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The Writer's Almanac - Jan 17, 2020 ♦ Today is the birthday of Michelle Obama, born Michelle Robinson in Chicago (1964). She grew up on the South Side of Chicago. She went off to college at Princeton, and then to law school at Harvard. She met Barack Obama at the law firm in Chicago where they both worked. For their first date, they went to the Spike Lee movie Do the Right Thing. In 1992, the two married. (continued) ♦ The Eighteenth Amendment took effect on this day 100 years ago, making illegal the manufacture, sale, and transportation of liquor in the U.S. (continued) ♦ Today is the birthday of Benjamin Franklin, born in Boston, Massachusetts (1706). (continued) ... TODAYS POEM: "The Summer Day" From New & Selected Poems by Mary Oliver. TWA
♦ Collective Bargaining Agreement Database ... Paid Parental Leave for Federal Employees ... Pres Signed 2020 Pay Raise Exec Order ... 2020 PAY TABLES
♦ FEDERAL AGENCIES MUST TAKE IMMEDIATE STEPS TO STOP "TIME-OFF AWARD" ABUSES. Summary: (.pdf) Full Report: (.pdf)
♦ AMTRAK OIG: Reservation Sales Agent Terminated For Submitting Falsified Medical Leave Documentation. Summary: (.pdf)
♦ DOJ OIG: Federal Bureau of Prisons Supervisor Engaged in an Inappropriate Sexual Relationship with a Subordinate and Related Misconduct: (.pdf)
♦ AMTRAK OIG: FIVE AMTRAK EMPLOYEES TERMINATED / RESIGN RELATED TO A MEDICAL FRAUD SCHEME. Summary
♦ Jan 17, 2020 .. 11th Cir.: Allen v. Ambu-Stat .. COURT AFFIRMS REJECTION OF HER SEXUAL HARASSMENT CLAIMS .. Allen claims sporadic sexual harassment during her time at Ambu-Stat, all of which we take as true. For starters, Allen says Santos made several comments about her appearance. On Allen's first day of work, Santos told her she was "really pretty." On another occasion, responding to Allen's comments about her own weight, Santos told Allen she was "fine as hell" and not to worry. Allen testified she was not offended by this comment. Santos also made comments about Allen's appearance that were more graphic: one time, Santos told Allen that she had a body like his ex-girlfriend, but better, with wider hips. And on another occasion, while moving a patient, Santos said, "[Y]ou got to watch that stuff on the table with that big old butt or you're going to knock it down trying to move her." Allen adds that Santos generally spoke with co-workers about how attractive he found Allen, although she does not provide any specific examples of these statements. Allen also claims that Santos made three crude sexual references. A time when Santos and Allen were working together, a song came on the radio containing the lyrics "eating booty like groceries." Santos asked Allen, "[D]oes your boyfriend eat that thang?" Allen replied that her boyfriend did not and did not know how to do so. Santos answered, "I could teach him." Another time, while working out at a gym, Allen recommended chocolate milk to help Santos with muscle soreness. A few hours later, Santos texted Allen that he loved chocolate milk, along with images of "tongue" emojis. This happened the same day as the comment Santos made about his ex-girlfriend. When working out together at the gym on another occasion, Santos pointed out Allen's groin area, which was wet with sweat, and commented, "Damn, that thing get wet like that!" .. COURT DECISION: (.pdf) (.html)
♦ Jan 16, 2020 .. 5th Cir.: Clark v. Champion .. In this workplace-discrimination appeal, Charles Clark says he was fired because of a diabetes-related condition. His employer, Champion National Security, Inc., offers a simpler explanation: Clark was sleeping at his desk during work hours, an immediately terminable offense. .. COURT DECISION: (.pdf) (.html)
♦ Jan 16, 2020 .. FLRA: NAIL v. Army .. Arbitrator Don E. Williams granted the Agency's motion to dismiss the Union's grievance on the ground that the Union was collaterally estopped from arguing that the grievants had been temporarily promoted to GS-12 positions. The Union filed exceptions alleging that the award is based on a nonfact, is contrary to law, fails to draw its essence from the parties' collective-bargaining agreement, and that the Arbitrator exceeded his authority. The Union's nonfact, contrary-to-law, and essence exceptions are all based on the argument that the Arbitrator erred by applying collateral estoppel because the issue in this grievance differed from the issue in a prior grievance. Because the Union does not demonstrate that the issue is different, we deny those exceptions. And because the award responds to the issue framed by the Arbitrator, we deny the Union's exceeded-authority exception. .. FLRA DECISION: (.pdf) (.html)
♦ Jan 16, 2020 .. 6th Cir.: Vonderhaar v. Waymire .. Kristina Vonderhaar accuses her erstwhile employer, AT&T Mobility Services, LLC ("AT&T"), of violating the Family and Medical Leave Act ("FMLA") and Kentucky wrongful-discharge law. Most significantly, Vonderhaar alleges that, after she used a significant amount of her medical leave, and then complained to AT&T's "ethics hotline" about "fraudulent" activity occurring at the AT&T store where she worked, her supervisors retaliated against her by making her working conditions so miserable that she had no choice but to resign. .. COURT DECISION: (.pdf) (.html)
♦ Jan 15, 2020 .. Mo: Theroff v. DollarTree .. Theroff applied for employment at a Dollar Tree store. During Theroff's interview with the store's assistant manager, Kayla Swift, Theroff informed Swift she was legally blind and used various assistive devices. Swift hired Theroff. She filed charges with the Missouri Commission on Human Rights alleging Dollar Tree constructively discharged her by refusing her request for a reasonable accommodation – allowing her service dog to accompany her. .. COURT DECISION: (.pdf) (.html)
♦ Jan 15, 2020 .. Mo: Li Lin v. Ellis & WU .. Dr. Li Lin filed suit against Washington University ("the University") and Dr. Matthew Ellis for retaliation pursuant to section 213.0701 of the Missouri Human Rights Act ("MHRA"), claiming her request for a reasonable accommodation of her herniated discs was a protected activity. A jury returned a verdict in Dr. Lin's favor against the University but relieved Dr. Ellis of any liability. The University appeals, raising five claims of error. .. COURT DECISION: (.pdf) (.html)
♦ Jan 15, 2020 .. CCA: St. Myers v. Dignity .. Plaintiff worked as a nurse practitioner at a rural clinic that was part of a medical center owned and operated by defendant Dignity Health. During the three years she worked there, she submitted over 50 complaints about working conditions and was also the subject of several investigations based on anonymous complaints. All the investigations concluded the complaints against St. Myers were unsubstantiated and no action was taken against her. She found another job and resigned. Claiming her resignation was a constructive termination due to intolerable working conditions, St. Myers sued Dignity Health and Optum360 Services, Inc. .. COURT DECISION: (.pdf) (.html)
♦ Jan 14, 2020 .. FLRA: HHS v. AFGE .. This case, filed by the U.S. Department of Health and Human Services, Center for Disease Control and Prevention, Atlanta, Ga. (Agency or Management) on July 2, 2019, concerns a dispute over 3 articles in the parties' successor collective-bargaining agreement (CBA) and was filed pursuant to 5 U.S.C. §7119 of the Federal Service Labor-Management Relations Statute. The parties are signatory to a collective bargaining agreement (CBA) that expired on July 17, 2017. The agreement rolls over on an annual basis. The Federal Service Impasses Panel (Panel) asserted jurisdiction over this dispute. .. FLRA DECISION: (.pdf) (.html)
♦ Jan 14, 2020 .. FLRA: AirForce v. AFGE .. On December 4, 2015, the Agency provided the Union notice of its intent to renegotiate the CBA. The parties negotiated ground rules from January 2016 to May 2016. After agreeing to ground rules in May, the parties held 65 negotiation sessions and reached agreement on 18 articles from May 2016 to November 2018. The parties then met with the Federal Mediation and Conciliation Service (FMCS) Mediator Tom Melancon five times to mediate 19 articles from February 2019 to April 2019. During mediation, the parties resolved several articles; however, because they were unable to reach a complete agreement over their successor CBA, Mr. Melancon released the parties from mediation on April 25, 2019. On May 10, 2019, the parties filed a joint request for Panel assistance over the remaining articles in dispute. .. FLRA DECISION: (.pdf) (.html)
♦ Jan 13, 2020 .. Fed. Cir.: Knowles v. DVA .. WHAT TARGETING AN EMPLOYEE LOOKS LIKE ... SHAME ON YOU, VA. .. The Petitioner is currently employed by the Department of Veterans Affairs (agency). From 2016 to 2018, The Petitioner was subject to several personnel actions she believes were in retaliation for her protected disclosure in violation of the WPA. The agency issued a memorandum stating that the Petitioner left protected health information and personally identifiable information concerning several patients unattended and unsecured on her desk. The agency issued another memorandum finding that the Petitioner committed a privacy violation by leaving a pre-complaint form with her own name, address, and social security number face-up in a tray by her work station. .. COURT DECISION: (.pdf) (.html)
♦ Jan 13, 2020 .. FLRA: VA v. AFGE .. In March 2017, Union officials attended a Union-sponsored training. The Agency granted authorized-absence leave for one of the Union officials who attended that training but denied it for others. As a result, at least three Union officials used personal leave to attend the training (the grievants). The Union filed a grievance challenging the denials, and, as the parties were unable to resolve the grievance, it proceeded to arbitration. .. FLRA DECISION: (.pdf) (.html)
♦ Jan 9, 2020 .. D.D.C.: Figueroa v. Pompeo .. Plaintiff Richard Figueroa believes that, but for his Hispanic heritage, he would have been promoted by the State Department rather than forced into mandatory retirement. He filed suit in 2016 against the Department, advancing claims under Title VII of the Civil Rights Act of 1964 for both disparate treatment and disparate impact. After the parties conducted discovery regarding those claims, both moved for summary judgment in 2017. In a January 2018 decision, this Court sided with the State Department. That decision concluded, with respect to the disparate treatment claim, that Figueroa had not produced evidence to rebut the Department's proffered legitimate, nondiscriminatory reason for denying his promotion. NOW Because the Court now concludes that Figueroa has established a prima facie case of disparate treatment, and because the Circuit has determined that the Department failed to rebut that case by providing a legitimate, nondiscriminatory reason for denying his promotion, the Court will enter summary judgment on that claim in Figueroa's favor. .. COURT DECISION: (.pdf) (.html)
♦ Jan 8, 2020 .. 11th Cir.: Hester v. UABH .. Mr. Hester, who is African-American, appeals following the grant of summary judgment in favor of University of Alabama Birmingham Hospital (UABH)in his employment discrimination action brought under Title VII. Mr. Hester contends that the district court erred in ruling that he failed to establish a prima facie case of race discrimination because he did not show that UABH treated a similarly-situated employee outside of his protected class more favorably. Mr. Hester also argues that the district court erred in concluding that he failed to show that UABH's proffered reason for firing him was pretextual. .. COURT DECISION: (.pdf) (.html)
