00-00: News: IS IT SHIRLEY SHERROD ALL OVER AGAIN? ... IRS EMPLOYEES ARE LEARNING WHAT HIS OPPOSITION PARTY LEARNED EARLIER: IF YOU PRESSURE HIM, HE WILL ROLL OVER AND SELL YOU OUT FASTER THAN A ____.
At This Point, It Is Not Clear That The IRS Employees Did Anything Improper. At This Point, It Looks Like The IRS Did What They Are Paid To Do. Faced With An Avalanche Of Groups Applying To Have Their Profits Be Exempt From Paying Taxes, The IRS Had Two Choices: (1) Just Rubber Stamp The Tax-Exempt Applications Or (2) Closely Scrutinize The Applications To Make Sure That The Tax-Exempt Requests Were Legit. That Is What The IRS Employees Were Paid To Do. At This Point, We Don't Know That Anything Was Improper. Once The Matter Is Properly Investigated, We Will Be Able To Determine If Anything Was Improper. What's Wrong With Just Waiting For The Facts Before Demanding The Resignation Of IRS Leadership (or termination of IRS employees)? Wait For The Facts, Before Succumbing.
00-00: MSPB: MSPB APPEAL FORM (MSPB FORM 185), AND DESIGNATION OF REPRESENTATIVE FORM REVISED and E-APPEAL ONLINE UPDATED:MSPB Appeal Forms
05-17: MSPB: Wright v. Transportation ... TRANSPORTATION REMOVED ME BASED ON UN-REASONABLE PERFORMANCE STANDARDS ! ... The Department of Transportation proposed the appellant's removal from her position as a Management Analyst under 5 U.S.C. chapter 43 for failing to demonstrate a minimally acceptable level of performance during her performance improvement plan (PIP) period based on her failure to meet three critical elements. ... The agency effected her removal on October 14, 2010, and gave her notice of her rights to appeal the decision under the negotiated grievance procedure or to the Board. ... She chose to grieve her removal under the negotiated grievance procedure, and a hearing before an arbitrator was held on May 20, July 19, July 20, August 1, and August 29, 2011. ... The arbitrator found that the agency proved that the Office of Personnel Management approved its performance appraisal system, that the agency properly communicated the performance standards and critical elements, that the performance standards were reasonable, and that the appellant did not meet any of the critical elements during the period of the PIP. ... He further found that the appellant was qualified for the position and that the agency adequately provided training and addressed performance issues. ... Finally, the arbitrator found that the appellant's reasonable accommodation claim was untimely, and he did not address it on the merits. ... Here, Wright Appeals The Decision:MSPB DECISION
05-17: MSPB: Fields v. Postal ... CONSTRUCTIVE SUSPENSION? ... " IT'S POSTAL SERVICE'S BURDEN TO SECURE UPDATED MEDICAL DOCUMENTATION; NOT ME ! " ... The appellant has filed a petition for review in this case asking us to reconsider the remand initial decision issued by the administrative judge, which dismissed his alleged constructive suspension appeal for lack of jurisdiction. ... The appellant argues that, because his condition was permanent, the agency should have sent him for a fitness-for-duty examination and that it was not his, but the agency's, burden to secure updated medical documentation. ... The appellant argues that the administrative judge was biased because he allowed the agency to file its brief late, scolded the appellant's representative when the appellant arrived an hour late to the hearing, failed to consider whether the appellant's representative should be considered as an expert witness, upheld the appellant's removal, and twice decided this constructive suspension appeal incorrectly, as evidenced by the Board's remand orders. ... Here, Fields Appeals The Decision:MSPB DECISION
05-17: MPR: Writer's Almanac with Garrison Keillor: Daily Poem To Read ... Hear
00-00: NEWS: MCDONALD'S SHOULD GIVE CHARLES RAMSEY (THE CLEVELAND HERO) FREE MCDONALD'S FOR LIFE. ... ( and free health insurance for eating that garbage )
00-00: News: TRUE AMERICAN HERO - CHARLES RAMSEY: "I KNEW SOMETHING WAS WRONG WHEN A LITTLE PRETTY WHITE GIRL RAN INTO A BLACK MAN'S ARMS. DEAD GIVEAWAY."The Songified Story Of Charles Ramsey, True American Hero:PLS Player .. M3U Player .. WIN Player ... MP3 File (3 mb)
00-00: VAOIG: NEW VA OIG REPORT: Administrative Investigation, Misuse Of Official Time And Resources And Failure To Properly Supervise, Office Of Human Resources And Administration, Washington, DC (Report # 12-02503-151)
We substantiated that ___, Management Analyst, Office of Human Resources and Administration (HR&A), misused official time and VA resources. We also substantiated that Mr. Joseph Viani, Executive Director for HR&A Strategic Management Group (SMG), and Ms. Mary Santiago, former (retired) Director of VESO, failed to properly supervise ___.
OIG Report
00-00: OPM: NEW OPM HEAD DIRECTING AGENCY HEADS TO PROVIDE INFORMATION ON PAY AND PROMOTION POLICIES AND PRACTICES RELATING TO GENDER PAY EQUALITY.
The Information will be used to support a new, pre-written, phony White House report that will say that women in the Federal government make less money than their male counterparts. Anyone who understands how Federal Pay Administration Policy works know that the pre-written conclusions are not true. But look forward to Elaine Kaplan issuing the phony pre-written report in the next few months.
OPM Data Request
05-14: MSPB: Miller v. Interior ... DID INTERIOR GET CAUGHT DISCRIMINATING AGAINST THE FEMALE PARK DIRECTOR WITH A BOGUS DIRECTED REASSIGNMENT ? ... The appellant, Mary A. Miller, was a Superintendent at the Sitka National Historical Park in Alaska prior to her removal effective August 6, 2010, based on a charge of "failure to accept a management directed reassignment" to the "newly created" position of Alaska Native Affairs Liaison (Liaison position) in Anchorage, Alaska. ... She appealed her removal, asserting that she did not meet the minimum qualifications for the Liaison position and that her removal was "tainted by discrimination" based on her race, sex, and physical disability. ... She also alleged that the action was taken in reprisal for protected equal employment opportunity activity. She further asserted that the agency committed harmful procedural error in taking the removal action, that the penalty was unduly harsh, and that her removal did not promote the efficiency of the service. ... The administrative judge found that the agency proved by preponderant evidence that its decision to reassign the appellant was based upon legitimate management reasons, that it gave adequate notice to the appellant, and that the appellant refused the reassignment. ... The administrative judge found that there was no dispute that the appellant declined the management directed reassignment. ... The administrative judge further found that the appellant was qualified to perform the duties of the new position. ... The administrative judge found that the appellant failed to meet her burden of proof on each of her affirmative defenses and that the penalty was reasonable and promoted the efficiency of the service. ... Here, Miller Appeals The Decision:MSPB DECISION
05-14: MSPB:
Miller v. Postal ... POSTAL SERVICE HAD NO RIGHT TO DEMOTE ME BECAUSE I TRANSFERRED MY BOO FOR FAMILY VALUES !
... As explained in the remand initial decision, the administrative judge sustained the first specification of the improper conduct charge based on her finding that the agency proved that the appellant accepted Sheila Ritenour as a transfer to the Uniontown Post Office (Uniontown) as a Temporary Rural Carrier (TRC) based on his personal dating relationship with her. ... The appellant has filed a petition for review in this case asking us to reconsider the remand initial decision issued by the administrative judge, which sustained the appellant's demotion. ...
Here, Miller Appeals The Decision:MSPB DECISION
05-10: MSPB: Burr v. Justice ... JUSTICE IS ASKING MSPB TO RE-REMOVE THE CRIMINAL INVESTIGATOR. ... The Department Of Justice has filed a petition for review in this case asking us to reconsider the initial decision in which the administrative judge mitigated the appellant's removal to a 90-day suspension. ... ... ... The Department Of Justice removed the appellant, a GS-13 Criminal Investigator in the Drug Enforcement Administration (DEA), on three charges of misconduct: (1) Unauthorized Disclosure of Information; (2) Unauthorized Use of an Official Government Vehicle (OGV); and (3) Conduct Unbecoming a DEA Agent, all of which related to an extramarital affair with JM that the appellant carried on from sometime in 2003 until September 2008. ... The appellant filed a timely Board appeal, and, after holding a hearing, the administrative judge sustained some of the specifications set forth in the first charge and the entirety of the second charge. ... The administrative judge did not sustain the third charge, and, after carefully considering the relevant Douglas factors, she mitigated the penalty, finding that the maximum reasonable penalty under the circumstances was a 90-day suspension without pay. ... Here, Justice Appeals The Decision:MSPB DECISION
05-09: 5thCir: Horton v. CCA ... DID THEY DISCRIMINATE AGAINST HIM ON THE BASIS OF AGE BY DEMOTING AND DISCHARGING HIM, CREATING A HOSTILE WORK ENVIRONMENT, AND RETALIATING AGAINST HIM? ... Plaintiff-appellant Danny R. Horton ("Horton") appeals the district court's grant of summary judgment in favor of defendant-appellee CCA Properties of America, LLC, also known as Corrections Corporation of America ("CCA"). Horton alleges that CCA, a for-profit corporation that managers and operates correctional facilities, discriminated against him on the basis of age by demoting and discharging him, created a hostile work environment, and retaliated against him. He brought his claims pursuant to the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and 42 U.S.C. § 1982. The district court granted CCA's motion for summary judgment. ... Here, Horton Appeals To 5thCir:COURT DECISION
05-09: 7thCir: Basden v. PTI ... WAS HER TERMINATION IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT (ADA) AND THE FAMILY AND MEDICAL LEAVE ACT (FMLA)? ... Professional Transportation, Inc. (PTI) provides around-the-clock ground transportation service for railroads seeking to move their train crews from one route to another. Basden was engaged by PTI as a dispatcher on June 29, 2007. Employees at PTI's dispatch center were subject to an attendance policy that defined an incident of absenteeism as a period away from a scheduled shift for a minimum of four hours. An absence of up to five consecutive shifts for a single reason could be considered one incident. The attendance policy provided that after an employee's fifth incident within a year, a verbal warning could be given; after her sixth incident, a written warning could be given; after her seventh, a three-day suspension could be given; and after her eighth, she could be terminated. The policy did not differentiate between absences for medical reasons and other absences. ... Terri Basden filed a complaint alleging that she was terminated from her employment with Professional Transportation, Inc. (PTI) in violation of the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). The district court found that Basden had failed to present evidence sufficient to establish a prima facie right to the protection of either statute and granted summary judgment in favor of PTI. ... Here, Basden Appeals To 7thCir:COURT DECISION
05-08: 8thCir: Olsen v. CRMC ... DID FIRING THE WOMAN WHO HAD EPILEPSY AND SUFFERED NUMEROUS SEIZURES AT WORK VIOLATE THE ADA ? ... Andrea Olsen was employed by the Capital Regional Medical Center (CRMC) as a mammography technician. Olsen, who has epilepsy, suffered numerous seizures at work. After Olsen was unable to reduce her seizures with CRMC's office accommodations, CRMC placed Olsen on unpaid administrative leave. CRMC offered to reinstate Olsen after learning Olsen was taking medicine that successfully controlled the seizures. Olsen refused this offer and CRMC eventually terminated her. At one point prior to placing Olsen on administrative leave, CRMC hired an additional technician, who was younger than Olsen, to supplement the staff. Olsen filed a charge of discrimination with the Missouri Commission on Human Rights (MCHR) and the Equal Employment Opportunity Commission (EEOC), alleging violations of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Missouri Human Rights Act (MHRA) based on CRMC's placement of her on administrative leave following the work-related epileptic seizures and the hiring of a younger technician. The district court granted summary judgment on all claims in CRMC's favor. Olsen timely appealed. ... Here, Olsen Appeals To 8thCir:COURT DECISION
05-08: 3rdCir: Yovtcheva v. PWD ... DID SHE SUFFER DISABILITY DISCRIMINATION RETALIATION FOR SEEKING AN ACCOMMODATION FOR HER DISABILITY ? ... This matter comes on before this Court on an appeal by plaintiff, Silvia Yovtcheva, from an order of the District Court entering summary judgment against her in favor of her former employer, defendant City of Philadelphia Water Department, on June 29, 2012, in this action under the Americans With Disabilities Act ("ADA"). As we write solely for the parties, we provide only a brief overview of the facts. ... Yovtcheva began working as a water technology assistant with the Water Department?s Bureau of Laboratory Services ("BLS") on February 7, 2005. BLS has two different types of laboratories, "organic" and "inorganic." In an affidavit BLS Director Geoff Brock explained that "[t]he terms "organic? and "inorganic? do not refer to the kind of solvents used in the labs, but, rather, to the kinds of analytes that are the subject of various procedures within each lab group." App. at 117. Chemists in both types of laboratories use organic solvents. ... In January 2007, the Water Department promoted Yovtcheva to the position of analytical chemist I. In July 2007, she began working on a project involving gas chromatography analysis referred to as EPA Method 551.1. In early 2008, she informed her supervisor, Earl Peterkin, that she was having health problems in the laboratory as a result of her work with methyl tertiary butyl ether ("MTBE"). At a later meeting, she informed Brock of the situation. At Brock?s behest, the office?s safety committee conducted a safety audit. Though the committee did not find any problems, the Water Department offered Yovtcheva the option of wearing a full-face respirator for protection while working. She was fitted with the respirator in July 2008 but only used it a few times because its use made her claustrophobic and caused her to suffer a panic attack. ... The Water Department then offered her a partial-face respirator, but she refused to try it. The Water Department subsequently terminated her employment. ... Here, Yovtcheva Appeals To 3rdCir:COURT DECISION
05-07: Heritage Foundation Study: GRANTING AMNESTY TO AN ESTIMATED 11 MILLION UNLAWFUL IMMIGRANTS WILL COST TAXPAYERS AT LEAST $6.3 TRILLION, ACCORDING TO A NEW REPORT BY HERITAGE FOUNDATION. The highly anticipated report, released today, becomes available as a Senate committee is set to mark up a "comprehensive immigration reform" bill May 9. ...... "No matter how you slice it, amnesty will add a tremendous amount of pressure on America's already strained public purse," said Rector, Heritage's senior research fellow in domestic policy studies. ...... The vast majority of the fiscal costs examined are long-term - including costs associated with Obamacare, Social Security and other entitlements, plus more than 80 means-tested welfare programs. Among the major findings of Rector and co-author Jason Richwine: .Over the course of their lives, former unlawful immigrants together would receive $9.4 trillion in government benefits and services and pay $3.1 trillion in taxes, for a lifetime "fiscal deficit" - at minimum -- of $6.3 trillion (total benefits minus total taxes). ...... .The typical unlawful immigrant is 34 years old, has a 10th-grade education, and already receives $14,387 per household in government benefits in excess of taxes paid. After the bill's "interim" period of about 13 years, when former unlawful immigrants become eligible for welfare and Obamacare subsidies, that "fiscal deficit" would double to $29,500 per household. ...... .After amnesty, the typical unlawful immigrant will receive government benefits for 50 years, meaning his household would receive $592,000 more in government benefits during his lifetime than he would pay in taxes. At retirement, he would draw more than $3 in Social Security and Medicare for every dollar he paid in FICA taxes. ... GAO found that the Department of Labor (Labor) did not conduct a timely review of the medical activity reports. Heritage Foundation Report
05-07: MSPB: Buckner v. Postal ... POSTAL SERVICE WRONGLY FIRED ME FOR FAILURE TO FOLLOW INSTRUCTIONS/UNACCEPTABLE CONDUCT. ... The appellant has filed a petition for review in this case asking us to reconsider the initial decision issued by the administrative judge, which sustained the agency's charge of failure to follow instructions/unacceptable conduct and affirmed the removal. ... Here, Buckner Appeals The Decision:MSPB DECISION
05-07: MSPB: Chaiyes v. Homeland ... I'M APPEALING BECAUSE THEY TRIED TO FIRE ME BEFORE I ESCAPED TO ANOTHER AGENCY ... The agency informed the appellant that it planned to terminate his appointment during his probationary period. ... Before the effective date of the termination, however, the appellant resigned and accepted a position with another agency. ... The appellant thereafter filed an appeal in which he contested the merits of the probationary termination, which never went into effect. ... After affording the appellant the opportunity to submit evidence and argument establishing Board jurisdiction over his appeal, the administrative judge dismissed the appeal. ... The administrative judge found that the appellant had not completed his probationary period at the time of his separation from the agency and that he was, therefore, not an "employee" under 5 U.S.C. § 7511(a)(1)(A) entitled to appeal his separation to the Board. ... Here, Chaiyes Appeals The Decision:MSPB DECISION
05-06: MSPB: Kim v. Army ... OH NO THEY DIDN'T ... ARMY JUST UP AND CANCELLED MY PROMOTION 8 MONTHS AFTER IT HAPPENED. ... The Department Of Army selected the appellant for promotion from his GS-13, Step 9 position as an Electrical Engineer in the competitive service to a National Security Personnel System (NSPS) YF-2 position as a Supervisory Electrical Engineer within the same unit. The appellant accepted the position on or about January 6, 2009. The appellant alleged that he already had the required security clearance, and he completed the required medical certification for emergency essential positions on January 7, 2009. On January 21, 2009, the appellant contacted the agency by email to expedite the agency's processing of the salary adjustment for his promotion before he deployed to Afghanistan on February 1, 2009. ... On January 28, 2009, the agency's officials certified and approved the salary determination worksheet for the appellant's promotion. ... The appellant deployed to Afghanistan on February 1, 2009, and the agency subsequently issued an SF-50 documenting the appellant's promotion to the Supervisory Electrical Engineer position with a 5% pay increase, effective February 15, 2009. Over 8 months later, on November 1, 2009, the agency retroactively cancelled the appellant's promotion and reassigned him to his former position as a GS-13, Step 9 Electrical Engineer position. In the remarks section of the SF-50, the agency stated: "This employee never occupied this Supervisory position. He was deployed in support of Operation Enduring Freedom to Afghanistan effective 01 Feb 2009 and has not returned to his previous position." In a 2011 email, the agency's Workforce ... The appellant stated that he was not a member of the uniformed services during his civilian deployment to Afghanistan. Further, although it appears that he had prior military service, the appellant has not alleged that the agency's actions violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333). ... Management Office/Human Resources Chief stated that the agency cancelled the appellant's promotion because he was deployed to Afghanistan in a GS position and the action to reassign him to the NSPS position should have been processed before his deployment. ... After the appellant returned from his deployment in February 2010, he attempted to "resolve [his] pay issue" internally until he retired on August 31, 2011. On February 7, 2012, the appellant filed his appeal with the Board, alleging a reduction in grade or pay. He further claimed that the agency failed to or improperly restored, reemployed, and/or reinstated him. The appellant claimed that the agency's action was "not in accordance with law." The appellant alleged that the agency demoted him to the GS-13 Electrical Engineer position and "denied him the right to a pre-deployment promotion," in violation of a February 12, 2008 Department of Defense (DoD) policy guidance. The appellant also alleged that the agency forced him to repay the $7,050.00 pay increase he received in the YF-2 Supervisory Electrical Engineer position from February 15, 2009, until the agency retroactively cancelled his promotion on November 1, 2009. In addition, the appellant claimed that his retirement annuity was not finalized because of this unresolved pay issue. The appellant requested a hearing on his appeal. ... The MSPB administrative judge dismissed for lack of jurisdiction. ... Here, Kim Appeals The Decision:MSPB DECISION
05-03: MSPB: Lewis v. EPA ... I WANT MY DAMNED WITHIN GRADE INCREASE (WIGI) NOW ! ... An employee is entitled to receive a WIGI in the rate of basic pay if she is performing at an acceptable level of competence at the end of the statutory waiting period. 5 U.S.C. § 5335(a). For purposes of granting or denying a WIGI, "acceptable level of competence" means "fully successful" or better on the most recent rating of record. 5 C.F.R. § 531.404(a). ... On August 19, 2007, the appellant was scheduled to complete her 1-year waiting period for a WIGI from GS-12, step 2 to GS-12, step 3. She received a summary performance rating of "minimally successful" for the period January 1, 2006, through December 31, 2006, based upon her "minimally successful" rating in Critical Element 3 of her performance standards. ... The appellant's supervisor determined that, as of August 6, 2007, the appellant was still not performing at an acceptable level of competence. Her supervisor, therefore, withheld the appellant's WIGI. ... Upon the appellant's request for reconsideration, the appellant's second-level supervisor affirmed the WIGI denial. ... Here, Lewis Appeals The Decision:MSPB DECISION
05-03: Tech: BlackBerry Z10, Q10 and PlayBook Get DoD Approval:Engadget
05-02: Tech: Department Of Defense To Approve Samsung Galaxy And Apple (Ios) Devices:WallStreetJournal
05-02: Dear Barry: THE PRELUDE TO YOUR WAR IN SYRIA. The Other Day You Gave Press Conference Where You Said You Were Trying To Find Out If Chemical Weapons Were Used In Syria And If So, Who Actually Used Them. ... Well That Seemed A Bit Disingenuous On Your Part Since More Than A Month Ago The Syrian Regime, Assad, Informed You That The Rebels Had Used Chemical Weapons Against The Syrian Military ... So Its Clear That You Know Who Used The Chemical Weapons, But Just Don't Want To Acknowledge That The Militant/Rebel Groups Our Country Is Backing, Funding, And Secretly Arming With Missiles And Other Lethal Weaponry, Is Also Using Chemical Weapons. ... At Some Point You Need To Stop Letting These Jerks Lead You Around Like A Dog On A Leash. ... Colin Powell Allowed Chaney And Bush To Get Him To Lie About The Weapons Of Mass Destruction In Iraq. ... Now History Will Show That He, Colin Powell, Is Co-Responsible For More Than A Million Dead In Iraq Since We Started The War (Based On Lies) To Steal Their Oil. ... Please Don't Let Senator John (War Starter) McCain And The Others Sucker You Into Killing A Bunch Of Syrians. Time For You To Stand Up And Be A Man With True Morals And Convictions. McCain, Grahm And The Others Hate Your Guts. So Stop Taking Military Advice From Guys That Hate You And Want You To Fail. ... . ... THIS IS A FACT: If A Rebel Group Took Up Weapons To Overthrow Our Government, They All Would All Be Dead Within A Few Days. ... So Please Stop Being A Hypocrite. ... Again, Please Stop Letting John (War Starter) McCain and Linsey Lead You Around Like Their Pet Dog. ... If The United States And Our Nato Partners (Britian and France) Stop Secretly Funding And Arming The Syrian Rebels (Which Includes A Bunch Of Terrorists), The Syrian Civil War Will End Soon.
