FAA issued airmen medical certificate.”     Congress delegated authority to the Administrator of the FAA to “promote [the] safe flight of civil aircraft in air commerce.” 49 U.S.C. § 44701(a). The Administrator has the authority to prescribe regulations and standards that govern the “practices, methods, and procedure the Administrator finds necessary for safety in air commerce and national security.” 49 U.S.C. § 44701(a)(5).     The Administrator must carry out responsibilities “in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation.” 49 U.S.C. § 44701(c).     One regulation the FAA has prescribed in furtherance of that statutory authority is that, among other requirements, “[a] person may serve as a required pilot flight crewmember of an aircraft only if that person holds the appropriate medical certificate.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 25, 2020  .. FLRA:  VA v. AFGE  ..  With this case, we further address the outer limits of a negotiated grievance procedure.     Specifically at issue in this case is whether a Union can seek reimbursement from the Agency for expenses the Union incurred as a result of its contract with a third party for hotel accommodations and catering in conjunction with a three-day training for Union stewards.     Because the complaint does not constitute a grievance under § 7103(a)(9) of the Federal Service Labor-Management Relations Statute (Statute), we find that the Union’s search for reimbursement cannot be the subject of a grievance or subsequent arbitral award.     Accordingly, we vacate the award.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 25, 2020  .. FLRA:  AFGE v. VA  ..  The grievants are physicians – Title 38 health care professionals under the U.S. Code, subject to unique federal employee rules and requirements – at one of the Agency’s hospitals.     In this case, we hold that a grievance disputing the Agency’s process of scheduling Title 38 physicians to perform patient care duties on weekends is excluded from the negotiated grievance procedure pursuant to 38 U.S.C. § 7422(b).     Arbitrator Jerome A. Diekemper found that the Agency violated the parties’ collective-bargaining agreement (CBA) and other Agency directives by scheduling the grievants to work on weekends and in excess of forty-hours per week. For the reasons discussed below, we find that the grievance is non-arbitrable. We set aside the award.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 25, 2020  .. 11th Cir.:    Lewis v. BlueBird  ..  Lewis, an African-American male, was hired as a maintenance technician at Blue Bird in June 2015.1 In January 2016, Lewis filed a complaint with the EEOC for discrimination; he amended the complaint to add claims of retaliation in August 2016. He was terminated from Blue Bird in September 2016. Lewis filed a third EEOC charge in November 2016. Lewis subsequently filed the present suit against Blue Bird, alleging race discrimination and retaliation. He alleged that he was subjected to a hostile work environment where racial comments were made, he was not promoted for retaliatory reasons, and he was treated differently because of his race. Lewis also alleged that Blue Bird terminated his employment as retaliation for his August 2016 EEOC charge.  ..  COURT DECISION:   (.pdf)   (.html)

♦       BREAKING NEWS : The US General Services Administration has told president-elect Joe Bidden the transition of power can formally begin.

♦       Nov 24, 2020  .. FLRA:  AFGE v. VA  ..  The dispute in this case arose during the parties’ negotiations over a successor term agreement. The first proposal at issue concerns fitness for duty examinations (Article 19). The second proposal concerns official time (Article 48).     These cases are before the Authority on negotiability appeals filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).     The appeals each involve the negotiability of one proposal.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 24, 2020  .. 7th Cir.:    Vargas v. DeJoy (Postal)  ..  Jose Vargas, a mail carrier for the U.S. Postal Service, aggravated an old foot injury on the job in early 2011.     He was placed on work restrictions that prohibited him from lifting and carrying heavy weights. This created a problem for Vargas because his duties included carrying heavy loads and packages.     Vargas asked his employer for accommodations, but without any alternative jobs for him to do, his request was denied. As a result, Vargas had to take paid sick leave for several weeks and eventually went on leave without pay.     Vargas sued his employer under Title VII and for disability-based discrimination. Apparently, his endgame is to restore the paid sick leave hours he took.  ..  DECISION:   (.pdf)   (.html)

♦       Nov 24, 2020  .. 6th Cir:    Solomon v. CARite  ..  Plaintiff DeAngela Solomon filed this lawsuit against her former employer, CARite Corporate, LLC, former supervisor, Eugene Hughey, and former coworker, Angela Barnes. She claims that Hughey subjected her to a hostile work environment and sexually harassed her in violation of Title VII of the 1964 Civil Rights Act and in violation of the Elliott-Larsen Civil Rights Act. She also claims that Barnes defamed her to other CARite employees, including Hughey.     Solomon began working for CARite in September 2015. In June 2016, she was transferred to CARite’s Taylor, Michigan location, upon the recommendation of her supervisor, Hughey, who transferred to that facility as well. After the transfer, Hughey allegedly began behaving in an inappropriate manner, including discussing the intimate lives and physical attributes of female coworkers.     Barnes allegedly participated in such conversations, telling coworkers that Solomon was promiscuous and had plastic surgery to enhance her appearance.     Solomon also states that on July 11, 2018, Hughey made a particularly lewd, sexually suggestive remark to her in front of coworkers, at which point her experience at CARite “completely soured.” Solomon resigned in August 2018.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 23, 2020  .. Ain't Got No New Cases Today : Sorry.

♦       Nov 20, 2020  .. 7th Cir.:    Presti v. Wolf (Homeland)  ..  Plaintif, an immigration officer at the United States Citizenship and Immigration Services, believes that she was demoted and given negative feedback on her job performance based on her Italian descent and in retaliation for complaints she had filed with the EEOC.     She sued the Secretary of Homeland Security under Title VII of the Civil Rights Act of 1964.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 20, 2020  .. FLRA:  U.S. Park Police  v. F.O.P  ..  The Agency began consistently enforcing an existing policy requiring its law-enforcement officers to pay for traffic and parking fines that they incur while operating Agency vehicles. The Agency asserted that it had to enforce the policy to comply with applicable government-wide regulations.     The Union – claiming that the parties had established a past practice of not holding officers personally responsible for traffic and parking fines – filed a grievance alleging that the Agency did not provide it with notice and an opportunity to bargain before enforcing the policy. Arbitrator Homer C. La Rue issued an award finding that the parties had a past practice of not enforcing the policy and that the Agency violated the parties’ collective-bargaining agreement by failing to bargain with the Union before changing that practice.     The question before us is whether the award is contrary to law.     We find that any past practice of not enforcing the traffic-and-parking-fines policy was contrary to the General Services Administration’s (GSA’s) Motor Vehicle Management regulations (the motor-vehicle regulations).     Therefore, the Agency was not required to engage in pre-implementation bargaining before discontinuing that unlawful practice, and the Agency did not violate the parties’ agreement.     Accordingly, we find that the Arbitrator erred as a matter of law, and we set aside the award.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 19, 2020  .. D.D.C.:    Werwie v. Mulvaney  ..  Plaintiff, Werwie, works as a contract specialist for the Defense Logistics Agency.      Due to a congenital condition, Werwie has been legally blind since birth.      Werwie brings this suit against Russell Vought, in his official capacity as the Director of the Office of Management and Budget (OMB), and Emily W. Murphy, in her official capacity as the Administrator of the General Services Administration (GSA).      Werwie claims that the defendants violated § 508 of the Rehabilitation Act by procuring and using noncompliant online assessment programs to evaluate federal employees who applied for a cybersecurity training program.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 19, 2020  .. 4th Cir.:    Elledge v. Lowe's  ..  In the aftermath of knee surgery, Chuck Elledge parted ways with his long-term employer Lowe’s Home Center. The separation was not amicable. Soon thereafter, Elledge sued Lowe’s for violation of the Americans with Disabilities Act (ADA), claiming that Lowe’s had forced him out of his director-level job even though, with reasonable accommodations, he could still perform its essential functions. He also claimed that Lowe’s violated the ADA when it refused to reassign him to another director-level position. Finally, Elledge alleged discrimination under the Age Discrimination in Employment Act (ADEA).  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 19, 2020  .. 5th Cir.:    Foster v. Ferrellgas  ..  Foster, who alleges that she suffered racial discrimination as a black woman, was hired in December 2014 as a Crude Logistics Scheduler in the Midland, Texas office of Bridger Administrative Services, LLC (“Bridger”), an oilfield hauler. As a Crude Logistics Scheduler, Foster used a computer system to schedule and dispatch trucks. Several months into Foster’s tenure, Bridger was acquired by Ferrellgas, a propane distributor and retailer. At that time, Foster was hired by Ferrellgas with no meaningful change in her job functions.     Prior to receiving her job offer from Bridger, Foster interviewed with Thomas Glenn, the Regional Operations Manager for the Midland office. Foster alleges that at the interview, Glenn told her that her starting salary would be $50,000 per year, but that within thirty days her salary would increase to $65,000 per year. Yet after thirty days had gone by, Foster still had not received her promised raise. When she complained to Glenn, he told her he would get back to her.     Glenn was eventually fired and replaced by Lyle Lowrance. Foster complained repeatedly to Lowrance about her missing raise, but to no avail. In her deposition, Foster testified that Lowrance advised her that she was not getting the raise because she was black.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 19, 2020  .. 5th Cir.:    Jones v. Lubbock  ..  Plaintiff Ricky Jones sued his former employer, Lubbock County Hospital District, doing business as University Medical Center (“UMC”), for two alleged violations of the Americans with Disabilities Act (“ADA”)      He claimed UMC denied him a reasonable accommodation for his breathing disability, then fired him because of that disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 18, 2020  .. FLRA:  DOD v. OFOT  ..  This case was filed by the Department of Defense Education Activity – Europe South District (DoDEA or Agency), and concerns the negotiations of ground rules over the Successor Collective Bargaining Agreement (CBA) between the Agency and the Overseas Federation of Teachers (Union). DoDEA is the umbrella organization that unites efforts to provide quality educational opportunities and services to military dependents around the globe. DoDEA plans, directs, coordinates, and manages the education programs for Department of Defense (DoD) dependents who would otherwise not have access to a high-quality public education.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 18, 2020  .. FLRA:  Homeland v. NTEU  ..  The mission of the FLETC is to provide training on firearms, driving, tactics, and investigations to law enforcement professionals to help them fulfill their responsibilities safely and proficiently.     The U.S. Department of Homeland Security, Federal Law Enforcement Training Center (Agency or FLETC) in Glynco, Georgia filed the instant 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 two articles related to the grievance procedure and merit promotions in a new collective bargaining agreement (CBA).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 17, 2020  .. DOJ OIG INVESTIGATIONS :    The Department of Justice (DOJ) Office of the Inspector General (OIG) initiated this investigation upon the receipt of information from the Executive Office for United States Attorneys (EOUSA) alleging that an Assistant United States Attorney (AUSA) may have physically and verbally sexually harassed an Intern in the United States Attorney’s Office (USAO), including deliberately running his arm across the Intern’s breast without her consent.   report summary