♦ Jan 8, 2020 .. 6th Cir.: Miles v. CHRA .. As our sister circuit put it, an "employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984). The ADEA only prevents employers from terminating an employee "because of such individual's age." 29 U.S.C. § 623(a)(1). Cynthia Miles was unhappy with her at-will termination, so she filed this ADEA claim. .. COURT DECISION: (.pdf) (.html)
♦ Jan 7, 2020 .. Fed. Cir.: Holland v. MSPB .. Cameron Holland worked as a Special Agent in the Drug Enforcement Administration (DEA), a part of the United States Department of Justice, under an excepted- service appointment. Just over a year into his employment, the DEA terminated Mr. Holland from his position, without having given him notice of the proposed basis of termination or a pre-decision opportunity to provide the deciding official a response. .. COURT DECISION: (.pdf) (.html)
♦ Jan 2, 2020 .. FLRA: AFGE v. VA .. Here, Arbitrator Robert S. Adams found that the Agency violated Article 12 of the parties' agreement when it failed to properly refer the grievant's selection file to the Professional Standards Board (PSB) in order to effect a permanent promotion. Despite having served in a temporary promotion—and being paid at the higher level—for twelve months, the Agency's failure resulted in the withdrawal of the grievant's promotion and revocation of the temporary promotion. As a remedy, the Arbitrator directed the Agency to refrain from collecting "the additional salary and benefits earned" during the temporary promotion. The Union argues that the remedy is not consistent with the parties' agreement, and that the Arbitrator's failure to award backpay and attorney fees is contrary to the Back Pay Act (BPA). Because the Union failed to demonstrate that the remedy is inconsistent with the parties' agreement, or that the failure to award backpay or attorney fees was contrary to law, we deny the exceptions. .. FLRA DECISION: (.pdf) (.html)
♦ Jan 2, 2020 .. 3rd Cir.: Hukman v. American Airlines .. Ms. Hukman identifies as a woman of Middle Eastern Kurdish descent from Iraq. In 2007, Hukman began working as a customer service agent with American Airlines in Las Vegas, Nevada. In early 2010, Hukman was transferred to the Philadelphia International Airport, where she continued to work as a customer service agent until she was terminated in 2015 after a three-year medical leave. Hukman was a union member, and the union operated under a Collective Bargaining Agreement ("CBA") with American. Pro se appellant Ms. Hukman appeals the District Court's dismissal of her claims against Republic Airways Holdings ("Republic") and the grant of summary judgment for American Airlines ("American"). Hukman alleges discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964. .. COURT DECISION: (.pdf) (.html)
♦ Dec 27, 2019 .. Fed. Cir.: Griffin v. Navy .. Petitioner, a criminal investigator with the Naval Criminal Investigative Service, was suspended and demoted after the Navy revoked his driving privileges and charged him with Conduct Unbecoming a NCIS Senior Manager. He appealed the Navy's decision to the Merit Systems Protection Board. The Board affirmed the Navy's decision to demote Petitioner. On appeal, Petitioner asserts that the Navy failed to establish a nexus between his conduct and the "efficiency of service"—i.e., that the Navy failed to show Petitioner's conduct had an adverse effect on his performance, on the mission of the Navy, or on the Navy's trust and confidence in him. .. COURT DECISION: (.pdf) (.html)
♦ Dec 27, 2019 .. SCM: Tuttle v. Dobbs .. Tuttle was employed by Dobbs Tire from March 1989 until March 2017. From July 2003 until November 2016, he served as the store manager of Dobbs Tire's Shiloh, Illinois, store. Tuttle alleges he was a satisfactory employee and received numerous awards. However, Tuttle alleges that, since 2015, he became the subject of discriminatory employment practices because of his age. .. COURT DECISION: (.pdf) (.html)
♦ Dec 26, 2019 .. (D.D.C.: Kirkland v. Duke (Homeland) .. Plaintiff Charmayne Kirkland brings this action against the Department of Homeland Security (the "Department") for allegedly violating the Rehabilitation Act, the Civil Rights Act, the Age Discrimination in Employment Act and the Civil Service Reform Act by discriminating against her on the basis of race, sex, age, and disabilities; retaliating against her for requesting reasonable accommodations and for her prior Equal Employment Opportunity ("EEO") activity; and terminating her employment without good cause. .. COURT DECISION: (.pdf) (.html)
♦ Dec 26, 2019 .. 6th Cir.: Morrissey v. LHC .. Rita Morrissey is a licensed practical nurse who worked for The Laurels of Coldwater ("Coldwater"), a skilled nursing and rehabilitation center, from 2001 until she quit in 2016. Morrissey alleges that she was under a twelve-hour work restriction due to a disability from 2012 onward, and Coldwater forced her to work beyond that restriction, compelling her to quit. She sued Coldwater under the Americans with Disabilities Act for discrimination, failure to accommodate, and retaliation. .. COURT DECISION: (.pdf) (.html)
♦ Dec 26, 2019 .. FLRA: AGRICULTURE REQUEST FOR GENERAL STATEMENT OF POLICY OR GUIDANCE .. THE FLRA IS SO FULL OF ___. .. On November 1, 2019, the U.S. Department of Agriculture (Department) requested the Authority to issue a policy statement on the following topic: To clarify that collective bargaining agreements (agreement) formally expire when the basic term or rollover period of the agreement concludes, irrespective of contract language, and renewal of the agreement through a "rollover" provision constitutes a new agreement that does not bar the implementation of government‑wide rules or regulations. FLRA Decision : The request by the Department for a general statement of policy or guidance is denied. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 20, 2019 .. 5th Cir.: Harville v. Houston .. Ms. Harville, a white female, was hired as a deputy clerk by the City of Houston in 2005. She worked in that position for approximately ten years. In September 2015, the City was facing a budget shortfall and [decided] to eliminate the positions and salaries of four City employees, including Harville's position. Harville's claims against the City arise from that termination. .. COURT DECISION: (.pdf) (.html)
♦ Dec 20, 2019 .. D.D.C.: Bell v. Mattis (DOD) .. Plaintiff, Ms. Bell was employed by the U.S. Department of Defense ("DoD") Defense Travel System ("DTS") as a GS-14 Program Analyst beginning on November 21, 2009. In July 2011, after DTS was absorbed by the DLA, Ms. Bell began working for DLA. Id. Ms. Bell was officially removed from her position on February 6, 2015 for being absent without leave. Ms. Bell has brought a Complaint against Defendant Mark T. Esper, in his official capacity as Secretary of Defense. .. COURT DECISION: (.pdf) (.html)
♦ Dec 20, 2019 .. FLRA: AirForce v. AFGE .. The Agency filed untimely exceptions to an award issued by Arbitrator Ed W. Bankston. It now asserts that the Authority should either extend or waive the expired deadline and consider the exceptions. Because the Authority's Regulations provide that the time limit for filing exceptions to an arbitration award may not be extended or waived, we dismiss the Agency's exceptions as untimely. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 19, 2019 .. 5th: Texas v. USA .. FEDERAL APPEALS COURT STRIKES OBAMA CARE MANDATORY COVERAGE PROVISION .. The Patient Protection and Affordable Care Act (the Act or ACA) is a monumental piece of healthcare legislation that regulates a huge swath of the nation's economy and affects the healthcare decisions of millions of Americans. The law has been a focal point of our country's political debate since it was passed nearly a decade ago. Some say that the Act is a much-needed solution to the problem of increasing healthcare costs and lack of healthcare availability. Many of the amici in this case, for example, argue that the law has extensively benefitted everyone from children to senior citizens to local governments to small businesses. Others say that the Act is a costly exercise in burdensome governmental regulation that deprives people of economic liberty. .. COURT DECISION: (.pdf) (.html)
♦ Dec 19, 2019 .. FLRA: SSA v. SSA Law Judges .. In this case, we further define the circumstances in which an award excessively interferes with management's rights to direct employees and assign work under § 7106(a)(2) of the Federal Service Labor-Management Relations Statute (Statute).[1] This case involves an alleged violation of the telework provision in the parties' agreement. Arbitrator Ira Cure found that the Agency violated the parties' agreement when it denied the grievant's telework request. The Agency argues that the award is contrary to law, the Arbitrator exceeded his authority, and the award fails to draw its essence from the parties' agreement. Applying the standard adopted in U.S. DOJ, Federal BOP (DOJ),[2] we find that the award is contrary to law, in part, because it excessively interferes with management's rights to direct employees and assign work. .. FLRA DECISION: (.pdf) (.html)
♦ DOJ OIG: A federal jury found a Texas woman guilty today for her role in a $5.5 million scheme to overbill the U.S. Department of Labor Office of Workers' Compensation Program for physical therapy and other services. After a five-day trial, before U.S. District Judge Karen G. Scholer of the Northern District of Texas, Melissa Sumerour, 48, of Lorena, Texas, was found guilty of six counts of health care fraud. Summary: (.pdf)