05-02: MSPB: Ford v. Postal ... IF THE SF-50 IN MY OPF SAYS I WAS SUSPENDED, THEN I WAS SUSPENDED, DAMMIT ! ... The appellant has filed a petition for review in this case asking us to reconsider the remand initial decision issued by the administrative judge, which dismissed the appellant's constructive suspension appeal for lack of jurisdiction. ... The appellant argues on review that nine postal supervisors, including agency witness Kenyan McKinnie, initiated his absence by placing him in the status of "Suspension Pending Termination" from July 17, 2010, through June 17, 2011. ... The administrative judge rejected this argument in the remand initial decision, finding that the agency incorrectly recorded the leave codes relating to Leave Without Pay (LWOP) - Suspension Pending Termination and that the usage of these codes did not prove by preponderant evidence that the appellant was suspended. ... Here, Ford Appeals The Decision:MSPB DECISION
05-02: MSPB: Hearn v. Army ... I'M APPEALING BECAUSE THE MSPB JUDGE SHOULDA REVERSED MY ILLEGIT REMOVAL ! ... On review, the appellant contends that the administrative judge applied the incorrect legal standard to the facts of her appeal. ... Petition for Review (PFR) The appellant also challenges the administrative judge's finding that the agency established a nexus between the appellant's conduct and the efficiency of the service. ... Further, the appellant contends that the administrative judge improperly found that the penalty of removal was reasonable. Specifically, she asserts that the penalty of removal was excessive and that the deciding official failed to consider the Douglas factors. ... In addition, the appellant argues that the agency violated her due process rights. ... Here, Hearn Appeals The Decision:MSPB DECISION
05-02: 11thCir: Johnson v. VA ... HE CLAIMED THAT THE VA FAILED TO PROMOTE HIM TO A SUPERVISOR POSITION ON ACCOUNT OF HIS RACE; BLACK ... Gregory Johnson, a black male, appeals the summary judgment the District Court's granted the U.S. Department of Veterans Affairs ("the VA") in his employment discrimination case, filed pursuant to Title VII, 42 U.S.C. § 2000e-16, and 42 U.S.C. § 1981. Johnson claimed that the VA failed to promote him to a supervisor position on account of his race. The District Court denied the claim because Johnson failed to show that the VA's reason for not promoting him-that he was not the best candidate for the position-was a pretext for discrimination. 1 He argues that the court erred in making that determination because, among other things, the panel formed to interview the candidates for the position was improperly composed and failed to interview him (and others similarly situated) in violation of the collective bargaining agreement ("CBA") between the VA and the American Federation of Government Employees. ... Here, Johnson Appeals To 11thCir:COURT DECISION
05-01: CA4/1: Kidane v. Cajon ... WAS HE TERMINATED FOR THREATENING ANOTHER EMPLOYEE -OR- WAS IT REALLY RACIAL DISCRIMINATION? ... This action arose when defendant El Cajon Motors (El Cajon Ford) terminated plaintiff Alem Kidane's employment as a salesperson after Kidane made criminal threats against another employee, was arrested for this behavior and lied about the matter during El Cajon Ford's internal investigation. Kidane, a naturalized United States citizen born in East Africa, sued El Cajon Ford, alleging five causes of action under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for (1) racial discrimination, alleging he was terminated on the basis of his race; (2) racial harassment, alleging El Cajon Ford failed to take reasonable steps to prevent his coworkers, Jim Veneman and Jeremy Bodger, from harassing him on account of his race; (3) national origin/ancestry discrimination, alleging he was terminated on the basis of his national origin and ancestry; (4) national origin/ancestry harassment, alleging El Cajon Ford failed to take reasonable steps to prevent Veneman and Bodger from harassing him on account of his national origin and ancestry; and (5) wrongful termination in violation of public policy, alleging El Cajon Ford's termination of his employment on account of his race and/or national origin and ancestry violated public policy. Kidane also alleged causes of action for (6) intentional infliction of emotional distress and (7) failure to pay wages due when his employment was terminated (Lab. Code, § 201 et seq.). ... The jury returned special verdicts in favor of El Cajon Ford on all causes of action. ... Here, Kidane Appeals To CA4/1:COURT DECISION
05-01: 11thCir: Rodriguez v. Homeland ... WAS TSA'S REASON FOR NOT PROMOTING HIM A PRETEXT FOR DISCRIMINATION ON THE BASIS OF HIS RACE? ... Lazaro Santiago Rodriguez appeals the district court's grant of summary judgment in favor of the Secretary of the United States Department of Homeland Security and the Transportation Security Administration (collectively, "TSA"), on his claims of race discrimination and retaliation, brought pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-3(a) and 2000e-16(a). ... On appeal, Rodriguez contends that he presented sufficient evidence to show that TSA's reason for not promoting him to Lead Transportation Security Officer (LTSO) or Supervisory Transportation Security Officer (STSO) was a pretext for discrimination on the basis of his race. Further, he argues that he presented sufficient evidence to show that his non-selection for the STSO position was in retaliation to a protected opposition to discrimination. ... Here, Rodriguez Appeals To 11thCir:COURT DECISION
04-29: FedCir: MacLean v. Homeland (TSA) ... WHISTLEBLOWING ? ... Mr. MacLean became a Marshal in 2001. In July 2003, all Marshals received a briefing from the Agency that there was a "'potential plot' to hijack U.S. Airliners." Soon after that briefing, however, the Agency sent an unencrypted text message to the Marshals' cell phones cancelling all missions on flights from Las Vegas until early August. After receiving this directive, Mr. MacLean became concerned that "suspension of overnight missions during a hijacking alert created a danger to the flying public." He complained to his supervisor and to the Office of Inspector General, but they responded that nothing could be done. ... Dissatisfied, Mr. MacLean told an MSNBC reporter about the directive so as to "create a controversy resulting in [its] rescission." MSNBC published an article criticizing the directive, and the Agency withdrew it after several members of Congress joined in the criticism. ... In 2004, Mr. MacLean appeared on NBC Nightly News in disguise to criticize the Agency dress code, which he believed allowed Marshals to be easily identified. However, someone from the Agency recognized his voice. During the Agency's subsequent investigation, Mr. MacLean admitted that he revealed the cancellation directive to an MSNBC reporter in 2003. ... Eventually, Mr. MacLean was removed from his position because his contact with the MSNBC reporter constituted an unauthorized disclosure of sensitive security information (SSI). Although the Agency had not initially labeled the text message as SSI when it was sent, it subsequently issued an order stating that its content was SSI. ... Mr. MacLean challenged the SSI order in the Ninth Circuit as a violation of the Agency's own regulations and as an impermissible retroactive action, but the court rejected Mr. MacLean's challenges. ... Here, MacLean Appeals To FedCir:COURT DECISION
04-29: MSPB: Figueroa v. Homeland ... CHARGE OF FALSIFICATION ... MY REMOVAL WAS A HARSHER PENALTY THAN OTHER AGENCY EMPLOYEES WHO HAD ENGAGED IN MORE SERIOUS MISCONDUCT. ... Homeland Security employed the appellant as a GL-1801-09 Immigration and Enforcement Agent. Effective September 30, 2011, the agency removed the appellant from federal service based on the sole charge of Falsification. ... The agency based the charge of falsification on the following undisputed facts. On May 25, 2009, the appellant submitted a completed Questionnaire for National Security Positions, Standard Form 86 (SF-86). In response to a question that asked the appellant to list each of his relatives, the appellant failed to list three of his brothers. During an investigation into allegations that the appellant withheld information on the SF-86, the appellant admitted that he failed to list two of his brothers because they had been deported and "he did not want their criminal history and immigration status to affect his chances for the [Immigration and Enforcement Agent] position." The appellant claimed that he did not list the third brother because he was adopted. ... The appellant filed a Board appeal of his removal, seeking mitigation of the penalty. The appellant argued that he received a harsher penalty than other agency employees who had engaged in more serious misconduct. ... After holding the requested hearing, the administrative judge affirmed the removal, finding in relevant part that the agency proved its falsification charge by preponderant evidence and that the appellant did not show that the agency imposed a disparate penalty. On review, the appellant challenges the administrative judge's findings with respect to the sustained charge. ... Here, Figueroa Appeals The Decision:MSPB DECISION
04-26: 4thCir: Hegab v. Long (NGA) ... I BELIEVE IT'S UN-AMERICAN FOR THE FEDERAL GOVERNMENT TO FIRE ME FOR MARRYING THE WOMAN I LOVE ! ... When Mahmoud Hegab, an employee of the National Geospatial-Intelligence Agency ("NGA") with a top secret security clearance, informed the agency of his marriage to Bushra Nusairat, the NGA conducted a reinvestigation into his security clearance. Based on new information, the NGA revoked Hegab's security clearance. ... Hegab commenced this action under the Administrative Procedure Act against the NGA and its Director to reverse the NGA's decision, to reinstate his security clearance, and to award him back pay, benefits, and attorneys' fees. ... Here, Hegab Appeals To 4thCir:COURT DECISION
04-26: News: FEMALE PRISON RAPERS ... FEMALE PRISON GUARDS LOVE TO HAVE SEX WITH AND RAPE THE MEN AND BOYS THEY GUARD ??? ... Recently reported that four female guards had five children by one male prisoner in Baltimore. One even tattooed "Tavon" on her neck; another has "Tavon" on her wrist. "Among the 39,121 male prison inmates who had been victims of staff sexual misconduct, 69% reported sexual activity with female staff," according to the 2008-09 Bureau of Justice Statistics study. ... It's even higher in juvenile detention facilities, where 90 percent of the boys who said they were victims of sexual advances by officers said they were approached - and frequently raped - by women. Washington PostCBS NewsBAW
04-26: 6thCir: Flagg v. Detroit ... TAMARA GREENE PERFORMED AS AN EXOTIC DANCER AT DETROIT'S MAYORAL RESIDENCE, THEN SHE WAS FOUND DEAD. ... Plaintiffs allege that, in or around fall of 2002, then-Mayor Kwame Kilpatrick and several members of his Executive Protection Unit (EPU) were present at a party at the Manoogian Mansion, Detroit's mayoral residence. It was rumored that Tamara Greene performed at this party as an exotic dancer, and that Carlita Kilpatrick, Kwame Kilpatrick's wife, arrived at the party unexpectedly and assaulted Greene. ... On April 30, 2003, at approximately 3:40 a.m.,Tamara Greene was shot to death in her car. The morning after the shooting, Sergeant Marian Stevenson of Detroit Police Department (DPD) Homicide Squad 8, one of the officers who had answered the initial call to the scene, was chosen to lead the murder investigation. According to Stevenson, the "talk through Homicide" that day was that "there was a connection between the death of Tammy Greene and the incident at the [Manoogian] mansion. ... Here, Flagg Appeals To 6thCir:COURT DECISION
04-26: 7thCir: Martino v. Southern ... RELIGIOUS DISCRIMINATION ... MY EMPLOYER FIRED ME WHEN THEY DISCOVERED I WAS A PASTOR AT OUR CHURCH ... On September 4, 2006, Western & Southern Financial Group (W&S), a financial services company headquartered in Cincinnati, hired Martino to work as a sales representative in its Mishawaka, Indiana office (the "Michiana office"). Shortly after Martino began working for W&S, he signed a sales representative agreement that prohibited him from "engag[ing] in any other business, profession or work for remuneration or profit without Western-Southern's prior written consent." At the time of Martino's employment, W&S only approved outside positions requiring five or fewer hours a week on average, not including Sundays, and an average weekly pay of one hundred dollars or less. To maintain their employment with W&S, associates who were not in compliance with the company's policy either resigned their unapproved outside positions or reduced the hours and pay of their outside work. ... At the time he began working for W&S, Martino also served as a pastor of a small church in Union, Michigan. The same month his employment with W&S began, Martino submitted an outside position form for his pastoral job to the field human resource department, which decided whether to approve outside positions at a weekly meeting. Erin Miller, a human resources generalist, conducted the initial reviews of outside position forms and presented the position to the rest of the department without identifying the employee requesting permission to hold the outside position. Because Martino did not specify his hours or pay on his form, Miller sent him an email requesting that information on September 18. She followed up with another email request on September 26 and that day, Martino informed Miller that his pastoral position involved eight to ten hours per week, not including Sundays, his average weekly pay was about three hundred dollars, and his pay might decrease in the future. The following day, Miller notified Martino that his pastoral position did not comply with the company's policy and that he would need to immediately terminate that position. ... Here, Martino Appeals To 7thCir:COURT DECISION
04-25: 4thCir: Harris v. Reston ... WHAT A CASE !!! ... ADA, DRUG ADDICTION, ALCOHOL ADDICTION, DRAMA, DRAMA, DRAMA ... ... Appellant began working as a registered nurse for Reston Hospital in its surgical unit in 2002. She was interviewed and hired by Nancy Susco, director of the surgical unit, who continued to act as Appellant's direct supervisor throughout her employment. ... According to Appellant, the events culminating in her dismissal on August 11, 2009, began earlier that month. Sometime during the morning of August 4, 2009, while walking into her house, Appellant tripped and fell onto a set of cement steps and suffered a head injury and a loss of consciousness. She woke up at the emergency room of Inova Loudoun Hospital sometime later, having been brought there by ambulance. Appellant has no recollection of anything that happened after falling and striking her head until she woke up in the hospital. ... The record from Appellant's emergency room visit indicates "altered mental status" and "trauma." The attending physician noted that Appellant appeared groggy and planned to observe her overnight to determine whether the symptoms were connected to some substance or to the head trauma. The results of the toxicology report were negative for all substances with the exception of Appellant's regularly prescribed anti-anxiety medication, Klonopin. ... Having been hospitalized overnight, Appellant received a telephone call from her supervisor, Susco, on the morning of August 5 at 9:45 a.m., while still in Loudoun Hospital. Following an explanation of the events of the previous two days, Susco suspended Appellant for three days for a "no call/no show" because Appellant failed to show up for her shift or to call her supervisor within two hours after her shift began at 3:00 p.m. in accordance with Reston Hospital policy. Appellant was released from Loudoun Hospital later that day. After serving her suspension, Appellant reported to work timely on August 11, 2009, for her 3:00 p.m. shift. Per Appellant, she felt fine when she arrived. Shortly after clocking in, however, she began to feel woozy and to experience disorientation and nausea, "like the room was starting to spin." ... The appellant was terminated on August 11, 2009. ... Appellant appeals from an order entered March 26, 2012, granting summary judgment to Reston Hospital Center on her claim of discriminatory discharge brought pursuant to the Americans with Disabilities Act ("ADA"). ... Here, Harris Appeals To4thCir:COURT DECISION
04-24: MSPB: Smith v. Air Force ... AIR FORCE DEMOTED ME VIA A FAKE RIF, THEN MSPB DENIED MY WITNESSES TO PROVE MY CASE. ... The appellant, Nadeen Smith, has filed a petition for review in this case asking us to reconsider the remand initial decision issued by the administrative judge in which she affirmed Air Force's action demoting the appellant by reduction in force (RIF), finding that she did not establish her affirmative defenses of discrimination based on sex, race, and age, and retaliation for protected equal employment opportunity (EEO) activity. ... Here, Smith Appeals The Decision:MSPB DECISION
04-24: MSPB: Boyd v. Labor ... DEPARTMENT OF LABOR ILLEGALLY DEMOTED ME AND I WANT MY MONEY BACK, NOW !!! ... The Department of Labor appointed the appellant, Thasha A. Boyd, to a GS-12 Immigration Program Analyst position on February 28, 2010. ... However, the Department of Labor found that the appellant lacked the required one year of specialized experience to qualify for this position, and, on March 17, 2010, it appointed her to a GS-11 Workforce Development Specialist position, an appointment that was made retroactive to February 28, 2010. ... Ms. Boyd appealed her demotion to the Board. On September 8, 2010, the administrative judge issued an initial decision which reversed the agency's action and ordered the appellant's retroactive restoration to the GS-12 position. ... The initial decision became the final decision of the Board. ... Ms. Boyd filed a petition for enforcement alleging that the agency was not in compliance with the Board's decision because, inter alia, there were errors in the SF-50 documenting her reinstatement. ... The administrative judge denied the petition for enforcement. ... Here, Boyd Appeals The Decision:MSPB DECISION
04-24: 7thCir: Harrell v. Red Cross ... THE NEWS ANCHOR WHO GOT FIRED ON HIS FIRST DAY MUST HAVE ALSO GIVEN LABOR ADVICE TO THE RED CROSS. ... A new union of blood collection specialists (the Union) for the American Red Cross (ARC) was elected in 2007 and certified in 2010. During the unionization process, ARC filed repeated objections, thereby forcing impoundment of the 2007 ballots and delaying certifica- tion of the Union. These objections were later overruled by the National Labor Relations Board (NLRB). ... During the delay between the 2007 election and the 2010 certification, ARC made several changes in its union-represented employees' terms and conditions of employment. The changes were made without notice to or bargaining with the new Union. The many unilateral changes made by ARC included: sus- pending employees' merit pay increases; discontinuing its matching contributions to the employees' 401(k) plan; closing its defined pension plan to new employees; changing health insurance benefits; promoting team leaders to team supervisors and having them continue to perform unit work; reassigning truck loading and unloading work outside the bargaining unit; decreasing the number of personal time-off hours an employee can carry over from year to year; and allowing non-unit employees to perform bargaining unit work. ... As a result of ARC's unilateral changes, worker in- volvement in the Union activities declined precipitously. Employee attendance at Union meetings declined roughly 88% from October 2010 to September 2011. Some employees feared retaliation by ARC if they associ- ated with the Union, and some employees were discour- aged by the Union's failure to prevent ARC's suspen- sion of the merit pay program. ... The Union Director and NLRB filed suit, seeking interim injunctive relief from the unilateral ARC working condition changes, pending completion of the Board's administrative proceedings against ARC. The administrative law judge (ALJ) held that ARC violated § 8(a)(5) of the National Labor Relations Act (the Act). ... Here, Harrell Appeals To 7thCir:COURT DECISION
04-22: 11thCir: Humphrey v. Homeland ... HE ALLEGED THAT HE WAS DISCRIMINATED AGAINST BECAUSE OF HIS RACE AND AGE (ADEA) ... Kenneth D. Humphrey, a former Customs and Border Protections Officer, sued Janet Napolitano, Secretary of the Department of Homeland Security (DHS). Proceeding pro se, he alleged that he was discriminated against because of his race and age, in violation of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). He also asserts that DHS conspired to interfere with his civil rights, in violation of the Conspiracy to Obstruct Justice Act. The district court granted DHS's motion for summary judgment, finding that Humphrey neither experienced an adverse employment action nor established that he was treated differently than similarly-situated employees. ... Here, Humphrey Appeals To 11thCir:COURT DECISION
04-19: MSPB: Witthaus v. Energy ... SERIOUSLY, HOW CAN THESE CLOWNS REMOVE ME BASED ON THE CHARGE OF "FAILURE TO ENROLL IN THE PROCESS TO OBTAIN A SMART CARD" ... The appellant has filed a petition for review in this case asking us to reconsider the initial decision issued by the administrative judge, which affirmed his removal based on the charge of "failure to enroll in the process to obtain a Smart Card, possession of which is a condition of employment. ... Here, Witthaus Appeals The Decision:MSPB DECISION
04-19: MSPB: Joyner v. Defense ... HERE, DEFENSE APPEALS MSPB REDUCTION OF REMOVAL TO A 60 DAY SUSPENSION. ... The Department of Defense removed the appellant, Derrick Joyner, from his Distribution Process Worker position based on three charges: (1) failure to comply with the agency's Drug Free Workplace Plan (DFWP) as he was discharged from his mandatory rehabilitation program for lack of attendance and for his failure to contact the program; (2) absence without leave (AWOL) on July 5, 6, 7, 9, 12, 13, 2011, and "for August because there is no documentation supporting your absence from work;" and (3) failure to follow leave instructions on July 8, 2011, and failure to call in throughout the month of August. ... The appellant filed a Board appeal of his removal, alleging that the agency committed harmful error in mishandling his application for leave under the Family and Medical Leave Act of 1993 (FMLA). ... He alleged that he was unable to comply with the DFWP because of his work-related injury, i.e., cervical spinal stenosis, and that all of the dates for which he was charged AWOL were covered under the FMLA. ... After holding a hearing, the administrative judge mitigated the penalty of removal to a 60-day suspension. ... Here, Defense Appeals The Decision:MSPB DECISION
04-18: MSPB: Walker-King v. DVA ... VETERANS AFFAIRS REMOVED HER FROM FROM HER POSITION AS A GENERAL SUPPLY SPECIALIST, GS-9, EFFECTIVE MAY 11, 2011 ... The Department Of Veterans Affairs removed the appellant from her position as a General Supply Specialist, GS-9, effective May 11, 2011. The appellant and the agency entered into a settlement agreement resolving the appellant's removal appeal. The settlement agreement provided in relevant part: If [the appellant] is physically qualified and returns to duty no later than December 1, 2011, the parties agree to reinstate her to employment with the Agency effective May 11, 2010, the date of her Removal. [The appellant] understands and agrees that prior to being reinstated she must complete and pass a pre-employment physical, and that it is her responsibility to arrange and complete the pre-employment physical. ... The settlement agreement further provided that "[the appellant] will be reinstated with the Agency as a GS-7, step 10 Gastroenterology Health Technician." The administrative judge accepted the settlement into the record for enforcement purposes and dismissed the appeal on October 19, 2011. ... On December 20, 2011, the appellant sent the agency correspondence in which she stated that she intended to return to work on January 3, 2012, and, in response, Ms. Rogers informed the appellant via letter dated December 29, 2011, that she had already been separated from employment with the agency because she had failed a pre-employment physical and was therefore not physically qualified to perform the work required of the health technician (GI) position. ... The appellant filed a petition for enforcement on January 5, 2012, alleging a breach of the settlement agreement. ... Here, Walker-King Appeals The Decision:MSPB DECISION
04-15: MSPB: Walker v. Army ... ON MARCH 9, 2012, ARMY NOTIFIED HER THEY WERE TERMINATING HER FOR VARIOUS ALLEGED PERFORMANCE AND CONDUCT DEFICIENCIES THE SAME DAY. ... On March 28, 2011, the agency appointed the appellant to a competitive service GS-07 Training Technician position subject to a 1-year initial probationary period. ... On September 11, 2011, the agency promoted the appellant to a competitive service GS-12 supervisory Installation Transportation Officer position subject to a supervisory probationary period. ... On March 9, 2012, the agency furnished the appellant a letter notifying her that it was terminating her employment effective the same day for various alleged performance and conduct deficiencies. ... The appellant filed a Board appeal and requested a hearing. ... She argued that the termination action was improper for two reasons: (1) She was an "employee" under 5 U.S.C. § 7511(a)(1)(A) when the agency summarily terminated her; and (2) the agency terminated her for pre-appointment reasons without following the procedures of 5 C.F.R. § 315.805. ... After affording the appellant accurate and complete jurisdictional notice, the administrative judge issued an initial decision finding that the appellant failed to make a nonfrivolous allegation as to either theory of jurisdiction. He dismissed the appeal for lack of jurisdiction without a hearing. ... Here, Walker Appeals The Decision:MSPB DECISION
04-15: 7thCir: Lovett v. IRS ... REMOVED FOR FAILURE TO FOLLOW MANAGEMENT DIRECTIVES; CAUSING WORKPLACE DISRUPTIONS; AND SENDING INAPPROPRIATE EMAILS. ... Petitioner worked at the IRS for approximately 23 years prior to her removal. During the relevant period, petitioner was supervised by two lead file clerks and two managers. Tammy Hatchell was an ICT manager from May 2009 through June 2010. Carla Belle was a lead clerk from June 2009 to October 2009. Sharon Watson was a lead clerk from October 2009 through July 2010. The department manager was Michele Williams. The operation manager was Judith Baker. ... On March 4, 2010, Baker provided petitioner a Notice of Proposed Adverse Disciplinary Action ("Notice"). ... The Notice set forth fourteen individual specifications of misconduct, organized into three reasons for disciplinary action: 1. failure to follow management directives; 2. causing workplace disruptions; and 3. sending inappropriate emails and letters to management. ... The individual specifications included allegations of failing to follow management directives regarding computer use, failing to adhere to the Weekly Duty Schedule, improperly using a cell phone, arguing with managers, and sending inappropriate emails and letters to superiors. ... On March 21, 2010, Atlanta Field Director Jon Schwartz issued a Decision sustaining each of the fourteen specifications against petitioner. Director Schwartz determined that no penalty less than removal would be adequate, and removed petitioner from her position effective May 24, 2010. ... Here, Lovett Appeals To 7thCir:COURT DECISION
04-12: GAO STUDY: Alleged Inappropriate Surveillance James A. Haley Veterans' Hospital Tampa, Florida: At the request of several members of Congress, OIG initiated a review that a hidden camera was placed in a brain-damaged patient's room without next-of-kin consent. In June 2012 the patient's family became aware of a Video Surveillance Camera (VSC) in a smoke-detector-like cover that had been placed in the patient's room. The patient's family was aware when the VSC was activated three days after installation. ... ... We conducted a survey of Video Surveillance Camera usage in VHA healthcare facilities. VHA requires VSCs in Mental Health Residential Rehabilitation Treatment Program facilities, pharmacy vaults and controlled substances storage areas, childcare facilities, and canteens. ... Seven facilities employed hidden VSCs in the past for law enforcement and/or suspected criminal activity. Ten medical centers reported current use of VSCs with audio capability in police interview rooms; sleep laboratories; mental health seclusion rooms. GAO Report
04-12: MSPB: Alguard v. Agriculture ... WAS AGRICULTURE WRONG TO REMOVE HER FOR FAILURE TO ACCEPT A DIRECTED REASSIGNMENT ? ... On June 27, 2011, the agency informed the appellant, a full-time GS-9 Agricultural Commodity Grader (grader) at the Yakima, Washington duty station, that it was reassigning two full-time GS-9 graders from the Yakima duty station to understaffed duty stations due to overstaffing; because the appellant had the most recent service computation date (SCD) of the four full-time GS-9 graders at the Yakima duty station, she would be affected by the directed reassignments. Wendy_Alguard On August 18, 2011, the agency notified the appellant of her reassignment to a full-time position in Warden, Washington. ... However, due to the cancellation of the agency's contract with the Warden facility, the appellant was subsequently reassigned to a full-time position in Kingsburg, California. ... The appellant refused the directed reassignment. ... On October 12, 2011, the agency proposed to remove the appellant for failure to accept a directed reassignment. ... The agency effected the removal action on December 14, 2011. ... On January 13, 2012, the appellant filed a Board appeal of her removal. ... After holding a hearing, the administrative judge affirmed the chapter 75 removal action. ... Here, Alguard Appeals The Decision:MSPB DECISION
04-10: 7thCir: Cloe v. Indianapolis ... SHE ALLEGES HER EMPLOYER FAILED TO REASONABLY ACCOMMODATE HER DISABILITY; AND TERMINATED HER FOR REQUESTING ACCOMMODATIONS. ... Nancie J. Cloe started working for the City of Indianapolis in April 2007. In March 2008, she was tragically diagnosed with multiple sclerosis ("MS"), a chronic, incurable neurological disorder that rendered her disabled and significantly impaired her day-to-day life. ... Sometime in late April 2009-Cloe met with her supervisors Michelle Winfield and Janna Mays. During the meeting, Cloe told Mays and Winfield that she had to leave early because of a doctor's appointment. Both Mays and Winfield expressed anger that Cloe was leaving early. Approximately one week later, on May 4, 2009, Winfield disciplined Cloe for failing to schedule the April 9 emergency demolition and for later attending the demolition contrary to orders. Winfield also signed a Performance Improvement Plan stating that Cloe's performance was "below expectations," that she had "consistently turned in inaccurate work," and that she had been "dishonest and insubordinate." On June 11, 2009, Mays issued a Notice of Unacceptable Performance or Conduct. That notice indicated that "requirements for satisfactory performance [by Cloe] have continued to be unmet" and recommended Cloe's termination. The City accepted the recommendation and terminated Cloe on June 29, 2009. ... On June 29, 2009, the City terminated her, ostensibly for poor performance. ... Cloe sued, alleging that the City (1) failed to accommodate her disability; (2) discriminated against her because of her disability; and (3) retaliated against her for requesting accommodations for her disability. The district court granted summary judgment in favor of the City, and Cloe timely appealed. ... Here, Cloe Appeals To 7thCir:COURT DECISION
