ArticlesThe attorneys of Passman & Kaplan have written the following articles about current legal developments in the law. These articles can also be found in the “Federal Legal Corner” of the publication FEDweek. Establishing Discrimination The EEOC recently held in Yeargins v. Department of Housing and Urban Development, EEOC DOC 0320100021 (May 14, 2010), that agencies need not provide telework as a reasonable accommodation to disabled employees if the employees are poor performers. MSPB Orders Removal on Hatch Act Charges In the recent decision, Special Counsel, Petitioner, v. Pattie Ware, Respondent, Docket No. CB-1216-09-0025-T-1 (June 9, 2010), the MSPB overruled an administrative judge's (AJ's) proposed penalty of a 60-day suspension for several Hatch Act violations and instead ordered the respondent's removal from her position. On May 7, 2010, the EEOC Office of Federal Operations ("OFO") issued its decision in White v. Department of Defense, EEOC Appeal No. 0120080191. OFO modified the agency's final order accepting the AJ's decision, and remanded the matter to the agency so that the agency could provide the complainant, Theresa White, a reasonable accommodation of her religious beliefs, conduct a supplemental investigation on whether White deserved compensatory damages, provide at least eight hours of training on Title VII to the management officials responsible for denying White the accommodation, and consider taking disciplinary action against the same management officials. Discrimination for Taking FMLA Leave On April 12, 2010, the EEOC Office of Federal Operations issued its decision in Ramos v. Department of Defense, EEOC Appeal No. 0720090055. OFO affirmed the Administrative Judge's reinstatement of Ramos, finding that the agency had engaged in disability discrimination by firing Ramos for taking Family and Medical Leave Act leave. Standards for Reviewing Penalties In Lewis v. Dept. of Veterans Affairs, 2010 MSPB 98 (May 28, 2010), the Merit Systems Protection Board broadened the definition of "similarly situated" employee when reviewing disparate penalties meted out to different employees. The result is that agencies now have a higher burden of proof in sustaining a penalty where a lesser penalty has been given to some other employee for similar offenses. MSPB Mitigates Penalty of Removal The MSPB agreed to mitigate the penalty of removal to a 14-day suspension in its first major decision on mitigation since the appointment of the two new Board members. Woebcke v. Department of Homeland Security, 2010 MSPB 85 (5/6/10). In Hugh Victor Conrad v. Eric Holder, J., Attorney General, Department of Justice, Appeal No. 0120090690 (April 9, 2010), the EEOC Office of Federal Operations increased the agency's award of $40,000 in compensatory damages to $100,000. The complainant, a former assistant U.S. attorney had been demoted from his supervisory position in February 1999, three weeks after he wrote a letter to management exposing alleged racial harassment in the U.S. Attorney's Office for the Northern District of Alabama office in Huntsville, Ala. Conrad also endured six other events of reprisal over the span of 19 months, and the repercussions continued into 2002. Conrad filed several EEO complaints which the agency consolidated. Possible Retaliation in Reassignment In Pardo-Kronemann v. Donovan, No. 08-5155, 2010 WL 1508072 (D.C. Cir. Apr. 16, 2010), the U.S. Court of Appeals for the D.C. Circuit in a split decision reversed a lower court's decision and found that the question of whether an attorney's reassignment to a non-legal position was a retaliatory adverse action should have gone before a jury. Jose Pardo-Kronemann, an attorney who worked for the Department of Housing and Urban Development (HUD), brought suit alleging that HUD had unlawfully retaliated against him for his participation in prior EEO activity when it transferred him to a non-legal position, and declared him AWOL when he failed to report to that new position. EEOC Excuses Untimely Filing MSPB Mitigates Penalty for Hatch Act Violation In Champion v. United States Postal Service, EEOC Appeal No. 0720090037 (March 10, 2010), the Equal Employment Opportunity Commission upheld an administrative judge's award of $125,000 for nonpecuniary damages (emotional distress damages). The Commission found that the administrative judge appropriately determined the amount of nonpecuniary damages to remedy the harm the complainant suffered for over two years caused by the discriminatory hostile work environment, including psychiatric disorders. Court Backs Prominent Whistleblower The EEOC recently upheld a finding of unlawful employment discrimination where an agency removed an employee’s supervisory duties, and the employee’s own supervisor made age-based comments. Cook v. Department of Labor, EEOC Appeal No. 0720080045 (February 22, 2010). Retaliation for 'Perceived' EEO Activity In 2005, Tony Ball, a Secret Service agent who was married to co-worker, Ramona Johnson, filed an EEO complaint, alleging that he was denied a promotion because of his race. He was also part of a larger class action against the Department of Homeland Security. Ball was subsequently offered another promotion, which required him to be transferred to Miami. Over the next several months, the agency assured Ball and Johnson that Johnson would also be transferred to Miami, in accordance with standard agency practice for married employees. Ball transferred to Miami, and two months later, in June, requested an EEOC hearing for his complaint. In July, the agency notified Johnson that it was denying her transfer to Miami. Court Rules Against Former Spouse Survivor Annuity The U.S. Court of Appeals for the Federal Circuit recently ruled that a surviving spouse of a deceased federal employee was not entitled to a survivor annuity because she had voluntarily signed the form waiving her right to an annuity. Braza v. OPM, No. 2008-3174 (3/16/10) (en banc). The court affirmed the Merit Systems Protection Board that the former spouse had signed an OPM form (SF 2801-2) consenting to her late husband receiving an unreduced annuity during his lifetime without providing for a survivor annuity for her. Although she hadn’t seen the form before, did not ask for or receive any explanation as to what she was signing, and did not read the form before completing and signing it at a local bank before a notary public, OPM denied her claim finding that she had waived her right to a survivor annuity by completing and signing the form, and the MSPB affirmed OPM’s decision. Jurisdiction Argument after Delay in Appeal In Smart v. Department of Justice, 2010 MSPB 49 (March 9, 2010), the appellant received a career appointment in the competitive service as a Deputy U.S. Marshal on June 9, 1991, subject to a completion of a one-year probationary period. Before the year was up, the agency terminated him, alleging unacceptable performance and conduct. The termination letter advised Mr. Smart that he had a "limited right to appeal to the Board as a probationary employee" and also advised him that he had the right to file an EEO complaint. MSPB Jurisdiction Over Newer FAA Employees On March 4, 2010, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Roche v. Merit Systems Protection Board (No. 2009-3111). Affirming the Merit Systems Protection Board (MSPB) decision below, the Federal Circuit found no MSPB jurisdiction over Roche's removal by the Federal Aviation Administration (FAA). Hostile Work Environment and Compensation Claims In a recent decision, the EEOC ruled that the Federal Aviation Administration improperly dismissed a manager's claims of a hostile work environment and discriminatory compensation under the Lilly Ledbetter Act. Raulerson v. Department of Transportation, No. 0120093521 (EEOC 12/07/09). Appeal Rights of Career Interns The Merit Systems Protection Board (MSPB," or "the Board") recently clarified the grounds on which an employee in the Federal Career Intern Program (FCIP) can claim Board jurisdiction over the appeal of his separation at the expiration of his internship. Scull v. Department of Homeland Security, Docket No. SF-0752-09-0565-I-1 (February 19, 2010). The U.S. Court of Appeals in the District of Columbia recently reversed a district court's granting of summary judgment to the agency in Miller v. Hersman, No. 08-5494 (DC Cir. 2/5/10). The district court had determined that the employee failed to initiate EEO contact within 45 days after learning of his non-selection for a budget officer position which was