♦ Dec 17, 2019 .. FLRA: This Is A Clear Example Of How The FLRA Is Full Of S*** .. [The United States Department of Veterans Affairs] requests that the Authority issue a general statement of policy or guidance clarifying the meaning of the phrase "adversely affected" in § 7106(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute). FLRA RESPONSE: Upon careful consideration of the Petitioner's request, we find that it is not appropriate for resolution through the issuance of a general ruling. These questions would most appropriately be addressed in the context of the facts and circumstances presented by parties involved in an actual dispute. Accordingly, we deny the request. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 17, 2019 .. FLRA: This Is A ANOTHER Clear Example Of How The FLRA Is Full Of S*** .. [United States Department of Agriculture] requests that the Authority issue a general statement of policy or guidance regarding the Federal Service Impasses Panel's (the Panel's) mandatory authority to respond to a request for assistance following parties' use of alternative dispute resolution procedures in conjunction with the Federal Mediation and Conciliation Service and other attempts to resolve an impasse. Specifically, the Petitioner asks us to issue guidance on the analysis used by the Panel to determine whether an impasse exists. FLRA RESPONSE: Upon careful consideration of the Petitioner's request, we find that it is not appropriate for resolution through the issuance of a general ruling. These questions would most appropriately be addressed in the context of the facts and circumstances presented by parties involved in an actual dispute. Accordingly, we deny the request. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 17, 2019 .. FLRA: Army v. FLRA .. Federal Labor Relations Authority Regional Director John R. Pannozzo (the RD) denied twelve agency-filed petitions, to the extent that they sought representation elections in twelve certified bargaining units. The petitioner based its election requests on its alleged good-faith doubts that the exclusive representatives continued to represent a majority of the employees in their respective certified units, but the RD found that the petitioner's doubts were unsubstantiated. The petitioner filed ten applications for review (applications) challenging the RD's denials of representation elections for ten of the twelve certified bargaining units that were at issue in the petitions. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 12, 2019 .. 5th Cir.: Musser v. PQC .. Paul Quinn College ("PQC") is a private, historically black college in Dallas, Texas. After she was fired, Rebecca Musser sued her former employer, Paul Quinn College, for retaliation under the False Claims Act. The college maintains that it had legitimate reasons for terminating Musser's employment, including that her position was eliminated. But Musser claims that the college retaliated against her for internally reporting allegedly fraudulent practices by the college's chief financial officer in securing federal grants. .. COURT DECISION: (.pdf) (.html)
♦ Dec 11, 2019 .. FLRA: AFGE v. Army .. In this case, we find that the Union prematurely filed its petition for review (petition). Thus, we dismiss the petition without prejudice, as prematurely filed, with the right to refile. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 11, 2019 .. FSIP: Air Force v. AFGE .. This case, filed by the American Federation of Government Employees, Local 3254 (Union) on June 5, 2019, concerns a dispute over the Official Time article in the parties' successor collective-bargaining agreement (CBA) between it and the United States Department of the Air Force, Grissom Air Force Base, 434th Air Reserve Wing, Grissom Air Force Base, Indiana (Agency or Management). The Union filed this dispute under §7119 of the Federal Service Labor Management-Relations Statute (Statute). The Federal Service Impasses Panel (FSIP or Panel) asserted jurisdiction over this dispute and directed it to be resolved in the manner discussed below. .. FSIP DECISION: (.pdf) (.html)
♦ Dec 11, 2019 .. 5th Cir. CIR: Owens v. DCCC .. Dallas County Community College District (the District) is a Junior College District formed under the Texas Constitution. Brookhaven College, one of the colleges comprising the District, employed Owens as an Instructional Support Associate. He began as a part-time employee and later became a full- time employee. In September 2005, Owens was involved in a major accident while riding his motorcycle. The accident left him immobilized in bed for an extended period of time. Larry Owens sued his former employer, Dallas County Community College District, under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and various state laws. .. COURT DECISION: (.pdf) (.html)
♦ Dec 11, 2019 .. 5th Cir.: Musser v. PQC .. After she was fired, Rebecca Musser sued her former employer, Paul Quinn College, for retaliation under the False Claims Act. The college maintains that it had legitimate reasons for terminating Musser's employment, including that her position was eliminated. But Musser claims that the college retaliated against her for internally reporting allegedly fraudulent practices by the college's chief financial officer in securing federal grants. .. COURT DECISION: (.pdf) (.html)
♦ DOJ OIG: Did The FBI Abuse Trump Campaign When It Opened Russian Investigation ? Christopher Steele, George Papadopoulos, Carter Page, Paul Manafort, and Michael Flynn, Christopher Steele, . Summary: (.pdf) Report: (.pdf)
♦ Dec 10, 2019 .. Fed. Cir.: Barr v. MSPB .. Effective September 26, 2016, the Department of the Air Force appointed Mr. Barr to a competitive-service, career-conditional position as a Sheet Metal Mechanic stationed at Wright-Patterson Air Force Base in Ohio. The appointment was subject to Mr. Barr's satisfactory completion of a two-year probationary period. Mr. Barr was terminated during this probationary period for "negligence in the performance of duties." Mr. Barr appealed to the Board. Mr. Barr primarily contends that the Board erred by failing to consider the "improper procedures" used in his removal. .. COURT DECISION: (.pdf) (.html)
♦ AMTRAK OIG: New York Resident Pleads Guilty To Falsifying Applicant'S Pre-Employment Drug Test Results : Michael Hollingsworth, a resident of New York, pleaded guilty in U.S. District Court, Southern District of New York, on November 19, 2019, for accepting a gratuity in return for his involvement in falsifying an Amtrak pre-employment drug test. Summary: (.pdf)
♦ Dec 5, 2019 .. 6th Cir.: Morrissey v. Laurel .. Rita Morrissey is a licensed practical nurse who worked for The Laurels of Coldwater ("Coldwater"), a skilled nursing and rehabilitation center, from 2001 until she quit in 2016. Morrisey alleges that she was under a twelve-hour work restriction due to a disability from 2012 onward, and Coldwater forced her to work beyond that restriction, compelling her to quit. She sued Coldwater under the Americans with Disabilities Act for discrimination, failure to accommodate, and retaliation. At summary judgment, Morrissey supported her claims with evidence that: (1) she was disabled, (2) Coldwater had a blanket policy of denying all requests for accommodation that were not work-related, (3) Coldwater forced Morrissey to work beyond her medical restrictions, and (4) Coldwater targeted Morrissey after she complained. The district court granted summary judgment to Coldwater on all of Morrissey's claims. .. COURT DECISION: (.pdf) (.html)
♦ Dec 5, 2019 .. FLRA: Army v. AFGE .. The Activity/Petitioner—the U.S. Army Corps of Engineers, Little Rock District—filed a petition with the Atlanta Regional Office to determine whether the 2014 and 2016 reorganizations that resulted in one McClellan-Kerr Arkansas River Navigation System (MKARNS) made the two pre-existing bargaining units inappropriate under the successorship doctrine and whether the predominate unit should be certified as the exclusive representative of the two units without an election. Federal Labor Relations Authority Regional Director Richard S. Jones (RD) found that the Petitioner is a successor employer of the two units and that each of the units remained appropriate despite the reorganizations. Consequently, the Petitioner filed an application for review of the RD's decision. .. FLRA DECISION: (.pdf) (.html)
♦ Dec 5, 2019 .. 5th Cir.: Watson v. Esper .. Ms. Watson, an African American, began her term appointment as a Medical Records Administrative Specialist for the Army in June 2012, her term to end on June 17, 2015. She struggled in her job from the beginning. After failing an initial quality assurance review, she was given ninety days to earn a passing score. She never did. The Army then placed her on a performance improvement plan ("PIP"), but even after weekly meetings with supervisors, one-on-one trainings with audit specialists, and practice audits, Watson's work product did not pass muster. Citing her subpar performance, the defendant terminated Watson on July 19, 2013. While employed and after her termination, Watson applied to three permanent positions in the Army, but each application was rejected. On January 10, 2013, the Army also denied Watson's request to attend professional training, determining she had to first meet her productivity goals. That same day, Watson contacted the Equal Employment Opportunity Commission ("EEOC") to complain of harassment and a hostile work environment. She filed a formal complaint two months later. Watson eventually filed the instant action, alleging employment discrimination, retaliation, and harassment in violation of Title VII of the Civil Rights Act. .. COURT DECISION: (.pdf) (.html)
♦ Dec 4, 2019 .. 8th Cir.: Kaenel v. Teasdale .. The law firm of Armstrong Teasdale, LLP ("Armstrong Teasdale" or "the firm") has a provision in its partnership agreement that requires mandatory retirement at age 70. Joseph S. von Kaenel ("von Kaenel"), an equity partner at the firm, filed this action alleging the firm's mandatory requirement policy is in violation of the Age Discrimination in Employment Act ("ADEA"). .. COURT DECISION: (.pdf) (.html)
♦ Dec 4, 2019 .. D.C. Cir.: NTEU v. FLRA .. The dispute in this case involves two management rights – the right to "direct employees" and the right to "assign work." Id. § 7106(a)(2)(A)-(B). Petitioner National Treasury Employees Union ("Union") is the bargaining representative for persons employed by the U.S. Department of Homeland Security, Customs and Border Protection ("Agency"). In negotiations over a new collective bargaining agreement, the Union proposed that, in appraising employee work performance, the Agency not use any "performance appraisal rating levels above the Successful rating level for purposes of the annual appraisal process." Agency representatives declined to negotiate over the matter. The Union then filed a negotiability petition with the Federal Labor Relations Authority ("Authority" or "FLRA"), challenging the Agency's refusal to bargain. .. COURT DECISION: (.pdf) (.html)
♦ Dec 4, 2019 .. 7th Cir.: Stumm v. Wilkie (VA) .. Allen Bedynek Stumm sued the federal Department of Veterans Affairs for discriminating against him by twice hiring younger women instead of him. In 2001 and 2004, Stumm applied and interviewed for open positions in the Department, but each time a younger, female applicant was hired. Stumm filed charges of discrimination with the Equal Employment Opportunity Commission over the second hiring decision. The Commission found that the Department had discriminated against Stumm based on age but not sex. The Commission ordered the Department to offer Stumm employment, which Stumm would be required to accept within fifteen days, and to calculate appropriate back pay and benefits. Neither party requested reconsideration, and Stumm did not file a civil action within 90 days to challenge the adverse decision on sex discrimination. The Department made three job offers to Stumm between April and August of 2008; Stumm believed that each fell short with respect to the pay grade and retroactive start date, so he did not accept. .. COURT DECISION: (.pdf) (.html)