♦       Nov 17, 2020  .. FSIP:  VA  v. AFGE  ..  The Arbitrator issued an award finding that the Agency violated the parties’ collective-bargaining agreement (CBA) when it ceased providing a ninety-day performance improvement plan (PIP) as a prerequisite for performance-based actions. As a remedy, the Arbitrator directed the Agency to rescind any adverse actions taken against bargaining-unit employees, including the reinstatement of any removed employees, who did not first receive a ninety‑day PIP.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 17, 2020  .. D.D.C.:    Elam v. Rooftopdc  ..  Over two years ago, Plaintiffs Elam and Price brought this suit alleging that their termination as kitchen workers at a local restaurant run by Defendants was motivated by discrimination on the basis of their race.  ..  DECISION:   (.pdf)   (.html)

♦       Nov 16, 2020  .. D.D.C.:    Schonzeit v. Zinke (Interior)  ..  According to the original Complaint here, Schonzeit is a Chief Ranger of the United Sates National Parks Service (NPS) in Philadelphia.     In late 2017, she applied but was not selected for the position of “Regional Chief Ranger of the National Capitol Region.”     She alleged that this decision violated Title VII, as it was based on her sex and was in retaliation for complaints she had made regarding an earlier non-selection.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 16, 2020  .. 5th Cir.:    Carrizal v. Brennan (Postal)  ..  Ms. Carrizal alleges that she experienced unlawful employment discrimination and retaliation, including sexual harassment, during her employment with the United States Postal Service.     She filed an Equal Employment Opportunity claim with the Postal Service.     An administrative law judge granted summary judgment to the Postal Service.     On July 19, 2018, the Postal Service mailed Ms. Carrizal a Notice of Final Action implementing the administrative law judge’s grant of summary judgment.     Ms. Carrizal’s counsel states that the NFA was mailed to counsel’s previous address, despite counsel having filed a change of address.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 16, 2020  .. FSIP:  ARMY v. AFGE  ..  This case, filed by the Brooke Army Medical Center, Fort Sam Houston, Houston, Texas (Agency or Management), concerns the successor Collective Bargaining Agreement (CBA) between the U.S. Army and the AFGE, Local 1004 (Union).     By email, dated June 17, 2019, the Agency requested to reopen the CBA. The current CBA contains 41 articles, and 2 appendices. The parties were able to reach agreement on 12 articles before negotiations even began. The parties exchanged actual proposals beginning on April 10, 2020. The parties began negotiations in May 2020. Negotiations ended on June 12, 2020. The parties mediated with the assistance of an FMCS mediator. The Mediator released the parties on July 23, 2020. On July 23, 2020 and July 28, 2020, after being released by the Mediator, the Agency communicated with the Union regarding the next steps in the bargaining process, including the filing for Panel assistance.     On July 28, 2020 and July 31, 2020, the Union filed ULP complaints over bargaining concerns.     The Agency filed the request for FSIP assistance on July 30, 2020; the Union received its copy on July 31, 2020.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 13, 2020  .. FLRA:    Education v. AFGE  ..  This case reiterates the basic principle that parties are bound by the terms of a negotiated agreement throughout its term and any changes are subject to its terms and the bargaining requirements of the Federal Service Labor-Management Relations Statute (Statute).     The Union grieved the Agency’s implementation of a new telework policy that limits employees to two days of telework per week. Arbitrator Ellen S. Saltzman found that the Agency violated the parties’ agreement and the Statute when it unilaterally implemented the new policy without affording the Union an opportunity for pre‑decisional involvement, as required by the parties’ agreement, and without giving the Union notice and an opportunity to bargain over implementation of the new policy.     The Agency argues that the Arbitrator’s procedural-arbitrability determination fails to draw its essence from the parties’ agreement and challenges the merits of the award on several grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 12, 2020  .. A.F.C.C.A:   U.S. v. Crump  ..  THANK YOU FOR YOUR SERVICE. ..  Ms.Airmen MM first met Airmen Appellant in May 2017 while hanging out at the dormitory where both lived. Later, Airmen MM saw Appellant off-base when both were getting tattoos. At this point, the two exchanged phone numbers and then started texting each other and communicating over the social media application Snapchat.     At first, the two were only friends, but over time they had consensual sexual intercourse—sometimes in his dormitory room and sometimes in hers.     While there was general agreement that the prior sexual encounters occurred, Appellant and Airmen MM disagreed on the specifics.     Most notably, they disagreed about whether Appellant had been allowed to slap Airmen MM on her face or on her buttocks during sexual intercourse.     Ms. Airmen MM recalled Appellant weakly slapping her buttocks while they were having intercourse on two separate occasions.     On the first occasion the slap was at her request.    Afterwards, Ms. Airmen MM joked with Appellant that he “hit like a bitch” because he hit her softly and the two laughed about it.     Airmen MM testified that Appellant slapped her buttocks one other time while they were having intercourse, even though she did not request it, but she was “okay” with him doing it. .  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 12, 2020  .. FLRA:    AFGE v. Air Force  ..  This matter is before the Authority on exception to an award of Arbitrator Philip A. LaPorte 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 exception.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 12, 2020  .. Fed. Cir.:    Hairston v. Defense  ..  Hairston was employed as a Medical Records Technician at the Walter Reed National Military Medical Center, a medical treatment facility under the authority of the Department of Defense, in Bethesda, Maryland. Final Decision, 2020 MSPB LEXIS 456, at *1. .     On or around February 8, 2019, a routine audit and cybersecurity service-provider monitoring process determined that Hairston used his government computer to access his personal social media account and converse with individuals about purchasing and using illegal drugs, engage in sexually explicit conversations, and view inappropriate pictures of others.     On September 12, 2019, the agency issued Hairston a notice of proposed removal on two charges, “Misuse of Government Property (For Other Than Official Purposes)” and “Conduct Unbecoming a Federal Employee (Immoral, In- decent or Disgraceful Conduct).”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 9, 2020  .. Fed. Cir.:    Page v. MSPB (VA)  ..  Mr. Page served as a medical technician for the Depart- ment of Veterans Affairs (“VA”) at the Audie L. Murphy Memorial Veterans Hospital in San Antonio, Texas. During his employment, in July 2019, the VA proposed removing Mr. Page for failure to follow supervisory instructions and for absence without leave. One month later, Mr. Page was removed, effective August 28, 2019.     The VA served its decision letter on Mr. Page via both United Parcel Service (“UPS”) overnight delivery and United States Postal Service (“USPS”) certified mail. 3. The decision letter informed Mr. Page that he could appeal the VA’s decision to the Merit System Protection Board (“MSPB” or “Board”) no later than 10 business days from the date of his removal.     On October 3, 2019, Mr. Page filed an appeal with the MSPB’s Dallas Regional Office.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 9, 2020  .. 4th Cir.:    Squires v. MSPB  ..  Mr. Squires appeals the district court’s order affirming the final decision of the MSPB and dismissing without prejudice his disability discrimination claims for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Squires argues that the district court erred in affirming the MSPB’s decision that it lacked jurisdiction over his involuntary retirement claim.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 6, 2020  .. FSIP:  VA v. AFGE  ..  This case, filed by the U.S. Department of Veterans Affairs (Agency, Management, or VA) on December 19, 2019, concerns over 40 articles in the parties’ successor collective bargaining agreement.     In its request for assistance, the Agency identified 42 articles as remaining in dispute. In addition to the foregoing issues, there was some confusion as to whether the parties were at impasse over two Union-proposed articles on “Staffing” and “Phased Retirement.” In its initial submission to the Panel, Management did not list either of these two articles in the list of disputed articles.     The Union claimed the parties were not at an impasse over them, but the Agency disagreed. Instead, the Agency claimed it was simply seeking to strike these two articles. The Union also raised a number of challenges to the Panel’s jurisdiction  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 6, 2020  .. D.D.C.:  EEOC v. GWU  ..  The Equal Employment Opportunity Commission (“Plaintiff” or the “EEOC”) filed this action on behalf of Sara Williams, née Mutalib, against The George Washington University (“Defendant” or the “University”) pursuant to the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. EEOC alleges that Ms. Williams, who was employed as Executive Assistant to the University’s Director of Athletics, Patrick Nero, was treated less favorably—by being paid less for equal work and being denied employment opportunities and advancement—than a male comparator, Michael Aresco, who was hired as Special Assistant to Mr. Nero. The kernel of the present discovery dispute asks whether an attorney for the EEOC violated rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, the protective order entered in this case (the “Protective Order”), or her ethical obligations when, after Defendant informed her that the EEOC was in possession of two email chains that allegedly reflected communications among University personnel seeking legal advice from the University’s General Counsel’s office, that EEOC attorney nevertheless reviewed those documents. While there is a fairly straightforward answer to that question—yes, she, at least, violated Rule 26(b)(5)(B)—it has sprouted another dispute over whether the documents counsel reviewed were, indeed, privileged and whether the University has waived privilege. This Memorandum Opinion and Order addresses all three issues.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 5, 2020  .. 5th Cir.:  Besser v. GLO  ..  Plaintiff, a former employee of the Texas General Land Office (GLO), sued the GLO and various individuals under the FAMLA and the ADA, alleging discrimination and retaliation when he used leave to care for his infirm husband.  ..  DECISION:   (.pdf)   (.html)

