MINAHAN AND SHAPIRO, P.C. Attorneys at Law
165 S. Union Blvd. Suite 366 Lakewood, CO 80228
LAW FIRM NEWS JUNE 2005
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. We also provide representation to Union members in MSPB appeals, EEO complaints and labor arbitration for reduced or flat fees if there is a chance we can obtain attorneys fees from the agency if we win. Check out our website at http://minahan.wld.com.
The More Things Change
A lot of people we talk to have been wondering why there is much complacency and apathy about a Government running wild with pre-emptive war, with runaway debt and with a single-minded determination to get every citizen to conform to the values and priorities of what it perceives to be "mainstream America." What happened to the "baby boomers"? What happened to "Us"? We fought so hard for civil rights that it finally became illegal to refuse to hire a Mexican-American because of her national origin or to refuse to serve a meal in a public restaurant to a black man because of his race. We stood up for the right of each person to follow his or her own religious beliefs and cultural traditions. We were the first generation to insist on a permanent broadening of the opportunities available to women, not just in response to labor shortages during wartime. What seemed only normal and fair to us revolutionized the way just about everyone now views the "proper place" of women in the modern world. We took to the streets to stop a war that had no clear goal and that was killing over 50,000 of us, our brothers, uncles, cousins and friends. How did we end up in today’s world? We stand on the precipice of a 1-party state where conformity to the values of a bare-majority is each citizen’s solemn duty, and where anyone who questions why the rich are getting richer and why even middle-class families can’t afford health insurance or a college education for their children is labeled a liberal extremist. Is this still "Us"? A famous comic strip character once said, "We have met the enemy and he is us!" When we "baby boomers" had no power, we thought everybody should have power. When we had no money we thought everybody should have money. When our habits and desires were considered outrageous we thought everybody should be tolerant of diverse lifestyles and beliefs. Now, we have power. We have money. Our sheer numbers give us the influence we’ve always enjoyed. We are as self-centered as ever, only now we aren’t the ones being sent off to die in a war, we aren’t the ones who need a college education, we aren’t the ones who worry about supporting ourselves and our young families on entry-level wages and we aren’t the ones who want our different opinions and life styles to be respected by anyone we consider important. Could it be true that instead of forgetting the lessons of their youth, the "baby boomers" never learned those lessons in the first place? Hmmmm.
Common Sense Takes a Vacation
It’s hard to understand why some cases take so long to get turned around. In Ide v. Social Security Administration, the MSPB decided on March 17, 2004, that Ms. Ide did not have the right to appeal her separation to the MSPB because she was not a "preference eligible" who had worked for the agency at least one year. Ms. Ide protested that she had twice submitted to MSPB official records showing her military service. On appeal, the Federal Circuit couldn’t understand why nobody at the MSPB looked at these documents to see if they showed she was a "preference eligible." On May 13, 2005, more than a year after the MSPB’s decision, the Federal Circuit sent the case back to the MSPB for the simple task of looking at the evidence Ms. Ide submitted!
The leading candidate for "bone-head decision of the year," so far is Peary v. Goss, 43 GERR 461 (E.D. Va. 2005). The court dismissed a federal employee’s EEO complaint on the basis that it was merely a reassignment from one position to another position and so was not "an adverse employment action" which had any real effect on her terms and conditions of employment. In some cases this might be true, but this employee wasn’t just reassigned to the same type of job down the hall. The plaintiff was a CIA employee who alleged that because her race and sex she was reassigned to a dangerous location in Latin America considered by the CIA to be a "high threat environment." According to the judge, CIA officers, like police officers or fire fighters, are trained for inherently risky jobs and can’t complain of an "adverse employment action" when given an assignment that is potentially more dangerous. For this elitist judge (probably a Republican), reassignment to a different job is no more dangerous than turning the page in a Robert Ludlum novel. We hope none of our clients have to convince this judge that an act of discrimination that places him or her in danger is important enough to justify a remedy in court. An aircraft mechanic who is told to get up on the tail of a C-5 without a harness or a platform, a correctional officer who is told to walk alone into an area with angry inmates and without a weapon or a body alarm, and an electrician who is told to repair the inside of a high voltage generator without a tag showing the generator "blocked off" all, apparently, have no basis to complain. These tasks may have been forced on them because of their race or national origin but since their jobs are "inherently risky" anyway, there is nothing they can do!