awarded to a female candidate at the National Transportation Safety Board. The second count alleged discriminatory non-selection for one of two special assistant vacancies which was initially filled on a temporary basis. Claim of Involuntary Resignation In Hosozawa v. Department of Veterans Affairs, 2010 MSPB 10 (January 12, 2010), the MSPB reversed an administrative judge's (AJ's) initial decision dismissing Hosozawa's complaint, and found that she had presented a non-frivolous allegation that the Department of Veterans Affairs had forced her resignation. Direct Evidence of Discrimination In OFO Appeal No. 0120073300, decided on December 18, 2009, the Equal Employment Opportunity Commission’s Office of Federal Operations (OFO) overturned an administrative judge’s decision finding that a federal employee had not presented sufficient evidence of discrimination and dismissing the case without a hearing. In overturning the decision below, the OFO found that the employee had presented direct evidence of discrimination. Discrimination in Non-Selection The EEOC Office of Federal Operations (OFO), recently upheld an administrative judge’s (AJ’s) finding that the Department of Agriculture Farm Services Agency (FSA) discriminated against complainant Deborah Lombardino when it did not select her for the position of civil rights director, small business utilization staff, a temporary, one-year position. Lombardino v. USDA, Appeal No. 07200070007, (November 27, 2009). The OFO also affirmed the AJ’s compensatory damage award of $12,000 and the AJ’s attorney’s fee award of $133,247.95. Discipline for Off-Duty Conduct On January 15, 2010, the Merit Systems Protection Board issued its latest decision in the long-running case of Doe v. Department of Justice, 2010 M.S.P.B. 16. On remand from the U.S. Court of Appeals for the Federal Circuit (565 F.3d 1375 (2009)), a decision previously analyzed in the Federal Legal Corner, available at http://www.passmanandkaplan.com/CM/FederalLegalCorner/FederalLegalCorner124.asp, the Board provided detailed analysis of its nexus standard in the context of proposing adverse actions against employees for their off-duty conduct. Equal Pay Act Plaintiffs Must Prove Sex Discrimination In Yant v. United States, No. 08-CV-077 (Fed. Cir. December 14, 2009), the U.S. Court of Appeals for the Federal Circuit affirmed the grant of summary judgment for the employer by holding that an employee will not prevail on an Equal Pay Act claim without showing that the pay differential between men and women is currently or historically based on sex discrimination. The Equal Pay Act is designed to eliminate pay differentials based on sex. The law is unsettled on whether an employee must prove discriminatory intent in order to satisfy his or her initial burden of proof under the Equal Pay Act. Denial of Reasonable Accommodation The EEOC held that a complainant was unlawfully denied reasonable accommodation while recovering from a stroke, forcing him to take disability retirement and endure serious financial hardship. Blount v. Dept. of Homeland Security, Appeal No. 0720070010 (10/21/09). As a result, the EEOC awarded $200,000 in nonpecuniary (compensatory) damages and reinstatement with reasonable accommodation, not front pay as recommended by the administrative judge. Breach of Settlement Agreement In a recent decision, the EEOC held that the Transportation Security Administration breached a settlement agreement with a former security officer when it did not give him the same opportunity to pass a medical exam that it gave other applicants. Brooks v. Department of Homeland Security, EEOC Appeal No. 0120061417 (9/29/09). In an unpublished decision, the U.S. Court of Appeals for the 11th Circuit held that an employee who sees a poster in the workplace providing information on how to file an EEO complaint is on constructive notice of the deadline for filing such a complaint. Gaillard v. Shinseki, No. 09-11949, 2009 WL 3287524 (11th Cir. 10/14/09). Henry Gaillard worked for the VA until his termination in March 2004. He contacted an EEO counselor on July 12, 2005, to file a complaint of discrimination related to his termination. On September 22, 2009, the Equal Employment Opportunity Commission's Office of Federal Operations issued its decision in James v. Dept. of Agriculture, EEOC Appeal No.0120073831. The Commission ordered EEO training for the responsible management official (RMO) in that case, and recommended that the agency consider possible disciplinary action against the RMO, for the RMO's witness intimidation activities, even though the Commission did not ultimately find discrimination. Time Limits for EEO Complaints In a recent United States District Court decision, the court denied the Government Printing Office's motion to dismiss and waived an employee's untimely EEO contact and filing of a formal EEO complaint. Hairston v. Tapella, Civil Action No. 08-1531 (DDC Oct. 21, 2009). The employee worked for five years in the press division of the GPO production department. On August 24, 2006, the employee applied for a promotion, and he was notified in September 2006 that he was selected for the position. Eligibility for Sensitive Position In Crumpler v. Department of Defense, 2009 MSPB 224 (November 2, 2009), the Merit Systems Protection Board (Board) found that the rule in Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), limiting the scope of Board review of a removal based on the revocation of a security clearance, also applies to a removal from a "non-critical sensitive" position based on the employee's ineligibility to access classified information. Discrimination against Applicant The EEOC recently ruled that the State Department discriminated against an applicant for a junior office position with the Foreign Service because he was regarded as mentally disabled. Bitsas v. State Department, EEOC Appeal No. 0120051657 (9/30/09). In its final agency decision, the State Department had concluded that only 34 percent of posts worldwide would be able to provide adequate medical care for the complainant if he were to suffer a relapse of his psychiatric conditions. MSPB Clarifies Constructive Suspensions In Rutherford v. U.S. Postal Service, 2009 MSPB 214 (October 28, 2009), the Merit Systems Protection Board reversed the decision of its administrative judge who had affirmed the placement of the employee on enforced leave due to medical restrictions. The employee had claimed that she was placed on enforced leave when light duty, which had previously been given to her, was no longer available. The Board reiterated that termination of a light-duty assignment is not, per se, an adverse action that is appealable to the Board. Whistleblower Protection for Screener In a recent decision, the Merit System Protection Board (MSPB/Board) held that the Whistleblower Protection Act (WPA) protects disclosures of concerns with screening procedure changes implemented by the Transportation Security Administration (TSA/agency). See Miller v. U.S. Discrimination Claims Defeated On July 24, 2009, the Equal Employment Opportunity Commission's Office of Federal Operations issued a decision in Alford v. Department of the Navy, EEOC Appeal No. 0120080747, holding that Alford's claims of disability discrimination could not prevail over various legal requirements mandating seat belt use. Benefit of Doubt when Representing Oneself The United States Court of Appeals for the Fifth Circuit recently issued a decision that confirmed the notion that employees who file complaints without attorneys should be given the benefit of the doubt in their pleadings, to avoid improper dismissal of their claims. See Smith v. Department of Veterans Affairs, 2009 WL 2407192 (C.A.5 (La.)) (August 6, 2009). Damages for Sexual Harassment A recent EEOC decision helps to better define the amount of compensatory damages appropriate when an employee who has been victimized by discrimination or harassment suffers certain kinds of harm as a result. Board Clarifies Jurisdiction for Disabled Veterans The Merit Systems Protection Board recently clarified the threshold for establishing Board jurisdiction over a discrimination appeal arising under the Uniformed Services Employment and Reemployment Rights Act (USERRA). EEOC Sustains Discrimination Claim of FAA Employee The FAA committed discrimination when it refused to grant a temporarily disabled air traffic control specialist a three-month extension of her medical leave in late 2007, the EEOC has ruled. Edwards v. Peters, EEOC No. Mental Illness