-MSPB Orders Agency to Conduct New Hiring Process for Disabled Veteran-

A partially-disabled Army veteran proved that the Department of Health and Human Services should have given him veterans' preference when he applied for a federal job, the Merit Systems Protection Board concluded.

The Merit Systems Protection Board ordered the Department of Health and Human Services (HHS) to redo its hiring process so that Herbert Russell, an army veteran with a 30% service-related disability, so that he could compete for a job vacancy. The title of the Feb. 2 precedential decision is Russell v. HHS.

Russell had applied for a position with HHS in October 2010 via the agency's QuickHire system, which required job applicants to submit applications and documentation via fax. He reused a fax cover sheet to send in documentation proving that he is a disabled veteran.

A technical flaw in the QuickHire fax system deleted some of Russell's documentation that was necessary to help him obtain a 10-point veterans' preference. As the HHS processed his application without all of Russell's documentation, it only gave him a 5-point veterans' preference. The agency's job applicant rankings revealed that if Russell had obtained the 10-point preference, he would have been the leading candidate for the job.

An administrative law judge determined that Russell was responsible for the mistake because he reused the same fax cover sheet, but the Merit Systems Protection Board reversed and ordered HHS to conduct a new job application process for the position.

Russell v. Department of Health and Human Services - published on February 2, 2012

The MSPB's decision is available at the following link:
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=686980&version=689064&application=ACROBAT
 

January 25, 2012

-Court Should Not Have Dismissed Contracting Officer's Suit, 9th Circuit Rules-

An award-winning Army Corps of Engineeers contracting officer provided enough evidence to get his age discrimination suit to trial, the 9th Circuit Court of Appeals decided.

The federal appellate court reversed a decision that dismissed Devon Shelley's age discrimination suit against the Army Corps of Engineers, which means that Shelley will ultimately get to take his case to trial. Shelley sued the Army Corps of Engineers under the Age Discrimination and Enforcement Act (ADEA) after a five-member panel hired a younger and less experienced applicant for a GS-14 Supervisory Procurement Analyst Position in the Contracting Division of the Corps' Kansas City District.

A federal district court granted the Corps' motion for summary judgment, concluding that Shelley did not produce enough evidence to bring a case to trial. The 9th Circuit Court of Appeals reversed on Jan. 12, in a published decision entitled Shelley v. Geren.

Although the Army Corps of Engineers had presented an allegedly non-discriminatory reason for hiring the younger job candidate, the 9th Circuit determined that Shelley presented enough evidence to warrant a trial on the matter. For example, Shelley presented evidence that the hiring panelists checked the job applicants' retirement dates before hiring a candidate with far less experience. Shelley also showed that he had been in the Army Corps of Engineers for 19 years, whereas the person the Army hired had only been in the Corps for 5.5 years. Shelley also had nine more years of experience in contracting and already worked in the Corps' Contracting Division.

Circuit Judge Jay Bybee dissented, stating that Shelley could not prove that the Corps passed Shelley over for an equally or less-qualified candidate solely because of Shelley's age.

Shelley v. Geren - published on January 12, 2012

The MSPB's decision is available at the following link:
http://www.ca9.uscourts.gov/datastore/opinions/2012/01/12/10-35014.pdf
 

December 21, 2011

-MSPB Reinstates Employee, Deems Performance Standards Invalid-

A Glendale man was reinstated to his old position after the Merit Systems Protection Board agreed that the Department of Defense's job performance standards were invalid.

The Merit Systems Protection Board issued a new precedential decision in the case of Larry Van Prichard v. Department of Defense on Nov. 9. The MSPB agreed with an administrative law judge's decision to reinstate Van Prichard to his old position.

The Department of Defense had removed Van Prichard from his job after determining that he did not meet its five-tiered performance appraisal system. Van Prichard challenged his employer's decision. An administrative law judge concluded that while the employer clearly identified how an employee could be "fully successful," it did not describe the difference between "unacceptable" and "marginally acceptable."

The judge deemed the system invalid and reinstated Van Prichard to his prior position. The MSPB affirmed in a precedential decision.