♦       Nov 5, 2020  .. 6th Cir.:  Bryant v. Wilkie (VA)  ..  Bryant began working for the VA as a certified nursing assistant in 2004. She alleges that, as early as 2009 when she worked in the acute/psych ward, her “work environment worsened and became hostile, and [she] was bullied by co-employees.”     In 2010, Bryant hurt her knee while trying to prevent a physical assault by a patient on Bryant’s supervisor.     The injury required multiple doctor appointments and caused Bryant to miss work. The injury also caused her to be transferred out of her position in the acute/psych ward for almost one year.     When she returned to the ward, she continued “to endure retaliation in the form of verbal and physical threats, a hostile work environment, and workplace bullying.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 5, 2020  .. 6th Cir.:  Gearhart v. Nemours  ..  Gearhart began working in 2012 as a Kapton Casting Operator for DuPont at its Circleville, Ohio facility. One of his duties was entering and cleaning the Kapton oven, a task that took anywhere from thirty minutes to a full twelve hour shift to complete.     When cleaning the oven, Kapton Casting Operators wore personal protective equipment (“PPE”) weighing approximately thirty to thirty-five pounds to protect them from the heat of the Kapton oven—generally about 140 to 150 degrees Fahrenheit when being cleaned. Due to the nature of this work, DuPont required Kapton Casting Operators to have medical clearance.     On May 7, 2014, Gearhart underwent triple bypass surgery after suffering a heart attack.     Following his surgery, Gearhart was on medical leave for close to five months, and he was not cleared for oven entry until November 11, 2014.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 5, 2020  .. 6th Cir.:  Bohler v. Fairview  ..  While working as a detective in the City of Fairview, Tenn Police Department, Bohler was contacted by Fairview resident Robert Hamilton, who claimed that another Fairview police officer, Timothy Dunning, was threatening to search Hamilton’s home.     Hamilton believed the search was motivated not by legitimate criminal suspicion, but instead by an unrelated civil suit between himself and a friend of Mark Sutton, a high-ranking Fairview police official.     Given the unsubstantiated nature of Hamilton’s allegation (Bohler found no record of an arrest or police report in the matter), Bohler advised Hamilton that he would be unable to help him.     A few months later, Bohler was asked by the District Attorney to review three pending criminal cases that needed further investigation before moving forward. One involved Hamilton, and it seemingly corroborated Hamilton’s prior claims of police misconduct.     Both surprised and concerned, Bohler reached out to Hamilton, who informed Bohler that Sutton had directed Dunning to “set up” Hamilton to be falsely arrested. So Bohler raised the matter with his direct superiors, to no avail. He also spoke to the police chief, who directed him to gather information to turn over to the District Attorney.     Yet when Bohler reached out to collect information from Joseph Cox, a fellow officer, he was rebuffed. Bohler again called the District Attorney, who eventually dismissed the case against Hamilton.     Although the District Attorney claimed the dismissal was based on “a lot of factors,” Bohler believes it was a direct result of his whistleblowing.     Bohler alleges that Cox and Dunning soon learned of Bohler’s whistleblowing and began to harass him.  ..  COURT DECISION:   (.pdf)   (.html)

♦       OPM  ..  Executive Order 13839,    Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles – Data Collection Requirement for Fiscal Years 2019 and 2020.   opm transmittals

