MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

Barrie received three favorable decisions from the MSPB last month. The first was a decision by MSPB Headquarters in favor of our client. The client, a prison guard, had been removed from employment because he had to leave work early to pick up his daughter because her day care center was closing. MSPB Headquarters said that firing him for this was abusive and sent the case back for further proceedings on the appropriate penalty. Darren E. Jackson v. Dept. of Justice. . . An MSPB judge issued two favorable decisions on two more of Barrie's cases. These cases involved two employees who had been fired by the VA Medical Center based on charges of patient abuse. Both employees participated in helping a psychiatric patient get a haircut and a beard trim. The MSPB judge ruled that one of the employees didn't even know that the patient did not want these services. This employee was reinstated with full backpay. The other employee did know that the patient did not want these services but she treated him with kindness and the haircut and the beard trim were very necessary. She was reinstated to her former position with a short suspension. Kinnemore and Taylor v. Dept. of Veterans Affairs.

In a frightening example of what you get with a Republican Congress and a Republican President, the Labor Department's new overtime rules became effective on August 23, 2004. These rules apply to the Fair Labor Standards Act (FLSA), which covers most federal sector, blue collar employees, and some general schedule employees as well. The rules will result in many more employees being classified as exempt from the FLSA. They will remove existing overtime protection for large numbers of employees who are currently paid overtime and they create "safe harbor" provisions designed to protect employers from liability if they take improper deductions from employees but have written personnel policies that tell employees how to raise concerns with their managers. There is no law safe from this administration, no matter how long that law may have been on the books.

Many of you have heard about the adverse action doctrine, under which EEOC and the courts have been dismissing EEO complaints which do not involve an incident they consider to be important enough. This was the result in Zellars v. Dept. of the Air Force, EEOC No. 01A34449 (Nov. 21 2003). The EEO complaint alleged discrimination due to undesirable comments in a performance feedback session. The EEOC dismissed the complaint on the basis that progress reviews are not personnel actions and do not in themselves render an employee aggrieved.

Every so often we take a detour through the field of tort law. The decision in Matsko v. United States, 42 GERR 625 (3^rd Cir. 2004), is interesting to read. Matsko worked for a mining company. He was invited to attend a meeting in the DOL/MSHA Office. Apparently there was an MSHA inspector present who did not like Mr. Matsko at all. He slammed Mr. Matsko's face into a briefcase lying on a desk, resulting in a fractured vertebrae and a herniated disk. The court ruled that Matsko had a right to sue the government for this assault, on the basis that it had a duty to protect him when it invited him to the meeting and that it was negligent in failing to prevent the assault.

Sometimes the technical limitations in the Backpay Act are hard to swallow. Not every loss of money that is inflicted on a federal employee may be recovered – if the money does not fall within the definition of backpay. An arbitration at the Bureau of Prisons involved an employee who was required to obtain medical documentation because he was absent from work for two days. The arbitrator awarded the employee $15 for his health insurance co-pay and $10.95 for mileage and interest. The FLRA ruled that neither of these figures qualified as a loss of pay, allowances or differentials. Because the Backpay Act did not apply, the arbitrator's decision was reversed. Dept. of Justice, 59 FLRA No. 147 (2004).

In a more encouraging development, a district court ruled that an employee was entitled to overtime for time spent in counseling sessions. Sehie v. Aurora, 42 GERR 505 (N.D. Ill. 2004). The employee was required to attend counseling sessions on a weekly basis in order to address her anger management issues at work. The judge decided that these sessions were primarily for the benefit of the employer and so ordered that they were "hours of work" for which the employer was required to pay overtime.

In the decision in Smith v. Henderson, 15 A.D. Cases 1328 (6^th Cir. 2004), the court ruled that a Postal Service supervisor with arthritis was constructively discharged when she was not allowed to delegate her accounting duties as an accommodation for her medical restrictions. . . Another positive result was reported in Bartee v. Michelin, 15 A.D. Cases 1217 (10^th Cir. 2004). A former foreman who had hip surgery and arthritis in his ankle asked if he could be reassigned to a planning position. The court ruled this was a reasonable accommodation since all it required was that he have an average sized golf cart to get around and that he work no more than an 8 hour shift.