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**-**..RECENT MSPB DECISIONS:..All.-MAR-05.-FEB-26.-FEB-19.-FEB-05.-JAN-29.-JAN-22.*MSPB

GOSPEL: MELVIN TAYLOR - CROSS JORDAN

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03-10:.WASHPOST:...[ REVOLVING DOOR ] [ FED AUTO REGULATORS NOW WORK FOR AUTO COMPANIES ] ..ARTICLE

03-10:.FED.CIR:..DID POSTAL SERVICE WRONGLY FIRE MS. HOLLEY? The United States Postal Service removed Ms. Holley from her position as a Mail Processing Clerk, PS-6, effective July 5, 2008, for unsatisfactory attendance due to absence without leave. Ms. Holley appealed the removal action to the Merit Systems Protection Board, alleging that her removal was the result of discrimination based on her medical condition and retaliation for her prior equal employment opportunity activity.. Here she appeals her removal to the Federal Circuit. ..DECISION

03-10:.MSPB:..[ TERMINATION DURING PROBATIONARY PERIOD ] [ U.S. MARSHAL ] The appellant received a career appointment in the competitive service as a Deputy U.S. Marshal subject to completion of a 1-year probationary period. By letter dated August 30, ..., the appellant was notified that he would be terminated during his probationary period, effective September 20, ..., due to unacceptable performance and conduct. The termination letter advised the appellant of his limited right to appeal to the Board as a probationary employee and his right to file an equal employment opportunity (EEO) complaint. The appellant filed an EEO complaint alleging that he was discriminated against because of his race when he was terminated from his position. The Equal Employment Opportunity Commission (EEOC) affirmed the agency’s final decision on the appellant’s discrimination complaint, finding that the appellant failed to prove that he was discriminated against on the basis of race.. Here he appeals her removal to MSPB. ..DECISION

03-10:.GUNSMOKE:..New hotel in town is in competition with Ms. Kitty's Joint?

03-10:.TECH NEWS: ...BETANEWS. ..ENGADGET

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03-09:.FED.CIR:..DID HE REALLY SIT IN THE SHOWER? DID VA WRONGLY FIRE THE POLICE OFFICER? DID POLICE OFFICER ABUSE THE VETERAN? Gabriel Cosme was a Police Service lieutenant at the VA Medical Center in San Juan, Puerto Rico. “Mr. P” (whose identity remains private) was a forty-eight-year-old, homeless veteran who regularly visited the Medical Center, seeking food or requesting medical services. On June 28, 2008, Mr. P entered the Medical Center, where employees directed him to the pharmacy for a prescription, and then to a basement bathroom reserved for employees. One of these employees asked Cosme to investigate. Cosme and another security officer, Eddie Sanchez, located Mr. P in the bathroom shower and asked him to leave the Medical Center. Mr. P then defecated in the shower and passively resisted Cosme’s instructions by dressing slowly. Eventually, Cosme grabbed Mr. P’s arm and collar, tearing his shirt, and told him (in Spanish) to “get the hell out of here.” ... After Sanchez reported Cosme’s actions to a supervisor, the VA investigated and removed Cosme for five charges of misconduct. Here Cosme appeals his removal to the Federal Circuit. ..DECISION

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03-08:.MSPB CASE DECISIONS:.March 5, 2010. ..HERE

03-08:.FED.CIR:..DID SSA WRONGLY FIRE HER WHEN SHE GOT SICK? DISABILITY DISCRIMINATION? Ms. C.D. Hawkins (“Hawkins”) was employed by the Social Security Administration (“Agency”) as a Debtor Contact Representative (“DCR”) in Birmingham, Alabama. On September 17, she was in an automobile accident and failed to return to work. Through numerous communications with her supervisor, Hawkins was notified that she was being carried in AWOL status. She requested that her status be changed to leave without pay (“LWOP”) and later made a request for an accommodation to work from home; she was told to provide proof of the accident and of a continuing medical disability to have her status changed. Hawkins provided several doctors’ letters and a police report of the accident, which the Agency found insufficient. ... Hawkins was removed from the Social Security Administration for “Failure to Report to Work When Not On Authorized Leave, resulting in absence without leave,” (“AWOL”) and “Failure to Follow the Rules and Regulations for Requesting and Obtaining Leave” from November 1 through her termination on April 18th. ... Here, she is appealing to the Federal Circuit. ..DECISION

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03-05:.FED.CIR:..DUDE, KEEP YOUR STUFF IN YOUR PANTS! .HE WAS REMOVED BY FAA FOR EXPOSING HIMSELF TO A FEMALE CO-WORKER. Mr. Roche (“Roche”), is a former employee of the Federal Aviation Administration (“FAA”). ... Roche began his employment as an Air Traffic Control Specialist with the FAA on February 16, 2006. On June 28, 2007, the FAA sent Roche a Notice of Proposed Removal from federal service on the grounds that he had inappropriately touched a female co-worker, exposed his genitalia to the same female co-worker, and made sexually suggestive gestures in front of several co-workers. He was removed on September 1, 2007. Roche’s employment with the FAA lasted a total of 562 days, or approximately 1.55 years. Roche filed a timely appeal with the Federal Circuit...DECISION

03-05:.FED.CIR:..FORMER VA EMPLOYEE WISH HE'D HIRED ANOTHER ATTORNEY. .DECISION

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03-04:.FED.CIR:..[ PRISON GUARD ALSO PROVIDED SECURITY FOR RECORDING ARTISTS ] . Department of Justice removed Davis from his position as a Correctional Officer at the Metropolitan Correctional Center (“MCC”) in New York, New York based on five charges: (1) misuse of Davis’s Bureau of Prisons (“agency”) credential, (2) possession of an altered government credential, (3) failure to report an outside contact between Davis and an associate of an inmate, (4) carrying a concealed weapon under the Law Enforcement Officer Safety Act of 2004 without the agency’s acknowledgment, and (5) engaging in outside employment without the agency’s approval. The warden of the MCC sustained all five charges against Davis. ..Davis is appealing to FedCir. ...DECISION

03-04:.FLRA:..DID SSA OWE HIM A TEMP PROMOTION FOR PERFORMING HIGHER GRADED DUTIES? ..The Arbitrator found that, from June 2001 until approximately April 2004, the Agency assigned the two grievants to the CDR Unit, where they supported the Claims Representatives with appeals and CDR functions. The Arbitrator determined that, during this time, the grievants were the only Service Representatives performing duties in the CDR Unit, which was otherwise composed of Claims Representatives who are at level GS-9 or above. Id. Based on the testimony of Agency witnesses, the Arbitrator found that the grievants fully performed six, and partially performed three, of the fifteen enumerated Claims Representative duties. The Arbitrator also found that the grievants had received the same training as Claims Representatives and that the grievants were replaced by Claims Representatives when they were absent from work. The agency appealed to the FLRA...DECISION

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03-03:.VAOIG:..[ VA IG REPORT ] ..A VA CENTRAL OFFICE (VACO) PUBLIC AFFAIRS NIGHTMARE! . SEVERAL VA CENTRAL OFFICE PUBLIC AFFAIRS EMPLOYEES FACE DISCIPLINE. HIGH LEVEL VACO PUBLIC AFFAIRS OFFICIAL FOR QUESTIONABLE TRAVEL. 2600 PORNOGRAPHIC IMAGES FOUND ON ANOTHER VACO PUBLIC AFFAIRS EMPLOYEE'S COMPUTER..WASHINGTON TIMES STORY --..VA IG REPORT