Appeal Rights for Probationary Employees
Most of you have heard about the Federal Circuit’s 2002 decision in McCormick v. Dept. of the Air Force, in which the court ruled that an employee in the competitive service has the right to appeal her termination to the MSPB even if she is serving a probationary period, if she has completed one year of current continuous service with the agency, even in different positions. In Stoute v. Dept. of the Navy, MSPB (April 1, 2005) the agency argued that even though Mr. Stoute had completed more than one year of current continuous service, he still had no right to appeal his termination to the MSPB because the SF-50 appointing him to his current position identified it as requiring the completion of a one year probationary period. The MSPB disagreed, saying that the SF-50 falls far short of a knowing and voluntary waiver of the employee’s appeal rights.
In Perkins v. Dept. of Veterans Affairs, MSPB (March 7, 2005) the MSPB ruled that an employee claiming reprisal for having blown the whistle on fraud, waste or abuse does not have to show that the person who took the retaliatory action against him knew what he was complaining about. The employee only has to show that this person knew the employee made complaints of fraud, waste or abuse to his agency’s inspector general.
The Tenth Circuit issued a decision favorable to the First Amendment rights of public employees in McFall v. Bednar, 43 GERR 492 (10th Cir. 2005). The employee worked for the state public defenders office and complained that the office’s expert witness policies were not only time consuming and wasteful but also suffered from a potential conflict of interest because the chief of psychological services was married to one of the prosecutors. The court ruled that the employee spoke out on a matter of public concern and did not do so in an improper or disruptive manner, so her removal from employment violated the First Amendment.
The MSPB made a couple of interesting points in Prehoda v. Dept. of Homeland Security, MSPB (April 22, 2005). Acting under authority delegated from OPM, the agency found that Mr. Prehoda, who had been tentatively selected for a position, was not suitable for federal employment. Although the agency argued it had not made a formal "suitability determination" the MSPB found that it had the same meaning and effect and so it was a "constructive suitability determination" that Mr. Prehoda was entitled to appeal under 5 CFR Part 731. The agency labeled Mr. Prehoda unsuitable because his testimony was found not credible by an administrative judge in another MSPB case. The MSPB ruled this is not one of the factors on which an agency is permitted to rely in making suitability determinations under 5 CFR Part 731. Even more interesting, the MSPB decided that Mr. Prehoda’s appeal was not "moot" on the basis that there was no formal finding of "unsuitability" to cancel. Mr. Prehoda stated he had not been selected for hundreds of positions since the agency’s original rejection of his application. Even though a finding that he was suitable would apply only to the same position for which Mr. Prehoda applied. MSPB determined that it should precede to decide the case because, if Mr. Prehoda ever applied for that position again, the agency could be expected to reject him again because of the improper reliance on the credibility determination of the MSPB administrative judge. The MSPB ordered the agency to cancel its suitability determination and to return Mr. Prehoda to all appropriate eligibility lists for employment.
Is Psychological Testing a Fourth Amendment "Search"?
The Seventh Circuit dealt with an unusual question in Greenawalt v. Indiana Dept. of Corrections, 43 GERR 237 (7th Cir. 2005). A prison employee was ordered to undergo psychological testing to determine her emotional stability. She argued this was a "search" under the Fourth Amendment, no different than her car or her private locker being searched. The court disagreed, on the basis that while looking through an employee’s possessions, taking a blood sample, or even secretly recording his phone conversations may amount to searches, putting questions to an employee does not. The court felt that if the Fourth Amendment covered this type of activity a search warrant would have to be obtained before asking an employee to complete a background check or a credit check. The court left open the door that psychological testing may be covered under the Fifth Amendment’s protection against forcing an employee to incriminate himself.
Union Entitled to Security Surveys
In SSA v. IFPTE, 60 FLRA No. 132 (2005) the union, which represents administrative law judges working in the agency’s Office of Hearings and Appeals, made a data request for information from the agency about security at a new office location. The union heard that GSA or a contractor was evaluating the safety and security of the new location and would be issuing a report to management. The agency refused to provide the report on the basis that the union had no particular need for the information because no negotiations or grievances were underway in which the issue might arise. The Authority disagreed, saying that the surveys obviously relate to the safety and security of bargaining unit members and whether appropriate arrangements are needed to address those issues. The FLRA ordered the agency to provide the union with the physical building assessment report.