MINAHAN AND SHAPIRO, P.C. Attorneys at Law

Barrie won a very difficult case for a client which led to a decision by the full MSPB in Washington, D.C. The case involved a manager with the Small Business Administration in Denver who accepted a promotion to another position in Washington, D.C. Because he knew how often he would have to travel back to Denver, he told his superiors that he would accept the position only if his official duty station remained Denver. They agreed. Later, he was demoted and suspended for not using Washington, D.C. as his official duty station. SBA said this resulted in his being paid travel and per diem expenses for periods of time when he as at his official duty station. The MSPB reversed the demotion, though it imposed a suspension on him for improper use of the government credit card on certain trips. The client was returned to his former job with backpay. Rennaye Johnson v. Small Business Administration.

Congratulations to Kevin Fornelius of AFGE Local 1592 at Hill Air Force Base, Utah. Kevin represented an employee who filed an EEO complaint alleging that he was unlawfully fired during his probationary period. The EEOC judge found that the employee had been subjected to harassment because he was Korean. He also determined that the employee's supposed failings were either not true or completely overblown by management. The EEOC judge ordered the agency to reinstate the employee. Kris Borg v. Secretary of the Air Force.

Most employee representatives know that the federal government must afford an employee "due process" before taking a serious disciplinary action against that employee, such as removal from employment. The employee is entitled to advance written notice of the charges and an explanation of the employer's evidence. The MSPB in Alvarado v. Dept. of the Air Force (2004), said that whether an employee has been afforded due process is not determined solely by what is written in the proposal letter issued to him. At the MSPB hearing, the employee complained that he did not understand the charges. The MSPB noted that the employee said nothing in his reply letter about not being able to understand the charges. The MSPB also noted that the documents that were given to the employee with the proposal letter made it clear what the employee was accused of. The lesson from this case is to question the clarity of the charges in the reply letter, and not wait for later in the case. Another lesson is to be sure to request and obtain from the agency all the material it is relying upon to support the proposed action.

The FLRA confirmed in a recent decision that employees have the right to file grievances over non-receipt of suggestion awards. In Social Security Administration, 59 FLRA 947 (2004), the employee filed a grievance alleging he was entitled to an award for lowering the agency's energy costs. The agency had an employee suggestion program that provided for specific types of monetary awards. The arbitrator granted the grievance and ordered the agency to pay the grievant $8,995.

The FLRA has decided on a number of occasions that meetings with employees to discuss EEO complaints are formal discussions, to which the union must be invited. In Social Security Administration, 59 FLRA No. 160 (2004), the Authority dealt with independent contractors. As often occurs with EEO complaints, the agency had delegated the investigation of the complaint to an independent contractor. The independent contractor questioned witnesses by e-mail and telephone. The FLRA ruled that these discussions were formal discussions and that the agency violated the law by not giving the union prior notice and an opportunity to be present at those discussions.