Articles Posted in Labor & Employment Law

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Rumsey, a Department of Justice employee, protested grant-making decisions and ultimately went to the media and members of Congress and filed a complaint with the Inspector General, alleging fraud. Her efforts resulted in corrective action. Rumsey alleged that the agency subsequently gave her improperly low performance ratings, moved some of her job duties to other employees, and canceled her telework agreement. She prevailed in an individual right of action appeal with the Merit Systems Protection Board, alleging whistleblower reprisal. Rumsey sought attorney’s fees under 5 U.S.C. 1221(g)(1)(B). At the time of that request, Rumsey and Slavet, one of the three lawyers that represented Rumsey during the Board proceedings, were in fee dispute before the District of Columbia Bar, Attorney/Client Arbitration Board. Rumsey “distanced herself from Slavet,” who had been Rumsey’s principal lawyer before and during the initial hearing before the administrative judge. The AJ had previously awarded sanctions based on Slavet’s failure to respond to discovery requests. The Board affirmed the AJ’s refusal to award attorney’s fees for Slavet’s services. Slavet and Rumsey settled their fee dispute, agreeing that Rumsey would pay $120,000 of the $145,445 sought by Slavet. The Federal Circuit reversed. Rumsey carried her burden of showing entitlement to some award of attorney’s fees. View "Rumsey v. Department of Justice" on Justia Law

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Miskill was employed as an IT Specialist with the Social Security Administration for 14 years. Her supervisor proposed to remove Miskill for violations of the time and attendance policy. The Assistant Associate Commissioner sustained four charges and removed Miskill from Federal Service. The Union submitted a grievance and subsequently invoked arbitration. Miskill obtained the records of the eight other individuals within her component at the Division of Network Engineering (DNE) for the relevant time period. Those records were analyzed by a CPA, Certified Product Examiner, and Certified Information Technology professional, who concluded that the eight other DNE employees had committed the same or similar violations as Miskill; none were investigated or charged with misconduct. The parties later stipulated that those employees were under investigation, but had not yet been charged. The Arbitrator sustained Miskill’s removal, finding that the comparators were not similarly situated because possible disciplinary action regarding them was still pending. The Federal Circuit vacated. Miskill sufficiently raised the issue of disparate treatment but arbitrator erred in its treatment of the comparator evidence. His categorical conclusion that the eight DNE employees could not be comparator employees because they were under investigation was an incorrect statement of law. Although the fact that a comparator employee is under investigation is a factor to be considered in determining whether that comparator is similarly situated, it is not a complete bar. View "Miskill v. Social Security Administration" on Justia Law

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Appellants, current and former employees of the U.S. Secret Service, alleged that, as a result of new practices, the government denied them the two consecutive days off from work to which they were entitled under 5 U.S.C. 6101(a)(3)(B). The Claims Court concluded that it was without jurisdiction because this provision is not money-mandating because it only concerns work scheduling practices and does not address employees’ entitlement to pay. The Federal Circuit affirmed that court's dismissal of the case. “At most,” section 6101(a)(3)(B) entitles employees to have their basic 40-hour workweek scheduled in a particular fashion; whether their basic 40- hour workweek is Monday through Friday with Saturday and Sunday off, or Monday through Saturday with Wednesday and Sunday off, does not, itself, affect employees’ statutory entitlement to pay. Because section 6101(a)(3)(B) does not “‘command[] payment of money to the employee,’” nor is it “reasonably amenable to the reading that it mandates a right to money damages,” violations of the subsection do not implicate the remedies prescribed in the Back Pay Act. View "Adams v. United States" on Justia Law

