The attorneys of Passman & Kaplan (P&K) literally wrote the book on federal employment law. The representative cases below reflect how our firm regularly applies this knowledge to secure justice for our clients and to shape the law favorably for all those who work in the government sector.
DC EMPLOYEE DISCRIMINATORILY FIRED REINSTATED THROUGH P&K REPRESENTATION
On July 10, 2017, the District of Columbia Office of Human Rights (OHR) issued its Final Order in Massengale v. D.C. Fire and Emergency Medical Services, OHR Docket No: 14-360-DC(CN). OHR reversed Ms. Massengale’s 2014 termination, finding that her termination was in retaliation for Ms. Massengale’s 2013 OHR complaint of sex discrimination, and ordered her reinstated with back pay. Ms. Massengale was represented by Passman & Kaplan Senior Counsel Adria S. Zeldin.
EEOC EXPANDS COMPENSATORY DAMAGES AWARD IN GROUNDBREAKING P&K CASE
On June 9, 2017, the Equal Employment Opportunity Commission (EEOC) issued a precedential decision in Lara G. v. U.S. Postal Service, EEOC Request No. 0520130618. On its own initiative, the EEOC reopened the case to reverse prior precedent on compensatory damages awards. Previously, EEOC administrative judges were required to issue compensatory damages awards similar to prior EEOC damages decisions. P&K argued that this comparison should adjust the earlier damages awards for inflation, to avoid eroding the real value of older compensatory damages awards. In earlier decisions in this case, the administrative judge and the EEOC’s Office of Federal Operations (OFO) both ignored P&K’s novel legal argument. The EEOC’s new decision-issued directly by the Commission members themselves through the Executive Secretariat-overrules the prior OFO decisions and directs that future damage awards include an adjustment for inflation, increasing compensatory damages awards for both Lara G. and future complainants. Lara G. was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan.
MSPB EXPANDS CONSTRUCTIVE SUSPENSION CASE LAW IN P&K CASE
On September 27, 2016, the Merit Systems Protection Board (Board) issued a precedential decision in Thomas v. Dept. of the Navy, 2016 MSPB 34. The Board reversed the administrative judge’s dismissal decision below, reinstating Ms. Thomas’ appeal. Ms. Thomas claimed that the Agency had compelled her to take 3 days/week of leave without pay (LWOP) because it had denied her reasonable accommodation request for telework, and reporting to her workplace on those days would violate her doctor’s orders. The Board found that Ms. Thomas had made a non-frivolous allegation that the Agency’s actions denied her a meaningful choice on whether or not to take the LWOP, thus constituting a possible constructive suspension. This decision expands the circumstances recognized in Board precedent for constructive suspension claims. Ms. Thomas was represented by Passman & Kaplan Founding Principal Edward H. Passman and Passman & Kaplan Associate Erik D. Snyder.
P & K CLIENT WINS PROMOTION UP EIGHT PAY BANDS
In his April 22, 2016 Decision (Ware v. USPS, EEOC Nos. 531-2011-00122X, 531-2012-00029X), an Administrative Judge of the EEOC awarded P & K client Anthony Ware a promotion up eight pay bands, from EAS-17 to EAS-25, in a case whose underlying facts go back to 2009. From 2009-2010, Mr. Ware had applied for several promotions, but despite his excellent qualifications, was not selected for any of the positions he sought. Believing that discrimination and retaliation were at work, Mr. Ware engaged Passman & Kaplan to litigate the case. After years of intense litigation, the Judge agreed with P & K’s argument that Mr. Ware should be awarded the highest-level position for which he applied and was deemed qualified, ordering the Agency to pay more than six years of back pay, with all reasonable step and pay raises Mr. Ware would have received had he been promoted to the position in 2010, as well as attorney fees and costs, and more than $20,000 in additional compensatory damages.
