June 2003

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 website at http://minahan.wld.com.

Newsletter Goes Electronic

We've been experimenting with sending our law firm newsletter as an attachment to e-mails to our clients. This issue of the newsletter will be the last "hard copy" issue you receive. If you don't get this same newsletter by e-mail this month, be sure to call our office and give us your e-mail address. If you don't have e-mail, call our office and ask us to continue sending a hard copy of the newsletter to you by regular mail.

Back-issues of M & S Newsletters

Special thanks to Mark McDonald, Treauser of AFGE Counsel 171 for putting lots of our law firm newsletters on their website. If you want to see a particular newsletter for the past few years, you may be able to find it at www.afge171.org/LAW.HTM. AFGE Counsel 171 is made up of the Locals that represent employees with the Defense Finance and Accounting Service (DFAS).

It's DFAS's Fault!

Speaking of DFAS, are you getting tired of supervisors and personnel offices blaming DFAS for everything? This is the excuse du jour for federal agencies that can't pay employees on time or can't comply with settlements or final decisions in favor of employees. Next time you hear this, ask your agency to read Tichenor v. Dept. of the Army, 84 MSPR 386 (1999). In that case, the Army settled an MSPB appeal with Ms. Tichenor in which it promised to pay her a certain amount of money. When she complained to the MSPB about the fact that severance pay was improperly withheld from the check that was sent to her, the Army said "it's DFAS's fault." The MSPB's answer was: "we reject the agency's argument that severance pay was withheld by DFAS and was not the result of action by the agency. It appears that the agency uses DFAS as its paying agent but there is no indication in the record that DFAS would refuse to pay the appellant for her unused sick leave without an off-set for the severance pay if the agency instructed DFAS to do so. A principal is subject to liability upon a transaction conducted by his agent, whom he has authorized or apparently authorized to conduct it in the way in which it is conducted, as if he had personally entered into the transaction."

Unconstitutional Search and Seizure

Contrary to popular belief, federal employees still enjoy at least some protection under the U.S. Constitution. On May 12, 2003, the Federal Circuit issued its decision in Wiley v. Dept. of Justice. Mr. Wiley worked for the Bureau of Prisons until he was fired for refusing to consent to a search of his private car for weapons when the car was parked in the employee parking lot. The Federal Circuit ruled that BOP did not have reasonable suspicion to search his car since the search was based solely on an anonymous tip that he had a weapon in his car and BOP had no additional information to corroborate the reliability of the tip. The court therefore ruled that it was a violation of the Fourth Amendment to fire Mr. Wiley for refusing to consent to the search. Significantly, the court held that he had a reasonable expectation of privacy in his car even though there was a sign at the entrance to the parking lot saying all cars were subject to search.

AWOL Status: No Continuing Violation

The courts are becoming less and less receptive to claims of "continuing violations." The decision in Henrickson v. Potter, 41 GERR 482 (5th Cir. 2003), involved a Postal Service employee who refused to return to work after he was denied a special chair he said he needed to accommodate his disability. The Postal Service carried him in an AWOL status and he eventually filed an EEO complaint, but the court said it was untimely. According to the court, he should have filed his EEO complaint within 45 days after the day he was placed in an AWOL status.



Direct Evidence of Reprisal

In Fabelia v. Socorro School District, 91 FET Cases 1107 (5th Cir. 2003), an employee alleged that she had been fired because of a prior EEO complaint she filed. The employer argued that the EEO complaint was filed almost seven years earlier and that she had done many things since then to justify her termination. The court agreed this might ordinarily be the case but pointed to direct evidence of reprisal. That evidence consisted of a management official describing her as a problem employee and noting the fact that she filed an unsubstantiated EEOC charge as proof. The court reminded the employer that the fact that her prior EEOC charge had no merit did not deprive her of the right to be protected from reprisal for filing it.

Request for Blanket Medical Release

We sometimes hear from employees who have a medical condition or who have taken a lot of sick leave that their agencies have required them to sign a general release allowing the agencies access to all their medical records. This can be a form of disability discrimination. In Hilton v. U.S. Postal Service, 94 FEOR 3082 (1993), the Postal Service asked the complainant for a blanket medical release based solely on her admission that she had a seizure disorder. The EEOC found this could amount to disability discrimination unless the Postal Service had a legitimate concern for the complainant's safety or the safety of others. According to the EEOC, an agency's insistence on a general release of all medical records is discriminatory if it is based on an inaccurate and stereotyped assumption that anyone with the employee's medical condition is a hazard to herself or others.