♦ Nov 27, 2019 .. FLRA: NATCA v. FAA .. Arbitrator David P. Twomey found that the Agency did not violate the parties' collective-bargaining agreement when it failed to pay Traffic Management Coordinators (coordinators) premium pay, and he denied the grievance. The Union alleges that the award is based on a nonfact. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 27, 2019 .. FLRA: VA v. AFGE .. On March 19, 2019, the Authority's Office of Case Intake and Publication (CIP) issued a deficiency order (DO) directing the Agency to correct the procedural deficiency by filing five complete copies of the arbitration award with the Authority by April 2, 2019. The DO stated that "[t]he Agency's failure to comply with this order by April 2, 2019, may result in dismissal of the Agency's exceptions." The question before us is whether the Agency's exceptions to the Arbitrator's January 3, 2019 award should be dismissed because of the Agency's failure to respond to an Authority deficiency order. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 27, 2019 .. D.D.C.: Perez v. DCDES .. Plaintiff Virginia Guillen-Perez ("Guillen") is a Hispanic woman who immigrated to the United States from the Dominican Republic. worked as a call-center assistant in the District of Columbia Department of Employment Services (the "Department") from 2012 until 2016. After she was terminated purportedly because of customers' complaints about her poor customer service, she brought suit against the District—as well as the Department and its mayor—alleging that they had discriminated and retaliated against her, in violation of various federal and D.C. laws. .. COURT DECISION: (.pdf) (.html)
♦ Nov 27, 2019 .. FLRA: VA v. NFFE .. The following facts are undisputed. The Agency administers the Housing and Urban Development Veterans Affairs Supported Housing (HUD-VASH) program, which provides vouchers to help veterans obtain housing. Social workers at the Agency manage the veterans' cases. There are between 350 and 400 social workers in the bargaining unit, which includes approximately 1,200 professionals overall. The HUD-VASH program operates within the Healthcare for Homeless Veterans (HCHV) program. Between 2013 and 2015, social workers in the bargaining unit came to the Union with complaints that HUD-VASH management were engaging in bullying, intimidation, retaliation, and fraud. These concerns came to a head in August 2015, when the director of HUD-VASH instructed social workers not to discharge veterans in the program until October 1, 2015, even though veterans were normally discharged within twenty-four hours. The delayed discharge would have artificially improved performance metrics at HUD-VASH, but many social workers feared that the directive was unethical, if not fraudulent, and that following the directive would put their own licenses at risk. After receiving complaints from employees and the Union concerning these allegations, the Agency convened an administrative investigation board (AIB or the Board) to investigate whether management was engaging in fraud, bullying, and harassment. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 26, 2019 .. D.D.C.: U.S. House of Representatives v. McGahn II (White House) .. President Donald J. Trump directed former White House Counsel Donald F. McGahn II to decline to appear before the Judiciary Committee in response to a subpoena that the Committee had issued to McGahn. On August 7, 2019, the Judiciary Committee filed the instant lawsuit. Invoking Article I of the U.S. Constitution, the Judiciary Committee implores this Court to "[d]eclare that McGahn's refusal to appear before the Committee in response to the subpoena issued to him was without legal justification" and it also seeks an "injunction ordering McGahn to appear and testify forthwith before the Committee" .. COURT DECISION: (.pdf) (.html)
♦ Nov 26, 2019 .. FLRA: OPM v. UNIONS .. On June 4, 2019, the U.S. Office of Personnel Management (OPM) requested the Authority to issue a policy statement on the following topic: Does an agency have an obligation to bargain at the demand of the exclusive representative on a mandatory subject of bargaining that is not covered by an existing agreement during the term of the collective bargaining agreement (CBA). .. FLRA DECISION: (.pdf) (.html)
♦ Nov 26, 2019 .. 10th Cir.: Payan v. UPS .. Charles Payan sued his employer, United Parcel Service ("UPS"), for racial discrimination. While the lawsuit was pending, UPS began investigating Mr. Payan for suspected timecard violations. The investigation revealed that he had instructed his subordinates to alter their timecards. UPS disciplined Mr. Payan for violating the company's integrity policy and stripped him of his yearly raise and annual stock distribution. Mr. Payan then filed a second lawsuit alleging that UPS had investigated and disciplined him in retaliation. .. DECISION: (.pdf) (.html)
♦ Nov 25, 2019 .. FLRA: IAMW v. Passport .. This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns seven proposals. Because the Agency does not claim that Proposals 1-4 and 6-7 conflict with any law, rule, or regulation, there is no dispute as to the negotiability of those proposals. Therefore, we dismiss the Union's petition for review (petition) as to Proposals 1-4 and 6-7, without prejudice. The remaining proposal, Proposal 5, relates to the establishment of compressed work schedules. The Agency claims that the proposal involves a permissive subject of bargaining that it elects not to bargain. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 22, 2019 .. WVSC: Burns v. WVDEA .. Petitioner Shirley Burns worked as a structural historian for the West Virginia Department of Education and the Arts (WVDEA) until she resigned in March of 2014. Several months prior to that, she asked WVDEA to permit her to work weekends from home rather than requiring her to take paid leave for her weekly absences from work required for medical treatments. WVDEA did not accommodate that request, and Ms. Burns continued working and taking leave for her medical treatments until she suffered an asthma attack at work on January 14, 2014. After she did not return to work and ultimately resigned, she sued WVDEA under the West Virginia Human Rights Act (Act). Ms. Burns alleges that she was unlawfully denied a reasonable accommodation and constructively discharged. .. COURT DECISION: (.pdf) (.html)
♦ Nov 21, 2019 .. 5th Cir.: Sterling v. BSEE (Interior) .. Plaintiff-Appellant Kevin Sterling, an African-American employee of the Bureau of Safety and Environmental Enforcement ("BSEE") within the United States Department of the Interior ("DOI"), alleged that (1) he was denied a timely reclassification to a higher-paying position because of his race and (2) he suffered retaliation in the form of an increased workload, a further delay in his reclassification, and a failure to receive back-pay because he filed an EEO complaint. .. COURT DECISION: (.pdf) (.html)
♦ Nov 21, 2019 .. 5th Cir.: Moore v. Brennan (Postal) .. Jessie Moore, a United States Postal Service (USPS) employee, appeals from the district court's summary-judgment dismissal of his Title VII retaliation claims. Moore sued, alleging that USPS had engaged in numerous acts of retaliation in violation of Title VII. The complaint also included references to potential breach of contract and age discrimination claims. .. COURT DECISION: (.pdf) (.html)
♦ Nov 21, 2019 .. FLRA: AFGE v. VA .. This case concerns the Agency's duty to bargain over the implementation of the Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (Accountability Act). Arbitrator Hyman Cohen found that the Agency did not have a duty to bargain, and therefore, did not violate the parties' agreement or § 7116(a)(5) of the Federal Service Labor-Management Relations Statute (Statute) by unilaterally implementing the Accountability Act without providing notice and an opportunity to bargain. The Union argues that the award is deficient because the Arbitrator's finding that there was no duty to bargain is contrary to the Statute. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 21, 2019 .. FLRA: AFGE v. VA .. This matter is before the Authority on a negotiability petition filed under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (Statute),[1] and concerns the negotiability of one proposal. Because the Agency failed to support its argument that the proposal is outside the duty to bargain, we grant the Union's petition. On November 19, 2018, the Agency notified the Union by email that its proposal was "non-negotiable in accordance with 5 [U.S.C. §] 7106(a)(2)(B)." The Union then timely filed its petition. After the deadline for the Agency's statement of position (SOP) passed, the Authority's Office of Case Intake and Publication issued an order directing the Agency to show cause why the Authority should not find that the Agency's failure to file a SOP is a concession that the proposal is negotiable. The Agency did not respond to the order. .. FLRA DECISION: (.pdf) (.html)
♦ DOJ OIG: Regarding Suicide Of Jeffrey Epstein: Correctional Officers Charged With Falsifying Records On August 9th And 10th At The Metropolitan Correctional Center: Defendants Allegedly Created Records Falsely Attesting to Required Checks of Inmates the Defendants Never Did in the Special Housing Unit on the Night Inmate Jeffrey Epstein Committed Suicide. Summary: (.pdf)
♦ AMTRAK OIG: Supervisor Resigns After Investigation Discloses Employee Abuses And Theft Of Property: stealing company property and misusing his own and other employees' company time for personal tasks. Summary: (.pdf) (.html)
♦ Nov 19, 2019 .. FLRA: Indian Health Service v. AFGE .. This case, filed by the U.S. Department of Health and Human Services, Indian Health Service, Claremore Indian Hospital, Claremore, Oklahoma (Agency or Management) on March 29, 2019, concerns a dispute between it and the AFGE, Local 3601 (Union) over 4 articles in the parties' successor collective-bargaining agreement (CBA). .. FLRA DECISION: (.pdf) (.html)
♦ Nov 18, 2019 .. D.D.C.: Steele v. Esper .. This case arises out of Plaintiff Brett Steele's former employment with the College of International Security Studies ("CISA") at the U.S. Department of Defense's National Defense University. Dr. Steele filed this civil action against Defendant, the Secretary of Defense in his official capacity, pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Dr. Steele claims that the ADEA was violated when CISA terminated his employment in favor of retaining and later hiring younger instructors. In June 2019, the court conducted a four-day bench trial on Dr. Steele's claim. .. COURT DECISION: (.pdf) (.html)
♦ Nov 18, 2019 .. D.D.C.: Pintro v. Pai .. Linda Pintro is an attorney at the Federal Communications Commission ("FCC" or "the Agency") who has been litigating discrimination claims against the Agency since 2013. Those claims are still being litigated in another case elsewhere in the District Court. The claims at issue in this litigation date from 2015 and 2016. Pintro alleges that at that time the FCC, and the FCC Office of General Counsel ("OGC") in particular, took adverse actions against her in retaliation for her first discrimination lawsuit. She says the Agency violated Title VII of the Civil Rights Act [...] in three ways: (1) when it rescinded an offer of permanent lateral reassignment; (2) when it permanently transferred her without her consent; and (3) when OGC attorneys interfered with her employment and opportunities for advancement by requiring her supervisors to monitor her too closely. .. COURT DECISION: (.pdf) (.html)