MSPB OVERTURNS SUSPENSION IN PASSMAN & KAPLAN CASE
In its January 21, 2016, decision in Martin v. U.S. Postal Service, 2016 MSPB 6, the Merit Systems Protection Board (MSPB) overturned the suspension of Ms. Martin. Ms. Martin had retired as part of a settlement agreement of an EEO complaint which was designed to enhance Ms. Martin’s retirement annuity. The settlement agreement became void when the Office of Personnel Management denied the annuity enhancement, and so Ms. Martin sought reinstatement. The Agency instead unilaterally placed Ms. Martin on involuntary retroactive leave without pay (LWOP) status. The MSPB found that Ms. Martin’s placement on LWOP constituted a suspension, which was legally defective because the Agency had failed to give Ms. Martin her pre-suspension due process rights. The MSPB ordered the Agency to retroactively reinstate Ms. Martin to full duty status for the entire retirement/LWOP period, and remanded the case for a hearing on Ms. Martin’s discrimination claims. Ms. Martin was represented by P&K Founding Principal Joseph V. Kaplan.
DEFAULT JUDGMENT AGAINST GSA IN PASSMAN & KAPLAN CASE
On April 6, 2015, the General Services Administration (GSA) decided not to appeal the default judgment order imposed against it in EEOC No. 5702-2012-00608X. GSA was sanctioned for its failure to timely investigate an EEO complaint, in a case where the Complainant only received the report of investigation from the Agency 506 days after the formal complaint, and 350 days after the last amendment. After a damages hearing, EEOC Supervisory Administrative Judge Stephens awarded Complainant retroactive reinstatement to the SES, back pay, $50,000 in compensatory damages, a neutral reference should Complainant decide to look for an alternative job, just under $50,000 in attorneys’ fees and costs, remedial EEO training at GSA, and posting of notice. Complainant was represented by Passman & Kaplan Senior Associate Adria S. Zeldin.
EEOC OVERTURNS DISMISSAL IN PASSMAN & KAPLAN CASE
In its January 28, 2015, decision in Complainant v. Department of the Air Force, EEOC Appeal No. 0120142407, the EEOC’s Office of Federal Operations (OFO) overturned the Air Force’s dismissal of an EEO complaint, remanding it for investigation. The Complainant was a contract employee, but based on Passman & Kaplan‘s argument, OFO found that the Complainant was a ‘joint employee’ of the Air Force entitled to file complaints in the federal-sector EEO complaints process. OFO also found that Complainant had properly stated claims for harassment, reassignments and constructive discharge. OFO also rejected the Air Force’s claim that Complainant’s EEO complaint was untimely, relying on written documentation issued by the Air Force’s EEO office which showed the EEO office improperly turning the Complainant away 3 years earlier when the Complainant attempted to initiate an EEO complaint at that time. OFO ordered the Air Force to accept the complaint and promptly conduct an investigation. The Complainant was represented by P&K Founding Principal Joseph V. Kaplan and P&K Senior Associate Andrew J. Perlmutter.
PASSMAN & KAPLAN, PC, WINS ENFORCEMENT OF BREACHED SETTLEMENT AGREEMENT
Passman & Kaplan, PC, successfully sought enforcement by the Equal Employment Opportunity Commission (EEOC) of a breached settlement agreement. In its October 16, 2014, decision in Complainant v. Department of the Air Force, EEOC Appeal No. 0120141465, the EEOC’s Office of Federal Operations found that the Agency breached its December 4, 2013, settlement agreement with the complainant, and reversed the Agency’s Final Agency Decision (FAD) on the matter. The FAD found a breach of a clause in the settlement agreement which required the complainant’s supervisor to obtain authorization before communicating with the complainant’s subordinates. However, the FAD failed to address any remedy for the breach. The EEOC agreed with the Agency’s finding of breach, but went further to award Complainant reasonable attorney fees and costs related to the appeal and to order that the Agency comply with the settlement agreement and submit a report of compliance to the EEOC. The complainant was represented by P&K founding principal Joseph V. Kaplan
PASSMAN & KAPLAN OBTAINS RELIEF IN VETERANS PREFERENCE CASE
Passman & Kaplan recently obtained relief for an employee under the Veterans Employment Opportunity Act (VEOA). In MSPB Docket No. CH-3330-14-0445-I-1, the employee (a preference eligible veteran) was not selected for a GS-13 position. After filing an appeal at the MSPB, Passman & Kaplan successfully settled the case. Under the settlement agreement, the employee will receive the GS-13 promotion position, and reimbursement of attorneys’ fees and costs. Our client was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan and Passman & Kaplan Senior Associate Andrew J. Perlmutter.
