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July 2011 Archives

OSC Obtains Stay from MSPB in Whistleblower firing

Signs of Life at the Office of Special Counsel?  The OSC recently obtained a stay from the MSPB in order to keep an employee of the Department of Homeland Security from being fired before his claim of reprisal for whistleblowing could be investigated.  Perhaps this is a sign that new Special Counsel, Carolyn Lerner, is serious about trying to protect federal whistleblowers.

EEOC Report for FY 2010 Shows Continued Discrimination Against Fed Employees

Developments at the EEOC:  The EEOC's recently released FY 2010 Annual Report confirms that Federal Employees continue to experience discrimination in the workplace.  The 16,480 individuals who filed discrimination claims in FY 2010 comprise a tiny proportion of the Federal Workforce (.3 percent of the overall Federal workforce, and .7 percent of the Executive Branch workforce), but the trend is still on the rise. According to the Report, "The number of complaints filed increased by 3.8% over the previous year and there was a 4.1% increase in the number of individuals who filed complaints over the same period."

MSPB Reverses Another Removal For Due Process Violation

Developments at the MSPB: This case represents another case from the MSPB where an employee's removal was reversed because the agency considered detrimental information in its decision-making process without sharing that information with the employee.  Because the employee was not given the opportunity to rebut this information, the agency violated the employee's due process rights which requires a reversal of the employee's termination.

MSPB Reverses Firings For Due Process Violations

The MSPB held in two cases, involving related issues, that a deciding official's consideration of information to enhance penalties violated an employee's due process rights where the employee was not put on notice of the consideration of new evidence.  Both cases involved a deciding official improperly considering new and material information, but failing to inform the employee in the notice of proposed action that such information was being considered.  The Administrative Judge in Thomas did not fully address the potential due process violation, while the Administrative Judge in Gray found that Mr. Gray failed to prove a violation of his due process rights.  The Board reversed Gray after finding that the information the deciding official considered was "new and material," and remanded Thomas for further inquiries.  Thomas v. U.S. Postal Service, 2011 MSPB 62 (June 14, 2011) and Gray v. Department of Defense, 2011 MSPB 64 (June 17, 2011).

EEOC Holds Sexual Orientation Hostile Environment Is Actionable

The following case is an important recent development at the EEOC. The EEOC ruled  that a gay employee may be entitled to relief under Title VII's prohibition on sex discrimination for a claim of hostile work environment (HWE). In Veretto v. U.S. Postal Service, Mr. Veretto alleged he was subjected to a hostile work environment when Postal Service  management was nonresponsive to his request to remove from the workplace a male coworker who harassed Veretto due to his planned gay marriage.  The EEOC held that the employee's claim could be an example of a HWE based on sexual stereotyping (i.e., that a man should only marry a woman). The EEOC reversed the Postal Service's dismissal of his EEO complaint, holding that Title VII's prohibition of sex discrimination could allow for a gay employee to obtain relief if subjected to harassment motivated by sex stereotyping.  Mr. Veretto's EEO claim will now have to be investigated, and if not resolved, he should have the right to a hearing before an EEOC administrative Judge. Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011).

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