is Mitigating Factor The U.S. Court of Appeals for the Federal Circuit reversed the MSPB and found that a pro se appellant who was suffering from a mental impairment was entitled to have it considered as a mitigating factor in her removal. ADA Amendment Not Retroactive In a recent decision, the U.S. Court of Appeals for the District of Columbia Circuit held that the Americans with Disabilities Amendments Act (ADAAA) does not apply retroactively. On July 23, 2009, the U.S. Court of Appeals for the 9th Circuit issued its decision in Kraus v. Presidio Trust Facilities Division/Residential Management Branch (No. 07-17177). Reversing summary judgment by the district court, the 9th Circuit found that Kraus had timely initiated her EEO complaint within the 45-day deadline, even though the person she contacted did not have formal title of EEO "Counselor". Capitol Police Officers' Case Reinstated The U.S. Court of Appeals for the D.C. Circuit has revived the class action race-discrimination claims by black officers of the U.S. Capitol Police under the Congressional Accountability Act. Blackmon-Malloy v. U.S. Capitol Police Bd., 2009 WL 2341544 (DC Cir. July 31, 2009). MSPB Removal in Disclosure Case Upheld The MSPB held that an employee could not be required to complete a new NSPS probationary period in Dodson v. Navy, 2009 MSPB 113 (6/17/09). The appellant had been terminated because of her work performance and conduct during her NSPS probationary period. Without holding a hearing, the AJ dimissed the case for lack of jurisdiction as probationary employees have no appeal rights. NSPS Can't Impose New Probationary Period The MSPB held that an employee could not be required to complete a new NSPS probationary period in Dodson v. Navy, 2009 MSPB 113 (6/17/09). The appellant had been terminated because of her work performance and conduct during her NSPS probationary period. Without holding a hearing, the AJ dimissed the case for lack of jurisdiction as probationary employees have no appeal rights. Off-Duty Conduct Issue Addressed In an unusual case, the U.S. Court of Appeals for the Federal Circuit in a split decision reversed the MSPB and held that an FBI agent should not be fired for secretly taping his sexual encounters with three women, including two coworkers. Doe v. Dept. of Justice, No. 2008-3139 (Fed. Cir. 5/11/09). The majority opinion found that one of the tapings with a coworker was by mutual consent while the other two tapings were done secretly. Federal Legal Corners: Premium Pay for Part-time Employees The U.S. Court of Appeals for the Federal Circuit recently overruled the U.S. Court of Federal Claims in holding that part-time employees are entitled to Sunday premium EEOC Awards $75,000 in Damages In Coffee v. U.S. Department of Defense, EEOC Appeal No. 0720090012 (March 13, 2009), the Equal Employment Opportunity Commission reversed the agency's final order and upheld an administrative judge's award of $75,000 in nonpecuniary damages for emotional distress suffered because of race-based harassment by a co-worker. Attorney Fees in Settlement Upheld In Dahlman v. Consumer Product Safety Commission, EEOC Appeal No. 0720090004 (March 18, 2009) the Equal Employment Opportunity Commission ordered the agency to comply with the terms of a settlement agreement in which it agreed to pay attorney fees and costs to resolve a claim under the Equal Pay Act of 1963 (EPA), 29 U.S.C. EEOC Upholds Finding of Discrimination The Equal Employment Opportunity Commission's Office of Federal Operations upheld an administrative judge's (AJ) finding that the Department of Navy discriminated against an employee on the basis of race when it failed to select her for a position. Parker v. Navy, EEOC Appeal No. 0720080062 (2/26/09). Not only was the employee observably better qualified for the position, but the promotion process had many irregularities that supported the finding. Settlement Agreement Bars Disclosure On January 23, 2009, the Merit Systems Protection Board issued its decision in Cunningham v. Office of Personnel Management, 2009 M.S.P.B. 5. The Board found that OPM had breached its settlement agreement by disclosing adverse information regarding the appellant to a background investigator for a new employer in violation of a clean record provision in a settlement agreement with OPM. No Court Jurisdiction on Award Decision In a controversial split decision, a U.S. Court of Appeals held that a plaintiff could not challenge his failure to receive a coveted Presidential Rank Award that includes a monetary bonus because no adverse employment actions occurred. Douglas v. Donovan, (D.C. Cir. No. 07-5339, 3/17/09). The DC Circuit majority found that the plaintiff had no viable claim of race discrimination under the Civil Rights Act as any harm was speculative since the President makes the final decision. In its recent decision in Katz v. Department of State, Appeal Nos. 0720060024 and 0720060025 (3/26/09), the Equal Employment Opportunity Commission issued a number of important holdings concerning disability discrimination. In this case, the State Department denied Dara Katz the medical clearance she needed to qualify for an overseas assignment with the Foreign Service, and then denied her request for a waiver of the clearance. Hearing-Aid Policy for Court Officers Three recent federal court decisions foreshadow the likely forthcoming changes to a string of cases upholding the ban of hearing aids during annual physical testing for the Court Security Officers (CSO) of the U.S. Marshals Service (USMS). As background, it should be understood that this ban was first implemented in 2002 by the USMS through an annual physical test for the CSO position, which includes a hearing test. EEOC Issues Decisions on Sanctions The Equal Employment Opportunity Commission recently issued several important decisions concerning sanctions. Most recently, in Waller v. U.S. Department of Transportation, EEOC Appeal No. 0120030069 (February 26, 2009), the Commission denied the agency's request for reconsideration of its prior decision in that case, EEOC Appeal No. 0720030069 (May 25, 2007), affirming the administrative judge's (AJ's) issuance of sanctions, including monetary sanctions, against the agency. In Pedeleose v. Dept. of Defense and OPM, 2009 MSPB 16 (February 12, 2009), (Pedeleose II), the Merit Systems Protection Board reversed it holding in Pedeleose v. Dept. of Defense, 107 MSPR 191 (2007), (Pedeleose I), which overturned the appellant's 30-day suspension for failure to cooperate in an agency investigation, insubordination and failure to follow instructions. In Pedeleose I, the Board expanded the exception to the "obey now, grieve later" rule to increase the situations in which employees may refuse to comply with supervisory instructions without fear of discipline. In Pedeleose II, the Board now holds that the expansion of the rule was unwarranted. The rule was rolled back, and Pedeleose's suspension affirmed. Protection Against Retaliation On January 26, 2009, a unanimous U.S. Supreme Court held that an employee may state a viable retaliation claim when she answers questions from her employer about harassment in the workplace. The claim may still be valid even if the employee did not ever file a harassment charge or initiate the internal investigation that led to questioning her. The EEOC recently awarded both compensatory and pecuniary damages based on a hostile work environment on the basis of sex (female) where the complainant was falsely accused of being sexually involved with a manager and was referred to by an offensive nickname. Hensley v. TVA, EEOC Appeal No. Letter to Civil Rights Office Timely Contact On December 1, 2008, a U.S. Court of Appeals held that a federal employee's letters to the director of her agency's civil rights office complaining of discrimination satisfied the rule requiring federal workers to contact an internal EEO counselor within 45 days of alleged discrimination. Culpepper v. Schafer, 8th Cir., No., 07-3824. Regulation Violates Veterans Preference In Gingery v. U.S. Department of Defense, Opinion No. 2007-3292 (Fed Cir. 2008), the United States Court of Appeals for the Federal Circuit reversed a Merit Systems Protection Board (MSPB) decision ruling that the Department of Defense did not violate the petitioner's rights under the Veterans Employment Opportunities Act (VEOA) of 1998. MSPB Upholds Former Park Police Chief's Removal On January 8, 2009, in Chambers v. Department of the Interior, 2009 MSPB 3, the Merit Systems Protection Board (MSPB) sustained a removal after reviewing a case remanded by the U.S. Court of Appeals for the Federal Circuit and failing to reach an agreement concerning whether the appellant's disclosures to the Washington Post were "protected" under the Whistleblower Protection Act (WPA). On January 27, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (Public Law 111-2). The new law reversed the Supreme Court's decision in Ledbetter v. Goodyear Tire and Rubber Co., 550 U.S. 618 (2007), restoring major protection to employees suffering from pay discrimination. Hearing Ordered in Whistleblowing Case In Swanson v. General Services Administration, 2008 MSPB 246 (Dec. 4, 2008), the Board overturned an administrative judge's decision which had held that Mr. Swanson was not a protected whistleblower. This issue turned on whether Mr. Swanson has presented evidence of a reasonable belief that the agency official on whom he "blew the whistle" engaged in gross mismanagement. The Board held that he did. Elimination of Time-in-Grade Requirement On November 7, 2008, the Office of Personnel Management (OPM) published a final rule eliminating the 52-week time-in-grade restriction for promotions in the competitive service. The rule will become effective March 9, 2009. Recommended Changes to EEOC Regulations and Procedures This is the second of two articles on suggested changes to the EEOC federal sector regulations and procedures. Given the upcoming change in administrations, this article will recommend specific changes to improve the practice and procedure in handling federal employees' complaints. Damages Award for Sexual Harassment In Holmes v. Department of Veterans Affairs, EEOC Appeal No. 0120082790 (September 29, 2008), the EEOC's Office of Federal Operations (OFO) awarded the complainant $65,000 for non-pecuniary damages where there was a finding of unlawful harassment against the Department of Veterans Affairs. The complainant worked as a part-time housekeeping aide at the agency's medical center facility in Detroit, Michigan. While the complainant filed an EEO complaint alleging that he was subjected sexual harassment by his first level supervisor, the agency issued a final decision finding no discrimination. In Harris v. Office of Personnel Management, 2008 MSPB 240, Docket No. CH-844E-08-0308-I-1 (November 13, 2008), the Board affirmed OPM's decision denying an application for disability retirement benefits because the applicant failed to establish that she was disabled from useful and efficient service in her position. Breach of Settlement, But No Remedy Ms. Markey filed, Ms. Markey filed a petition for enforcement with the MSPB. In her petition, Ms. Markey requested that the terms of the settlement remain in force, but that the agency either be "sanctioned" for the disclosure or that her IRA appeal be reinstated. For its part, the agency denied that the disclosure was a breach of the settlement and argued that the terms of the settlement were ambiguous or that, if there was a breach, the breach was not "material." Reporting Suspected Illegal Activity The U.S. Court of Appeals for the Federal Circuit recently decided that an employee of the United States Agency for International Development (USAID) had legal protection when he disclosed possible on-duty intoxication of his coworkers to an agency official. Drake v. AID, No. 2008-3048 (10/7/08). The case was remanded to the Merit Systems Protection Board for further proceedings. Suspension for Time Served Reversed The U.S. Court of Appeals for the Federal Circuit recently reversed an arbitrator's decision which had reduced the penalty of removal to a suspension of "time served." Greenstreet v. SSA, No. 2007-3312 (9/24/08). The arbitrator issued his written decision 342 days after the grievant's termination and ordered him reinstated without back pay. In his petition for review, the employee asserted that the "effect of the arbitrator's decision was a 342-day 'time served' suspension, the length of which was arbitrarily determined by the time that the arbitrator took to issue a decision." Constructive Notice Bars Summary Judgment On September 2, 2008, the U.S. Court of Appeals for the 8th Circuit issued its decision in Jenkins v. Winter, Secretary of the Navy, Case No. 07-2049. The 8th Circuit reversed the trial court's grant of summary judgment and remanded the case for trial. FBI Case Certified as Class Action On August 2, 2007, a group of more than 100 police officers for the Federal Bureau of Investigation (FBI) filed a class action complaint in the U.S. Court of Federal Claims alleging that the FBI has not complied with a 2002 statute that would have given them the same pay and benefits as members of the Uniformed Division of the United States Secret Service. If successful in their suit, the officers will receive back and future pay and benefits. Practical Implications of ADA Amendments On September 25, 2008, The Americans with Disabilities Act (ADA-AA) was signed into law by President Bush. The law's effective date is January 1, 2009. The ADA-AA was created in response to several United States Supreme Court cases where the court's interpretation of the ADA limited the protection that the ADA was supposed to guarantee disabled Americans. The Supreme Court's rigid construction of the terms "disability" and "substantially limits a major life activity" significantly restricted the reliance on the ADA by disabled Americans in providing equal employment opportunities. The U.S. District Court for the District of Columbia recently found that the Library of Congress violated Title VII of the Civil Rights Act when it decided not to hire a qualified applicant who had disclosed to the selecting official that she was a transsexual and intended to transition from a male to a female. Schroer v. Librarian of Congress, Civil Action No. 05-1090 (September 19, 2008). In Caldwell v. Johnson, Environmental Protection Agency, No. 05-1706 (Aug. 15, 2008), the United States Court of Appeals for Fourth Circuit held that Supreme Court's ruling in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006), which lowered the burden for private sector plaintiffs alleging retaliation, also applies to federal employees. Under White, an employee need not suffer an "adverse action" to establish a prima facie case of retaliation, but instead must show only that a reasonable employee would have found the challenged action "materially adverse," meaning that "it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Resignation Reversed Due to Misinformation In Aldridge v. Dept. of Agriculture, MSPB Doc. No. DC-0752-07-0821-I-1 (Sept. 10, 2008), the agency proposed to remove Ms. Aldridge on various allegations of misconduct. Prior to the issuance of a decision on the proposed termination, Ms. Aldridge retired under a voluntary early retirement program. Subsequently, Ms. Aldridge filed an EEO complaint alleging that her retirement was really involuntary as a result of the agencys failure to accommodate her disabilities. In responding to the MSPB judges order to present evidence showing her resignation was involuntary, Ms. Aldridge provided a sworn declaration that her supervisors and the Human Resources official told her that if she did not resign, and was instead fired, she would lose her retirement benefits. Although Ms. Aldridges supervisor said that she had written the decision letter terminating Ms. Aldridge, the supervisor refused to allow Ms. Aldridge to see the letter before requiring her to make the decision to retire or not. In order to preserve her retirement benefits after more than 28 years of government employment, which benefits Ms. Aldridge was told she would lose if terminated, Ms. Aldridge submitted her resignation. Alleged Discrimination in Non-selection The Office of Federal Operations (OFO), EEOC, reversed its administrative judge (AJ) on appeal and held that she had improperly granted summary judgment to the agency in Price v. Dep't of Transportation (Federal Aviation Administration), Appeal No. 0120070693 (8/29/08). The case arose as a result of the FAA Chief Counsel's determination to promote attorneys within the agency. Regional, Center and Assistant Chief Counsels were invited to submit one attorney for promotion. In October 2004, the Chief Counsel announced the promotion of 13 attorneys to the Senior Attorney position. The Southwest Regional Counsel recommended two attorneys, including the complainant, but neither was promoted. Employee Illegally Regarded as Disabled The EEOC reversed a final agency decision and