♦       Nov 3, 2020  .. CCA:  People v. Stockman  ..  At around 9:45 p.m. on June 2, 2012, Stockman was driving when his car struck and killed a bicyclist, Gerald Weiss. The car and bicycle were traveling in the same direction on a road when the car ran into the bicycle from behind. Stockman testified at trial that he saw Weiss only immediately before the collision, and that he tried to brake and swerve to avoid him.     Accident investigators, however, found no evidence on the road of tire friction marks, which might have demonstrated hard braking or steering. Stockman testified that he was traveling around the speed limit of 50 miles per hour at the time of the collision.     Stockman was charged with Driving Under The Influence (DUI) Causing Injury (§ 23153) and its lesser included offense of DUI (§ 23152).     The jury found Stockman guilty as charged on both counts 1 and 2, and found true that he had personally inflicted great bodily injury. The trial court placed him on five years of formal probation, and imposed and suspended a sentence of five years in prison.     Stockman argues that his conviction for DUI causing injury must be reversed because the trial court erred by denying his request to instruct the jury for that crime with the same directive that it used for the lesser included offense of DUI.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 3, 2020  .. D.D.C.:  Brown v. Hayden (LOC)  ..  Plaintiff Clark Brown brings this employment discrimination lawsuit against his former employer, the Library of Congress (“LOC”), claiming that LOC failed to provide reasonable accommodations for a disability, discrimination on the basis of disability, retaliation for engaging in protected activity, a hostile work environment, an unlawful medical examination, and constructive discharge.     Plaintiff also claims age discrimination, in violation of the Age Discrimination in Employment Act (“ADEA”), age- and disability-based discrimination, in violation of the Fifth Amendment to the U.S. Constitution, [...].     These claims arise from plaintiff’s alleged treatment by his direct supervisor and then her replacement after he suffered a stroke resulting in his disability and undertook protected activity in connection with that disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 3, 2020  .. 11th Cir.:  Powrzanas v. Jones  ..  In 2006 Mandy Powrzanas began working at Jones Utility and Contracting Co, a company owned by her father, Ricky Jones. She ran “the entire office” and oversaw its finances. That included preparing accounting records, submitting payroll taxes, making cash deposits, and making sure the company was complying with federal and state regulations.     Powrzanas testified in her deposition that she had a difficult relationship with her father. Ricky “cussed [her] every day of [her] life” and “constantly put [her] down.” They would argue with each other constantly and at one point in 2013, a fight between them led to her attempted suicide. Powrzanas’ mother often intervened to act as a buffer between them.     In January 2015 Powrzanas was diagnosed with fibromyalgia. She blamed her condition on her father’s behavior towards her.     Their fights did not stop after her diagnosis, and she was still required to come to work, but he allowed her to lie down or take breaks when she was sick.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 3, 2020  .. 5th Cir.:  Price v. Wheeler (EPA)  ..  Plaintiff-Appellant Kimeka Price, a female African American, was employed by the United States Environmental Protection Agency (“EPA” or “Agency”) in 1996. She became an Enforcement Officer in the Hazardous Waste Enforcement Branch, Compliance Enforcement Section, Region 6.     In March 2018, Price filed suit against then-EPA Administrator Scott Pruitt, asserting claims of discrimination and harassment on the basis of race and gender, and retaliation under Title VII of the Civil Rights Acts of 1964.     Price’s complaint involves factual allegations made in prior complaints filed with the Equal Employment Opportunity Commission (“EEOC”) in 2010 and 2012.     The instant lawsuit and underlying administrative complaints are premised on allegations of more than twenty instances of discrimination, harassment, and retalition that Price allegedly suffered while employed by the EPA.     Of the myriad allegations, two specific, related instances form the crux of her claims and warrant more detailed discussion: denying sick leave on May 9, 2011, and a subsequent 14-day suspension.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 2, 2020  .. 6th Cir.:  O'Donnell v. UHCleve  ..  Like many people, Dr. Alison O’Donnell disliked public speaking. In her case, this was not just a matter of preference.    Her anxiety disorder made it very difficult. This became a problem when University Hospitals Cleveland Medical Center hired her as a Fellow in pediatric endocrinology.    The fellowship required her to attend and participate in weekly presentations and discussions with faculty about practice and research topics. She was unable to do this adequately and the Hospital eventually placed her on indefinite leave.     She resigned, never returning to the program. In this suit under the Americans with Disabilities Act, Dr. O’Donnell alleges that the Hospital and her faculty supervisors discriminated against her because of her anxiety disorder, failed to accommodate her disability, and retaliated against her after she complained.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Nov 2, 2020  .. FLRA:  BMTC v. NAVY  ..  Arbitrator Lawrence E. Little found that the Agency did not violate the parties’ collective-bargaining agreement and applicable law by refusing to provide the grievant a copy of an investigative report arising from his allegation of a hostile work environment. The Union filed exceptions on nonfact, contrary-to-law, and essence grounds. Because the Union does not demonstrate that the award is deficient on any of these grounds, we deny the exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 2, 2020  .. FLRA:  AFGE v. VA  ..  The Union filed a grievance alleging that the Agency violated the Federal Service Labor-Management Relations Statute (Statute) and the parties’ collective-bargaining agreement by failing to respond to the Union’s information requests and requiring Union members to use official time for training. Arbitrator Dennis A. Kist issued an award that sustained the grievance in part. The Union filed exceptions challenging the Arbitrator’s award on contrary to law, essence, and nonfact grounds.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Nov 2, 2020  .. FLRA:  VA v. AFGE  ..  In this case, Arbitrator Richard A. Beens found that the Agency’s Absence and Leave Policy (the policy) did not address how a bargaining-unit employee (BUE) should properly verify her medical appointments, for purposes of leave, when that employee exclusively teleworks and is a disabled veteran.     As a result, the Arbitrator found that the Agency violated the policy by requiring a BUE—who is a disabled veteran and teleworks—to verify her medical appointment by a method not required by the policy. As a result, the Arbitrator ordered the Agency to negotiate an addendum to the policy to address how a disabled, teleworking veteran should verify his or her medical appointments. For the reasons discussed below, we find that the Agency fails to establish that the award does not draw its essence from the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 29, 2020  .. CCA:  Gardner v. Calstar  ..  Appellant, Gardner, sued her former employer for disability discrimination and failure to accommodate a disability.    Respondent Calstar Air Medical Services (Calstar) provides medical transportation services. Employees at its transfer center take information about a patient, find him or her a bed and physician, and set up transportation to definitive care.    Gardner was hired in May 2016, by Lynn Smith-Kinniburgh, the transfer center manager. After her weeks of academy training, Gardner became a transfer center coordinator trainee assigned to the night shift. There were issues between her and her first trainer, Jeff Sevigny. After Gardner acknowledged having been told during her interview that all employees must be willing to work all shifts.    One witness noted that the night shift had less staffing and calls that tended to be more urgent, requiring immediate action and faster processing.    According to shift supervisor, Gardner did not like Sevigny and felt he was not helping her. Gavin felt Sevigny was helping and Gardner “just does not want to hear anything he says”; in an October 27, 2016 email, she told Kinniburgh she believed Gardner felt “if she complains enough she will be moved to a day shift which is where she wants to be and she has stated that multiple times.”  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 29, 2020  .. 10th Cir.:  Stolley v. BCC  ..  In this en banc appeal, we address whether an adverse employment action is a requisite element of a failure-to-accommodate claim under Title I of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12111–12117.     We conclude that the answer is “no,”     reaching this determination through a comprehensive analysis, including consideration of the following:     the ADA’s text;    our failure-to-accommodate precedent;    the failure-to-accommodate decisions of our sister circuits;    the views of the Equal Employment Opportunity Commission (the “EEOC”), the federal regulatory agency charged with administering the ADA;    and the ADA’s general remedial purposes.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 28, 2020  ..  It’s the birthday of Dr. Jonas Salk who developed a polio vaccine  ..  Born in New York City (1914), Salk developed a polio vaccine at the height of a polio epidemic in the mid-1950s.     Salk’s discovery was that a vaccine could be developed from a dead virus, and he tested the vaccine on himself, his family, and the staff of his laboratory to prove it was safe.     The vaccine was finally released to the public in 1955, the number of people infected by polio went down from more than 10,000 a year to less than 100.     Salk was declared a national hero.  ..  SOURCE:   the writer's almanac

♦       Oct 28, 2020  .. FLRA:  Defense v. AFGE  ..  In May 2018, the Agency provided the grievant with her performance rating for the previous year. The grievant received ratings on two elements: (1) “Process Compliance” and (2) “Work Output.” She received an “outstanding” rating for process compliance, but only received a “fully successful” rating for work output. Disputing the grievant’s fully successful rating on the second element, the Union filed a grievance, which went to arbitration.     At arbitration, the parties agreed that the issue was whether the grievant “should have been given an outstanding rating for the ‘Work to Standard – Work Output (Quality and Quantity[)]’ element of her performance appraisal.”     Arbitrator Linda S. Byars found that the Agency violated the parties’ collective-bargaining agreement when it rated the grievant “fully successful” rather than “outstanding” in her performance review.     The Agency filed exceptions to the award, and the Union filed an opposition to the Agency’s exceptions.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 27, 2020  .. 5th Cir.:  Berry v. Ouachita  ..  Golden Berry sued the Ouachita Parish Sheriff’s Office (“OPSO”) and several individual officers, alleging racial discrimination and retaliation for filing a complaint with the EEOC.     OPSO hired Berry, who is black, as a correctional officer in 2000.     He attained the rank of Corporal in 2003 and maintained his position for thirteen years. His job required that he alternate between working day and night shifts.     Seeking to work consistent day shifts, Berry approached Deputy Scott Smith about the possibility of transferring to a role in the Transitional Work Release Center.     After transferring, Berry saw his pay decrease. He contends that OPSO allowed white employees to transfer while maintaining both their rank and their pay.     In November 2017, Berry filed a charge of racial discrimination with the EEOC.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 26, 2020  .. 8th Cir.:  McKey v. U.S. Bank  ..  McKey began working for U.S. Bank, a national bank with offices in Minneapolis, Minnesota, in 1975. In 2006, she started as a Securities Specialist for the Global Corporate Actions Department.     Her job included managing clients’ financial portfolios, processing trades and transactions, meeting deadlines, and working with multiple computer systems. She was generally expected to do her job within a 40-hour workweek.     From 2011 until she was fired in September 2016, McKey worked under Yvonne Mehsikomer, who reported to Senior Trust Technology and Support Services Manager Keith Frohlicher. Frohlicher reported to U.S. Bank Operations Manager Alice Owens.         Julie McKey claims U.S. Bank fired her because of her age and in retaliation for reporting discrimination in violation of the Minnesota Human Rights Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 26, 2020  .. 4th Cir.:  Laird v. Fairfax  ..  This suit involves allegations of discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”).     Viola Laird, an employee of Fairfax County, suffers from multiple sclerosis. In 2017, Laird sued the County, claiming that she faced unlawful discrimination based on her disability when the County laterally transferred her to another department.     She also claims that the transfer came in retaliation for filing a complaint with the Equal Employment Opportunity Commission.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 26, 2020  .. D.D.C.:  Jones v. Cherokee  ..  Ashhab-Jones is an Arab-American woman of Palestinian descent.     In August 2012, she was hired by All Native, a CNSP predecessor, to work at the U.S. Embassy in Baghdad, Iraq as part of a State Department contract.     Ashhab-Jones worked in the communication section of the Information Resource Management section at the Embassy.     Her work involved deploying software to Embassies and Consulates in Iraq, training staff, and coordinating with personnel in Virginia and the District of Columbia.         Maysa Ashhab-Jones filed this lawsuit against Cherokee Nation Strategic Programs, LLC (“CNSP”), alleging Title VII discrimination based on gender, religion, national origin and background, and retaliation for filing an EEO complaint and seeking relief in retroactive reinstatement, back pay, and damages.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 23, 2020  .. FLRA:  AFGE v. Immigration  ..  Arbitrator James R. Collins denied the Union’s request for attorney fees after the grievant’s suspension was reduced to five days.     He also found that the Union failed to meet any of the relevant factors for awarding attorney fees as established by the Merit Systems Protection Board (Board) in Allen v. U.S. Postal Service (Allen).     The Union argues that Arbitrator Collins’s denial of attorney fees is contrary to law.         In this case, we reiterate the standards for determining whether an award of attorney fees is warranted­—where the grieved action is disciplinary in nature—under 5 U.S.C. § 7701(g)(1).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 23, 2020  .. MSPB:  Sabatelli v. BS&WH  ..  Frank Sabatelli was forced to resign from his job as a radiologist. He brought claims of age and disability discrimination in federal court.     Frank Sabatelli began working as a radiologist for the Scott & White Clinic (SWC) in the Baylor Scott & White Medical Center when he was 52. Sabatelli’s employment contract gave SWC authority to terminate him on 60-days’ written notice if two-thirds of the board found he was “perceived as uncooperative, difficult to get along with,” or “incompatible” with coworkers.     Coworkers frequently complained about Sabatelli, describing him as “consistently hostile,” “difficult to work with,” and “demeaning.” He made two colleagues cry. And several doctors spoke to him about complaints that he had “either yelled at or belittled [others] in a condescending manner.”  ..  Merit Systems Protection Board Decision:    (.pdf)   (.html)

