MINAHAN AND SHAPIRO, P.C.
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.
Limit on Compensatory Damages
On October 5, 1998, the Supreme Court decided not to review a decision by the Sixth Circuit interpreting the $300,000.00 cap on compensatory damages in EEO cases. The Sixth Circuit ruled that this cap is the maximum amount that can be recovered by a plaintiff in a single lawsuit no matter how many claims are made in the lawsuit. Hudson v. Reno, 130 F. 3d 1193 (6th Cir. 1987) It is important to note that 42 USC 1981a excludes back pay from the definition of compensatory damages. This means that a plaintiff could theoretically recover $300,000.00 for emotional distress and still recover an additional amount for back pay.
Rebuke of EEO Counselor
The EEOC issued a strongly worded decision against EEO counselors who discourage the filing of EEO complaints in Pruette v. U.S. Postal Service, EEOC No. 01951567 (1998). The basis of the EEO complaint was that the counselor had her that she had no case and that to proceed would expose her to humiliation. The EEOC determined that this was a direct violation of the law prohibiting reprisal, that the Agency's EEO director should have immediately looked into the counselor's behavior as soon as the employee made a complaint and that the Agency would be instructed to conduct intensive training for all its EEO counselors.
EEO Meetings: Formal Discussions
In Luke Air Force Base, Arizona, 54 FLRA No. 75 (1998) the Authority determined that a mediation/ investigation session on an EEO complaint filed by a bargaining unit employee amounted to a formal discussion, at which the union should have been afforded the opportunity to attend. The Authority said that such a meeting falls within the broad definition of a "grievance" and that it was formal in nature because it was scheduled in advance and conducted in a structured manner. Thus, the Authority said that the union had a right to be present whether or not the employee had named the union as her representative.
New Veterans' Rights
Congress just passed the Veterans Employment Opportunity Act of 1998. This law strengthens protections for veterans of the Armed
Forces in a number of important ways. It adds violating veterans preference rules to the list of prohibited personnel practices in 5 USC 2302(b) and it enables the MSPB to review just about any complaint of a violation of veterans preference. Unfortunately, it does not contain restrictions on the attempted to intimidate the employee by warning establishment of one-person competitive levels in reductions in force, an early feature of the bill that was dropped. It also limits the extent to which federal agencies can recruit for promotions in-house by requiring veterans outside the government to be afforded the opportunity to compete for federal jobs under certain circumstances. Clients with questions about this legislation are welcome to call us.