upheld its own administrative judge’s (AJ’s) finding that a temporary social worker was fired illegally after the VA insisted that the medication she took rendered her unable to drive, despite evidence to the contrary. Dremmel v. Dept. of Veterans Affairs, EEOC Appeal No. 0720060044 (7/16/08). The appellant’s personal physician insisted that the medication she was taking for chronic pain – MS Contin – did not affect her ability to drive as her position required her to drive to veterans’ homes within a 30-mile radius of the medical center. In its decision, the EEOC noted that Ms. Dremmel had performed well in prior positions where she was required to drive a car TSA Not Immune To Rehabilitation Act Claims On August 6, 2008, the Equal Employment Opportunity Commission issued its decision in Chapman v. Dept. of Homeland Security, EEOC Appeal No. 0120051049. The Commission held the Transportation Security Administration (TSA) was not immunized from the Rehabilitation Act by its enacting statute. No Compensatory Damages Under ADEA In Collazo v. Department of Veterans Affairs, No. 06-2678 (1st Cir. July 24, 2008), the First Circuit United States Court of Appeals held that compensatory damages for pain and suffering are not available under the Age Discrimination in Employment Act. (ADEA), 29 U.S.C. 621-634. The appellant worked at the San Juan VA Medical Center for several years in various capacities. In August 1998, he was promoted to the position of patient services assistant. It was during this time, while the appellant was in his sixties, that he contends his supervisor threatened and directed age-discriminatory remarks at him, resulting in the appellant filing four incident reports and two VA police reports. Cooperating in EEO Investigations A federal employee who chose not to participate in her agency’s investigation of her EEO complaint found herself without a right to file a lawsuit against the agency because she "failed to exhaust" her required administrative remedies. That was the ruling of the U.S. Court of Appeals for the Fourth Circuit in an unpublished opinion in Austin v. Winter, No. 06-1745, July 11, 2008. Disability Discrimination by State Department In Adams v. Rice, 531 F.3d 936 (D.C. Cir., 2008), a U.S. Court of Appeals reserved a lower court decision granting summary judgment in favor of the State Department on grounds that the appellant has a "record of" an impairment breast cancer -- that substantially limited her sexual relations, which the D.C. Circuit determined was a major life activity under the Rehabilitation Act of 1973. The court of appeals remanded the case to the lower court for further proceedings. Court Limits 'Cat's Paw' Doctrine It is well established that an employer's decision cannot be said to be free of discrimination, even if the decision maker was motivated by a legitimate concern, if the decision maker was relying upon negative information from another employee motivated by unlawful discriminatory or retaliatory animus. This is known as the "cat's paw" doctrine. Breach of Last Chance Agreement In Lizzio v. Department of the Army, No. 2007-3224 (Fed. Cir. 7/16/08), the Federal Circuit U.S. Court of Appeals reversed the Merit Systems Protection Board and held that MSPB erroneously relied on a different ground for breach of the settlement agreement than its AJ. Untimely Disability Retirement Application In Mendiola v Office of Personnel Management, the U.S. Court of Appeals for the Federal Circuit held that the appellant did not establish that he was mentally incompetent for the purpose of excusing the one-year deadline for filing a disability application after separation. No. 2008-3014, 2008 WL 2510614 (Fed. Cir. 2008) (nonprecedential). The appellant was a machine tool operator at Kelly Air Force Base until he was separated from service on September 11, 1999. In June 2005, the appellant filed a CSRS disability retirement application. Applications for CSRS disability retirement must be filed with the Office of Personnel Management (OPM) before separation from service or within one year thereafter. See 5 U.S.C. §8337(b). This requirement is only waived when the former employee was mentally incompetent within one year after separation. Sleep Impairment a Disability Under Rehabilitation Act On July 1, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Desmond v. Mukasey, Case No. 07-5139. Reversing a decision on summary judgment by the district court, the D.C. Circuit held the claim that sleep disruption constitutes a disability under the Rehabilitation Act sufficiently meritorious as to survive summary judgment. Complainant's Role in EEO Investigation--Part 2 This is the second of a two-part series on the burdens and responsibilities of complainants in EEO investigations. Discrimination Due to Disability The U.S. District Court for District of Columbia granted partial summary judgment against the Internal Revenue Service (IRS) in Bergman v. Paulson, Secretary of the Treasury, Case No. 06-303, decided May 1, 2008, finding the IRS discriminated against plaintiff because of her disability in violation of the Rehabilitation Act of 1973. The court began its decision by stating that this case presents a "bizarre situation." The plaintiff was a "highly qualified and experienced specialist in tax law" employed at a GS-14 level, with no substantive work to do, which the IRS did not deny. Because of the lack of substantive work, plaintiff's mild and controllable depression was exacerbated into a case of severe chronic depression. Therefore, the plaintiff sought as a reasonable accommodation a transfer to the IRS Office of Chief Counsel where she had worked at an earlier time "with distinction." The doctor hired by the IRS to examine the plaintiff's medical records "recommend from a medical point of view" that the IRS accommodate her "with a position appropriate to her legal and educational background if there is such a position available in your agency." Hatch Act On June 2, 2008, the Supreme Court issued its decision in Richlin Security Service Co. v. Chertoff, 553 U.S. _______, Case No. 06-1717 (Slip. Op.). Overturning the Federal Circuit, the Supreme Court held that the Equal Access to Justice Act (EAJA) permits paralegal fees recovery at market rates, and not just at the actual costs to the attorney. Discrimination Due to Age, Union Activities The Federal Labor Relations Authority (FLRA) recently upheld an arbitrator's decision which found discrimination due to protected union activities and age in U.S. Government Printing Office (GPO) v. International Brotherhood of Electrical Workers (IBEW), Local 121, 62 FLRA No. 80 (May 14, 2008), and awarded the grievant a retroactive promotion with back pay and attorney fees to the union. The arbitrator noted that the grievant, a union steward, had been denied a promotion for an electrician leader position after having filed numerous grievances and EEO complaints and was given a lower performance rating "to make [the grievant's] candidacy for promotion less viable and to retaliate for his protected challenges to supervisory authority." The arbitrator rejected the agency's asserted reasons for not selecting the grievant and found them to be pretext for unlawful discrimination as he had served as the acting electrician leader in the past without incident EEOC Finds Disability Discrimination The EEOC recently held that the Department of Homeland Security (DHS or agency) improperly used its vision standard to disqualify an individual from employment as a detention enforcement officer (DEO) without making any determination as to his ability to perform the job's essential functions with or without a reasonable accommodation. Poquiz v. Homeland Sec. Dep't, EEOC Appeal No. 0720050095 (2008). The complainant has limited vision in his right eye due to a previous injury. After the Bureau of Prison waived its vision standard, the complainant was hired as a correctional officer (CO). Subsequently, the complainant applied for a DEO position with DHS, and he was hired subject to medical and security clearances. In Garg v. Potter, No. 07-2377 (7th Cir. April 4, 2008), a U.S. Court of Appeals held that when an employee alleges that an adverse action was taken in violation of the Rehabilitation Act, but fails to challenge whether the employer provided reasonable accommodation, then the adverse action will not be overturned. The court affirmed the district court's grant of summary judgment in favor of the U.S. Postal Service. Establishing a Discrimination Case The United States Court of Appeals