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Social Security (SSA) and Civil Service Retirement System (CSRS): Feds who’ve retired under the Civil Service Retirement System (CSRS) annuitants will receive the same 2.5% Social Security COLA reflected in their pension, since the COLA calculation is identical between CSRS and Social Security.
Federal Employees Retirement System (FERS) FERS annuitants can expect a 2% COLA increase in 2025. The discrepancy between the CSRS and FERS COLAs is due to a difference in how COLAs are calculated under the different systems.
♦ Dec 26, .. FLRA: Prisons v. AFGE .. The Agency temporarily assigned employees from one of its correctional institutions to another institution. The Union filed a grievance alleging that the Agency violated the parties’ agreement by denying those employees overtime assignments. As a remedy, the grievance sought that the employees be made whole, with retroactive overtime, and other relief under the Fair Labor Standards Act. When the parties were unable to resolve the dispute, the Union invoked arbitration. In an interim award, the Arbitrator framed the issue, in relevant part, as whether the grievance was timely under the parties’ agreement. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 26, .. MCA: Buckley v. City of Westland .. Plaintiff was terminated from the Westland Police Department (WPD) for violating numerous policies and regulations during an incident involving a jail detainee while plaintiff was the supervising sergeant responsible for overseeing the jail and its detainees. Plaintiff filed this action alleging that he was wrongfully terminated and maliciously prosecuted. He asserted claims for age discrimination, disability discrimination, malicious prosecution, invasion of privacy–false light, civil conspiracy, and intentional infliction of emotional distress. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 26, .. PCC: Bourne v. UCBR .. Claimant was employed as a maintenance custodian driver by the Southeastern Pennsylvania Transportation Authority (Employer) from June 5, 2000, through November 22, 2022, at which time he was discharged for violating Employer’s Substandard Performance Policy. After Claimant’s employment was terminated, Claimant applied for unemployment compensation benefits, which were denied by the Unemployment Compensation Service Center (UC Service Center) pursuant to Section 402(e) of the UC Law. Claimant appealed, and the Referee conducted a hearing. At the hearing, the Referee took testimony from Employer’s witnesses, its Labor Relations Supervisor and its Director of Maintenance, and from Claimant. Employer’s witnesses testified Claimant was initially suspended then later resigned in lieu of termination from employment after he removed a handbag from a raffle table. Director of Maintenance described Employer’s investigation, which included reviewing surveillance video and speaking with Claimant directly. Director of Maintenance testified Claimant admitted to removing the handbag but “indicated it was a misunderstanding” as “he wasn’t sure how the raffle worked,” although Claimant admitted he had been involved in similar raffles in the past. Claimant testified he took the handbag “but misread the raffles.” When the Referee asked Claimant why he thought he was entitled to the handbag, Claimant responded: Yes what I read there, it said, free raffle, personal beeper. And I went up to the counter, and I asked the dispatcher for a pen. He said I don’t need a pen, just sign my name here and get it. She gave me a pen and I walked back, and I signed the board. When I signed the board, just my name on it. When I signed the board then I bring back the pen and I was going to take a gift. And I went back there and took the gift and I walked out. I didn’t hide it and I walked out with it in my hands. And I walked on. I walked back to my location, because it was across the street. I went to my car and put it in to my car. And when I put it in my car I went back, took a seat and started working again. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 20, .. FDCA: Logan v. Logan .. The underlying case is a dispute between Jonathan and Janice Logan—son and mother—regarding the ownership and operation of a family business named Smart Communications. Jonathan is the founder, CEO, and president of the company. Jonathan's father and Janice's husband, James Logan, was a director and the CFO of the company. Janice had no formal role with the company. Jonathan and James each owned 50% of the company's stock, though James later transferred his stock to his trust. In addition to salaries, Jonathan and James received perquisites as part of their "compensation packages." Jonathan had access to several company- owned boats and vehicles, as well as a house and a condominium unit. James had access to another company-owned house, in which he and Janice resided, and another company-owned automobile. Janice was not paid a salary or provided any benefits other than what she enjoyed derivatively through James. James died on October 16, 2022. Janice continued living in the company-owned house and kept possession of the company-owned automobile that James had used prior to his death. Jonathan directed one of the company's accountants to "give Janice about a hundred thousand dollars a year . . . so she has some walk-around money" for her comfort. However, allegedly without Jonathan's authorization or knowledge, the accountant made Janice a salaried employee with health benefits. Precipitating the underlying proceeding was a dispute regarding the disposition of James' stock. Because James had transferred his stock to his trust, the trust, of which Janice was the trustee and beneficiary, remained a 50% shareholder of Smart Communications. However, Jonathan produced a shareholders' agreement purportedly signed by him and James that required the sale of James' stock to the company upon his death. Noting the circumstances and timing surrounding Jonathan's production of the agreement, Janice disputed its authenticity and claimed that the trust was entitled to remain a 50% shareholder. Jonathan and Janice filed suit against each other for declaratory relief concerning the validity of the shareholders' agreement, among other claims, which the trial court consolidated. HERE, Jonathan Logan and Smart Communications Holding, Inc., appeal the trial court's nonfinal order granting a temporary injunction in favor of Janice Logan, individually and as trustee for the James Logan Family Trust dated February 10, 2021. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 19, .. 6th Cir.: Detillion v. Ohio Dep't of Rehab. & Corr. .. Ms. Detillion was a prison guard at the Ohio Department of Rehabilitation. On the night of the incident, Ms. Detillion locked Mr. Jones in a cell by himself and refused to let him speak with a mental health professional about a recent death in his family. When Jones threatened to kill himself, a friend asked to enter the cell to calm him down. Ms. Detillion called the friend a “f*g” who, she claimed, only wanted into the cell “so they could f*ck.” Ms. Detillion had the friend removed from the block. Mr. Jones inquired about his friend, at which point Detillion “announced” to the cell block “that Jones said he was going to kill himself if they didn’t move him to where his ‘boyfriend’ was” located. Ms. Detillion later found Jones with a noose and mocked him for not tying it correctly. She also joked that Jones did not “have the guts” to kill himself. Throughout the evening, Ms. Detillion “kept telling Jones to do it and calling him every name in the book.” Inmate Ronnie Jones eventually succeeded in hanged himself in his cell Afterwards, multiple inmates then threatened Ms. Detillion, blaming her for Mr. Jones' suicide. After an investigation of Ms. Detillion’s alleged misconduct, her employer initially reassigned her and later terminated her employment. Ms. Detillion appeals her wrongful termination. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 19, .. FLRA: AFGE v. VA .. The AFGE Union asked the VA management to address a lack of access to drinking water for bargaining-unit employees in the Agency’s mental-health clinic, which is a locked, controlled-access, outpatient mental-health clinic. Specifically, the Union sought the installation of an ice and water machine in the employee break room. After attempts to informally resolve the issue were unsuccessful, the Union submitted a formal demand to bargain. The parties requested assistance from the Federal Service Impasses Panel (FSIP) with mediation. In the meantime, the Agency installed a reverse-osmosis water filter in the employee break room, but no mechanism that provides ice. When mediation failed, the parties requested further FSIP assistance. The Agency subsequently asserted the issue was nonnegotiable, so FSIP dismissed the parties’ dispute for lack of jurisdiction. The Union then filed this petition for review (petition) with the Authority. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 19, .. WCA: Cooper v. German Wise Dental .. Ms. Cooper was an assistant in a dental office. Sam and Rima Wise took over the dental practice. Sam Wise was the dentist and Rima became the office manager of the dental practice. Wise immediately started making frequent inappropriate comments to members of his staff, including Cooper. Despite warnings, he made daily inappropriate comments to or about patients and staff that were sexual in nature or gender based. Cooper and other employees complained but Wise responded that he had unfettered freedom to say what he wanted and any staff who did not like his comments should leave. Wise told his human resources manager to fire anyone who complained and to space out the terminations to avoid any lawsuits. Cooper was eventually fired after complaining and making negative statements about the dental practice in a letter supporting a coworker’s unemployment claim. After she was fired, Cooper did not receive promised bonuses or severance payments. Cooper sued Wise, Rima, and German Wise for gender discrimination, specifically hostile work environment; wrongful termination; breach of contract; and meal period violations. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 18, .. CCA: Dyer v. New American Funding .. In October 2020, Ms. Dyer began working with New American Funding, LLC (NAF) as a “Loan Officer Assistant” for NAF’s outside loan agent division. Dyer was diagnosed with cancer in February 2022, and the parties ended their relationship in September 2022, when Dyer exhausted her approved leave In July 2023, Dyer filed a complaint against NAF, alleging various employment-related claims. In response, NAF moved to compel arbitration of Dyer’s claims pursuant to an electronically executed “Comprehensive Agreement Employment At-Will and Arbitration Policy” (the arbitration agreement), which purportedly bears Dyer’s electronic signature and a “Time Signed” of October 6, 2020 at 6:51 p.m. NAF represents that Dyer “voluntarily resigned from her position,” whereas Dyer asserts that she was “fired” when NAF would not “extend her unpaid leave” so that Dyer could “finish her radiation treatments” and “heal” from surgery. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 18, .. OCA: Homrighausen v. Dover .. Mr. Homrighausen is the former Mayor of Dover, Ohio, a municipal corporation located in Tuscarawas County, Ohio. On March 11, 2022, a Tuscarawas County, Ohio grand jury indicted Appellant on the following felony charges: One count of Theft in Office, and (B)); One count of Having an Unlawful Interest in a Public Contract, and (E)); Six counts of Filing Incomplete, False and Fraudulent Tax Returns, and four misdemeanor charges including: One count of Soliciting Improper Compensation, and (D)); Two counts of Dereliction of Duty, and one count of Representation by Public Official or Employee. The charges arose after an investigation uncovered irregularities with fees paid to Appellant, the then Mayor, to perform weddings. In said case, the state of Ohio asserted Appellant used City resources and charged a fee for the weddings, but pocketed the fees for himself instead of turning them over to the City treasury. On November 17, 2022, a jury found Appellant guilty on the felony charge of Theft in Office, and five misdemeanor charges: four counts of Soliciting Improper Compensation, and one count of Dereliction of Duty. Appellant, Mr. Homrighausen filed an appeal. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 18, .. DcDc: Dickerson v. Grant Leading Technology .. Plaintiff, Mr. Dickerson, was employed at GLT for roughly two years, from 2019 to 2021. During that time, Dickerson “suffered epileptic seizures, insomnia, depression, and anxiety and panic attacks and an associated mental health diagnosis/disorder, exacerbated by work-related stress and demands,” as well as other debilitating health problems. According to Dickerson, these “disabilities and . . . complications related to his disabilities” required him “to miss work and/or telework,” limited his “ability to participate in back-to-back meetings,” required “periodic rest and/or breaks during the day,” and necessitated a “flexible schedule.” At various points in 2019, Dickerson requested disability-related accommodations. In September 2019, he requested the ability to remotely join meetings from his office to avoid a ten-minute walk to a separate building; in December 2019, he requested the ability to sit (rather than stand) during certain meetings. GLT “disregarded” these requests. Dickerson also claims that he became the target of harassment and reprisal due to his disabilities. He alleges that his coworkers “mock[ed]” him for “wearing sunglasses indoors” due to his “ocular migraines” and that, “during an office Christmas party” in December 2019, his coworkers “purchased [him] a pair of women’s sunglasses as a gag gift.” At that same Christmas party, several coworkers remarked that Dickerson appeared “thin” and that Dickerson “should get a plate of food.” When GLT management “took no action to stop” these comments, Dickerson became “so embarrassed and uncomfortable that he made a very early exit from the party.” Dickerson further alleges that he was denied “more desirable workplace tasks, responsibilities, and associated opportunities for workplace advancement” and was given poor performance reviews “heavily motivated by bias and discrimination. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 17, .. NJSC AD Willis v. Board of Review .. Appellant was employed by Housing Authority of the City of Camden, New Jersey (HACC) in various positions beginning on April 3, 2000. On September 21, 2009, she was appointed Director of HACC's Housing Choice Voucher (HCV) program, commonly known as Section. On October 18, 2017, appellant married Mark Willis, a landlord who participated in the HCV program. On December 21, 2018, HACC placed appellant on paid administrative leave while it conducted an internal investigation into alleged conflicts of interest. The investigation was prompted by HACC's receipt of a letter from Mark Willis's former spouse. She reported that while appellant was the Director of the HCV program, she was also a principal of MTW Investment Group, LLC (MTW), which received rent subsidy payments from HACC through the HCV program. The tipster also reported that after Mark Willis married appellant he continued to receive rent subsidy payments from HACC through the HCV program for various properties. The investigation revealed that appellant created MTW in May 2015. MTW began receiving rent subsidy payments from HACC through the HCV program in July 2015. Those payments continued until appellant's suspension. While appellant claimed to have transferred her interest in MTW to a third party on December 16, 2016, state records listed appellant as having an interest in MTW as late as March 2019. HACC also produced evidence that appellant was listed as the party to receive local property tax bills for a parcel owned by MTW in 2019. HACC determined appellant engaged in intentional wrongdoing. At the conclusion of the investigation, HACC terminated appellant. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 17, .. VCA: Campbell v. Groundworks Operations .. Appellants are former employees of Groundworks Operations, LLC, which staffed affiliated companies, including JES Construction, LLC. Groundworks and JES are appellees in this action. Smith, Grandon, and Beck were “certified field inspectors” who were paid solely by commission on the sales they made. Their job was to travel to new customers’ homes to sell construction services. Campbell was a service technician who was paid partially by commission. His job was to “repair previous installations and attempt to sell the existing customers additional goods and services.” When appellants staffed JES, they conducted business in JES’s name. Appellants received half of each commission after JES accepted a signed contract and customer deposit and the customer’s three-day recission period had expired. They received the other half once the job was complete and the customer made final payment. In January 2022, appellees required all employees to sign a new written commission policy as a condition of their employment. The policy provided that appellants would not pay wages to their sales employees for jobs where the customer’s final payment was not received within 14 days of the end of the worker’s employment, regardless of whether the employee left the job involuntarily. Smith, Grandon, and Beck each signed the policy. They estimated that they had not been paid about “$20,000 each for jobs they sold but remained unfinished at the time their employment ended.” Appellants sued in March 2023. Specifically, appellants alleged that: (1) appellees refused to pay earned commissions upon the termination of appellants’ employment; (2) appellees deducted from commissions without appellants’ written consent; and (3) appellees required appellants to sign the agreement forfeiting their commissions as a condition of their employment. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 13, .. FLRA: Customs and Border Protection v. NTEU Union .. On November 28, 2018, Customs and Border Protection placed the grievant on administrative duty due to a medical condition and temporarily revoked the grievant’s authority to carry a firearm (firearm authorization). Although the parties’ collective-bargaining agreement (CBA) requires Customs and Border Protection to give an officer written notice explaining why it is revoking a firearm authorization, the Agency did not issue the requisite notice until February 5, 2019. The Union filed a grievance alleging that the Agency violated the CBA by failing to issue the notice until February 5, 2019, and requested the “immediate return of weapon, backpay and interest for lost overtime . . . , a letter of apology . . . , attorney’s fees, and any other remedy deemed appropriate.” The matter went to arbitration. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 12, .. CCA: Assn. for L.A. Deputy Sheriffs v. County of L.A. .. Los Angeles Law Enforcement Gangs .. Finding law enforcement gangs damage the trust, reputation, and efforts to enhance professional standards of policing agencies throughout the state. Effective January 1, 2022, California Penal Code section 13670 requires law enforcement agencies to “maintain a policy that prohibits participation in . . . law enforcement gangs and . . . makes violation of that policy grounds for termination.” It also requires law enforcement agencies to cooperate with investigations into such gangs by an inspector general or other authorized agency. Effective January 1, 2022, California Penal Code section 13510. authorizes revocation of a peace officer’s certification for “serious misconduct,” including “participation in a law enforcement gang” or “failure to cooperate with an investigation into potential police misconduct.” On May 12, 2023, the Office of the Inspector General for the County of Los Angeles (OIG) sent a letter to 35 individual Los Angeles Sheriff’s Department (LASD) deputies selected based on information gleaned from personnel records. Citing Penal Code sections 13670 and 13510.8, the letter directs the deputies to appear and answer questions about their knowledge of and involvement in law enforcement gangs, to display certain tattoos located on their lower legs or arms, and to provide photographs of such gang-associated tattoos on their bodies. On May 18, 2023 – six days after the OIG’s letter – the Los Angeles County Sheriff Robert Luna sent the deputies his own letter, via email, ordering them to participate in the interviews and warning that refusal to cooperate would be grounds for discipline, including termination. The union representing the deputies—the Association for Los Angeles Deputy Sheriffs (ALADS)—filed an unfair labor practice claim with the Los Angeles County Employee Relation Commission (ERCOM) .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 12, .. CCA: Oggel v. Cal. Dept. of Fish and Wildlife .. Appellant Mr. Oggel, a former game warden, was suspended from his position for disciplinary reasons, then medically demoted and then terminated after he failed to report to work at the new, demoted position. The Department medically demoted appellant to an office technician position at a location more than 80 miles from appellant’s home. Between the end of appellant’s disciplinary suspension and the date of his medical demotion, the Department paid appellant $301,000 in backpay and other compensation. Appellant never reported for work at the demoted position or at his former workplace. The SPB found that the Department did not present sufficient evidence to support the medical demotion. It further found, however, that appellant was not entitled to additional compensation because he did not report for work after the medical demotion. The Dept. of Fish and Wildlife appealed the decision. The Appellant appealed the decision. The question presented here is whether the Department of Fish and Wildlife (the Department) owes backpay and other compensation .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 11, .. NJSC AD: Palinczar v. Trenton Police Department .. Hired by the Department in 2001, police officer Palinczar primarily served as a patrol officer. The precipitating event that led to the IA investigation occurred at his home on the night of July 21, 2018. While they were watching television, Ms. T.L. went outside to smoke a cigarette. Shortly after she returned, T.L. "slouched over" and was nonresponsive. Palinczar called 9-1-1 and performed CPR while waiting for emergency services. Palinczar smelled alcohol on T.L.'s breath. He found a small empty bottle of alcohol in her purse, but no evidence of drug use. Officer Fornarotto testified he was dispatched to the scene "for a person having difficulty breathing." When he arrived, however, Palinczar asked if Fornarotto "had the stuff to revive her." Understanding Palinczar meant T.L. "was overdosing on opioids," Fornarotto administered Narcan. Palinczar initially told Fornarotto T.L. "was just drinking." Another dose of Narcan was administered at the home. Upon further questioning, Palinczar initially indicated T.L. "may have taken a pill before arriving at his house" and then stated T.L. "may have taken oxycodone at his house." Ms. T.L. was revived at the hospital. That event led to an Internal Affairs (IA) investigation. At the hearing, Palinczar testified he was "petrified" while performing CPR on T.L. because he "didn't want this woman to die" and "was worried about his job" . . . as it "looked bad." After an extensive investigation of the Incident, IA officers uncovered a multitude of infractions, which occurred during overlapping time periods. HERE, Petitioner Michael Palinczar, a former police officer, appeals his termination by the City of Trenton, New Jersey. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 11, .. OCA: Rivera v. Perlo Construction .. Plaintiff is originally from Chile, and his primary language is Spanish. In Oregon, he worked as a laborer for Perlo, a construction company. On Perlo’s jobsite, the other employees repeatedly harassed plaintiff, improperly touched him, and attempted to intimidate him because of his nationality and limited English skills. When plaintiff reported those incidents to his supervisors and Perlo’s risk management director Wood, they dismissed his complaints. They concluded, without an adequate investigation, that either the conduct had not occurred or that the sort of harassment plaintiff reported was par for the course on construction sites. “As a result of the workplace harassment, mistreatment, assault, and discrimination [that plaintiff suffered at Perlo], plaintiff began experiencing emotional distress symptoms from his dormant PTSD.” Those symptoms led to plaintiff’s filing a workers’ compensation claim “indicating that he was suffering from PTSD” caused by the working conditions at Perlo. After SAIF denied plaintiff’s workers’ compensation claim, he brought this employment discrimination action against Perlo, Wood, and three other defendants involved in processing his workers’ compensation claim. Given the issues raised on appeal, we focus on how, according to the complaint, defendants SAIF, Integrity, and Wicher processed plaintiff’s workers’ compensation claim. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 10, .. CCA: Lee v. Rockstar Staffing .. Rockstar Staffing is a hospitality staffing agency, and Malibu, the operator of a hotel and restaurant, was one of Rockstar’s clients. In their contract, Rockstar agreed to “‘recruit, screen, interview, and assign its employees . . . ’” to work at Malibu. In May 2019, Ms. Lee saw a Rockstar advertisement seeking applicants for restaurant jobs. Rockstar Staffing hired plaintiff and respondent Ms. Lee (Lee) and assigned her to work at Mani MBI (DE), LLC dba Malibu Beach Inn (Malibu). Lee has sickle cell anemia and was hospitalized due to a flare-up of her symptoms. While she was in the hospital, Rockstar informed her that she was no longer needed at Malibu. This lawsuit followed. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 10, .. 11th Cir.: Baker v. Ascend Performance Materials .. Mr. Baker worked for Ascend Performance Materials for almost twenty-six years. Due to his lung condition, Baker began a medical leave of absence beginning on November 9, 2020, and was later approved for longterm disability benefits. He was never medically cleared to return to work and Ascend terminated his employment on May 26, 2021. Mr. Baker first petitioned for workers’ compensation benefits on August 3, 2021. The petition claimed he sustained a bilateral lung injury “due to repetitive exposure to nylon pellets and antistatic fiber particles and dust” while working at Ascend’s manufacturing facility. Ascend denied Baker’s claim, providing the following response: “There is no evidence of any accident or injury arising out of the claimant’s employment. On April 6, 2022, Baker filed a negligence action, alleging Ascend breached its duty to maintain a safe work environment and caused his lung injuries. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 10, .. FDCA: Gessner v. Southern Company .. Mr. Gessner, worked for Gulf Power Company for nearly a decade. He claimed to have received positive performance evaluations for over nine years, while his employer claimed that he consistently struggled with issues relating to performance, skills progression, and competencies as a welder mechanic. Gessner was disciplined for various incidents over the course of his employment, and he raised a number of safety-related concerns throughout his time with the company. Gessner’s employment was terminated after he used disparaging language towards a coworker and acting team leader. In response, Gessner sued Gulf Power Company under the private sector FWA, alleging that he was discharged in retaliation for objecting to certain practices “that were in violation of state and/or federal laws or that he reasonably and objectively believed were in said violation.” .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 6, .. 6th Cir.: Kizer v. St. Jude Children's Research Hosp .. In 2021, Lynn Kizer was employed by St. Jude Children’s Research Hospital as an Electronic Health Record (“EHR”) Applications Analyst assisting with preparations for the hospital’s two-year-long transition to a complex new EHR system known as “Epic.” That same year, a vaccine for COVID-19 became available. Because St. Jude primarily treats vulnerable pediatric patients, the hospital implemented a mandatory COVID vaccine policy for its employees and established a process for considering requests for religious and medical accommodations. Kizer submitted one such request, stating that her sincerely held religious beliefs prevented her from receiving the vaccine and asking for permission to work remotely. St. Jude gathered information about Kizer’s position, including about the upcoming launch (or “go live”) of the new Epic system and determined that it could not reasonably accommodate Kizer because her job required her to work in person in clinical areas and in contact with clinical people. St. Jude ultimately terminated Kizer for failing to become vaccinated. Kizer brought suit for religious discrimination and failure to accommodate under Title VII. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 6, .. 5th Cir.: Cocuzzo v. Trader Joe's .. Trader Joe's is a national chain of specialty grocery stores. Each Trader Joe's location is staffed by a "Captain," the manager in charge of the store; "Mates," assistant managers; "Crew Members," nonsupervisory staff; and sometimes "Merchants," specially designated members of the nonsupervisory staff. Ms. Cocuzzo began working as a Crew Member at the Trader Joe's store in Brookline, Massachusetts, in 2003, when she was roughly sixty years old. By all accounts, Cocuzzo was an exemplary employee, described by her supervisors in her annual performance reviews as "outstanding," "a role model," and "a true neighborhood icon." In 2012, when she was nearly seventy years old, Cocuzzo was promoted to the role of Merchant by the then-Captain of her store. Cocuzzo also received regular pay increases throughout her employment. Cocuzzo testified that Gillum, as Captain of the Brookline store, gave Cocuzzo her annual performance review in 2020 and that the review was positive. Additionally, Gillum approved a $1,200 performance bonus and a $1.00 per hour raise for Cocuzzo in August 2020, when Cocuzzo was seventy-seven years old. Cocuzzo's performance in 2018 and 2019 was also evaluated as "excellent." Trader Joe's terminated Ms. Cocuzzo's employment for violating. Ms. Cocuzzo's sued Trader Joe's for age discrimination. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 6, .. 5th Cir.: Lutz v. Mario Sinacola & Sons .. Defendant-Appellee Mario Sinacola & Sons Excavating, Inc. (“MSSE”) is a company involved in many aspects of the construction industry. Ms. Lutz began working for MSSE as an administrative assistant in 2012. She later requested that she no longer work in that position because of issues she had with her supervisor, Jeff Larson. In 2014, MSSE transferred Lutz to serve as an administrative assistant in its Fuel Oil and Grease (“FOG”) Division. Her new direct supervisor was Jose Ambriz. Before Lutz assumed the role, the administrative assistant position in the FOG Division did not exist. MSSE created the role by taking responsibilities from existing employees. After sustaining a severe injury to her right hip from a domestic violence incident, Ms. Lutz informed Ambriz and Tony Phillips, Vice President of Human Resources at MSSE, that she needed surgery for a full hip replacement and would need medical leave for a minimum of six weeks. Ms. Lutz applied for Family and Medical Leave Act (“FMLA”) leave and short-term disability benefits, which were approved by Cigna, MSSE’s insurer, from the date of her surgery, February 6, 2020, until March 18, 2020. On or about March 18, 2020, Lutz’s physician informed her that she would need to take an additional six weeks of leave because she was recovering slowly. Lutz submitted her request to Cigna, which then extended her FMLA coverage to April 29, 2020, but denied her any further short-term disability benefits. On April 14, 2020, he informed Ms Lutz that MSSE was eliminating her position because of a COVID-19 reduction in force, thereby discharging her. Ms. Lutz concedes that she was not fired for any performance-based reasons, but she contends that the only reason she was discharged was because she was on FMLA leave. Lutz filed suit against MSSE and Grimm, bringing FMLA interference claims against both of them. Lutz additionally raised Americans with Disabilities Act (ADA) and state law claims of disability discrimination and retaliation but only against MSSE. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 4, .. CAW Tuffley v. Employment Security Department .. Ms. Tuffley began working for Starbucks in 2019 as a senior manager in partner communications. Over the course of her employment, the scope of Ms. Tuffley’s work evolved. Ms. Tuffley’s job grew from brand campaigns, such as working on Starbucks 50th anniversary, to topics such as “diversity, mental health, and policy work.” Ms. Tuffley felt she lacked background and experience in these new areas of responsibility. She worked over 60 hours a week in an effort to meet the demands of her work, but her “mental health declined.” Ms. Tuffley advised her supervisor, Alisha Damodaran, about her struggles and Ms. Damodaran decided to place Ms. Tuffley on a performance improvement plan (PIP). According to Ms. Tuffley, Ms. Damodaran told her that another employee had been placed on a PIP and then was forced to leave the company. Ms. Tuffley came to believe Ms. Damodaran wanted to use the PIP as a “tool” to fire her. .. CONTINUED .. COURT DECISION: (.html)
♦
Dec 4,
.. DcDc
Howard v. Run Hope Work Inc
..