PASSMAN & KAPLAN WINS EMPLOYEE REINSTATEMENT; REMOVAL REVERSED FOR DUE PROCESS VIOLATION
On June 13, 2014, the Merit Systems Protection Board (MSPB) issued a nonprecedential decision in Halfacre v. Dept. of Homeland Security, MSPB Docket No. DC-0752-12-0626-I-1. Reversing the administrative judge’s decision below, the MSPB found that Ms. Halfacre was denied Constitutional due process in her removal, rendering the removal fatally legally defective. On appeal, the MSPB unanimously reversed the removal decision. Under clear precedent from the MSPB and its chief reviewing court, the Court of Appeals for the Federal Circuit, federal employees are entitled to notice of the charges against them (including all aggravating factors) and a chance to respond before any adverse action is implemented–a right which rises to the level of 5th Amendment Constitutional due process. The MSPB found that the agency’s failure to notify Ms. Halfacre of an undisclosed aggravating factor and failure to give her the chance to respond to the issue rendered her removal legally flawed, and thus ordered the removal reversed with full back pay. Ms. Halfacre was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan and Passman & Kaplan Senior Associate Adria S. Zeldin.
PASSMAN & OBTAINS DEFAULT JUDGMENT AGAINST POSTAL SERVICE; CLIENT TO RECEIVE RETROACTIVE PROMOTION
Sept. 23, 2013 — This past week, Passman & Kaplan received a very favorable decision from the EEOC’s Baltimore Field Office granting default judgment to our client as a sanction for USPS’s gross misconduct during litigation. The case involved more than 20 non-selections of the same individual and two complete sets of discovery requests. Throughout the entire discovery process, USPS showed a disturbing lack of attention to the case. First, USPS missed its initial discovery production deadline – even then, the responses it did provide were to only one of the two outstanding sets of discovery requests. Despite repeated informal attempts to address numerous deficiencies in its discovery responses, USPS refused to provide the requested information, sometimes simply ignoring counsel’s emails. Even after the AJ granted the complainant’s motion to compel (to which the Agency did not even respond), USPS produced responses to the wrong discovery requests after the AJ’s ordered deadline. Although the AJ gave USPS another opportunity to produce responses to the correct requests as ordered, it again failed to meet the AJ’s deadline. P&K counsel filed three motions for sanctions documenting USPS’s ongoing discovery misconduct and non-compliance with the AJ’s orders. Upon granting our motion for default judgment, the AJ ordered USPS to our client in one of five positions he had previously been deemed at least minimally qualified for, or another mutually-agreeable position.
PASSMAN & KAPLAN ACHIEVES $585,000 SETTLEMENT IN PRIVACY ACT LAWSUIT
Passman & Kaplan successfully settled Brunotte v. Tangherlini, Acting Administrator, General Services Administration, Civil Action No. 08-0587. In this case, which had been pending in U.S. District Court for the District of Columbia, P&K alleged that employees of the General Services Administration and its Office of Inspector General committed violations of the Privacy Act in an apparent attempt to interfere with Ms. Brunotte starting a new job at the Government Printing Office. After successfully defeating GSA’s motion for summary judgment on two counts of Privacy Act, the GSA, acting though an Assistant U.S. Attorney, agreed to mediate the claims through the court’s mediation program. Under the settlement agreement, the government will pay $400,000 to Brunotte, plus an additional $185,000 in attorneys’ fees and costs.