for the District of Columbia recently held that the question of whether a plaintiff in a discrimination suit made out a prima facie case under McDonnell Douglas v. Green, 411 U.S. 793 (1973), "is almost always irrelevant" when the district court considers an employer's motion for summary judgment or decides a case at trial. See Brady v. Office of Sergeant at Arms, Case No. 06-5362 (March 28, 2008). Typically, under McDonnell Douglas, which sets forth the burden of proof for Title VII cases, a plaintiff must establish a prima facie (at first glance) case by showing that he/she was treated worse than someone not in his/her protected class before the burden shifts to the employer to set forth its reason for the challenged action. The D.C. Circuit, however, called the prima case "a largely unnecessary sideshow" that wastes litigant and judicial resources. Removal Upheld Despite Dispute In Meza v. Department of Homeland Security, (Fed. Cir. No. 2007-3150, April 23, 2008), the U.S. Court of Appeals for the Federal Circuit upheld the removal of an INS criminal investigator after he allegedly tested positive for cocaine, notwithstanding contrary evidence. Because the Merit Systems Protection Board administrative judge who heard the evidence concluded that the relevant evidence supported the allegation, the court said it could not overturn the decision. Pay Discrimination Bill Stalls In July, 2007, the U.S. House of Representatives passed the Lilly Ledbetter Fair Pay Act but the bill has now stalled in the Senate. The bills purpose is to restate the law as it had been interpreted for years before the Supreme Courts decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2176 (2007). In DeCaire v. Mukasey, 07-1539 (1st Cir. 2008), the U.S. First Circuit Court of Appeals reversed a district courts decision which ruled against a plaintiff by, among other things, making various errors in law, and using the Judges own opinion as to managements reasons for the adverse actions. This case provides an excellent review of the governing burden of proof in discrimination and retaliation cases. Rushed Resignation Not Coercive On March 12, 2008, the U.S. Court of Appeals for the Federal Circuit issued its decision in Parrott v. Merit Systems Protection Board, Case No. 2007-3119. The Federal Circuit affirmed the Merit Systems Protection Board (MSPB) dismissal of Parrott's appeal for lack of MSPB jurisdiction over his constructive removal claims. In Ikossi v. Department of Navy, No. 05-5456 (DC Cir. 2/29/08), the federal court of appeals for the District of Columbia Circuit reversed a district court, finding there was jurisdiction over a mixed-case appeal but that pre-termination EEO claims were untimely, and remanded the case for discovery. Plaintiff Awarded Attorney's Fees A federal district court in Pennsylvania held that a plaintiff who succeeded on one of multiple claims was a "prevailing party" and entitled to an award of attorney's fees and costs even though the relief awarded did not directly remedy the harm. Hare v. Potter, No. 02-CV-7373 (E.D. Pa. February 12, 2008). In Baird v. Department of Army, No. 2007-3046 (Fed. Cir., Feb. 26, 2008), in a split decision the court remanded back to the Merit Systems Protection Board (MSPB or Board) the case of a civilian employee who tested positive for marijuana in a random drug test and had been removed from employment. The court found that proper legal process was not followed, thereby denying the employee the required chance to prove her case. The Board had not allowed the employee the discovery she had requested, and the court found this improper. Withdrawing Commitment to Retire In Douglas v. Department of Defense, 2008 MSPB 48 (3/5/08), the The appellant was employed at a Defense Finance and Accounting Service (DFAS) facility in Norfolk, Virginia, which was scheduled for closure. The agency informed employees who were eligible for retirement that they could retire with a buyout under the terms of the VSIP. The agency required those who chose the VSIP to sign a VSIP agreement no later than September 15, 2006. The appellant elected to retire and signed the VSIP agreement on August 31, 2006. Then, on September 18, 2006, only three days after the closure of eligibility for the VSIP, the agency announced that it would retain 15 positions. Whistleblower Jurisdiction Found The U.S. Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board (MSPB), holding that the Board erred when it dismissed a case alleging reprisal for whistleblowing. Johnston v. MSPB, No. 2007-3167 (Fed. Cir. 3/3/08). The court found that "Because we conclude Johnston's allegations of reprisal for disclosures protected under the Whistleblower Protection Act of 1989 ("WPA"), 5 U.S.C. § 2302(b)(8), were sufficient to establish board jurisdiction, we reverse and remand." Disclosing Danger to Public Safety The U.S. Court of Appeals for the Federal Circuit in a split decision ruled in favor of Teresa Chambers' challenge to her removal as Chief of the U.S. Park Police. The appeals court ruling found that public employees are protected when raising warnings about "a risk to public safety." Chambers v. Dept. of the Interior, No. 2007-3050 (Fed. Cir. Feb. 14, 2008). It was an incomplete victory for Ms. Chambers, however, as the court remanded the case back to the Merit Systems Protection Board (MSPB or Board) for a decision. Attorney Fees for Compliance Proceeding In Mynard v. Office of Personnel Management, 2008 MSPB 23 (1/31/08), the appellant petitioned for review of the initial decision dismissing his motion for attorney fees relating to the merits phase of his retirement appeal as untimely filed and denying his motion for attorney fees relating to the compliance phase of his appeal on the basis that his petition for enforcement did not result in the issuance of an enforceable judgment. It is rare when the MSPB finds that an employee's retirement in lieu of accepting a directed reassignment is involuntary. TSA Found Liable for Discrimination An EEOC administrative judge from the Baltimore field office recently issued a decision in favor of complainant Linda G. Gaston, who is represented by Debra A. D’Agostino of Passman & Kaplan, P.C., finding the U.S. Department of Homeland Security, Transportation Security Administration (TSA), liable for sex discrimination. Time Off to Attend Depositions TIn Wiley v. Glassman, 2007 WL 4354431, C.A.D.C. No. 06-5402 (December 14, 2007), the U.S. Court of Appeals for the District of Columbia Circuit held that the Broadcasting Board of Governors (BBG), (formerly known as the U.S. Information Agency), did not retaliate against Ms. Wiley when it denied her the use of administrative time (often called "official time") to attend the depositions of witnesses in her EEO lawsuit, and instead forced her to use her own annual leave. Ms. Wiley’s claim of reprisal was dismissed. Enforcing EEOC Settlement in Court The Tenth Circuit of the U.S. Court of Appeals has affirmed a lower court’s ruling that the Equal Employment Opportunity Commission regulations (29 C.F.R. § 1614) regarding enforcement of settlement agreements do not permit an employee to file suit to challenge an agency’s compliance with a settlement agreement. Lindstrom v. United States of America, No. 06-8059, 2007 WL 4358287 (10th Cir. Dec. 14, 2007). Allowable Questions to Job Applicants On December 11, 2007, the Merit Systems Protection Board (MSPB) issued a split decision reversing the removal of a federal air marshal in Evans v. Department of Homeland Security, 2007 M.S.P.B. 297. In a split decision, the Merit Systems Protection Board (MSPB) upheld the Office of Personnel Management's (OPM) denial of a survivor annuity to a surviving spouse, born and raised in the Philippines whose native language is Tagalog, and who had signed a Spouse's Consent to a Survivor Election Form (SF-2801-2), waiving her right to a survivor annuity. Settlement of Retirement Disputes The General Principles set forth in the OPM Guidelines for Settlement of Federal Personnel Actions Involving Civil Service Retirement Benefits found at opm.gov state that "The Retirement Trust Fund is not a Litigation Settlement Fund" and that "A Settlement may not provide Retirement Benefits Beyond What a Court or Administrative Body Could Order as Relief in the Litigation." Exhaustion of Administrative Remedies In her Title VII case, the plaintiff, Roxanne K. Symko, alleged that her former employer, the United States Postal Service (USPS), illegally discriminated against her. Board Remands Disability