Mr.Howard, a black man, was hired as the Executive Director of Run Hope Work, Inc., on June 20, 2022.
Run Hope is a non-profit organization dedicated to improving the lives of at-risk D.C. youth through vocational training and personal wellness programs.
At all relevant times, Ms.Cairns and Mr. Newman were members of Run Hope’s Board of Directors.
When Howard was hired, Run Hope had “three employees on payroll at the time, including Howard.”
During his employment, Howard expanded the District of Columbia Department of Employment Services (“DOES”) and Department of Youth and Rehabilitative Services (“DYRS”).
Mr. Howard assumed the role of program manager for the DOES and DYRS grants.
He was compensated for his management responsibilities, in the amount of $5,000 per month from the DOES grant and $450 per month from the DYRS grant.
According to Howard, Cairns falsely accused him of not “having board approval to authorize payments to himself and Run Hope staff,” even though Newman had “authorized payroll with payments to Howard” under the grants.
On November 17, 2023, Newman and Cairns fired Howard.
According to Howard, prior to his termination, “certain Board members contacted him and told him that Newman and Cairns were trying to fire him,” and that “it was unlawful and racist and suggested that Mr. Howard hire counsel.”
Howard further alleges that Cairns was “demonizing him” in Board meetings,that she has been “instrumental in terminating . . . every Black male director Run Hope has ever had.
.. CONTINUED
..
COURT DECISION:
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♦ Dec 3, .. MCA: People Of Michigan v. McKerchie .. In September 2020, McKerchie was pursued by the police after he stole a vehicle. During the pursuit, he crashed into another vehicle, seriously injuring both the other driver and himself. Although McKerchie attempted to flee on foot, he was apprehended by the police. Because his spleen was ruptured in the crash, he underwent surgery to remove it. He was then housed in the Ingham County Jail awaiting trial on four felony charges arising from the incident. On November 12, 2020, McKerchie escaped from the jail and stole another vehicle. Although a taunting note that he left in his jail cell suggested that he was leaving the state, he was spotted driving yet another stolen vehicle in Eaton Rapids on November 21, 2020. Again, he crashed the vehicle he was driving while being pursued by the police. When he was arrested, he stated, “That old ass jail aint going to hold me. I’ll do it again, watch me.” He also kicked out the center barrier in the police vehicle and spat on the deputy. At the hospital, he threatened to assault and spit on hospital staff until he was sedated. Before trial, McKerchie filed a notice of his intent to present duress and necessity as defenses. He argued that the removal of his spleen left him particularly vulnerable to serious injury or death from “COVID-19” and that he particularly was at risk for contracting it in the jail. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 3, .. FLRA: VA v. AFGE .. Arbitrator Michelle Miller‑Kotula issued an award finding the Agency violated the parties’ collective‑bargaining agreement and an Agency handbook “when it failed to review [the grievants] for promotion” from General Schedule, Grade 9 (GS‑9) to GS‑11. The Arbitrator found the grievants performed GS‑11 duties more than 25% of the time, and, if they met the minimum qualifications for a GS‑11 position, then the Agency must “move forward” with compensating them at the GS‑11 rate. However, the Arbitrator also directed the parties to devise an appropriate remedy and update her about whether they had done so within 180 days. She retained jurisdiction in the event the parties could not devise a remedy. Both parties filed exceptions. The Agency argues the award is contrary to law because the grievance involves classification. .. CONTINUED .. FLRA DECISION: (.html)
♦ Dec 3, .. CAO: Rivera v. Perlo Construction .. Plaintiff is originally from Chile, and his primary language is Spanish. In Oregon, he worked as a laborer for Perlo, a construction company. On Perlo’s jobsite, the other employees repeatedly harassed plaintiff, improperly touched him, and attempted to intimidate him because of his nationality and limited English skills. When plaintiff reported those incidents to his supervisors and Perlo’s risk management director Wood, they dismissed his complaints. They concluded, without an adequate investigation, that either the conduct had not occurred or that the sort of harassment plaintiff reported was par for the course on construction sites. “As a result of the workplace harassment, mistreatment, assault, and discrimination [that plaintiff suffered at Perlo], plaintiff began experiencing emotional distress symptoms from his dormant PTSD.” Those symptoms led to plaintiff’s filing a workers’ compensation claim “indicating that he was suffering from PTSD” caused by the working conditions at Perlo. After SAIF denied plaintiff’s workers’ compensation claim, he brought this employment discrimination action against Perlo, Wood, and three other defendants. .. CONTINUED .. COURT DECISION: (.html)
♦ Dec 2, .. FLRA: IRS v. NTEU .. At a mid-year performance evaluation, the Agency notified an employee (the grievant) that she was not performing at an exceeds-expectations level in three critical job elements. The Agency provided some counseling and assistance before the end of the performance year, but the grievant’s final ratings in two critical job elements did not reach the exceeds‑expectations level. Thus, the Agency rated the grievant’s overall performance lower than the previous year. The Union grieved the performance rating, “alleging that the Agency failed to provide the grievant the counseling required by Article 12, Section 4.L of the parties’ collective‑bargaining agreement.” Arbitrator Ann R. Gosline sustained the grievance, finding the Agency did not provide timely assistance of the type specified in Article 12. As a remedy, the Arbitrator directed the Agency to raise the grievant’s rating and provide her with any associated compensation. The Agency filed exceptions to the award on the grounds that it failed to draw its essence from the parties’ agreement and was contrary to management’s rights under § 7106(a) of the Federal Service Labor‑Management Relations Statute (the Statute). The Authority determined that the award affected the management rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute, respectively. Therefore, the Authority ended the CFPB inquiry, granted the management-rights exception, and set aside the award. On July 9, 2024, the Union filed a motion for reconsideration of IRS and a request for leave to file a supplemental submission concerning CFPB’s application to that case. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 26 .. OCA: Seater v. KID .. Plaintiff was employed at Klamath Irrigation Dist (KID as a bookkeeper and office manager. Over a period of time, plaintiff raised numerous issues with management about the way KID was being run, including alleging that it was not complying with the KID Board policies and other laws, rules, and regula- tions. The complaints covered a range of topics, including the delivery of water to delinquent accountholders, prob- lems with the way employee time was being calculated, the improper execution of official documents, the collection or waiver of fees for another water district, balancing of the petty cash fund, noncompliance with procurement regulations, the implementation of new accounting software, and the comingling of distinct accounts. Over the same period, plaintiff was subjected to multiple adverse employment actions, including the alteration of her duties, formal reprimands, being placed on administrative leave, and ultimately being terminated. Following her termination, plaintiff filed an action for unlawful employment practices .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 26 .. SCD: Sullivan v. Unemployment Insurance Appeal Board .. Appellant Elizabeth Sullivan appeals from the March 31, 2023 decision of the Unemployment Insurance Appeal Board (“UIAB”) holding that Sullivan had voluntarily resigned from her employment with the United States Postal Service (“USPS”) without good cause in connection with her work, and was disqualified from receiving unemployment benefits. All parties were sent notice of the Court’s briefing schedule. USPS also was notified that, as an artificial entity, it must be represented by counsel. Sullivan filed her opening brief as directed.4 Counsel for UIAB wrote to the Court advising it that it would not be filing an answering brief because Sullivan was challenging the UIAB’s decision on the merits and the UIAB did not have an interest in seeking to have its decision affirmed on appeal. USPS failed to file an answering brief despite the Court issuing it a “Final Delinquent Brief Notice” on May 30, 2024. Accordingly, notwithstanding the possible merits of USPS’s position, this Court reverses the determination of the UIAB due to USPS’s failure to respond. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 26 .. ICA WV: Baldwin v. WorkForce West Virginia .. In April of 2020, Ms. Baldwin was employed by Alliance Healthcare Services, Inc. (“Alliance”). On April 17, 2020, Ms. Baldwin filed a weekly application for unemployment compensation benefits for the week ending on April 11, 2020. Ms. Baldwin’s online portal application indicates she was not working, and that she did not receive wages that week. She filed a similar application on April 27, 2020, for the week ending on April 18, 2020. Ms. Baldwin again indicated on the online portal form that she did not work or receive wages that week. On May 11, 2020, Ms. Baldwin filed a third application for unemployment compensation benefits for the week ending on May 9, 2020. According to the May 11, 2020, online portal application, she received $451.20 in earnings for twenty-four hours of work during the week. Ms. Baldwin does not dispute that she was paid unemployment compensation benefits for those three weeks. On December 18, 2020, Alliance completed a “Claims Audit Form” at the request of WorkForce. On the audit form, Alliance reported that for the week ending on April 11, 2020, Ms. Baldwin worked 34.66 hours and received $745.61 in gross wages; that for the week ending on April 18, 2020, Ms. Baldwin worked 29.16 hours and received $547.38 in gross wages; and that for the week ending on May 9, 2020, Ms. Baldwin worked 24.36 hours and received $457.97 in gross wages. Based on the discrepancy between Ms. Baldwin’s application for unemployment compensation benefits and the wages reported by Alliance, WorkForce determined Ms. Baldwin was overpaid unemployment compensation benefits. On August 9, 2023, WorkForce notified Ms. Baldwin of her obligation to repay the overpaid benefits. According to the notice, WorkForce determined that Ms. Baldwin was overpaid $2,054.00 for the weeks ending on April 11, 2020, April 18, 2020, and May 9, 2020. Ms. Baldwin appealed the overpayment determination. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 25, .. FLRA: AFGE v. SSA .. The Agency administers three Social Security Act programs, and supports other agencies to administer various programs under other laws. The Union represents employees who assist the public – and handle submissions or claims – in connection with those programs. For many years, the field offices where these employees work were closed to the public on Wednesday afternoons from noon to 4:00 p.m., although employees in those offices continued working during that time. Beginning in January 2020, the Agency made a change that required field offices to remain open to the public on Wednesday afternoons (changed hours). The parties bargained over proposals related to the changed hours. During bargaining, the Union expressed concern about the effects that the changed hours would have on “adjudication time,” which – as further defined later in this decision – is time when employees address and process their workloads, lists, and backlogs. The Union proposed that the Agency guarantee employees daily and weekly minimum amounts of adjudication time under specific conditions. The Agency alleged the proposal was outside the duty to bargain, and the Union filed the petition. The Agency argues some of the Union’s filings are untimely. The Union disputes these arguments. Further, the Agency argues the Union failed to properly serve the petition on the Agency head, so the petition should be dismissed. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 25, .. FLRA: ARMY v. AFGE .. In January 2017, the Union was certified as the exclusive representative of a unit which includes the civilian employees who work in the Activity’s fire department as firefighters, fire officers, and fire inspectors. In December 2023, the Petitioner filed a petition seeking an election to determine whether the firefighters no longer wanted the Union to represent them. The Petitioner asserted that the Union failed to adequately represent the fire‑department employees. To support this assertion, the Petitioner claimed the Union failed to address safety concerns particular to department firefighters, failed to pursue two firefighter grievances, and agreed to contract language making firefighter performance standards “difficult to grieve.” Additionally, the Petitioner alleged that the Union ignored firefighter concerns regarding three “national and global events” that affected firefighters’ working conditions. The Petitioner also asserted that the current Union president “tends to align himself with management” and that AFGE national representatives do not visit the fire station frequently enough. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 22, .. FLRA: AFGE v. VA .. The Union filed a Step 3 grievance alleging the Agency wrongfully failed or refused to process employees’ dues deductions. The Agency responded by providing potential dates and times for a grievance meeting. The Union did not respond, the parties did not schedule or conduct a grievance meeting, and the Agency did not provide the Union with a written response to the grievance. The Union invoked arbitration. At arbitration, the Agency filed a motion to dismiss the grievance, arguing the Union failed to participate in a Step 3 grievance meeting as the parties’ collective‑bargaining agreement requires. In response, the Union alleged the Agency’s argument was untimely because the parties’ agreement requires parties to raise procedural-arbitrability claims no later than the Step 3 grievance decision, and the Agency failed to do so. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 22 .. DcDc: Anderson v. Bdo USA .. Mr. Anderson joined BDO’s predecessor firm as a partner in 2007. In that role, he was responsible for applying his expertise to “domestic corporate tax, mergers & acquisitions, bankruptcy and troubled debt restructuring, leasing, and general federal income tax issues” to aid the BDO National Tax Office’s expansion efforts. Throughout his time at the firm, BDO’s leadership praised Anderson for his reliability, attention to detail, and improvements in the quality and scope of BDO’s client services. Plaintiff served as a BDO partner until June 30, 2019, when he turned 65 and reached the firm’s mandatory retirement age for fixed-share partners. After his retirement as a partner, he continued working for BDO as a “Managing Director for the National Tax Office.” Anderson’s work in that role entailed the same duties and the same pay; further, “he continued to be held in high regard by everyone with whom he worked.” Plaintiff’s story took a quick turn after he turned 70 on September 21, 2023. Six weeks later, he was summoned to a meeting with leadership from BDO’s National Tax Office, where he was informed that he could continue working at BDO only if he agreed to certain conditions: he would be compensated on an hourly basis capped at 20 hours per week; nonbillable hours required advance approval from firm leadership; administrative time would be capped at two hours per week; BDO would not contribute to health or retirement benefits; and Anderson could receive neither holiday pay nor paid leave. In essence, Plaintiff was relegated to part-time work with reduced compensation and benefits. BDO proposed these changes without any explanation and despite a lack of decline in Anderson’s work performance. Plaintiff further alleges that “[n]o other employee was given such an ‘offer.’” Anderson attempted to propose a different arrangement with BDO, but the firm declined to participate in any further negotiations. When he rejected its offer, BDO terminated his employment on December 11, 2023, with an effective date of January 1, 2024. