Protecting Workers’ Rights

Focusing on the Rights of Federal Employees

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.

Passman & Kaplan Founding Principal Joseph V. Kaplan To Be Presenter at the EEOC's "EXCEL" Conference August 16-18, 2011.

Passman & Kaplan Founding Principal Joseph V. Kaplan has again been invited by the U.S. Equal Employment Opportunity Commission (EEOC) to be a presenter at its annual EXCEL Conference. The EXCEL Conference, to be held August 16-18, 2011, in Baltimore, has as its target audience federal agency attorneys and labor relations representatives, EEO officials, human resource professionals, union officials and private attorneys. Mr. Kaplan will present four separate workshops: "Examination of Witnesses," "Mixed Cases" (co-presented with MSPB General Counsel James M. Eisenmann), "Keep Your Workplace Ant Hills from becoming Workplace Mountains," and "Drafting Settlement Agreements." For more information, check out the EEOC's web page for the EXCEL Conference. 

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).

P&K Associate Adria Zeldin Elected to D.C. Bar Steering Committee Position

Passman & Kaplan Associate Adria S. Zeldin has been elected to a position on the Labor and Employment Law Section Steering Committee of the District of Columbia Bar for the 2011-2012 term. According to the D.C. Bar, "The purposes of the section are to: advance the professional development and competence of its members by offering educational programs and publications in the substantive law fields of labor and employment law, as well as practice and procedure; keep its members informed of changes and developments in the relevant law and to publish information on those subjects; monitor legislative and regulatory developments and comment on issues within its expertise and jurisdiction; provide a forum for discussion of subjects pertaining to the legal practice areas of labor and employment law; provide other services to its members consistent with the D.C. Bar's Sections Guidelines and Procedures; and fulfill the bar's commitments to public service and community outreach." We at P&K congratulate Adria on her election. 

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