Larry Van Prichard v. Department of Defense - published on November 9, 2011

The MSPB's decision is available at the following link:
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=662145&version=664117&application=ACROBAT
 

December 21, 2011

-Postal Worker Entitled to Hearing on Jurisdiction, MSPB Rules-

A postal worker is entitled to a hearing to argue that an administrative law judge has jurisdiction over her claim that a stalker rendered her working conditions intolerable, the Merit Systems Protection Board ruled.

The Merit Systems Protection Board issued a precedential decision in Moore v. USPS stating that Carol A. Moore is entitled to a hearing.

Moore, a postmaster for the U.S. Postal Service (USPS), filed a claim alleging that she was essentially placed on forced leave from her job at a post office in Diamond, Ohio. She argued that a stalker would routinely approach her at work and follow her after she left, which forced her to stay home. Moore began attending a psychologist who diagnosed her with post-traumatic stress disorder, and recommended that the USPS transfer Moore to a new office.

The employer eventually did transfer Moore, but Moore filed a claim stating that the USPS could have transferred her sooner. An administrative law judge denied her claim for lack of jurisdiction without granting Moore a hearing. The MSPB reversed and remanded, stating that Moore was entitled to hearing to establish jurisdiction.

Moore v. USPS - published on November 3, 2011

The MSPB's decision is available at the following link:
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=659618&version=661590&application=ACROBAT
 

December 21, 2011

-Autistic Hotel Clerk Receives $125k Settlement, Thanks to ADA Suit-

The Equal Employment Opportunity Commission helped an autistic hotel front desk clerk obtain a six-figure settlement after his employer allegedly refused to accommodate his disability and fired him.

The Equal Employment Opportunity Commission (EEOC) announced that it settled its lawsuit with Tarsadia Hotels, which does business as Comfort Suites, on Nov. 7. The hotel operator settled the disability discrimination suit for $132,500 and an agreement to teach its employees about the Americans with Disabilities Act.

The plaintiff, an autistic man, had prior hotel experience in a similar position. He began working at the Comfort Suites Mission Valley Hotel in San Diego, and sought free job coach services from the state. The free job coaching services would have provided autism-specific training about how to master his job. However, the employer denied the clerk's request to allow him to use a job coach, and subsequently fired him.

As a result of the settlement, the autistic clerk will receive $125,000 of the settlement, with the remaining $7,500 going to Partnerships with Industry. Partnerships with Industry is a non-profit organization that provides employment help to people with disabilities.

**(Warning: This article describes a settlement of a lawsuit, which is not citable in court. This article has been posted for informational purposes only.)

- posted by the EEOC on November 7, 2011

More information about the settlement is available at this link:
http://www.eeoc.gov/eeoc/newsroom/release/11-7-11a.cfm
 

December 21, 2011

-County of Orange Liable for $183k in Back Pay to Assistant Sheriff-

The Orange County Sheriff's Department must pay its former assistant sheriff $183,689 in back pay for firing him without a hearing, as well as $345,200 in costs and fees.

California's 4th District Court of Appeal affirmed a judgment in favor of George Jaramillo on Nov. 8, which awarded him back pay, attorney fees, and costs for his 2004 termination. The title of the published decision is Jaramillo v. County of Orange.

The appellate court agreed that the county terminated Jaramillo without a hearing in violation of the Public Safety Officers Procedural Bill of Rights Act (POBRA).

The county had argued that Jaramillo should not be entitled to any back pay, because he eventually pleaded no contest to perjury and misappropriating public funds in 2007. These felony convictions disqualified him from any subsequent work as a law enforcement officer, the county argued.

The appellate court determined that the trial court was aware of this when it granted the back pay award, as the trial court had ended the period of back pay on the date Jaramillo pleaded no contest to the felony charges. The County of Orange also challenged the attorney fees and costs awards, but the appellate court determined that the awards were fair, especially given Jaramillo's unpopularity due to his actions in other criminal cases. The court awarded Jaramillo his costs for the appeal.

Jaramillo v. County of Orange - published on November 8, 2011

The court's decision is available at this link:
http://www.courtinfo.ca.gov/opinions/documents/G043142.PDF
 

December 21, 2011

-Tree Removal Service Underpaid its Workers, 1st DCA Rules-

A tree removal service violated its contract with Caltrans by failing to pay 13 of its workers the prevailing wage in Marin, Solano, and Sonoma counties, according to a decision from California‘s 1st District Court of Appeal.

