August 2004



Our Regular Reminder

This is a reminder to all our union clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, on-site visits and filing and processing of unfair labor practice charges. Please do not hesitate to contact us if you would like to have one of us conduct training, meet with employees or review a case for arbitration or MSPB. We are also just a phone call or a fax away if you need help or feedback researching any legal issue on federal sector employment. Check out our website at http://minahan.wld.com.

EEO Violation on Promotion Case

Dan went all the way to Fairbanks, Alaska to try to get the EEO laws to work for an employee at that location. The employee alleged that he had been subjected to race discrimination when his manager passed him over in a promotion action for a "lateral" from Spokane. The Postal Service said they wanted to use the lateral process because it was so much easier than the competitive promotion process. The way the evidence came out, however, is that our client had been doing that supervisory job on multiple occasions going back 10 years. There was no one on the planet who understood the job better than our client, and the Postal Service witnesses even agreed. After the administrative judge entered a finding of discrimination, the Postal Service appealed to EEOC Headquarters. The EEOC denied the appeal, saying questions of credibility and the weight of the evidence are best left to the administrative judge. Ricky Young v. U.S. Postal Service.

EEO in the Grievance Process

Mr. Young's case is similar to the employee in Federal Bureau of Prisons, 59 FLRA No. 141 (2004). The only difference is that Mr. Young's case took a much longer time to resolve. In the Federal Bureau of Prisons case, the grievant alleged sexual harassment. The arbitrator, who has full power to grant all the relief that EEOC or the courts could grant, ruled in the employee's favor. He granted compensatory damages and also imposed an order that the offending supervisor could not supervise the employee and was required to remain at all times more than ten feet from her and not to speak with her. On appeal, the agency argued this interfered with its management rights. The FLRA denied the exceptions, finding that the arbitrator's remedies were appropriate.

Suspension for Remark Set Aside

In the case of Department of the Army, 59 FLRA No. 164 (2004), a supervisor decided to suspend an employee because of how the employee felt about the supervisor. During an investigation, the employee said that she believed the supervisor was behind the investigation. Management then gave the employee a 5-day suspension for making false or malicious statements. The arbitrator felt that the employee had good reason to fear a conspiracy against her and, in any event, her statements of opinion did not rise to the level of false or malicious statements. The arbitrator ordered the suspension rescinded and the employee made whole.

Here We Go Again

Back in the Reagan years, the FLRA developed the "de minimis doctrine". Things got out of hand when nearly every change of importance to bargaining unit employees was found to be too unimportant to the FLRA members. The Authority eventually repudiated this doctrine, but that was many years and many Democrats ago. Now, the Authority has announced it will adopt this doctrine again in Department of Homeland Security, 59 FLRA No. 131 (2004). The Authority adopted the de minimis doctrine to dismiss a complaint alleging a unilateral change in its in-stream boarding policy. The same result occurred in SSA Office of Hearings and Appeals, 59 FLRA No. 118 (2004). The unilateral change in that case involved a reduction in the number of reserved parking spaces assigned to office employees. The Authority considered this a de minimis change. It would be interesting to see how "de minimis" they thought it would be if their own parking spaces were taken away.

Accommodation for Injury

Rulings in favor of employees with disabilities are so rare that we try to bring as many of them to your attention as possible. In Bartee v. Michelin, 15 AD Cases, 1217 (10th Cir. 2004) the employee had a number of hip surgeries and arthritis in his ankle. He suggested that a reasonable accommodation was to transfer him from a plant foreman to a planning position. The employee showed that he could do the new job if he was equipped with a golf cart and if he could work an 8-hour shift. The court found that this was a reasonable accommodation and ruled in his favor.

DOJ Lawyers Lawsuit

The Federal Circuit struck a blow to a class action filed by DOJ lawyers. The Court's decision in Doe v. United States, 9 WH Cases 2d. 1249 (Fed. Cir. 2004), involved a class action for overtime pay. The employees argued that even though they are not FLSA employees they ought to be entitled to overtime compensation if their superiors expected them to work overtime or understood that the work being produced could not possibly be produced in an 8-hour day. The lower court relied on some earlier decisions that were favorable toward FLSA exempt employees ruling that the lack of official authorization or approval cannot stop an employee from collecting overtime. The Federal Circuit was much more harsh. The Federal Circuit noted that the overtime rules under Title 5 of the U.S. Code require that overtime be officially ordered or approved before it can be paid. The lawsuit covered more than 9,000 DOJ attorneys.

No Immunity for Assault

Many cases filed against federal agencies or federal employees under the Federal Tort Claims Act are dismissed on the basis that the employee was acting within the scope of his authority so neither he nor the government can be liable. An exception is Matsko v. United States, 42 GERR 625 (3rd Cir. 2004). The employee sued the government because of a physical assault by one of his co-workers. The court agreed with the employee that the government undertook a duty to protect him when it invited him for a meeting with the other employee.