♦ Nov 18, 2019 .. 7th Cir.: Ford v. Marion .. Plaintiff Brigid Ford worked as a deputy in the Marion County Sheriff's Office until her hand was seriously injured in a car accident while on duty. After assigning Ford to light duty for about a year, the Sheriff's Office told Ford that she must either transfer to a permanent position with a cut in pay or be terminated. After some back and forth, Ford accepted a civilian job as a jail visitation clerk. In the following years, Ford alleges, she suffered disability-based harassment by co-workers, refusals to accommodate her scheduling needs, and several discriminatory promotion denials. Ford sued the Sheriff's Office for discriminatory employment practices in violation of the Americans with Disabilities Act. .. COURT DECISION: (.pdf) (.html)
♦ Nov 15, 2019 .. COURT888 CIR: Grant v. Mnuchin (Treasury) .. In June 2015, Aaron Darnell Grant filed a Complaint that appealed the 2015 Final Order issued by the Merit Systems Protection Board (MSPB or Board) sustaining his discharge from the Department of the Treasury in 2013. Appearing pro se, Mr. Grant asserted that the 2015 Final Order did not sufficiently weigh his proffered explanations for his conduct against Treasury's reasons for discharge. Secretary of the Treasury Steven T. Mnuchin, sued in his official capacity, moved for summary judgment; Mr. Grant opposed; and the Court granted summary judgment in favor of Treasury. While the motion for summary judgment was pending, Mr. Grant moved for an emergency telephone conference with the Court concerning possible fraud in the underlying investigation and reporting that were used to support his termination. .. COURT DECISION: (.pdf) (.html)
♦ Nov 15, 2019 .. FLRA: IRS v. NTEU .. In 2013, the Union was pursuing multiple local grievances because the Agency, at several of its locations, was limiting overtime shifts to Saturdays. The Agency refused to process the various local grievances because they "arose out of 'common facts'" and, according to the Agency, would result in duplicative litigation.[1] Thus, the Union withdrew the local grievances and filed a national grievance encompassing all of the local claims. Arbitrator Andrew M. Strongin issued an attorney-fee award granting, in part, and denying, in part, the Union's request for attorney fees incurred in connection with the litigation and settlement of hundreds of disputed overtime offers. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 14, 2019 .. 6th Cir.: Woolsey v. US .. After rejecting a plea discussed at a status conference of a sentencing range of 33 to 41 months, a jury convicted Richard Dean Woolsey of mail and wire fraud, resulting in a sentence of 90 months in prison. Woolsey later came to believe from a post- incarceration review of his counsel's file that his lawyer thought—but never told him—that the government's planned presentation at sentencing might lead to a 27-to-33-month sentence. On the strength of this disclosure in the file, Woolsey moved to vacate his sentence for ineffective assistance. .. COURT DECISION: (.pdf) (.html)
♦ Nov 14, 2019 .. FLRA: AFGE v. Army .. In October 2016, the human resources division of the Agency initiated an audit of positions that were previously classified as exempt under the administrative exemption of the FLSA. The Agency then reclassified the positions of all eligible bargaining-unit employees from exempt to non-exempt. After the Agency did not reimburse the affected employees for their unpaid overtime, the Union filed identical grievances at two facilities. The Agency responded to the grievances by agreeing to pay the affected employees for any unpaid overtime, plus interest, that had accrued for the two years prior to the reclassifications. The grievances proceeded to arbitration because the Union claimed that the reimbursements were inadequate. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 14, 2019 .. OCA: State v. Godoy .. Sergeant Brad Bishop of the Ohio State Highway Patrol ("OSHP") responded to a crash call on Interstate-71 and encountered Mr. Godoy alone in a considerably damaged truck on the side of the road. According to the sergeant, Mr. Godoy admitted to drinking one beer at dinner hours earlier and exhibited several indicators of alcohol impairment. Mr. Godoy performed poorly on three field sobriety tests and was arrested for operating a vehicle while under the influence of alcohol ("OVI") and failure to control. He refused to submit to both breathalyzer and urine testing. According to Mr. Godoy, he was not under the influence of alcohol while driving that night, but medical issues and new prescription medication may have caused him to lose consciousness while driving, which led to the accident. Appellant, Pete Godoy, appeals from his convictions in the Wayne County Municipal Court. .. COURT DECISION: (.pdf) (.html)
♦ Nov 8, 2019 .. FLRA: Comptroller v. NTEU .. The Union disputed the grievant's 2014 and 2015 annual performance evaluations. The Agency argued that the 2014 grievance was not arbitrable because a hearing was not timely scheduled. In her award, Arbitrator Mollie H. Bowers determined that the 2014 performance evaluation grievance was procedurally arbitrable, and subsequently sustained both grievances on the merits and directed the Agency to raise the grievant's performance rating and adjust his pay for both years. In this case involving performance evaluation grievances, we again remind the federal labor relations community that procedural-arbitrability determinations must be taken seriously, and also hold that an arbitrator may not substitute her judgment for management's in determining a grievant's performance rating. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 8, 2019 .. Fed. Cir.: Ferguson v. USPS .. Mr. Ferguson was employed by the United States Postal Service ("USPS" or the "agency") as the Postmaster of the Sedalia, Missouri, Post Office. As Postmaster, Mr. Ferguson was the highest-ranking management official in the office and was required to uphold the policies and regulations of the USPS. From August 2015 to August 2016, Mr. Ferguson supervised Taleah Passmore, an employee at the Sedalia, Missouri, Post Office. Shortly thereafter, Ms. Passmore was terminated for unsatisfactory performance. Following her termination, Ms. Passmore made allegations to USPS officials that Mr. Ferguson made inappropriate comments and gestures to her during her time at USPS. After investigating Ms. Passmore's allegations, USPS identified eight incidents, also referred to as "specifications," of misconduct by Mr. Ferguson. The specifications included inappropriate touching and comments about Ms. Passmore's physical appearance and her family. As a result, USPS terminated him. Mr. Ferguson appealed USPS's termination decision to the Merit Systems Protection Board ("MSPB" or the "Board"). Pro se appellant Robert Ferguson, Jr. appeals the Merit Systems Protection Board's final decision affirming his removal from the United States Postal Service based on a charge of inappropriate conduct. .. COURT DECISION: (.pdf) (.html)
♦ Nov 7, 2019 .. ICA: Fenceroy v. Gelita .. Gelita is a corporation based out of Germany with a plant in Sergeant Bluff, Iowa, which produces gelatin products used in a variety of industries. Fenceroy, an African-American, began working for Gelita in 1975 and retired in March 2013. For the majority of his tenure at Gelita, Fenceroy was the only African-American employee in the plant. Gelita's Code of Conduct provided to employees includes an anti- harassment policy as well as a reporting procedure. Fenceroy was also aware he had complaint procedures available to him through his union membership. Gelita holds annual training sessions concerning harassment and discrimination, which Fenceroy acknowledged attending on at least three separate occasions. Jeff Tolsma, Gelita's current head of human resources, sent a memo to all employees in August 2010, explaining harassment was a serious offense that could lead to disciplinary action. In October 2011, Fenceroy reported to human resources that a rope he believed was tied to resemble a noose was hanging in the plant where he worked. .. COURT DECISION: (.pdf) (.html)
♦ Nov 6, 2019 .. FLRA: NWSEO v. NOAA .. A provision in the parties' 1986 collective-bargaining agreement (CBA) provided that, if negotiations of a successor agreement could not be completed within 90 days and neither party requested the intervention of the Federal and Mediation Conciliation Service (FMCS) or the Federal Service Impasses Panel (FSIP or Panel) during negotiations, either party could terminate all or part of the agreement. In July 2017, the Agency terminated the parties' agreement after the parties were unable to agree to the terms of a new agreement within 90 days. The Union filed a grievance alleging that the Agency's termination violated [...] the CBA and constituted an unlawful repudiation. .. FLRA DECISION: (.pdf) (.html)
♦ Nov 6, 2019 .. 11th Cir.: Smith v. Vestavia .. Ms. Smith, an African American woman of approximately 52 years of age, was hired by the Vestavia Hills Board of Education (the "Board") prior to the start of the 2013–2014 school year. In her role as secretary/registrar, Ms. Smith carried out administrative duties typical of an office receptionist. Her assigned work hours were from 7:00 a.m. to 3:00 p.m. and, given the high visibility of her desk in the school's main office, it was imperative that her station be continuously covered during these hours. Tim Loveless, the VHHS principal, rated Ms. Smith's overall performance as "Meets or Exceeds Requirements," but noted that her punctuality needed improvement. .. COURT DECISION: (.pdf) (.html)
♦ Nov 5, 2019 .. 11th Cir.: Jacomb v. BBVA .. In August 2010, Jacomb, who is African American, was hired as a Senior IT Project Manager in the Technology and Support Services ("TeSS") division of BBVA. In July 2013, Jacomb had a new supervisor, Angela Simmons, who conducted Jacomb's 2013 performance review and bonus evaluation. Simmons reported directly to Kevin McMahon. Jacomb's 2013 performance review reflected that she met expectations in all areas except for two: an area labeled "one team" and implementation of the picture bill pay pilot project by the deadline. On September 24, 2013, Jacomb filed an EEOC charge against BBVA alleging racial discrimination based on harassment by her supervisors, Julbert and Jillian Henning. .. COURT DECISION: (.pdf) (.html)
♦ Nov 4, 2019 .. 2d Cir.: Wood v. Barr .. Giovanni Howard Wood, a native and citizen of Jamaica, came to the United States in 2004 on a tourist visa. He became a lawful permanent resident in 2006. When seventeen years old, Wood pled guilty to first-degree robbery in violation of Connecticut General Statutes[...]. He received a sentence of five years' imprisonment, suspended after one year, and five years' probation. In 2014, the Department of Homeland Security served Wood with a Notice to Appear and charged him as removable for having been convicted of an aggravated felony, either a crime of violence, or a theft offense. Before the IJ, Wood challenged his aggravated felony charges and asserted that his conviction was not a crime of violence as defined under 8 U.S.C. § 16(b). He also applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Following a hearing, the IJ ordered Wood removed to Jamaica. The IJ concluded that Wood's conviction was a crime of violence under Section 16(b), but the IJ did not address whether the conviction was a crime of violence under Section 16(a). The IJ found Wood's asylum and withholding of removal claims barred by his aggravated felony conviction and denied CAT relief. Wood filed a Notice of Appeal from the IJ's decision. .. COURT DECISION: (.pdf) (.html)
