DANIEL MINAHAN

MINAHAN AND SHAPIRO, P.C.
ATTORNEYS AT LAW
165 SOUTH UNION BOULEVARDSUITE 366
LAKEWOOD, COLORADO 80228LAW FIRM NEWS

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.

Whistleblower Form

The Office of Special Counsel has announced that, effective December 1, 2000, employees who wish to make disclosures of alleged fraud, waste or abuse to OSC must use an OSC-approved form. A copy of this form is attached.

Discontinued Service Retirement

According to 5 USC 8336(d) an employee who is separated from employment involuntarily "except by removal for cause on charges of misconduct or delinquency" is entitled to an "early out" annuity if he or she meets the age and service requirements. Sometimes, there is a disagreement over whether the employee was separated for cause. In Litzenberger v. OPM, No. 00-3081 (Fed. Cir. Nov. 7, 2000), the Court ruled that when OPM denies an annuity on the basis that the employee was separated for cause, MSPB is not required to accept this determination and must take an independent look at the facts.

"Authorized Expenditure"

One of the most popular excuses by federal agencies trying to avoid bargaining with unions is that the particular proposal would require the agency to expend funds in a manner not authorized by a specific statute. Of course, this rarely stops the agency from expending funds on projects it thinks are worthwhile. For example, the General Services Administration asked for a ruling from the General Accounting Office as to whether it could set up a fund to pay for prizes to be awarded to employees who complete customer satisfaction surveys. The goal of the prizes is to encourage more employees to complete the surveys. In GSA, No. B-286536 (Nov. 17, 2000) the GAO General Counsel ruled there was no prohibition on setting up this fund.

Handicap Discrimination

The EEOC on October 20, 2000, issued Directive No. 915.003, which contains policy guidance for federal agencies on offering reasonable accommodation to employees with disabilities. The guidance contains a section on when and how federal agencies can request medical information from employees. EEOC says that under the law, an agency may not request medical information where:

a. Both the disability and the need for reasonable accommodation are obvious; or

b. The individual has already provided the agency with sufficient information to document the existence of the disability and his or her functional limitations.

The First Circuit in Marcano-Rivera v. Pueblo International Inc., 11 AD Cases 105 (1st Cir. 2000) reminded all employers that the ADA requires more than just "equal treatment" of disabled and non disabled employees. The employer in that case said it did not discriminate against a disabled supermarket cashier when it asked her to cover the cash register during busy times because it made the same request of all other employees. The Court said this request was especially onerous for the cashier because it required a laborious process in which she would have to move herself from her wheelchair to the cashier's station. The Court held the employee was entitled to be relieved of that particular task as a reasonable accommodation for her disability.

The topic of "light duty" assignments causes many disputes under the ADA. In Hansen v. Henderson, 38 GERR 1341 (7 th Cir. 2000), an employee with a permanent disability asked to be reassigned to a job within his physical limitations. All available permanent jobs were filled and so the employee suggested he should be placed on a light duty assignment. The light duty jobs were all being performed by workers with various temporary disabilities or with approved workers compensation claims. The Court ruled that the Postal Service was not required to displace anyone from a light duty assignment in order to accommodate the plaintiff.

Reprisal Cases

Employers often claim that they cannot be charged for retaliating against an employee who has filed an EEO complaint unless responsible management officials knew about the EEO complaint. In Gordon v. New York City Board of Education, 38 GERR 1342 (2 nd Cir. 2000) the Court said that a plaintiff in a reprisal case is required to show only "general corporate knowledge that the plaintiff engaged in protected activity." The school district had argued that even though its superintendent knew about the plaintiffs prior discrimination lawsuit, the individual supervisors who took the action against him did not know about the lawsuit. The Court said that a jury should be allowed to infer that the responsible officials were acting explicitly or implicitly upon the orders of a superior who knew about the lawsuit.

In Anderson v. Dept. of the Air Force, EEOC No. 01983069 (Feb. 16, 2000), the Commission ruled that it was unlawful for a supervisor to call a complainant at home regarding his EEO activity. The employer argued this should not be interpreted as retaliatory. However, the Commission found that the supervisor's action had a "potentially chilling effect" on the filing of EEO complaints.