June 1999

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.

Wrong Door

The Federal Labor Relations Authority issued a favorable decision on behalf of one of our clients on May 5, 1999. We won a case at arbitration for Laurie Yanez, a member of AFGE Local 1592 at Hill Air Force Base in Utah. Ms. Yanez was given a three day suspension and later taken off the RIF priority placement program because of the suspension. As a result, her job placement offer in a RIF was rescinded and she was separated. We argued that the employer had basically fired her by imposing the 3-day suspension in an improper manner and the arbitrator agreed. The Agency appealed the Arbitrator's decision to the FLRA but the Agency forgot that arbitrator decisions involving "adverse action" cases must go to the Federal Circuit. Since a removal from employment is an "adverse action" the FLRA dismissed the Agency's appeal as improperly filed.

The War on Whistleblowers

The Federal Circuit never ceases to amaze us with their efforts to dismantle whistleblower protection. Congress has changed the law no less than three times to try to send a message to this court but it is not getting through. In LaChance v. White, 37 GERR 627 (Fed. Cir. 1998) the Court reversed a very favorable decision for a whistleblower by the MSPB. Mr. White, an education officer with the Air Force, criticized an Air Force plan to include certain new instruction requirements as unworkable. He was then detailed to another position and told that his command had lost confidence in his ability to support the new program. The MSPB held that Mr. White had a reasonable belief that the Air Force's new program amounted to gross mismanagement. The Federal Circuit, once again ignoring the plain language of the statute, declared that the whistleblower law "is not a weapon in arguments over policy or a shield for insubordinate conduct" (of course, when the requirements of the law have been satisfied, that is exactly what it is). The court said that the MSPB erred by allowing Mr. White to rest his whistleblower claim on his own subjective beliefs. Instead, the court said the question was whether "a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the government evidence gross mismanagement. " Any federal employee who thinks that the law protects him or her from reprisal for complaints about fraud, waste or abuse is badly mistaken.

Title VII Developments

In a case involving non-selection for a promotion, the Eleventh Circuit has ruled that a lower court acted improperly in dismissing the claim of a Postal Service employee. Taylor v. Runyon , 37 GERR 572 (11th Cir. 1999). The court said that testimony by the selecting official that he gave the promotion to a man because the male employee had a wife and children to support was enough to justify a finding of sex discrimination. The court also said that the manager's comment to the employee that her career was "going nowhere" once she filed the sex discrimination charge was enough to prove reprisal.

Although the 1998 Supreme Court decisions on sexual harassment have cleared up a lot of confusion over whether employers are liable for sexual harassment by supervisors and managers, there is still a "gray area" when it comes to sexual harassment by co-workers. In Kunin v. Sears Roebuck and Company, 79 FEP Cases 1350 (3rd Cir. 1999), the court ruled that an employer was not on notice of sexual harassment when the employee simply asked whether cursing was allowed on the sales floor. The employer showed that nobody in supervision overheard the harasser's comments and that when the female employee finally explained what the co-worker was doing the harassment ceased. The case was dismissed.

Rehabilitation Act/ ADA Developments

The Supreme Court issued a very important decision in Cleveland v. Policy Management

Systems Corporation, on May 24, 1999. The Court ruled that an employee's receipt of social security disability benefits does not automatically prevent her from making a claim of handicap discrimination. The Court's ruling was unanimous. It is a tragedy that hundreds of court cases in recent years have been dismissed on this basis. The idea was that an employee who certified that he or she was disabled and unable to work could not possibly win a case grounded on the assertion that the employee could work. The Supreme Court correctly observed that the concept of reasonable accommodation has nothing to do with Social Security benefits. Therefore, one may receive disability benefits and still argue that if she had been properly accommodated she could still work. The Supreme Court also rejected the idea that receipt of disability benefits creates a rebuttable presumption that the employee is not a "qualified individual with a disability." The only thing the employee has to do in these cases, said the Court, is simply explain why she thought she was disabled.

There continues to be some confusion over who has to prove what in "direct threat" cases. In some situations, an employer will argue that a person . with a disability is not qualified for employment because the disability would pose a direct threat to the employee or to others. Some courts have required the employee to prove that he is not a direct threat as part of the employee's burden of proving that he is qualified for the job in question. Other courts require the employer to prove that retaining the employee would constitute a direct threat as part of the employer's burden of proving that the accommodations suggested by the employee would amount to undue hardship. In Rizzo v. Children's World Learning Centers, 9 AD Cases 436 (5th Cir. 1999) the court took a middle position. Ordinarily, said the court, the employee should have to show that his employment would not pose a direct threat as part of showing that he is a qualified person with a disability. However, where the safety requirements imposed tend to screen out persons with disabilities, the burden of proof shifts to the employer to show that the employee is a direct threat. The case involved an employee with a hearing impairment who was removed from her duties of driving a van for school children. The employer's requirement that van drivers be able to discriminate spoken words tended to screen out people with hearing disabilities, so the employer was saddled with the burden of proving "direct threat."

MSPB Developments

The MSP13 issued a number of decisions in February 1999 dealing with law enforcement officer retirement status. Among those decisions are Fairchild v. Veterans Administration, Streeter v. Defense Department, and Dusenberry v. Department of Justice. The MSP13 reminded federal employees that their employing agencies, and not OPM, can now make decisions as to whether they qualify for law enforcement officer coverage, and that those decisions can be appealed to MSPB. The MSPB also warned federal employees that they should act promptly if they believe they are entitled to law enforcement officer retirement coverage. It ruled that there would be a presumption of correctness if an employee does not challenge his or her exclusion from law enforcement retirement coverage within 6 months of entering the position.

In Brown v. U.S. Postal Service, 37 GERR 549 (1999), the MSPB repeated its holding from last year that an employee is entitled to a decision on the merits of any claim of EEO discrimination in an MSPB appeal. The MSPB reminded its judges that employees do not have to have a prima facie case or even a " non-frivolous " case of discrimination. Any time discrimination is claimed in an MSPB appeal, it must be ruled upon.

The MSPB continues its dismantling of the "interim relief" requirements in the law. In years past, MSP13 was strict with federal agencies that did not give employees interim relief when the employees won at the initial level and an appeal was filed. Probably because so many agencies were complaining, the MSPB has relaxed its rules. On May 24, 1999, it issued a new rule in the Federal Register providing that federal agencies need only "certify" rather than prove that they have afforded interim relief to an employee or that putting an employee back into his former job would cause an "undue disruption. " Worse, the new regulations say that the MSPB "may" dismiss an appeal by an agency for failure to afford interim relief. The old rule was that dismissal was mandatory. This is very much like the situation with illegal performance standards. Over the years, federal agencies have shown that they are incapable of writing and clarifying intelligible performance standards. Rather than enforce the law as it is written, the MSP13 has tended to excuse this conduct.