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 20 .. CCA: Wawrzenski v. United Airlines .. Alexa Wawrzenski was a flight attendant employed by United Airlines, Inc. United investigated and ultimately fired her for having a social media account featuring pictures of herself in uniform and wearing a bikini, with a link to a subscription- based account advertised as providing “exclusive private content you won’t see anywhere else.” Wawrzenski sued United, alleging that she endured years of gender discrimination and harassment, that United retaliated against her for complaining about the discrimination and harassment by terminating her employment, that United’s investigation into her social media and her termination discriminated against her as a woman, that United failed to prevent its employees’ misconduct, and that United intentionally caused Wawrzenski emotional distress. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 20, .. 5th Cir.: Ayorinde v. Team Industrial .. Team Industrial (Team) initially employed Ayorinde from 2016 to 2018, at which time Team terminated Ayorinde. Although Team had designated Ayorinde as ineligible for rehire due to “job abandonment,” Kevin Jarrett, a Team District Manager, received approval to rehire Ayorinde in April 2022 as a Level II Technician at an hourly rate of $32. According to Team’s records, Ayorinde’s supervisor Israel Ortega expressed concerns about the quality of Ayorinde’s welds, his failure of a necessary practical exam, his compliance with safety protocols, and his professionalism. Ortega reportedly spoke with Ayorinde about his concerns and told Ayorinde that he would be demoted to an assistant role for a one- month training period, during which time his pay would be cut from $32 per hour to $24 per hour. Nonetheless, Ayorinde resigned from Team shortly thereafter. In a resignation letter dated August 20, 2022, Ayorinde asserted that he was leaving Team due to a hostile work environment and discrimination, as evidenced by the pay cut, a supervisor’s delay in readministering his practical exam, and Ortega’s failure to schedule Ayorinde for any work after his return from Africa. One month later, Ayorinde filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission, then filed an Amended Charge of Discrimination two weeks thereafter. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 20 .. 5th Cir.: Serrano Colon v. Dep't of Homeland Security .. Ms. Colon ("Serrano") claims in this employment discrimination action that she was terminated from her position as a Transportation Security Officer ("TSO") because of her disability, gender, and parental status. She further alleges retaliation based on her filing complaints with the Equal Employment Opportunity Commission ("EEOC"). Her former employer, the Transportation Security Administration ("TSA"), attributes her firing to Serrano's years of erratic attendance, including dozens of tardies and unscheduled absences, and her failure to improve despite receiving several letters warning of possible consequences if her attendance problems persisted. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 18, .. 2nd Cir.: Back v. Bank Hapoalim .. According to the complaint, Ms Back was transferred out of her position at Bank Hapoalim (BHI) for filing a written complaint in December 2021 pursuant to BHI’s Whistleblower Policy, complaining that CEO Karni came to work while suffering from COVID-19 and triggered a COVID-19 outbreak at BHI, with about 30 employees (including Back) testing positive for the virus. Ms. Back alleges that at least five male executives similarly complained about Karni’s behavior and BHI’s lack of a proper response to the COVID-19 outbreak but were not disciplined. Her complaint further alleges other instances in which Karni treated Back differently than her male colleagues as part of a “bank-wide culture of misogyny and impunity.” .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 18, .. SCP: Com (Pennsylvania ) v. Royer .. Ms. Royer and her administrative supervisor, Mr. Emhoff (“Emhoff”), worked at the Pennsylvania Department of Transportation (“PennDOT”) office in Punxsutawney, Jefferson County. On June 8, 2022, Ms. Royer received a written notice of a pre-disciplinary conference (“PDC”) regarding a separate workplace issue. Royer became angry about the notice. After Mr. Emhoff and her immediate supervisor, Matt Gaston, made several attempts to communicate with Royer inside the building as well as in her car, she left work that day, resulting in her suspension from her employment at PennDOT. Later that same day, Royer began sending unwanted and alarming texts to Mr. Emhoff. That evening, Emhoff notified the local police about the texts from Royer. Royer continued to text Emhoff, and the local police urged him to contact the Pennsylvania State Police due to concerns for his safety because of the number and content of the text messages. The next day, Emhoff spoke with Pennsylvania State Trooper Alexis Stitt (“Trooper Stitt”) about the prior incident at PennDOT, and the unwanted texts from Royer. On that day, Trooper Stitt spoke with Royer by telephone and told her to have no contact at all with Emhoff. The following day, Royer sent additional text messages as well as four separate emails to Emhoff. At the conclusion of trial, the jury convicted Ms. Royer of ten counts of harassment graded as third-degree misdemeanors. The trial court scheduled a sentencing hearing and ordered a pre-sentence investigation (“PSI”) report. After reviewing the PSI report, which recommended consecutive sentences, the trial court imposed a term of two months to four months’ imprisonment for each of the ten counts of harassment, to run consecutively. In sum, the trial court imposed a sentence of twenty to forty months’ incarceration and ordered Royer to serve it in a state correctional facility. Here, Ms. Royer appeals her sentence. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 18, .. CAV: Ingleside Emergency Group v. Hollis, M.D. .. Dr. Hollis is an emergency medicine physician. In July 2020, Dr. Hollis’s professional corporation entered into two provider agreements with IEG and KEG, respectively, to provide emergency medical services at two Virginia hospitals within the HCA Healthcare (“HCA”) network. In her complaint, Dr. Hollis alleged that she was “repeatedly directed” “to upcharge her services as ‘critical care’ even when she was not provi[ding] critical care services as defined in the medical coding.” Dr. Hollis believed this was “an effort by Defendants to generate fraudulent income through overbilling of government programs such as Medicare and Medicaid.” Dr. Hollis “repeatedly refused to illegally upcharge services and reported to management of Defendants in 2020 and early 2021 that she would not improperly upcharge patient care as ‘critical care.’” Dr. Hollis also “complained in emails and verbally to management of Defendants that Defendants had intentionally mismanaged federal [COVID-19 relief] funds intended for Physicians” such as Dr. Hollis. After being terminated from her position as an emergency medicine physician, Dr. Michelle Hollis sued alleging that Ingleside terminated her in violation of the Virginia Whistleblower Protection Act (“VWPA”), Code .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 13, .. TWCAB: Hicks v. Fullen Dock and Warehouse .. Mr. Hicks (“Employee”) was working for Fullen Dock and Warehouse, LLC (“Employer”) on June 21, 2022, when he fell while attempting to connect hooks to cargo that needed to be lifted off of the boat. After the fall, a coworker took him directly to Methodist University Hospital, where he reported falling approximately 6 feet, with no loss of consciousness, and feeling pain in his neck, back, and shoulders. Employee underwent a CT scan of the head, cervical spine, and lumbar spine, all of which were read as normal. He was diagnosed with a back contusion and a scalp hematoma and was given instructions to rest, take Tylenol as needed for pain, and to follow up with his primary care provider in the next two days. Employee returned to work two days later, but for reasons that are unclear in the record, no initial injury report was completed until July 27, 2022. Employer accepted the claim under the Longshore and Harbor Workers’ Compensation Act, which allows the employee to name a preference for a treating physician. Employee indicated he had no preference, and as such, Employer scheduled an appointment with Dr. Christopher Pokabla, an orthopedic specialist. Meanwhile, on August 4, 2022, Employee sought medical treatment on his own with Dr. Mohamad Moughrabieh for complaints of pain in his left shoulder and neck. Dr. Moughrabieh’s records reflect that Employee reported falling approximately twenty feet at work. He also reported suffering a loss of consciousness at the time of the fall. Dr. Moughrabieh prescribed a steroid and an anti-inflammatory and also gave Employee injections in his left arm and left hip. He instructed Employee to follow up as needed. Employee also went on his own to a “Minor Medical Center” at Methodist Healthcare on August 15, 2022, where he saw a nurse practitioner for pain in his left shoulder and neck. The nurse practitioner obtained X-rays of Employee’s neck and left shoulder, which were normal, and she prescribed a muscle relaxer and Ibuprofen. The week after that appointment, on August 22, 2022, Employer terminated Employee for excessive absences and tardiness. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 13, .. ICA WV: Bradley v. Ohio County Board of Education .. From October of 2004 to January of 2010, Ms. Bradley worked various roles as part-time employee for the OCBOE. Beginning in January of 2010 to May of 2010, Ms. Bradley served as a Title I Math Substitute at Middle Creek Elementary School and worked as a professional for the 2010 Extended School Year Program Elementary/Middle School Component from July 2, 2010, through August 2, 2010. On August 9, 2010, the OCBOE approved Ms. Bradley's appointment for the 2010-2011 school year as a First Year 205- Day Countywide Technology Integration/Library Media Specialist assigned to Warwood School. Ms. Bradley served as the Countywide Technology Integration/Library Media Specialist until May 2013. In August of 2013, Ms. Bradley was appointed as a 200-Day Fourth Grade Teacher at Middle Creek Elementary School. Ms. Bradley served as a 200- Day Fourth Grade Teacher until her retirement on October 15, 2019. In 2017, Ms. Lewis began serving as principal at Middle Creek Elementary School. According to Ms. Bradley’s Complaint, on numerous occasions, Ms. Lewis called Ms. Bradley into her office to "scold" her for occurrences that Ms. Bradley believed did not warrant principal intervention. Ms. Bradley also alleges that other, younger, teachers complained about her to Ms. Lewis regarding minor classroom issues. On one occasion, Ms. Lewis allegedly angrily reprimanded Ms. Bradley in her classroom, in front of her students and colleagues, because one of Ms. Bradley's students did not hear their bus announcement and missed their bus. Ms. Lewis allegedly did not treat the other Fourth Grade Teacher, who is substantially younger than Ms. Bradley, in this manner. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 12, .. DSC: Sullivan v. Unemployment Insurance Appeal Board .. Appellant Ms. Sullivan appeals from the March 31, 2023 decision of the Unemployment Insurance Appeal Board (“UIAB”) holding that Sullivan had voluntarily resigned from her employment with the United States Postal Service (“USPS”) without good cause in connection with her work, and was disqualified from receiving unemployment benefits. All parties were sent notice of the Court’s briefing schedule. USPS also was notified that, as an artificial entity, it must be represented by counsel. Sullivan filed her opening brief as directed.4 Counsel for UIAB wrote to the Court advising it that it would not be filing an answering brief because Sullivan was challenging the UIAB’s decision on the merits and the UIAB did not have an interest in seeking to have its decision affirmed on appeal. USPS failed to file an answering brief despite the Court issuing it a “Final Delinquent Brief Notice” on May 30, 2024. This failure is consistent with USPS’s failure to appear before the UIAB to defend against Sullivan’s appeal from the decision of the Appeals Referee, despite receiving notice of that hearing. Accordingly, notwithstanding the possible merits of USPS’s position, this Court reverses the determination of the UIAB due to USPS’s failure to respond in violation of Superior Court Civil Rule 107. .. CONTINUED .. COURT DECISION: (.html)
♦ Nov 12, .. FLRA: ARMY v. ACT (union) .. The grievant is a dual-status federal civilian technician under 32 U.S.C. § 709, and, as such, is a member of the National Guard as a condition of his civilian employment. The grievant received orders to “active duty for operational support-reserve component (ADOS‑RC)” effective December 15, 2018, through September 30, 2019, under the authority of 10 U.S.C. § 12301(d). Upon completion of this duty, the grievant requested accrued military leave under 5 U.S.C. § 6323. When the Agency denied the request, the Union filed a grievance alleging the Agency violated the parties’ agreement. The Agency denied the grievance, stating that a technician “on ADOS or ADR [active-duty-reserve] orders of 180 days or more” is ineligible to use accrued military leave under § 6323 because 32 U.S.C. § 709 makes such leave “inapplicable to . . . a National Guard technician . . . who is performing active guard and reserve duty” (AG&R duty) as defined in 10 U.S.C. § 101(d)(6). Arbitrator John Remington issued an award finding the Agency violated the parties’ agreement when it denied the grievant the use of accrued military leave. The Agency argues on exceptions that the award is: (1) incomplete, ambiguous, or contradictory, so as to make implementation of the award impossible; and (2) contrary to law. .. CONTINUED .. FLRA DECISION: (.html)
