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.

Columbine

The world has turned over since our last newsletter. Although we were not directly affected by the tragedy at Columbine High School, our entire community has been devastated. As a society, we need to try to make some sense out of this senseless act and do what we can to reduce the chances that it will ever happen again. We urge everyone to take a more active role in the lives of their children and their community. Clients outside Colorado may want to know about the memorial fund established by the Rocky Mountain News. If you would like to contribute, the address is: Columbine Memorial Fund, c/o The Jefferson Foundation, 809 Quail, Building 1, Lakewood, CO, 80215.

How Sweet It Is

We are pleased to attach a copy of the judgment one of our clients recently received on a jury verdict in federal court. Our client is Jerry Griswold and he was a physician's assistant at the Federal Correctional Institution in Englewood, Colorado. He was demoted to a lower graded position because the employer thought that his diagnosis of major depression made him unfit for any work at the grade he held. A jury agreed that he could have been reassigned without such a drastic loss in pay and awarded him back pay and compensatory damages. Federal court sure works a lot better than the EEO administrative process!

More Good News

Yet another decision by Administrative Judge Salyer of the MSPB's Denver Office has been reversed by the MSPB headquarters. On April 26, 1999, the MSPB ruled in favor of our client in Harris v. Dept. of the Air Force. Mr. Harris was fired by the Air Force Academy after he allegedly violated a "last chance agreement" promising not to commit certain types of misconduct. The MSPB ruled that the conduct that triggered Mr. Harris' discharge, even if it occurred, was not the type of conduct covered by the last chance agreement and so he did not waive his right to appeal the discharge to MSPB.

Contracting Out

A recent appeals court decision found that federal employees were entitled to sue to block the Army from contacting out two projects. AFGE Local 2119 v. Cohen, 37 GERR 396 (7th Cir. 1999). The court found that there was a specific statute which required the Secretary of Defense to do cost comparisons before contracting out industrial work at an arsenal. Although some courts have ruled to the contrary in similar cases, this court concluded that the affected employees did save have the legal power to challenge the contracting out decision.

The FLRA issued an important decision about the power of federal agencies to challenge arbitration awards in Golden Gate National Recreation Area, 55 FLRA No. 34 (1999). On appeal from the arbitrator's decision, the agency argued that the arbitrator did not have the statutory power to address the type of grievance which was filed. The FLRA stressed that the agency had not presented this claim to the arbitrator but had raised it for the first time on appeal to the FLRA. Because of this, the FLRA refused to reach the issue and upheld the arbitration award.

Access to Court

As most of you know, it is very difficult for federal employees to file lawsuits in court over anything connected with their work situation. The usual response is that there is a comprehensive administrative system for federal employee complaints and that the courts should not add to this. The decision of the Federal Circuit in Worthington v. United States, 168 F. 3d 24 (Fed. Cir. 1999), represents an exception. Mr. Worthington complained that he had been unlawfully placed on a compressed work schedule in violation of the law that gives employees the right to opt out of such schedules. He filed a claim in federal court for back pay. The Federal Circuit concluded that this claim was not within the MSPB's jurisdiction and not within the coverage of the Civil Service Reform Act, so the employee was given the right to pursue the claim in court.

Clean Resignation Settlements

The Federal Circuit continues to express misgivings about settlement agreements that promise federal employees a clean record. This is a very common type of settlement at the MSPB as many federal agencies and MSPB officials try to jam it down the throats of fired employees. In Pagan v. Dept. of Veterans Affairs, 37 GERR 486 (Fed. Cir. 1999) the employee withdrew his MSPB appeal in return for a clean personnel record. Another federal employer later inquired whether the VA would rehire Mr. Pagan and the VA answered "due to circumstances beyond my control no comment can be made at this time." The Federal Circuit ruled that this violated the promise of a clean record. At the same time, the Federal Circuit strongly criticized "clean record" settlements for allowing one federal agency to dump its personnel problems on another one. Clients should be aware that some state courts have ruled that allowing public employees to change their terminations for cause to voluntary resignations violates public policy. We may see the MSPB or the Federal Circuit adopt this rule some day in the federal sector.

EEO Developments

The Third Circuit issued a decision helpful to employees with disabilities in Taylor v. Phoenixville School District, 9 AD Cases 311 (3rd Cir. 1999). As many courts have done recently, the Third Circuit emphasized the requirement for employees and employers to participate in an "interactive process" to identify accommodations for disabled employees. The facts of the case should seem familiar to many of our union clients. The employer was well aware that the employee suffered from a mental disorder. The employee asked for some help. The employer responded by putting the burden entirely on the employee to identify the necessary accommodation and to produce the necessary medical documents. The employer continued to make a record of all the employee's work deficiencies and then terminated her. The district court dismissed the case because the employee had not done enough to identify reasonable accommodations. The Third Circuit reversed and sent the case back for a trial, finding that a reasonable jury could conclude that the employer did not engage in a good faith interactive process with the employee.

One of the more troubling trends in EEO law has been the tendency of federal courts to dismiss complaints of discrimination that do not involve "an ultimate employment decision" such as a discharge or a denial of a promotion. The Tenth Circuit took a step back from this trend in Trujillo v. New Mexico Corrections Dept., 37 GERR 487 (10th Cir. 1999). The employee complained that he had been denied a transfer to another position in retaliation for an EEO complaint. The court agreed that this was enough of an adverse employment action to allow the employee to file a lawsuit.

In Minor v. Ivy Tech State College, 37 GERR 460 (7th Cir. 1999), the Seventh Circuit ruled against a claim of sexual harassment by a female guidance counselor. The employee complained that she had been subjected to incessant "sexy voiced" telephone calls from a management official and that after she complained he put his arms around her, squeezed her and said "now is this sexual harassment?" It looks like it to us but the Seventh Circuit said that these facts were not so severe as to amount to sexual harassment. We think the decision reflects a common mistake made by many courts which is to equate sexual harassment to erotic desires or harassment designed to produce sexual gratification. Properly understood, sexual harassment is harassment that occurs to an individual because of his or her gender and need not be based on any sexual desires.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

JUDGE LEWIS T. BABCOCK

JUDGMENT

EOD

UNITED STATES DISTRICT COURT

DENVER, COLORADO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CERTIFICATE OF SERVICE

Civil Case No. 98-B-541

The undersigned certifies that a copy of the foregoing was served on

April 27, 1999, by:

(X) delivery to:

Richard C. Kaufman
Assistant U.S. Attorney

Magistrate Judge Michael J. Watanabe

(X) depositing the same in the United States Mail, postage prepaid, addressed to:

Daniel Minahan, Esq.
Barrie M. Shapiro, Esq.
Minahan and Shapiro, P.C.
165 S. Union Blvd., Suite 366
Lakewood, CO 80228

Deputy Clerk