♦ Nov 4, 2019 .. 6th Cir.: Bilski v. Esper .. Bilski had more than 20 years' experience in federal service and had served as an electronics mechanic or electronics/mechanical mechanic for more than thirteen years, R. 14 PID 245-46, when he applied for promotion to the position of Electronic Security Assessment Officer/Physical Security Specialist in early 2014. McKeehan interviewed two candidates in March 2014, Bilski, then 54 years old, and Christopher Willoughby. McKeehan awarded the promotion to Willoughby, who was under the age of 40. During the promotion process time frame, Herald, who worked with Bilski, overheard a conversation between McKeehan and BGAD Police Chief Richard Bobo to the effect that they wanted to go with the "younger guy" for the Electronic Security Assessment Officer position because the other person was "close to retirement." After Herald told Bilski what he had overheard, Bilski filed an EEO complaint with the Department of the Army in June 2014. Herald provided a witness statement in support of Bilski's EEO complaint regarding the McKeehan-Bobo conversation. Plaintiffs' verified complaint alleged that Bilski's EEO complaint and Herald's participation as a witness precipitated retaliation by Defendant that included investigations and indefinite suspensions without pay. Defendant countered that the adverse employment actions resulted from Plaintiffs' misconduct, not their EEO complaints. .. COURT DECISION: (.pdf) (.html)
♦ Nov 1, 2019 .. TAC: Hocevar v. Molecular .. Marci Hocevar sued Molecular Health, Inc. under the Texas Commission on Human Rights Act ("TCHRA") claiming that a Molecular Health Vice President of Sales sexually harassed her, and when she complained, Molecular Health retaliated by unlawfully terminating her employment. .. COURT DECISION: (.pdf) (.html)
♦ Nov 1, 2019 .. D.D.C.: Corsi v. Mueller .. According to the amended complaint, Corsi is an "investigative conservative journalist and author," "a strong supporter of President Trump," and has researched Hillary Clinton's use of a private email server to conduct government business while Secretary of State. The amended complaint alleges that Corsi's research and political affiliations prompted the government and Mueller, then-Special Counsel, to attempt "to coerce, Corsi into testifying falsely" before the grand jury convened to investigate Russian interference in the 2016 U.S. Presidential election. Specifically, Corsi claims that "Defendant Mueller and his prosecutorial staff" sought to force Corsi to testify before the grand jury that Corsi "acted as a liaison between Roger Stone and Wikileaks leader Julian Assange concerning the public release of emails obtained from the DNC's servers." Corsi allegedly told Mueller that the desired testimony would be false. Corsi claims that, despite this, "Defendant Mueller . . . threatened to indict Plaintiff Corsi and effectively put him in federal prison for the rest of his life" if he did not provide the testimony Mueller wanted. Corsi further alleges that "Mueller and his staff have leaked grand jury information to the press concerning Plaintiff Corsi." .. COURT DECISION: (.pdf) (.html)
♦ Nov 1, 2019 .. 6th Cir.: James Williams v. GPI .. James "Randy" Williams worked as a department manager for Graphic Packing International, Inc., from 2011 to 2015. In 2015, his employment was terminated after an internal investigation revealed that Williams had been using manipulative and coercive tactics to control his employees and prevent them from communicating with upper management. His termination took place shortly after his return from medical leave for treatment of prostate cancer. He sued under the Americans with Disabilities Act, Tennessee Disability Act, Genetic Information Non-Discrimination Act, Age Discrimination in Employment Act, Tennessee Human Rights Act, Family Medical Leave Act, and the Employee Retirement Income Security Act, alleging that he was fired because of his illness and age. Graphic Packaging asserts that Williams was terminated because his treatment of his employees violated the company's Core Values. .. COURT DECISION: (.pdf) (.html)
♦ Oct 31, 2019 .. FLRA: VA v. AFGE .. The sole question before us is whether the Agency's exceptions to Arbitrator David M. Blair's attorney-fees award are timely. Background and Order to Show Cause The Arbitrator issued an attorney-fees award and served the award on the parties by email on November 1, 2018. Any exceptions to the award were due no later than December 3. The Agency filed exceptions to the award using a commercial-delivery service – United Parcel Service (UPS). The Authority's Office of Case Intake and Publication issued an order to show cause (the order) why the Agency's exceptions should not be dismissed as untimely because it appeared that the Agency did not deposit the exceptions with UPS until December 4. Specifically, the Agency was asked to clarify why a mailing label was created on December 3 but the exceptions were not marked as shipped until December 4. The Agency filed a timely response to the order (response). .. FLRA DECISION: (.pdf) (.html)
♦ Oct 30, 2019 .. 7th Cir.: Shell v. BNSF .. Burlington Northern Sante Fe Railroad Company refused to hire Ronald Shell solely because it believed his obesity presented an unacceptably high risk that he would develop certain medical conditions that would suddenly incapacitate him on the job. Shell sued BNSF under the Americans with Disabilities Act, alleging that BNSF discriminated against him based on a disability. .. COURT DECISION: (.pdf) (.html)
♦ Oct 30, 2019 .. D.D.C.: Jackson v. DC .. Plaintiff Clarence Jackson alleges that Defendants Office of the Mayor of the District of Columbia and the District of Columbia Court of Appeals Committee on Admissions ("COA") improperly denied him the opportunity to take the District of Columbia bar exam for a fifth time. See Compl., ECF No. 1, at 2–3. Construed liberally, Plaintiff's Complaint asserts the following claims: (1) violation of the Sixth, Thirteenth, and Fourteenth Amendments of the United States Constitution; (2) discrimination under the Americans with Disabilities Act ("ADA"); (3) breach of contract; and (4) intentional and negligent infliction of emotional distress. .. COURT DECISION: (.pdf) (.html)
♦ Oct 30, 2019 .. D.D.C.: Telligent v. Continental .. Grunley Construction Company, Inc. (Grunley) was awarded the prime construction contract (Contract) in 2014 for work related to restoration of the Historic Center Building at St. Elizabeth's West Campus for future occupation by the U.S. Department of Homeland Security (DHS). Grunley executed a payment bond with sureties Continental Casualty Company and Liberty Mutual Insurance Company. On or about November 23, 2015, Grunley and Telligent Masonry, LLC (Telligent) agreed to a subcontract by which Telligent was to perform masonry and related work for compensation of $1,725,000.00. At some point, Grunley directed Telligent to perform additional work which raised the total value of the subcontract to $2,273,984.83. To date, Grunley has paid Telligent a total of $2,159,533.33, which is $114,451.50 short of the total subcontract value. On April 17, 2019, Telligent filed suit pursuant to the Miller Act [...] against the two sureties to recover monies allegedly due. .. COURT DECISION: (.pdf) (.html)
♦ AMTRAK OIG: EMPLOYEE TERMINATED FOR VIOLATION OF COMPANY POLICY: An Amtrak On Board Services employee in New Orleans was terminated from employment on October 9, 2019, following an administrative hearing for violating company policy. Our investigation found that the employee fraudulently advertised and accepted payment for an Amtrak private charter trip that Amtrak officials neither authorized nor scheduled. The employee accepted $400-$500 for reservations from at least 35 members of the public for this non-existent trip. As part of the fraudulent scheme, the employee used the Amtrak company logo, company e-mail, and photographs in communications with the victims. Judicial proceedings are pending. Summary: (.pdf) (.html)
♦ Oct 29, 2019 .. D.D.C.: Niskey v. Nielsen (DHS) .. Lawrence Niskey, an African American male, is a former employee of the U.S. Department of Homeland Security ("DHS") whose prior lawsuit in this Court alleged "discrimination, retaliation, and failure to comply with agency regulations. The decision of the D.C. Circuit recounts events from April 2002 through his removal in September 2007, including his suspension and the revocation of his security clearance, in some detail. .. COURT DECISION: (.pdf) (.html)
♦ Oct 29, 2019 .. 11th Cir.: Austin v. Rosewood .. Henrietta Austin was born in 1948. In 1994, when she was approximately 46 years old, she was hired by Rosewood to be a housekeeper at Rosewood Manor, a nursing home located in Pensacola, Florida. She worked alongside other housekeepers in "B Hall," a specific area of the facility. Her cleaning rounds usually included: thirteen rooms in B Hall, three bathrooms, a shower, the nurses' office, the activities' office, the dining room (with help from another housekeeper) once per day, and sometimes the dietary office and its bathroom. She also conducted peer interviews of potential hires, something that no other housekeeper did. Henrietta Austin sued her former employer, FL HUD Rosewood, LLC ("Rosewood"), alleging age discrimination and retaliation in violation of the federal Age Discrimination in Employment Act ("ADEA")and the Florida Civil Rights Act ("FCRA"). .. COURT DECISION: (.pdf) (.html)
♦ Oct 25, 2019 .. D.D.C.: Redmon v. YMCA .. Plaintiff [JR] was a male supervisory lifeguard for Defendant YMCA of Metropolitan Washington, where he had worked for several years. [ME2] On at least one prior occasion, a female subordinate fabricated a sexual harassment claim against JR in retaliation for his role in disciplining her, but he was later exonerated. [ME2] But after receiving [additional] anonymous complaints of sexual harassment by one or more of the female lifeguards JR supervised, the YMCA suspended and then terminated him. JR alleges that the termination was pretextual and that he was in fact terminated on the basis of his sex in violation of Title VII of the Civil Rights Act. .. COURT DECISION: (.pdf) (.html)
♦ Oct 25, 2019 .. 6th Cir.: Igwe v. Salvation Army .. Plaintiff, Ph.D is an African American man of Nigerian origin who was 63 years old at the time of his discharge. Dr. Plaintiff began working for the Salvation Army in 1985 and joined the Southeast Michigan Salvation Army Rehabilitation Center (the "Detroit ARC") as its Director of Rehabilitation Services ("DRS") in 2003, where he was responsible for client intake and counseling. Then, in 2006, the Salvation Army restructured the Detroit ARC, and Plaintiff's job title changed from DRS to "Director of Programs" because another employee assumed responsibility for client intake. Things changed in 2016, when Larry Manzella became the Detroit ARC's administrator. Plaintiff alleges his former employer, defendant Salvation Army, violated the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII") when it chose another candidate for a promotion and later terminated his position. .. COURT DECISION: (.pdf) (.html)