04-10: 7thCir: Etoh v. FannieMae ... REVERSED ... MY BOSS TOLD TO ME "GET OUT OF MY OFFICE N_GGER." ... THEN FIRED ME FOR FILING AN EEO COMPLAINT. ... Placide Ayissi-Etoh worked at Fannie Mae. He is African-American. When Ayissi-Etoh was promoted but denied a salary increase, he was allegedly told by his Fannie Mae manager: "For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money." On another occasion, a Fannie Mae Vice President allegedly shouted at Ayissi-Etoh to "get out of my office nigger." After Ayissi-Etoh filed a discrimination complaint with the Equal Employment Opportunity Commission, his Fannie Mae supervisor allegedly gave him a choice: drop the racial discrimination claim or be fired. Shortly thereafter, Ayissi-Etoh was terminated. ... In the District Court, Ayissi-Etoh alleged that Fannie Mae violated federal anti-discrimination laws by (i) denying him a salary increase for discriminatory reasons, (ii) maintaining a racially hostile work environment, and (iii) retaliating against him for filing a discrimination complaint. He also filed a D.C. law claim for defamation. The District Court granted Fannie Mae summary judgment on each count. ... Here, Etoh Appeals To 7thCir:COURT DECISION
04-09: MSPB: Kramer v. Homeland ... DEAR HOMELAND SECURITY , YOU CAN NOT REMOVE ME, BECAUSE I WORK FOR THE DEPARTMENT OF NAVY DAMIT !!! ... The appellant, Ed Kramer, has petitioned for review of the initial decision in which the administrative law judge sustained his removal. ... The appellant has raised a number of arguments on petition for review, including that the agency committed harmful error, that it violated his due process rights in several respects, and that it failed to prove its charge. ... Most notably, however, the appellant argues that he was a Department of the Navy employee and that therefore the Department of Homeland Security (DHS), the respondent agency in this case, lacked the authority to remove him. ... Here, Kramer Appeals The Decision:MSPB DECISION
04-09: FedCir: Charles v. MSPB (Postal) ... I DID NOT COMMIT FRAUD NOR INTENDED TO COMMIT FRAUD ON ANY OF MY INJURY CLAIMS ! ... Mr. Charles was employed as an electronic technician at the U.S. Postal Service (Agency). In January 2008, he filed a claim for an on-the-job back injury with the Office of Workers' Compensation Programs (OWCP) and stopped reporting for work. About a month later, the Agency offered Mr. Charles a modified assignment, but he refused. The OWCP later found that the modified assignment was suitable. ... On March 10, 2008, the OWCP denied the injury claim because Mr. Charles failed to establish that his employment had caused his medical condition. On March 24, 2008, Mr. Charles returned to work unannounced and was asked to leave the workplace. Mr. Charles then filed another claim with the OWCP for an injury that allegedly occurred on March 24. The OWCP denied that claim, and the Agency removed Mr. Charles effective August 15, 2008 for providing inaccurate information on his March 2008 OWCP claim. ... In October 2009, Mr. Charles requested restoration as a partially recovered employee, but the Agency declined to restore him. Mr. Charles appealed this decision to the Board. The Administrative Judge (AJ) dismissed the appeal for lack of jurisdiction. The AJ held that Mr. Charles failed to make a nonfrivolous claim for restoration because he had been removed for cause. The AJ noted that the "documentation provided by the [A]gency demonstrates that he was removed for making a false claim to the OWCP." Thus, the AJ concluded that Mr. Charles was not eligible to be restored because he had been removed for filing a false claim. That decision became final when the Board denied Mr. Charles's petition for review. In parallel, the AJ reviewed Mr. Charles's appeal of his removal and dismissed that claim for lack of jurisdiction as well. Mr. Charles did not appeal either decision. ... In March 2011, the OWCP reversed its own determination regarding Mr. Charles's January 2008 back injury claim, finding that it was work-related. The OWCP did not opine on the March 2008 claim. Mr. Charles then filed a third appeal, claiming that "I got injured on the job which was accepted by OWCP" and that "the Postal Service failed to restore me." He also alleged that "I did not commit fraud nor intended to commit fraud on any of my injury claims." ... The AJ dismissed the appeal for lack of jurisdiction. ... Here, Charles Appeals To FedCir:COURT DECISION
04-08: FedCir: Kent v. AirForce ... HE WAS REMOVED FROM EMPLOYMENT BASED ON A CHARGE OF IMPROPER CONDUCT. ... On April 16, 2010, the Department of the Air Force ("Air Force") removed Kenneth Ray Kent ("Kent") from employment based on a charge of improper conduct. Kent had been working as a Voucher Examiner, GS-0540-05, in the Individual Mobilization Augmentee Travel Pay Office at Dobbins Air Reserve Base in Fair Oaks, Georgia. ... Kent appealed the removal decision to the United States Merit Systems Protection Board ("MSPB") on May 4, 2010. In an initial decision dated September 1, 2010, an MSPB administrative judge affirmed the Air Force's decision to remove Kent. ... Kenneth Ray Kent petitions for judicial review of a final order issued by the United States Merit Systems Protection Board on September 27, 2012. The order denied Kent's petition to review an earlier decision that dismissed the appeal of his removal from federal employment. ... Here, Kent Appeals To FedCir:COURT DECISION
04-08: MSPB: Portner v. Justice ... THINK REAL HARD ... WHEN IS A 45 DAY SUSPENSION WITHOUT PAY AN ANSWER TO ALL YOUR PRAYERS ? ... Effective March 23, 2011, the agency removed the appellant from his GS-14 Supervisory Diversion Group Investigator position with the Drug Enforcement Administration (DEA) based on two charges: (1) unauthorized use of an official government vehicle (OGV); and (2) false statements with three specifications. The parties stipulated to the essential facts that gave rise to the agency's charges, and those facts are set forth below. ... In September 2008, the appellant was staying at a Comfort Suites in Springfield, Illinois, in a temporary duty status. The Comfort Suites was approximately 50 to 100 yards from an Outback Steakhouse, which was adjacent to a Hooters restaurant. After finishing work on September 9, 2008, the appellant parked his OGV at the Outback Steakhouse, walked to Hooters, and drank two beers with his dinner between approximately 7:30 p.m. and 9:00 p.m. Upon leaving Hooters, he discovered that the OGV had been damaged in the parking lot of the Outback Steakhouse, but the appellant drove the OGV from the Outback to the Comfort Suites without reporting the damage. ... The following morning, September 10, 2008, the appellant falsely reported to a subordinate employee that the OGV had been damaged overnight in the parking lot of the Comfort Suites, and the two employees searched the hotel parking lot for other vehicles that had incurred damage. Later that same morning, the appellant told officers of the Springfield Police that the OGV had been damaged overnight in the Comfort Suites parking lot. When a police officer informed the appellant that he was going to check the recordings made by the hotel's outside security cameras, the appellant informed the officer that the OGV had not been struck in the hotel parking lot as the appellant had previously stated and, upon further questioning, acknowledged that the vehicle was damaged in the Outback parking lot. At some point on the morning of September 10, 2008, the appellant also contacted his first-line supervisor, Demetra Ashley, about the damage to the OGV and told her that he had discovered the damage when he came out of the hotel that morning. In a subsequent conversation with Ms. Ashley later that morning, the appellant corrected his previous statement to Ms. Ashley. ... Based on the conduct described above, the agency removed the appellant for Unauthorized Use Of A Government Vehicle. ... Here, Portner Appeals The Decision:MSPB DECISION
04-08: NLRB: UFCW v. Scussel ... NLRB JUDGE FINDS UNION UNLAWFULLY CAUSED DISCHARGE OF HR MANAGER ... In 2011 and 2012 Awrey Bakeries produced and sold baked goods from two facilities; one in Livonia, Michigan and the other in Noblesville, Indiana. During 2011 it derived gross revenue in excess of $500,000 and purchased and received goods valued in excess of $50,000 directlyfrom places outside the State of Michigan. AwreyBakeries is an employer engaged in commerce [...] and United Catering, Cafeteria And Vending Workers "the Union" is a labor organization within the meaning of Section 2(5) of the Act. ... The United Catering, Cafeteria And Vending Workers Union has represented employees at Awrey's Livonia, Michigan facility for decades. It has negotiated collective bargaining agreements with AwreyBakeries, the most recent of which covers the period from September 1, 2010 through August 31, 2015. ... Awreyhired Ms. Whitfield-Scussel as its Director of Human Resources in October 2005. In this position she was the principal management representative who negotiated with the Union withrespect to grievances. Whitfield-Scussel settled grievances and denied grievances. She represented Awrey at arbitrations and approved all terminations, albeit with further review by CEO Bob Wallace. Ms. Whitfield-Scussel also negotiated about 10 memorandums of understanding with the Union ... An NLRB Administrative Law Judge has found that a labor union, United Catering, Cafeteria And Vending Workers, violated the National Labor Relations Act when it conditioned the granting of concessions in collective-bargaining with the discharge of a member of the employer's negotiating team. ... In his decision issued Thursday, Judge Arthur Amchan found that Council 30 of the United Catering, Cafeteria and Vending Workers International Union unlawfully caused the employer, Awrey Bakeries, LLC, to fire its Director of Human Resources on the same day the union membership ratified a new contract. ... The Union had represented employees at the Livonia, Michigan facility for decades, and was bargaining for a successor contract. After union members rejected the first proposal, which called for significant reductions in hourly pay rates and lay-offs, the union indicated that it could win membership support if the employer agreed to discharge two members of the negotiating team, including its HR Director. ... The revised contract proposal provided for the immediate termination of one top manager, and the termination of another manager within 60-days. ... Administrative Law Judges Decision::NLRB DECISION
04-05: MSPB: Voss v. Postal ... DID POSTAL GO TO FAR BY REMOVING HIM FOR UNSATISFACTORY SAFETY PERFORMANCE AFTER TWO ON-THE-JOB TRAFFIC ACCIDENTS ? ... The United States Postal Service removed the appellant, Kenneth G. Voss, from his position as a City Carrier in Bryan, Texas, effective October 19, 2011. The agency proposed his removal based on the charge of unsatisfactory safety performance after he had a traffic accident on June 16, 2011, while operating an agency vehicle, his second accident involving a postal vehicle in less than 2 years. ... The agency stated that the appellant's postal vehicle struck a parked car, which in turn hit another parked car, damaging all three vehicles. The agency's Safety Review Board determined that the accident was both preventable and the appellant's fault. ... The appellant grieved the proposed removal, and he appealed to the Board after the agency issued a Step B decision effecting the action. ... After a hearing, in which the appellant was represented but did not testify, the administrative judge found that the agency proved the charge by preponderant evidence. The administrative judge likewise found that the agency proved that the penalty was reasonable and promoted the efficiency of the service. The appellant has filed a petition for review. ... Here,Voss Appeals The Decision:MSPB DECISION
04-05: FedCir: Council v. DVA ... DVA REMOVED HIM FOR IMPROPER RETENTION OF DOCUMENTS CONTAINING CONFIDENTIAL PERSONALLY IDENTIFIABLE INFORMATION. ... Darralyn C. Council, Sr., appeals the decision of the Merit Systems Protection Board affirming his removal from employment with the Department of Veterans Affairs ("DVA"). ... During the discovery phase of the proceedings before the EEOC, Mr. Council sent the DVA's attorney a package of documents. The documents came with a cover page entitled, "Enclosures: Copies of NPPD [National Prosthetics Patient Database] Data" and contained unredacted or poorly redacted personally identifiable information about Houston VAMC patients. Because the distribution of that information potentially violated the Privacy Act, 5 U.S.C. § 552a, and VAMC policy, the DVA's Office of Inspector General ("OIG") conducted an investigation. When questioned, Mr. Council claimed that the DVA attorney had sent him the documents, and that Mr. Council had redacted them in order to comply with the Privacy Act before returning them to the attorney. ... On August 15, 2008, the DVA removed Mr. Council for improper retention of documents containing confidential personally identifiable information from his prior employment at the Houston VAMC and for lack of candor during the investigation. Mr. Council appealed to the Board (MSPB). MSPB affirmed the removal decision. ... Here, Council Appeals To FedCir:COURT DECISION
04-05: 6thCir: Smith v. Coleman ... ITS REALLY ASHAME HOW WE ALLOW PROSECUTORS TO CONTINUALLY LIE, CHEAT AND STEAL IN THE UNITED STATES. ... Petitioner Garey Smith was indicted on eleven counts stemming from a shooting incident involving four victims that occurred on May 14, 2001. Petitioner was charged with the murder of Jimmie Gordon; attempted murder and two counts of felonious assault as to Jeffrey King; attempted murder and two counts of felonious assault as to Steven Franklin; attempted murder and two counts of felonious assault as to Andre Ridley; and, finally, a weapons charge. The jury found Petitioner guilty on all charges except the attempted murder of King. ... Central to one of his claims in this appeal, Petitioner claims prosecutorial misconduct from his first trial. Specifically, the prosecutor elicited testimony from Franklin about his non-use of drugs when the prosecutor knew that Franklin had previously dealt crack cocaine. ... Next, the prosecutor elicited testimony that Franklin had been shot from behind when his medical records, to which the prosecutor stipulated, indicated that all of his bullet wounds were on the front of his body. Third, the prosecutor told the jury in his closing argument that Gordon was seventeen years old, but he had previously elicited testimony from a witness that Gordon was twenty-nine at the time of his death. Fourth, the prosecutor told the jury that Petitioner had lied to them and elaborated: "It was one of the biggest bold-faced lies I ever have heard in a courtroom. He looked at you, right in the eye, lied to you and never batted an eye . . . ." ... Additionally, the prosecutor claimed that had another bystander, Nick Grant, been present when Petitioner came across Gordon, Franklin, King, and Ridley, Petitioner would have shot Grant as well. Finally, the prosecutor attempted to bait Petitioner into losing his temper. ... Here, Smith Appeals To 6thCir:COURT DECISION
04-04: MSPB: Miller v. Interior ... HERE THEY GO AGAIN, THE ACTIVIST AND BIASED MSPB HAS REVERSED ANOTHER LEGITIMATE REMOVAL FOR NO GOOD REASON (WHEN WILL THESE ANTI-MANAGEMENT LEFTISTS STOP?) ... The appellant was a Superintendent at the Sitka National Historical Park in Alaska prior to her removal effective August 6, 2010, based on a charge of "failure to accept a management directed reassignment" to the "newly created" position of Alaska Native Affairs Liaison (Liaison position) in Anchorage, Alaska. She appealed her removal, asserting that she did not meet the minimum qualifications for the Liaison position and that her removal was "tainted by discrimination" based on her race, sex, and physical disability. She also alleged that the action was taken in reprisal for protected equal employment opportunity (EEO) activity. She further asserted that the agency committed harmful procedural error in taking the removal action, that the penalty was unduly harsh, and that her removal did not promote the efficiency of the service. ... The administrative judge found that the agency proved by preponderant evidence that its decision to reassign the appellant was based upon legitimate management reasons, that it gave adequate notice to the appellant, and that the appellant refused the reassignment. The administrative judge found that there was no dispute that the appellant declined the management directed reassignment. The administrative judge further found that the appellant was qualified to perform the duties of the new position. The administrative judge found that the appellant failed to meet her burden of proof on each of her affirmative defenses and that the penalty was reasonable and promoted the efficiency of the service. ... The appellant has filed a petition for review, and the agency has filed a substantive opposition. For the following reasons, we REVERSE the appellant's removal and ORDER the agency to reinstate the appellant to her position as the Superintendent at the Sitka National Historical Park. ... Here, Miller Appeals The Decision:MSPB DECISION
04-04: FedCir: Jones v. EPA ... HE WAS REMOVED FOR (1) LACK OF CANDOR/MISREPRESENTATION OF FACTS; (2) MISUSE OF GOVERNMENT PROPERTY; (3) MISUSE OF OFFICIAL TIME; (4) IMPROPER USE OF EPA TITLE, ADDRESS, AND PHONE NUMBER; AND (5) INAPPROPRIATE ACCESS TO CONFIDENTIAL INFORMATION. ... William T. Jones began working as an attorney advisor with the Environmental Protection Agency in June 1993. The Office of Inspector General ("OIG") initiated an investigation into Mr. Jones following a complaint from another EPA employee Femi Akindele, whom Mr. Jones had earlier represented in a family matter. There had been a fee dispute between Mr. Akindele and Mr. Jones, in which Mr. Jones, in turn, was represented by another EPA lawyer, Richard Glaze. At some point, Mr. Akindele became concerned that Mr. Glaze had accessed Mr. Akindele's confidential financial disclosure form and improperly relayed its information to Mr. Jones. ... Mr. Jones had been granted authorization to practice law outside his duties as an EPA attorney advisor in the areas of family law, real property, and business law. However, even with such authorization, Mr. Jones was prohibited from using official government time, equip- ment, and facilities to facilitate his outside law practice. ... As part of its investigation into this matter, the OIG examined Mr. Jones's work computer and email database, and discovered messages relating to Mr. Jones's outside practice of law that were sent during EPA work hours and a multitude of inappropriate e-mail messages, some of which attached sexually explicit photographs. ... The OIG interviewed Mr. Jones about what it had found. See Petitioner's Appendix ("A") 161, 167. In a sworn statement to OIG, Mr. Jones denied practicing family law at the workplace and denied that he had seen Mr. Akindele's financial disclosure form. ... On June 21, 2010, the EPA sent Mr. Jones a Notice of Proposed Removal ("NOPR") alleging five charges: (1) lack of candor/misrepresentation of facts; (2) misuse of government property; (3) misuse of official time; (4) improper use of EPA title, address, and phone number; and (5) inappropriate access to confidential information. Following a reply by Mr. Jones, the EPA issued a final action removing Mr. Jones. Mr. Jones's union invoked arbitration to challenge the removal decision. The arbitrator sustained all charges, and affirmed the penalty of removal. In re Arbitration Between Envtl. Prot. Agency and Am. Fed'n of Gov't Emp., FMCS Case No. 11-58940 (June 2, 2012) (Ross, Arb.) ("Arbitrator's Decision"). Mr. Jones timely appealed. ... Here, Jones Appeals To FedCir:COURT DECISION
04-03: MSPB: Canary v. Postal ... SOMETIMES A CASE HAS BEEN SO CONTAMINATED ALREADY, THAT THE ER/LR SPECIALIST NEEDS TO JUST LEAVE IT THE ____ ALONE ! ... The appellant has petitioned for review of the initial decision that affirmed her removal for unacceptable conduct and found that she failed to prove discrimination based on race. For the reasons set forth below, we REVERSE the initial decision in part and order the agency to CANCEL the appellant's removal. ... The appellant, Alethia Canary, was a Supervisor of Distribution Operations at the Postal Service's North Jersey Logistics and Distribution Center (L&DC) in Kearny, New Jersey. At the time of the appellant's removal, Patty Edwards was the Manager of Distribution Operations (MDO) at the North Jersey L&DC and the appellant's immediate supervisor, and Carolyn Davis was the Plant Manager. ... On June 7, 2010, the appellant was involved in a violent physical altercation with a subordinate employee. The subordinate employee, a mail processing clerk, had a history of aggressive and abusive behavior, that was well known to Ms. Edwards and Ms. Davis at the time of the altercation, ... Immediately following the altercation, Ms. Davis notified the U.S. Postal Inspection Service of its occurrence, and James Foley, Inspector, conducted an investigation into the matter. After reviewing the resulting Investigative Memorandum (IM) and meeting with the appellant to conduct a pre-disciplinary interview, Ms. Edwards determined that the appellant acted in self-defense and, therefore, should not receive discipline. Although Ms. Davis agreed that the appellant acted in self-defense, she believed that a stronger message needed to be sent that anyone acting contrary to the agency's zero tolerance policy would be subject to discipline. As a result, Ms. Davis drafted a letter of warning in lieu of a 14-day suspension for issuance to the appellant. ... On July 7, 2010, Ms. Davis, through her secretary, forwarded the letter to the Northern New Jersey District Labor Department for its review and editing prior to issuance. On the following day, Frank Carney, Manager, Human Resources, and Fred Hrinuk, Manager, Labor Relations, raised concerns regarding the lack of severity of the proposed discipline. As a result, Ms. Davis indicated that, despite her reluctance to issue a proposed removal to the appellant considering the mitigating circumstances that were present, she would change the letter of warning to a proposed removal. Ms. Davis subsequently amended the letter of warning and forwarded it to the Labor Department for its review. Ms. Davis testified, however, that, as the deciding official, she had already determined that she would have reduced the action to a letter of warning in lieu of a 14-day suspension. ... On November 2, 2010, Ms. Flagg issued the appellant a notice of proposed removal based on the sole charge of unacceptable conduct for her involvement in the June 7, 2010 incident. On February 3, 2011, following consideration of the appellant's oral reply to the proposed removal, Mr. Quental issued a decision sustaining the charge and removing the appellant, effective February 7, 2011. ... The appellant filed a timely appeal challenging the removal decision. Specifically, the appellant denied engaging in the charged behavior and asserted that the penalty of removal was not warranted. ... Here, Canary Appeals The Decision:MSPB DECISION
04-03: 7thCir: U.S. v. Burge ... CHICAGO POLICE COMMANDER SAID HE DID NOT CARE IF [THOSE BLACKS] TORTURED BY POLICE WERE INNOCENT OR GUILTY, BECAUSE EVERY SUSPECT WAS LIKELY GUILTY OF SOMETHING. ... For many years a cloud of suspicion loomed over the violent crimes section of the Area 2 precinct of the Chicago Police Department (CPD) located on Chicago's south side. Jon Burge joined the CPD in 1970 and rose to commanding officer of the violent crimes section in the 1980s, but his career was marked by accusations from over one hundred individuals who claimed that he and officers under his command tortured suspects in order to obtain confessions throughout the 1970s and 1980s. Burge was fired in 1993 after the Office of Profes- sional Standards investigated the allegations, but he was not criminally charged. Years later the Circuit Court of Cook County appointed special prosecutors to investi- gate the allegations of torture, but due to statutes of limitation, prosecutors never brought direct charges of police brutality against Burge. ... On October 18, 2008, the government alleged that Burge's responses to the interrogatories were false and indicted him on two counts of obstruction of an official proceeding under 18 U.S.C. § 1512(c)(2) and one count of perjury under 18 U.S.C. § 1621(1). At trial, the government called multiple witnesses to testify about the methods of torture and abuse used by Burge and others at Area 2 in order to establish that Burge lied when he answered the interrogatories in the Hobley case. ... While the issues in this appeal do not turn on the specific details of suffering caused under Burge's watch, the witnesses at trial detailed a record of decades of abuse that is unquestionably horrific. ... The witnesses described how they were suffocated with plastic bags, electrocuted with homemade devices attached to their genitals, beaten, and had guns forced into their mouths during questioning. Burge denied all allegations of abuse, but other witnesses stated that he bragged in the 1980s about how suspects were beaten in order to extract confessions. Another witness testified that Burge told her that he did not care if those tortured were innocent or guilty, because as he saw it, every suspect had surely committed some other offense anyway. On June 28, 2010, the jury convicted Burge on all counts. ... He was sentenced to 54 months' imprisonment. This appeal followed. ... Here, Burge Appeals To 7thCir:COURT DECISION
04-02: MSPB: Freeborn v. Justice (BOP) ... WAS JUSTICE'S ACTION A CLASISIC EXAMPLE OF A CONSTRUCTIVE REMOVAL ??? ... (REVERSED!) ... The appellant, Isaac Freeborn, a GS-15 Clinical Director at the Department of Justice's Bureau of Prisons (BOP), filed an August 22, 2011 appeal asserting that his April 27, 2011 resignation was involuntary. The appellant claimed that, after he admitted during an Office of Inspector General (OIG) investigation that he had permitted on two or three occasions "soft" contraband, namely, tennis shoes, to enter the prison facility in which he previously worked, the warden of his current facility told him that he was going to suspend him for 10 days immediately and begin his own administrative investigation, or the appellant could resign. ... Hearing Compact Disc (HCD) (testimony of the appellant). The appellant asserted that he later learned that this was inaccurate information and that he unsuccessfully tried to rescind his resignation. ... The appellant also claimed that, if the warden had given him the proper notice to effect a 10-day suspension, he would have had the opportunity to explore all of his options and would not have felt the extreme time constraints and duress that led him to resign. ... Here, Freeborn Appeals The Decision:MSPB DECISION
04-02: 7thCir: Hall v. Chicago ... ANOTHER CRACK! (REVERSED) ... FEMALE PLUMBER ALLEGES THAT HER SUPERVISOR CREATED A HOSTILE WORK ENVIRONMENT UNDER TITLE VII. ... Anna Hall was a female plumber working in the House Drain Inspectors Division of Chicago's Department of Sewers, in which all other nonsupport staff employees were male. ... In late 2003, shortly after she joined the Division, Hall filed an internal complaint with the City and a charge with the Equal Employment Opportunity Commission ("EEOC") alleging Johnson had harassed and discrimi- nated against her on the basis of her sex. She eventually filed this lawsuit in the Northern District of Illinois. Hall raised two claims concerning Johnson's conduct: he created a hostile work environment under Title VII and he was retaliating against her because she filed EEOC charges and an earlier unrelated lawsuit. In addi- tion to the claims relating to Johnson's conduct, Hall also alleged the City discriminatorily denied her two promotions to "plumber in charge" positions by choosing male applicants and this, too, was in retaliation for her previous legal claims. The district court entered summary judgment against Hall. ... She alleges that her supervisor, Gregory Johnson, created a hostile work environment under Title VII. Hall argues that, because she was female, Johnson assigned her menial work, prohibited her coworkers from interacting with her, and subjected her to verbal violence. The district court granted summary judgment after concluding Johnson's conduct was not hostile particularly in comparison to other employees' responsibilities. It also concluded that Hall failed to produce evidence that Johnson's conduct was because of her sex. ... Here, Hall Appeals To 7thCir:COURT DECISION
04-01: MSPB: Downey v. VA ... VA WAS WRONG FOR REMOVING HIM ON CHARGES OF SLEEPING ON DUTY AND INTIMIDATING FELLOW EMPLOYEES. ... The appellant, Timothy Allen Downey, a Health Technician for the VA Maryland Health Care System, was removed, effective February 14, 2011, for the charges of sleeping on duty and intimidating fellow employees. ... After a hearing, the administrative judge sustained only the sleeping on duty charge. ... The administrative judge found that the agency had demonstrated a nexus between removal and the efficiency of the service based on this charge. ... She also found that the appellant failed to demonstrate that the agency had committed harmful procedural error because the agency gave him clear notice of the charges and he had an adequate opportunity to present a reply that the deciding official considered. ... Finally, the administrative judge evaluated whether removal was reasonable given that she sustained fewer than all of the agency's charges. ... With respect to the appellant's disparate penalties argument, the administrative judge found that the charges and circumstances surrounding the charged behavior of the other employees were not substantially similar to the appellant's charge of intimidating a fellow employee and sleeping on duty. ... She also concluded that removal was not beyond the bounds of reasonableness for the charge of sleeping on duty. ... In his petition for review, the appellant argues that the administrative judge erred in upholding the charge of sleeping on duty and that the agency unjustifiably penalized him based on the premise that he endangered patient safety. ... He also argues that the agency erroneously imposed a higher penalty based on the deciding official's determination that his act of sleeping was "deliberate." ... Here, Downey Appeals The Decision:MSPB DECISION