♦ Nov 8, .. FLRA: NTEU (union) v. Homeland .. Arbitrator Richard Fincher issued an award finding that the Agency did not violate the law, the parties’ national collective‑bargaining agreement (national agreement), or a local memorandum of understanding (MOU) by changing the availability of a particular compressed work schedule, without first notifying and bargaining with the Union. The Arbitrator recognized that the Agency reduced the number of employees who could work a 4/10 schedule – consisting of four ten‑hour workdays each week. However, the Arbitrator also determined that there was no obligation to notify or bargain with the Union because the parties already bargained over the matter, and the Agency did not terminate 4/10 schedules completely. The Union has filed exceptions arguing that: (1) the Arbitrator exceeded his authority by failing to resolve an unfair‑labor‑practice (ULP) issue; (2) the award is contrary to § 7116(a)(5) of the Federal Service Labor‑Management Relations Statute (the Statute),[1] §§ 6130 and 6131 of the Federal Employees Flexible and Compressed Work Schedules Act (the Work Schedules Act), and the covered‑by doctrine; and (3) the award fails to draw its essence from the national agreement and MOU. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 25, .. FLRA: IFP & TE v. NAVY .. The overarching context of the parties’ dispute is their longstanding disagreement regarding the location of the Agency’s Portsmouth Naval Shipyard facility: the Agency asserts the facility is in Maine, whereas the Union asserts the facility is in New Hampshire. However, their negotiability dispute concerns the narrower question of the official duty station of a newly‑established architect position. The Agency assigned the architect position to its Portsmouth Naval Shipyard facility, and designated the position’s official duty station as Kittery, Maine. During negotiations over the architect position, the Union submitted the proposal at issue, which would designate Portsmouth, New Hampshire, as the position’s official duty station. After receiving the proposal, the Agency provided the Union with an unsolicited written allegation of nonnegotiability. On August 10, 2023, the Union filed its petition with the Authority. Subsequently, the Agency filed its statement of position (statement). The Union filed its response on October 17, and the Agency filed a reply to the response on November 1. Pursuant to § 2424.23 of the Authority’s Regulations, an Authority representative conducted a post‑petition conference (conference) with the parties and issued a written record of that conference. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 21, .. FLRA: SPORT (union) v. Air Force .. After the parties began bargaining over ground rules for negotiating a successor agreement to their 1994 collective-bargaining agreement (the 1994 CBA), the Agency filed an unfair-labor-practice (ULP) charge, alleging the Union unlawfully refused to recognize the Agency’s designated bargaining representatives, and notified the Union that it planned to unilaterally implement its last, best proposal as the parties’ new CBA. The Union filed a ULP charge, alleging the Agency’s notification was a failure to bargain in good faith. An Administrative Law Judge found the Union acted unlawfully as the Agency had alleged, and the Agency implemented its last, best proposal – a document that the Authority referred to in SPORT, and which we mostly refer to here, as “the 2017 CBA.” The Union amended its ULP charge to allege the unilateral implementation of the 2017 CBA was unlawful, but later withdrew that charge. The Union continued to challenge the 2017 CBA’s validity by filing numerous ULP charges, grievances, and appeals, which were all denied or withdrawn. In 2020, the Agency notified the Union that it planned to impose a new agreement to replace the 2017 CBA. The Union filed a new ULP charge in Case No. SF-CA-21-0002, alleging the 1994 CBA was still in effect and the Agency was refusing to comply with it. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 18, .. FLRA: AFGE v. VA .. The Department of Veteans Affairs (Agency} operates clinical contact centers that assist veterans in obtaining healthcare services. In 2021, the Agency initiated a reorganization that, in pertinent part, consolidated three clinical contact centers operating within the Black Hills, Minneapolis, and Nebraska‑Western Iowa Health Care Systems, respectively. In conducting the reorganization, the Agency transferred employees to the consolidated clinical contact center (consolidated center), but did not change the location of affected employees’ official duty stations. Arbitrator Joyce M. Klein issued an award finding the Agency violated the Federal Service Labor‑Management Relations Statute by failing to bargain with the Union over changes to employee awards resulting from the Agency’s reorganization. As remedies, the Arbitrator directed prospective bargaining and issued a cease‑and‑desist order. The Union filed an exception arguing the award is contrary to law because the Arbitrator failed to award additional remedies. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 16, .. FLRA: U.S. Marine Corps v. AFGE .. The Arbitrator issued an award finding the U.S. Marine Corps violated the parties’ collective‑bargaining agreement, the Fair Labor Standards Act (FLSA)[...] by failing to properly compensate certain employees (the grievants) for overtime. As remedies, the Arbitrator awarded the grievants backpay with interest for unpaid overtime. The Agency filed exceptions to the award on essence, exceeded‑authority, and contrary‑to-law grounds. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 11, .. FLRA: Justice (Prisons) v. Council of Prison Locals #33 .. The grievant is a correctional officer. One of the grievant’s supervisors (the captain) reported alleged misconduct to the facility’s warden. Specifically, the captain reported that the grievant failed to perform inmate rounds and fraudulently recorded performing rounds in a log book. The Agency issued the grievant a memorandum on February 25, 2020,[1] notifying him he would be temporarily reassigned to a phone‑monitor position (February reassignment) “pending resolution of the disciplinary process.” While reassigned, the Agency issued the grievant another memorandum on May 13 notifying him he would be temporarily reassigned to another phone-monitor position (May reassignment) “pending resolution of the disciplinary process.” Both memoranda indicated that the grievant was prohibited from working overtime during the reassignments. On July 6, the Agency temporarily reassigned the grievant to a laundry and food service position (July reassignment), and on August 10, the Agency reassigned the grievant back to a phone-monitor position (August reassignment). The Agency did not issue accompanying memoranda regarding the July and August reassignments. On October 8, the Union filed a grievance alleging the Agency violated the parties’ collective-bargaining agreement by erroneously reassigning the grievant and denying him the opportunity to work overtime assignments. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 2, .. FLRA: Justice (Prisons) v. AFGE .. The Federal Labor Relations Authority’s (FLRA’s) General Counsel (GC) issued a complaint alleging the Respondent violated [...] the Federal Service Labor‑Management Relations Statute (the Statute) by unreasonably delaying its response to a Charging Party request for information. When the Respondent did not timely file an answer to the complaint, the GC moved for summary judgment. In the attached decision, an FLRA Administrative Law Judge (Judge) found that, under § 2423.20(b) of the Authority’s Regulations, the Respondent admitted to the complaint’s allegations by filing an untimely answer. Consequently, the Judge granted the GC’s motion. On July 1, 2024, the Respondent filed an exception to the Judge’s decision, and on July 17, 2024, the GC filed an opposition to the exception. .. CONTINUED .. FLRA DECISION: (.html)
♦ Oct 2, .. FLRA: Justice (Prisons) v. AFGE .. The Agency hired the grievants as teachers in the education department of its correctional facility. On June 8, 2023, the Union filed a grievance alleging the Agency violated the parties’ agreement and the FLSA by failing to properly pay the grievants. The matter proceeded to arbitration. The Union argued that “during the relevant recovery period from June 8, 2020, through June 2023,” when the grievants worked overtime, the Agency improperly paid them at less than the overtime rate required by the FLSA. .. CONTINUED .. FLRA DECISION: (.html)
♦ Sep 27, .. PCC: PA Liquor Control Board v. Berardi .. The Pennsylvania Liquor Control Board (Employer) petitions for review of the Workers’ Compensation (WC) Appeal Board order granting Mr. Berardi’s (Claimant) Petition to Receive Compensation Benefits. Background Claimant worked for Employer as a clerk at a Pennsylvania Fine Wine and Good Spirits store, where he primarily stocked shelves and assisted customers. On June 29, 2019, Claimant tripped over a cement barrier and fell on his right knee and right elbow when returning to work from lunch. Claimant continued to work from June 29, 2019, to July 11, 2019, with worsening right knee pain. Employer placed Claimant on modified-duty employment from July 11, 2019, to July 20, 2019. Even though no doctor advised him against working, Claimant stopped working after July 20, 2019. Claimant underwent surgery on his right knee on October 10, 2019. Claimant then returned to work in a modified-duty capacity, pursuant to a release signed by his surgeon (Dr. Katzman), on November 8, 2019. On August 3, 2020, Employer sent Claimant a letter indicating he was entitled to a period of six months of modified-duty employment, which would expire on August 25, 2020. The letter explained Claimant would “not be allowed to work beyond August 25, 2020[,] . . . unless [his] physician released him to perform full duties by this date.” Claimant’s physician did not release him to full duty, so Employer terminated Claimant’s employment on August 25, 2020. Claimant first attempted to obtain WC benefits by filing a Claim Petition alleging he injured his right knee in the course and scope of his employment with Employer. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 27, .. 8th Cir.: Deering v. Lockheed Martin Corp. .. After Lockheed Martin fired Ms. Deering, one of its in-house lawyers, she sued for discrimination and retaliation. Summary judgment marked the end of the road for her discrimination claim, but her retaliation claim would have gone to a jury if she had not spent more than a year and a half misleading Lockheed and the district court about her employment. The deception began at her deposition, when she claimed to be “currently employed” by a company called nVent. As Lockheed would later learn, she had already accepted a job elsewhere that paid significantly more money. Yet when Lockheed’s counsel specifically asked about her job hunt, she replied that it was “exhausting and disheartening to keep applying for jobs and not get[] anything,” so she had not “looked for any alternative employment while . . . working for nVent.” Despite signing an errata sheet afterward, she made no attempt to correct the inaccuracy. Instead, she doubled down on the deception. Several months after the deposition, long after she had started working at the other company, she submitted a declaration, along with a copy of her résumé, to the district court. The first item listed was “Associate General Counsel, Director” at nVent, a role she had purportedly held from February 2021 to the “present.”. Then, in two confidential settlement letters, she “referenced nVent as [her] current employer and used her salary and benefits there as a basis for her damages calculation.”. No mention of any other employer. Lockheed only discovered the deception in the weeks leading up to trial. A disclosure listed her “actual income” for the previous year as $260,866, but tucked within her trial exhibits were two documents telling a different story. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 26, .. OSC: Cleveland Metro. Bar Assn. v. Smith .. Respondent, Mr. Smith III, of Beachwood, Ohio, was admitted to the practice of law in Ohio in 1984. On April 7, 1993, we suspended Smith’s license to practice law on an interim basis following his conviction of theft of government property On June 22, 1994, we suspended Smith from the practice of law for two years with credit for the time he had served under the interim suspension for ethical violations arising from his criminal offense. We reinstated him to the practice of law on November 21, 1995. In April 2023, relator, Cleveland Metropolitan Bar Association, alleged in a three-count complaint that Smith had misappropriated settlement funds owed to one of his clients and to a medical center that treated several other clients. Relator further alleged that Smith had failed to maintain required client-trust- account records, failed to reduce a contingent-fee agreement to writing, and failed to inform a client that he did not carry professional-liability insurance. Although Smith waived a probable-cause determination, he failed to timely answer the complaint, and the director of the Board of Professional Conduct certified Smith’s default to this court. Smith timely responded to our order to show cause why an interim default suspension should not be imposed. In mitigation, Smith submitted five character letters attesting to his good character, several of which highlighted his community involvement and dedication to serving underserved constituencies and persons of limited financial means, as well as his pro bono work for his church and its members and for the NAACP. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 26, .. CANC: Kinlaw v. N.C. Dept. of Health & Hum. Servs .. Mr. Kinlaw (“Petitioner”) was working as a member of the health care field at the Atrium Health Behavioral Health clinic in Charlotte, North Carolina, when DHHS began investigating allegations against Petitioner of patient abuse and neglect when Petitioner “aggressively handled the patient and pushed the [patient] to the floor.” DHHS mailed a notice letter to Petitioner via certified mail on 4 October 2022, which contained notice of the investigation, and stated that Petitioner’s name was being placed on the North Carolina Health Care Personnel Registry for charges of patient abuse and neglect. The letter also contained further instructions on Petitioner’s right to appeal. On 6 October 2022, Petitioner received a notification from the United States Postal Service informing him that he was to receive a letter from DHHS that day, but Petitioner stated the letter did not arrive. Two days later, on 8 October 2022, Petitioner went to the post office to inquire about the letter and was informed that the letter was still in transit. On 10 October 2022, after another two days of not receiving the letter, Petitioner returned to the post office, where he was again told the letter was in transit. On that same day, Petitioner spoke with Paula Evans, DHHS’s investigator for Petitioner’s case, and Ms. Evans instructed him to wait for the letter. Ms. Evans further informed Petitioner that once Petitioner received the letter, he would have thirty days to appeal. Over a week later, on 19 October 2022, Petitioner still had not received the letter and requested Ms. Evans to email him the letter. Ms. Evans emailed the letter to Petitioner the following day. Once Petitioner received the letter, the instructions to appeal informed him to call the Office of Administrative Hearings (“OAH”) for more information and provided him the number to do so. Petitioner called OAH eight times between 25 October and 28 October 2022 before receiving the necessary information to appeal to the OAH. On 6 November 2022, Petitioner emailed his appeal to the OAH as directed, and it was filed on 7 November 2022. Upon appeal to the OAH, on 22 March 2023, Administrative Law Judge Selina Malherbe dismissed Petitioner’s appeal for lack of subject matter jurisdiction. In doing so, Judge Malherbe found that Petitioner had failed to timely file his appeal, reasoning that, an appellant must file his appeal within thirty days following the mailing of DHHS’ written notice; Petitioner filed his on 7 November 2022. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 26, .. MAC: ROSENCRANZ v. IANTHUS CAPITAL HOLDINGS .. The plaintiff, Mr, Rosencranz, brought this action against his former employer, Ianthus Capital Holdings, Inc., and its subsidiary, Mayflower Medicinals, Inc. Mayflower owns and operates medical cannabis dispensaries in Massachusetts. On September 12, 2018, Mayflower offered Rosencranz a position as a "packager/trimmer" at its Allston location. Rosencranz accepted the offer of employment by signing an offer letter on September 17, 2018. The offer letter contained a broad arbitration clause, which states in relevant part that: [[[[[[[[[]]]]]]]]] "Any controversy or claim arising out of this offer letter or your employment shall be settled by binding arbitration under the auspices of the American Arbitration Association ('AAA') in Boston, MA in accordance with the Employment Dispute Resolution Rules of the AAA." [[[[[[[[[]]]]]]]]] Rosencranz then began working at the dispensary on or about October 30, 2018. In September 2019, Mayflower terminated Rosencranz's employment. Rosencranz filed this lawsuit in September 2022, claiming, among other things, that Mayflower unlawfully terminated his employment. Mayflower filed a motion to dismiss or, in the alternative, to compel arbitration Mayflower asserted that all of Rosencranz's claims arose from his employment and, consequently, the terms of the arbitration clause required that the claims be resolved in arbitration. Rosencranz opposed the motion. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 24, .. FLRA: NAIL v. AirForce .. The grievant was employed at the Department Of The Air Force Scott Air Force Base, Illinois. On December 4, the grievant and a coworker engaged in a verbal altercation that escalated to physical contact (physical altercation), and several employees stepped in to deescalate the situation. Subsequently, the Agency conducted an investigation. Based on witness statements, the Agency determined that, while both the grievant and the coworker were culpable, the grievant was the “instigator of the altercation.” Less than eight months earlier – on April 23, – the Agency had issued the grievant a letter of counseling for a verbal altercation with a different coworker involving abusive language, which stated that his “inappropriate behavior points to a recurring pattern of anger outbursts in the workplace,” and that “any future incidents such as these will not be tolerated and may result in a disciplinary action to include removal from your position.” Following an investigation into the physical altercation, the Agency charged the grievant with behavior unbecoming a federal employee and proposed removing him. Considering the evidence in the notice and the grievant’s response, the deciding official sustained the charge against the grievant but imposed a fourteen-day suspension rather than a removal. The Union grieved. .. CONTINUED .. FLRA DECISION: (.html)
