MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

We came across a letter by a fellow union activist that we just had to reprint. The letter is by Tim Allport of AFGE Local 709, which represents employees at the Federal Correctional Institution in Littleton, Colorado. Tim wrote it as a letter to the editor for USA Today. We would like to publish it too. We gave it a page of its own at the end of this newsletter. Copy it! Post it! If we could get just five percent of our Republican friends to understand what is happening in the civil service, we could turn things around in November.

The MSPB's decision in Ivery v. Department of Transportation (May 10, 2004), is noteworthy for the result itself. A federal employee actually won a case before the two Bush appointees to the Board. The employee was an air traffic controller accused of adulterating a random drug test. The Board noted that the regulations applicable to FAA employees require a sample, meaning preservation of a portion of the urine sample in a separate container. The agency failed to retain a split sample but it argued that the burden is on the employee to show that the result of testing the second specimen would have differed from the first. The Board disagreed, saying that the agency's harmful error effectively destroys, or precludes the employee from acquiring, the only available evidence by which he can show that the agency was wrong. The Board ruled in the employee's favor and ordered his reinstatement.

It's always refreshing to see a First Amendment argument work. In Settlegoode v. Portland Public Schools, 21 IER Cases, 193 (9^th Cir. 2004), a probationary physical education teacher was fired. She had written letters to the school district describing the inadequate facilities for disabled students. The evidence showed that her evaluations, which were generally positive, became much more negative after she wrote the letter. A jury's finding that she would not have been discharged but for her First Amendment activity was affirmed by the Court.

It's another decision under the Americans with Disabilities Act. Time to get out the laff bags. A federal judge in New York ruled that an applicant for a job as a bus driver was not disabled or even regarded as disabled. Siderbaum v. New York, 15 AD Cases, 728 (SD NY 2004). The applicant suffered from bi-polar disorder. The state certification requirements actually exclude applicants with bi-polar disorder for consideration for the job he sought. But that doesn't mean he had a disability or was regarded as having a disability! He was eligible for all sorts of other driving jobs, including driving a trash truck. His condition, which he probably didn't really have, was not substantially limiting so he falls outside the protection of the ADA. We can't wait for the decision that says that a man with a prosthetic leg is not disabled. It's only a matter of time.

There has been a tremendous increase in interest in the doctrine of "mootness" by federal agencies. The reason has to do with a Supreme Court decision a couple of years ago which said that in order to recover attorney's fees, you must actually win the case in court, in MSPB or whatever the appropriate forum. According to this case, a defendant that surrenders at the last minute and gives the plaintiff everything he wants will not have to pay attorney's fees because there was no actual ruling in favor of the plaintiff. The FLRA weighed in on the topic of mootness in EEOC, 59 FLRA No. 111 (2004). The FLRA set a strict standard for dismissing an arbitration case as moot. The grievant in that case was placed on a 90 day performance improvement plan (PIP) and he grieved the PIP. The employee successfully completed the PIP and the agency asked the arbitrator to dismiss the grievance as moot. The arbitrator did so and the union appealed. The FLRA granted the union's appeal. It said that "the burden of demonstrating mootness is a heavy one." According to the FLRA, the party asserting mootness must show that there is no reasonable expectation that the alleged violation will recur and that interim relief or events have completely or irrevocably eradicated the affects of the alleged violation. The FLRA noted that this grievance involved an alleged ULP and so other remedies, including a cease and desist order and the posting of a notice, may be granted. The FLRA ruled in favor of the union and directed the arbitrator to address the merits of the grievance.

Agencies are fond of saying in discipline cases that for an employee to claim disparate treatment, he must point to another employee who committed the same act and is identical to him in all respects. The more thoughtful court decisions reject this narrow approach. In Bowden v. Potter, 42 GERR 2054 (N.D.Cal. 2004), the employee was fired for allegedly making a threat of violence. The employee alleged that his termination amounted to race discrimination because he is black and a white employee at the same facility had committed similar misconduct and was not fired. The agency contended that the employee had to point to someone who worked in the same job under the same supervisor and engaged in the same alleged misconduct. The court disagreed, saying "similarly situated does not require that the employees be identically situated." The court considered the example of a white employee who in 1993 threatened to get a shotgun and kill everyone. That employee, unlike the plaintiff, was suspended for 14 days, placed on medical leave and eventually reinstated. That the white employee did not hold the same job as the plaintiff or work under the same supervision did not mean he wasn't "similarly situated", said the court.