♦       Oct 22, 2020  .. FLRA:  AFGE v. Forest Service  ..  The underlying grievance concerned a ten-day suspension based on two charges. The Union grieved the suspension.      The matter went to arbitration, and the Arbitrator found that the Agency did not have just cause to suspend the grievant for ten days.      Specifically, the Arbitrator found that charge one was unsupported by credible evidence and that the grievant’s conduct underlying charge two did not rise to the level warranting formal discipline.      As a remedy, the Arbitrator reversed the suspension and granted the grievant backpay.      The Union subsequently filed a motion for attorney fees, arguing that an award of attorney fees was warranted in the interest of justice under the Allen factors.      The Arbitrator found that an award of attorney fees was not in the interest of justice.      The Union filed exceptions to the Arbitrator’s award. FLRA DECISION:   (.pdf)   (.html)

♦       Oct 22, 2020  .. ICA:  Belterra v. Dusan  ..  Belterra Casino hired Yufen (He) Dusan, a Chinese national, as a guest room attendant.     Dusan injured her back and was placed on medical restrictions that could not be accommodated in her current position. Belterra gave Dusan a list of open positions, told her to work with human resources if she had any questions, and informed her that her employment would be terminated if she did not find a new position within thirty days.     Dusan did not apply for any positions, stopped going to work, and was terminated.     Dusan filed a complaint with the Indiana Civil Rights Commission (the Commission), alleging that Belterra had discriminated against her based on national origin and disability.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 21, 2020  .. WCA:  Ritchey v. SRC  ..  Kimberly Ritchey appeals various trial court rulings in her lawsuit against Sound Recovery Centers, LLC that resulted in a jury verdict in favor of Sound Recovery.     The lawsuit arose from Ritchey’s refusal to submit to a drug testing procedure that required employees to either allow direct observation of providing a urine sample or remove their clothing for a visual inspection before providing a urine sample.     Ritchey alleged disability discrimination and wrongful discharge in violation of public policy.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 21, 2020  .. FLRA:  Army v. AFGE  ..  This case, filed by the United States Department of the Army, Army Contracting Command, located in Rock Island, Illinois (Agency), concerns one article in dispute in the parties’ successor collective bargaining agreement (CBA) over merit promotions.      AFGE, Local 15 represents 462 bargaining unit employees located at the Rock Island.      The bargaining unit mostly consists of contract specialists; procurement analysts; information technology specialists; budget analysts; and secretaries.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 21, 2020  .. FLRA:  Federal Protective Service v. AFGE  ..  The Federal Protective Service filed a request for assistance with the Federal Service Impasses Panel concerning a dispute over ground rules to the parties’ successor collective agreement (CBA).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 20, 2020  .. D.D.C.:  Davis v. DC-CFS  ..  Plaintiffs, who are former employees of the District of Columbia Child and Family Services Agency, allege that their terminations from the agency during a large-scale reduction in force were discriminatory on the basis of race.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 20, 2020  .. 5th Cir.:  Park v. DEGP  ..  John Park sued his former employer, Direct Energy GP, L.L.C., for violations of the Family and Medical Leave Act. In turn, Direct Energy countersued Park for unpaid air-conditioning services. The district court granted summary judgment for both parties and dismissed all claims. Park and Direct Energy appealed. For the following reasons, we affirm the grant  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 16, 2020  .. FLRA:  ArmyMarine v. AFGE  ..  In this case, the Agency suspended the grievant for three days for misconduct. Although Arbitrator Jan Stiglitz found the misconduct undisputed and the suspension appropriate, he also found that the Agency delayed in taking disciplinary action, and sustained the grievance with regard to the grievant’s financial penalty and awarded backpay. The Agency argues that the award is contrary to the Back Pay Act (BPA). Because we find that the Arbitrator’s award of backpay is contrary to law, we vacate the award.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 16, 2020  .. Fed. Cir.:  Foster v. Army  ..  Petitioner, Thomas Foster, seeks review of a final decision of the Merit Systems Protection Board (“MSPB”) denying Mr. Foster’s petition for enforcement (“PFE”) of a prior MSPB order requiring the Department of the Army (“Army”) to reinstate Mr. Foster and pay him appropriate backpay and benefits.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 16, 2020  .. 6th Cir.:  Fuerst v. AirForce  ..  Three years after she started working for the Air Force, Angela Fuerst had a bad fall at a military base. Although the fall left her disabled, she returned to work part-time. She and the Air Force discussed potential accommodations that would allow her to work a full eight-hour day. But after several years, they still had not reached a resolution, and Fuerst still could not work a full day.     The Air Force removed Fuerst from service after determining that her ability to work only part-time was affecting the office’s mission.     The Department of Labor subsequently determined that Fuerst was no longer disabled.     Fuerst then applied to participate in a fast-track reemployment program for civil-service employees who were removed from service because of a disability but have since recovered.     5 U.S.C. § 8151(b); 5 C.F.R. § 353.301(b).     She asked the Air Force to place her on the appropriate priority reemployment list, but it did not act on her request.     Fuerst appealed to the MSPB.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 15, 2020  .. D.D.C.:  McLeod-sillah  v. D.C.  ..  Kimberly McLeod-Sillah has worked as a patrol officer for the District of Columbia Metropolitan Police Department (MPD) since 2003. . In February 2018, McLeod-Sillah reported to MPD that her immediate supervisor, Sergeant Laswaun Washington, was sexually harassing her.     After an investigation, MPD issued a “Final Investigative Report” in May 2018 that “sustained” McLeod-Sillah’s allegations against Sergeant Washington, and it referred the report to MPD’s Disciplinary Review Board.     After this report was issued, MPD assured McLeod-Sillah that Sergeant Washington would not return to the Seventh District, her work location, absent “clearance by a higher-level manager” as well as notice to district administrators.     Unsatisfied with that resolution, McLeod-Sillah filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) on September 21, 2018, and she received a Notice of Right to Sue from the EEOC on October 26, 2018.     McLeod-Sillah timely filed this lawsuit on January 21, 2019, asserting Title VII and DCHRA hostile work environment claims based on sex.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 14, 2020  .. FLRA:  Prisons v. AFGE  ..  In this case, we set aside an award where the Arbitrator found that an Agency memorandum issued after the Union filed a grievance provided the basis for the grievance.     On March 2, 2017, the Union filed a grievance alleging that the Agency violated law and the parties’ collective-bargaining agreement when it unilaterally terminated a compressed work schedule (CWS) established for certain nursing staff. Eight days later, on March 10, 2017, the Agency issued a memo notifying the Union that it would no longer accommodate the CWS. Arbitrator Edward J. Gutman issued an award finding that the Agency’s termination of the CWS on March 10, 2017 was improper and gave rise to the Union’s grievance.     Because the Union could not have filed its grievance in response to an event that occurred after the grievance was filed, we conclude that the award is so unfounded in reason and fact and so unconnected with the wording of the parties’ agreement that it fails to draw its essence from the agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 14, 2020  .. 1st Cir:  Henderson v. MBTA  ..  Plaintiff Darry Mason Henderson, a black male and Massachusetts Bay Transportation Authority ("MBTA") foreman, brought claims of racial discrimination, unlawful retaliation, and negligent infliction of emotional distress against the MBTA.     The racial discrimination claim stems from Henderson's unsuccessful application for promotion to two MBTA supervisor positions in September 2012.     The positions went to two white persons who received higher interview rankings than Henderson. In fact, Henderson's rankings placed him nineteenth out of the twenty candidates interviewed.     Henderson claims that the MBTA did not select him because of his race. Henderson also contends that the MBTA retaliated against him by no longer assigning him podium duty, because he complained of racially motivated verbal abuse by a supervisor.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 14, 2020  .. D.D.C.:  CHBC v. Bowser  ..  Capitol Hill Baptist Church (“the Church”) has opened its doors for a weekly worship service for 142 years—until now. Its doors closed in March, on Mayor Muriel Bowser’s COVID-19-related orders.     At first, the Church accepted these restrictions willingly. But as the months passed by and the Mayor lifted other restrictions and welcomed mass protests to the city, the Church sought permission to hold its weekly service outdoors, with congregants masked and socially distanced.     The District denied permission because the Church’s doctrinal requirement of a weekly gathering of its entire congregation together conflicts with the Mayor’s prohibition on religious gatherings of more than 100 people, indoors or out.     The Church sues the Mayor and the District of Columbia (collectively, arguing that their actions violate, among other laws, the Religious Freedom Restoration Act. Before the Court is the Church’s motion for an expedited preliminary injunction.     It seeks to enjoin the District from enforcing its restrictions insofar as they prevent the Church from holding socially-distanced outdoor worship services in congregants wear masks.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 9, 2020  .. Fed. Cir.:  Spence v. DVA  ..  Petitioner worked for the Department of Veterans Affairs (DVA) as a lawyer.     In 2018, DVA, after taking several other actions against her for unacceptable performance, removed Ms. Spence from her job.     Under 5 U.S.C. § 7701, Ms. Spence filed an appeal to the Merit Systems Protection Board, challenging the removal as an “adverse action” under 5 U.S.C. chapter 75.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 9, 2020  .. Fed. Cir.:  Pybas v. OPM  ..  The petitioner, a former law enforcement officer at the Federal Bureau of Prisons, challenges the determination of the Merit Service Protection Board that he is not entitled to an annuity supplement under 5 U.S.C. § 8421(a)(1).         Between April 21, 1991, and March 19, 2006, Mr. Pybas served as a law enforcement officer for the Federal Bureau of Prisons (“BOP”).     During that time, he obtained coverage as a law enforcement officer in the Federal Employee Retirement System (“FERS”), but he became disabled before he reached the minimum age and years of service for retirement of law enforcement officers.     At the age of 49, with 14 years, 10 months, and 28 days of service, Mr. Pybas retired as a disability retiree under 5 U.S.C. § 8451, which provides retirement benefits to employees who complete at least 18 months of qualifying service and are found to be unable, because of disease or injury, to render useful and efficient service in their position. 5 U.S.C. § 8451(a)(1).     After Mr. Pybas reached his minimum retirement age, he requested that the Office of Personnel Management (“OPM”) recalculate his annuity to include a FERS annuity supplement. OPM denied the request on the ground that as a “disability retiree,” Mr. Pybas was not entitled to a FERS annuity supplement under 5 U.S.C. § 8421(a)(1).     Mr. Pybas appealed OPM’s decision to the Merit System Protection Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 8, 2020  .. Fed. Cir.:  Messam v. Nara  ..  On August 28, 2018, Ms. Arrington proposed removing Ms. Messam from federal service for negligence and for failure to follow instructions.     Ms. Messam submitted her response to Ms. Murphy, NARA’s CFO and the deciding official, on September 19, 2018.     After review of the proposed removal and Ms. Messam’s response, Ms. Murphy sustained the three specifications under the negligence charge but did not sustain the failure to follow instructions charge.     As a result, NARA removed Ms. Messam from her position effective September 28, 2018.     On October 25, Ms. Messam filed an appeal with the Board.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 7, 2020  .. FLRA:  IRS v. NTEU  ..  On August 4, 2017, the grievants, who opened and initially sorted incoming mail, were working in a mail extraction area (Extraction 1) at the Agency’s facilities. Around 8:30 a.m. an envelope was opened and one of the grievants nearly fainted. The remainder of the grievants experienced disorientation, nausea, burning eyes, and dizziness. Several of the grievants were then transported to the hospital by stretchers and/or wheelchairs.     Eventually, the supervisor on duty initiated lockdown procedures in Extraction 1 and the local fire department hazmat team arrived on the premises to investigate.[1] After nearly two hours, the local fire department declared “all clear.”     Agency management told those grievants who had not been removed for medical treatment that the Agency would authorize liberal sick, annual, and leave without pay. Approximately eighteen of those employees chose to take sick, annual, or leave without pay. In contrast, the Agency gave the four grievants who were sent to the hospital administrative leave for the remainder of their shift after the incident on August 4, 2017.     Thereafter, the Union filed a grievance alleging that the Agency violated Article 27, Section 1(A) and Section 2 of the parties’ agreement by failing to maintain a safe and healthful working environment.     The Union also alleged that the Agency violated the parties’ agreement by improperly denying administrative leave, by failing to advise the grievants of their Federal Employees’ Compensation Act (FECA) rights regarding the incident, and by refusing to provide copies of the Occupational Safety and Health Administration (OSHA) report to the Union. The Agency denied the grievance and arbitration ensued.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 7, 2020  .. 9th Cir.:  Hazelett v. Wal-Mart  ..  Hazelett worked for Wal-Mart, beginning August 10, 2010, at a retail store near her home, and in 2014 she became an order-filler at one of the Wal-Mart distribution centers, which was a substantially farther distance from her home. She was injured at work on February 28, 2015. Plaintiff injured her foot at work on February 28, 2015. Hazelett initially filed for workers’ compensation and at a later date requested a leave of absence.     During her work-related temporary disability, Wal-Mart offered Hazelett a temporary alternate duty (“TAD”) assignment. The form on which she chose the assignment includes an option for refusing the temporary duty assignment. It provides: “I REFUSE the Temporary Alternate Duty (TAD) position being offered to me and acknowledge that my benefits could be suspended or denied due to noncompliance.” In short, Hazelett was injured on the job, offered a TAD which her injury prevented attendance, and then terminated due to the effects of her injury.     Her work-related disability prevented her from operating a motor vehicle.     The TAD required her to report to work in the wee hours of the morning when no public transportation, save a taxi, was available.     As a result, she was unable to find transportation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 6, 2020  .. FLRA:  VA v. AFGE  ..  The Arbitrator sustained the Union’s grievance alleging that the Agency violated the parties’ collective bargaining agreement by failing to provide safe working conditions for housekeeper and laborer employees.     The questions before us are whether the award: (1) is incomplete, ambiguous, or contradictory, (2) is contrary to law, or (3) fails to draw its essence from the parties’ agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 6, 2020  .. FLRA:  SBA v. AFGE  ..  The Arbitrator issued an award finding, as relevant here, that a grievance was arbitrable because it sought a seven-year temporary promotion and an updated position description.     The main question before us is whether the award is contrary to law.     In this case, we inform This Arbitrator, and remind others in the federal-labor management community, that a grievance concerns a non-arbitrable classification matter under § 7121(c)(5) of the Federal Service Labor-Management Relations Statute (the Statute) when its essential nature is integrally related to the accuracy of the classification of the grievant’s position.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 6, 2020  .. DSC:  Bateman v. Delaware  ..  Plaintiff filed an employment discrimination action against her former employer, the Delaware Department of Transportation, on January 8, 2018.     She alleged discrimination on the basis of race, gender, and sexual orientation as well as retaliation.     Bateman alleges a history of racial, sexual, and sexual orientation abuse and harassment directed at her by co-workers and supervisors. She describes it as “the most vile, degrading and disgusting verbal and sexual abuse imaginable, complete sexual, racial, and homophobic rants, replete with demands for sex acts to be performed on her male co-workers, including her immediate supervisor, all while constantly labeling her a ‘Ni---r’’’?     The details she recites of that of that abuse, if true, and the Court has no reason to suspect they are not, fully support her characterization of it.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 6, 2020  .. 11th Cir.:  Jones v. AIDB  ..  Michelle Jones appeals the district court’s order dismissing her complaint against her employer, the Alabama Institute for the Deaf and Blind (“AIDB”), Jamie Johnson, Jones’s supervisor at AIDB, and Larry Stone, a grounds man at AIDB.      On June 11, 2019, Jones filed a complaint for employment discrimination under the Civil Rights Act and the Age Discrimination in Employment Act.      