MINAHAN AND SHAPIRO, P.C. Attorneys at Law

Dan and Barrie have been all over the place in the last couple of months working with unions. Barrie was in North Carolina and Mississippi working on arbitration cases. Dan was in Utah, Nevada and Washington, D.C., during September for union training or seminars. The whole world seemed to be in Florence, Colorado the last two months as Dan and Barrie represented 3 employees of the Bureau of Prisons in two MSPB hearings and one arbitration hearing. Let us know if we can bring our traveling show to your town. We always like to hear about cases involving backpay, since there is a chance that if we win those cases the government will be required to pay our attorney's fees.

AFGE's national office obtained an excellent ruling in a case involving an employee of the Transportation Security Administration (TSA). The administration has been doing its best to deny these employees any access to organizing or union participation. The employee in this case claimed that he was fired in retaliation for organizing. The administration noted that TSA employees have no union protections. The court's response was that as public employees they at least enjoy constitutional protection. The court ruled that the right to engage in union organizing is a matter of public concern protected by the First Amendment and that if he could show that his discharge was prompted by his participation in union organizing he would be entitled to damages and other remedies. AFGE v. Loy, 175 LRRM 2705 (D.D.C. 2004).

Every so often we get requests for back issues of our law firm newsletters. AFGE Council 171 (DFAS) has been kind enough to take as many of our old newsletters as we could find and put them on their website. You can access them at www.afge171.org\NEWSLETTER.HTM.

The Federal Circuit's decision on September 16, 2004, in Hathaway v. Dept. of Justice, makes you wonder just how high up you have to go before someone looks at your case. Mr. Hathaway was an employee of the Drug Enforcement Administration (DEA). He was charged with falsifying his employment application and both the MSPB Administrative Judge and the MSPB itself upheld his removal from employment. The Court took a look at it and set aside 2 of the 3 charges against him. One charge alleged that he falsified his application by describing how many times he had used marijuana in different ways. The Court reminded the government that 5, no more than 10, and no more than 15 were not inconsistent with each other. He was also charged with hiding the fact that the FBI rejected him from employment based on negative information. The Court said there was no such negative information. The fact that the rejection letter said that "the choices between the many qualified candidates are difficult ones" obviously implied that Mr. Hathaway was a qualified candidate. The only charge that the Court sustained was a charge that Mr. Hathaway made an unintended omission when he did not disclose that he was undergoing a background investigation by the FBI. The Court held this was the least serious charge and sent the case back to the MSPB for a reduction in the penalty that had been imposed on Mr. Hathaway.

The FLRA dealt with a grievance alleging a Privacy Act violation in Defense Commissary Agency, 60 FLRA No. 5 (2004). The employee complained that the Agency violated the requirement that information be obtained directly from the employee to the maximum extent possible. The Agency had written to the employee's doctor asking the doctor if it would be possible to change the employee's medical restrictions. The FLRA ruled against the grievance. First, the FLRA noted that although the Agency wrote to the doctor, there was never any response. The FLRA also took note of an important Supreme Court decision that was issued a short time ago. In Doe v. Chao, 124 S. Ct. 1204 (2004), the Supreme Court decided that there is no automatic $1,000 penalty under the Privacy Act. The Supreme Court read the Privacy Act as imposing a requirement for "actual damages" before this penalty may be awarded.

The MSPB issued a decision involving the Fifth Amendment in Sher v. Dept. of Veterans Affairs, (September 16, 2004). The MSPB ruled that the Fifth Amendment privilege against compulsory self-incrimination may be asserted in an administrative investigation. This means that if you are in any kind of investigation you may refuse to answer questions that might show that you are guilty of a crime. The MSPB also explained that the privilege against self-incrimination is lost if the employee has been granted immunity against criminal prosecution. Specifically, if the employee is shown a memo or a letter from the U.S. Attorney declining prosecution of the employee for the matters discussed in the investigation, then the employee can no longer incriminate himself. At that point, the employee will be required to answer all questions or risk disciplinary action for refusing to cooperate in an investigation.

A court decision issued recently reinforces how important it is to complain promptly of sexual harassment. The case is McPherson v. Waukegan Illinois, 94 FEP Cases 257 (7^th Cir. 2004). The employee had not reported earlier incidents of the supervisor's boorish conduct. The supervisor then assaulted her on two occasions. The court ruled that the city was not liable for the supervisor's sexual harassment. The reason is that on the same day the assaults were reported, management confronted the supervisor and gave him a choice between resignation or suspension. The supervisor immediately resigned. Since the employer took prompt and effective action, the court was unwilling to find that the city was liable for the supervisor's sexual harassment, or that the employee was constructively fired when she resigned months later.