Developments at the EEOC: On May 8, 2019, the Equal Employment Opportunity Commission's Office of Federal Operations (OFO) issued its decision in Lidia B. v. Dept. of Veterans Affairs, EEOC Appeal No. 2019001712. Lidia B. involved a settlement agreement where the Agency had agreed to reassign Complainant Lidia B. to a specific office where Complainant was on detail, to be accompanied by a transfer of Complainant's full-time equivalent (FTE), and a recredit of Complainant's leave. After the settlement agreement was signed, the Agency then unilaterally declared the settlement agreement void on grounds of alleged mutual mistake, claiming that there was no position to reassign Complainant to in the receiving office (because the Agency hadn't moved over Complainant's FTE yet). The Agency took back Complainant's leave recredit and unilaterally reinstated Complainant's EEO complaint for processing. Complainant timely petitioned to enforce the breached settlement agreement, and further amended in a new claim while OFO was considering Complainant's Petition for Enforcement. OFO agreed with Complainant, finding that no mutual mistake had occurred, and therefore the Agency was bound to implement the terms of its settlement agreement. OFO accordingly declared the settlement agreement reinstated and ordered the Agency to implement all remedies in the settlement. OFO ordered the Agency to update its claims processing for the reinstated EEO complaint to reflect that the original claim was settled, with processing to continue on Complainant's later-amended claim (which was outside the scope of the settlement agreement). OFO further ordered the Agency to pay Complainant's reasonable attorneys' fees and costs.
News from Passman & Kaplan: 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 July 30-August 1, 2019 in Atlanta, GA, has as its target audience federal agency EEO attorneys and labor relations representatives, EEO officials, human resource professionals, union officials and private attorneys. Mr. Kaplan will present two programs, "Hold Your Tongue: The First Amendment and Employee Speech" and "Reprisal: Know It! Avoid it!", and will participate in a panel discussion, "It's a Mixed-Up World: Understanding Mixed Cases." For more information, check out the EEOC's web page for the EXCEL Conference.
News from Passman & Kaplan: Passman & Kaplan Principal Andrew J. Perlmutter will be moderating a panel discussion with staff from the Equal Employment Opportunity Commission's Office of Federal Operations on June 11, 2019. The discussion, "Latest Federal Sector Developments at the Equal Employment Opportunity Commission Office of Federal Operations", is sponsored by the American Bar Association, Section on Administrative Law and Regulatory Practice, Government Personnel Committee. For additional details or to register, see the ABA's website.
News from Passman & Kaplan: On April 1, 2019, Passman & Kaplan, P.C. Founding Principal Edward H. Passman and his client, Tricia Newbold, were both interviewed in the press. Ms. Newbold was interviewed by NBC News. Mr. Passman was interviewed on National Public Radio (NPR), on NPR's All Things Considered program. Both interviews concerned Ms. Newbold's claims against the Executive Office of the President, Office of Administration, which were recently discussed in greater detail in this blog.
News from Congress: Tricia Newbold, an employee at the Executive Office of the President, Office of Administration, recently testified before the House Committee on Oversight and Reform. As the Committee's chair, Rep. Elijah Cummings, stated in an April 1, 2019 letter to the White House, Ms. Newbold "has informed the Committee that during the Trump Administration, she and other career officials adjudicated denials of dozens of applications for security clearances that were later overturned. As a result, she warned that security clearance applications for White House officials 'were not always adjudicated in the best interest of national security.' She also reported to the Committee that she has been targeted for retaliation after declining to grant security clearances based on longstanding national security protocols. She stated: 'I'm terrified of going back. I know that this will not be perceived in favor of my intentions, which is to bring back the integrity of the office.'"
News from the Federal Circuit: Although the Merit Systems Protection Board (MSPB) continues without quorum, its chief reviewing court, the U.S. Court of Appeals for the Federal Circuit, has continued deciding federal sector adverse action cases. Recently, the Federal Circuit issued two new decisions of interest:
News from Passman & Kaplan: The discrimination complaint of Tricia Newbold, an employee at the Executive Office of the President, Office of Administration, was recently featured in the press. Ms. Newbold has alleged that she suffered ongoing disability discrimination based on her dwarfism at the hands of her supervisor, among other claims. Ms. Newbold's supervisor allegedly discriminated against her by repeatedly impairing Ms. Newbold's office access and by allowing office equipment and files to be placed out of her reach on several separate occasions. For example, Ms. Newbold alleges that her supervisor moved work-related security files that Ms. Newbold needed to a high location and then told her, "You have people, have them get you the files you need; or you can ask me." Based on these allegations, Ms. Newbold has filed a discrimination complaint, which is currently pending at the Equal Employment Opportunity Commission (EEOC). Ms. Newbold's story was first publicly reported in a January 24, 2019 by NBC News. Ms. Newbold is represented by Passman & Kaplan, P.C. Founding Principal Edward H. Passman.
Developments at the EEOC: On October 15, 2018, Chief Administrative Judge Patrick Kokenge of the Equal Employment Opportunity Commission's Miami District Office issued a Consent Order awarding the Complainant remedies in EEOC No. 570-2014-001194X.
Developments at the EEOC: On September 26, 2018, the Equal Employment Opportunity Commission's Office of Federal Operations issued its decision in Cleveland C. et al. v. Dept. of Defense, EEOC Appeal Nos. 0120170405-0120170414. Shifting from prior precedent, the EEOC recognized reasonable accommodation protections for persons suffering from pseudofolliculitis barbae (PB).
Developments at OPM: On October 10, 2018, the Office of Personnel Management (OPM) issued Interpretive Guidance on implementation of Section 5 of Executive Order 13,839. OPM's Interpretive Guidance clarifies some aspects of how Section 5--the provision limiting modification of federal personnel records in settlement--should be applied.