In her complaint, she alleged that the defendants violated Title VII and the ADEA by discriminating against her in her termination, failing to promote her, retaliating against her, harassing her, defaming her, slandering her, and imposing unequal terms and conditions of employment on her.      She said Defendants discriminated against her in this way because she is African American, female and based on her sexual orientation.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 5, 2020  .. D.D.C.:  Hall v. WMATA  ..  Plaintiff Tracy Hall brings this employment discrimination lawsuit against her former employer, Washington Metropolitan Area Transit Authority (“WMATA”), to challenge WMATA’s termination of her employment, failure to hire her as a Bus Scheduling System Specialist, and hostile work environment, as well as its failure to ensure that she received notice of her options for continuation coverage under its group health plan upon termination.      These claims are based on plaintiff’s allegations that she was terminated, not hired, and subject to a hostile work environment both because she had a disability of chronic migraines and in retaliation for protected activity she undertook in relation to that disability.      Defendant attributes plaintiff’s termination and non-hiring solely to her poor job performance, and denies that plaintiff was subject to harassment that rose to the level of a hostile work environment.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 5, 2020  .. 9th Cir.:  Green v. Phoenix  ..  Jeffrey Green is a Sergeant in the Phoenix Police Department. In 2015, he brought an action against the City of Phoenix alleging that, between 2012 and 2015, the City violated Title VII by retaliating against him for filing EEOC charges, helping a subordinate file a sexual harassment complaint, and refusing to aid his supervisor in conduct violating Title VII.      Green’s alleged damages, which were limited to pain and suffering, were not supported by any witnesses, evidence, or documentation other than his own testimony.      Throughout the period relevant to his claims and continuing to the present time, Green has continued to be employed by the Phoenix Police Department.      The case went to trial and a jury returned a $1.5 million verdict for Green.      The district court then vacated the jury verdict.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 2, 2020  .. FLRA:  Prisons v. AFGE  ..  The Union filed a formal grievance with the Agency alleging that the Agency’s failure to relieve certain employees for their contractual half hour duty-free lunch and properly compensate them for that time worked violated the parties’ agreement and the Fair Labor Standards Act.      The Agency rejected the grievance and raised both procedural and substantive objections. In January 2018, the Union invoked arbitration.      At arbitration, the Agency maintained that the grievance was procedurally defective. As relevant here, the Agency asserted that the grievance was not filed at the appropriate level, in violation of the parties’ collective-bargaining agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 1, 2020  .. 10th Cir.:  Sanderson v. WHP  ..  Delsa Brooke Sanderson brought three claims against her employer, Wyoming Highway Patrol (“WHP”), under Title VII of the Civil Rights Act of 1964.     Two of those claims—for retaliation and hostile work environment based on sex—are at issue on appeal.     Sanderson also appeals the district's grant to exclude Sanderson’s designated expert witness, Linda Forst.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Oct 1, 2020  .. FLRA:  United States Department of Agriculture, Office of the General Counsel (Petitioner)  ..  The U.S. Department of Agriculture, Office of the General Counsel (USDA) requests a general statement of policy or guidance (general statement) concerning the authority of an agency head, under § 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute),[1] to review the legality of an expiring collective-bargaining agreement that states that it will remain in force until the parties reach a new agreement.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 1, 2020  .. FLRA:  United States Office of Personnel Management (Petitioner)  ..  Pursuant to § 2427.2 of the Authority’s Regulations,     the Office of Personnel Management (the Petitioner) requests that the Authority issue a general statement of policy or guidance regarding whether “zipper clauses”—provisions that would foreclose or limit midterm bargaining during the term of a collective-bargaining agreement (CBA)—are a mandatory subject of bargaining.     Specifically, the Petitioner asks us to find that zipper clauses are a mandatory subject of bargaining.     We find that they are.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Oct 1, 2020  .. FLRA:  Education and. Agriculture  ..  Pursuant to § 2427.2 of the Authority’s Regulations,     the Petitioners request that the Authority issue a general statement of policy or guidance regarding the standard that the Authority should use for deciding whether a management-initiated change triggers an agency’s duty to bargain under the Federal Service Labor-Management Relations Statute (the Statute).     Specifically, the Petitioners ask the Authority to return to the “clear and meaningful” substantial change standard,     because arbitrators, judges, and the Authority have been “inconsist[ent] and ambigu[ous]” in their application of the current “de minimis” standard.  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 30, 2020  .. 6th Cir.:  Bohler v. Fairview  ..  Today’s case is an additional chapter in a long-running dispute between the Fairview Police Department and former officer Bohler.      Bohler claims that he quit the department when his superiors threatened him with a demotion motivated by Bohler’s prior whistleblowing.     Bohler also claims that two fellow officers defamed him by accusing him of misusing his official sick time.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 30, 2020  .. D.D.C.:  Guisbert v. Wash Convention  ..  Plaintiff Gonzalo Guisbert brings this employment discrimination action against Defendant Washington Convention and Sports Authority under Title VII, the Age Discrimination in Employment Act (ADEA), and the D.C. Human Rights Act (DCHRA).      Guisbert alleges discrimination based on age and race, and age-based retaliation.      Defendant, Washington Convention and Sports Authority, moves to dismiss the retaliation claims (Count V and VI) for failure to state a claim.      For the reasons set forth below, the court will DENY Washington Convention and Sports Authority’s Motion to Dismiss.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 30, 2020  .. CCA:  Drevaleva v. AHS  ..  Alameda Health System (AHS) hired Drevaleva as a cardiac monitor technician in 2013. In an August 2013 conversation with her supervisor, Drevaleva challenged her part-time employee status, lack of paid breaks during her work shifts, unpaid shift differentials, and unpaid overtime compensation.      After nothing in her wages or employee status changed, on September 5, 2013, Drevaleva sent her supervisor a letter reiterating her questions.      On September 7, 2013, AHS terminated Drevaleva for her failure to comply with AHS employment standards.      She then filed a retaliation claim with the Department of Industrial Relations, Division of Labor Standards Enforcement (DIR), seeking a variety of remedies including overtime wages and differential pay.      In December 2016, after a thorough investigation, DIR determined Drevaleva was terminated for a legitimate, non-retaliatory reason—her negligence had seriously harmed a patient—and denied Drevaleva’s claim. An AHS email dated September 4, 2013 documented its decision to terminate Drevaleva before she authored her September 5 letter.      Drevaleva filed several state and federal lawsuits against AHS and DIR related to her termination, alleging discrimination, retaliation, libel, negligence, fraud, and violations of the Labor Code.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 29, 2020  .. 6th Cir.:  Kuklinski v. Treasury  ..  Kuklinski worked as a supervisory police inspector with the U.S. Mint Police1 at the U.S. Bullion Depository in Fort Knox, Kentucky.      Police Inspector Anthony Kuklinski alleges that he was investigated and removed from his position because he attempted to stop long-term harassment of a female employee by a male employee.      Defendant (as named and including references to the Mint) justifies the employment actions taken based on evidence supporting both Kuklinski’s failure to comply with his tax obligations and his aggressive management activities that caused low employee morale.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 29, 2020  .. 11th Cir.:  Jay v. Auburn U  ..  Jay, filed suit against Auburn alleging that the school discriminated against him based on his disability in 2016 by (1) failing to hire him, (2) failing to accommodate him once he made it aware of his disability, and (3) hiring a non-disabled applicant, in violation of the Rehabilitation Act.     ---      Jay’s disability status results from a variety of impairments. In April 2001, he broke his neck when he fell off a ladder while cutting down a large tree limb on his property.      In 2010, Jay fell at home and damaged his left shoulder. Following a surgery in 2011, Jay is able to use his left arm and shoulder without substantial limitations.      Jay was also diagnosed with post-traumatic stress disorder (“PTSD”) by a clinical psychologist.      In December 2016, Jay applied for the Tech I/II position at Auburn’s Rural Studio.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 29, 2020  .. 11th Cir.:  Davis v. Columbus  ..  James Davis, a former employee of Columbus, Georgia Consolidated Government, worked as a bus operator for Columbus’s public transportation service from 2004 to December 2015.      The job description for a bus operator showed that the position required, among other things, frequent bending, squatting, climbing, lifting up to 25 pounds, and pushing occupied standard wheelchairs.      In late 2015, Davis began missing work due to neck pain related to spinal stenosis. He soon exhausted his regular leave and in November 2015, Davis’s 12 weeks of leave under the Family and Medical Leave Act expired as well.      Davis appeals the district court’s grant of summary judgment for Columbus in his civil suit alleging that the city unlawfully discriminated against him in violation of the Americans With Disabilities Act.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 29, 2020  .. 11th Cir.:  Johnson v. FDOC  ..  Johnson began working for the FDOC in 2005. She was employed as a correctional officer at Franklin Correctional Institution (FCI) throughout her career. Early in Johnson’s career, she had positive performance reviews and was recognized for her good work.      Johnson says everything changed in 2010, when she noticed FCI’s culture change to become centered around “a ‘good ol’ boy’ club based on family relations or sex.”      She started having conflicts with her supervisors and co-workers, especially Lieutenant Wilburn Messer. Messer became Johnson’s Captain and shift supervisor in 2014.      Johnson said she suffered “continued harassment” from Messer, including sexual harassment and reprimands based on false allegations.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 28, 2020  .. 6th Cir.:  Kidis v. Reid  ..  After a day of heavy drinking at a Labor Day festival, Nikos Kidis sideswiped another vehicle, causing a minor accident. Nervous from the incident, Kidis exited his vehicle and fled.      Eventually, Kidis gave up fleeing the police. He surrendered, lying face down on the ground, his hands stretched out above his head.      Officer John Moran, upon arriving at the scene, thrust his knee into Kidis and started to choke him. Moran continued to punch and strangle Kidis.      A jury found that Officer John Moran used excessive force in arresting Nikos Kidis. The jury awarded Kidis $1 in compensatory damages and $200,000 in punitive damages.      Both parties appealed.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 25, 2020  .. Federal Claims:  Yu v. U.S. (Postal)  ..  Plaintiff Yuen C. Yu has worked for the USPS since 1994.      Although she sought a permanent USPS position and completed the required eligibility tests, she remained a nonpermanent, casual employee for over eighteen years.      Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on August 13, 2007, alleging discrimination based on her age and her race.      On September 13, 2007, plaintiff and the USPS entered into a settlement agreement      Plaintiff seeks damages arising from the alleged breach of her equal employment opportunity settlement agreement with the United States Postal Service (“USPS”).      Defendant United States moves to dismiss plaintiff’s claim for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 25, 2020  .. 4th Cir.:  Driskell v. Summit  ..  In this case, a jury found that Summit Contracting Group violated North Carolina law by firing Justin Driskell as retaliation, either (1) for his complaints about workplace safety or (2) because Summit believed that he would file a workers’ compensation claim.      Summit appeals, arguing that it was entitled to judgment as a matter of law or a new trial, and that the jury’s punitive-damages award wasn’t supported by the evidence.      Justin Driskell cross-appeals, contending that the district court erred by not increasing the jury’s compensatory damages award to reflect the full amount of back pay that he’s owed and by requiring him to elect between punitive damages and attorney’s fees.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 25, 2020  .. D.D.C.:  George v. Molson  ..  Melchior George, an African American, started working for Molson Coors in 1991 as an Area Sales Manager. Twenty years later, he was promoted to the position of National Account Executive.      He was one of two African Americans “at his level” in his division.      As a National Account Executive, he was responsible for all sales programming for chains on the East Coast, including the Buffalo Wild Wings chain.      His team received several performance awards.      Between July and September of that year, he experienced “severe and debilitating nausea,” leading to his hospitalization.      Medical tests revealed that he had congestive heart failure and additional tests found him an ideal candidate for a heart transplant.      Melchior George eventually received a heart transplant.      He showed interest in returning to work, with accommodations, but Molson Coors terminated him.      George brings claims of disability and race discrimination under the D.C. Human Rights Act (“DCHRA”) and claims of interference and retaliation under the Family and Medical Leave Act (“FMLA”).      Molson Coors moves to dismiss.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 25, 2020  .. D.D.C.:  Harris v. MTM  ..  Plaintiffs in this putative class action are drivers who claim that they have been underpaid in violation of federal and local wage laws for transporting Medicaid patients in the District of Columbia.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 24, 2020  .. OCA:  State v. Bowden  ..  Midway through an Ohio Vehicle Inspection (OVI) checkpoint, a driver throws his car into reverse and begins to back away. This behavior attracts the attention of the state trooper monitoring the checkpoint, who eventually flags down the errant driver. Based on evidence of drug impairment, the driver is arrested and later convicted of a misdemeanor OVI. On appeal, defendant-appellant Jonathan Bowden challenges the sufficiency of the evidence supporting his OVI conviction, asserting that the state failed to prove a nexus between his ingestion of a drug of abuse and his impaired driving.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 24, 2020  .. OCA:  Reading v. F.O.P.  ..  The City of Reading, Pennsylvania terminated the employment of Police Officer Roth in February 2018 for his failure to meet departmental standards of performance, following multiple years of subpar-performance ratings.      In this appeal, we review the trial court’s denial of the City of Reading, Pa's motion to vacate the arbitrator's decision and confirming an arbitrator’s award that modified the discipline imposed upon Reading Police Officer Anthony Roth from a termination to a five-day suspension.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 24, 2020  .. CCA:  People v. Belyew  ..  Defendant Lisa Marie Belyew stabbed her husband in the chest with an ice pick and sprayed him with a fire extinguisher during an argument.      Following a jury trial in which she represented herself, defendant was found guilty of assault with a deadly weapon and infliction of corporal injury upon a spouse.      The jury also found true the allegations that she had used a deadly weapon, inflicted great bodily injury, and was out on bail for a felony offense at the time the current offenses were committed .      The trial court sentenced her to an aggregate term of seven years in state prison.      Marie Belyew timely appealed.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 24, 2020  .. CAC:  Chaplin v. CSPB  ..  Real party in interest California Department of Forestry and Fire Protection (CAL FIRE) disciplined three of its firefighters (appellants Justin Chaplin, James Michels, and Frank Schonig) for cheating on a promotional exam. One of the men appealed his discipline to respondent California State Personnel Board (Board), but the other two did not.      While the one appeal was pending, CAL FIRE substituted new disciplinary notices against all three men, seeking to impose harsher penalties. Over the men’s objections, the Board allowed CAL FIRE to proceed.      The firefighters filed a petition for a writ of mandate in the trial court, which the court denied.      The 3 firefighters appeal the decision.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 23, 2020  .. ACA:  Baron v. Honorhealth  ..  Baron was hired by HonorHealth as an Electronic Medical Records trainer. After working for HonorHealth for less than one month, Baron emailed his supervisor complaining that another trainer was not accurately grading the physician and medical assistant training assessments.      Baron was terminated from HonorHealth for having “fabricated or distorted, exaggerated or minimized a report of wrongdoing or a violation of the Compliance Program, laws and regulations.”      Baron sued HonorHealth, supervisors and directors.  ..  DECISION:   (.pdf)   (.html)

