Minahan and Shapiro, P.C.
Attorneys at Law Daniel Minahan Barrie M. Shapiro
MINAHAN AND SHAPIRO, P.C. Attorneys at Law
165 S. Union Blvd. Suite 366 Lakewood, CO 80228
LAW FIRM NEWS JULY 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.
"Second Bite" for Federal Agencies
The D.C. Circuit has now joined the 10th Circuit in ruling that a federal employee may not file an EEO claim in federal court challenging only the sufficiency of the remedy he received in the administrative process and holding on to the finding of discrimination in his favor during that process. In Scott v. Johanns, 43 GERR 619 (D.C. Cir. 2005), the Court agreed with the decision in Timmons v. White, 314 F. 3d 1229 (10th Cir. 2003). Both cases involved federal employees where final decisions in their favor were either made by the EEOC or accepted by their employing agencies. Both employees were dissatisfied with the remedies provided to them by the EEOC or their employing agencies and filed Federal Court lawsuits seeking what they considered to be more compensatory remedies. The D.C. Circuit, in agreement with the 10th Circuit, said that the law's provision for a de novo trial in Federal Court means that both parties get a fresh start. In an effort to justify this hyper-technical reading of the law, the D.C. Circuit said "we see nothing disingenuous about an employing agency adopting an A.J.'s liability finding and then disputing liability in court, given that the decision to adopt the finding may well rest in part on the size of the remedial award." This would be funny if it wasn't so stupid! How many times have employees protested in an arbitration hearing or an MSPB hearing that they pled guilty to an offense in criminal court just because they couldn't afford the expense of fighting the charge? How many times has any decision maker accepted this argument and allowed the employee to deny guilt after he admitted it in a guilty plea? To impose the same rule on federal employers is, for some incomprehensible reason, not allowed. An admission of discrimination by an agency or a finding of discrimination by the EEOC may be final, but it isn't binding.
"Qualified" Person with a Disability
The decision in Boots v. U.S. Postal Service, required the rare convening of a Special Panel, since the EEOC and the MSPB flatly disagreed with each other on the same case. The case involved a postal employee who was a tractor-trailer driver and, due to his disability, was unable to qualify for a DOT commercial driver's license (CDL) because he was taking anti-seizure medication. The Postal Service argued that it was following the DOT regulations and not discriminating against him because of a disability. In agreement with the EEOC, and in disagreement with the MSPB, the Special Panel ruled that since the Postal Service was not bound by DOT's CDL regulations but had adopted them voluntarily, those regulations could not be applied in a manner to "disqualify" the employee from his job. Instead, the Postal Service was required to perform an individualized assessment of the employee's disability and, if his employment as a tractor-trailer driver did not pose a direct threat to his health or safety or the health or safety of others, then it was illegal for the Postal Service to remove him from his position.
"Conspiracy to Suppress Wages"
Although it is not a federal employment case, the decision in Williams v. Mohawk Industries Inc., 117 LRRM 2550 (11th Cir. 2005), is a rare example of the application of the Racketeer Influenced and Corrupt Organizations Act (RICO) to an employment case. In a class action, the employees alleged that the employer conspired with temporary staffing agencies and other recruiters to hire illegal workers as part of a conspiracy to suppress overall wages. The court agreed that this kind of claim was maintainable and that the employees had presented sufficient evidence to require a trial and so sent the case back to the lower court.
The Discipline Conundrum
Courts, agencies and arbitrators are chronically incapable of figuring out what to do if an employee has committed misconduct but if the employer's motivation for disciplining her is illegal. For example, there may be no question that the employee falsified a series of sick leave requests but it may also be obvious that the decision to fire her was motivated by sex discrimination. Sometimes the action against the employee is reversed; sometimes the action against the employee is upheld if the particular type of misconduct is serious enough to justify that kind of penalty; sometimes the employee's punishment is mitigated, say to a 5-day suspension, on the basis that this is more in line with what the employer would have done to her if she were a male. Few decision-makers get it right: The question is not what some honest employer might have done or could have done if it were free of gender bias. The question is what this biased employer did. If the challenged action would not have been taken but for the existence of sex discrimination, the action must be reversed in its entirety. The NLRB got it right in Stanford Hotel 177 LRRM 1085 (2005), which involved an employee who was fired for insubordination for cursing and yelling at his manager because the manager ordered him to tell a union representative that he was a supervisor and not a bargaining unit employee. The NLRB agreed that the employee had been insubordinate but also found that his insubordination was the direct result of the employer's illegal direction to the employee to tell his union representative that he was not in the bargaining unit. The NLRB ordered the employee reinstated with backpay.
"Laches" Defense in Arbitration
It is not uncommon for employers to argue that a grievance should be dismissed from arbitration since the union was guilty of "laches." This is a legal doctrine under which a case may be dismissed if the party filing the case has been dilatory in moving it forward to the point where it can be decided. Arbitrators rarely rule on these types of motions and even more rarely grant them. The "laches" defense was raised in Cruz-Martinez v. Department of Homeland Security, 177 LRRM 2534 (Fed. Cir. 2005), which involved an employee who had been fired from him job with the Immigration and Naturalization Service. The Arbitrator dismissed the grievance under the "laches" doctrine since the union did nothing to try to schedule the arbitration hearing for 13 months and there was a past practice by management of dismissing grievances under these circumstances, which had never been challenged by the union. The Court upheld the arbitrator's decision, relying mainly on the past practice finding.
No False Doctor's Note
In GIW Industries Inc., 120 LA 1406 (Holley 2005), a company fired an employee on the basis that the employee presented a false doctor's note to excuse his absence. The note said that the employee had "been under my care" on December 23. When the company discovered the employee had not visited the doctor on that date, it fired him. The union proved that the employee called the doctor on that date to explain how he was feeling and the doctor told him to continue taking his medication. The arbitrator found that the employee did not submit a false doctor's note and ordered the employee reinstated with backpay.