PASSMAN & KAPLAN WINS REINSTATEMENT OF REMOVED FEDERAL EMPLOYEE
In Miller v. Dept. of the Interior, 2013 MSPB 27, Passman & Kaplan defeated the Department of the Interior (Agency) at the Merit Systems Protection Board (Board). The unanimous Board overturned the administrative judge’s decision, reversing the Agency’s removal of Ms. Miller. The Agency had removed Ms. Miller after her refusal to accept a management directed reassignment from Sitka, AK to a new position in Anchorage, AK. Ms. Miller had no performance issued in her Sitka post, and the Sitka position was not being abolished; the agency then had to advertise and fill both the Sitka and Anchorage slots after removing Ms. Miller. In reversing the AJ’s decision, the unanimous Board used the opportunity to overturn its prior caselaw, as a result simplifying the pleading standards and legal analysis used in cases involving removals for failure to accept a management directed reassignment. The Agency was ordered to retroactively reinstate Ms. Miller to her position in Sitka with back pay and possible attorneys’ fees and costs. Ms. Miller was represented by Passman & Kaplan Founding Principal Edward H. Passman.
U.S. Court of Federal Claims Allows Equal Pay Act Claim to Proceed; Allows Amendment
On January 26, 2011 Judge Mary Ellen Coster Williams of the U.S. Court of Federal Claims rejected the Government’s motion to dismiss postal manager Beverly Martin’s pay discrimination claim. Martin v. United States, Case No. 10-183C (Fed. Cl.) Passman & Kaplan Founding Principal Joseph V. Kaplan represent Ms. Martin. Ms. Martin, an employee of the U.S. Postal Service, sued under the Equal Pay Act, alleging that the Postal Service paid her less than her male successor for performing the same duties. Judge Williams’ decision rejected the Government’s argument that the recent Supreme Court Iqbal and Twombly decisions effectively required Ms. Martin to prove her Equal Pay Act case outright in order to survive a motion to dismiss. In particular, Judge Williams held that Ms. Martin properly alleged that the actual job duties she and the male comparator performed in their respective positions, and not their formal job titles, controlled whether or not they could be compared for pay discrimination analysis. Judge Williams also ruled that the fact that the male comparator did the job after Ms. Martin was no bar to Ms. Martin’s Equal Pay Act claims.
PASSMAN & KAPLAN WINS MAJOR MSPB APPEAL AFTER LANDMARK ORAL ARGUMENT
The Merit Systems Protection Board (MSPB or Board) issued its decision in the consolidated Aguzie and Barnes cases, holding, for the first time, that OPM-directed suitability determinations are subject to full MSPB review under 7 USC § 7513, which includes a review of the penalty determination. In so doing, the Board found certain Office of Personnel Management (OPM) regulations that interfere with those appeal rights to be inconsistent with the Board’s statutory authority. Passman & Kaplan Founding Principal Joseph V. Kaplan represented Holley C. Barnes at oral argument on this appeal, which was only the second oral argument held by the MSPB in the past 27 years. Aguzie, Barnes v. Office of Personnel Management, 2011 MSPB 10. At issue in the Barnes case was an order from OPM to the Department of Homeland Security (DHS), Ms. Barnes’ employing agency, directing that Ms. Barnes, a non-probationary employee, be removed from her position, declared ineligible for other pending competitive selections and debarred from the federal competitive service for three years. OPM found Ms. Barnes unsuitable for federal employment for an alleged falsification of her employment application. Ms. Barnes appealed to the MSPB. Under OPM regulations, however, the MSPB was restricted in its review and could not, for example, review the appropriateness of the decision to impose removal, debarment and cancellation of eligibility as penalties. In reviewing the relevant statutes and legislative history, the MSPB found that OPM exceeded its authority in promulgating regulations which purport to strip the MSPB of full authority to review the OPM suitability determination and the chosen penalty. In holding OPM’s regulations inconsistent with the Board’s statutory authority, the MSPB confirmed its authority to review the merits of OPM’s suitability determination, as well as to examine the propriety of OPM’s penalty determination under the MSPB’s Douglas mitigation factors. Further, agreeing with Mr. Kaplan‘s argument, the MSPB also extended its authority to review additional penalties imposed, such as the penalties of debarment and cancellation of eligibility as part of an appeal of an OPM unsuitability determination. As a result of the Board’s decision, Ms. Barnes’ case was ordered remanded to the administrative judge for further proceedings to determine, in the main, whether her removal, and other penalties, were justified by all the facts in this case. Ms. Barnes was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan.