♦       Sep 23, 2020  .. ICA.:  Eib v. Indiana  ..  Jarred L. Eib was terminated from his employment as a staff attorney with the Indiana Department of Child Services (DCS). Eib appealed his dismissal to DCS, then the State Personnel Department (SPD), and finally to the State Employees’ Appeals Commission (the SEAC). After the SEAC granted summary judgment in favor of DCS, Eib sought judicial review. The trial court affirmed the decision of the SEAC, agreeing with its determination that Eib was an unclassified employee and that he had not established that his dismissal contravened public policy. Eib now appeals, presenting several issues for our review:  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 23, 2020  .. CCA.:  People v. Webb  ..  In March 2013, appellant and codefendant Ephraim Cho were members of the Hellside criminal street gang. Cho was romantically interested in “Kathy,” who was in a relationship with appellant’s friend, victim Benjamin Chen. Kathy told Chen that Cho was “actively pursu[ing] her” and “want[ed] them to end their relationship.”      On March 13, appellant called Chen and told him to meet him at a church and that “if he did not come out and talk to them, things could get worse.” When Chen approached the church, he saw Kathy speaking to appellant and codefendant David Han, a member of the Hanzkook Boyz criminal street gang.      Cho drove up in a vehicle and demanded that Chen get in. Chen got into the front passenger seat and Han got in the back seat. Cho identified himself as a Hellside member, pointed a gun at Chen, and threatened to shoot him. Cho also pulled out a knife and threatened to stab Chen.      Han drove Cho and Chen to Chen’s home, where Chen retrieved his ATM cards. Han then drove Chen to several banks, where Chen withdrew a total of $2,400. Chen gave the money to Han.  ..  COURT DECISION:   (.pdf)   (.html)