♦ Sep 24, .. OCA: Akarah v. Ohio Dept. of Rehab. & Corr .. Mr. Akarah, a licensed practical nurse, worked at Ohio Department of Rehabilitation and Corrections (“ODRC”)’s Franklin Medical Center (“FMC”) through a staffing agency known as Around-The-Clock staffing. On October 24, FMC nursing supervisor Tammy Blackmon received an email stating that Mr. Akarah was a no call no show “for 2nd shift” and that he “[c]alled stating he [would] be 20 minutes late for 3rd” shift. On November 6, an ODRC employee filed an incident report stating that Mr. Akarah did not complete a patient’s wound dressing change during his shift as required. Following the November 6, incident report, Ms. Blackmon reviewed Mr. Akarah’s “recent charting” and discovered that Mr. Akarah “failed to complete patient dressing changes on October 30 and November 1, 2, and 4, and had failed to document meal consumption for multiple patients on multiple dates.” On November 8, Ms. Blackmon created an incident report addressing Mr. Akarah’s documentation and performance issues. Ms. Blackmon also sent an email to Jesse Templeton, the ODRC employee responsible for scheduling agency nurses, stating that ODRC “may need to evaluate [Mr. Akarah’s] continued employment” due to his recent incident reports. On November 8, Mr. Akarah received a text message stating he would be removed from his assignment at FMC due to “absenteeism, arriving late to his scheduled shifts, and for refusing to provide treatment to a patient.” Mr. Akarah stated that Around-The-Clock staffing attempted to place him at other ODRC facilities following his removal from FMC, but could not, because ODRC had placed his name “on a ‘Do Not Employ’ list.” Mr. Akarah filed a charge of age discrimination against ODRC with the Equal Employment Opportunity Commission (“EEOC”) .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 23, .. DcDc: Greer v. Bowser .. Plaintiff Billy Greer worked for the University of the District of Columbia for nearly 30 years. Plaintiff worked as a D.C. Government Police Officer with the UDC Department of Public Safety and Emergency Management for nearly three decades. On June 7, 2020, while on patrol, he opened a door to retrieve his personal DVDs from campus and the door collapsed on his toe. Greer was later told that his toe was fractured and that he needed to wear a boot as it healed. Following the injury, he filed a workers’-compensation claim with ORM. After fracturing his toe on campus and filing a workers’-compensation claim for that injury, Greer returned to UDC only to be fired months later on the ground that such claim was fraudulent. He brought this action — one of several he has filed with the Court on the same facts — against D.C. Mayor Muriel Bowser, the D.C. Office of Risk Management, and various individuals working at ORM in their individual capacities. He alleges violations of the Americans with Disabilities Act and his due-process rights, as well as defamation and civil conspiracy. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 23, .. CAT: McMurtrie v. Sarfo .. Plaintiff’s job was to oversee campus security and supervise the college’s five security guards who worked in rotating shifts. Plaintiff is a former Pennsylvania state trooper and former FBI agent, but he had retired from those jobs before accepting the position at Maryville College in 2018. Neither Plaintiff nor the other security guards who worked under him were sworn law enforcement officers. They were not deputized officers of any city or county. They did not carry weapons and had no authority to seize or arrest anyone. On July 9, 2021, Defendant-Appellant Ransford Sarfo, a 2010 graduate of Maryville College who lives out-of-state, was visiting campus in a rented Toyota Prius. As Plaintiff approached a sharp turn in front of Carnegie Hall on Circle Drive, he observed the Prius stopped in the middle of the roadway with its four-way emergency flashers activated. It was steadily raining and dark due to storm clouds overhead, and Plaintiff believed the car posed a hazard due to its position in the roadway and the low visibility. Plaintiff then observed an arm emerge from the driver’s side window as if to wave him to go around, at which point Plaintiff pulled his vehicle around and stopped beside Sarfo’s Prius, on the driver’s side. Sarfo glanced at Plaintiff. Plaintiff lowered his passenger side front window to speak with Sarfo, who did not engage with him. Plaintiff then tapped his horn. Sarfo then lowered his own driver’s side window. Still seated in his vehicle, Plaintiff asked Sarfo “why are you parked in my driveway?” Plaintiff maintains that he meant this as a joke. Sarfo replied that he had stopped for a photograph because he used to live in Carnegie Hall and that, as an alum, he had a right to be there. Sarfo also advised Plaintiff that he was having trouble shifting the rented Prius out of park. Plaintiff told Sarfo that he still needed to move his car out of the middle of the road and could continue taking photographs from one of the several open parking spaces in front of Carnegie Hall. Sarfo asked Plaintiff to identify himself, so Plaintiff told him his name and title of Director of Safety and Security. Sarfo, uncomfortable and offended, advised Plaintiff that this would not be the end of the matter. Plaintiff then drove away. He observed Sarfo drive away, too. The entire interaction between the two men lasted approximately one minute. There is no evidence in the record to suggest that Plaintiff knew Sarfo was a person of color when he first approached him about the improperly parked car. The next day, Sarfo wrote an email about his interaction with Plaintiff to Maryville College’s President, Bryan Coker, and six other college officials. The subject line was “MC Alumni harassed on campus.” The email stated, in part: I was deeply troubled that [Plaintiff] did not ask why my hazard lights were on, but assumed that I did not belong on the campus. In my years at the College, I never heard a staff member refer to any part of the campus as their property to justify their reasoning for another person to leave. It is very disheartening that I came back to a place I call home and was told by a staff member that I was on their property and asked to leave. I AM HURT! I will be reaching out to every alumni committee that I know to share my experience yesterday. On Sunday August 8, 2021, The Daily Times ran a front-page article with the headline, “‘Must do better’ Coker: MC needs to improve its inclusivity.” The article began, “An incident last month in which a White security officer questioned a Black alumnus on the Maryville College campus has President Bryan Coker saying the school ‘can – and must – do better, when it comes to creating and maintaining a welcoming, supportive, and inclusive environment for all.’” .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 23, .. FLRA: AFGE v. Veterans Affairs .. The grievant is the Union president and is exempt from the Fair Labor Standards Act. His work group holds daily meetings to discuss current issues, upcoming assignments, and other work‑related topics. On March 30, 2020, the Agency emailed employees to remind them that the Agency’s overtime policy states overtime “can be requested in advance but should not be requested retroactively,” and that “[w]ithout prior approval from your supervisor, you should not work outside of your scheduled tour.” During shutdowns related to COVID‑19, the grievant’s daily morning meetings started at 8:15 a.m., and his daily afternoon meetings started at 12:45 p.m. The grievant’s tour of duty is from 8:30 a.m. to 5:00 p.m., including an unpaid lunch break from 12:30 p.m. to 1:00 p.m. From March 31, 2020, through May 24, 2023, the grievant kept a daily record of each meeting that he attended outside of his tour of duty. However, during that period, the grievant neither requested overtime pay for attending the daily meetings nor informed his supervisor that he was attending the meetings outside of his tour of duty. Then, on May 24, 2023, the grievant emailed his supervisor requesting over three years’ worth of overtime pay for his participation in the daily meetings that occurred outside of his tour of duty. On May 31, 2023, the Agency denied the grievant’s request. .. CONTINUED .. FLRA DECISION: (.html)
♦ Sep 14, .. FLRA: Army v. AFGE .. Arbitrator Robert B. Hoffman issued an award finding the U.S. Army violated the parties’ collective‑bargaining agreement by requiring certain employees (the grievants) to attend training that: occurred on an “‘in-lieu-of’ holiday” lasted more than eight hours a day, on two consecutive days; and caused the grievants to miss their contractually guaranteed lunch period on those days. The Arbitrator awarded various remedies. The Army filed exceptions arguing that the Arbitrator exceeded his authority and that the award is: contrary to law; based on a nonfact; and incomplete, ambiguous, or contradictory, so as to render implementation of the award impossible. .. CONTINUED .. FLRA DECISION: (.html)
♦ Sep 12, .. 9th Cir.: Adams v. County of Sacramento .. Ms. Adams began working for the Sacramento County Sheriff’s Office (“Department”) in 1994. She became Chief of Police for the City of Rancho Cordova in March 2020. In 2021, she was forced to resign from that post over allegations that she sent racist messages. In March 2022, the President of the Sacramento chapter of the NAACP published an open letter stating that Adams had sent racially charged pictures to other Sheriff’s Department employees; the letter described the hose-spraying image and called for accountability. The Sacramento Bee then published an article repeating the open letter’s allegations. As a result, Adams resigned from her longtime adjunct teaching position at a local university, and two prospective employers ended their consideration of her. Ms. Adams sued. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 12, .. DC DC: Sobot v. Clean the World Foundation Inc .. Plaintiff, Mr. Sobot, began employment with Defendant, Clean the World Foundation, Inc., as “Director, Development of Fundraising” on August 1, 2019. His initial annual salary was $110,000, but he was promised an increase to $120,000 if he personally raised $100,000 in new funds, and $125,000 if he personally raised $150,000 in new funds. Plaintiff was never compensated at a higher rate, however. Instead, his salary was reduced three times between November 2019 and April 2020, before it was reinstated Defendant’s declarant provided that, during Plaintiff’s two years of employment, he personally raised $131,000 in new funds Plaintiff, however, asserts that he personally raised close to $1 million in new funds, primarily because of a Center for Disease Control (“CDC”) grant valued at approximately $990,000. On January 10, Plaintiff took sick leave. Defendant nonetheless informed him of his termination and offered him a severance package which he rejected. Sobot sued Clean the World Foundation, alleging several violations of D.C. employment law after he was terminated while on sick leave. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 12, .. 6th Cir.: Siefert v. Liberty Twp., Ohio .. Liberty Township is located in Trumbull County, Ohio. In July 2020, Liberty Township’s police captain tasked Mr. Siefert, the Township’s maintenance technician, with installing new dashboard cameras in four of the Township’s police cruisers. The captain gave Siefert two weeks to complete the installations, and although Siefert had not previously worked with such equipment, he told the captain that he could finish the installations on that timeline. The captain also impressed upon Siefert the importance of completing the task on time, as representatives from the dashcam manufacturer were set to fly in and install software on the day of the deadline. Despite Siefert’s assurances, the installations did not go as planned. Over the following two weeks, both the police captain and the Township’s IT specialist periodically checked in with Siefert to assess his progress and, as late as four days before the agreed deadline, Siefert indicated that he would get the cameras installed on time. Yet on deadline day, three of the dashcams were either not installed properly, or not installed at all. And to make matters worse, when the Township’s IT specialist stopped by Siefert’s workstation that afternoon to ask him about the mis-installed cameras, Siefert was on his computer scrolling through classmates.com, a social-networking site. When questioned about the installations, Siefert ignored the IT specialist — a behavior that struck the specialist as “out of character.” The same day, Township officials learned that Siefert had not only failed to complete the necessary installations, but had, in fact, worked on a police vehicle not slated for a new dashcam, damaging that vehicle — which was brand new — in the process. Likewise, Township officials learned that Siefert spent several hours a day during the two-week project surfing personal websites on his computer. An official communicated this information to a Township trustee that evening. The Township quickly moved to terminate Siefert’s employment. The Township trustees met for a board meeting, voting unanimously to discharge Siefert from his role as the Township’s maintenance technician. The trustees then dispatched the Township’s chief of police to the hospital with a termination letter, which informed Siefert that “the Liberty Township Trustees had terminated his employment effective immediately.” The letter contained no further explanation for his firing. Siefert’s sued the township for interference with his leave rights under the Family and Medical Leave Act (“FMLA”) and for employment discrimination in violation of the Ohio Civil Rights Act (“OCRA”). .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 12, .. CCP: Dogrusoz v. PA Dept. of L&I .. Claimant’s Petition for Review alleges as follows. In March 2020, Claimant applied for Pandemic Unemployment Assistance3 (PUA) benefits with the Department. On May 7, 2020, Claimant received a notice of determination awarding him $195.00 per week, the minimum PUA benefit amount, effective March 15, 2020. In early June 2020, Claimant’s PUA benefits were increased to $322.00 per week, retroactive to March 15, 2020, without explanation. On October 2, 2020, Claimant received an email advising that his PUA benefits were being reduced back to $195.00 per week and directing him to provide additional income information by the end of calendar year 2020 to obtain a redetermination of benefits. On October 5, 2020, Claimant’s access to his PUA benefits portal was terminated and he was unable to review or upload documents relevant to his claim. By email dated December 27, 2020, Claimant submitted additional income information to the Department. Claimant received a Notice of Determination from the Department dated June 16, 2021, issuing a non-fraud overpayment (Overpayment Determination) in the amount of $5,292.00 for excess PUA benefits paid. Claimant sent an email dated July 1, 2021, appealing the Overpayment Determination, and requesting a redetermination of his benefits. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 10, .. DcDc: Hill v. Xtreme Solutions Inc. .. Plaintiff Ms. Hill began working for Defendant Xtreme Solutions, Inc. (“XSI”) on May 31, 2022 where she supported the company’s contract at the D.C. Passport Office. In September 2022, Hill requested medical leave until January 2023. XSI instead terminated her employment, citing chronic absences and tardiness. Hill then filed this lawsuit, claiming that the dismissal violated the Family Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), and her contract of employment. XSI moves to dismiss Hill’s Complaint, and the Court grants that motion. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 10, .. CCA: Vargas v. City of Long Beach .. Internal Affairs Investigation of police officer Vargas and police officer Orduno. The City of Long Beach’s administrative complaint against Vargas listed three allegations of untruthfulness: (1) in written discovery responses, Vargas was untruthful when he asserted that he had been selected for the role of acting sergeant on multiple occasions prior to complaining about detrimental comments made by Lieutenant Christopher Klein; (2) in written discovery responses, 2015, Vargas was untruthful when he asserted that he had previously filed a race discrimination complaint against the City that ended with a judgment in his favor; and (3) in written discovery responses, Vargas was untruthful when he asserted that he was denied further access to overtime. City decision makers sustained the three allegations against Vargas. The City of Long Beach’s administrative complaint against Orduno listed, among others, three allegations of untruthfulness: (1) in written discovery responses, Orduno was untruthful when he asserted that he had complained about the City’s treatment of Vargas and Lieutenant Klein’s comments about Vargas; (2) in written discovery responses, Orduno was untruthful when he asserted that he experienced a lack of assistance on traffic stops which was a noticeable difference from the assistance he received prior to being required by the City to wear an audio recorder; and (3) in written discovery responses, Orduno was untruthful when he asserted that he experienced difficulty in complying with the requirement to issue seven traffic violations in a five hour period. City decision makers sustained the three allegations against Orduno. Vargas and Orduno were notified in writing that the allegations of untruthfulness against them had been sustained. Vargas and Orduno were both notified in writing that they had been dismissed from their employment as police officers with the City. Police officers Vargas and Orduno sued the City of Long Beach. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 10, .. CCA: Rodriquez v. Stantru Resources .. Plaintiff Ms. Rodriguez began working for Stantru, doing clerical and administrative work. Torrey supervised her. In April 2018, Rodriguez learned that she was pregnant with her third child, and she told Torrey about the pregnancy. Torrey questioned Rodriguez about her plans, asking “‘How are you going to do this?’” Rodriguez explained that she planned to fulfill her work responsibilities competently and then take maternity leave. Rodriguez alleges that over the next six months Torrey and Stantru’s owner repeatedly questioned Rodriguez about how she planned to work while having three children. Rodriguez alleged the following causes of action against Stantru: (1) disability and pregnancy discrimination under the California Fair Employment and Housing Act (FEHA); (2) pregnancy and disability harassment under FEHA; (3) several claims of retaliation, including that she was retaliated against for complaining about discrimination and harassment under FEHA; (4) failure to provide reasonable accommodation; (5) failure to engage in the interactive process; (6) failure to prevent discrimination, harassment, and retaliation; (7) negligent hiring, retention, and supervision; ( 8) wrongful termination in violation of public policy; and (9) intentional infliction of emotional distress. As to Torrey, Rodriguez alleged claims of pregnancy and disability harassment and intentional infliction of emotional distress. Rodriguez sought punitive damages against Stantru. Defendants filed an answer to the complaint, denying all of the allegations. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 09, .. 9th Cir.: Shepherd v. City of Seattle .. The Seattle Chief of Police terminated Mr. Shepherd’s employment as a City police officer after determining that he used excessive force during an arrest. Pursuant to a collective bargaining agreement between the City and the police union (“CBA”), Shepherd appealed his termination to a disciplinary review board (“DRB”). After investigations and a hearing, the DRB ordered the City to reinstate Shepherd within fifteen days. Under the CBA’s arbitration provision, the DRB’s reinstatement order was supposed to be final and binding on the parties. But the City did not reinstate Shepherd. Instead, it sought review of the DRB’s decision in Washington state courts, which eventually voided the reinstatement order as contrary to public policy. Shepherd’s employment was never reinstated. Shepherd, who is African American, then filed this suit in federal court, alleging, inter alia, that the City did not appeal unfavorable DRB determinations in cases involving similarly situated white officers and thereby discriminated against him and breached the CBA in violation of state law. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 09, .. CCA: Miller v. Dept. of Corrections and Rehab .. Plaintiff and appellant, Maria Miller, has been employed as a correctional officer with the California Department of Corrections and Rehabilitation (CDCR) at the California Institute for Women (CIW) since 2008. In 2016, she was injured as the result of a slip and fall incident while working off-site in a temporary assignment assisting with officer recruitment. In 2018, CDCR placed plaintiff on an unpaid leave of absence shortly after her wage replacement benefits in the worker’s compensation system were exhausted. Eventually, CDCR offered to medically demote plaintiff to an alternative available position that would accommodate her work restrictions. However, plaintiff did not accept the position offered, informed CDCR that she suffered from a previously undisclosed mental disability that prevented her from returning to work while receiving treatment, and has remained on an unpaid leave of absence since that time. In 2020, plaintiff filed suit in part, disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and retaliation. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 09, .. 5th Cir.: Pumphrey v. Triad Life Sciences .. This case arises from an employment dispute in Oxford, Mississippi. The plaintiff, Samuel Pumphrey, began working for Triad Life Sciences a few years ago as a sales director for wound graft products. According to Pumphrey, he excelled in this role, collecting millions of dollars in revenue and never receiving “a single complaint about his performance.” Pumphrey attributes his success to his “fifteen years of experience in the medical device industry.” Also attributable to his experience, Pumphrey says, is his knowledge of the “federal laws that govern the medical industry,” including the anti- kickback statute. And it was “because of his familiarity with the” anti-kickback statute, Pumphrey continues, that he “grew concerned when he learned that” Triad’s CEO, Russel Olsen, had allegedly “enticed physicians to purchase from Triad with significant monetary inducements.” Eventually, Pumphrey reported Olsen’s activity to others at Triad. Yet none of them, Pumphrey says, took his concerns seriously. A few days after he reported Olsen’s activity, Pumphrey was notified that his “position was being eliminated pursuant to a corporate restructuring.” .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 06, .. 5th Cir.: Davis v. Miami-Dade County .. Mr. Davis is a white man who was hired in June 2017 as Director of Policy and Legislation for the Miami-Dade County Board of County Commissioners, in the Office of the Commission Auditor. He was qualified for this position based on, among other things, his prior career as an air force officer. During his 32-month tenure working for the County, Davis performed his job duties as he understood them and was never disciplined or counseled for any misconduct or performance issues. Davis’s supervisor was a Black man named Adeyinka Majekodunmi. In February 2020, when Davis was 59 years old, Majekodunmi summarily fired Davis on the sole ground that “Davis was not meeting Majekodunmi’s vision.” After firing him, the County gave Davis’s job duties to his subordinate, a 32-year-old Black man named Phillip Edwards, who had started working for the County around when Davis had. Davis was the only white man in a leadership position in the Office of Commission Auditor at the time of his termination. Davis sued the County, alleging that it had engaged in race discrimination and age discrimination Davis alleged that despite never having given him any negative feedback, the County fired him and replaced him with a much younger Black man. The County moved to dismiss the complaint, and the district court agreed. It reasoned that because Davis had neither alleged a prima-facie case of discrimination under the McDonnell Douglas evidentiary framework nor offered a “convincing mosaic” of circumstantial evidence to support his case, Davis had failed to state a claim. After careful review --- We reverse and remand the case. REVERSED AND REMANDED. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 06, .. 11th Cir.: Mudahy-Nicholson v. City of Miami .. In January 2022, Suzann Mudahy-Nicholson, represented by counsel, sued her former employer, the City of Miami, alleging that it engaged in sex discrimination, race discrimination, disability discrimination and retaliation. Mudahy-Nicholson’s complaint alleged the following. She was a black lesbian woman with a disability who started working for the City in 2004. When she began working, she was informed that the department head did not want a “convicted felon” working in his department and that her supervisor had tried to withdraw her job offer because of her “background.” While working for the City, she had been denied a promotion, despite being qualified, and she had faced insults from coworkers and supervisors. She had also suffered workplace injuries and had been denied accommodations relating to those injuries. She was harassed based on her sex and her sexual orientation by one of her coworkers. On one occasion, she was confronted by a City commissioner who made a racially derogatory remark about her. During that incident, she was pushed, fell, and sprained her hip. She later sued the commissioner involved in the incident, and the City began an investigation. After the City scheduled a meeting regarding the incident, she declined to attend because her attorney had scheduling conflicts, and the City subsequently terminated her for her failure to attend. However, she contended that this reason was pretext for discrimination on the basis of race, sex, and disability, and was in retaliation for her complaints about discrimination. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 06, .. Fed Cir.: Wilson v. MSPB .. Ms. Wilson was employed by the VA as a Program Support Clerk with the Veterans Health Administration in Cleveland, Ohio starting in May 2022, and her employment was subject to a two-year probationary period. During her employment, Ms. Wilson sought to apply for another position for which she alleges she was qualified but ultimately not selected. In September 2022, Ms. Wilson communicated to her supervisors her intent to file an equal employment opportunity (EEO) complaint regarding her nonselection. She then contacted the VA’s EEO officer and filed an EEO complaint alleging discrimination based on her disability, race, age, reprisal, and involvement in a protected activity. In October 2022, Ms. Wilson filed a complaint with the Office of Special Counsel (OSC) alleging that, in relation for her EEO activity, she was subject to a hostile work environment, false complaints, and harassment; had compensation withheld from her; and was terminated from her position in December 2022, seven months into her two-year probationary period. The OSC closed its investigation into Ms. Wilson’s complaint in January 2023, issuing her a letter notice that: (1) stated she had exhausted her OSC administrative remedy, and (2) informed her of MSPB appeal rights. On March 17, 2023, Ms. Wilson, who was represented by counsel, timely filed an individual right of action (IRA) appeal with the MSPB “alleging she was harassed, had compensation to which she was entitled withheld, and was eventually terminated in an attempt to conceal discriminatory conduct.” .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 4, .. DcDc Byrd v. Department of Defense .. While serving in the Navy for over six years, Mr. Byrd worked mainly in aircraft maintenance as an Aviation Machinist’s Mate. In 2008, however, he deployed to Iraq to guard high-risk detainees. Following his return from Iraq in mid-2009, Byrd returned to his work in aircraft mainte- nance as an Aviation Machinist’s Mate. He performed adequately during his first few months back, but in November 2009 he picked up several misconduct violations—failure to obey an order or regulation, assault, and drunken disorderly conduct—that resulted in a pay reduction and other penalties. Although his command expected Byrd to “put this incident behind him,” he committed other infractions in March 2010. After that incident, Byrd’s officer-in-charge noted that his “irresponsible use of alcohol” was a “deficienc[y] in his performance.” Byrd’s clinical social worker believed that he needed inpatient treatment, Byrd’s doctors eventually referred him to the Navy’s system for evaluating disabilities and assessing whether a member is unfit to keep serving. The evaluation board found that Byrd was fit, rendering him ineligible for disability-based retirement benefits. Byrd unsuccessfully appealed that decision to a review board. He then sued the Department of Defense under the Administrative Procedure Act, alleging that the review board’s decision was, among other things, arbitrary and capricious. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 4, .. 