Articles Posted in Labor & Employment Law

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Hamilton had been employed by the EEOC for 20 years, with no disciplinary problems, until one day in 2016, when, while engaged in mediation, he suddenly began using racial epithets, engaging in physical violence, and refusing to follow orders. The EEOC removed him from federal service. The union filed a grievance, which led to arbitration. During a hearing, the EEOC called 11 witnesses; the union called Hamilton. Although the arbitrator found that certain aspects of the EEOC’s case had not been proved, he credited the testimony of EEOC witnesses to conclude that Hamilton “had a major physical and/or mental breakdown.” Because Hamilton denied taking any of the actions he was charged with, the arbitrator concluded that Hamilton “did not remember.” The arbitrator found that the EEOC had not shown that Hamilton’s behavior had any negative effect on its reputation and had failed to consider that Hamilton’s behavior “was caused by his obvious medical condition,” and set aside Hamilton’s removal, awarding back pay. The arbitrator denied the union’s request for arbitration costs and attorney fees. The Federal Circuit vacated the denial of attorneys’ fees; 5 U.S.C. 7701(g) provides that an adjudicator may require an agency to pay the employee’s reasonable attorney fees if the employee is the prevailing party and the adjudicator determines that payment by the agency “is warranted in the interest of justice.” On remand, the arbitrator must reconsider the issue and include a statement of reasons. View "AFGE Local 3599 v. Equal Employment Opportunity Commission" on Justia Law

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Sharpe has been a DEA employee since 1995. Until 2008, he was also a Navy reservist. While at the DEA, Sharpe was deployed three times, twice for six months. As of 2015, Sharpe had applied for 14 GS-14 positions since 2012. Since 2009, Sharpe has been supervised by Sherman, who is responsible for recommending agents for promotion. Because he scored 91 out of 100 on his examination, Sharpe was on the Best Qualified List for every GS-14 position for which he applied, but he was only selected by Sherman three times and never as Sherman’s first-ranked agent. The Career Board often selects Sherman’s first-ranked agent, absent an agent requiring a lateral transfer from abroad or for hardship. In 2015, Sharpe requested corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311(a), asserting his non-selection was motivated by his military status and that Sherman was hostile towards reservist. Six other current and former reservists working as agents in San Diego, including Sorrells, also filed USERRA claims. Before the Merit Systems Protection Board Sharpe unsuccessfully sought to introduce an email sent to Sorrells by Tomaski, who reported directly to Sherman. At the hearing, Sharpe was not allowed to question Sherman about the email. The Federal Circuit vacated the MSPB’s denial of corrective action. Evidence of the Tomaski email and of Sherman’s response to it is relevant to Sherman’s potential hostility towards others’ military or USERRA activity. View "Sharpe v. Department of Justice" on Justia Law

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Hornseth worked at the Puget Sound Naval Shipyard, which houses nuclear-powered vessels; every position requires a security clearance. Hornseth attended rehabilitation for alcoholism and provided the Navy with documents regarding his treatment. From Hornseth’s rehabilitation discharge letter, the Navy learned that Hornseth had used marijuana during his employment. The Commander notified Hornseth that his security clearance was suspended and that the Navy proposed to indefinitely suspend his employment. Hornseth filed a reply. Combs, the deciding official, engaged in communications with the Shipyard’s Human Resources staff, primarily concerning positions that would not require a security clearance. The HR department drafted a “Decision on Proposed Indefinite Suspension” and forwarded it to Combs. Combs signed the decision. The Merit Systems and Protection Board ALJ affirmed, rejecting due process arguments that the reply process was an empty formality because Combs did not have the ability to take or recommend alternative agency action and Combs and the HR staff engaged in an improper ex parte communication. The Federal Circuit affirmed. Homseth received the procedural protections of 5 U.S.C. 7513(b); he received notice, had an opportunity to respond and to be represented, and was provided with a written decision with reasons. Although Hornseth had not seen the communication to Combs before the discovery process, the information it contained was already known to Hornseth or cumulative. View "Hornseth v. Department of the Navy" on Justia Law