04-01: MSPB: Henderson v. Homeland ... REMOVAL REVERSED ... DEAR EMPLOYEE RELATIONS SPECIALIST: SAVE A COPY OF THIS CASE, SO YOU CAN AVOID MAKING THE SAME MISTAKE ! ... When an agency intends to rely on an aggravating factor as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official. ... The appellant, Lorraine A. Henderson, has filed a petition for review in this case asking us to reconsider the initial decision issued by the administrative judge, which sustained the appellant's removal. ... On review, the appellant, Lorraine A. Henderson, asserts that the Department Of Homeland Security violated her right to due process because deciding official, Kevin Weeks, relied on her criminal prosecution and conviction in deciding to remove her even though the agency did not mention these factors in the notice of proposed removal. ... In her reply, the appellant brings up the matter of her criminal prosecution, arguing that it was an overreaction, that her removal was premature because "there has been no final disposition of the criminal charges," and that "the judge had serious concerns with the case being brought to trial by the U.S. Attorney and the verdict rendered by the jury." ... In his decision letter, the deciding official, Kevin Weeks, states, in the context of the penalty, that the "media coverage of your misconduct, which culminated in your arrest and federal criminal prosecution, was widely disseminated and was embarrassing to the Agency." ... Here, Henderson Appeals The Decision:MSPB DECISION
03-28: MSPB: Holt v. VA ... AFTER VA LOST A REMOVAL CASE ON A TECHNICALITY, DID THEY ENGAGE IN UN-SPORTSMAN LIKE BEHAVIOR ??? ... The Department of Veterans Affairs removed the appellant, Michael L. Holt, from the GS-11 IT Specialist position based on the charges of failure to follow instructions, failure to follow leave procedures, and inappropriate conduct. ... The agency relied on the appellant's prior discipline in selecting the removal penalty. The appellant appealed the agency's action, asserting a number of affirmative defenses. He alleged that the agency committed harmful procedural error by violating the collective bargaining agreement and issuing the decision late, discriminated on the bases of race and disability in violation of Title VII and the Americans with Disabilities Act (ADA) and the ADA Amendments Act (ADAAA), retaliated for his whistleblowing in violation of the Whistleblower Protection Act (WPA), and discriminated on the basis of his military service in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). ... Based on the record developed by the parties, including the testimony at the video hearing held on October 7 and 19, 2011, the administrative judge reversed the agency's action. She found that the deciding official considered complaints about the appellant, some of which were not recorded in the appellant's disciplinary record, including information with regard to a reassignment because of conduct issues. She found that the appellant was not on notice of the evidence regarding his reassignment relied upon by the agency in imposing the penalty. ... Thus, she reversed the removal because a due process violation occurred. She found that the appellant was entitled to a new constitutionally correct removal procedure and she did not reach the merits of the appeal. The administrative judge also adjudicated the appellant's affirmative defenses, finding that the appellant failed to meet his burden to prove any of them. ... The appellant contends that the administrative judge erred in finding that he failed to prove his affirmative defenses. Notwithstanding the reversal of the agency's removal action, the appellant may be entitled to additional relief if he succeeds in proving his allegations of discrimination under Title VII, the ADA, ADAAA, and/or USERRA, and/or retaliation for whistleblowing. If the appellant establishes any of these affirmative defenses, he is entitled to have the adverse action reversed on the merits, precluding the agency from reinstituting the action. ... Here, Holt Appeals The Decision:MSPB DECISION
03-28: 6thCir: Hearring v. Sliwowski ... ARE UNITED STATER'S SEXUALLY PERVERSE ? - A CASE WHERE PARENTS SUE A SCHOOL NURSE FOR TAKING AN ACTION THAT THE NURSE WOULD BE SUED FOR HAD SHE NOT TAKEN THE SAME ACTION. ... In this case, a school nurse, Defendant-Appellant Karen Sliwowski ("Sliwowski"), conducted a visual examination of six-year-old female student B.H.'s genital area for medical purposes in response to the student's complaints of itching and discomfort in the area. The student's mother, Plaintiff-Appellee Melissa Hearring ("Hearring"), on behalf of B.H., alleges that this medical examination violated B.H.'s Fourth Amendment right to be free from unreasonable searches. The district court denied summary judgment and denied Sliwowski qualified immunity, finding that the visual examination, conducted without consent and in the absence of a medical emergency, was an unreasonable search that violated B.H.'s Fourth Amendment rights. ... Here, Sliwowski Appeals To 6thCir:COURT DECISION
03-27: MSPB: Taylor v. Treasury ... SOMETIMES, ALL YOU CAN DO IS SHAKE YOUR HEAD WHEN YOU READ A CASE LIKE THIS ONE ... The appellant has petitioned for review of the initial decision in which the administrative judge dismissed her removal appeal as untimely filed. ... Appointment of Counsel The appellant argues that the administrative judge should have granted her request for an appointment of counsel. The administrative judge informed appelant that the Board (MSPB) cannot appoint and pay for an attorney to represent the appellant. ... Recusal and Disqualification The appellant argues that the administrative judge should have recused herself from participating in these proceedings. She alleged that the administrative judge is racially biased and had a conflict of interest because she has adjudicated more than one of the appellant's appeals. ... However, administrative judges enjoy a presumption of honesty and integrity that can only be overcome by a substantial showing of personal bias. ... We find that the appellant's bare allegations of racial animus are insufficient to overcome this presumption and that there is nothing improper about a single administrative judge adjudicating the appellant's multiple appeals. The appellant also argues that the agency's representative should have been disqualified from participating in these proceedings. ... She objects to his participation because he was involved in proceedings at the agency level, because he allegedly harbors racial animus against her, and because he is an attorney. ... Here, Taylor Appeals The Decision:MSPB DECISION
03-27: 9thCir: SEIU v. Rosselli ... IF YOU THINK YOUR UNION OFFICIALS ARE A BUNCH OF ILL-MANNERED MALCONTENTS, SEE HOW DISRESTFUL THEY ARE WITHIN THE UNION ITSELF ... The UHW itself was formed as the result of Services Employees Internation Union's (SEIU) merger of two local healthcare unions in California in 2005. Harmony between the international and its newly created local union was short-lived. Shortly after UHW's creation, UHW officials began to spar with SEIU leadership over SEIU's jurisdictional plan for long-term care workers in California. The international union intended to move 150,000 long-term care workers from three separate unions, including some 65,000 from UHW, into a new local union chartered by SEIU. ... ... ... The evidence at trial showed that UHW officials sought to create an ungovernable situation for trustees appointed to administer UHW by: (1) blocking access to UHW buildings to prevent the SEIU-appointed trustees from entering; (2) removing UHW property from UHW buildings, including office equipment, computers, and employee grievance files; (3) instructing lower-level UHW officials and rank-and-file members not to recognize the authority of the trustees; (4) harassing SEIU staff by storming SEIU's Alameda, California, office; and (5) terminating UHW collective bargaining agreements with California employers. ... At the same time, the defendants, while still on the UHW payroll, began to create and promote the new union. The evidence showed that the defendants: (1) searched and prioritized office space for the new union in December 2008 and January 2009; (2) instructed staff to collect signatures on a "disaffiliation" petition in an attempt to disaffiliate UHW from SEIU; (3) researched the "decertification" of UHW, which would have terminated UHW's role as collective bargaining agent for its members, thus allowing a new union to become the bargaining representative of those members; (4) announced to members three days before the trusteeship was imposed that members could decertify and join a "new, independent, democratic, progressive union;" (5) created an off-line database of member contact information before the trusteeship was imposed for use after the trusteeship went into effect, at least in part to solicit UHW members to join the new union; and (6) registered the domain NUHW.org and drafted a press release announcing the new union on January 27, 2009, the day the UHW trusteeship was imposed. ... Here, Rosselli Appeals To 9thCir:COURT DECISION
03-26: 11thCir:
Faircloth v. Herkel ... HE DESCRIBED THE RELATIONSHIP WITH HIS FEMALE BOSS AS "FRIENDS WITH BENEFITS." ... AND "NONCONSENSUAL" ! ... Herkel Investments, Inc. is a franchisee for Aaron's Rents and operates six stores throughout Georgia, including stores in Macon and Warner Robins. These stores sell and lease residential and office furniture, consumer electronics, and home appliances. In January 2002, Herkel hired Tony Faircloth as the Macon store Customer Account Manager, responsible for collecting past-due rent from customers and assisting the store's General Manager, Sharon Thompson. ... By the summer of 2002, Faircloth and Thompson had entered into a consensual sexual relationship that lasted for a year, until the summer of 2003. Shortly thereafter, Herkel promoted Faircloth to General Manager of the Warner Robbins store and to District Manager, with supervision of the stores in Savannah, Rome, and Dalton. In 2004, Faircoth and Thompson resumed their sexual relationship; it continued until 2007. Faircloth described the relationship as "friends with benefits." Faircloth also described it as "nonconsensual," that he was sexually involved with Thompson so that she didn't cause him as many problems at work. ... In early 2008, Herkel removed Faircloth from his District Manager position. Chris LaPerchia, Herkel's president, told him that it was not a demotion; rather, it was the result of the Warner Robbins's store's declining economic performance. About that time, the exact month Faircloth could not recall, Faircloth told LaPerchia that he wanted to a file sexual harassment charge against Thompson. He told LaPerchia that Thompson and Herkel were discriminating against black employees on account of their race. He said that Thompson once referred to a black employee using the "N-word," and that Herkel mistreated black employees in allowing time off. ... On October 20, 2008, Herkel terminated Faircloth's employment, and, at the same time, eliminated the position of General Manager at the Warner Robbins store. Thompson assumed Faircloth's duties at that store, while continuing to function as General Manager of the Macon store. ... Here, Faircloth Appeals To 11thCir:COURT DECISION
03-26: MSPB: Hudson v. Commerce ... HE WAS REMOVED FOR USING HIS GOVERNMENT-ISSUED COMPUTERS TO ACCESS SEXUALLY EXPLICIT MATERIAL -AND- UNAUTHORIZED USE OF THE AGENCY'S FEDERAL EXPRESS ACCOUNT ... The appellant has petitioned for review of the initial decision in which the administrative judge sustained his removal. ... The appellant argues that Employee and Labor Relations Specialist Margaret Morse was more involved in the removal decision than indicated in her testimony. ... Charges:As to Charge 1, pertaining to the appellant's alleged use of his government-issued computers to access sexually explicit material, the appellant argues that the agency's evidence was insufficient in several regards. He argues that the inventory logs that he submitted below do not reflect that he was ever assigned the Dell Dimension 4700 desktop at issue. ... The appellant also appears to argue that the information technology and Inspector General's reports do not indicate any finding of sexually explicit material. ... As to Charge 2, pertaining to the appellant's alleged unauthorized use of the agency's Federal Express account, the appellant argues that the agency presented no firsthand evidence that he lacked authorization to use the account as he did. He argues that the proposing official gave similar authorization to his predecessor, Susan Bicknese, and that the authorization extended to him after her departure. ... Penalty: Regarding the penalty determination, the appellant argues that the deciding official should not have considered the "prior counselings and admonishments." First, he argues that documentation of these incidents does not exist. ... The appellant also argues that the agency committed harmful error and violated his Fifth Amendment due process rights by refusing to provide with him the materials that it relied upon in proposing his removal. ... Race Discrimination: The appellant disagrees with the administrative judge's finding that he failed to prove his race discrimination affirmative defense. He argues that the deciding official had a discriminatory attitude towards him as evidenced by an e-mail in which she stated, "this pattern began long ago. I wouldn't have hired someone who was problematic as a contractor. ... Retaliation for Protected Equal Employment Opportunity Activity: We note as an initial matter that the appellant appears to be under the impression that the agency's alleged retaliation for his equal employment opportunity (EEO) activity gives rise to a whistleblower claim. ... Retaliation for Protected Whistleblowing: The appellant argues that the administrative judge erred in finding that he failed to identify any disclosure protected under the Whistleblower Protection Act. He argues that he submitted evidence of protected disclosures in response to the acknowledgment order. ... Here, Hudson Appeals The Decision:MSPB DECISION
03-25: MSPB: Ludwigs v. Homeland ... IF YOU PLAN TO INDEFINITELY SUSPEND SOMEONE BASED ON SUSPENSION OF SECURITY CLEARANCE, TAKE SPECIAL NOTE OF THIS DECISION ... The appellant has petitioned for review of the initial decision that sustained his indefinite suspension. ... ... ... For the reasons set forth below, we GRANT the appellant's petition and REVERSE the initial decision. The indefinite suspension action is NOT SUSTAINED. ... As we explained in McGriff, an agency does not afford an individual with a meaningful opportunity to respond by merely providing an empty process for presenting his defense against the agency's adverse action. ... Rather, due process requires that the employee be provided an opportunity to respond to an agency official with authority to change the outcome of the proposed action, whether by changing the initial determination to suspend his security clearance, placing the employee on administrative leave pending a final determination on his security clearance, or reassigning him to a position that does not require access to classified information. ... Here, the appellant did not have the opportunity to respond to any official with authority to restore his security clearance. The deciding official, David Ballinger, testified that he had no involvement in the decision to suspend the appellant's security clearance, and no authority to reverse that underlying determination. ... Here, Ludwigs Appeals The Decision:MSPB DECISION
03-22: Opinion: O'COWARD! - To Go To Israel And Not Call-Out Their Cheap 1960 Alabama Styled Jim Crow Racist Leader (Separate And Un-Equal) For The Racist He Is Was An Act Of Pure Cowardice. Many Israeli Citizens Know Him For The Racist He Is And Regularly Speak Out Against Him. Every Chance He Gets, He Disrespects You. He Was Even Brazen Enough To Meddle In The Presidential Election By Openly Endorsing Your Opponent, Mitt Romney. You Had A Chance To Show The World You Were A Person Of Substance. Instead, You Showed The World That You Can Go To A Country And Read A Speech That Sounded As If Was Written By The Same Jim Crow Styled Racist Who Regularly Tells You To Kiss His ____. You Should Have Strongly Spoken Out Against The Modern Day Jim Crow Racism (Separate And Un-Equal). I f Progressive Israeli People, Politicians And Newspapers Have The Courage To Speak Out Against Their Alabama Styled Jim Crow Racist Leader, Why Couldn't You Muster Such Courage Too? Like The Scare Crow In The Wizard Of Oz. Just A Coward With A Tan. Its Just A Tan! (If this Guy Was The President During Slavery, He Would Not Have Advocated Ending Slavery. He Would Have Taken His Usual Timid Balanced Approach: He Would have Begged The Slave Owners To To Give The Slaves Better Health Care and Let The Gay Salves Get Married. Then He Would Have Chided The Salves To Stop Being So Lazy and To Stop Running Away.) Its Just A Tan People! Just A Tan.
03-22: 6thCir: Watkins v. Lafler ... IN THE UNITED STATES, WE LOVE TO USE OUR GUNS TO KILL OTHER UNITED STATERS ! ... On January 18, 1998, Allen Russell Stewart was shot in the back in his mother's front yard and died the same day from his gunshot wound. There were no eyewitnesses to the shooting, although the next-door neighbor recalled seeing two men standing by a tree shortly before Allen was shot, and stated that she heard the gunshot. Allen's mother, Charlene Stewart, also heard a loud noise at the time of the shooting and observed Allen staggering into her kitchen with blood on his head. Charlene said that after Allen was shot, she was unable to locate his wallet or several pieces of jewelry that he normally wore. A police officer who responded to Charlene's 911 call noticed that Allen had duct tape on his wrists. After a search of Allen's room at his mother's house, the officer found what appeared to be drugtrafficking paraphernalia and 10.98 grams of crack cocaine with an estimated value of $1,000. ... The police subsequently received information that [Watkins] may have been involved in the shooting. A police detective traveled to Kentucky, where [Watkins] was in jail on an unrelated charge, and interviewed [him] after he waived his Miranda rights. According to the detective, [Watkins] initially denied any involvement in the shooting or that he had ever been to Michigan. During a third interview, [Watkins] allegedly admitted that he and a friend, Ardell Robinson, went to the neighborhood to attend a party and sat on the hood of Allen's car waiting for the party to begin. [Watkins] claimed that Allen pushed him and his gun went off as he slipped and fell. In a fifth interview, [Watkins] allegedly told the detective that Robinson gave him a gun before they arrived in Allen's neighborhood. [Watkins] said that Robinson grabbed Allen, and when Allen broke away and approached [Watkins], he pulled his gun and it went off. The detective claimed that [Watkins] further admitted that he and Robinson discussed robbing someone. ... Here, Watkins Appeals To 6thCir:COURT DECISION
03-22: 4thCir: Trail v. Local2850 ... SHE ALLEGES UNION RETALLIATION AFTER SHE REPORTED SEEING THE PRESIDENT VIEWING PORNOGRAPHY ON A UNION COMPUTER ! ... Melissa H. Trail worked for General Dynamics Armament and Technical Products, a defense contractor, at its facility in Marion, Virginia, from 1989 until 1992, and again from 1995 March 2009. ... Melissa H. Trail had an encounter with two Local 2850 of UAW/United Defense Workers of America ("Local 2850" or "the Union") officials that gave rise to this suit. Specifically, on entering the Union office on August 13, 2009, she alleges that she saw the Union's then president and vice president viewing pornographic images on a Union computer. ... Trail reported the incident to Region 8 representatives, but they declined to investigate. After she made this report, Trail alleges, the president and vice president began to retaliate against her in various ways. The vice president, for instance, criticized Trail at a meeting of the Union's executive board, sought to obtain a special parking pass at the Marion facility by falsely claiming that he had been threatened by Trail's husband, and told the management of General Dynamics that he believed that only thirty percent of the unionized employees wanted Trail to return to work. For his part, the president chastised Trail for reporting the pornography incident. ... In addition, after General Dynamics fired Trail, the Union filed a grievance on her behalf to challenge her termination. Trail alleges that the president and vice president attempted to obstruct the grievance process by allowing it to be needlessly delayed, forbidding her to attend meetings with General Dynamics, prohibiting her from having her own legal representation, and holding meetings with a Union-designated legal representative in her absence. After Trail failed to have her termination overturned through the grievance process, she decided not to pursue the matter further through arbitration. ... Trail sued Local 2850, Region 8, and the UAW in U.S. District Court for the Western District of Virginia, alleging that Local 2850's president and vice president violated the Labor-Management Reporting and Disclosure Act (LMRDA). ... Here, Trail Appeals To 4thCir:COURT DECISION
03-21: MSPB: Brown v. Postal ... POSTAL INAPPROPRIATELY REMOVED ME FOR A LITTLE SPAT WITH MY CO-WORKER GIRLFRIEND ! ... The Postal Service removed the appellant on the charge of Assaulting Another Employee. ... In short, after the appellant received a series of seven text messages in which a co-worker with whom he shared an intimate relationship accused him of infidelity, he assaulted her. ... He filed a timely appeal. After holding a hearing, the administrative judge issued an initial decision in which she found that the agency proved the charge, that it established a nexus between the appellant's misconduct and the efficiency of the service, and that the penalty was within the tolerable limits of reasonableness. ... In his timely-filed petition for review, the appellant contends that the administrative judge should have mitigated the penalty to a 30-day suspension. ... Here, Brown Appeals The Decision:MSPB DECISION
03-21: 10thCir:
Carani v. Meisner ... AFTER HIS WIFE FOUND A FLIRTATIOUS NOTE IN HIS CAR, SHE LOST HER ___ING MIND ! ... Back in 2007, Marco and Shelley Carani's private marital dispute briefly spilled out onto the streets of Rifle, Colorado. The events of those few days have since managed to beget years of federal litigation. Today, we hopefully bring some measure of closure for all involved. ... When Mr. Carani announced he wanted a divorce, he and his wife first moved into separate rooms. Later, they attempted a reconciliation. The couple's private marital issues, however, soon exploded in public when Ms. Carani found a flirtatious note from Erin Sims in Mr. Carani's truck. Deducing that her husband was carrying on an affair with Ms. Sims, Ms. Carani picked up the phone, called Ms. Sims, and threatened to ruin Ms. Sims, ruin her own marriage, and ruin her relationships around town. To avoid any conceivable misunderstanding, Ms. Carani told Ms. Sims to "consider this a threat." ... Ms. Carani then proceeded to make good on that threat. She called Ms. Sims's husband, told him of the affair, and asked if she should be tested for sexually transmitted diseases. She called Ms. Sims's boss and let him know about the affair, too. And she told many other friends around town, some of whom proceeded (with her knowledge and apparent approval) to leave a message with the word "SLUT" on Ms. Sims's car when it was parked on the street and shout "home wrecker" when they saw her in public. ...
Here, Carani Appeals To 10thCir:COURT DECISION
03-21: 7thCir:
Dainja v. AmeriCredit ... JUST CAN'T GET OVER THE FACT THAT THIS GUY FINANCED A TRUCK FOR 23.9 PERCENT ANNUAL INTEREST RATE ... 23.9 % !!!
... The plaintiff bought a used pickup truck in 2011 for $28,000 and financed the purchase by means of a six-year installment contract that specified an interest rate of 23.9 percent. The dealer who sold him the truck assigned the contract to AmeriCredit. ... But after making the first installment the plaintiff sent his new creditor a copy of the installment contract that he had stamped "accepted for value and returned for value for settlement and closure," and told AmeriCredit to collect the balance of the money due it under the contract from the U.S. Treasury. AmeriCredit repossessed the truck, sold it, and billed the plaintiff $11,322.28 to cover the difference between the price at which the truck had been resold and the unpaid balance on the installment contract. ... The plaintiff responded by suing AmeriCredit and two of its officers in a federal district court in Illinois for $34 million in compensatory damages and $2.2 billion in punitive damages. ...
Here, Dainja Appeals To 7thCir:COURT DECISION
03-20: MSPB: Ashmore v. Navy ... BY REMOVING ME, NAVY FAILED TO CONSIDER MY 19 YEARS OF GOVERNMENT SERVICE OR MY HOSPITALIZATION ! ... Navy removed the appellant from his Public Safety Dispatcher position after 19 years of service. ... The appellant was accused of reporting to work under the influence of alcohol to a position in which he was responsible for handling emergency telephone calls and transmitting the information to the police and fire departments. The appellant was also acccused of being AWOL for an extensive period of time (from May 16, 2011, through August 15, 2011). ... The appellant's disciplinary record revealed a prior 14-day suspension for AWOL and failure to follow leave procedures in March 2011. ... Here, Ashmore Appeals The Decision:MSPB DECISION
03-19: CA4/1: Goodwyn v. BellyUp ... ARE THEY LIABLE FOR FAILING TO PREVENT INJURIES SUSTAINED IN A FIGHT AT BELLY UP'S BAR ? ... On August 10, 2009, Kory Goodwyn and Eddie Haynes attended a hip-hop concert at Belly Up. During one of the opening acts, Goodwyn and Haynes were standing near the bar and were approached by a group of seven other concertgoers. A man in the group (the aggressor) looked at Haynes and without provocation said, "What you looking at, nigger?" Haynes responded, "You need to go on with this stuff. I'm not here for this." After this exchange, a companion of the aggressor intervened to diffuse the situation and he and the aggressor stepped away from Haynes and Goodwyn. Goodwyn looked for a security guard or bartender to intervene. He saw the only bartender on duty that night at the other end of the bar, but could not get his attention. Another concertgoer, Kimberly Handy, who met Haynes and Goodwyn for the first time at the concert and witnessed the exchange, also unsuccessfully attempted to flag down the bartender. ... A minute or so after the initial exchange with Haynes, the aggressor and his companions returned and the aggressor instigated another argument with Haynes. The aggressor threw a punch at Haynes and the two fell into a brawl on the floor. Goodwyn attempted to come to Haynes's aid but was grabbed from behind, held to the ground and repeatedly punched and kicked by the aggressor's friends. Haynes testified that the attack seemed to last "an eternity," and Goodwyn testified that the fight seemed to last for eight to 10 minutes. Handy similarly recalled the entire incident lasting about 10 minutes. Goodwyn and Handy testified that the fight was not broken up by security guards and ended only when the aggressor and his companions walked away. Haynes testified the fight was broken up by bystanders and that Belly Up's security guards did not respond to the altercation. ... After a four-day trial, a jury found Belly Up Tavern, LLC (Belly Up) negligent in failing to prevent injuries sustained by Kory Goodwyn in a fight at Belly Up's concert venue and bar in Solana Beach, California. Belly Up moved for judgment notwithstanding the verdict (JNOV), contending there was insufficient evidence to support the element of causation in Goodwyn's negligence claim. The trial court granted the motion, reversing the jury's verdict, and entered judgment in favor of Belly Up. ... Here, Goodwyn Appeals To CA4/1:COURT DECISION
03-18: MSPB: Nasdahl v. DVA ... WAS DVA'S DECISION TO CORRECT THE APPELLANT'S RETIREMENT COVERAGE UNDER FERCCA CORRECT? ... Veterans Affairs has filed a petition for review of the December 12, 2011 initial decision that reversed its decision to correct the appellant's retirement coverage under the Federal Erroneous Retirement Coverage Corrections Act (FERCCA), 5 U.S.C. § 8331 note, and remanded the case to the agency for further processing. ... Here, DVA Appeals The Decision:MSPB DECISION
03-18: MSPB: Flournoy v. Justice ... APPELLANT APPEALS HIS REMOVAL FROM THE US ATTORNEY'S OFFICE BASED ON LACK OF CANDOR AND CONDUCT UNBECOMING A FEDERAL EMPLOYEE ... The appellant has filed a petition for review in this case asking us to reconsider the initial decision issued by the administrative judge, which sustained the appellant's removal from the GS-8 position of legal assistant with the United States Attorney's Office (USAO) based on the charges lack of candor and conduct unbecoming a federal employee. Specifically, the administrative judge found that the agency proved that the appellant stated during a polygraph examination that he had never provided sensitive law enforcement information to anyone without authority to do so and later admitted that, on approximately 5 to 10 occasions, he had informed certain individuals outside of the USAO of law enforcement information without specific authorization. ... The appellant asserts that the charge of lack of candor should not be sustained because the agency failed to train him on what constituted sensitive law enforcement information. ... The agency does not deny that it did not train the appellant about sensitive law enforcement information. ... Here, Flournoy Appeals The Decision:DECISION
03-18: DcCir: ACLU v. CIA ... AMERICAN CIVIL LIBERTIES UNION FILED A FOIA REQUEST ABOUT CIA USING DRONES TO KILL PEOPLE ... On January 13, 2010, the American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, the ACLU) submitted a Freedom of Information Act (FOIA) request to the Central Intelligence Agency (CIA), seeking "records pertaining to the use of unmanned aerial vehicles ('UAVs') -- commonly referred to as 'drones' . . . -- by the CIA and the Armed Forces for the purpose of killing targeted individuals." FOIA Request 2 (J.A. 48); see 5 U.S.C. § 552(a). The CIA responded with what is commonly known as a "Glomar response," declining either to confirm or deny the existence of any responsive records. The CIA's Agency Release Panel accepted an administrative appeal, but failed to make a determination within twenty days as FOIA requires. See 5 U.S.C. § 552(a)(6)(A)(ii). The ACLU then filed suit against the CIA in the United States District Court for the District of Columbia, seeking the immediate processing and release of the requested records. See id. § 552(a)(4)(B). ... The CIA moved for summary judgment. It asserted that the answer to the question of whether it possessed responsive records was itself exempt from disclosure under FOIA Exemptions 1 and 3. See id. § 552(b)(1), (3). And it rejected the ACLU's contention that there had been official public acknowledgments that warranted overriding the Agency's exemption claims. In support of those arguments, the CIA submitted the affidavit of Mary Ellen Cole, the Information Review Officer for the Agency's National Clandestine Service, who explained at some length why the CIA believed its Glomar response was justified. See Declaration of Mary Ellen Cole (Cole Decl.). ... On September 9, 2011, the district court granted the CIA's motion for summary judgment. The court agreed with the CIA that the existence vel non of responsive records was exempt under both Exemptions 1 and 3, and that there had been no official acknowledgment sufficient to override those exemptions. As a consequence, the court held, the CIA was not required to confirm or deny that it had any responsive records, let alone describe any specific documents it might have or explain why any such documents were exempt from disclosure. The ACLU filed a timely appeal. ... Here, ACLU Appeals To DcCir:COURT DECISION