♦ Oct 24, 2019 .. FLRA: Defense v. FEA .. Under the parties' agreement, employees may attain a certain salary rate only if they acquire a master's "degree plus hours" of academic coursework that were not required to earn that master's degree (plus hours). Arbitrator Charles J. Murphy issued an award finding that the Agency violated the agreement by denying some employees credit for certain plus hours. As a remedy, the Arbitrator directed the Agency to correct employees' salaries, provide some employees backpay, and pay the Union's attorney fees. The Agency filed exceptions to the award. .. FLRA DECISION: (.pdf) (.html)
♦ PRESS RELEASE : THE UNITED SATES INSPECTOR GENERAL COMMUNITY SHOWS DEEP RESPECT FOR CONGRESSMAN ELIJAH E. CUMMINGS The Inspector General Community was truly fortunate to have a champion and supporter in Chairman Elijah Cummings. Chairman Cummings' leadership was instrumental in the passage of landmark good government reforms, including the Inspector General Empowerment Act of 2016. His work as a legislator was critical to our community's efforts to conduct more effective and independent oversight. And, his personal integrity and moral courage provide a lasting example to all of us that strive to make government work better for the American people. The Inspectors General will deeply miss Chairman Cummings as an advocate for our shared ideals, and we will continue to be inspired by his commitment to better, more effective, and accountable government. Press Release: (.pdf)
♦ Oct 21, 2019 .. 6th Cir.: Hank v. GLC .. Hank's case involves his termination from Great Lakes Construction Company. Defendants are Great Lakes and Hank's union, Local 18, International Union of Operating Engineers. Hank claims that his termination was discrimination and retaliation. Great Lakes and the Union claim it was because Hank falsified his daily timecards. They also point out that Hank signed a release that bars his claims. .. DECISION: .pdf .html
♦ Oct 21, 2019 .. PSC: Babb v. CCH .. Geisinger Clinic ("Geisinger") appeals from the order entered by the Court of Common Pleas of Centre County after a jury found in favor of Terrence E. Babb, M.D., on his breach of contract claim and awarded Dr. Babb $5.5 million in damages. Dr. Babb filed this cross-appeal, challenging the trial court's denial of his claim for pre-judgment interest. .. COURT DECISION: (.pdf) (.html)
♦ Oct 21, 2019 .. 7th Cir.: Ulrey v. Reichhart .. Plaintiff Lisa Ulrey served as the assistant principal of the Manchester Junior-Senior High School until November 4, 2014, when she resigned during a meeting with William Reichhart, the school district's superintendent. Ulrey brings two claims in this suit [...] against Reichhart and the school board. First, she claims that Reichhart violated her rights under the First Amendment by retaliating against her for her speech about a student discipline issue. Second, she contends that the defendants violated her Fourteenth Amendment rights by coercing her to resign, depriving her of her property interest in her job without due process of law. .. COURT DECISION: (.pdf) (.html)
♦ Oct 17, 2019 .. 6th Cir.: Edelstein v. SSA .. Joseph Edelstein had been an attorney for the Social Security Administration (SSA) for 23 years when he applied to become an SSA Administrative Law Judge (ALJ) in 2009 at age 56. In 2009, Edelstein applied to be an ALJ and was placed on a register of qualified candidates for ALJ positions in Akron and Cleveland. He was not selected for the promotion. Edelstein filed this employment-discrimination action against the Commissioner of the SSA, alleging age and religious discrimination. .. COURT DECISION: (.pdf) (.html)
♦ Oct 17, 2019 .. 10th Cir.: Turner v. Phillips 66 .. In 2017, Mr. Turner worked for Phillips 66 as a crane operator at the company's refinery in Ponca City, Oklahoma. He was subject to and aware of Phillips 66's substance abuse policy, which allowed for random and post-accident drug testing. On April 24, 2017, Mr. Turner was selected for a random drug test and supplied a urine sample. On April 27, after he was involved in a workplace accident, he provided another urine sample for drug testing. That same day, a Cynergy MRO informed him his April 24 sample had tested positive for amphetamines. On April 28, Phillips 66 terminated Mr. Turner's employment based on the positive drug test. .. COURT DECISION: (.pdf) (.html)
♦ Oct 17, 2019 .. 11th Cir.: Robinson v. Virginia College .. Robinson earned three degrees from Virginia College, and later he became its employee and signed an arbitration agreement. After the College lost its accreditation and closed several of its campuses, Robinson sued the College and Education Corporation for allegedly awarding worthless degrees, deceiving former and current students, and depriving students of postgraduation services and employment opportunities. .. COURT DECISION: (.pdf) (.html)
♦ Oct 16, 2019 .. FLRA: Army v. AFGE .. The Union filed a grievance alleging that the Agency was required to promote an employee (the grievant) based on the accretion of certain duties to his position. Arbitrator Richard Trotter issued an award sustaining the grievance and directing the Agency to permanently promote the grievant. Because the grievance and the award concern classification within the meaning of § 7121(c)(5), we set aside the award. .. FLRA DECISION: (.pdf) (.html)
♦ Oct 16, 2019 .. FLRA: AFGE v. VA .. In this case, Arbitrator Michael S. Jordan denied the Union's grievance alleging that the Agency refused to bargain over official time for certain bargaining-related activities, in violation of the parties' master collective-bargaining agreement (master agreement) and mid-term local ground rules agreement (ground rules). The Arbitrator found that a Decision and Order (Order) issued by the Federal Service Impasses Panel (Panel) clarified the parties' obligations concerning official time, and he directed the parties to comply with the Order. The questions before us are whether the award: (1) fails to draw its essence from the master agreement and ground rules (collectively, agreements) and (2) is ambiguous and impossible to implement. .. FLRA DECISION: (.pdf) (.html)
♦ DOJ OIG: DOJ PRESS RELEASE: Oscar Martínez-Hernández, a.k.a. "Cali" Sentenced To Life In Prison For The Murder Of Federal Bureau Of Prisons Correctional Officer Osvaldo Albarati-Casañas. Ramos-Cruz was sentenced to 309 months, Quiñones-Meléndez was sentenced to 285 months, Díaz-Rivera was sentenced to 129 months, Mojica-Rodríguez was sentenced to 249 months, Rodríguez-González was sentenced to 396 months, Rosario-De León was sentenced to 204 months, Rosado-Rosado was sentenced to 140 months, and Velázquez-Vázquez was sentenced to 120 months. Summary: (.pdf)
♦ Oct 15, 2019 .. OCA: State v. Shelton .. On August 28, 2018, Shelton was arrested and charged with failing to maintain an assured clear distance and for operating a vehicle while under the influence of alcohol. The charges arose following an investigation into an automobile accident between Shelton and another driver, R.B. The accident occurred when Shelton struck R.B.'s vehicle from the rear while R.B. was stopped at a red light. The investigation into the accident was conducted by Patrol Officer Cameron Shaw with the Union Township Police Department. Following this investigation, Officer Shaw placed Shelton under arrest. Officer Shaw later submitted a report noting that he had arrested Shelton due to her exhibiting "bloodshot watery eyes" and an "odor of alcoholic beverage" shortly after she was involved in an automobile accident. On September 5, 2018, Shelton filed a motion to suppress arguing that her arrest was not supported by probable cause. After holding a hearing on the matter, the trial court agreed and granted Shelton's motion to suppress. Appellant, the state of Ohio, appeals the decision. .. COURT DECISION: (.pdf) (.html)
♦ Oct 15, 2019 .. 3rd Cir.: Miller v. NYNJPA .. After being terminated, Gary Miller, a former utility systems maintainer for The Port Authority of New York and New Jersey (the "Port Authority"), brought suit under Title VII of the Civil Rights Act of 1964, alleging that the Port Authority failed to reasonably accommodate his religious practices of observing the Jewish Sabbath and other Jewish holidays. Miller filed suit, alleging that the Port Authority did not provide a reasonable accommodation for his religious observances. .. COURT DECISION: (.pdf) (.html)
♦ Oct 11, 2019 .. 3rd Cir.: Carson v. Willow .. Carson is a 66-year-old Vietnam veteran. He was employed by Willow Valley as a security officer and concierge for about six months until Willow Valley terminated his employment on April 17, 2015. Carson later filed suit against Willow Valley. His primary complaint appeared to be that Willow Valley terminated him in retaliation for his filing of complaints about workplace safety under the Occupational Safety and Health Act of 1970 ("OSHA"). By order entered February 12, 2018, the District Court granted Willow Valley's motion, denied Carson's motion, and dismissed Carson's complaint. Carson appeals from the order of the District Court dismissing his complaint against Willow Valley Communities and Willow Valley Living (collectively, "Willow Valley"). .. COURT DECISION: (.pdf) (.html)
♦ Oct 11, 2019 .. A.F.C.C.A.: U.S. v. LEON .. Between 1 July and 1 September 2017, Appellant smoked marijuana from a pipe with another Airman, sitting in his car in an Oklahoma City Walmart parking lot. In November 2017, Appellant again smoked marijuana from a pipe on Tinker Air Force Base (AFB). On 3 November 2017, Appellant brought approximately nine grams of marijuana onto Tinker AFB with the intent to distribute it, and distributed all of it to another Airman. On 22 November 2017, Appellant distributed approximately six grams of marijuana to a second Airman. Both of the Airmen Appellant sold marijuana to were later identified as confidential informants and their true identities were not revealed. The military judge sentenced Appellant to a bad-conduct discharge, confinement for five months, forfeiture of $1,092 pay per month for six months, and a reprimand. In accordance with the PTA, the convening authority (CA) only approved three months of confinement but approved all other elements of the sentence as adjudged. Appellant raises one issue for our consideration on appeal: whether he is entitled to relief due to post-trial processing delay. .. COURT DECISION: (.pdf) (.html)
♦ Oct 10, 2019 .. ICA: Baloch v. Pioneer .. Qasim Baloch, a person of Pakistani origin and a practicing Muslim, was employed by Pioneer Hi-Bred International, Inc. (Pioneer) in the information technology department. After tendering his resignation, Baloch sued Pioneer and others for employment discrimination. .. COURT DECISION: (.pdf) (.html)
♦ Oct 10, 2019 .. 7th Cir.: McDaniel v. PRL .. Plaintiff-appellant David McDaniel alleges his former employer, defendant-appellee Progress Rail Locomotive, Inc., unlawfully discriminated against him on the basis of age and retaliated against him for complaining about a superior, in violation of the Age Discrimination in Employment Act ("ADEA") .. COURT DECISION: (.pdf) (.html)
