MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

A recent decision by the FLRA involved a Bureau of Prisons facility which challenged the requirement in a collective bargaining agreement that a Union representative be present when an employee's desk or work station is searched. The arbitrator enforced the requirement for Union representation and management appealed to the FLRA. FLRA upheld the requirement as an appropriate arrangement for employees adversely affected by searches of employee work areas. Federal Bureau of Prisons, 59 FLRA No. 90 (2003).

In yet another ruling showing how far the federal courts will go to avoid handling classification disputes, the Third Circuit dismissed a lawsuit filed by a group of Navy employees. Hinkel v. England, 41 GERR 1170 (3^rd Cir. 2003). The employees alleged that the Human Resources Department conducted a desk audit and found that the employees were doing higher graded work, but the director of the facility refused to implement this finding. The court concluded that misclassification is a type of prohibited personnel practice. This being the case, the Office of Special Counsel (OSC) is empowered to investigate and correct misclassifications. (We wonder if anyone told the court how many times OSC has actually found a misclassification and corrected it). The court ruled that OSC has the power to deal with misclassification and so the court should not be involved.

Whether an employer followed its own affirmative action plan is often useful in proving discrimination. The reason is that the employer by developing this plan has signaled its intention to diversify its work force and to exert a special effort to hire and promote people from underrepresented groups. In City of Norwalk v. Commission on Human Rights, 41 GERR 1104 (Conn. 2003), the court ruled a Black teacher who was not hired even though the employer had announced that it was trying to hire qualified minorities had stated a good case of discrimination.

Most clients know that the goal of an EEO case is to prove that the explanation offered by an employer is a sham and is unworthy of belief. The hope is that a judge or a jury will believe the employer is concealing its true motivation, which is unlawful discrimination. Neal v. Roche, 41 GERR 1195 (10^th Cir. 2003), shows what happens when you are “too successful” in defeating the employer's explanation. The plaintiff in that case complained that her non-selection for a promotion amounted to race discrimination. The federal agency (Air Force) maintained that it had chosen the best-qualified applicant. As the case went on, it became clear that the White applicant was not as qualified as the plaintiff. It also became clear that the selecting official chose the White applicant for promotion to prevent her from losing her job in a reduction in force. The court ruled that this evidence not only showed that the employer's explanation was pretextual but also showed that the reason for the promotion was personal favoritism and not race discrimination against the plaintiff. The plaintiff's case was dismissed.

The ADA protects not only employees with actual disabilities but employees who are regarded as disabled by their employers. The case of Gallups v. Alexander City, 41 GERR 1173 (M.D. Ala. 2003), involved an employee who needed to take medication for anxiety and depression. The employee's evidence included statements by his supervisors, once they learned he was taking medication, that he was crazy or not right in the head. The judge found that the employee was fired not because of performance deficiencies but because the employer was uncomfortable employing an individual on medication for a mental impairment.