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Donaldson, a Capitol Police officer, was involved in an off-duty domestic incident. The Office of Professional Responsibility investigated and recommended termination. The Disciplinary Review Board agreed that Donaldson should be punished but recommended only a 45-day unpaid suspension. The Chief of Police decided to terminate Donaldson. After 30 days passed without intervention by the Capitol Police Board, the Chief’s decision was deemed approved and Donaldson was terminated (2 U.S.C. 1907(e)(1)(B)) Under a collective bargaining agreement (CBA), the Chief’s termination decisions are subject to binding arbitration. The Union requested arbitration. The Police refused to select an arbitrator, arguing that it “would be in violation of a determination of the Capitol Police Board and its distinct statutory authority by consenting to the jurisdiction of any arbitrator.” The Union protested to the General Counsel for the Office of Compliance (OOC) that the Police violated section 220(c)(2) of the Congressional Accountability Act of 1995, 2 U.S.C. 1301–1438, by refusing to arbitrate an unresolved grievance and therefore committed an unfair labor practice. A hearing officer granted OOC judgment. The Board of Directors of the Congressional Accountability Office of Compliance reasoned that the Police is obligated to arbitrate disputes arising under its CBA unless it can cite clearly-established law that removes the dispute in question from arbitration; the Police’s legal arguments fell short. The Federal Circuit rejected an appeal by the Police and granted the OOC’s petition for an order of enforcement. View "United States Capitol Police v. Office of Compliance" on Justia Law

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Cerwonka, a full-time clinical psychologist for the VA in Alexandria, Louisiana, also maintained a private practice and evaluated social security disability applicants. An administrative complaint was filed against Cerwonka with the Louisiana State Board of Examiners of Psychologists, which revoked Cerwonka’s license to practice psychology in Louisiana for cause. The VA Chief of Staff proposed to remove Cerwonka for failure to maintain a current license, citing 38 U.S.C. 7402(f). Cerwonka did not respond to the notice of proposed removal. The deciding official sustained the charge and informed Cerwonka that he would be removed from employment. Cerwonka appealed to the Merit Systems Protection Board (MSPB). He also filed suit challenging the license revocation, asserting due process violations. One month after his removal the Louisiana district court judge reinstated Cerwonka’s license, pending further proceedings. A Louisiana Court of Appeal reversed the district court’s decision and remanded. The MSPB and Federal Circuit upheld his removal from employment. It is undisputed that, at the time of his removal, Cerwonka’s Louisiana license was revoked for cause, which compelled the agency to remove Cerwonka from his position as a psychologist under 38 U.S.C. 7402(f). View "Cerwonka v. Department of Veterans Affairs." on Justia Law

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Capitol Police terminated an officer for misconduct. The termination was approved by the Capitol Police Board. The officer invoked his rights under the collective bargaining agreement (CBA). An arbitrator held that termination was excessive and a 30-day suspension was proper; directed the Police to reinstate the officer, without setting a deadline; and awarded the officer back pay and benefits. The Police filed exceptions, which the Board of Directors of the Congressional Accountability Office of Compliance (Board) denied. The arbitrator gave the Police a 30-day deadline for compliance. Days before the deadline, the Police stated that it refused to comply. The Union filed charges with the Office of Compliance (OOC) alleging an unfair labor practice, 2 U.S.C. 1301; the OOC's General Counsel filed an unfair labor practice complaint with the Board. The hearing officer sustained the charge; the Board agreed, rejecting the Police’s arguments that the arbitrator lacked jurisdiction over employee termination and that the subject is barred from inclusion in a CBA because employee termination is specifically provided for by federal statute. The Federal Circuit affirmed and granted enforcement. The Capitol Police Administrative Technical Corrections Act, 124 Stat. 49 does not require the Capitol Police Board’s participation in employee termination decisions, so that matter was not “specifically provided for.” View "United States Capitol Police v. Office of Compliance" on Justia Law