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Tartaglia served as Chief of Police at the Veterans Administration Hampton Virginia Medical Center. The VA proposed Tartaglia’s removal based on Abuse of Authority” (six specifications); “Lack of Candor” (two specifications); and “Misuse of Government Property” (one specification). The VA’s deciding official rejected Charge 3 as unsubstantiated, sustained Charge 1 based on five specifications and Charge 2 based on both specifications, and removed Tartaglia from service. An administrative judge affirmed Tartaglia’s removal, finding that the VA failed to prove either specification of Charge 2 and that it proved only three specifications of Charge 1. As to Charge 1, Tartaglia admitted to Specification 5: instructing a subordinate to drive him in a government-owned vehicle for a personal errand while on duty. The Merit Systems Protection Board sustained Tartaglia’s removal based solely on Specification 5, stating that removal fell within the Table of Penalties for that misconduct; Tartaglia’s “misconduct was particularly serious because it went beyond merely misappropriating a Government vehicle, but also included instructing a subordinate to help him”; mitigating factors such as Tartaglia’s “outstanding work record and lack of prior discipline” were “temper[ed]” because Tartaglia had served with the VA for “only approximately [four] years” and Tartaglia expressed remorse “only after initially denying the misconduct..” The Federal Circuit vacated, based on the Board’s miscalculation of Tartaglia’s length of service. View "Tartaglia v. Department of Veterans Affairs" on Justia Law

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Kitlinski, employed by the DEA and a Coast Guard reservist, was recalled to active duty. For an extended period, he served full-time at Coast Guard headquarters in Washington, D.C. He filed complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-35, and an equal employment opportunity complaint against DEA, based on DEA’s responses to his requests to be transferred from DEA’s San Diego office to Arlington, Virginia, where Kitlinski’s wife worked. After a deposition, Kitlinski returned to his car, in a secure DEA parking lot, and discovered a Blackberry device bearing a DEA sticker under his car's hood. He suspected that it was intended to track his location and record his conversations. Kitlinski reported his discovery to the FBI. Kitlinski’s wife was interrogated and was threatened with discipline if she did not turn over the Blackberry. Kitlinski filed an action with the Merit Systems Protection Board, alleging that the placement of the Blackberry and his wife's interview violated USERRA as discrimination and by creating a hostile work environment. He also alleged retaliation and a hostile work environment in retaliation for his exercise of his USERRA rights. The Federal Circuit affirmed the Board’s dismissal of various claims but remanded in part because the Board did not make a finding on Kitlinski’s claim that DEA had created a hostile work environment in retaliation for his USERRA activities. View "Kitlinski v. Merit Systems Protection Board" on Justia Law

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In 2008, Lee began an appointment under the Federal Career Intern Program (FCIP) with U.S. Citizenship and Immigration Services, Department of Homeland Security. Before that appointment. Lee had completed almost six years of federal service under a series of term appointments. In 2010, the agency notified Lee that her FCIP appointment would expire on March 15, 2010, and that upon completion of the appointment, the agency would not convert it into a competitive service appointment. She completed her FCIP term and was terminated from federal service. A Merit Systems Protection Board Administrative Judge dismissed her appeal for lack of jurisdiction. The Board and Federal Circuit affirmed. Lee was not subject to an adverse action appealable to the Board; successful completion of her internship and satisfaction of other Office of Personnel Management requirements did not guarantee her the right to further federal employment when her internship expired. View "Lee v. Merit Systems Protection Board" on Justia Law

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Veterans Access, Choice, and Accountability Act (VACAA) provisions vesting significant authority in administrative judges violates Appointments Clause. In 2014, Congress investigated reports that senior executives in the Department of Veterans Affairs (DVA) had manipulated hospital performance metrics by maintaining secret wait lists of veterans who needed care. The resulting VACAA established new rules for the removal of DVA Senior Executive employees, 38 U.S.C. 713. Previously, senior DVA executives could only be removed under the Civil Service Reform Act, 5 U.S.C. 1101, and were entitled to appeal to the Merit Systems Protection Board (MSPB), to a hearing, and to attorney representation. Section 713 created an accelerated timeline for MSPB appeals and required the MSPB to refer all appeals to an administrative judge (AJ) for decision within 21 days. Helman, the Director of the Phoenix Veterans Affairs Health Care System, was removed from her position under section 713. An MSPB AJ affirmed. Helman sought review from the full Board. Citing section 713(e)(2), the Board refused to take any further action. The Federal Circuit remanded, holding that, by prohibiting Board review under section 713(e)(2), Congress vested significant authority in an AJ in violation of the Appointments Clause. Section 713(e)(2) and two related sections are severable, leaving the remainder of the statute intact. View "Helman v. Department of Veterans Affairs" on Justia Law