03-15: 5thCir: Stewart v. Waco ... THE SCHOOL IS GUILTY BECAUSE I AM MENTALLY RETARDED AND GET SEXUALLY ABUSED WHEN I FLIRT WITH THE BOYS ! ... Plaintiff-Appellant Andricka Stewart "suffers from mental retardation, speech impairment, and hearing impairment" and qualifies as a person with a disability under the Americans with Disabilities Act and the Rehabilitation Act. During the relevant time period, Stewart attended A.J. Moore Academy, then a District high school, as a special-education student. ... After an incident involving sexual contact between Stewart and another student in November 2005, the District modified Stewart's Individualized Education Program ("IEP") to provide that she be separated from male students and remain under close supervision while at school. ... Nonetheless, the complaint alleges that Stewart was involved in three other instances of sexual conduct, which she characterizes as "sexual abuse," over the next two years. In February 2006, a male student sexually abused Stewart in a school restroom. The District concluded that Stewart "was at least somewhat complicit" in the incident and suspended her for three days. In August 2006, school personnel allowed Stewart to go to the restroom unattended, and she was again sexually abused by a male classmate. Finally, in October 2007, a male student "exposed himself" to Stewart. The District suspended her again. In none of these instances, according to Stewart, did the District take any steps to further modify her IEP or to prevent future abuse. ... Stewart sued the District in state court, and the District removed on federal-question grounds. Relevant here, Stewart brings a claim under the Rehabilitation Act for the District's alleged "gross mismanagement" of her IEP and failure to reasonably accommodate her disabilities. She asserts that the suspensions meted out after the second and fourth incidents deprived her of educational benefits. ... Here, Stewart Appeals To 5thCir:COURT DECISION
03-15: 9thCir: Milke v. Ryan ... DID DEATH-ROW DEBRA REALLY MURDER HER 14 YEAR OLD SON, OR WAS HER CONFESSION FABRICATED BY THE CROOKED POLICE DETECTIVE ? ... On the last evening of his short life, Christopher Milke saw Santa Claus at the mall. He woke up the next morning begging his mother, Debra Milke, to let him go again. ... Debra agreed and sent Christopher to the mall with her roommate, James Styers. On the way, Styers picked up his friend, Roger Scott. But instead of heading to the mall, the two men drove the boy out of town to a secluded ravine, where Styers shot Christopher three times in the head. Styers and Scott then drove to the mall, where they reported Christopher as missing. ... Sunday morning, less than a day into the missing-child investigation, police began to suspect Styers and Scott. It was supposed to be Detective Saldate's day off, but the homicide sergeant in charge of the case called him in. A veteran of the police force, Saldate was confident he could get the truth out of anyone he interrogated. At headquarters he started in on Styers almost immediately, while his partner, Detective Bob Mills, worked on Scott. Shortly before 1 p.m., Saldate joined Mills in interrogating Scott. According to Saldate, Mills and other officers were happy to let a suspect talk, but Saldate's "style," as he described it, was "a little different"-he preferred a frontal assault. "I knew that I was going to be straightforward with [Scott], I was going to be very truthful with him, but I was going to make sure that whatever he told me was going to jive with the facts." ... Soon after Saldate's appearance, Scott broke. He led the detectives to Christopher's body and told them where he and Styers had thrown the unspent ammunition. According to Saldate, Scott said along the way that Debra Milke had been involved. Detective Saldate seized on the statement and flew by helicopter to Florence, Arizona, where Debra Milke had gone to stay with her father and step-family after she learned of Christopher's disappearance. ... In Florence, a deputy sheriff invited Milke to headquarters to wait for Detective Saldate. Saldate found Milke waiting in a 15-by-15-foot room of the Pinal County jail. She hadn't been arrested, nor had she been told anything about Christopher. Saldate pushed into the room and introduced himself. He pulled his chair close to Milke, a forearm's length at most, and leaned in even closer. That's when he told her that the police had found her son-dead. ... ... ... Based largely in the testimony if Detective Saldate. in 1990, a jury convicted Debra Milke of murdering her four-year-old son, Christopher. The judge sentenced her to death. ... Here, Milke Appeals To 9thCir:COURT DECISIONAfter 22 Years On Death Row For Killing Her 4-Year-Old Son, Mother's Conviction Overturned:Daily Mail
03-14: 6thCir: Howell v. Hodge ... MURDER WAS THE CASE ... KAREN HOWELL PLED GUILTY TO THREE COUNTS OF FIRST-DEGREE MURDER. ... On April 6, 1997, Karen Howell and five friends left Pikeville, Kentucky, on their way to New Orleans. At the time, Howell was seventeen, one of the others (Jason Bryant) was fourteen, and the other four (Joseph Risner, Natasha Cornett, Crystal Sturgall and Dean Mullins) were at least eighteen. The group brought two guns with them and started the journey in a rickety car, prompting them to talk about upgrading their mode of transportation by stealing a better car. ... At a rest stop near Greeneville, Tennessee, an opportunity presented itself. Vidar Lillelid, a Jehovah's Witness, approached Howell and her friends while they were sitting at a picnic table. Lillelid began sharing his religious views with the group, and it is fair to say that they did not get the message. Risner displayed one of the weapons and told Lillelid, "I hate to do you this way, but we are going to have to take you with us for your van." The Court described what happened next: ... Risner directed the Lillelid family to their van even though Mr. Lillelid offered the group his keys and wallet in exchange for allowing the family to remain at the rest area. ... Mr. Lillelid drove the van, and Risner, who was still armed, sat in the passenger seat. Karen Howell, Natasha Cornett and Jason Bryant also rode in the van with the Lillelids. Mullins and Sturgall followed in Risner's vehicle. Mrs. Lillelid began singing in an attempt to console the crying children, and Bryant ordered her to stop. Risner subsequently directed Mr. Lillelid to a secluded road and ordered him to stop the van. Once outside the van, all four members of the Lillelid family were shot multiple times. ... As Risner drove Howell and her co-defendants from the scene, the van struck one or more of the victims. ... Here, Howell Appeals To 6thCir:COURT DECISION
03-14: 7thCir: Furry v. U.S. (Postal) ... THE POSTMAN SAID "OH, MY GOD. OH, MY GOD. I AM GOING TO GET FIRED. I HAVE TO GET THIS MAIL DELIVERED OR I'LL BE FIRED." ... David Furry and Diane Nye allege that Ronald Williams, a substitute letter carrier for the United States Postal Service, negligently caused a vehicle collision that resulted in substantial injuries. Furry and Ny. ... ... On the afternoon of May 15, 2007, David Furry, Diane Nye, and their daughter were traveling southbound on Grove Avenue, a one-way street in Berwyn, Illinois. Furry was driving the family's 1978 Ford LTD Country Squire station wagon. It was raining heavily that afternoon and visibility was limited. At the same time, Ronald Williams, a recently hired substitute letter carrier for the United States Postal Service ("USPS"), was sitting in a postal truck that was parallel parked on the right side of Grove Avenue at a slight angle with the front of the truck sticking out. Williams had just visited the home of a friend and, in violation of USPS rules, was away from his designated route. ... As Furry's station wagon passed Williams's postal truck, the two vehicles collided. The quarter panel and bumper on the right rear of Furry's car made contact with the left front bumper of the postal truck. The impact pushed Furry against the driver's side window and Nye forward against her seatbelt. Furry and Nye did not see the postal truck before the impact, nor did they see the collision. ... After the accident, Furry and Nye examined the damage to their station wagon, which suffered minimal damage to the right rear quarter panel and the right side of the rear bumper, which came off its mount. Williams pulled the postal truck away from the curb, drove several car lengths away, parked, and exited the truck. Furry asked Williams to call the police because Furry and Nye did not have cell phones. Williams offered Furry five hundred dollars to not report the accident and to give Williams an opportunity to leave the scene. While Furry searched for straps to lift the station wagon's bumper off the ground, Nye talked to Williams, who said, "Oh, my God. Oh, my God. Oh, this is great. I'm going to get fired. I have to get the rest of this mail delivered. I'm sorry." After Nye asked Williams for his information and told him to call the police, Williams then stated again that he was sorry and said, "Oh, my God. Oh, my God. I am going to get fired. I have to get this mail delivered or I'll be fired." ... Here, Furry Appeals To 7thCir:COURT DECISION
03-13: 4thCir: MacDonald v. Moose ... OH MY GOSH!, OH MY GOODNESS!, OH MY! ... SUCH EXPLICIT LANGUAGE! ... HE ALLEGED THAT SHE SEDUCED HIM, BUT HE WENT TO PRISON. ... In December 2004, William MacDonald filed a report with the Colonial Heights police maintaining that Amanda Johnson had abducted and sexually assaulted him. MacDonald thereafter met with and was interviewed by Detective Stephanie Early. MacDonald advised Early that, sometime in September, Amanda Johnson had paged him and asked that he meet her in the Home Depot parking lot. MacDonald stated that, once they met, he got into Johnson's car and she drove them away. When MacDonald asked Johnson where she was going, she did not respond. ... MacDonald told her, "[T]his has got to stop, lose my number, I'm married, don't call me anymore." ... MacDonald also advised Detective Early that he and Johnson stopped at a location on Canterbury Lane in Colonial Heights, and "at that point Ms. Johnson forcibly ... performed ... against his will." ... Soon thereafter, Detective Stephanie Early met with and interviewed Johnson, who gave a sharply conflicting account of what had occurred. Crediting Johnson's version of the events, Early secured three arrest warrants for William MacDonald. ... Here, MacDonald Appeals To 4thCir: (Caution, Explicit Language) COURT DECISION
03-13: 10thCir: Layton v. County ... MY SICK DADDY DIED IN JAIL BECAUSE THE SHERIFF AND THE COUNTY ACTED WITH DELIBERATE INDIFFERENCE ! ... Charles Holdstock died while being held as a pretrial detainee in Oklahoma County jail. Mr. Holdstock's daughters-April Layton, individually and as the representative of Mr. Holdstock's estate, Valerie Winfrey, and Melanie Hufnagel (together "Appellants")-filed a suit against John Whetsel, Sheriff of Oklahoma County, in his official and individual capacities; the Board of County Commissioners of Oklahoma County (the "County"); and Correctional Healthcare Management of Oklahoma ("CHMO"), the contractor that provided primary medical services to Mr. Holdstock during his detention. ... Appellants alleged violations of Mr. Holdstock's rights ... and violations of Oklahoma law. ... The district court granted summary judgment in favor of Sheriff Whetsel and the County. ... Appellants filed a timely appeal. They challenge the district court's grant of summary judgment to Sheriff Whetsel only with regard to his official capacity and also the court's summary judgment ruling for the County. ... 10thCIR: We REVERSE in part and VACATE in part the district court's grant of summary judgment. Because a reasonable jury could find that Sheriff Whetsel and the County acted with deliberate indifference, we REVERSE the district court's summary judgment ruling on Appellants' § 1983 claims. ... Here, Layton Appeals To 10thCir:COURT DECISION
03-13: 9thCir: Gilstrap v. United ... SHE SUED UNITED AIRLINES, ALLEGING ... A VIOLATION OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT. ... Michelle Gilstrap sued United, alleging several causes of action under California state tort law and a violation of Title III of the Americans with Disabilities Act of 1990 ("ADA"). ... Ms. Gilstrap has difficulty walking because she has a collapsed disc in her back, one replaced knee, another knee that needs replacing, and osteoarthritis. In August 2008, 1 she flew on United from Los Angeles to Calgary, from Calgary to Chicago, 2 and finally from Milwaukee back to Los Angeles (via Denver). Gilstrap again flew on United in December 2009, this time from Burbank, California, to Madison, Wisconsin (via Denver). 3 When booking both sets of flights, Gilstrap requested that United provide her with wheelchair assistance for moving through the airports. ... During both trips, United failed repeatedly to provide Gilstrap with the assistance that she requested. At one airport, Gilstrap located a wheelchair on her own; at other airports she was provided a wheelchair by United only after prolonged insistence and up to 45 minutes of waiting; and at others she was never able to locate a wheelchair at all and had to walk. ... Gilstrap alleges various physical injuries as a result of having to walk, including, after the August 2008 trip, severe pain that was treated with an epidural injection. Gilstrap also alleges that United agents yelled at her, expressed skepticism that she actually needed a wheelchair, and twice directed her to stand in line (which she could not do because of her disabilities). At one point during her travels, a United agent whom she asked for assistance unilaterally rebooked her onto a later flight, telling her that "this was what she got for refusing to stand in line." ... Here, Gilstrap Appeals To 9thCir:COURT DECISION
00-00: VAOIG: WILL VA EVER LEARN? VA Caught Transmitting Sensitive Data, Including Electronic Health Records, SSN, Etc, Using Unencrypted Internet Connections.
We substantiated the allegation ... Office of Information and Technology (OIT) personnel disclosed that VA typically transferred unencrypted sensitive data, such as electronic health records and internal Internet protocol addresses, among certain VA medical centers and Community Based Outpatient Clinics (CBOCs) using an unencrypted telecommunications carrier network.
VAOIG Report
00-00: O'White Home Logic: A Referendum To Allow Gay Marriage Is Constitutional //// A Referendum To Ban Gay Marriage Is Un-Constitutional (O'Constitutional Law Professor)
00-00: Opinion: FOOD IGNORANT PEOPLE. People Get Mad If You You Point Out Their Ignorant Behavior. But Their Ignorant Behavior Continues. Ignorant Is As Ignorant Does ! ((Definition of Ignorant: Lacking knowledge or information as to a particular subject or fact.)) Yesterday I went to a big fat azz grocery store. Eighty percent of the customers in the grocery store were morbidly overweight, no lie, 80%. As I walked around the grocery store, I was struck by the number of grossly overweight people I saw. Fat men, fat women, fat teenagers, fat children. When so many people are so morbidly fat, fat becomes the normal. Morbidly fat women and girls consider themselves to be sexy and desirable; and they are in Fat World. Some of the people were so fat that they walked with extra-effort. Fat stomachs, fat thighs, fat faces. The pull of gravity. The aches and pains of early onset arthritis. The grocery store could have been a poster-child for diabetes, hypertension, high cholesterol, kidney failure, and heart disease. The grocery carts were filled with killer foods and drinks. If you eat fattening foods and drink fattening drinks, will will be fat. Fat bellies in all directions. As I stood in the checkout line, I wondered ... "In the year 2013, who in hell would continue to eat (and feed their children) a high fat, high salt, and high sugar based diet?" Fried chicken, fried fish, fried turkey, fried okra, fried ignorance. Sugars (sugar, white bread, white potatoes, white rice, sweet tea, Coke, Diet Coke, Pepsi, Diet Pepsi, Mountain Dew, Diet Mountain Dew, Etc). DRINK WATER, JUST WATER! Salt is sodium, sea salt is sodium, kosher salt is sodium. When I got home from the fat azz grocery store, The answer hit me. These People Are Food Ignorant. Stop Being So Food Ignorant! Get Food Smart.
03-12: 6thCir: Kuhn v. Washtenaw ... THEY TOTALLY DISCRIMINATED AGAINST ME AND TERMINATED ME AFTER THAT ____ FALSELY ACCUSED ME OF RAPING HER. ... In October 2008, Deputy Eric Kuhn of the Washtenaw County Sheriff's Office stopped Marianne Joseph for a traffic violation. Joseph falsely reported that Kuhn had raped her in connection with the stop. ... An internal investigation that was opened to look into the rape allegation was not closed until January 2009. Several months after the investigation was closed, Kuhn requested medical leave based on stress. Kuhn eventually took approximately seven months of paid and unpaid leave that did not end until he was terminated in January 2010. ... He subsequently filed suit for wrongful termination against both his employer, Washtenaw County, and his superior, Lt. James Anuszkiewicz. ... Against the County only, Kuhn asserted claims for termination without due process of law, violation of Michigan's Whistleblowers' Protection Act and retaliation in violation of Title VII of the Civil Rights Act of 1964. Kuhn asserted a claim against Lt. Anuszkiewicz only for tortious interference with a business expectancy. Against both the County and Lt. Anuszkiewicz, Kuhn asserted claims for racial discrimination and harassment in violation of Title VII, and for racial discrimination and harassment in violation of Michigan's Elliott-Larsen Civil Rights Act. ... The district court granted summary judgment in favor of both defendants on all claims, and Kuhn appeals. ... Here, Kuhn Appeals To 6thCir:COURT DECISION
03-12: FedCir: Howard v. Transportation (FAA) ... FAA TERMINATED HIS TEMPORARY ASSIGNMENT AS A SUPERVISORY AIR TRAFFIC CONTROL SPECIALIST AND TO RETURN HIM TO HIS PERMANENT NON-SUPERVISORY POSITION. ... John Howard appeals the decision of the Merit System Protection Board ("MSPB" or "Board") denying his petition for review and adopting, with modification, the initial decision of an MSPB Administrative Judge. The Administrative Judge affirmed the decision by the Federal Aviation Administration ("FAA") to terminate Mr. Howard's temporary assignment as a Supervisory Air Traffic Control Specialist ("SATC") and to return him to his permanent position as a facility Air Traffic Control Specialist ("ATCS"). ... ... ... The crux of this dispute lies in whether Mr. Howard engaged in protected whistleblowing activity pursuant to the Whistleblower Protection Act ("WPA"), 5 U.S.C. § 2302, and was demoted from SATC to ATCS by the FAA in retaliation as a result. ... Mr. Howard alleges that in November 2007, he engaged in protected activities that included reporting the misconduct of another air traffic controller to his supervisor. ... In December 2007, Mr. Howard was offered a tentative job promotion to SATC. In January 2008, Mr. Howard was promoted to the SATC position "effective February 3, 2008, for a term not to exceed (NTE) February 1, 2010, with a remark as follows: Temporary promotion may be terminated sooner depending on agency needs." ... Also in December 2007, Mr. Howard was reprimanded for making inappropriate statements to a fellow employee. The reprimand was later reduced to an admonishment. In June and July of 2008, Mr. Howard was moved to a different team and was told he would receive closer oversight by his supervisory in response to his making inappropriate comments to female subordinates. This later incident was investigated by the Accountability Board. ... In May 2009, Mr. Howard was terminated from his SATC position and returned to his ATCS position. ... Here, Howard Appeals To FedCir:COURT DECISION
03-12: 4thCir: Volochayev v. Sebelius ... HE ALLEGES NATIONAL INSTITUTE OF HEALTH ("NIH") DISCRIMINATED AGAINST HIM ON THE BASIS OF NATIONAL ORIGIN AND RETALIATION FOR EEO ACTIVITY. ... Sergei Volochayev filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging his employer's discrimination on the basis of national origin and retaliation for engaging in protected activity. He now appeals from a district court order granting summary judgment to his employer, Kathleen Sebelius, Secretary of the United States Department of Health and Human Services ("HHS"). That decision followed a ruling by an Equal Employment Opportunity Commission ("EEOC") Administrative Judge ("AJ"), who similarly found that Volochayev had failed to establish a Title VII violation. Likewise, we conclude that Volochayev cannot make out a prima facie case on either of his claims, and therefore affirm the judgment of the district court. ... Volochayev is a male of Russian descent who was employed as a Research Nurse in the Intensive Care Unit ("ICU") of the National Institute of Health ("NIH") Clinical Center from April 2006 until April 2008. Volochayev was removed from his position after an incident prompted ICU Nurse Manager Deborah Kolakowski to order an investigation into his documentation records, revealing a multitude of errors. ... The events prompting the investigation took place between September 29 and October 1, 2007, when Volochayev was working the night shift and caring for "Patient X," who was under orders to receive a continuous intravenous ("IV") drip of Fentanyl, a powerful controlled narcotic. Over the course of Volochayev's two consecutive night shifts, six separate IV bags containing Patient X's Fentanyl ran dry much more quickly than they were supposed to. Volochayev replaced the depleted bags with new ones and did not promptly report the problem. When he did finally alert his charge nurse, inspections revealed no problems with either the patient or the IV pump, and the pharmacy confirmed that the bags had contained the correct dose. ... The charge nurse reported the incident to the ICU's Administrative Coordinator, expressing concern that Volochayev had delayed to self-report the matter. ... Here, Volochayev Appeals To 4thCir:COURT DECISION
03-11: DCCir: AFGE v. Eric Shinseki (DVA) ... AFGE WHIPS VA'S AZZ IN A CASE WHERE VA TRIED TO HIDE BEHIND THE "PROFESSIONAL CONDUCT OR COMPETENCE" EXEMPTION, AGAIN. ... The American Federation of Government Employees, AFL-CIO, Local 3669 ("the Union"), asserted unfair labor practice charges against the Department of Veterans Affairs ("VA") on behalf of two nurses at a VA medical center. ... The VA determined that the charges were covered by the nurses' statutory right of "collective bargaining" but that they "ar[ose] out of . . . professional conduct or competence" within the meaning of 38 U.S.C. § 7422(a)-(b). Therefore, the VA decided that the charges were excluded from review by the Federal Labor Relations Authority ("FLRA"). ... The Union brought suit, alleging that the VA misread its statutory authority. The district court granted summary judgment in the Union's favor, and the VA appeals. ... Because we agree with the district court that the VA's decision erroneously interpreted its statutory authority, we affirm. ... Here, DVA Appeals To DcCir:COURT DECISION
03-11: D.C.App: Jackson v. UnitedStates ... HE ARGUES THAT THE FACT THAT HE WAS BRIEFLY OBSERVED "JUST SITTING" IN THE CAR, NEAR THE DRUGS, IS NOT ENOUGH TO ESTABLISH HIS CONSTRUCTIVE POSSESSION OF THE DRUGS BEYOND A REASONABLE DOUBT. ... Appellant David Jackson challenges his conviction for possession with intent to distribute a controlled substance (marijuana) under D.C. Code § 48-904.01 (a)(1) (2001 & Supp. 2011). ... The drugs in question were discovered in a closed cooler on the floorboard behind the driver's seat of Mr. Jackson's co-defendant's car. When the police arrived at the scene, Mr. Jackson was seated in the backseat of the car on the passenger's side. ... Mr. Jackson argues that the fact that he was briefly observed "just sitting" in the car, near the drugs, is not enough to establish his constructive possession of the drugs beyond a reasonable doubt. ... ... ... Mr. Jackson initially came to the attention of the police on the afternoon of June 16, 2011, the date of the charged offense, because his co-defendant, Charles Winfield, was on the street, drinking a beer. Metropolitan Police Officer Stephen Stanford testified that, when he drove onto the 5100 block of Bass Place Southeast, he noticed Mr. Winfield, who was standing with "a young lady." Officer Stanford exited his car and, after confirming that Mr. Winfield was holding an open container of alcohol, called his partner, Officer Jason Newman, who was driving in a separate vehicle, for assistance. ... At that point, Officer Stanford "looked across the street and saw a Dodge Magnum . . . that was occupied by someone in the rear seat ." ... This person was "not doing anything illegal"; he was "just sitting." Officer Stanford asked Mr. Winfield if the Dodge Magnum was his, "because it was running and [Mr. Winfield] was not too far from it." Mr. Winfield acknowledged ownership and gave his consent to Officer Stanford to search the car. Meanwhile, Officer Newman arrived and went to speak to the person in the car, Mr. Jackson. ... ... Here, Jackson Appeals To D.C.App:COURT DECISION
03-11: 7thCir: Vaughn v. Vilsack (Agriculture) ... TWO SEEMINGLY UNRELATED SERIES OF EVENTS INTERSECT TO FORM THE BASIS OF THIS PRESENT ACTION. ... Gary Vaughn started working for the United States Forest Service, an agency within the USDA, in 1974. At all relevant times, except when on temporary detail, he held the title of Career Development Specialist, a GS-9 position, and was assigned primarily to a facility in Golconda, Illinois. That facility is a Job Corps training center that the Forest Service operates for the Department of Labor. ... This case involves two seemingly unrelated series of events in Mr. Vaughn's employment history that intersected to form the basis of the present action. ... The first course of events involves a series of earlier employment discrimination complaints filed by Mr. Vaughn. Most were internal complaints with his agency's Equal Employment Opportunity ("EEO") counselor. In these complaints, he accused the Forest Service of discrimination based on race and age, and of retaliation for exercising his right to bring such complaints. The 2005 complaint progressed to an action in the district court. ... Mr. Vaughn and the USDA eventually settled all of those matters, including the litigation in the district court, in which he signed a settlement agreement on September 11, 2007. Two days later, he received a "letter of direction" from David Floyd, the director of the Golconda Job Corps Center (the "Center"). That communication informed Mr. Vaughn of a change in his work schedule. He would no longer work regular weekday hours. Instead, he would work Wednesday through Friday from 3:30 p.m. to midnight, and Saturday and Sunday from 8:00 a.m. to 4:30 p.m. Since receiving the letter of direction, Mr. Vaughn also has been passed over for a temporary assignment (what the parties call a "rotation" or "detail") to cover for a GS-11 employee on extended leave. At the Center, details for temporary positions typically are advertised and then held by the selected employee for no more than 120 days. The particular temporary position that Mr. Vaughn sought never was advertised, and his two co-workers who were selected each held the higher-paying job for longer than 120 days. Mr. Vaughn submitted three requests for this detail and, after the third request, was told that he might be considered in the future. ... During the same period, Mr. Vaughn was denied overtime opportunities. Director Floyd initially told Mr. Vaughn in March 2008 that management's confusion about the terms of his union contract explained the lack of overtime. In September 2008, however, the Forest Service transferred Mr. Vaughn to a different, newly created department, which removed him entirely from the overtime rotation. ... While the events that we just described were unfolding, a different series of events, parallel in its chronology, also was occurring and eventually intersected with those just described. ... ... Here, Vaughn Appeals To 7thCir:COURT DECISION
00-00: Opinion: THE BIGGEST CYBER HACKERS IN THE UNITED STATES: = China ..... THE BIGGEST CYBER HACKERS IN THE WORLD: = The United States
00-00: News: WHITNEY HOUSTON'S FBI FILES RELEASED. The FBI Released More Than 100 Pages Of Documents Related To Whitney Houston, Including Attemps To Extort Money. Scribd
03-08: 7thCir: Stayart v. Google ... SHE IS SUING GOOGLE BECAUSE A SEARCH FOR HER NAME LEADS TO WEBSITES ADVERTISING DRUGS TO TREAT MALE ERECTILE DYSFUNCTION. ... Dissatisfied with the results of internet searches for her name, Beverly Stayart has launched a legal campaign against internet search engines. In this, her third lawsuit, she contends that Google is in violation of Wisconsin misappropriation laws because a search for "bev stayart" may lead to a search for "bev stayart levitra," which in turn may lead to websites advertising drugs to treat male erectile dysfunction. The district court dismissed her lawsuit for failure to state a plausible claim for relief and she appeals. ... However, Stayart has not articulated a set of facts that can plausibly lead to relief under Wisconsin's misappropriation laws because the use she alleges falls within two exceptions: public interest and incidental use. First, Stayart made the challenged search phrase "bev stayart levitra" a matter of public interest by suing Yahoo! over it in 2010. And as a matter of public interest, that phrase cannot serve as the basis of a misappropriation suit. In addition, Stayart has not pled any facts showing a substantial connection between Google's use of her name and its efforts to generate advertising revenues, triggering the incidental-use exception to Wisconsin's misappropriation laws. ... Here, Stayart Appeals To 7thCir:COURT DECISION
03-08: Mich. App: Prins v. Michigan ... WE BRAG ABOUT HOW WE ARE FREE, JUST AND DEMOCRATIC - BUT SOMETIMES IT FEELS LIKE WE ARE NOT ... On May 4, 2008, Michigan State Police trooper James Yeager stopped a vehicle driven by plaintiff Nancy Prins. Trooper Yeager issued Prins's passenger, Jack Elliott, a citation for not wearing a seat belt. In a letter dated July 22, 2008, Prins submitted a FOIA request to the state police seeking, among other things, "[a]ny recording or other electronic media taken by Trooper James Yeager (officer no 987) on May 4th, 2008 between the hours of 10:00 am to 12:00 p.m. of me while traveling upon Morrison Lake Rd. and Grand River Rd., within Boston Twp., Ionia County, Michigan." In a letter dated July 26, 2008, a Saturday, the state police denied Prins's request, explaining, "Any in car video that may have existed is no longer available. Only kept 30 days [and] reused." The envelope enclosing the letter to Prins bore a postmark of July 29, 2008, a Tuesday. On October 29, 2008, Elliott appeared at a hearing to contest his seat belt citation, and the prosecutor produced the videotape depicting the May 4, 2008, traffic stop. On January 26, 2009, Prins filed in the Ionia Circuit Court a complaint seeking damages for defendants' violation of the FOIA. The state police moved for summary disposition on the ground that the applicable period of limitation, MCL 15.240(1)(b), barred Prins's FOIA action. The state police asserted that the 180-day period began to run on July 26, 2008, the date the police authored the denial letter, and that Prins untimely filed her complaint 184 days later. Prins countered that the act of mailing the denial letter triggered the 180-day time limit, rendering her complaint timely. In a bench opinion, the circuit court granted defendants summary disposition. ... Here, Prins Appeals To Mich. App:COURT DECISION