03-03:.5TH.CIR:..[ AGE DISABILITY DISCRIMINATION ] ..[ SEXUAL HARASSMENT ] ..WAS HE WRONGLY FIRED BECAUSE OF HIS AGE or WAS HE RIGHTLY FIRED FOR SEXUAL HARASSMENT? L. WAYNE Jackson was employed by in various managerial positions from 1999 until June 2007. In May 2007, one of Jackson’s coworkers, Karen Hopper, emailed her supervisor, Controller James Rosetti, asserting that Jackson had been engaging in behavior that made her “uncomfortable.” She explained that Jackson had asked to see her “[breasts]” and had commented that her boyfriend must like “big boobs.” She stated that Jackson had “on many occasions” made inappropriate statements or comments in front of her and her female coworkers. In addition, she told her supervisor that every time she saw Jackson he tried to touch her and that he had once cornered her and asked her to raise her shirt. Rosetti then informed Chief Operating Officer Jimmy Phelps of Jackson’s behavior. Phelps began an internal investigation and interviewed several employees who corroborated the allegations. To confirm the findings, Phelps hired an attorney, Victoria Phipps, to conduct an external investigation into Jackson’s behavior. Her interviews with both male and female coworkers confirmed the harassment allegations. And when Phipps interviewed Jackson, he admitted that he was “vindictive” and would try “legally” to get back at those making allegations against him. In June 2007, Phelps terminated Jackson for his non-compliance with the company’s sexual harassment policy, which Jackson had signed when he was hired in 1999. Jackson was sixty-nine years old when he was terminated. He was replaced by Monte Duke, who was forty-two at the time. Jackson brought suit for age discrimination. ...DECISION

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03-02:.MSPB:..[ CONSTRUCTIVE SUSPENSION ] .[ DISABILITY DISCRIMINATION ] ..WAS THE POSTAL EMPLOYEE FORCED TO RETIRE? The appellant was employed as a Modified Mail Processing Clerk with the Postal Service when he left work due to a back condition (degenerative disc disease) and other medical problems, including hypertension, depression and carpal tunnel syndrome. Hearing CD (HCD) (testimony of the appellant). Sometime in October, and again in mid-December 2007, the appellant notified the agency that he wished to return to work in his prior position. In his modified clerk position, the appellant had performed window sales duties and also did computer input, answered telephones, and handled mail forwarding and similar ancillary tasks. He had a lifting restriction of 20 pounds and could stand for up to 1 hour. When the appellant requested to return to work, his physician stated he had a 10-pound lifting limitation, could not stand for more than 15 minutes, and could not engage in customer contact, either in person or by phone. Ultimately, the agency removed the appellant, effective March 8, 2009, for being on leave-without-pay in excess of 1 year due to illness. He appealed to MSPB. ... After holding the hearing the appellant requested, the AJ dismissed the constructive suspension appeal for lack of jurisdiction. The AJ based the dismissal on his finding that the appellant did not produce medical evidence showing that he could perform the essential functions of his job without posing a hazard to himself or others and that the agency reasonably determined it had no work within his restrictions. The AJ also affirmed the agency’s removal action and held that the appellant did not prove his affirmative defense of disability discrimination or retaliation. He appealed to the MSPB Full Board...DECISION

03-02:.FLRA:..[ UNION GRIEVANCE ] .[PERFORMANCE STANDARD ] The Department Of Energy notified the Union that it intended to implement a new pass/fail performance standard pertaining to safety. The Union responded that: (1) performance-appraisal matters are covered by the agreement; (2) the proposed standard conflicted with the agreement; and (3) the proposed standard could not be implemented without bargaining. Award at 6-7. In reply to the Union, the Agency disagreed with the Union’s position and advised the Union that it intended to implement the new standard. After the Agency implemented the new standard, the Union filed a grievance that was submitted to arbitration. ... The Arbitrator concluded that the Agency’s implementation of a new performance standard did not violate the parties’ agreement. For the reasons that follow, we dismiss the exception relating to § 7116(a)(7) of the Statute, and we deny the remaining exceptions. He appealed to the FLRA...DECISION

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03-01:.MSPB:..[ CONSTRUCTIVE SUSPENSION? ] ..The agency asserted that the appellant’s request to return to duty was submitted shortly after he asserted that he “cannot return to work anywhere within the Postal Service” and that he is “permanently disabled . . . due to an anxiety/depression disorder.” ... The agency also submitted the results of a January 2009 FFD examination it conducted to determine whether the appellant was capable of performing the duties of his position, which revealed, inter alia, that the appellant believes that: he is still disabled and suffers from the same symptoms that necessitated him being absent from work since 2007; after being denied disability retirement, he has no alternative but to go back to work at the agency; and he would not “last over one week” if he went back to work. . DECISION

03-01:.MSPB CASE REPORT:..FEBRUARY 26, 2010. ..HERE

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02-26:.FLRA:..[ ARBITRATOR BIAS? ] ..[ FLRA BIAS? ] ..FLRA JUST DOESN'T HAVE THE COURAGE TO REVERSE THE ARBITRATOR WHO CLEARLY SHOWED EXTREME BIAS. .. The Social Security Administration suspend the grievant for three days for Unbecoming and Unprofessional Conduct, specifically, forwarding confidential information that he knew he should not have received or transmitted further. A grievance was filed, and when unresolved, it proceeded to an expedited arbitration hearing. ... The Arbitrator found that the grievant’s three-day suspension was consistent with the seriousness of his offense but sustained the grievance, setting aside the suspension and instructing the grievant to write an apology letter instead. The award stated that if the grievant did not write the letter, then the three-day suspension would stand. . DECISION

02-25:.MSPB:..[ MSPB JURISDICTION IN VA NURSE CONSTRUCTIVE DISCHARGE ] ..THE APPELLANT, A REGISTERED NURSE WITH THE DEPARTMENT OF VETERAN AFFAIRS, TENDERED HER RESIGNATION WITH AN EFFECTIVE DATE OF AUGUST 29. SHE THEREAFTER FILED A BOARD APPEAL, APPARENTLY CLAIMING THAT SHE WAS WRONGFULLY TERMINATED AND THAT THE AGENCY DISCRIMINATED AGAINST HER ON THE BASIS OF HER RACE,AGE OR GENDER. The VA submitted a response in which it argued, inter alia, that the Board had no jurisdiction to hear the appeal because the appellant was appointed under 38 U.S.C. § 7401(1), and therefore lacked Board appeal rights under 5 U.S.C. chapter 75. . DECISION

02-25:.11TH.CIR:..[ RACIAL DISCRIMINATION? ] ..SHE WAS AWARDED TO $65,697 IN BACKPAY AND $25,000 FOR MENTAL ANGUISH. .. This appeal arises from a Title VII claim brought by African-American civil engineer Geneva Brown against her employer, the Alabama Department of Transportation (“the Department”). Brown claimed that the Department denied her nine separate promotions on account of her race, or for retaliatory reasons, between 2000 and 2005. Following a five-day trial, a jury sitting in the Northern District of Alabama entered a verdict in Brown’s favor as to her claims of discrimination and retaliation, and awarded her backpay on the basis of each of the nine challenged promotions. ... On appeal, the Department argues that the district court erred in denying its motion for judgment as a matter of law and remittitur. It claims that the evidence of discrimination and retaliation was insufficient with respect to all of the promotions, and that even if the evidence was sufficient as to some, the backpay award was excessive insofar as it took each of the promotions into account. . DECISION