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The Federal Circuit affirmed dismissal of a claim against the U.S. government, finding that the government had no contractual obligation to reimburse plaintiff’s pension withdrawal liability costs, incurred under the Multi-Employer Pension Plan Amendment Act (MPPAA), 29 U.S.C. 1381. Plaintiff had a contract with NASA to provide services, which was subject to the McNamara-O’Hara Service Contract Act (SCA), 41 U.S.C. 6701, under which service contracts specify a “wage determination,” setting wage rates and fringe benefits. The SCA insures that service employees who were protected by a collective bargaining agreement (CBA) with one contractor are not deprived of that CBA’s wages and benefits when the contract they work on is competitively awarded to a new contractor. Otherwise, if an incumbent contractor agreed to a CBA that provided for wages and benefits greater than the prevailing rate, a challenger could underbid the incumbent for the follow-on contract by providing its employees with less. The government is willing to increase contract prices when contractors incur increased costs as a result of an increase in the wage determination. The courts concluded that this plaintiff independently chose to negotiate a CBA with the Teamsters and join the Teamsters’ pension plan and independently assumed the risk of MPPAA withdrawal liability. NASA did not require plaintiff to do so and had no contractual recourse if plaintiff failed to satisfy its MPPAA obligations, so the SCA does not allocate the risk of MPPAA liability to the government. View "Call Henry, Inc. v. United States" on Justia Law

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The 2013 Department of Defense (DOD) budget was cut by $37 billion halfway through Fiscal Year 2013. The Secretary of Defense directed DOD managers to prepare to furlough most civilian employees for up to 11 workdays, with exceptions for employees deployed to a combat zone, those whose jobs are necessary to protect safety of life and property, Navy Shipyard employees, National Intelligence Program employees, Foreign Military Sales employees, political appointees, non-appropriated fund instrumentality employees, foreign national employees, and various employees not paid directly by DOD Military accounts. Snyder, a civilian engineer at the Naval Surface Warfare Center (Dahlgren) received a Notice of Proposed Furlough. Snyder worked on an Advanced Shipboard Weapons Control project, governed by a Cooperative Research and Development Agreement (CRADA) between Dahlgren and Lockheed. Lockheed was solely responsible for funding and paid $2.6 million in 2012 to the U.S. Treasurer. Unused funds were to be remitted to Lockheed. Lockheed and Snyder requested that Dahlgren employees supporting the CRADA be exempt from furlough. The Navy denied the request. The Federal Circuit affirmed the Merit System Protection Board in upholding Snyder’s furlough. An agency may furlough an employee for lack of work or funds or other non-disciplinary reasons, 5 U.S.C. 7511(a)(5), 7512(5) if the furlough “will promote the efficiency of the service.” The court found the furlough decision to “be a reasonable management solution to the financial restrictions placed on the agency.” View "Snyder v. Department of the Navy" on Justia Law

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Banks was hired by the VA in July 2015. Her appointment was in the excepted service and was subject to a one-year probationary period. In March 2016, the VA notified Banks that it planned to terminate her due to performance issues. Rather than wait for the agency to terminate her, Banks resigned. Banks appealed to the Merit Systems Board, asserting that her resignation constituted a constructive removal. An administrative judge found that Banks was not preference eligible, that the record contained no evidence of prior federal service, and that Banks was within her probationary period, and concluded that Banks was not an “employee” under 5 U.S.C. 7511(a)(1) with the right to appeal to the Board. The AJ concluded that Banks’s allegations of a hostile work environment and retaliation did not provide jurisdiction under 5 U.S.C. 7702(a), absent non-frivolous allegations of an agency action independently appealable to the Board. The Board upheld the dismissal after considering new evidence indicating that, before being hired by the VA, Banks had been currently and continuously employed by the U.S. Postal Service for three years. The Board concluded that this prior federal service did not give Banks a right to appeal because the Postal Service is not an “Executive agency” under 5 U.S.C. 7511(a)(1)(C)(ii). The Federal Circuit affirmed, agreeing that the Board lacked jurisdiction. View "Banks v. Merit Systems Protection Board" on Justia Law