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In 1998, Do a government employee since 1990, was hired by HUD’s Information Systems Audit Division. She became Division Director. In 2006, Asuncion, then working as a Justice Department auditor, applied for a GS-11 position in Do’s Division. On her resume and Questionnaire, Asuncion claimed she had a college degree in accounting. A pre-employment investigation revealed that Asuncion did not have that degree. Asuncion explained that she had completed the required coursework but needed to take one additional course to raise her GPA. Asuncion claimed good-faith mistake and promised to secure her degree. After conferring with her supervisor, Do approved Asuncion’s hiring. Asuncion was eventually promoted. In 2009, Do posted two GS-14 auditor positions. Human resources flagged Asuncion “as a qualified candidate.” Do selected Asuncion, knowing that Asuncion still did not have an accounting degree. Do later was advised that Asuncion could continue as an auditor but must obtain her degree. Asuncion resigned in 2016. HUD demoted Do to Nonsupervisory Senior Auditor and suspended her for 14 days. The Federal Circuit reversed. Do’s due process rights were violated; the Board relied on a new ground to sustain the discipline. Do's notice alleged a single charge of “negligence of duty” in hiring and promoting Asuncion. The Board’s decision concluded that Do negligently failed to investigate whether Asuncion met alternative requirements. That alternative theory appears nowhere in the notice or in the deciding official’s decision. View "Do v. Department of Housing and Urban Development" on Justia Law

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During World War II, the Hanford Nuclear Reservation was established by the U.S. Army Corps of Engineers. After the war, Hanford continued in use, operated by contractors. Each time the work was transferred to another contractor, the employees that performed the work would stay the same, typically with the same pay and benefits. The Hanford Multi-Employer Pension Plan (MEPP) was established in 1987 as a contract between “Employers,” defined as named contractors, and “Employees.” The government is not a party to the MEPP but may not be amended without government approval. In 1996, some employees accepted employment with a Hanford subcontractor, Lockheed, and were informed that, upon their retirement, they would not receive retirement benefits that were previously afforded under the MEPP. They were subsequently told that they would remain in the MEPP but that, instead of calculating their pension benefits based on their total years in service, their benefits would be calculated using the highest five-year salary, and that they could not challenge the change until they retired. This became a MEPP amendment. In 2016, former Lockheed employees sued the government, alleging that an implied contract was breached when they did not receive benefits based on their total years in service. The Federal Circuit held that the former employees did not prove that an implied-in-fact contract existed. The government funds Lockheed and others to manage Hanford, but there is no evidence that the government intended to be contractually obligated to their employees; there was no mutuality of intent. View "Turping v. United States" on Justia Law

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For 33 years, Jenkins worked for the Army, finally as a Supervisory Army Community Services Division Chief. In 2010-2012, Jenkins continually failed performance reviews and once served a suspension for submitting an Information Paper to a higher command without routing and gaining required approval through his first-level supervisor. Jenkins was put on a Performance Improvement Plan (PIP). After notifying Jenkins that he failed his PIP, his supervisor asked Jenkins whether he would move to a non-supervisory position at the same grade and pay level, Jenkins refused. Jenkins’s first-level supervisor proposed his removal for unacceptable performance. After receiving notice, but before he was removed, Jenkins sent his first-level supervisor an email, stating that “[e]ffective 31 March 2012 I will retire.” Jenkins submitted responses challenging his removal; on March 21, the Army issued a Final Removal Decision effective April 1, 2012. That same day, it issued a Cancellation of Removal, conditioned on Jenkins retiring effective March 31. Jenkins then submitted Standard Form-50, stating “voluntary retirement” effective 31 March 2012 as his reason for resignation. Jenkins later appealed to the Merit Systems Protection Board alleging that his retirement was involuntary. The Federal Circuit affirmed the Board’s dismissal for lack of jurisdiction, reasoning that the Army had rescinded the removal and nothing indicated Jenkins sought to withdraw his retirement before the effective removal date; Jenkins failed to make a non-frivolous claim. View "Jenkins v. Merit Systems Protection Board" on Justia Law

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Following a positive drug test, DHS removed Hansen from his position as an Information Technology Specialist for U.S. Customs and Border Protection. After failing the drug test, Hansen had submitted a letter to the agency, claiming that he had unknowingly consumed pot brownies prepared by a friend-of-a-friend’s neighbor, a stranger to him, at a barbeque. The Merit Systems Protection Board affirmed. Hansen appealed, arguing that the Board improperly assigned him the burden of proving that he inadvertently ingested marijuana, that it erred in finding his position was subject to random drug testing, and that even if it was subject to such testing, he lacked required notice of that fact. The Federal Circuit affirmed, holding that intent is not an element of the charged conduct and that the Board properly required Hansen to introduce rebuttal evidence to counter the government’s showing of nexus and choice of penalty. Substantial evidence supports the Board’s finding that Hansen’s position was designated for random drug testing. View "Hansen v. Department of Homeland Security" on Justia Law