02-24:.MSPB:..[ PRESIDENTIAL MANAGEMENT FELLOW ] ..The appellant, a registered nurse with the Department of Veteran Affairs, tendered her resignation with an effective date of August 29. She thereafter filed a Board appeal, apparently claiming that she was wrongfully terminated and that the agency discriminated against her on the basis of her race, age or gender. The VA submitted a response in which it argued, inter alia, that the Board had no jurisdiction to hear the appeal because the appellant was appointed under 38 U.S.C. § 7401(1), and therefore lacked Board appeal rights under 5 U.S.C. chapter 75.. . DECISION

Promotions on or after conversion to the competitive service are dependent upon the agency’s merit promotion plan, the position’s career ladder and full performance level, the employee’s time-in-grade, and his/her performance. While there is no presumption of promotion on or after conversion or appointment to a permanent position, Fellows who meet agency requirements for the next grade level may be non-competitively promoted within their career ladders at the successful completion of the Program.

02-24:.4TH.CIR:..[ GREAT CASE TO READ ] .The Police Officer Says He Mistakenly Killed A Doctor.. Shot Him In The Heart. Family Seeks Justice.

At approximately 9:00 p.m., Det. Baucom called Dr. Culosi and arranged to meet outside of Dr. Culosi’s residence, a townhouse condominium. Half an hour later, Dr. Culosi left his house in stockinged feet and met Det. Baucom, who was sitting in his car outside the garage. Dr. Culosi approached the car on the passenger side through his garage and began a conversation about the upcoming Superbowl, while handing Det. Baucom $1,500. ... The parties dispute whether Dr. Culosi was holding a cell phone in his hand during the encounter, although his cell phone was recovered close to his body after the shooting. Det. Baucom soon gave the verbal arrest signal. At the signal, Officer Northrop rapidly approached Det. Baucom’s vehicle and pulled up immediately behind it. At that time, Dr. Culosi was still standing next to the passengerside door of Det. Baucom’s vehicle. ... When Officer Northrop’s vehicle came to rest, Officer Bullock exited from the front passenger door using his left hand to open the door while simultaneously unholstering his weapon with his right hand and announcing "police." Officer Bullock intended to assume a two-handed-grip, i.e., a "gun ready" position. As he executed this maneuver, his weapon discharged a single round, striking Dr. Culosi in the heart. Dr. Culosi received emergency treatment at the scene but died of his wound at the hospital shortly after the incident. . DECISION

02-23:.MSPB:..[ NOTIFICATION OF NON-CONVERSION ]. WAS THE FEDERAL CAREER INTERN PROGRAM TERMINATION APPROPRIATE?. WAS HIS TERMINATION RELATED TO MISCONDUCT OR SUITABILITY?

The appellant was a preference eligible individual serving in a non-temporary appointment in the competitive service as a GS-11 Customs and Border Patrol Officer for the agency’s Bureau of Customs and Border Protection (CBP). Effective April 15, 2007, the agency converted the appellant under the Federal Career Intern Program (FCIP) to the position of GL-07 Immigration Enforcement Agent for the agency’s Immigration and Customs Enforcement (ICE) division. The FCIP appointment was an excepted service appointment expected to continue for 2 years, with a potential to convert to a career or career-conditional appointment in the competitive service upon satisfactory completion of the internship. ... On April 14, 2009, the agency issued a notice to the appellant captioned “Notification of Non-conversion.” ... The notice stated that the agency had determined not to convert the appellant’s excepted service FCIP appointment to a career or career-conditional appointment, the appellant’s FCIP appointment would expire effective April 15, 2009, and the appellant’s employment with the agency was terminated. The notice stated that the reason for the agency’s decision was that the appellant displayed a lack of candor regarding an accident in a government-owned vehicle. However, on April 14, 2009, the appellant was on approved leave, and the agency had difficulty delivering the notice to him in person. The agency recognized the problem and took steps to inform the appellant of its action by other means. On April 15, 2009, the agency issued an SF-50 indicating that the appellant had been terminated effective April 14, 2009. .He Appealed. . DECISION

02-23:.9TH.CIR:..[ DID FAA VIOLATE HIS PRIVACY ACT RIGHTS? ] ..COOPER SEEKS ACTUAL DAMAGES FOR NONPECUNIARY INJURIES, SUCH AS HUMILIATION, MENTAL ANGUISH, AND EMOTIONAL DISTRESS, AS A RESULT OF THE UNAUTHORIZED INTERAGENCY DISCLOSURE OF HIS MEDICAL INFORMATION:

The Privacy Act of 1974, 5 U.S.C. § 552a et seq. (the Act), prohibits federal agencies from disclosing “any record which is contained in a system of records by any means of communication to any person, or to another agency” without the consent of “the individual to whom the record pertains,” unless the disclosure falls within one or more enumerated exceptions to the Act. ... The Act also creates a private cause of action against an agency for its wilful or intentional violation of the Act that has “an adverse effect on an individual,” and allows for the recovery of “actual damages” sustained as a result of such a violation. ... Plaintiff Stanmore Cawthon Cooper claims to have sustained actual damages as the result of an interagency exchange of information performed as part of a joint criminal investigation by Defendants Federal Aviation Administration (FAA), Social Security Administration (SSA), and Department of Transportation (DOT) (collectively, the Government). Cooper seeks actual damages for nonpecuniary injuries, such as humiliation, mental anguish, and emotional distress, as a result of the unauthorized interagency disclosure of his medical information; he does not claim any pecuniary or out-ofpocket losses.. . DECISION

02-22:.MSPB:..[ COMPETITIVE or EXCEPTED SERVICE? ] .VA THOUGHT THEY'D TERMINATED HIM 3 DAYS BEFORE END OF HIS PROBATIONARY PERIOD. But Did They Really? Did The VA Goof-Up The Case? .Was He A Socialist? ..INFO HERE

02-22:.FLRA:..[ DENIAL OF REQUEST TO CHANGE WORK SCHEDULE ]...DID THE ARBITRATOR ERR WHEN HE SUPPORTED FAA's DECISION TO DENY BARGAINING UNIT MEMBER'S REQUEST TO CHANGE HIS COMPRESSED WORK SCHEDULE?