03-07: 2ndCir: McMillan v. NewYork ... WHERE DO THEY FIND THESE BLEEDING-HEART LIBERAL CLOWN JUDGES ? ... One of the central goals of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., is to ensure that, if reasonably practicable, individuals are able to obtain and maintain employment without regard to whether they have a disability. To accomplish this goal, the ADA requires that employers provide reasonable accommodations to qualified individuals. See id. § 12112(b)(5). This case highlights the importance of conducting a fact-specific analysis in ADA claims. ... It is undisputed that Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day. In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff's inability to arrive on time would result in his failure to establish a fundamental element of a prima facie case of employment discrimination. But if we draw all reasonable inferences in McMillan's favor-as we must at summary judgment-it is not evident that a timely arrival at work is an essential function of McMillan's job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job. ... Here, McMillan Appeals To 2ndCir:COURT DECISION
03-07: 3rdCir: Eldridge v. Norristown ... WAS HER TERMINATION THE RESULT OF DISPARATE TREATMENT AND RETALIATION ? ... In May 2010, Caroline Eldridge filed a complaint in the United States District Court for the Eastern District of Pennsylvania against her former employer, the Municipality of Norristown, alleging that her termination was the result of disparate treatment and retaliation in violation of, inter alia, Title VII of the Civil Rights Act of 1964 ... Norristown moved for summary judgment, asserting that Eldridge's termination was the result of her substandard performance. In November 2011, the District Court granted Norristown's motion on Eldridge's retaliation claims, but permitted her disparate treatment claims to go forward. Following a jury trial in June 2012, judgment was entered in Norristown's favor on the disparate treatment claims as well. Eldridge, proceeding pro se, now seeks review of the District Court's order granting summary judgment to Norristown on her retaliation claims. ... Here, Eldridge Appeals To 3rdCir:COURT DECISION
03-07: 5thCir: Assariathu v. Lone Star ... THEY TERMINATED 15 RESPIRATORY THERAPISTS INCLUDING TWELVE ASIANS, ONE BLACK, AND THREE WHITES. ... Eight respiratory therapists of Indian national origin appeal a summary judgment dismissing their employment-discrimination and retaliation claims against former employer Lone Star Health Management Associates, L.P., doing business as Dallas Regional Medical Center ("DRMC"), and DRMC's parent, Health Management Associates, Inc. ("HMA"). ... In 2008, DRMC hired Christiaan Evans to head its respiratory department. In mid-2009, Evans and DRMC human resources director Alayne Sewick developed a proposal, to restructure the department, that was reviewed and approved by HMA human resources director Linda Herriage. As part of the restructuring, which was announced to department members in November 2009, all respiratory therapists were required to re-interview for their jobs. ... Evans and Sewick devised ten interview questions that Evans asked each therapist. The first nine were scored on a scale of 1 to 5 and were designed to test one of the following characteristics: overall attitude (four questions), abilities (three), knowledge (one), and skills (one). An "extra credit" question, worth three points and intended to assess knowledge, skills, and abilities, asked, "What do you bring as an employee to DRMC?" ... Evans took notes while conducting the interviews. Sewick and Evans subsequently awarded each employee a composite scored based on Evans's notes, Evans's recollections of the interviews, and some extrinsic evidence, including performance appraisals. The maximum score was 48, and DRMC terminated all fifteen therapists including seven of eight plaintiffs who scored below 24. Plaintiff Kurian Joseph scored above 24 but was also terminated; he had received a corrective counseling in the previous year.1 In total, sixteen of DRMC's thirty-two respiratory therapists were fired: Twelve were Asian, one was black, and three were white. Of the sixteen remaining, seven were Asian, two were black, and seven were white. Between January and June 2010, DRMC hired ten new therapists, seven of whom were white. ... Before his termination in December 2009, A. Assariathu anonymously called the DRMC compliance hotline and accused Evans of racial discrimination against Indian employees, including in the restructuring process. Herriage assigned Sewick to investigate the complaint despite Sewick's integral role in the restructuring. In the course of her investigation, Sewick interviewed several respiratory therapists, including plaintiffs A. Assariathu, Thomas Thomas, and Radhadevi Pillai ("R. Pillai"). Sewick also asked Evans, who was unaware of the complaint against him, to provide data on his hiring practices since taking over the department. After completing her investigation, Sewick determined that the restructuring was not discriminatory and that Evans had not otherwise engaged in discrimination. ... After being fired, the plaintiffs commenced Equal Employment Opportunity Commission proceedings against DRMC, then sued DRMC and HMA. ... Here, Assariathu Appeals To 5thCir:COURT DECISION
03-06: 8thCir: Butler v. Crittenden ... SHE ALLEGES UNLAWFUL SUSPENSION AND DISCHARGE, SEX DISCRIMINATION, RETALIATION, VIOLATION OF HER PROCEDURAL AND SUBSTANTIVE DUE PROCESS RIGHTS, AND CIVIL CONSPIRACY. ... Tabby Butler is an African American woman who worked as a deputy jailer in the Crittenden County jail from 2000. ... Butler was hired in December 2000 as a deputy jailer at the Crittenden County jail to guard both juvenile and adult inmates. Beginning in 2008 Butler received several disciplinary warnings. A March 2008 memorandum charged her with being tardy a total of nine times since February of that year and informed her that there would "be no future warnings concerning this tardy issue." ... Rodney Strong became Butler's supervisor in August 2008. According to Butler, Strong began harassing her by "asking [her] to go on dates," "trying to give [her] money," and "invit[ing] [her] to his house for dinner." Butler estimated that Strong invited her out between thirty and forty times. ... Tabby Butler was terminated in 2008. Following her termination Butler filed claims against the county and its officials alleging unlawful suspension and discharge, sex discrimination, retaliation, violation of her procedural and substantive due process rights, and civil conspiracy, citing 42 U.S.C. §§ 1981, 1983, and 1985 and the Civil Rights Act of 1991. She also brought state law claims. Summary judgment was granted to the county and its officials after the district court concluded that Butler had failed to show either race or sex discrimination or civil conspiracy. ... Here, Butler Appeals To 8thCir:COURT DECISION
03-06: MSPB: Washburn v. Air Force ... THE APPELLANT, JESSE M. WASHBURN, RETIRED FROM THE AIR FORCE AT THE RANK OF MAJOR, UNDER HONORABLE CONDITIONS. ... The appellant, Jesse M. Washburn, retired from the Air Force at the rank of Major, under honorable conditions, after 20 years of active service. The appellant subsequently applied for a competitive service GS-0391-13 Telecommunications Specialist position with the Department of the Air Force under merit promotion announcement 9L-STRATCOM-568797-448851-K. The position was to be within the United States Strategic Command (STRATCOM), a Department of Defense (DOD) unified combatant command that includes elements of the Air Force, the Army, the Navy, and the Marine Corps. ... Air Force indicated that it would accept applications from "Air Force Employee[s]" and "[DOD] Transfer (Army, Navy, DFAS, etc. - Excluding Air Force)." ... The Department of the Air Force did not refer the appellant to the selecting official because it determined he was ineligible on the basis that he was not a current DOD employee. It explained that the job announcement was internal and therefore "not open to applicants with a VEOA eligibility." ... The appellant filed a VEOA complaint with the Department of Labor (DOL) challenging the ineligibility determination, but DOL was unable to resolve the dispute. The appellant filed a Board appeal. The administrative judge issued an initial decision finding that Air Force denied the appellant his right to compete and ordering Air Force to reconstruct the selection process. The administrative judge considered Air Force's argument that the announcement was internal because it was limited to the defense agencies whose employees comprise the STRATCOM workforce. ... However, he found that the Department of the Air Force was Air Force for purposes of the selection process and that the location of the position within the command structure of STRATCOM was immaterial. ... Air Force has filed a petition for review of the initial decision in this Veterans Employment Opportunities Act of 1998 (VEOA) appeal in which the administrative judge found that it denied the appellant his right to compete for an appointment in violation of 5 U.S.C. § 3304(f)(1). ... Here, Air Force Appeals The Decision:MSPB DECISION
03-05: CaSupCrt: DeLaCruz v. Cal-Pac ... JURY AWARDED HER OVER TWO MILLION DOLLARS FOR SEXUAL HARASSMENT AND RETALIATION ARISING OUT OF HER EMPLOYMENT. ... Plaintiff Shannen De La Cruz sued defendants, The 101 Casino (Cal-Pac Group), for sexual harassment and retaliation arising out of her employment at The 101 Casino (the casino). ... A jury found in plaintiff's favor and awarded her a total of $15,487 in economic damages, $500,000 in noneconomic damages, and $1,500,000 in punitive damages. The trial court reduced the punitive damage award to $750,000, and awarded plaintiff $1,109,142 in attorney fees. ... In their appeal, defendants contend the trial court erred in admitting the testimony of another worker at the casino, and that the noneconomic damages, punitive damages, and attorney fees awarded were excessive. ... In her cross-appeal, plaintiff challenges the reduction in the punitive damage award. We shall affirm the judgment and orders. ... Here, Cal-Pac Appeals To CaSupCrt:COURT DECISION
03-05: 7thCir: Sanchez v. Prudential ... SHE SUED FOR SEX DISCRIMINATION, SEXUAL HARASSMENT, AND RETALIATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964. ... Plaintiff Juana Sanchez sued defendant Prudential Pizza for sex discrimination, sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964. ... The litigation was heading for trial until Sanchez accepted Prudential Pizza's offer of judgment under Federal Rule of Civil Procedure 68. The district court entered judgment in Sanchez's favor but denied her request for attorney fees and costs in addition to the amount specified in Prudential Pizza's Rule 68 offer. ... Prudential Pizza's offer said that it included "all of Plaintiff's claims for relief" but made no specific men- tion of costs or attorney fees. Based on this language the district court found that the offer was unambiguous and included attorney fees. The legal effect of this wording is the subject of this appeal. We review de novo the district court's determination of the legal effect of the written Rule 68 offer. ... Because the Rule 68 offer was silent as to costs and fees, we con- clude that costs and fees were not included. We there- fore reverse and remand for a determination of rea- sonable costs and fees. ... Here, Sanchez Appeals To 7thCir:COURT DECISION
03-04: MSPB: Evans v. DVA ... HE IS APPEALING THE JUDGE'S DISMISSAL HIS INVOLUNTARY DISABILITY RETIREMENT CLAIM. ... The appellant has filed a petition for review of the initial decision that dismissed his involuntary disability retirement claim for lack of jurisdiction and denied corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) ... The appellant, James G. Evans, a Nurse with the Veterans Health Administration, filed an initial appeal on May 3, 2011, claiming that the agency forced him to take disability retirement on November 23, 2009, by providing misleading information concerning the amount of his disability retirement payments and by creating a hostile work environment. ... He asserted that the agency's actions were discriminatory and in retaliation for prior equal employment opportunity activity. ... The appellant also made an assertion of discrimination under USERRA based on his military service. ... The administrative judge found that the appellant made a nonfrivolous allegation of involuntary disability retirement and held a hearing on the appellant's USERRA and involuntary disability retirement claims. ... After a hearing, the administrative judge dismissed the appellant's involuntary disability retirement claim for lack of jurisdiction and denied corrective action under USERRA. ... Here, Evans Appeals The Decision:MSPB DECISION
03-04: MSPB: Launer v. AirForce ... THIS 10 POINT VETERAN ALLEGES THAT OPM'S TOO LOW RATING COST HIM A JOB. ... The appellant, Steven J. Launer, who alleges that he is a 10-point preference-eligible veteran, applied for a competitive-service Engineering Equipment Operator position with the agency in 2011 under vacancy announcement no. 552153. The agency had multiple slots to fill, and it accepted applications through an automated system administered by the Office of Personnel Management (OPM). ... OPM, which used category rating authorized by 5 U.S.C. § 3319 in lieu of a traditional examination, gave the appellant a score of 89 and placed him in the Well Qualified category of applicants, which included individuals with scores of 80-89. ... Applicants with scores of 90-100 were placed in the Best Qualified category and applicants with scores of 70-79 were placed in the Qualified category. ... OPM then referred 11 candidates deemed Best Qualified to the selecting official. ... The agency selected several candidates, one of whom was not a veteran. ... When one of the candidates deemed Best Qualified declined the position, the agency requested another certificate. The appellant's name was the only one on the second certificate, reflecting his position at the top of the Well Qualified cohort. The agency selected him. ... The appellant filed a complaint with the Department of Labor (DoL) alleging a violation of his veterans' preference rights. DoL conducted an investigation and concluded that there was no violation. ... The appellant then filed this appeal. He alleged, among other things, that he was given a score of 110 when he applied for an Engineering Equipment Operator position in July 2010, so his score of 89 on the 2011 application must have been mistaken. review in this case was filed before that date. Even if we considered the petition under the previous version of the Board's regulations, the outcome would be the same. ... Category ranking may be used when OPM conducts an examination for a competitive-service position or when an agency conducts such an examination under a delegation of authority from OPM. ... In a later submission, made in response to the administrative judge's request that he explain how he was injured by the agency's alleged violation of his veterans' preference rights, the appellant claimed that if he "had been properly scored and categorized" his "expected start date" would have been earlier than it turned out to be. ... The administrative judge issued an initial decision denying corrective action. ... Here, Launer Appeals The Decision:MSPB DECISION
02-28: MSPB: Tullis v. Navy ... CONSTRUCTIVE REMOVAL ... DID NAVY RETALIATE AGAINST HIM AFTER HE INFORMED HIS SUPERVISORS THAT THE AGENCY WAS NOT FOLLOWING TRAVEL REGULATIONS ? ... On October 1, 2009, the appellant, Philip Ware Tullis, a YA-02 Financial Management Analyst in charge of travel, filed a complaint with the Office of Special Counsel (OSC) alleging that the agency retaliated against him by changing his job duties and working conditions and reassigning him after he informed his supervisors that the agency was not following travel regulations, and after he responded to questions from the agency's Inspector General who was conducting an investigation into the appellant's supervisor's activities. ... On November 15, 2009, the appellant resigned. ... Based on the parties' written submissions, the administrative judge dismissed the appeal for lack of jurisdiction. ... The appellant, Philip Ware Tullis, has filed a petition for review in this case asking us to reconsider the initial decision issued by the administrative judge, which dismissed the appellant's individual right of action (IRA) appeal as moot. ... Here, Tullis Appeals The Decision:MSPB DECISION
02-28: 6thCir: Golembiewski v. Logie ... SHE'S ALLEGING THAT THEY VIOLATED HER FIRST AMENDMENT RIGHTS WHEN THEY FIRED HER. ... Joann Golembiewski worked as a secretary for the University of Toledo until her termination in 2009. Golembiewski thereafter brought a 42 U.S.C. § 1983 suit against three University employees-William Logie, Joseph Klep, and Connie Rubin-alleging that they violated her First Amendment rights when they fired her. The defendants moved for summary judgment on qualified-immunity grounds, which the district court granted. This appeal followed. ... Golembiewski's complaint alleged that she was fired because she started a petition to rescind the University's new employee-attendance policy. During oral argument before this court, Golembiewski's counsel agreed that the complaint's allegations were based on that petition, which in turn addressed only the attendance policy. Thus, to prevail on her First Amendment retaliation claim, Golembiewski must prove among other things that the attendance policy was a matter of public concern. ... She cannot do so. ... Speech addresses a matter of public concern when it relates to a "matter of political, social, or other concern to the community." ... The University's employee-attendance policy is not that type of concern. Instead, Golembiewski's petition is better characterized as an "employee grievance concerning internal office policy," which is something that only the employees themselves would be concerned about. ... Golembiewski disputes this conclusion in two ways. ... Here, Golembiewski Appeals To 6thCir:COURT DECISION
02-28: 8thCir: Santiago v. Blair ... A. EXCESSIVE FORCE ...
B. DELIBERATE INDIFFERENCE ... C. RETALIATION ... The facts in this case are heavily disputed. ... In 2008, Santiago was an inmate at the Potosi Correctional Center, in Mineral Point, Missouri. On July 26, 2008, Santiago was scheduled to work kitchen duty but did not report for work, prompting Lieutenant Blair to initiate a search for him. Santiago was discovered in the recreational area and sent to the kitchen to report for duty. When Santiago arrived at the kitchen, Blair told him that he was being sent to administrative segregation for his failure to report to work and ordered him to "strip out." While he was stripping out, Santiago began arguing with Blair. Eventually, Blair approached Santiago with his handcuffs out and told Santiago that he was going to "kick his ass." Santiago assumed a defensive position and told Blair that if he touched him, Santiago was going to "drop him." ... Blair ordered another correctional officer who was present to make a "10-5 call," which indicates that an officer needs assistance. As staff began to respond to the call, Blair persuaded Santiago to submit to being handcuffed. While he was placing the handcuffs on Santiago, Blair said "let me lock the safety, we wouldn't want [the handcuffs] to accidentally tighten on you." Blair then tightened the handcuffs to the "crushing point." ... Correctional Officer Williford, who had responded to the 10-5 call, began leading Santiago to the medical unit, which was standard procedure prior to placing an inmate in administrative segregation. Williford began digging his fingers into Santiago's left arm, prompting Santiago to yell at Williford to stop "manhandling" him. Williford replied, "What are you going to do about it tough guy?" Santiago responded, "I'm not going to let you blow me no more." ... Here, Blair Appeals To 8thCir:COURT DECISION
02-26 : MSPB: McCurn v. Defense ... SHOULD THE BOARD REVERSE THE ARBITRATOR'S DECISION, FIND THAT THE AGENCY DISCRIMINATED AGAINST HIM BASED ON HIS RACE, AND FIND THAT THE PENALTY OF REMOVAL WAS EXCESSIVE AND INCONSISTENT WITH THE DOUGLAS FACTORS ? ... Effective July 11, 2009, the agency removed the appellant from his position as a Materials Examiner and Identifier (Fork Lift Operator) with the Defense Reutilization Marketing Service (DRMS) based on three charges: ... (1) driving onto the Defense Distribution Depot San Joaquin (DDDSJ) military post in a vehicle containing marijuana and a switchblade knife; (2) being absent without leave (AWOL) from March 27, 2009, to April 10, 2009; and (3) testing positive for marijuana on a reasonable suspicion drug test. ... The appellant, Curtis McCurn, challenged the agency's removal action through the negotiated grievance process, and the grievance was ultimately submitted to arbitration by the American Federation of Government Employees, Local 1546. ... Following a hearing, the arbitrator denied the grievance on May 21, 2010, finding, inter alia, that the agency's decision to remove the appellant was for just cause in accordance with the applicable laws and regulations. ... The appellant filed an appeal with MSPB. ... Here, McCurn Appeals The Decision:MSPB DECISION
02-26: 6thCir: Black v. Dixie ... DIXIE AND GEORGIA CLAIMED THAT THEY WERE IMMUNE FROM TORT LIABILITY BECAUSE he HAD ALREADY RECEIVED WORKERS' COMPENSATION FROM HIS DIRECT EMPLOYER. ... On July 11, 2008, Steve Black sustained an injury while working on the premises of a Dixie plant in Bowling Green, Kentucky. Black was a truck driver for Western Express, Inc. (Western), a commercial carrier that had contracted for shipping services with Georgia-Pacific, Dixie's parent corporation, to provide transportation services for Georgia-Pacific and its subsidiaries. Black's work included only the transportation of materials; loading and unloading the materials off the trucks was not one of his job duties. On the day of the injury, Black was transporting a shipment of rolled raw paper material from another Georgia-Pacific subsidiary to Dixie, where it would be used to produce paper plates. While Black was on the loading dock, a Dixie employee operating a fork lift/tow motor ran over Black's left foot, ultimately resulting in a below-the-knee amputation of his leg. ... Following the injury, Black successfully pursued a workers' compensation claim against Western. Subsequently, in October of 2008, Black filed a tort lawsuit against Dixie and GeorgiaPacific. Dixie and Georgia-Pacific denied liability for Black's injuries, and, in the alternative, asserted as a complete affirmative defense the exclusive remedy sections of the Kentucky Workers' Compensation Act (KWCA). Under the KWCA, "a person who contracts with another . . . to have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person" is a "contractor" immune from liability for the injuries incurred by a contracted employee while preforming work-related duties, if the employee is otherwise able to secure workers' compensation benefits from their direct employer. KRS § 342.610(2). Dixie and Georgia-Pacific argue that they are "contractors" within the provisions and definitions of the Act and therefore immune from tort liability with respect to Black's work-related injuries. ... The district court agreed with Dixie and Georgia-Pacific. Specifically, the court held that there was no conflict between the FCMSA and KWCA, such that the FCMSA would preempt a finding that Georgia-Pacific and Dixie were immune from tort liability as "employers" under the KWCA. The court also determined that the carriage agreement between Western and GeorgiaPacific qualified Georgia-Pacific as a "contractor" under the KWCA. ... Here, Black Appeals To 6thCir:COURT DECISION
02-25: MSPB: Schnedar v. Air Force ... DID AIR FORCE VIOLATE ITS INTERNAL REGULATIONS BY PLACING HIM ON INDEFINITE SUSPENSION PRIOR TO THE PSAB'S DECISION ? ... AirForce proposed to remove the appellant, James Schnedar, from a GS-13 Information Technology (IT) position based on Department of the Air Force Central Adjudication Facility (CAF) notification that his security clearance had been revoked. ... After considering the appellant's response to the notice, including his statement that he had an appeal of the CAF notification pending with the Personnel Security Appeals Board (PSAB), the deciding official mitigated the removal to an indefinite suspension that would end when the PSAB made its final determination. ... The appellant appealed the agency's action and the administrative judge affirmed the indefinite suspension ... The appellant has petitioned for review. ... The appellant asserts on review that the agency violated its internal regulations by taking administrative action against him prior to the PSAB's decision on his appeal from the CAF revocation decision.. ... Here, Schnedar Appeals The Decision:MSPB DECISION
02-25: 5thCir: Hernandez v. Johnson (GSA) ... HE COMPLAINS THAT HIS BOSS SOLICITED NEGATIVE FEEDBACK REGARDING HIS WORK ETHICS AND PERFORMANCE IN RETALIATION FOR HIS EEO COMPLAINT. ... Jaime Hernandez began his employment with General Services Administration (GSA) in 1990 and has been employed as a GS-13 Area Property Officer (APO) in San Antonio, Texas, since November 1994. In April 2008, H. Jan Faulkner became Chief of the Property Management Division and Hernandez's first-level supervisor. Faulkner's office was in Denver, Colorado, and she supervised Hernandez, who was stationed in San Antonio as well as three other APOs. Hernandez's territory was Texas and Louisiana. Faulkner remained Hernandez's supervisor until April 2009. ... Hernandez initiated this action by filing suit against GSA in the Western District of Texas. He complains of several actions by Faulkner that he claims were made in retaliation for his activity filing Equal Employment Opportunity claims and in violation of the Privacy Act. Hernandez had filed a prior EEO claim in 2007 that was unsuccessful. Faulkner became aware of this in May 2008 when she asked Hernandez why he needed administrative leave and Hernandez told her that he was testifying in relation to his EEO claim. ... Hernandez complains that a week after Faulkner learned of his 2007 EEO claim, Faulkner sent out "customer surveys" that solicited only negative feedback regarding his work ethics and performance. ... Here, Hernandez Appeals To 5thCir:COURT DECISION
02-22: 6thCir: Spence v. Donahoe (Postal) ... BEFORE RETIRING, HE FILED A FORMAL EEOC COMPLAINT ALLEGING DISCRIMINATION BASED ON AGE, RETALIATION, AND DISABILITY. ... Duane Spence, born in August 1944, began working for the United States Postal Service (USPS) in 1981. In 2004 and 2005, Spence worked as an equipment maintenance mechanic at the Bulk Mail Center in Cincinnati, Ohio (BMC). Spence asserts that while clearing a paper jam on a conveyor belt on October 16, 2004, he felt a momentary sharp pain in his neck, left shoulder, and left arm. Spence continued to work, believing he had not suffered a reportable injury, but on October 28, he awoke with severe pain that increased throughout the day. On November 2, 2004, Spence saw his doctor, Marc Alexander, who restricted Spence from work pending further tests. Spence called his supervisor, Sharon Maggioncalda, and told her about the pain, his doctor's visit, and his need to miss some work. ... On June 26, 2005, Spence slipped and injured his Achilles tendon at work. He told his union representative of the injury as soon as it happened, and the following day, within 24 hours of the injury, Spence reported the injury to supervisor Dan Howard, who had replaced Adkins. Howard sent Spence to the local urgent-care facility, where he was diagnosed with a sprain. He was put on temporary limited duty for seven days. On July 6, Spence was called to a pre-disciplinary hearing by Howard, who accused him of failing to immediately report his injury. Spence considered the hearing to be more harassment, and believed that USPS would continue to search for ways to fire him. Spence retired effective July 31, 2005, citing intolerable conditions at work. ... ... ... On July 19, 2005, before retiring, Spence filed a formal EEOC Complaint in which he checked boxes indicating he was alleging discrimination based on age, retaliation, and disability. He noted, among other things, that he was "harassed" and "intimidated." ... Here, Spence Appeals To 6thCir:COURT DECISION
02-21: 2ndCir: Desardouin v. Rochester ... WHAT CIRCUMSTANCES SUFFICE TO WARRANT A TRIAL OF A GENDER DISCRIMINATION CLAIM BASED ON AN ALLEGATION OF A HOSTILE WORK ENVIRONMENT? ... This appeal concerns the recurring issue of what circumstances suffice to warrant a trial of a gender discrimination claim based on an allegation of a hostile work environment. ... ... ... Jewanta Desardouin and others brought claims of a hostile work environment based on gender and claims of retaliation under Title VII and the NYSHRL. ... The following factual summary, drawn primarily from Jewanta Desardouin's affidavit, is presented, as required for the purposes of a summary judgment ruling, in the light most favorable to the non-moving party. ... Desardouin began her employment with the City as a supervisory security officer in February 1988. She was the only female supervisor in the Security Operations department of the Rochester Police Department. Desardouin reported to McIntyre, her supervisor. ... She alleged that, starting in May 2007, McIntyre made "sexual advances" toward her and one of her co-plaintiffs, Theresa Smith. On a weekly basis, McIntyre told Desardouin that her husband was "not taking care of [her] in bed." ... Here, Desardouin Appeals To 2ndCir:COURT DECISION
02-21: 6thCir: U.S. v. Johnson ... MOTION TO SUPPRESS PHYSICAL EVIDENCE (OF A LOADED WEAPON IN CAR) / IS A STALKING CONVICTION A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT (ACCA)? ... On January 11, 2010, Officer Evon Parks stopped the car driven by Johnson based on a seat-belt law violation. As Officer Parks approached the vehicle, he smelled burnt marijuana and noticed a second license plate sitting on the back seat of the vehicle. Upon questioning Johnson and his female passenger, the passenger admitted she had smoked marijuana in the car a few minutes earlier. ... During the stop, Officer Parks requested Johnson's license and registration and the passenger's identification information. The passenger initially provided Officer Parks with her sister's information rather than her own. Officer Parks left Johnson's vehicle to enter the information he had received into the national database, NCIC. At that point, Johnson gestured to Officer Parks and asked to speak with him away from the vehicle. After Officer Parks agreed, Johnson informed Officer Parks that he knew he would be arrested because a condition of release for a prior conviction required him to stay away from the passenger. Johnson also told Officer Parks that he was a convicted felon and had a loaded gun underneath the passenger seat, but could convince the passenger to claim ownership of the weapon. Once NCIC confirmed that Johnson in fact had a condition of release ordering him to stay away from a person named LuShanda Giles, Officer Parks handcuffed Johnson and placed him in the back of the police vehicle. Officer Parks then asked the passenger to exit the vehicle and, based on the aroma of marijuana in the vehicle, also asked to search her purse. Officer Parks then located the passenger's real identifying information and confirmed that she was LuShanda Giles. He searched the vehicle and recovered the weapon. After Officer Parks conducted the search, NCIC confirmed that Johnson was a convicted felon, and also informed Officer Parks that Johnson had an active warrant for his arrest. ... Michael Johnson appeals the district court's denial of his motion to suppress physical evidence as well as the district court's determination that his Kentucky state stalking conviction is a violent felony under the Armed Career Criminal Act (ACCA). ... Here, Johnson Appeals To 6thCir:COURT DECISION