♦ Oct 9, 2019 .. FLRA: State v. NFFE .. In March and April of 2017, in two separate incidents, recently installed overhead bins fell on employees at the Agency's Chicago office. The Agency determined that the overhead bins were knocked off from their brackets due to user error when the desks were raised to standing height and items on the desks collided with the bins. In November 2017, an overhead bin fell off its bracket, as opposed to being knocked off, and struck an employee at the Agency's New Orleans office. The Agency began to remove the bins from all Passport Specialist workstations. This case concerns changes to the workstations of Passport Specialists, who process and approve or deny applications for U.S. Passports. In 2017, the Agency began installing height-adjustable sit/stand desks at all Passport Specialist workstations. The desks included an overhead bin for storage and task lighting attached to the bin. .. FLRA DECISION: (.pdf) (.html)
♦ Oct 9, 2019 .. D.D.C.: Keister v. AARP .. Plaintiff Kim Keister worked as an employee of AARP, Incorporated, for approximately 12 years prior to having a stroke that allegedly required him to stop working. Keister first pursued long-term disability benefits under the company's disability benefits plan administratively, and he now seeks such relief from this Court. .. COURT DECISION: (.pdf) (.html)
♦ Oct 9, 2019 .. 2d Cir.: Mercedes v. DOE .. Appellant Leanna Mercedes appeals from the September 28, 2018 opinion and order of the United States District Court for the Southern District of New York (Broderick, J.), granting the Department of Education's motion for summary judgment as to Mercedes's claims of employment discrimination, retaliation, and a hostile work environment under Title VII of the Civil Rights Act. .. COURT DECISION: (.pdf) (.html)
♦ Oct 9, 2019 .. D.D.C.: Lewis v. D.C. .. Kayla Dionne Lewis and Felton Hill, the named plaintiffs in this case, bring this putative class action against the defendant, the District of Columbia (the "District"), pursuant to 42 U.S.C. § 1983 (2018), alleging constitutional violations arising from their arrests and subsequent detentions. .. COURT DECISION: (.pdf) (.html)
♦ Oct 7, 2019 .. Fed. Cir.: Freeman v. Army .. James C. Freeman petitions for review of the final decision of the Merit Systems Protection Board (the "Board") affirming the Army's decision to remove Freeman from his position as cook because of his frequent absences from work without leave. Freeman was employed from 2011 to 2018 as a cook with the Army. Before that, he served on active duty in the Army. Freeman was diagnosed with service-connected post-traumatic stress disorder ("PTSD") in 2013. In January 2018, the Army proposed to remove Freeman because of his frequent absences from work without leave ("AWOL"). Freeman made an oral reply, but the Army sustained his removal in June 2018, and Freeman then appealed to the Board. The administrative judge ("AJ") found that Freeman was absent from work without approval for 682.75 hours over a period from January 2017 to January 2018. Freeman argued that his supervisors approved his absences after the fact, but the AJ did not credit this argument because Freeman did not call any witnesses to support that contention. .. COURT DECISION: (.pdf) (.html)
♦ Oct 7, 2019 .. 6th Cir.: Bisig v. TWC .. This case is about promises made, promises broken, and disclaimers signed. And it is a reminder that not every broken promise occasions a legal remedy. Plaintiffs first worked as "multi-dwelling unit" sales representatives ("MDU Reps") for Insight Communications, Inc., a provider of cable, internet, and phone services. In that role, Plaintiffs sold Insight's services to apartment and condominium complexes in Louisville, Kentucky. It was a privileged role. All other sales representatives were "single-dwelling unit" sales representative ("SDU Reps"). Unlike MDU Reps, SDU Reps had to split their time going door-to-door, selling Insight's services to individual homeowners. These clients were less lucrative for Insight, which generally paid SDU Reps less than MDU Reps. .. COURT DECISION: (.pdf) (.html)
♦ Oct 7, 2019 .. 2d Cir.: Powell v. Lab Corp .. Terence C. Powell, proceeding pro se, appeals the district court's judgment granting the defendants' motions to dismiss. Powell alleged that the defendants conspired against him in state court paternity actions, in drug testing him and discharging him from employment, and in having him arrested three times. Powell raised claims under 42 U.S.C. § 1983, the Genetic Information Nondiscrimination Act [...] and state law. .. COURT DECISION: (.pdf) (.html)
♦ Oct 4, 2019 .. D.D.C.: Hall v. Nielsen (Homeland) .. Pro se Plaintiff Steven H. Hall has filed a litany of lawsuits related to his employment with, and 2013 termination from, the Department of Homeland Security, as well as the 2015 settlement agreement concluding those affairs. In fact, a few months ago, this Court issued a Memorandum Opinion and separate Order enjoining him from filing future suits regarding, inter alia, his termination from DHS without prior leave of this Court. The current case does not fall within such proscription because it was filed before the injunction issued. The Government now moves to dismiss. .. COURT DECISION: (.pdf) (.html)
♦ Oct 4, 2019 .. D.D.C.: Farrar v. Bridenstine (NASA) .. Pro se Plaintiff Andrew Farrar wants to have his cake and eat it, too. After prevailing at the administrative level in a disability-based discrimination claim against his former employer, the National Aeronautics and Space Administration, Farrar obtained a damages award that he has retained. He nonetheless now sues NASA seeking additional damages and other relief on the same underlying claim. Farrar's tenure at NASA Headquarters was brief, lasting only from August 2010 to January 2011. He alleges that Defendant "discriminated against [him] by refusing to accommodate [his] disability." Such disability appears to be attention-deficit disorder, memory loss, and depression. On February 11, 2016, NASA issued its Final Agency Decision on damages and awarded him $8,440.18 plus interest, restored leave, $3,000 in non-economic damages, and $1,375 in attorney fees. [EEOC] issued another 16-page opinion in which it increased the non-economic damages to $25,000 and retained the other relief. In this suit, consequently, he seeks "placement into the position I would have occupied if not for the unlawful conduct of Defendant," which means, inter alia, "employment or front pay" and "[a]dditional compensation beyond the $25,000 previously paid to address the full exten[t] of the losses caused by the unlawful conduct of Defendant. NASA now moves to dismiss. .. COURT DECISION: (.pdf) (.html)
♦ Oct 4, 2019 .. 8th Cir: Garrison v. DolGenCorp .. Garrison was a lead sales associate at a Dollar General store in Concordia, Missouri. Her immediate supervisor was Sandra Bell, who, like Garrison, had a key to open and close the store. The four "key holders" had to coordinate their schedules so that at least one of them could be there when the store opened and closed each day. Garrison, who suffers from anxiety, migraines, and depression, wished to take a leave of absence due to her worsening medical condition. At one point, following a visit to her doctor, Garrison texted Bell and asked, "[h]ow can I request a leave of absence[?]," to which Bell responded, "I'm not sure [but] I'll talk to [the district manager]." Garrison sued Bell and Dollar General in Missouri state court. She claimed that they discriminated against her under both the Americans with Disabilities Act ("ADA") and the Missouri Human Rights Act ("MHRA"), interfered with her ability to seek medical leave under the Family and Medical Leave Act ("FMLA"), and retaliated against her for attempting to exercise her rights under each of these laws. The defendants removed the case to federal district court, which dismissed Garrison's lawsuit in its entirety on summary judgment. .. COURT DECISION: (.pdf) (.html)
♦ Oct 4, 2019 .. 10th Cir.: Ordonez v. ABM .. The appeals relate to appellant Sonia Ordonez's lawsuit under Title VII of the Civil Rights Act [...], against her former employer, appellee ABM Aviation, Inc. (ABM). In her suit she charged ABM with sexual harassment, discrimination, and retaliation. In Appeal No. 17-4188, Ordonez appeals from the district court's judgment dismissing her Title VII action after ABM settled her claims against ABM with the Chapter 7 Trustee in her personal bankruptcy, and its denial of her motion for reconsideration. In the other three appeals she challenges various bankruptcy court orders relating to the settlement. .. COURT DECISION: (.pdf) (.html)
♦ Oct 1, 2019 .. FLRA: SSA v. AFGE .. The grievant previously worked for the Agency as a General Schedule (GS)-14 in Virginia. In March 2014, the grievant began teleworking once a week with an alternate duty station (ADS), also in Virginia. In June 2014, she began teleworking three days a week. The grievant and her supervisor discussed the possibility of her teleworking from Lexington, Kentucky because her parents, siblings, and extended family live in Lexington. In October 2014, the grievant requested a hardship transfer to Lexington, Kentucky based on her parents' medical conditions. The Agency offered her a GS-12, Step 10 position, which she accepted. The grievant, represented by the Union, filed a grievance alleging a host of missteps by the Agency. The grievance was submitted to arbitration. .. FLRA DECISION: (.pdf) (.html)
♦ Oct 1, 2019 .. D.D.C.: Schneider v. Justice .. In February 2016, OPM initiated a background check on Schneider for a Summer Chaplain Internship at Fort Belvoir Community Hospital. The background check process revealed that, in 2005, an individual whom OPM believed to be Schneider admitted to certain actions during a law enforcement interview. Although Schneider denies these allegations, he was removed from parish ministry and is unable to return. In October 2017, Schneider submitted a request under FOIA and the Privacy Act to OPM's National Background Investigation Bureau. Brandon Schneider brings this suit alleging that the Department of Justice's Federal Bureau of Investigation (FBI) and the Office of Personnel Management (OPM) unlawfully withheld records in violation of the Privacy Act and the Freedom of Information Act (FOIA). .. COURT DECISION: (.pdf) (.html)
♦ Oct 1, 2019 .. 4th Cir.: Clehm v. BAE .. The plaintiff in these proceedings, Carla A. Clehm, is an employee of defendant BAE Systems Ordnance Systems, Inc., a federal defense contractor that operates the Radford Army Ammunition Plant (the "Radford Arsenal") located on the New River in western Virginia. On two occasions, in May and June of 2014, Clehm [alleges that she] was sexually assaulted during her shifts at the Radford Arsenal by a co-worker, defendant Joshua Linkous. According to BAE, Clehm did not report those assaults to BAE or her union at or near the time the assaults occurred, and BAE did not learn of the assaults until early August 2014, when Clehm was interviewed as part of an investigation of Linkous's sexual assault of another employee. The investigation revealed to BAE that Linkous had sexually assaulted at least four female Radford Arsenal workers, including Clehm, over a period of several years. BAE had promptly suspended Linkous and barred him from entering the Radford Arsenal property pending the investigation, and BAE then terminated Linkous's employment and successfully resisted a union grievance seeking his reinstatement. Linkous subsequently pleaded guilty to federal criminal charges related to the sexual assaults and is serving a fourteen-year prison sentence. .. COURT DECISION: (.pdf) (.html)
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