The grievant is an Aviation Safety Inspector (ASI). The grievant previously elected to work a 5/4-9 Alternative Work Schedule (AWS), working eight nine-hour days and one eight-hour day during any two-week period, with every other Friday off. The grievant requested to change to a 4-10 AWS. The grievant’s supervisor denied the grievant’s request. *. The relevant portions of the parties’ agreement are set forth in the attached Appendix. ... The Union filed a grievance on behalf of the grievant asserting that the denial of her request to change her work schedule from a 5/4-9 AWS to a 4-10 AWS violated Article 60 of the parties’ agreement, which contains the provisions of the Agency’s AWS program. The grievance was unresolved and submitted for arbitration. At the arbitration, the parties stipulated to the following issues: “Did the Agency violate [the parties’ agreement] when [g]rievant’s request to work a 4-10 Compressed Work Schedule was disapproved? If so, what shall be the remedy?” ... The Arbitrator found that grievant’s request for a 4-10 AWS was a request for a change in her tour of duty, and that such a request was subject to the Agency’s right, expressed in Article 4 of the parties’ agreement, to determine the numbers, types and grades of employees assigned to any tour of duty. ... The Arbitrator stated that the Agency’s decision to deny the grievant’s request was not unreasonable or an abuse of Agency discretion because “Article 4 reserves to Management the right to conclude that it cannot spare an employee from a particular shift (or that it does not want an additional employee on a particular shift) on a basis which is essentially unreviewable.” Accordingly, because Article 4 left to the Agency the right to refuse to allow the grievant to assume a 4-10 AWS, the Arbitrator denied the grievance. .Union Appealed The Arbitrator's Decision. .DECISION

02-22:.MSPB: MSPB ALLOWS LATE FILED CASES DUE TO RECENT SNOW CLOSINGS. ..INFO HERE

02-22:.MSPB CASE DECISIONS:.FEBRUARY 19, 2010. ..DECISION HERE

02-22:.WASHINGTON TRAFFIC CAMERAS: .JUST CLICK ON BLUE DOT. .HERE

02-19:.MSPB:..[ NEW ADA REGULATIONS ]...DID VA DISCRIMINATE AGAINST HIM?…Jorge Gonzalez-Acosta was removed from his position as a Housekeeping Aid, WG-3566-3, at the Veterans Affairs Medical Center (VAMC) in San Juan, Puerto Rico for inability to perform the physical requirements of the position. The appellant asserted that the removal constituted disability discrimination because of the agency’s failure to accommodate his back condition. ..He had incurred on-the-job injuries, been placed on limited duty, and was serving in a permanent limited duty position performing clerical duties when he was removed. .The appellant’s Housekeeping Aid position required continuous walking, standing, stooping, lifting (including weights of up to 50 pounds), pushing, pulling, and bending.. The appellant testified that he could not perform the essential functions of the position and that there was no accommodation in the position that would enable him to do so. .He appealed. ..DECISION HERE

02-18:.MSPB:..[CONSTRUCTIVE DEMOTION ???]…Dawn Rosso asserted that the agency improperly conducted a fitness-for-duty examination, found her unfit for duty, and told her that it would remove her unless she accepted an Entry Specialist (ES) position. She asserted that she was forced under extreme duress to accept the ES position, tried to rescind her acceptance, and was not allowed to do so. She stated that she had not yet signed “the final acceptance letter” for the position, had not yet worked in the position, and would be forced to sign a document accepting the position and enter on duty in the position on June 15, 2009. She further claimed harmful procedural error; prohibited discrimination; the action was not in accordance with law; prohibited personnel practices; retaliation for winning a 2005 Board appeal; and retaliation for filing complaints with the Equal Employment Opportunity Commission (EEOC), the Office of Inspector General, Internal Affairs/Office of Professional Responsibility, and her congressional office. Dawn appealed. ... .. DECISION HERE

02-17:.COURT:..[HOW TO LOSE $620,000 IN A QUICK MINUTE]…[DON’T MESS WITH RHONDA]…Bradford entered into a written agreement to purchase William & Rhonda's Laguna Beach residence for $14 million, but later unilaterally cancelled escrow. William & Rhonda promptly sold the property to a third party for $15 million, but refused to return Bradford's $620,000 deposit. They insisted the deposit as “non-refundable.” Bradford sued William & Rhonda to recover his $620,000 deposit. The trial court found in favor of William & Rhonda. The court concluded that William & Rhonda could retain $600,000 of the $620,000 Bradford 's deposit. The court orderered only $20, to be refunded to Bradford. Bradford appealed to have his entire $620,000 deposit returned. ..DECISION HERE

02-16:.FED.CIR:..NO, YOU'RE NOT MY BOO, YOU'RE MY BOSS! ... [SEXHAR]...[ATTORNEY'S FEES]...SHE WAS AWARDED $300,000 IN HER SEXHAR CASE. SHE WAS ALSO AWARDED $10, 000 IN ATTORNEY'S FEES. ..Hilda Negrete was hired by the City of Loredo in July 2001. She reported directly to the City Secretary of Laredo, Gustavo Guevara, who was Negrete’s supervisor and department director. Beginning around April 2005, Guevara began making unwelcome advances toward Negrete. He began calling Hilda after hours and asking her out for dinner and drinks. Guevara also sent Hilda flowers at the office on two occasions under the pseudonym “Ramiro Ramirez.” In addition to making unwelcome advances toward Negrete, Guevara began making inappropriate comments to her about his wife as well as other remarks Negrete deemed sexist in nature. .... In August 2005, Guevara created an image superimposing Negrete’s face onto a scantily clad woman’s body and showed it to several individuals. Hilda confronted Guevara about the image and told him that she was “humiliated and embarrassed” by the image he created. Guevara apologized for his conduct and told Negrete he did not intend to offend anyone. Guevara, however, continued to commit offensive acts following his conversation with Negrete. Sometime during the fall of 2005, Guevara approached Hilda in a stairwell and gave her an unsolicited hug. He later mounted a female intern, who had bent down to pick up some disks, and pretended to ride her like a horse. Hilda did not personally witness the incident involving the intern, but was nonetheless offended by the conduct when she learned about it. ... Negrete claims Guevara made her feel uncomfortable in January 2006 when he hugged her and lifted her up in his arms upon returning to work after the New Year’s holiday. Hilda was offended by Guevara again several weeks later when she witnessed him displaying a pornographic image to two other City officials on his office computer. Hilda subsequently contacted the City Attorney to complain about Guevara’s offensive behavior. She eventually won her case against the city of Laredo and was awarded $300,000. The City Of Laredo Appealed... DECISION HERE

02-12:...SUNDAY IS VALENTINE'S DAY... MEN: Show Her You Care ..WOMEN: Buy Him Flowers.

02-11:.FED.CIR:..[A LOVE STORY]...WAS IT GOVERNMENT ANTI LOVE-ISM? Marina is a Customs and Border Protection Officer with Dept. of Homeland Security. Marina met Rafael at a Christmas party given by mutual friends, and the two began dating shortly thereafter. Their relationship quickly grew to deep love. She had met her soulmate. Rafael proposed to Marina and soon they were married. Word spread quickly around DHS. Some mangers at Homeland Security became envious of Marina's and Rafael's wonderful love affair. Eventually, they fired her for reasons related to her love relationship with Rafael. Marina Appealed for Love. CASE DECISION HERE

02-10:.10TH.CIR:..[SEXUAL DISCRIMINATION]..[DISABILITY DISCRIMINATION]..THEY HIRED A MALE OVER 3 WOMEN. After The Fiscal Officer Resigned, Margee Johnson, an accountant was given a temporary promotion to act in the vacant Fiscal Officer position. After a lengthy recruitment process, a male was selected for the vacant Fiscal Officer position, she brought this lawsuit, alleging discrimination in violation of, among other things, Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act (“ADA”).

Ms. Johnson was a good employee who worked for many years without complaint.

CASE DECISION HERE

02-09:.7TH.CIR: ..[SEXUAL HARASSMENT]...DEAR SUPERVISOR: WHY YOU SHOULD NOT HAVE SEX WITH YOUR SUBORDINATES. CLASSIC OLD-SCHOOL SEX HARASSMENT CASE WITH A MODERN TWIST. THIS TIME THE VICTIM IS MALE. ..WILL HE BE HELD TO THE SAME or DIFFERENT STANDRD? .Dixie, The Supervisor, Admits Having An Inappropriate Sexual Relationship With Paul, Her Subordinate. .[Contains Graphic Content].