♦       Sep 22, 2020  .. 10th Cir.:  Aubrey v. Koppes  ..  Plaintiff Kimberly Aubrey was, by all accounts, an exemplary employee for the Weld County, Colorado, Clerk and Recorder’s office.      She became unable to work for a time due to posterior reversible encephalopathy syndrome (“PRES”), a rare condition characterized by fluctuating blood pressure that causes swelling in the brain, coma and sometimes death. Eventually Aubrey’s PRES resolved and she began to recover.      The County allowed her to take several months off but eventually terminated her employment.      By that time, Aubrey contends, she had recovered sufficiently to be able to return to her job, with reasonable accommodation for her disability.      Aubrey sued the County under the Americans with Disabilities Act (“ADA”), and several related statutes.  ..  Court Decision:    (.pdf)   (.html)

♦       Sep 22, 2020  .. FSIP:  Defense v. AFGE  ..  The U.S. Department of Defense, Defense Logistics Agency (Agency or DLA), located in Fort Belvoir, Virginia 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).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 22, 2020  .. FLRA:  NTEU v. FCC  ..  In early March 2020, the parties began substantive negotiations over six reopened articles from their basic negotiated agreement and one new article (the disputed articles). During bargaining, the parties also attempted to renegotiate several unopened articles that the Agency claimed were nonnegotiable (the unopened articles).     Due to the COVID-19 pandemic, the parties bargained telephonically starting in mid-March 2020.     During bargaining, the parties failed to reach agreement on several articles, and the Agency requested the assistance of the Federal Service Impasses Panel. The Union filed a motion requesting that the Authority stay the Panel proceedings (the motion).  ..  FLRA DECISION:   (.pdf)   (.html)

♦       Sep 22, 2020  .. FLRA:  IUPEDJ v. PBGC  ..  The Union filed a grievance on behalf of an employee (Porter grievance) on January 16, 2018. The Agency denied the grievance on February 22, and the Union invoked arbitration on February 28. On     October 18, the Agency notified the Union that the Porter grievance was void because the Union had failed to “actively pursue” the grievance within six months as required by Article 2, Section 3(A)(11) (Article 2) of the parties’ agreement.     Arbitrator Charles Feigenbaum found that the Union’s grievance was not arbitrable because the Union failed to actively pursue the grievance as required by the parties’ collective-bargaining agreement.     The Union argues that the award should be vacated on nonfact, contrary-to-law, essence, and exceeds-authority grounds.  ..  FLRA DECISION:   (.pdf)   (.html)