PASSMAN & KAPLAN GAINS REINSTATEMENT OF FIRED DEPT. OF ARMY EMPLOYEE; EMPLOYEE RECEIVES FULL BACK PAY AND BENEFITS, PLUS COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS
In MSPB Case No. DA-0752-10-0133-I-2, Passman & Kaplan successfully settled this case for full relief, just as if the case had been decided by the judge. In this Merit Systems Protection Board (MSPB) appeal, P&K alleged that the Department of the Army fired the employee after she invoked her right to take leave under the Family and Medical Leave Act. After Passman & Kaplan conducted a pre-hearing deposition of the official who proposed the employee’s termination, it became clear that the Department’s actions were illegal and would not be sustained at trial. In agreeing to settle the case without further litigation, the Department of the Army agreed to cancel the removal action, reinstate the employee to a position at the same grade level, pay the employee all of her back pay and benefits, including any missed step-increases, pay $31,500 in compensatory damages, and reimburse the employee all of her attorney fees and litigation costs. The settlement agreement was accepted by the MSPB and entered into the Board’s records for enforcement purposes. The employee was represented by P&K founding principal Joseph V. Kaplan.
PASSMAN & KAPLAN WINS SEXUAL HARASSMENT/WRONGFUL DISCHARGE CASE; FIRED EMPLOYEE REINSTATED
In EEOC No. 570-2009-00031X, Passman & Kaplan defeated the Department of the Treasury (Agency) at the Equal Employment Opportunity Commission (EEOC), Washington Field Office. Agency management had subjected the employee to sexual harassment, and then terminated the employee right before the end of the employee’s probationary period. After a four-day hearing, the EEOC Administrative Judge found unlawful sexual harassment and wrongful discharge in violation of Title VII of the Civil Rights Act of 1964. The Agency was ordered to reinstate the employee with make-whole relief, including several years of back pay, almost $100,000 in compensatory damages, and reimbursement of attorneys’ fees and costs. The Treasury Department accepted the Judge’s findings without appeal.
PASSMAN & KAPLAN WINS MAJOR REVERSAL IN DISCRIMINATION AND REPRISAL CASE
In OFO Appeal No. 0120073300, decided on December 18, 2009, the U.S. Equal Employment Opportunity Commission (EEOC), Office of Federal Operations, 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. The employee claimed that he had suffered harassment by his employing agency based on his race, sex, and color, and in reprisal for reporting this poor treatment. On appeal, the EEOC found that not only had the judge below erred in granting a decision without a hearing, but also that the employee had presented direct evidence of discrimination. The EEOC ordered that the case proceed to a hearing where the agency will now have to meet a much higher standard to show that its actions were not discriminatory.
FOUNDING PRINCIPAL EDWARD H. PASSMAN WINS FLRA CASE UPHOLDING ARBITRATOR’S DECISION
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 FLRA decision is significant because it upheld a rare finding by an arbitrator of anti-union animus in violation of 5 USC 7116(a)(2) and will result in additional attorney fees for successfully opposing the agency’s exceptions to the FLRA. 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 legitimate 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.
To learn more about how Passman & Kaplan, P.C., Attorneys at Law can assist you, contact us online or call 202-789-0100 or 800-881-0140. Our Washington law office serves D.C., Maryland and Virginia, and federal employees nationally and internationally.