7TH.CIR JUSTICES: Two features of this case make it unusual but do not affect our result.

First, the plaintiff is a male and his supervisor is a female; almost all of our cases involving sexual harassment have the sexes reversed. Nevertheless, “[t]he law is well settled that sexual harassment of an employee by a supervisor is not confined to instances involving male supervisors and female subordinates; it can occur in the female supervisor-male subordinate context.” Casiano v. AT&T Corp., 213 F.3d 278, 285 (5th Cir. 2000). Like the Fifth Circuit, we find it helpful to “hypothetically transpose the sexes of the parties in this case.” Id. If Lake were male and Turner female, and the allegations were similar, there would be no doubt that the case would survive summary judgment. The same conclusion follows here.

Second, [Paul] and [Dixie] had a nine-month consensual sexual relationship prior to the alleged sexual harassment. We have said in the past that “whether [the victim] had dated [the harasser] prior to the events in question [is] by no means dispositive of” the sexualharassment claim. Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chi., 488 F.3d 739, 746 (7th Cir. 2007); accord Johnson v. West, 218 F.3d 725, 729-30 (7th Cir. 2000).. .

CASE DECISION HERE

02-05:.FED.CIR: .[TIMELINESS]..WHAT HAPPENS WHEN YOU HIRE A LAZY BAD ATTORNEY?...Decision

02-05:.7TH.CIR: ..[DOMESTIC VIOLENCE] .WILL CASE BE OVERTURNED? DID POLICE ENTER WITHOUT CONSENT? In late January, Deborah Dean called 911 from Kevin Risner’s house but hung up before talking to a dispatcher. The County Sheriff’s Department responded anyway, as was its policy with all 911 hangups. Deputy Bill Dulin found Dean, Risner’s girlfriend and cohabitant, in the front yard wearing nothing but a trench coat. She told Dulin that she had called 911 because Risner had been drinking heavily, threatened to kill her, and assaulted and choked her. Dulin observed injuries on Dean’s face and neck that appeared to corroborate Dean’s story. Dean also told Dulin that Risner had several weapons inside, and that Risner had said that he had nothing to lose because he was going to prison anyway. .Decision

02-05:.10TH.CIR: .[CONSTRUCTIVE DISCHARGE?] .[DEMOTION?].UNIQUE NAME:."EULA CHRISTINE SWIMMER"..Ms. Swimmer worked as a supervisory medical technologist in the laboratory at Hastings Indian Medical Center. In February 2007, she was reassigned to a non-supervisory laboratory position and her old position was given to a white male under the age of forty. Ms. Swimmer resigned. She filed an initial Equal Employment Opportunity (EEO) complaint against defendant-appellee on June 5, 2007, claiming her demotion was motivated by race, gender, and age discrimination, as well as retaliation for previous discrimination complaints she filed in the 1970’s and 1980’s. .Decision

02-03:.2ND.CIR: .[FOIA SECRECY] .[NATIONAL SECURITY] .[GLOMAR RESPONSE ].. Plaintiffs-appellants are attorneys representing individuals detained by the United States government at Guantánamo Bay, Cuba. ... Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs’ communications relating to the representation of their detainee clients. The NSA and DOJ served and filed so-called Glomar responses—neither confirming nor denying the existence of such records— ... the FBI also filed a similar response. .Decision

02-03:.TRAINING:..FLRA TRAINING SESSSION: .Feb 25, 2010, in Washington, D.C. ..HURRY!. INFO

02-03:.FED.CIR: .[EQUAL PAY ACT] .WERE THE FEMALE VA NURSE PRACTITIONERS DISCRIMINATED AGAINST? OR WERE THEY JUST OVERLY ENVIOUS OF THE PHYSICIAN ASSISTANT DUDES? ..The thirty-five plaintiffs current and former nurse practitioners (“NPs”) employed by the Department of Veterans Affairs (“VA”). The plaintiffs brought suit against the VA under the Equal Pay Act, 29 U.S.C. § 206(d) et seq., alleging that, as predominantly female NPs, they are paid at a lower rate than the predominantly male physician assistants (“PAs”), performing jobs of equal skill, effort, and responsibility under similar working conditions. .Decision

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02-02:.1ST.CIR: .[SECRET AGREEMENT].[INTERNAL UNION FIGHT].TWO PUERTO RICAN UNION GROUPS [G7 & G3] SQUARE OFF IN COURT OVER SENIORITY RIGHTS - G7 filed a complaint pursuant to § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, alleging that ISA and G3 fraudulently procured, in breach of the collective bargaining agreement (CBA), an arbitration award granting seniority rights to G3. Neither the Union nor G7 was a party to the agreement between ISA and G3 that presaged the award.. .Decision

02-02:.OPM: OPM Blocks Plan To Eliminate Fed Employee Identity Theft. .Decision

02-02:.CHCO Council Bulletin -- for Week Ending 1/29/10 .Decision

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02-01:.MSPB: .ENFORCED LEAVE] [ ARBITRATION] DID AGENCY ABUSE ITS AUTHORITY WHEN THEY PUT THE POOR POOR SICK EMPLOYEE ON ENFORCED LEAVE WITHOUT PAYFOR EXTENDED PERIOD? ... The agency based its Enforced leave action on the appellant’s multiple health conditions, i.e., (1) diabetes, (2) hearing loss requiring the use of a hearing aid, (3) alcoholism, and (4) depression. SHOWING GREAT LEADERSHIP & WISDOM, HIS AFGE UNION REPRESENTATIVE TOOK THE GRIEVANCE ALL THE WAY TO ARBITRATION. .Decision

02-01:.MSPB: .CASE REPORT FOR JANUARY 29, 2010...HERE

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01-29:.MSPB: .[ LCA ] DID HE BREACH LAST-CHANCE AGREEMENT? WAS THE LCA VALID? On September 5th, the agency removed the appellant based on alleged attendance-related misconduct. ... On November 20, 2008, at Step Two of the negotiated grievance procedure, the parties entered into a Last-Chance Agreement. ... The appellant was to return to work and, and agreed to refrain from further attendance-related misconduct for a period of eighteen months. ... On March4th, the agency informed the appellant that it would remove him on March 20th, based on breach of the last-chance settlement agreement. ... The appellant filed an appeal of the September 5th removal decision and contended that the Last-Chance Agreement was invalid..Decision

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01-28:.FED.CIR:.[ NEXUS ] IS THE JUDGE ABOVE THE LAW? A MUST READ: WILL THE ALL-FEMALE MSPB FULL BOARD REINSTATE THE REMOVAL OF A JUDGE ACCUSED OF DOMESTIC VIOLENCE AGAINST HIS GIRLFRIEND? ... SSA moved to remove the judge for domestic violence. The local MSPB Administrative Judge (AJ) mitigated the penalty to 45-day suspension. SSA IS APPEALING TO THE MSPB FULL BOARD: The petitioner filed a complaint pursuant to 5 U.S.C. § 7521 requesting the Board to find good cause to remove the respondent from his position as an administrative law judge (ALJ) based on a charge of conduct unbecoming an ALJ (2 specifications). .The Association of Administrative Law Judges (AALJ) has filed a motion to intervene and a brief as amicus curiae in support of the [Judge]..Decision

01-28:.TECH:. APPLE ROLLS OUT THE "IPAD" No Phone / No Camera / No Wings.

