June 2001

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. Check out our web site at http://minahan.wld.com .

Front Pay Not Part of Damages Cap

Since 1991, federal employees have been able to receive up to $300,000 in "compensatory damages" for an EEO violation. The law makes it clear this includes emotional distress and also makes it clear that back pay is in addition to this cap. On June 4, 2001, the Supreme Court decided that "front pay" is also in addition to this cap. Pollard v. DuPont, 85 FEP Cases 1217 (2001). Front pay means compensation for lost salary and job benefits after the finding of discrimination is made. It is sometimes offered to employees in lieu of reinstatement if the employee does not want to return to work and the employer does not want the employee back.

Discrimination Cases: Make the Employer Give an Explanation

If you've ever done an EEO case, you know about the 3-step McDonnell-Douglas analysis. First, the employee has to present enough evidence to raise an inference (or suspicion) that discrimination may be involved. Second, the employer has to put forth a nondiscriminatory explanation for its actions. Last, the employee has to prove that the employer's explanation does not make sense and is merely an effort to 'cover up' discrimination. Too many employees forget step two and fail to insist that the employer provide an explanation for its actions. The decision in Smith v. Davis, 39 GERR 596 (3d Cir. 2001), shows why this is important. The employer said it fired the employee for violating its alcohol abuse policy. The employee argued that he was fired solely because he suffered from alcoholism. The lower court threw out the employee's case, saying the employer was not required to tolerate alcohol related misconduct, even if it was caused by a the disabling condition of alcoholism. The appeals court reinstated the case, saying that the employer was never required to explain what the employee did that got him fired. It was not enough, said the appeals court, for the employer to say that the employee was fired for violating its alcohol abuse policy. The employer had to explain how the employee violated that policy. For example, was the employee absent from work; did he show up to work with alcohol on his breath; was he seen at bars during working hours? The appeals court sent the case back to the lower court for a full trial.

Adverse Actions: Call Us!

An "adverse action" in the federal sector has a special meaning. A suspension of more than 14 days, a demotion or removal from employment are adverse actions. There are also "constructive adverse actions" -- situations where the employee has been forced into staying away from work more than 14 days or forced into "agreeing" to a demotion or a resignation. We'd like to remind our clients to call us when one of your members is facing an adverse action. The reason is that the employee has multiple options for filing an appeal, which may include a grievance, MSPB, the EEO process and sometimes other avenues. In recent months, we've discovered a number of cases where we think the wrong choice was made and we found out too late to help. Sometimes this can make the difference between winning and losing the case, so give us a call or send us an e-mail if you think an employee is going to be subjected to an adverse action.