02-20: MSPB: Mithen v. DVA ... SAINT LOUIS VA MEDICAL CENTER - PHYSICIAN - ADMINISTRATIVE INVESTIGATION - WISTLEBLOWER RETALIATION ??? ... The appellant, Francis A. Mithen, has been a full-time employee at the St. Louis, Missouri Veterans Administration Medical Center (VAMC) and Saint Louis University (SLU), a VAMC affiliate, since July 1, 1983. ... He was the professional supervisor of Neurology (known as either Chief of Neurology or Program Manager of Neurology) at VAMC between July 1994 and April 2011. He performed collateral duties as the VAMC Residency Program Coordinator for Neurology between July 1994 and September 2010. ... In September 2010, SLU Neurology & Psychiatry Chairman Dr. Henry Kaminski wrote letters informing VAMC Chief of Staff Dr. Nathan Ravi and Associate Chief of Staff for Education Dr. Laura Kroupa of medical residents' complaints against the appellant. ... The agency convened an Administrative Investigative Board (AIB) to investigate the complaints. During the AIB investigation, the appellant, at the agency's direction, abstained from his collateral duties as VAMC Residency Program Coordinator for Neurology but continued as Program Manager for Neurology. In its January 24, 2011 report, the AIB concluded as follows: 1) Communications and interactions between the appellant and some residents were generally poor during the SLU rotations at the VAMC; 2) unreasonable expectations of some trainees by the appellant were found in some instances; 3) poor customer service was a concern in some instances; and 4) unprofessional conduct was a concern. ... Here, Mithen Appeals The Decision:MSPB DECISION
02-20: 3rdCir: Araujo v. NJT ... HE REPORTED BEING TRAUMATIZED AFTER WATCHING CO-WORKED DIE FROM VIOLENT ELECTROCUTION, SO HIS MANAGEMENT DISCIPLINED HIM ??? ... The Beaver Construction crew, accompanied by Anthony Araujo, commenced its work at the Third Street area of Track 2. After the crew completed its work, Araujo believed that the construction crew was going to get off of the tracks at the Bathgate Avenue exit ramp, which is past Seventh Street. The two linemen, Picton and Meisner, did not remain with the construction crew, but rather moved to meet the Beaver Construction crew at Bathgate Avenue. Rather than exiting, the Beaver Construction crew foreman, Francis McNeil, asked superintendent Gilman for permission for the crew to stop at Seventh Street to perform minor repairs. ... According to Araujo, who heard the conversation between McNeil and Gilman, Gilman told McNeil that he "had the catenary," meaning that he had signed off on the catenary outage with the linemen. Araujo understood this to mean that the catenary was de-energized at Seventh Street. According to Araujo, linemen in practice communicated catenary outages to a conductor-flagman by relaying the information through a construction crew foreman. Thus, at this time, the construction crew, the foreman, and Araujo were not aware that the catenary outage did not extend to Seventh Street. Araujo was the only NJT employee that was with the construction crew. The construction crew proceeded with repairs, and a construction crew member came in contact with the catenary. He was electrocuted, dying from his injuries, which Araujo witnessed. ... Following the accident, NJT Superintendent Joseph Meade, who was Araujo's manager, questioned Araujo at the site. He also interviewed others, who confirmed that Araujo had not been briefed about the catenary outage. ... Anthony Araujo filed a complaint in the United States District Court for the District of New Jersey alleging that he was disciplined by New Jersey Transit Rail Operations, Inc. ("NJT") in retaliation for his participation in an activity protected by the Federal Rail Safety Act, 49 U.S.C. § 20109 ("FRSA"). Specifically, Araujo reported an emotional injury after he witnessed a fatal accident on February 25, 2008. The District Court (Judge Stanley R. Chesler) found that the discipline was not retaliatory and granted NJT's motion for summary judgment. ... Here, Araujo Appeals To 3rdCir:COURT DECISION
02-19: 7thCir: EEOC v. Autozone ... THE JUDGE RULED AGAINST EEOC. THEN FOR SOME UNKNOWN REASON, HE CHANGED HIS MIND ???, THEN AUTOZONE SUFFERED THE CONSEQUENCES. ... The Equal Employment Opportunity Commission filed this employment discrimination case on behalf of John Shepherd, a former employee of AutoZone, and alleged that AutoZone had violated the Americans with Disabilities Act. Shepherd had a back injury that was aggravated by mopping floors, and he claimed that AutoZone required him to mop the store floors despite his requests for relief. Among other claims, the EEOC alleged that AutoZone had failed to accommodate Shepherd's disability. The magistrate judge, John A. Gorman, hearing this case initially ruled for AutoZone on summary judgment on this accommodation claim. The magistrate judge then reversed that ruling on appeal. On remand, a jury returned a verdict in Shepherd's favor. The magistrate judge then approved $100,000 in compensatory damages, $200,000 in punitive damages, $115,000 in back pay, an injunction on AutoZone's anti-discrimination practices, and the EEOC's motion to vacate a prior award of costs to AutoZone from the first trial. AutoZone appeals the verdict and remedies. ... Here, Autozone Appeals To 7thCir:COURT DECISION
02-19: 3rdCir: Hunter v. Filip (Justice) ... WAS THE BUREAU OF PRISONS WRONG TO FIRE HER FOR HAVING AN AFFAIR WITH AN INMATE UNDER HER CHARGE ? ... The appellant, Marla W. Hunter, began her employment in the Federal Bureau of Prisons (BOP) in 1996. Between 1996 and 2001 she worked at the Federal Correctional Institute (FCI) in Fairton, New Jersey, first as a secretary and then as a maintenance worker supervisor. Her duties included supervising inmates performing maintenance and cleanup tasks. ... Among Hunter's supervisees was an inmate named Michael Giannone. ... In 2004, the investigative report concluded that the allegation that Hunter had engaged in an inappropriate relationship with an inmate was substantiated, notably by Hunter's admission that she authored ten letters containing personal information that had been received by Giannone. ... Warden Charles J. DeRosa subsequently terminated Hunter's employment at FCI Fort Dix. In a Decision Notice announcing Hunter's termination, DeRosa expressed concern that, among other things, Hunter's actions had destroyed her credibility and effectiveness as a correctional worker, had compromised her integrity and neutrality, and had implicated institutional security. ... Here, Hunter Appeals To 3rdCir:COURT DECISION
02-19: MSPB: Paszko v. USPS ... SHE PETITIONS FOR REVIEW OF AN INITIAL DECISION THAT DISMISSED HER REQUEST FOR RESTORATION FOLLOWING HER PARTIAL RECOVERY FROM A COMPENSABLE INJURY. ... The appellant, Elizabeth J. Paszko, suffered a compensable injury in 2002 and thereafter the agency assigned her to limited duty. ... As of April 2010, the appellant worked at her limited duty tasks sorting mail for 6 hours per day. ... On April 27, 2010, pursuant to its National Reassessment Process, the agency discontinued the appellant's assignment and offered her a new limited duty Custodian position for 6 hours per day, although a full 6 hours of work every day was not guaranteed. ... The appellant refused the offer, alleging that the offer was inconsistent with her medical restrictions. ... The agency requested a suitability ruling from the Office of Workers' Compensation Programs (OWCP) and, on May 21, 2010, OWCP found that the offer was unsuitable because it identified no specific work hours and depended on a daily determination as to how many hours of work were available. ... The appellant also saw a referee physician at OWCP's direction. ... The referee physician determined that the job offer was within the appellant's work restrictions with the exception of a few specific tasks. ... OWCP requested that the agency make a new job offer to the appellant consistent with the referee physician's findings. ... On August 11, 2010, the agency made the appellant another offer of 6 hours of modified custodial work that excluded some of the duties set forth in the previous offer which the referee physician said should be eliminated. ... The 6 hours of daily work in this job offer were also conditioned on the agency's daily assessment of work availability. ... The appellant rejected this offer as well, also on the basis that the assignment exceeded her medical restrictions. ... Thereafter, the appellant filed this appeal. ... Here, Paszko Appeals The Decision:MSPB DECISION
00-00: GAO STUDY: Department Of Homeland Security --- Progress Made and Work Remaining after Nearly 10 Years in Operation: From Aviation Security, To Border Security, To Immigration Enforcement, To Emergency Preparedness. Since the Department of Homeland Security (DHS) began operations in 2003, it has implemented key homeland security operations and achieved important goals and milestones in many areas to create and strengthen a foundation to reach its potential. As it continues to mature, however, more work remains for DHS to address gaps and weaknesses in its current operational and implementation efforts, and to strengthen the efficiency and effectiveness of those efforts. In its assessment of DHS's progress and challenges 10 years after the terrorist attacks of September 11, 2001, as well as its more recent work, GAO reported that DHS had, among other things, developed strategic and operational plans across its range of missions; established new, or expanded existing, offices and programs; and developed and issued policies, procedures, and regulations to govern its homeland security operations.
GAO Report
02-15: 2DCA: Christopher Dorner v. LAPD ... BEFORE HE DECIDED TO RESOLVE IT WITH A MAD MURDER SPREE, HE TRIED TO DO IT THE RIGHT WAY !!! ... Appellant Christopher Dorner, an officer with the Los Angeles Police Department (LAPD), made a complaint against his field training officer, Sergeant Teresa Evans, accusing her of kicking a suspect, Christopher Gettler (Gettler). The Los Angeles Police Department Board of Rights (Board) found that appellant's complaint was false and therefore terminated his employment for making false statements. Appellant filed a petition for a writ of administrative mandamus in the superior court pursuant to Code of Civil Procedure section 1094.5, seeking to overturn the decision of the Board. The superior court denied his petition, and he now appeals. ... Here, Dorner Appeals To 2DCA:COURT DECISION
02-15: 10thCir: Ryan v. AirForce ... HE APPEALS THE DISTRICT COURT'S JUDGMENT IN FAVOR OF THE AIR FORCE CONCERNING HIS TERMINATION ... The Air Force first terminated Raymond H. Ryan's employment in 2006. Although the Merit Systems Protection Board (MSPB) rejected Mr. Ryan's claims of disability discrimination and retaliation for whistleblowing, in October 2007 it ordered him reinstated due to a procedural error. ... But Mr. Ryan never reported to Tinker Air Force Base in Oklahoma as ordered, and the Air Force removed him from employment for the second time effective February 15, 2008. This time, in addition to rejecting Mr. Ryan's claims of disability discrimination and retaliation for whistleblowing, the MSPB upheld the removal. ... Ryan appeals the district court's judgment in favor of the Secretary of the Air Force in this lawsuit concerning the Air Force's termination of Mr. Ryan's employment. ... Here, Ryan Appeals To 10thCir:COURT DECISION
02-15: 4thCir: Jeandron v. MarylandRegents ... IS THIS AN EXAMPLE OF SUPER STRIDENT HYPER LIBERAL DISABILITY SYSTEM PIMPING ??? ... Gerald Jeandron is blind and is disabled under the ADA. Jeandron was previously accepted into the University Of Maryland's graduate studies program of the Department of Criminology and Criminal Justice Studies (CCJS). In 2007, he filed an action under the ADA and the Rehabilitation Act alleging discrimination against him by University of Maryland and other named defendants. The parties settled the lawsuit by written agreement entered on June 20, 2007. ... The agreement provided $250,000 to Jeandron for him to purchase and provide all accommodations to assist him in completing his program to obtain a Ph.D. ... The agreement also specified that Jeandron was still subject to all the rules, procedures, and practices of the University of Maryland System, including, but not limited to, time limitations for completing his degree and rules pertaining to satisfactory progress toward his degree. ... After executing the settlement agreement, Jeandron continued to pursue his doctorate at UMCP. Dr. Paternoster served as Jeandron's dissertation advisor. In July 2008, Jeandron attempted to register for Fall 2008 classes but was unable to due to a "financial hold" on his account. Later, but prior to September 8, 2008, Jeandron alleges that he could not register for classes because the University had placed an "academic hold" on his account. On September 10, 2008, Dr. Denise Gottfredson, former graduate director of CCJS at UMCP, emailed Jeandron to confirm that the University had previously dismissed him from the CCJS graduate program. On September 7, 2011, Jeandron filed the subject lawsuit. ... Here, Jeandron Appeals To 4thCir:COURT DECISION
02-15: 11thCir: Forbes v. NorthMiami ... THE REAL REASON THEY FIRED ME WAS BECAUSE OF SOME KIND OF DISCRIMINATION ! ... Plaintiff Kevin Forbes is a Jamaican-born black male. Forbes became a code enforcement officer for the City in 1995. His duties included inspecting properties, investigating complaints of ordinance violations, and preparing reports. In 2007, he received an appointment to the position of Code Administrator. Two years later, the City eliminated his position and its superior office, Code Director. In lieu of these positions, the City created the position of Code Enforcement Manager, which would report directly to the City Manager. Forbes and five other City employees applied for the job, which ultimately went to Alan Graham, a white male. Forbes accepted a "roll back" to his previous position as a code enforcement officer. ... On February 2, 2010, Forbes filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the EEOC Charge), and the Florida Commission on Human Relations (FCHR), alleging racial discrimination based on: first, the City's failure to promote him to Code Enforcement Manager; and second, its failure to "bump" another less-senior employee at the same pay grade in favor of Forbes. Forbes alleges that he told Graham about the EEOC Charge immediately; Graham counters that he did not hear about it until after Forbes's termination. ... Here, Forbes Appeals To 11thCir:COURT DECISION
02-14: C.A.A.F.: U.S. v. Halpin ... IN THE AIR FORCE, ITS SEX, DRUGS, NEAR DEATH EXPERIENCE, MORE SEX, MORE DRUGS, AND SOME MORE SEX !!! ... At the time of the offenses, Appellant was a nineteen-year- old airman basic assigned to Davis-Monthan Air Force Base, Arizona. He was married to CH, but they were separated. On November 25, 2009, Appellant invited CH to the apartment where he was staying during their separation. When she arrived, Appellant had prepared dinner and they enjoyed a romantic evening together. Appellant and CH had sexual intercourse, and then began to argue. The argument escalated and Appellant told CH he wanted a divorce. ... CH became very upset, retrieved a bottle of the anti-depressant Lorazepam from her purse, and proceeded to swallow approximately sixty pills. Appellant watched CH swallow the pills, and told her "[Y]ou're not going to die in my apartment." CH responded that Appellant was "going to watch [her] die." Soon after the overdose, CH was unable to walk and her speech became heavily slurred. Appellant drove CH to her home, carried her inside, and put her to bed, placing his Air Force jacket on top of her before leaving. Appellant returned to his apartment and went to bed without calling for help for CH. ... The next morning a friend discovered CH, learned of the overdose, and called an ambulance. CH was treated in the emergency room and subsequently received five to six days of inpatient mental health treatment. Based on these events, Appellant pled guilty to recklessly endangering CH by taking her to her house and leaving her alone rather than seeking medical attention after observing her attempted suicide. ... On the day CH was admitted to the hospital, Appellant engaged in consensual sex with another airman, A1C Hayden. ... After learning of CH's suicide attempt and Appellant's relationship with A1C Hayden, Appellant's commanding officer issued no contact orders prohibiting Appellant and A1C Hayden from communicating with one another. However, Appellant continued to communicate with, see, and engage in consensual sex with A1C Hayden. ... Here, Halpin Appeals To C.A.A.F.:COURT DECISION
02-14: 7thCir: James v. Hyatt ... AFTER READING THIS CASE, YOU'LL ASK YOURSELF ... "WHY THE HELL DID THIS GUY SUE HIS EMPLOYER FOR FMLA DISCRIMINATION ?" ... Carris James has been continuously employed as a banquet steward at Hyatt, a hotel in downtown Chicago, since 1985. When James applied to Hyatt, he noted on his application that he had a vision problem that is correctable with eyeglasses and magnifying glasses. Hyatt was aware that James was nearsighted and accommodated him by increasing the print size of his work assignments and schedules. ... In March 2007, James was involved in an altercation outside of work and was punched in the eye. James developed a retinal detachment in his left eye in the weeks following the altercation. In April 2007, James underwent corrective surgery and had to miss work in order to recuperate. ... Hyatt's Human Resources Department learned that James' absence was attributable to a medical issue, and provided him with information regarding FMLA leave. As required under the FMLA, Hyatt's policies provide for twelve weeks of job-protected leave for eligible employees. ... James' twelve week FMLA leave ended July 13, 2007. The collective bargaining agreement between his union and Hyatt, however, entitled James to remain on jobp-rotected leave for up to one year from his original absence. On August 2, 2007, James submitted to Hyatt a release from Dr. Scott that stated that James was allowed to return to work on August 5, 2007, with the restriction of being "visually impaired." ... James testified that Hyatt's Human Resources Coordinator told him that he could not return to work with restrictions. James did not return to work on August 5, and then continued to submit paperwork from Dr. Scott representing that James was incapable of working in any capacity. ... On February 17, 2008, James returned to work in the same position, shift, and seniority level as before his leave of absence. James filed suit in 2009, alleging claims of retaliation and interference with his rights under the FMLA and discrimination and retaliation under the ADA. ... Here, James Appeals To 7thCir:COURT DECISION
02-13: FedCir: Barnett v. DVA ... WHEN VA REMOVED THE SUPPLY TECHNICIAN FOR POOR PERFORMANCE, WAS IT LEGIT ? (OR WAS IT ILLEGIT ?) ... Lee Otis Barnett III was employed by the VA as a GS-2005-06 supply technician. His responsibilities included maintain- ing supply inventories, contacting vendors, confirming deliveries, and providing effective customer service. ... Barnett was informed that the four critical elements of his position were: (1) customer service/team relations; (2) requirements analysis/inventory management; (3) budget management and contract compliance; and (4) socioeco- nomic goals. ... In July 2011, the VA placed Barnett on a 90-day performance improvement plan ("PIP"). ... By letter dated January 12, 2012, the VA informed Barnett that it proposed to remove him for unsatisfactory performance because he had failed to improve his perfor- mance in the customer service/team relations critical element. ... Barnett was removed from his position effective March 19, 2012. Barnett appealed to the board, arguing that he had been improperly removed. ... The judge subsequently issued an initial decision sustaining Barnett's removal. ... Here, Barnett Appeals To FedCir:COURT DECISION
02-13: FedCir: Williams v. USPS ... REMOVED FOR 136 HOURS OF AWOL TOTALING 17 DAYS AND 224 HOURS, OR 28 DAYS OF AWOL. ... OR WAS IT FMLA DISCRIMINATION ? ... The Postal Service removed Mr. Ricky Williams from his position for failing to be regular in attendance and for being absent without leave ("AWOL"). The agency charged that, between March 3, and May 20, 2008, Mr. Williams had 136 hours of unscheduled absences totaling 17 days and 224 hours, or 28 days of AWOL. Mr. Williams appealed his removal to the Board. ... Before the Board, Mr. Williams did not dispute that he was absent from work on the dates identified and for the number of hours specified by the Postal Service. Rather, he argued that he had requested leave for his absences and that the absences were covered by the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq. ... He also raised several affirmative defenses: (1) that the agency discriminated against him on the basis of disability; (2) that the agency discriminated against him on the basis of age and gender; and (3) that his removal was in retaliation for his having filed an equal employment opportunity ("EEO") complaint. ... Here, Williams Appeals To FedCir:COURT DECISION
02-13: FedCir: Beyers v. STATE ... REVERSAL ... WAS HE REALLY UNSUITABLE FOR FEDERAL EMPLOYMENT BASED ON PRIOR MISCONDUCT AND A LACK OF FINANCIAL RESPONSIBILITY ? ... Beyers applied for a position in the Foreign Service as a Diplomatic Security Engineering Officer at the U.S. State Department. Based on an initial review of his application, Beyers received a conditional offer of employment in a letter dated August 18, 2009. This letter informed Beyers that the offer was "contingent upon [his] satisfactory completion of . . . security, medical, and suitability clearance processes." J.A. 20. Though Beyers successfully completed the security and medical clearances, he failed the suitability determination, and his candidacy was "terminated by decision of the [Foreign Service's] Final Review Panel" on November 30, 2010. J.A. 25. The panel found that Beyers was unsuitable for employment based on, inter alia, prior misconduct in employment and a lack of financial responsibility. An appeals committee upheld the Final Review Panel's decision on March 9, 2011. Because Beyers was deemed unsuitable, he was never placed on a rankordered list of eligible candidates or given additional points based on his status as a preference-eligible veteran. ... Here, Beyers Appeals To FedCir:COURT DECISION
02-12: 10thCir: Conroy v. Vilsack (Agriculture) ... DID THE FOREST SERVICE SERVICE DISCRIMINATE AGAINST HER FOR FILING PRIOR EEO COMPLAINTS ? ... Ms. Laura Conroy began her employment with the United States Forest Service as a GS-9 "Computer Programmer Analyst" and, by 1995, had progressed to a GS-12 "Computer Specialist." As part of her job description, she served as a programming and technical expert for certain database systems and as the regional coordinator for a Forest Service database known as "INFRA." ... In spring 2001, Forest Service management advertised an opening for a new position called "INFRA Program Manager." ... After evaluating the four candidates, the panel recommended Mr. Daniel Hager for the position. The selecting official, Chris Pyron, followed the recommendation and hired Mr. Hager. ... Shortly thereafter, in March 2002, Ms. Conroy filed a formal grievance with the agency, alleging age and sex discrimination. ... In 2003, Mr. Hager left the INFRA Program Manager position, and the position was readvertised in February 2004. ... Although Ms. Conroy applied again, she was deemed not qualified, and management ultimately selected Andrea Gehrke. ... Ms. Conroy filed a second formal grievance, alleging retaliation against her for filing the first grievance. ... After exhausting administrative remedies, Ms. Conroy filed suit in federal district court. ... The Forest Service later moved for summary judgment. ... The district court granted the Forest Service's motion in March 2011. ... Here, Conroy Appeals To 10thCir:COURT DECISION
02-12: 11thCir: Basel v. Defense ... IN TERMINATING HIM, DID NAVY DISCRIMINATE ON THE BASIS OF HIS SEX AND RETALIATE AGAINST HIM ? ... Craig Basel appeals the district court's grant of the United States Secretary of the Navy's ("Navy") motion to dismiss his complaint under Title VII, 42 U.S.C. § 2000e-16(a), for failing to exhaust his administrative remedies. Basel alleged that he filed a November 16, 2009, letter with the Navy's Equal Employment Opportunity ("EEO") Specialist in which Basel complained of harassment and a hostile work-environment, and that the Navy failed to process or investigate his complaint. Instead, on November 30, 2009, the Navy informed Basel that it would terminate his employment, so Basel raised claims that, in terminating him, the Navy discriminated against him on the basis of his sex, and retaliated against him for filing his letter. On appeal, Basel argues that: (1) he exhausted his administrative remedies because he timely contacted the EEO Specialist through the letter, and he gave the Navy the required 180 days to investigate his claims; (2) the district court had ancillary jurisdiction over his retaliation claim, thereby making exhaustion unnecessary; and (3) even if he failed to exhaust his termination claims, equitable tolling and equitable estoppel excused his failure. ... Here, Basel Appeals To 11thCir:COURT DECISION
02-12: FedCir: Young v. HUD ... THIS CASE STINKS ! IT STINKS FROM EVERY ANGLE !! IT JUST STINKS !!! ... Rayland Young seeks review of the arbitrator's opinion and award, dated August 31, 2011, denying his grievance that challenged his termination.
Mr. Rayland Young served as a Public Housing Revitalization Specialist in the Office of Public Housing in the Cleveland, Ohio office of the Department of Housing and Urban Development (HUD). He had been employed by HUD for more than ten years. On August 31, 2010, Mr. Young was representing himself at an arbitration hearing, appealing his five-day suspension for disruptive behavior, misrepresentation of authority, and use of insulting language to and about other employees. One of the witnesses testifying against him was Gregory Darr, the Executive Director of the Coschocton Metropolitan Housing Authority and a HUD client.
Following Mr. Darr's testimony, there was a recess in the proceeding. According to Mr. Darr, while he was walking down the hallway, about 25-30 feet away from Mr. Young, Mr. Young shouted from immediately outside the door of the hearing room, "[y]ou are a racist. You are a member of the KKK, and you should be shot." Mr. Darr reported that he was shaken by the alleged incident, and he immediately relayed the events to an administrative officer, Reishmemah Haggins, and to the office manager, Doug Shelby. Mr. Darr also insisted on filing a statement with the Federal Protective Service. Mr. Darr did not identify any person who directly witnessed the alleged confrontation. In the days that followed the incident, distress within the office grew as word of the supposed confrontation spread. On September 3, 2010, Mr. Young was placed on administrative leave.
Shawn Sweet, Director of the Cleveland Hub Office of Public Housing prepared a proposal for disciplinary action to be taken against Mr. Young. Ms. Sweet determined that Mr. Young's conduct was similar to Offense Five from the HUD Handbook No. 0752, "[r]ude boisterous, or disruptive conduct; use of insulting, abusive or offensive language to or about other employees," but bordered on Offense Six, "[t]hreatening behavior." His threatening behavior was her key concern in recommending Mr. Young's termination. But the reason Ms. Sweet gave for the punishment she recommended was that he "[made] an aggressive or intimidating statement to an Agency witness at an arbitration hearing."
Once Ms. Sweet issued her notice of proposed remov- al, Unabyrd Wadhams, Regional Public Housing Director, became the deciding official. Ms. Wadhams reviewed the proposal as well as the notes and supporting documents. She also interviewed several relevant witnesses, including Mr. Darr, Mr. Shelby, Ms. Haggins, and Jimmy Davis. Notably, Ms. Wadhams conducted all of her interviews after Mr. Young submitted his oral and written statements. This meant that Mr. Young was unaware of the content and substance of the interviews and was unable to respond to anything unearthed during those interviews.
Ms. Wadhams found Mr. Darr's account of the inci- dent credible, but its only support came from other individuals who relied on what Mr. Darr had told them about the incident. No witnesses testified that they either saw or heard Mr. Young yell or shout at Mr. Darr. In contrast, Mr. Davis, a HUD employee assisting Mr. Young in the arbitration, submitted an affidavit on behalf of Mr. Young in which he stated, "I was with Mr. Young the entire time during this break. He never approached Mr. Darr and did not make any intimidating or aggressive statements to him. As a matter of fact he never said anything to Mr. Darr." During an interview held after Mr. Young made his submissions, Mr. Davis also testified that Mr. Young was in his view the entire break and that he did not witness Mr. Young scream, threaten, or otherwise interact with Mr. Darr. During the arbitration, HUD stipulated that Thomas Massouras, counsel for HUD at the hearing outside which the incident allegedly occurred, stayed in the hearing room during the entire recess and heard no confrontation or yelling. Consistent with these clear statements, Mr. Young and Mr. Davis maintained that they spent the entire recess outside the hearing room, while Mr. Davis later acknowledged in his interview that the two went to his cubicle during the recess and that he checked email and attended to other matters. Ms. Wadhams determined that this discrepancy wholly undermined Mr. Davis' credibility as a witness and, as a result, Ms. Wadhams determined that Mr. Young engaged in the conduct described in Ms. Sweet's proposal for removal. Mr. Young was never apprised of these supposed inconsistencies, nor did he have a chance to respond to them because the interview only occurred after Mr. Young had fully been heard.
In sustaining the recommendation to remove Mr. Young, Ms. Wadhams explained that she considered this as his second offense (the first being the conduct that gave rise to the five-day suspension). She viewed Mr. Young's conduct as a very serious threat, and one that was particularly egregious because he directed it at a HUD client. She also explained that the language Mr. Young allegedly used was similar to language he allegedly used on other occasions, including the incident that gave rise to the prior appeal, so she treated those past incidents as evidence of a pattern of misconduct. On the basis of these considerations, Ms. Wadhams concluded that removal was the appropriate measure.