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LEGEND OF CINDERELLA MADISON - DEFENSE SLAYER!

01-27:.FED.CIR:. ONCE UPON A TIME, CINDERELLA WHIPPED THE BIG BAD WOLF (DOD) THE WORLD BECAME A BETTER PLACE WHEN CINDERELLA GRACED THE GOVERNMENT BY TAKING A JOB AT DOD. Like an evil step sister, DOD became jealous of her Cinderella's goodness, and fired her for no good reason. She appealed and MSPB restored her to duty with back pay money, money, money! DOD messed up her financial info so she Appealed Again...Decision

01-27:.MSPB:. ONCE UPON A TIME, CINDERELLA WHIPPED MOTHER GOOSE (AIR FORCE) IN 1987 CINDERELLA MADISON WAS REMOVED FOR SPEAKING THE TRUTH ABOUT LITTLE FOREIGN COUNTRY THUGS: Specifically, she said " ... Tunisian students were the greatest shoplifting offenders, followed next by those from Morocco. ..." She Fought and won her job back with money, money money!..Decision

01-27:.AFGE:..How to Cite Laws, Regs and Precedents...By Michele Nicholas

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01-26:.MSPB:..USERRA: The AJ dismissed his USERRA appeal for lack of jurisdiction because the appellant’s statements that he was discriminated against based on his veteran’s status were conclusory and unsupported. GENERALLY: The Board has found that an appellant’s mere assertions that he is a veteran and he has been denied employment are not sufficient to raise a USERRA claim. See McBride v. U.S. Postal Service, 78 M.S.P.R. 411, 415 (1998) (the fact that the appellant’s injury occurred while performing military service is incidental to her disability discrimination claim and does not bring the claim within USERRA’s jurisdiction). An appellant must also allege that the agency refused to hire him based on his military service or his status as a veteran. See Hammond v. Department of Veterans Affairs, 98 M.S.P.R. 359, ¶ 8 (2005). In other words, an appellant must allege that the agency discriminated against him because of his prior military service or his current obligation to perform service. He Appealed..Decision

01-26:.TRAINING:..EEOC EXCEL CONFERENCE (ORLANDO, JULY 12-15)..INFO

01-26:.TRAINING:..ER/LR TRAINING DOWNTOWN CHICAGO (JUNE 14-17). HURRY!. INFO

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01-22:.3RD.CIR:..TERRORISM?..WAS DOE EMPLOYEE WRONGLY TERMINATED FOR BEING A POTENTIAL TERRORIST RISK ? .The appellant received a letter explaining the reasons for the suspension of his security clearance. The letter stated: Reliable information in the possession of the Department of Energy indicates that you have knowingly established or continued sympathetic association with a saboteur, spy, terrorist, traitor, seditionist, anarchist, or revolutionist, espionage agent, or representative of a foreign nation whose interests are inimical to the United States, its territories or possessions, or with any person advocating the use of force or violence to overthrow the Government of the United States or any state or subdivision thereof by unconstitutional means. His security clearance was later revoked. Lacking a security clearance, the appellant was terminated. He filed a lawsuit..Decision

01-22:.GUNSMOKE:..Wealthy, eccentric miner, is out to marry Kitty. Kitty runs to Matt.

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01-21:.FLRA:..FREE LABOR RELATIONS SLIDE SHOWS FOR YOUR TRAINING:..(1) FLRA Organization, (2) ULP Process Bargaining, (3) Bypass, (4) Meetings, (5) Information, (6) Discrimination, (7) Interference, (8) Union ULPs. ... FLRA Slide Shows

01-21:.DOJ:..TELEPHONE OPERATORS HELPED FBI ILLEGALLY OBTAIN PHONE RECORDS. The FBI was so cavalier -- and telecom companies so eager to help -- that a verbal request or even one written on a Post-it note was enough for operators to hand over customer phone records, according to a damning report released on Wednesday by the U.S. Department of Justice Office of the Inspector General. Some telephone company employees, who were based in FBI offices so as to quickly respond to such requests, said that they assumed that the requests were based on a critical national security investigation, although at least one expressed doubts about the circumstances surrounding requests. In fact, some telecom company employees were so enthusiastic to help that they would generate the formal written requests for telephone records on behalf of the FBI. ... Continued ... Justice 289 Page Report

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01-20:.UNIONS:..TALKING ABOUT HAVING A TIN EAR!..Why did union leaders negotiate such an unpopular deal as the Cadillac Insurance Exemption five days before the Massachusetts special senate election?. ALSO: Steele is on a roll as the first African American leader of opposition party... UnionWin

01-20:.MSPB:..JOHN DOE IS BACK!..SEX, LIES AND VIDEOTAPE. THE CASE THE FBI WISHED WOULD GO AWAY, KEEPS POPPING ITS HEAD BACK INTO VIEW:.. Until his removal, the appellant was employed as a Special Agent, GS-13, by the Federal Bureau of Investigation (FBI). The FBI removed the appellant based on evidence that he had videotaped his sexual activities with the two FBI employees mentioned above, as well as with another woman who was not employed by the FBI; that, although one of the FBI employees had consented to videotaping of her sexual activities with the appellant on other occasions, the appellant had videotaped her on one occasion when she had not consented to and was not aware of the taping; and that the other two women, each of whom was videotaped once, had not consented to and were not aware of those tapings.. FBI Removed Him ... MSPB AJ Mitigated Removal To 120 Day Suspension ... 2006:-MSPB Full Board Reversed AJ and Sustained Removal ... 2009:-Federal Circuit Reversed Removal and Remanded to MSPB ... 2010:-Current MSPB Decision

01-19:.FED.CIR:..WHERE'S THE HUMANITY!..JUST THIRTEEN MEASLY DAYS AWAY FROM DEATH BENEFITS. In order for a widow to qualify for a survivor annuity under FERS, the widow must establish that her spouse had completed at least ten years of creditable service before his death. Mrs. Almaden is the widow of the late Manuel D. Almaden (“Mr. Almaden”). Mr. Almaden had been employed by multiple federal agencies before his accidental death on August 25, 2008. Mrs. Almaden applied for death benefits under FERS on or about October 17, 2008. In a February 19, 2009 initial decision, OPM found Mrs. Almaden ineligible for a survivor annuity under FERS because Mr. Almaden had not completed ten years of creditable civilian service. At the time of his death, Mr. Almaden had completed a total of nine years, 11 months, and 17 days of creditable federal service under FERS. (Just 13 days). Decision

01-19:.UNIONS:..A DEAL TOO FAR?..SOMETIMES A WIN IS REALLY A LOSS IN DISGUISE. The vast majority of Americans find it hard to stomach the deal that will allow labor unions to avoid the "Cadillac" Insurance Plan tax until 2018. A great fundraising item for opposition.. UnionWin

01-19:.GUNSMOKE:..Marshal Dillon goes after gunman who ambushed Chester.