The 1st District Court of Appeal issued a published decision on Nov. 7 in the case of Reliable Tree Experts v. DIR, which upheld a Department of Industrial Relations decision that Reliable Tree Experts had underpaid 13 of its workers.

The California Department of Transportation (Caltrans) had awarded a contract to Reliable for 200 days of tree clearing, pruning, and removal services, and the contractual language stated that the work would be a Prevailing Wage Law project. Under the Prevailing Wage Law, a government contractor must pay the general prevailing wage rate in the county where the work is to be done. The California Department of Industrial Relations determines the prevailing wage rates, and those rates are available on department's website.

The Department of Industrial Relations concluded that Reliable underpaid 13 of its workers by $57,500 for the 200-day tree project, which amounts to $4,423 apiece. The 1st District Court of Appeal affirmed the department's decision.

Reliable Tree Experts v. DIR - published on November 7, 2011

The court's decision is available at this link:
http://www.courtinfo.ca.gov/opinions/documents/A128726.PDF
 

December 21, 2011

-10th Circuit Allows Diabetic's ADA Suit to go to Trial-

Allegations that an energy company fired a worker because of his diabetes were sufficient to get his case to trial, a federal appeals court ruled.

The 10th Circuit Court of Appeals decided that an employee's allegations were substantial enough to survive his employer's motion for summary judgment, which would have resulted in a dismissal of his disability discrimination suit. The federal appeals court published its ruling in the Nov. 3 decision of Carter v. Pathfinder Energy Services.

Dennis Carter, the plaintiff, alleged that his employer had fired him because he needed more rest than other employees who worked for the oil drilling company. The employer knew of Carter's diabetes when it hired him, but Carter's condition significantly worsened over the years, forcing him to cut his workload in half.

A federal district court in Wyoming ruled that Carter's allegations did not show that his diabetes qualified as a "disability" as defined by the Americans with Disabilities Act, and that his allegations were insufficient to show that he was fired because of his disability. The 10th Circuit Court of Appeals disagreed, and allowed Carter's ADA claim to proceed to trial.

Carter v. Pathfinder Energy Services - published on November 3, 2011

The court's decision is available at this link:
http://www.ca10.uscourts.gov/opinions/10/10-8112.pdf
 

December 21, 2011

-Federal Circuit Court Lacks Jurisdiction Over "Mixed" MSPB Claims-

The Federal Circuit Court of Appeals reiterated that it lacks the necessary jurisdiction to consider "mixed" cases involving the Merit Systems Protection Board and discrimination arguments.

The Federal Circuit Court of Appeals decided that it lacked subject matter jurisdiction to consider a dispute between the Department of Housing and Urban Development and one if its employees, in a Nov. 1 precedential decision. The title of the decision is Diggs v. Department of Housing and Urban Development.

The appellate court stated that it lacks jurisdiction over cases involving an employment action that may be appealed to the Merit Systems Protection Board, and specific types of discriminatory conduct. A footnote clarified that the court may hear these types of "mixed claims" if the employee agrees not to pursue a discrimination claim in another court.

Marisa Diggs, a management analyst for the Department of Housing and Urban Development, appealed a decision to remove her from her job after she allegedly treated two supervisors in a hostile manner, and disobeyed them. She argued that the department was retaliating against her for complaining about sex discrimination, which would violate the federal Civil Rights Act of 1964. An administrative law judge determined that there was insufficient evidence of retaliation, and the Merit Systems Protection Board affirmed.

The Equal Employment Opportunity Commission had reviewed the board's decision, and determined that while Diggs had satisfied the most basic criteria for a retaliation complaint, the evidence did not suggest that the department had retaliated against her.

Diggs appealed to the Federal Circuit Court of Appeals, which questioned whether it had the subject matter jurisdiction to consider Diggs' case. The court pointed out that Diggs has not abandoned her discrimination claim and could still bring it in another court. This ultimately meant that her claim was a "mixed claim," and the court determined that it lacked the jurisdiction to consider Diggs' claim.

Diggs v. Department of Housing and Urban Development - filed November 1, 2011

The court's decision is available at this link:
http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-3193.pdf