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Speaking of DFAS, are you getting tired of supervisors and personnel offices blaming DFAS for everything? This is the excuse du jour for federal agencies that can't pay employees on time or can't comply with settlements or final decisions in favor of employees. Next time you hear this, ask your agency to read Tichenor v. Dept. of the Army, 84 MSPR 386 (1999). In that case, the Army settled an MSPB appeal with Ms. Tichenor in which it promised to pay her a certain amount of money. When she complained to the MSPB about the fact that severance pay was improperly withheld from the check that was sent to her, the Army said "it's DFAS's fault." The MSPB's answer was: "we reject the agency's argument that severance pay was withheld by DFAS and was not the result of action by the agency. It appears that the agency uses DFAS as its paying agent but there is no indication in the record that DFAS would refuse to pay the appellant for her unused sick leave without an off-set for the severance pay if the agency instructed DFAS to do so. A principal is subject to liability upon a transaction conducted by his agent, whom he has authorized or apparently authorized to conduct it in the way in which it is conducted, as if he had personally entered into the transaction."

Contrary to popular belief, federal employees still enjoy at least some protection under the U.S. Constitution. On May 12, 2003, the Federal Circuit issued its decision in Wiley v. Dept. of Justice. Mr. Wiley worked for the Bureau of Prisons until he was fired for refusing to consent to a search of his private car for weapons when the car was parked in the employee parking lot. The Federal Circuit ruled that BOP did not have reasonable suspicion to search his car since the search was based solely on an anonymous tip that he had a weapon in his car and BOP had no additional information to corroborate the reliability of the tip. The court therefore ruled that it was a violation of the Fourth Amendment to fire Mr. Wiley for refusing to consent to the search. Significantly, the court held that he had a reasonable expectation of privacy in his car even though there was a sign at the entrance to the parking lot saying all cars were subject to search.

The courts are becoming less and less receptive to claims of "continuing violations." The decision in Henrickson v. Potter, 41 GERR 482 (5^th Cir. 2003), involved a Postal Service employee who refused to return to work after he was denied a special chair he said he needed to accommodate his disability. The Postal Service carried him in an AWOL status and he eventually filed an EEO complaint, but the court said it was untimely. According to the court, he should have filed his EEO complaint within 45 days after the day he was placed in an AWOL status.

In Fabelia v. Socorro School District, 91 FET Cases 1107 (5^th Cir. 2003), an employee alleged that she had been fired because of a prior EEO complaint she filed. The employer argued that the EEO complaint was filed almost seven years earlier and that she had done many things since then to justify her termination. The court agreed this might ordinarily be the case but pointed to direct evidence of reprisal. That evidence consisted of a management official describing her as a problem employee and noting the fact that she filed an unsubstantiated EEOC charge as proof. The court reminded the employer that the fact that her prior EEOC charge had no merit did not deprive her of the right to be protected from reprisal for filing it.

We sometimes hear from employees who have a medical condition or who have taken a lot of sick leave that their agencies have required them to sign a general release allowing the agencies access to all their medical records. This can be a form of disability discrimination. In Hilton v. U.S. Postal Service, 94 FEOR 3082 (1993), the Postal Service asked the complainant for a blanket medical release based solely on her admission that she had a seizure disorder. The EEOC found this could amount to disability discrimination unless the Postal Service had a legitimate concern for the complainant's safety or the safety of others. According to the EEOC, an agency's insistence on a general release of all medical records is discriminatory if it is based on an inaccurate and stereotyped assumption that anyone with the employee's medical condition is a hazard to herself or others.