Retirement Case In Hartsock-Shaw v. OPM, 2007 MSPB 222, Docket No. PH-844E-06-0658-I-1, September 21, 2007, the Board vacated the administrative judge's (AJ) initial decision to uphold the Office of Personnel Management's (OPM) denial of appellant's application for disability retirement benefits. Attorney Fees Awarded Where Penalty Mitigated In Miller v. Department of the Army, 2007 MSPB 211 (9/7/07), the Merit Systems Protection Board awarded attorney fees in split decision where a female GS-7 Inspector General Investigative Specialist had been removed for conduct unbecoming a federal employee. Pre-Enactment USERRA Jurisdiction Affirmed By Federal Circuit On August 27, 2007, the United States Court of Appeals for the Federal Circuit reversed in part the Merit Systems Protection Board's decision in Hernandez v. Dept. of the Air Force, 102 M.S.P.R. 515 (2006). In Juergensen v. Department of Commerce, EEOC Appeal No. 0120073331 (October 5, 2007), the Equal Employment Opportunity Commission found that the agency dismissed a discrimination complaint in violation of Title VII of the Civil Rights Act of 1964, as amended. Adverse Action Not Permitted for Use of Approved Leave In Ryan v. Department of the Air Force, 2007 M.S.P.R. 240 (October 4, 2007), the MSPB overturned the agency’s removal of the appellant on charges of excessive use of leave. High Court to Decide Reprisal Issue You are a federal employee. You file a complaint of age discrimination under the Age Discrimination in Employment Act, (ADEA), against your supervisor, as you have the legal right to do. Your supervisor then retaliates against you for filing the age discrimination complaint. Here is the question: Does the ADEA protect you against retaliation? Put another way, can you file an EEO complaint alleging that the act of retaliation for filing the age complaint was illegal and seek a remedy from the courts? The Answer: It depends where you live. EEOC Sanctions Agency with Attorney Fees In Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), the Equal Employment Opportunity Commission (EEOC) found that that an administrative judge (AJ) properly exercised her discretion, and acted consistent with commission regulations, the MD-110, and commission precedent in ordering the agency to pay attorney fees as a sanction for the agency’s failure to fully respond to discovery requests. Modification of Work Schedule as Reasonable Accommodation In Boozer v. U.S. Postal Service, EEOC Appeal No. 0120060283 (July 24, 2007), the Equal Employment Opportunity Commission (EEOC or Commission) held that a modified work schedule relating to an employee’s commute may constitute a reasonable accommodation under the Rehabilitation Act of 1973, as amended. Agency Liable for Actions of Subordinate Employee The U.S. Court of Appeals for the Ninth Circuit recently held that a subordinate employee’s pervasive discriminatory influence on an otherwise independent investigation may impute liability on the employer. Poland v. Department of Homeland Sec., 9th Cir., No. 05-35508 (7/20/07). Application of Rehabilitation to TSA In Getzlow v. Department of Homeland Security, EEOC Appeal No. 0120053286 (June 26, 2007), the Equal Employment Opportunity Commission (EEOC) held that the employment qualification standards created pursuant to the Aviation and Transportation Act (ATSA) supersede the requirements under the Rehabilitation Act of 1973, as amended. On August 2, 2007, a group of more than 100 police officers for the FBI filed a class action complaint in the U.S. Court of Federal Claims for millions of dollars of back and future pay. Failure to Sign Medical Release On July 6, 2007, in Vickers v. Powell, Chairman, Federal Deposit Insurance Corporation, No. 06-5016, the United States Court of Appeals for the District of Columbia Circuit determined that a Merit Systems Protection Board (MSPB) decision, finding appellant’s refusal to sign a medical release form that did not protect her privacy interest was a firing offense, was arbitrary and capricious. Definition of “Disability” under the Rehabilitation Act A recent case decided by the U.S. Court of Appeals for the First Circuit highlighted the standard for what constitutes a “disability” under the Rehabilitation Act. Telecommuting as Reasonable Accommodation On July 10, 2007, a District of Columbia federal judge ordered the Department of Commerce to pay $303,881 in additional relief for Lisa Bremer, a disabled federal employee, who worked at the Department of Commerce until the Department revoked her right to telecommute three days a week. (Bremer v. Gutierrez, D.D.C. No. 1:03CV01338). EEOC Awards Substantial Compensatory Damages The EEOC recently issued two decisions awarding substantial compensatory damages for pain and suffering to the employees. In Koch v. Cox, Securities and Exchange Commission, -- F.3d. --, 2007 WL 1713354 (C.A. D.C. June 15, 2007), the U.S. Court of Appeals for the District Court of Columbia Circuit held that a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression for which he is not seeking damages. MSPB Limits Disclosure of Information A recent decision by a divided panel of the Merit Systems Protection Board (MSPB) could have a chilling effect on the ability of federal employees to use information or documents, obtained through the course of employment, in support of discrimination complaints against agencies. Court Remands Case for Review of Suggestion Award In Cooley v. United States, No. 06-284C (May 25, 2007), the U.S. Court of Federal Claims remanded a case that alleged the Social Security Administration (SSA) breached an implied-in-fact contract when it adopted suggestions made through the agency’s Employee Suggestion Program (ESP) without giving an appropriate award. U.S. District Court Denies Summary Judgment In Lavorgna v. Potter, W.D. Pa., No. 05-1610 (April 18, 2007), the Chief District Judge denied the government’s motion for summary judgment to dismiss a Civil Rights Act Title VII allegation that a 14-day suspension was unlawfully motivated by the employee’s gender. Breach of Settlement Agreement On May 15, 2007, the United States Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board’s decision in Lutz v. United States Postal Service, No. 06-3154, finding that the agency materially breached a settlement agreement that was to resolve his Board appeal. Employment Application Statements In a two-to-one decision, The U.S. Merit Systems Protection Board recently reaffirmed some cardinal rules about what it takes for an agency to prove that an employee intentionally falsified an employment application. Breach of Settlement Agreement In Greenhill v. Dept. of Education, D.C. Cir. No. 06-5030 (April 6, 2007), the United States Court of Appeals for the District of Columbia Circuit held that a former federal employee’s claim for a breach of a Title VII settlement agreement was a contract claim (in excess of $10,000) and thus was under the exclusive jurisdiction of the Court of Federal Claims. Revocation of Accommodation May Be Discriminatory The U.S. Court of Appeals for the D.C. Circuit recently held that revocation of some job accommodations may be discriminatory. Court Finds No Adverse Employment Action or Reprisal The Eighth Circuit U.S. Court of Appeals upheld summary judgment in Higgins v. Gonzales, 8th Cir., No. 06-2556 (3/20/07), finding no discrimination or retaliation. Arbitral Review of Adverse Actions, Part 1 Undoubtedly today a significant number of adverse action appeals that would otherwise be heard by the Merit Systems Protection Board (MSPB) are instead being heard by arbitrators. This article is the first installment of a series which will examine the role of arbitrators in reviewing federal sector adverse action appeals. Temporary Demotion States Cause of Action In Bryant v. Leavitt, Civil Action No. 05-250, decided on February 22, 2007, the U.S. District Court for the District of Columbia denied the Department of Health and Human Services’ motion for summary judgment on age and race discrimination claims. Mediation is not being fully utilized in federal employee cases despite previously being given strong support by the Congress and the executive branch. Violation of Due Process Rights Found The Merit Systems Protection Board was called to task by the Federal Circuit U.S. Court of Appeals in Kelly v. Dept. of Agriculture, Slip Copy, 2007 WL 786351 (C.A. Fed. March 12, 2007) (non precedential) for not finding a violation of the employee’s due process rights. How Alternative Dispute Resolution Works Alternative