01-15:.MSPB:..THAT'S WHAT YOU GET FOR BEING SO GREEDY!..HE GOT HIS DISABILITY RETIREMENT APPROVED ... THEN HE DECIDED TO MAKE A LITTLE EXTRA MONEY. BUT HE MADE TOO MUCH AND OPM CUT HIM OFF. HE APPEALED.. Decision

*. *.*.MOVIE REVIEW & RECOMMENDATION:..Crazy Heart ... See Review Here

01-15:.FED.CIR:..REVERSAL OF FORTUNE:..Patricia K. Zelenka appeals a final decision of the Merit Systems Protection Board (MSPB), which concluded that she was not entitled to a waiver of her debt to the government arising out of overpayment of disability retirement benefits. The MSPB concluded that Zelenka failed to demonstrate that her “ordinary and necessary” expenses were greater than her income. We conclude that the Board's decision was not supported by substantial evidence. Accordingly, we reverse the Board's decision. ..Decision

01-15:.FED.CIR:..OFF TOPIC CASE:..DID THE VACCINATIONS CAUSE HER BABY'S SEIZURES? ..Decision

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01-14:.OIG:..HOW TO REPORT WASTE, FRAUD, ABUSE TO YOUR AGENCY'S INSPECTOR GENERAL: (1) LOOK FOR THE HOTLINE NUMBER (2) YOU CAN ASK TO REMAIN ANONYMOUS. ..Federal IG Offices

01-14:.MSPB:...SHE RECEIVED A DIRECTED REASSIGNMENT & SUSPENSION FOR ETHICS VIOLATIONS.
Five of the appellant's subordinate employees submitted a hotline complaint to the agency's Office of Inspector General (OIG), making various allegations of misconduct against the appellant. ... While the OIG investigation was still pending, the appellant and another agency employee released to several news outlets, elected officials, and federal agencies a complaint regarding the agency's misconduct. ... The OIG found that: (1) The appellant used her public office for the gain of a private business.; and (2) the appellant violated the Standards of Ethical Conduct by maintaining a close personal friendship with a business over which the appellant was exercising the agency's regulatory authority. . She appealed. . Decision

01-14:.THE CARR FACTORS: WHISTLEBLOWER ( DEFENSE AGAINST WHISTLEBLOWER COMPAINT)

THE..CARR..FACTORS

Ordinarily, when determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, the Board will consider the following factors:

(1) The strength of the agency's evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. ... SEE Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.1999)

The "Carr Factors" are discussed and considerred in this case:.. Decision

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01-13:.DC.CIR:..SHORTLY AFTER A PATIENT EXPOSED HIMSELF TO HER, SHE WAS FOUND CRYING, SHAKING, AND TALKING TO HERSELF. She begged to be transferred and was given the run around. She filed a lawsuit... Decision

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01-12:.FEDCIR:..REJECTED BY MSPB FOR BEING PREMATURE. DEAR FEDCIR, I FELT PRESSURED. TSA notified him that he would be reassigned from his foreign duty assignment in Brussels, Belgium and placed in a lower graded position. TSA mistakenly thought all would be OK because his pay would be maintained. .He figured otherwise and made his move. . Decision

01-12:.FEDCIR:..A LITTLE COMPASSION PLEASE! I AM A SINGLE PARENT OF THREE! .After his removal, he was a little late filing his appeal. He contends that his delay should be excused because of various personal problems that made it difficult for him to timely file his petition, including (1) being a single parent of three children (one mentally challenged), (2) being evicted from his home, (3) having his telephone and (4) utilities cut off, and (5) trying to obtain unemployment benefits. In support of his motion at the Board, he submitted an eviction order. Without compassion, MSPB rejected his heartfelt pleas....He Appealed

01-12:.FEDCIR:..HOW DEBILITATED MUST I BE ... TO GET A DISABILITY RETIREMENT AROUND HERE? She claimed that she was permanently disabled due to (1) arthritis, (2) depression, (3) anxiety, (4) ulcerative colitis, (5) irritable bowel syndrome, (6) sinus problems, (7) menstrual cramps, (8) chronic bronchitis, (9) dizziness, and a (10) tumor. OPM denied her disability application. ..She Appealed.

01-12:.OPM:..DISABILITY AND LABOR ADVOCATE APPOINTED OPM DEPUTY DIRECTOR. .

FIRST FEMALE EEOC COMMISSIONER WITH A PHYSICAL DISABILITY, APPOINTED DEPUTY OPM DIRECTOR. ... Born in Boston, Christine Griffin served in the US Army from 1974 to 1977. She received a Bachelor of Science in marine engineering from the Massachusetts Maritime Academy in 1983. A car accident in her third year left her partially paralyzed and using a wheelchair. From 1995 to 1996, Griffin served as an attorney advisor at EEOC. From 1996 to 2005, she served as executive director of the Boston Disability Law Center. She was nominated EEOC Commisioner, by President George W. Bush in 2006, Griffin advocated for increasing the number of disabled workers in the federal government. . SOURCE:..Wikipedia...SOURCE:..OPM

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01-11:.JUST..IN..CASE:..Jan 08, 2010 M S P B

Decision #	Appellant		Agency
2010 MSPB 5	Werner Bambl	vs	Department of the Treasury
2010 MSPB 4	Richard Erickson	vs	United States Postal Service
2010 MSPB 3	David M. Treacy	vs	Office of Personnel Management
2010 MSPB 2	Frederick J. Beverly	vs	United States Postal Service

FEDERAL CIRCUIT

Opinion #	Appellant		Agency
09-3266	Eloise Hahn	vs	Environmental Protection Agency
09-3240	Daniel Allen	vs	Dept. of Justice
09-3179	Vivian Arnold	vs	Merit Systems Protection Board

01-11:.GUNSMOKE:.. Poor boy comes to town to fetch Doc for unique family emergency.

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01-08:.FED.CIR:..DEAR FEDERAL CIRCUIT COURT, PLEASE CHANGE THE PROBATIONARY TERMINATION REGULATIONS, CAUSE MY REMOVAL ADVERSELY AFFECTED MY REPUTATION AND ABILITY TO OBTAIN FUTURE EMPLOYMENT...Decision

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01-07:.FED.CIR:..FIRED IN FIVE WEEKS - DON'T MESS WITH THE UNITED STATES ARMY! After Being Unemployed for A While, He Finally Landed A Good Job With The Army. Two weeks later, he took leave for Army National Guard Duty. He actually took his family on a cruise. I repeat ... he worked for the Army! He was fired after just 5 weeks in the job. He Appealed...Decision

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01-06:.DC.CIR:..WAS POWERFUL DOT SES' STATUS CUT AN ADVERSE ACTION? She supervised 269 federal employees, 500 contractors, oversaw 96 programs and managed a budget of over $300 million. Her supervisor notified her that she was a poor performer and demonstrated a general lack of “leadership qualities.” She should have been Removed from the SES. Instead, as is all to common with poor performing SES members, her supervisor reassigned her to a SES position with four employees and no budget. She filed a lawsuit. The jury found for the DOT. She appealed to the DC Circuit...Decision

2010.....2010.....2010.....2010.....2010

01-05:.FED.CIR:..DID VA MEMPHIS MEDICAL CENTER FIRE INNOCENT EMPLOYEE FOR HAVING A LITTLE BOX CUTTER?. The Board received testimony that [the appellant] brandished a Smith & Wesson, SWAT II, 3 1/4 inch knife, which he raised above his head in a threatening manner toward his supervisor. Witnesses stated that [the appellant] repeatedly made profane and disrespectful comments to his supervisor. Two days later he did not report for work. Based on this conduct, VA Removed him on charges: (1) possession of a weapon, (2) use of profanity, (3) disrespectful conduct, (4) and absence without leave. He appealed...Decision