Following Ms. Wadhams' decision, Mr. Young arbitrated his grievance before Marvin J. Feldman. The arbitrator found Mr. Darr's testimony credible while Mr. Davis' testimony was inconsistent and lacking in candor. As for the proposed penalty, the arbitrator also noted that this was Mr. Young's second offense. But when discussing the first incident, the arbitrator described it as "nothing more than the predecessor of the activity involving the instant matter." Finally, regarding Mr. Young's due process arguments, the arbitrator found them unfounded because he had been given adequate time at the end of his arbitration hearing to address them. The arbitrator found the charge against Mr. Young supported by preponderant evidence and denied the grievance. Following the arbitrator's decision, Mr. Young appealed to this court. ... Here, Young Appeals To FedCir:COURT DECISION
00-00: NYT: DEAR MEN: Before You Get Romantic With The New Woman, Get Her Credit Score ! ... Low Credit Score Is New S.T.D.Daily Mail
00-00: Opinion: CALL A BIGOT A BIGOT: First Bigotress Went To Chicago Funeral, Because It Was A Girl This Time. (A Bigot Is As A Bigot Does) Shame !!!
00-00: Tech: Finally, The Official Microsoft Surface Pro Tablet Reviews: ....
Engadget ....
The Verge ....
Joanna Stern
00-00: Tech: Surface Pro First-Impressions Review By Joe Wilcox: .... Surface Pro is magnificent. A classic. It's the Windows experience you longed for but were denied. The tablet is a reference design for what -- and what not -- Microsoft OEM partners should achieve. The device is the past and future, pure personal computer and post-PC. Simply put: Surface Pro is jack of all trades, both master of many, and (gulp) none. Capabilities astound, yet quirks abound. But even they are endearing, giving Windows 8 Pro personality and dimension. .... Surface Pro is a luxury car, a classic sportster with defined lines and metal exterior. By comparison, my ARM Chromebook looks and feels like a fiber-glass Ford. Better: Yugo to Aston Martin. There's something Euro-car about the smoky exterior and boxy, slanted sides. Surface Pro's handsome, rugged design is a Siren's call to the hands. To touch, to feel, to caress. .... BetaNews
02-11: MSPB: Durr v. DVA (Bay Pines) ... WAS IT REPRISAL FOR WHISTLEBLOWING WHEN VA DELAYED CONVERTING THE PHYSICIAN'S TEMPORARY APPOINTMENT TO PERMANENT ? ... The appellant, a Physician at the Bay Pines, Florida Veterans Administration Healthcare System, filed a Board appeal asserting that, in reprisal for whistleblowing, the agency delayed converting his temporary appointment to a permanent appointment. The appellant alleged that, if the agency had not unreasonably delayed his conversion until November 12, 2006, his subsequent termination from the agency on November 7, 2008, would not have been a probationary termination, but instead would have been a termination of an employee who had earned pre-termination procedural rights and post-termination appeal rights to the Board. ... After finding that the Board had jurisdiction over the appeal and holding a hearing, the administrative judge denied the appellant's request for corrective action. ... The appellant has petitioned for review of an initial decision that denied his request for corrective action in this individual right of action (IRA) appeal. ... Here, Durr Appeals The Decision:MSPB DECISION
02-11: MSPB: Martin v. OPM ... YOU MUST REPAY $18,692 IN OVERPAID RETIREMENT BENEFITS ! ... PLEASE FEEL SORRY FOR ME AND GIVE ME A SPECIAL BREAK. ... The appellant, Harolean Norris Martin, has filed a petition for review of the initial decision that dismissed her appeal for lack of jurisdiction. ... In an initial decision dated November 5, 2004, the Office of Personnel Management (OPM) notified the appellant, Harolean Norris Martin, of its determination that she had been overpaid $18,692.64 as a result of her concurrent receipt of civil service annuity benefits and Office of Workers' Compensation Programs (OWCP) benefits during the period from February 8, 2002, through September 30, 2003. ... OPM informed her that if she did not respond within 30 days, the overpayment would be withheld from her recurring OWCP benefit in 36 installments of $519.24. Id. In her request for reconsideration, dated December 3, 2004, the appellant denied the existence of the overpayment and asserted that it would be a hardship to have her income reduced by $519.24 per month. ... Here, Martin Appeals The Decision:MSPB DECISION (Fixed)
02-11: FedCir: Denney v. OPM ... SINCE I WAS AN INVESTIGATOR FOR THE FBI, YOU SHOULD RECONSIDER AND GIVE ME A SPECIAL BREAK ! ... Sheri Lynn Denney served as a criminal investigator or special FBI agent from 1983 until her retirement in 2008. From 1983 until early 2001, Ms. Denney was eligible for and received "availability pay" under 5 U.S.C. § 5545a. Availability pay is a form of premium pay equal to "25 percent of the rate of basic pay for the position." 5 U.S.C. § 5545a(b), (h)(1). To be eligible for availability pay, a criminal investigator must work at least forty hours per week (full-time) and actually work or be available to work an additional two hours per regular workday. 5 U.S.C. § 5545a(d). Further, both the investigator and her supervisor must annually certify that "the investigator has met, and is expected to meet," these additional work requirements. Beginning February 25, 2001, Ms. Denney began working part-time and was no longer eligible for, and no longer received, availability pay. Although Ms. Denney worked full-time from May 20, 2001 to August 26, 2001, she was not eligible for and did not receive availability pay at any time after February 25, 2001. Ms. Denney retired on December 31, 2008. ... Sheri Lynn Denney appeals from the decision of the Merit Systems Protection Board (Board) sustaining the Office of Personnel Management's (OPM) determination that "availability pay" should not be included in the calculation of Ms. Denney's retirement annuity. ... Here, Denney Appeals To FedCir:COURT DECISION
02-08: FedCir: Cooper v. DVA ... HE DRUNK HIT A COWORKER --- HE NOW APPEALS HIS REMOVAL FROM THE DEPARTMENT OF VETERANS AFFAIRS ("DVA") ... Alexander Cooper appeals the final decision of the Merit Systems Protection Board dismissing his appeal of his removal from his position with the Department of Veterans Affairs ("DVA"). ... Prior to his removal, Mr. Cooper had been employed at the DVA Hudson Valley Health Care System since 1989. He was initially hired as a temporary housekeeping aide. After March 6, 2005, he worked as a pipe fitter for the agency. ... On March 11, 2010, Mr. Cooper became involved in an altercation with a coworker. Ignoring a warning from his supervisor not to escalate the dispute, Mr. Cooper struck the coworker in the face. He subse- quently refused to take a sobriety test, and his supervisor attributed the incident to his "apparent intoxication." ... The DVA decided to remove Mr. Cooper, effective Sep- tember 3, 2010, both for failing to follow instructions and for striking a coworker. He appealed that decision to the Board. ... Here, Cooper Appeals To FedCir:COURT DECISION
02-08: 4thCir: Onusko v. Morgan ... THESE SLIMY SUBPRIME MONEY SUCKING MORTGAGE SNAKES HAVE NO REMORSE ... Pamela Onusko ("Onusko") appeals the district court's grant of summary judgment to JP Morgan Chase Bank, N.A. ("Chase"), on several claims arising from her former employment with Chase. For the reasons set forth within, we affirm the judgment of the district court. ... Pamela Onusko alleges that Chase enticed her away from her then- current employer, Wells Fargo National Bank, N.A. ("Wells Fargo"), with promises that Chase was growing its subprime mortgage division and would hire, promote, and provide Onusko and her sales team with the necessary resources for her to be financially successful. Ultimately, Onusko contends Chase reneged on these promises to her and, as a consequence, owes her damages on the basis of several causes of action. ... Until March 2007, Onusko was employed by Wells Fargo as a subprime mortgage division manager, where she headed a team of 350 employees responsible for over one billion dollars in sales. In the spring of 2006, Jim McCraw ("McCraw"), a former Wells Fargo employee who had left for Chase, began to actively recruit Onusko to come work for Chase. ... On March 15, 2007, Onusko received the unexpected news that Wells Fargo was exiting the subprime sector and, as a result, eliminating her position. She was offered a different position in Wells Fargo's traditional mortgage division with a similar compensation structure. After considering the offer for "two seconds," she immediately informed her manager that she would be leaving Wells Fargo to work for Chase. ... Later that day, Onusko telephoned McCraw and informed him that she was now ready to join Chase. McCraw responded that he would need some time to "see what we can put together." Chase made Onusko a formal offer in April 2007. The position it had previously offered was not immediately available, but Chase proposed to make Onusko a regional manager, with the assurance that she would be promoted to divisional manager within a few months. ... Here, Onusko Appeals To 4thCir:COURT DECISION
02-07: FedCir: Moltzen v. Labor ... HE SEEKS REVIEW OF THE FINAL DECISION OF MSPB SUSTAINING HIS REMOVAL FOR UNACCEPTABLE PERFORMANCE. ... David Moltzen seeks review of the final decision of the Merit Systems Protection Board (Board) sustaining his removal from the position of Employee Benefit Security Administration (EBSA) Senior Investigator for unacceptable performance. ... Mr. Moltzen served as a GS-13 Senior Investigator from October 2004 until August 2010, when he was removed for poor performance. As a Senior Investigator, Mr. Moltzen was responsible for initiating, planning, coordinating, and managing "extremely broad, difficult civil and criminal investigations" related to the business, financial, and accounting practices of employee pension and welfare benefit plans. ... Mr. Moltzen's position required "in-depth knowledge" of the Employee Retirement Income Security Act (ERISA). GS-13 Investigators are expected to perform their work independently. ... Mr. Moltzen was required to perform at an "acceptable" level in each of four elements critical to his position. ... Here, Moltzen Appeals To FedCir:COURT DECISION
02-07: 5thCir: Katseanes v. Time ... SHE APPEALS FROM THE DISTRICT COURT'S GRANT OF JUDGMENT ON HER AGE DISCRIMINATION IN EMPLOYMENT ACT ("ADEA") CLAIM. ... Plaintiff-Appellant Kristel Katseanes worked as a "senior account executive" for Time Warner. In that position, she solicited local businesses to create and run commercials. Over time, she had developed a large number of clients, and she regularly generated the highest amount of sales among her peers. ... Time Warner implemented a revised "Performance Management" policy for 2008. It provided that management could take "corrective action" against an employee when (1) an employee's booked-to-budgeted percentage fell between "80-94% for [two] consecutive months and/or when activity levels [were] insufficient to achieve future revenue goals"; (2) an employee's percentage was "not achieved at 80% for one quarter and/or activity levels [were] insufficient to achieve future revenue goals"; or (3) "at management's discretion for other behavioral or performance issues." The policy also contained a five-step "corrective action process" that started with counseling, followed by a verbal warning, a written warning, a "final" written warning, and termination. Managers could resort to any step depending on the circumstances; serial progressive discipline was not required. ... In April 2008, Morgan and Time Warner's regional Human Resources Director issued Katseanes a "final" written warning because she had "failed to maintain consistent activity levels," had "consistently underperformed," and was on track to miss her "second quarter budget" even excluding the Ford account. ... Here, Katseanes Appeals To 5thCir:COURT DECISION
02-06: MSPB: Hall v. Transportation ... DID TRANSPORTATION RETALIATE AGAINST HIM FOR HIS PRIOR EEO ACTIVITY, VIOLATE THE CBA AND/OR COMMIT HARMFUL PROCEDURAL ERROR ? ... The Department of Transportation removed the appellant, Quincy D. Hall, effective September 16, 2011, from his Air Traffic Control Specialist position with the Southwest Region Air Traffic Division, Houston, Texas Intercontinental Tower, for failure to successfully complete the National Air Traffic Technical Training Program (NATTTP), which was a condition of the appellant's continued employment. ... The appellant timely filed a Board appeal of his removal. He alleged, among other things, that the agency retaliated against him for his prior equal employment opportunity (EEO) activity, violated provisions of the collective bargaining agreement (CBA) and/or committed harmful procedural error in failing to reassign him to a lower level facility, and violated his due process rights. ... The appellant did not request a hearing. See IAF, Tab 1. Based on the written record, the administrative judge affirmed the removal action, finding that the agency proved the charge of failure to successfully complete the NATTTP, that a nexus existed between the charge and the efficiency of the service, and that the penalty was reasonable. The appellant has timely filed a petition for review. ... Here, Hall Appeals The Decision:MSPB DECISION
02-06: DcCir: Dyson v. DC ... THE COMPLAINT ALLEGED THAT SHE SUFFERED SEXUAL HARASSMENT DURING THE COURSE OF HER EMPLOYMENT WITH THE FIRE DEPARTMENT. ... Appellant, Shekita Dyson, filed a complaint in the District Court on August 26, 2010, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the District of Columbia Human Rights Act of 1977, D.C. CODE §§ 2-1401.01, et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, against the District of Columbia ("City"). ... The complaint alleged that Appellant had suffered sexual harassment during the course of her employment with the District of Columbia Fire and Emergency Medical Services ("DCFEMS"). On November 1, 2010, as supplemented on May 18, 2011, the City moved to dismiss or, in the alternative, for summary judgment, contending that the Charge filed by Appellant with the Equal Employment Opportunity Commission ("EEOC") was untimely. The District Court granted the City's motion, dismissed Appellant's Title VII claim with prejudice because she had not filed a timely Charge with the EEOC, and declined to exercise supplemental jurisdiction over Appellant's D.C. Human Rights Act claim. ... The District Court also noted that "Plaintiff [had] clarifie[d] that she [was] not asserting an independent cause of action under section 1981a but rather that it [was] referenced in her complaint as part and parcel of her Title VII claim." Id. at 88 n.5. The District judge thus concluded that there were "no 'claims' under [section 1981a] for the Court to dismiss." ... Here, Dyson Appeals To DcCir:COURT DECISION
02-05: 11thCir: Walker v. StJoseph's ... DISCRIMINATORY DEMOTION BASED ON HER RACE AND GENDER AS WELL AS RETALIATION FOR HER FILING WITH THE EEOC ? ... This is an appeal from the grant of summary judgment in favor of St. Joseph's/Candler Health System in a discrimination suit brought by Respiratory Therapist Theresa Walker. Walker alleged a discriminatory demotion based on her race and gender as well as retaliation for her filing with the EEOC. ... Following over a dozen complaints from seven of her team members, Walker, who is African American, was demoted from her position as a "Team Leader" in the Respiratory Therapy Department at St. Joseph's/Candler Hospital. She was demoted by her manager, Harold Oglesby, who is also African American. Oglesby testified that due to the complaints against Walker, he no longer believed that she could successfully lead her team. ... Here, Walker Appeals To 11thCir:COURT DECISION
02-05: 10thCir: Braun v. StPius ... WAS HER TERMINATION AND FAILURE TO INTERVIEW OR HIRE HER FOR A VACANT POSITION AN AGE DISCRIMINATION VIOLATION ? ... Martha Lou Braun was a fifth grade teacher at St. Pius X School (St. Pius). St. Pius is a Catholic school operated by defendant St. Pius X, a Catholic church within defendant St. Pius X Parish of the Roman Catholic Diocese of Tulsa, Oklahoma. Braun is Episcopalian, and she had taught at St. Pius since 1988 under a series of one-year contracts. ... Defendant Matthew Vereecke was the principal of St. Pius. In April 2008, Vereecke recommended to the pastor, Father Michael Knipe, that Braun's contract not be renewed. Knipe approved the recommendation. On April 25, Vereecke informed Braun her contract would not be renewed. According to Braun's testimony, Vereecke told her the school was "going in a new direction" and it was "not about [her.]" ... Braun was 64 years old at the time. Her replacement for the 2008-09 school year, Katie Roberson, was in her twenties, Catholic, and a member of the Parish. Braun was not interviewed or hired for an open position teaching middle-school science at St. Pius for the 2008-09 school year. The school hired Katie Blum for that position. Like Roberson, Blum was in her twenties, Catholic, and a parishioner. ... After filing a charge with the Equal Employment Opportunity Commission (EEOC) and receiving a right-to-sue letter, Braun brought this action. She claimed the nonrenewal of her contract and the failure to interview or hire her for the middle-school science-teacher position violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). ... Here, Braun Appeals To 10thCir:COURT DECISION
02-04: MSPB: SpecialCounsel v. Jackson ... THE OFFICE OF SPECIAL COUNSEL CAN'T ORDER ME TO DO NOTHING ! ... The respondent, Norman Jackson, was employed by the South Carolina Department of Transportation (SCDOT) in connection with programs financed, in whole or in part, by federal funds. The respondent was a candidate in the 2010 primary and general elections for South Carolina's Richland County Council, District 11 (County Council). By letters dated May 18, 2010, and June 11, 2010, the petitioner advised the respondent that his candidacy violated the Hatch Act. Despite the petitioner's admonishments to either withdraw his candidacy or resign from employment with SCDOT, the respondent did neither. ... The respondent, Norman Jackson, has filed a petition for review of an initial decision in which an administrative law judge granted the petitioner's (Office Of Special Counsel) motion for summary adjudication and ordered the South Carolina Department of Transportation (SCDOT) to remove the respondent from his position. ... For the reasons set forth below, we VACATE the initial decision and REMAND the case to the administrative law judge for further adjudication in accordance with this Opinion and Order. ... Here, Norman Jackson Appeals The Decision:MSPB DECISION
02-04: 11thCir: Dean v. Labor ... I'M NOT RESPONSIBLE FOR MY EMPLOYEE'S DEATH ! -- HE IS RESPONSIBLE FOR HIS OWN DEATH ! ... Petitioner M.C. Dean is an electrical contractor that, among other things, services existing electrical installations. In August 2009, Ryder Transportation Services ("Ryder") hired M.C. Dean to perform electrical equipment upgrades and maintenance at Ryder's warehouse. Tommy McGregor, M.C. Dean's service group manager, selected a three-person team to complete the Ryder project: Boyd Young, Lewis Quinn, and Sam Dittmore. Young and Quinn were both journeymen electricians, while Dittmore was an apprentice electrician. ... While working on the Ryder project, the crew learned that the facility's exhaust fans did not come on with the flip of the switch as they should have after the crew finished rewiring. The crew determined it would have to access the roof to verify the voltage at the exhaust fans. ... The crew decided to access the roof using the boom lift. After testing the two exhaust fans, Quinn fell through a skylight 25 feet to the facility's concrete floor below. ... M.C. Dean petitions for review of a final decision of the Occupational Safety and Health Review Commission finding that M.C. Dean violated the Occupational Safety and Health Act ("OSHA") by failing to guard a skylight which resulted in an employee's fall and subsequent death. ... Here, Dean Appeals To 11thCir:COURT DECISION
03-06: News: WASHINGTON DC GETS SNOW-PUNKED, AGAIN. Once Again, The Federal Government And All The Washington Area Schools Have Shut Down In Anticipation Of A Big Snow Storm. But All Washington DC Have Is A Little Light Rain. The Great United States Of America Federal Government Is Closed Today Because Its Raining (Light Rain At That). They Need To Long-Furlough All These Taxpayer Money Waisting Wimps ! UPDATE - DC Has 1/2 Inch Snow On Grass. UPDATE - DC Has No Snow.
03-05 News: LIAR, LIAR, HOMELAND SEQUESTER PANTS ON FIRE. Janet Napolitano, the Secretary of Homeland Security, said that major airports, Chicago's O'Hare and Los Angeles International Airport (LAX)), were seeing lines "150 to 200 per cent as long as we would normally expect" as result of the federal spending cuts that went into force on Friday. ... However, when contacted by The Daily Telegraph, spokespeople for both O'Hare and LAX, as well as representatives from the travel industry, denied that airports had been hit by delays. "We haven't had any slowdowns at all," ...
The TelegraphGovExec
00-00: News: Kerry Criticizes Iran And Russia for Sending Weapons To Syria. Does Not Criticize Our Allies, Britain And France, For Sending Billions Of Dollars Worth Of Secretly Donated USA Weapons (Paid For by US Taxpayers) To Syria.
03-05: News: President Nominated Sylvia Burwell To Head The Office Of Management And Budget. QUALIFICATIONS: Worked For Bill Clinton AND Went To Harvard Wiki
03-08: O'White Home: YESTERDAY, HE PROUDLY SIGNED INTO LAW THE, STOP VIOLENCE AGAINST EVERYONE EXCEPT HETEROSEXUAL MALES ACT //// Fresh On The Heels Of The First-Bigot-ress Going To Chicago To Attend The Funeral Of The Girl Killed In Gun Violence, After She Practically Ignored The Hundreds, And Hundreds And Hundreds Of Males Killed On The Same Streets. Just Proves That Bigots Come In All Flavors. With All Due Respect, How About Signing The "Stop Violence Against All Americans Act" ?
03-15: Tech: Galaxy S4 Features: All The New Things That Samsung's Latest Smartphone Can Do.
Huff Post
03-15: Tech: Galaxy S4 Preview: (5", 1080p, 4.6 oz, 2GB Ram, MicroSD, 1.9 Ghz Quad-Core or 1.6 Ghz Octa-Core) A bigger, faster upgrade to the most popular Android phone in the world.
TheVerge
03-13: Tech: HTC ONE REVIEW (2013): (4.7", 1080p, 5 oz, 1.7 GHz, 2GB Ram, MicroSD) Last year, we were very impressed by the One X ... HTC pushed itself and made its sequel even more polished than the original. We love the phone's industrial design and the camera ... Overall the user experience is much improved. ... HTC has a hit on its hands.
Engadget
03-13: News: REPUBLICAN BUDGET CALLS FOR SMALLER FEDERAL WORKFORCE, LESS GENEROUS BENEFITS: The Republican budget proposal recommends reducing the government workforce by 10 percent through attrition by 2015, estimating that it would save $49 billion over 10 years. The Republican budget also seeks to reduce pay and benefits to civilian federal employees.
GovExec
00-00: Sports: Tiger Woods Wins At Doral ! Got His Mojo Back. THANK YOU Candy, Trixie, Lolita, Tatiana, Nikki, Shantel, Chastity, Sindra, Alexis, Crystal, Bamby, Desire, Ginger.
00-00: Tech: Samsung New Galaxy S 4 Smartphone Is Better Than You Think:BetaNews
00-00: Tech: Amazon Has TLC'S Great Album "CrazySexyCool" On Sale For $2.99: ($13.75 Value / 16 Tracks) Red Light Special (Southern Route), Creep, Waterfalls and 13 more tracks.
Amazon
03-22: Movies: NEW MOVIE "SPRING BREAKERS":
A Totally Sex Filled, Crime Ridden, Teen Crime Filled Movie Guaranteed To Be Number One In The United States !!!
03-22: Tech: My New Nokia Lumia 920 (WindowsPhone8 SmartPhone) Arrived And I'M Thrilled:BetaNews
03-27: TheSupremes: DIVIDED SUPREME COURT HINDERS COPS' USE OF DRUG-SNIFFING DOGS: A divided Supreme Court on Tuesday gave notice to the nation's law enforcement officials that they generally need search warrants to employ drug-sniffing dogs outside a home to detect whether drugs are inside. .. The case decided 5-4 involving a suspected Florida drug dealer limited the government's ability to intrude into the home and was a blow to police. Wired
... Opinion
... Wikipedia
03-27: White House: OBAMA WILL APPOINT JULIA PIERSON AS FIRST FEMALE SECRET SERVICE DIRECTOR:See Picture Here
04-08: Music: Nora Jean Bruso CD "Sings the Blues" ... If you like the blues, you will probably love Nora Jean Bruso's CD "Sings the Blues" Many of us fell in love with Nora Jean years ago after hearing her on the Nora Jean Bruso "Sings the Blues" CD. Realeased in 2004, the CD features Nora Jean (vocals); Jimmy Dawkins (guitar); Billy Flynn (guitar); Jimi Schutte (drums);Willie Kent (bass); Brian Lupo (guitar); Rob Waters (Hammond B3); James Wheeler (guitar);Eddie Shaw (saxaphone). Bad News: The music CD sells for $33.99 on Amazon.com (bummer). Good News: The blues website "Gymshoe.com" has posted the MP3 album online so you can listen to the songs before you decide to buy on Amazon. (or just listen online). Enjoy!
00-00: VAOIG: NEW VA OIG REPORT: Administrative Investigation, Misuse Of Official Time And Resources And Failure To Properly Supervise, Office Of Human Resources And Administration, Washington, DC (Report # 12-02503-151)(3/28/2013 )
Please, Use This Form To Request The VAOIG To Post This Report Online.: OIG Request Form
00-00: White House: FLOTUS, Michelle Obama, Tells Department Of Interior Employees That Federal Employees Are Invisible:" ... People don't even know you exist. (Laughter.) It's so true. I mean, federal workers are this invisible face. No one knows what they do, what it means, how much they benefit us. .. So on behalf of myself and the President and the first family, I want to say thank you. Thank you, thank you. I want you know how proud we are of all that you do. We want you to know how grateful we are to your families, for the sacrifices that you make oftentimes to do what you do. .. So hang in there. And know that what you do is extremely important. Hang in there. We need you. This country needs you. Our children need you. ... "Complete Transcript
00-00: VAOIG: NEW VA OIG REPORT: Administrative Investigation, Misuse Of Official Time And Resources And Failure To Properly Supervise, Office Of Human Resources And Administration, Washington, DC (Report # 12-02503-151)
We substantiated that ___, Management Analyst, Office of Human Resources and Administration (HR&A), misused official time and VA resources. We found that ___ worked as a ___ and that ___ worked as a on numerous occasions during VA tours of duty between October 2009 and April 2012. We alsofound that ___ misused VA-assigned computer and email account for duties and that ___ failed to properly request sick leave for attending to medical matters during VA tours of duty. ... We also substantiated that Mr. Joseph Viani, Executive Director for HR&A Strategic Management Group (SMG), and Ms. Mary Santiago, former (retired) Director of VESO, failed to properly supervise ___. We found that Mr. Viani and Ms. Santiago knew that worked as a ___ during VA tours of duty and that they did not exercise the necessary supervisory oversight toensure took the proper leave to cover absences.
OIG Report
00-00: GAO Study: FEDERAL EMPLOYEES' COMPENSATION ACT (FECA) --- CASE EXAMPLES ILLUSTRATE VULNERABILITIES THAT COULD RESULT IN IMPROPER PAYMENTS OR OVERLAPPING BENEFITS: GAO found examples of improper payments and indicators of potential fraud in the Federal Employees' Compensation Act (FECA) program, which could be attributed, in part, to oversight and data-access issues. GAO found examples of claimants' receiving overlapping FECA and unemployment insurance (UI) benefits, which may be allowable under certain circumstances, but could also be erroneous. ... GAO also found that FECA program requirements allow claimants to receive earnings, and earnings increases, without necessarily resulting in adjustment of FECA compensation ... GAO found that the Department of Labor (Labor) did not conduct a timely review of the medical activity reports. GAO Report
00-00: PERVERSION: WHO WE REALLY ARE. ... THIS WEEK, A PHILADELPHIA JURY FOUND ABORTION DOCTOR GUILTY OF MURDER. ... Anti-Abortion Groups Applauded. ... Pro-Abortion Groups Applauded. ... Woman Who Went To The Clinic To Have The Abortion (The Victim) Applauded. She Said "I'm Just Glad That That Monster Abortion Doctor Will Be In Prison For Life So That Other Women Will Not Suffer The Same Nightmare As I Had To Endure." ... ( Most Americans Feel That The Abortion Doctor Should Have Received Death Penalty For What He Did To The Woman ) ... GOD BLESS AMERICA!Reston Pure Perversion.