dispute resolution (ADR) is a number of different methods for resolving cases which has many advantages over litigation. Retaliation Not Covered in Age Discrimination Case The U.S. Court of Appeals for the First Circuit held in a recent decision that federal employees are not protected from retaliation for bringing claims under the Age Discrimination in Employment Act (ADEA). Tolling of Deadlines for Filing Veterans Preference Complaints In Kirkendall v. Department of the Army, No. 05-3077, (Fed. Cir. Mar. 7, 2007), the Court of Appeals for the Federal Circuit issued a split en banc decision that allowed “tolling” or extension of deadlines for complaints filed under the Veterans Employment Opportunities Act (VEOA). Lateral Transfer Can be Adverse Job Action In Czekalski v. Peters, D.C. Cir. No. 05-5221 (2/02/07), the U.S. Court of Appeals for the District of Columbia held that the reassignment of a female Senior Executive Service employee in the Federal Aviation Administration from supervising 960 employees and a $400 million budget to supervising fewer than 10 employees and little or no budget was an adverse employment action. Whistleblower Legislation Advances in Congress The House Committee on Oversight and Government Reform has advanced very significant whistleblower rights legislation which would expand protection for federal employees. High Court Accepts Discrimination Case The U.S. Supreme Court has agreed to consider a D.C. Circuit decision holding that the speech and debate clause of the U.S. Constitution did not bar federal courts from hearing a Senate staffer’s employment law complaint against a former U.S. senator. Partial Award of Attorney Fees In Del Prete v. United States Postal Service, 2007 WL 138030 (MSPB January 18, 2007), the employee appealed his removal, alleging that he did not engage in the charged misconduct, and that the penalty of removal was unreasonable. TSA Screener Applicants Exempt from Rehabilitation Act In a recent Eleventh Circuit Court of Appeals decision, the court held that the Transportation Security Administration (TSA) is exempt from the Rehabilitation Act in hiring decisions with regard to disability. Tax Consequences of 'Make Whole' Remedy In a recent decision from the EEOC Office of Federal Operations, the Commission reiterated its position on the remedies available to employees who prevail on discrimination claims involving back pay awards. Breach of Settlement Agreement Found The U.S. Court of Appeals for the Federal Circuit recently held that the U.S. Postal Service materially breached a settlement agreement by failing to timely provide documents necessary for the appellant’s disability retirement application. MSPB Finds Violation of the Hatch Act In Special Counsel v. Wilkinson, MSPB Docket No. CB-1216-06-0006-T-1 (December 14, 2006), the Board reversed an administrative law judge's recommended decision finding that the respondent did not violate the Hatch Act and denying the Office of Special Counsel’s request for disciplinary action. The Board found that the respondent violated the Hatch Act and remanded the appeal to the ALJ to determine the appropriate penalty. Going Straight to Court with EEO Complaint In a recent decision on reconsideration by a federal judge in the District of Columbia, a federal worker was allowed to take his case directly to federal court 180 days after he filed an EEO complaint with the agency. In Brown v. Broadcasting Board of Governors, No. 05-3149 (D.D.C. Nov. 17, 2006), the plaintiff filed a complaint against the Broadcasting Board of Governors for discrimination on the basis of his race and reprisal for prior EEO activity. Cristian Brown claimed the agency discriminated against him when they failed to select him for two positions as an Assistant Internet Design Coordinator. Tenure Rights of Transferred Employees (Wednesday, Jan 3, 2007) Effect of Refusal of Accommodation (Dec 27, 2006) EEO Complaint Deadline Extended (Wednesday, Dec 20, 2006) Division of Survivor Annuities (Wednesday, Dec 13, 2006) Time Is of the Essence in Mixed Cases (Wednesday, Nov 29, 2006) MSPB Weighs Veterans Preference (Wednesday, Nov 22, 2006) Federal Circuit Reaffirms Scope of MSPB Jurisdiction (Wednesday, November 15, 2006) Suits against Employees Debated before High Court (Wed, November 08, 2006) Right to File EEO Complaint (Wednesday, November 01, 2006) MSPB Supports OPM’s Denial of Disability Retirement (Wednesday, October 18, 2006) Split MSPB Denies Whistleblower Status (Wednesday, October 11, 2006) How to Seek EEO Counseling and File a Formal Complaint (Wed, October 04, 2006) EEOC Issues Default Judgment (Wednesday, October 25, 2006) Expert's View: Are You Ready to Retire? (Wednesday, September 27, 2006) Court Reverses Whistleblower's Reprimand (Wednesday, September 27, 2006) Even if You’re Not Harmed, It Could Hurt (Wednesday, September 20, 2006) MSPB Finds Postal Worker Entitled to Disability Retirement (Wednesday, September 13, 2006) Waiver of EEO Complaint Filing Deadline (August 16, 2006) Obligation to Exhaust Administrative Remedies (August 02, 2006) Reasonable Accommodation (July 26, 2006) Court Denies Attorney Fees (July 19, 2006) Disclosure of Medical Documents (July 12, 2006) HIV-Positive Applicant Entitled to Jury Trial (July 05, 2006) Cat's Paws and Rubber Stamps (June 21, 2006) Court Revives Claim for Co-Worker Sexual Harassment (June 14, 2006) Postal Service Employee Entitled to Disability Retirement (June 07, 2006) Pecuniary Damages in EEOC Award (May 24, 2006) Nonfrivolous Whistleblower Allegation (May 17, 2006) EEOC Upholds Denial of Equal Pay Claim (May 10, 2006) Light at the End of the Tunnel for Whistleblowers? (May 03, 2006) How to State an EEO Retaliation Claim (April 26, 2006) Appeal Rights in Involuntary Resignation (April 19, 2006) Inference of Discrimination (April 12, 2006) Jury Verdict in Employee's Favor Reinstated (April 5, 2006) Continuing Violation Theory in EEO Cases (March 29, 2006) Right to Hearing on Discrimination Allegation (March 15, 2006) No FEAR Act Regulations (March 8, 2006) Court Finds No Tangible Employment Action (March 1, 2006) Hostile Environment Retaliation Claims (February 22, 2006) Assessing Risk Presented by Disability (February 15, 2006) EEOC Increases Compensatory Damages Awards (February 8, 2006) Job Placement Rights after Recovery from Injury (February 1, 2006) Summary Judgment Ruling Found Premature (January 25, 2006) Missing the Deadline for Filing an EEO Complaint (January 18, 2006) Disabled Employee Found Not a Threat to Self or Others (January 11, 2006) EEOC Increases Attorney Fees in Two Cases (January 4, 2006). Contact us by-e-mail or call 202-789-0100. Nearby clients in Washington, D.C., Maryland, Virginia and West Virginia often choose to come to our office for clients for an in-person consultation, and we offer a long-distance consultation for federal employees nationwide and abroad. |
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Federal Legal Corner
Reports on recent legal developments authored by the attorneys at P&K and reported at FEDweek.
- Establishing Discrimination
- Definition of Disability
- Suspension for Hatch Act Violation
- EEOC Approves Default Judgment
- MSPB Reverses Indefinite Suspension
- Agency Found to Be a Joint Employer
- Adverse Inference for Failure to Produce Documents
- Telework Not a Reasonable Accommodation
- MSPB Orders Removal on Hatch Act Charges
- Religious Accommodation
- Discrimination for Taking FMLA Leave
- Standards for Reviewing Penalties
- MSPB Mitigates Penalty of Removal
- EEOC Increases Damages Award
- Possible Retaliation in Reassignment
- EEOC Excuses Untimely Filing
- MSPB Mitigates Penalty for Hatch Act Violation
- Damages for Emotional Stress
- Court Backs Prominent Whistleblower
- Discrimination due to Age-Based Comments
- Retaliation for 'Perceived' EEO Activity
- Court Rules Against Former Spouse Survivor Annuity
- Jurisdiction Argument after Delay in Appeal
- MSPB Jurisdiction Over Newer FAA Employees
- Hostile Work Environment and Compensation Claims
- Appeal Rights of Career Interns
- Time Limit for EEO Contact
- Claim of Involuntary Resignation
- Direct Evidence of Discrimination
- Discrimination in Non-Selection
- Discipline for Off-Duty Conduct
- Equal Pay Act Plaintiffs Must Prove Sex Discrimination
- Denial of Reasonable Accommodation
- View more
Authored by P&K attorneys — noted experts in federal civil service law — this 616-page volume is the "bible" for federal employees and their advocates.
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