12-28:.2010 PAY CHARTS...2010 PAY CHARTS...2010 PAY CHARTS:

Tables:..2010 General Schedule and Locality Pay Tables...xxx

Tables:..2010 Special Rate Tables...xxx

Memo:..2010 Prevailing Rate Pay Adjustments...xxx

Memo:..January 2010 Pay Adjustments...xxx

Memo:..2009 Annual Review of Special Rates...xxx

12-22:.DC.DIST.COURT:..DID THE VA NOT HIRE HER BASED ON HER PHYSICAL AND MENTAL DISABILITY? The VA offered her a RN position pending successful completion of a pre-placement medical exam. During the medical exam, she reported a disability for back & other reasons. She refused to provide specific information requested. [ She did not disclose her mental disability ] The VA withdrew its job offer for failure to complete the medical exam process. .Decision

12-16:.MSPB:..HONEY, I HAD A REAL BAD DAY ON THE BENCH TODAY: THE MSPB FULL BOARD RIPPED ME A NEW CD. TELEPHONIC TESTIMONY -AND- BE CAREFUL WHEN YOU CHARGE “LACK OF CANDOR”

THE CRIMINAL INVESTIGATOR WAS REMOVED FOR ABUSE OF AUTHORITY AND LACK OF CANDOR.

NOTE: An administrative judge must have an opportunity to observe the demeanor of witnesses while they are testifying.
MSPB: We find that the administrative judge erred in ordering a partial telephonic hearing. Accordingly, we must vacate the administrative judge’s findings that were based on the [telephonic] testimony … and remand this appeal [so] the administrative judge can observe the demeanor of the witnesses.

MSPB: The administrative judge failed … to address … the issue of whether the appellant was specifically asked questions that should have elicited information about …” Accordingly, we must vacate the AJ’s findings on specification two of the lack of candor charge and remand the issue for further adjudication.

MSPB: The administrative judge further erred in relying on the fact that the appellant was able to provide detailed testimony regarding his work surrounding [the date] … , but could not recall his activities on [the same date] …” Accordingly, we must vacate the administrative judge’s findings on specification three of the lack of candor charge and remand the issue for further adjudication.

MSPB: We REMAND this appeal to the regional office for further adjudication … the administrative judge must provide the parties with another opportunity to present testimony on material. .BMSPB DECISION

12-15:.BAD FLRA DECISION:..DID THE FLRA REPUDIATE THE LABOR RELATIONS STATUTE? .....

THE FEDERAL LABOR RELATIONS STATUTE, AT 5 USC 7112 (B) (3), EXCLUDES NON-CLERICAL PERSONNEL [ HUMAN RESOURCES] EMPLOYEES FROM INCLUSION IN UNION BARGAINING UNITS:.

          5 USC 7112. Determination of appropriate units for labor organization representation
           (b) A unit shall not be determined to be appropriate … if it includes—
           (3) an employee engaged in personnel work in other than a purely clerical capacity;

In a recent case at the Department of Agriculture, in what appears to be a brazen attempt to placate the union, FLRA determined that fourteen (14) Personnel Specialists [Human Resources Specialists] should be included in a union bargaining unit

WHAT FLRA SHOULD HAVE DONE: The FLRA Regional Director [RD] should have reviewed the Human Resources positions to determine if any of the employees performed purely clerical duties.

WHAT FLRA ACTUALLY DID: Despite finding that the HR Specialists performed administrative work [not clerical], the FLRA Regional Director went on to determine that the fourteen (14) HR Specialists positions should be included in the bargaining unit.

Union was thankful for the early Christmas present.
Management was shocked and dismayed.

WHAT MANAGEMENT SHOULD DO NOW? Immediately, take action to protect HR Specialist positions.

GOOD NEWS: FLRA determined that Employee Relations Specialists and Labor Relations Specialists, who lead the fight for good management on a daily basis, are excluded from the bargaining unit.

Special Thanks: to Peter B. Brownell, Labor Relations Specialist, APHIS, USDA, for sharing these decisions with Permerica.com. Permerica.Com appreciates your efforts, and efforts of other Labor Relations and Employee Relations Specialists, to keep up the fight for good management.

THOUGHT: Since most Federal Labor Relations Specialists are successful in assuring that management carries out the agency's mission while meeting its labor relations obligations, unions are often unsuccessful with the numerous complaints they file to FLRA. Rather than acknowledging that the majority of the complaints they file are frivolous, the unions instead label FLRA as pro-management. In order to shed this label, FLRA appears to be going out of its way to placate the unions. Unfortunately, there are not many legitimate opportunities to placate he unions due to the excellent guidance provided by the majority of Federal Labor Relations Specialists. So it appears that the only thing left for FLRA is to start cannibalizing the statute.

THE FLRA BAD DECISIONS: FINAL DECISION --- RD INITIAL DECISION

12-14:.FEDCIR:..WELCOME TO THE WORLD OF REALITY CASE LAW: He appealed his termination to MSPB alleging (1) He Was Terminated For Disciplinary Reasons (2) He Was Subjected To A Constructive Suspension, With Pay. MSPB scratched his/her head and pondered the case for some time .. then looked around the court room for Ashton Kutcher or Allen Funt. MSPB addressed the appellant ... Let me get this straight, ... You feel that your termination on the Not To Exceed Date of your temporary appointment was for disciplinary reasons? And you feel that you were subjected to a Constructive Suspension when the agency placed on administrative leave, with pay, for the last 30 days of your temporary appointment? Not happy with MSPB’s decision, the appellant appealed to the Federal Circuit Court. .Decision

RARE INSIGHT INTO ER, LR & HR WORK AND STRESS.

12-10:.FEDCIR:..WAS THE AIR FORCE VETERAN WRONGLY DEMOTED? First VA Promoted this permanent GS-5 Supply Clerk to a GS-7 Prosthetic Representative Trainee position in the Federal Career Intern Program. Then VA demoted him to the GS-5 grade level less than one year later. The veteran appealed saying "you can't demote me 'cause I am was an employee" VA Responded "you were not an employee, you were just a trainee." He appealed to the Federal Circuit Court.. .Decision

12-07:.OIG:..HOW TO REPORT WASTE, FRAUD, ABUSE TO YOUR AGENCY'S INSPECTOR GENERAL: (1) FIND YOUR AGENCY'S IG OFFICE ON THE LIST BELOW. (2) LOOK FOR THE HOTLINE NUMBER (3) REPORT THE WASTE, FRAUD, ABUSE, ETC. (4) YOU CAN ASK TO REMAIN ANONYMOUS. FEDERAL IG OFFICES: .IG-IG-IG-IG

**-**:.PERMERICA.COM DISCLAIMER:..ONLINE SINCE 1995 - DISCLAIMER

12-02:.FEDCIR:..THAT'S COLD BLOODED MSPB! What about my job? What about my backpay?. HHS violated the VEOA by selecting (a non-veteran) over (a veteran) without obtaining approval from OPM. HHS conceded the VEOA violation. HHS then remedied the VEOA violation by (1) cancelling (the non-veteran's) appointment (HHS moved her to another job) and (2) deciding not to make any selection from the certificate (not hiring anyone for the position). MSPB said the remedy was OK. The veteran said "?!2&$!!" then appealed to the Federal Circuit Court. .Decision

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