6th Cir.: Root v. Decorative Paint, Inc. .. Ms. Root worked as a production associate for Decorative Paint, Inc. (“DPI”). Root has suffered from symptoms of COPD and asthma since as early as 2016. For over three years, these conditions did not prevent her from working as a production associate assigned to the “Rework” department at DPI, a small Ohio plant specializing in painting and injection molding automotive parts. Production associates assigned to Rework were required to “re-work” parts that had imperfections. This process primarily involved removing blemished parts from the production line and sanding them down to prepare them to be repainted. Like other skilled jobs at the plant, Rework tasks had to be performed by qualified and proficient employees. Every production associate in the plant was assigned to a specific job on the production line and would only be transferred to do a different job on the line if qualified to do the work. Root possessed multiple qualifications and occasionally filled in as needed to perform work in other areas of the plant. These other areas were categorized alphabetically based on their position on the manufacturing line. When Root filled in for other positions—usually on the A-line or the D-line—it was normally for no more than a couple of hours at a time. In February 2020, Root took FMLA leave to undergo a medical procedure about one month before the COVID-19 pandemic struck. During Root’s leave, DPI laid off a large portion of its workforce due to the pandemic. Though Root was medically cleared to return to DPI on May 9, 2020, she was unable to immediately resume working because DPI had not fully reinstated its employees. Meanwhile, due to its low personnel numbers, DPI required returning employees to perform a range of duties beyond their usual assignments. This frequently required employees to move between stations or lines as needed. However, DPI’s workforce changes did not seem to affect the Rework department in the same way. With the exception of Root, the same six individuals who were assigned to Rework pre-COVID continued to primarily work there during and after the COVID layoff. As was the case before the layoff, Rework production associates continued to occasionally assist in other areas when needed. Ms. Root lost her job as a production associate for DPI after she presented a letter from her doctor indicating that she should not work around paint fumes. She subsequently filed suit against DPI, claiming disability discrimination under the Americans with Disabilities Act (“ADA”). .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 4, .. CCA: Jordan v. Molina Healthcare .. In 2018, Jordan had been employed by Molina for some 13 years and was at that time employed as a junior analyst. In August of that year Jordan injured his back while moving furniture at home. He was treated by Darryl Jacobs, D.C., who diagnosed injuries to the lumbar and cervical spine and placed Jordan on a medical leave of absence beginning that day. On September 13, 2018, Dr. Jacobs forwarded to The Hartford (“Hartford”), Molina’s third-party benefits administrator, an Attending Physician’s Statement regarding Jordan. In that statement, Dr. Jacobs confirmed that Jordan was disabled beginning August 28, 2018, and that his expected “return to work” date was November 14, 2018. Jordan was approved to take medical leave through November 14, 2018. He also applied for and began receiving short-term disability benefits. On Tuesday, January 22, 2019, Jackie Harrison, a Molina human resources manager and Sheet’s supervisor, sent Jordan a termination letter. On appeal, Jordan argues that he was terminated because of his physical disability, in violation of California’s Fair Employment and Housing Act. .. CONTINUED .. COURT DECISION: (.html)
♦ Sep 4, .. TCA: Garner v. State of Tennessee .. The plaintiff, Ms. Garner, in this case sued the State of Tennessee, Tennessee Department of Correction, alleging that it refused to hire her for employment solely on the basis of her disability. The complaint asserted a single claim -- for violation of the Tennessee Disability Act. During the three years of litigation that followed, the plaintiff's TDA claim survived a motion for summary judgment and was eventually tried before a jury over the course of five days. The jury returned a verdict in favor of the plaintiff but awarded her only $10,000 for lost wages and $5,000 for compensatory damages. The plaintiff's counsel then sought an award of attorney fees of nearly $700,000. The Department challenged the reasonableness of the fees. After a hearing, the trial court found the requested amount was excessive and reduced it, but only by twenty-five percent, awarding counsel $511,620. HERE, The Tennessee Department of Correction appeals. .. CONTINUED .. COURT DECISION: (.html)
♦ August 16, .. FLRA: AFGE v. Small Business Administration .. The parties established the National Performance Systems Committee (the Committee) with an equal number of Agency officials and Union representatives to examine, and recommend changes to, the Agency’s performance-appraisal system. The grievant, one of the Union’s Committee representatives, requested official time to attend a Committee meeting, as well as an hour of official time to prepare for the meeting. The Agency approved the request for official time to attend the meeting, but denied the request for preparation time. Alleging the denial violated the parties’ agreement, the Union grieved, and the grievance proceeded to arbitration. At arbitration, the parties stipulated the issue, as relevant here, as: “Whether the Agency violated Article 12 . . . of the [parties’ a]greement . . . in denying one hour of official time to [the grievant] to prepare for the . . . Committee . . . meeting.” The parties also stipulated the parties’ agreement does not expressly provide for, or prohibit, official time to prepare for Committee meetings. .. CONTINUED .. FLRA DECISION: (.html)
♦ August 16, .. 8th Cir.: Adams v. City of Little Rock .. Ms. Adams sued her former employer, the City of Little Rock (the City), asserting employment sex discrimination claims. Following a jury trial at which Adams requested an award of $390,000 damages, the jury found that her sex was a motivating factor in the City’s decision to fire her, but the City would have fired her anyway. The jury awarded no damages, and the district court1 declined to grant injunctive, equitable, or declaratory relief. Adams filed a motion seeking $49,687.50 in attorney’s fees and $862.00 in costs. The district court awarded Adams no attorney’s fees on her § 1983 claim, finding she was not a prevailing party because she failed to prove that sex was the but-for cause of her firing. However, exercising its discretion under 42 U.S.C. § 2000e-5(g)(2)(B), the court awarded Adams $11,817.75 in attorney’s fees and $258.00 in costs despite her “extremely limited success.” The City appeals, arguing Adams was not a prevailing party and should be awarded no attorney’s fees and costs under Title VII. .. CONTINUED .. COURT DECISION: (.html)
♦ August 16, .. 2nd Cir.: Bassi v. New York Medical College .. Plaintiff, MR. Bassi, M.D., began a family medicine residency program (the “Program”) in the summer of 2014 following his graduation from medical school. The Program was the result of cooperation among Defendants-Appellees New York Medical College (“NYMC”). Shantie Harkisoon, M.D., served as the Program’s director. In September 2015, a few months into Plaintiff’s second year, he was placed on an academic action plan because of “concerns regarding his academic progress.” After continued deficiencies, Plaintiff was placed on academic remediation that November. He was warned that unless he made substantial progress in his training, he would not be promoted to the third year of residency. Halfway through his second year, in January 2016, Plaintiff filed a complaint with both Phelps’s and Open Door’s human resources departments alleging racial and religious discrimination. Sometime during his second year, Harkisoon remarked to another faculty member that Plaintiff looked unprofessional while wearing his patka. A patka is a tight-fitting cloth headcovering worn by Sikh men beneath or in lieu of a more-familiar turban. Plaintiff normally wore a turban, but he wore a patka when his turban was impractical—usually during surgeries, when delivering babies, or when on call during a night-shift. Harkisoon asked one of the Program’s chief residents to relay concerns about the patka to Plaintiff. Believing the comments to be discriminatory, Plaintiff filed his complaint. A few days later at a meeting about the complaint, Harkisoon apologized for the misunderstanding and clarified that Plaintiff was free to practice his faith in whatever manner he wished. Plaintiff concedes that no comments were made about his patka or other religious practices following that meeting. Plaintiff’s clinical performance did not improve. In February 2016, he was advised that the Clinical Competency Committee (“CCC”) responsible for supervising and evaluating residents remained concerned with his progress. His efforts to comply with his academic action plan had not succeeded, so his remediation was being continued until April, when the CCC would review Plaintiff’s progress once again. That review did not go well for Plaintiff. .. CONTINUED .. COURT DECISION: (.html)
♦ August 14, .. 7th Cir.: Cielak v. Nicolet Union High School .. While attending Nicolet High School (NHS) in the late 1970s and early 1980s, Mr. Cielak and Mr. Hodges were sexually abused by Mr. Johnson, a teacher at NHS. After Mr. Hodges reported the abuse in the summer of 1983, members of the Nicolet Union High School District board confronted Johnson but kept him employed at NHS. For Mr. Hodges, the abuse stopped, and Johnson left him alone for the remainder of his time at NHS. Johnson’s continued presence at the school, however, caused Hodges mental anguish. Unfortunately, for Mr. Cielak, who had graduated from NHS in 1982, Johnson’s abuse continued. Mr. Cielak and Mr. Hodges sued numerous parties—including NHS, the school district, and members of the board, for violation of their Fourteenth Amendment substantive due process and equal protection rights alleging a conspiracy to violate their equal protection rights. .. CONTINUED .. COURT DECISION: (.html)
♦ August 14, .. 10th Cir.: Donahue v. United Parcel Service .. Mr. Donahue suffered a heat-related injury while working as a probationary employee for UPS. He was hospitalized overnight for extreme heat exhaustion, acute kidney failure, and a cracked kneecap. UPS paid Mr. Donahue workers’ compensation for three months until he was cleared to restart work. When Mr. Donahue met with UPS personnel on Friday, October 12, 2018, they told him he could resume or restart his training and probationary employment period. To complete their training, new drivers must “scratch”—deliver the packages on their assigned route within an allotted time for five consecutive days. Mr. Donahue had completed the classroom training, but he had not yet run scratch. If he had resumed his training, he would have had 14 days remaining to qualify as a full time employee. He declined. A UPS supervisor then disqualified him from resuming his pre-injury probationary employment but said he could reapply and restart training. UPS terminated his employment on Monday, October 15, 2018. Mr. Donahue sued UPS in Kansas federal district court, alleging (1) failure to accommodate, (2) discrimination, and (3) retaliation in violation of the Americans with Disabilities Act (“ADA”); (4) retaliatory discharge; and (5) race discrimination and retaliation. .. CONTINUED .. COURT DECISION: (.html)
♦ August 14, .. NJSC AD: In the Matter of Ms. Sanes .. Appellant, Ms. Sanes, most recently worked as a keyboarding clerk for Hoboken in the Department of Administration. On March 13, 2020, Hoboken implemented health and safety protocols in response to the onset of the COVID-19 pandemic, which included the closures of public buildings, including City Hall where appellant worked. All non-essential employees were ordered to work remotely until otherwise notified and to avoid appearing at City Hall if they experienc ed symptoms of, or tested positive for, COVID-19. On April 27, appellant emailed City Business Administrator Jacob Freeman and City Assistant Business Administrator Caleb Stratton, informing them she had tested positive for COVID-19. After communicating with Freeman and Stratton, as well as other City personnel, appellant was placed on leave under the Families First Coronavirus Response Act ("FFCRA"), H.R. 6201, 116th Con. (2020). While on FFCRA leave, she received full pay from April 28 to May 11. The surveillance footage from May 4, shows appellant entering City Hall, using her credentials to pass through security, and first entering her office in the Department before visiting the Clerk's Office where, according to the records clerk, she filed a request under the Open Public Records Act ("OPRA"). Two days after appellant's visit to City Hall, she spoke at a City Council meeting, which was held virtually. Prior to speaking, she apologized for any coughing that may interfere with her voice, explaining it was due to her "battling COVID-19. Appellant's irresponsible, reckless[,] and inexcusable conduct in entering City Hall after testing positive for COVID-19, and "while battling COVID-19," and knowing she was not permitted to enter the building without medical clearance, endangered the health and safety of others and cannot be countenanced. Based upon the totality of the circumstances . . . appellant's insubordinate and unbecoming conduct is of a sufficiently egregious nature to warrant her termination. Ms. Sanes was terminated from her employment from the City of Hoboken ("Hoboken") for insubordination and conduct unbecoming of a public employee. This appeal followed. .. CONTINUED .. COURT DECISION: (.html)
♦ August 13, .. 2nd Cir.: Kinney v. Public Consulting Group .. Plaintiff-Appellant Joseph Kinney appeals from the district court’s award of summary judgment in favor of Defendants Public Consulting Group (“PCG”). Public Consulting Group managed a virtual call center pursuant to a contract with the New York State Department of Health (“NYS DOH”) as part of the state’s Contact Tracing Initiative (the “Initiative”), which sought to stop the spread of COVID-19 by informing individuals of potential exposure to the virus. PCG hired Ms. Kinney as a contact tracer on October 27, 2021. However, on February 24, 2022, Ms. Kinney and hundreds of other employees were informed that they would be terminated the next day, February 25. Ms. Kinney brought claims on behalf of himself and a putative class of employees under the federal and New York Worker Adjustment and Retraining Notification (“WARN”) Acts, alleging that Defendants did not give him and other former employees sufficient notice of the impending terminations. The district court granted summary judgment in favor of Defendants on the grounds that Kinney’s employment in connection with the Initiative fell under WARN’s statutory exemption for temporary projects. On appeal, Kinney argues that: (1) his employment was subject to WARN’s notification requirements because it does not qualify for the temporary project exemption; and (2) the district court abused its discretion by prematurely granting summary judgment on an affirmative defense without providing Kinney an opportunity to conduct discovery. .. CONTINUED .. COURT DECISION: (.html)
♦ August 13, .. 3rd Cir.: Russo v. Bryn Mawr Trust Co .. Ms. Russo, a teller at the Bryn Mawr Trust Company bank (“BMT”), is black. Russo’s supervisor at BMT’s Bryn Mawr branch between 2015 and June 2018 was Ms. Trainer, who is white. Ms. Russo complained that Ms. Trainer made racist statements to her. Ms. Trainer’s statements included comments concerning slavery, Jamaicans being able to run quickly, abortion, the 2016 presidential election, Russo’s clothing, and Russo’s weight. In April 2018, Trainer assigned to another teller the origination credit for a customer’s new credit card application. Russo felt the origination credit should have been attributed to her. She complained to BMT’s HR department and on April 25, 2018, left work because she was not feeling well. Russo visited the emergency room at Bryn Mawr Hospital and did not return until May 1. On April 27, 2018, with Russo away from the bank, Assistant Manager Cathy Brown-Hinton, who is black, discovered a security breach: the box containing the combinations to the bank’s coin vault had been taped shut rather than locked. This led BMT to open an internal investigation. In response to the investigation, another teller, Shakeena Wilson, “reported that she and Russo had gone into the vault about a month before (i.e.[,] in mid-April) and discovered that the key to the combination box was missing and the box was open, and together they taped the box shut.” The investigation also revealed that Russo previously gave a new employee the keys to another teller’s cash box. Russo later agreed that taping the key box shut was an offense sufficiently serious to justify being fired from the bank. On April 29, 2018, two days after BMT opened the security investigation, Russo filed a complaint against BMT with the EEOC and the PHRC, alleging racial discrimination. .. CONTINUED .. COURT DECISION: (.html)
♦ August 13, .. Fed Cir.: Muhammad v. DVA .. On October 20, 2014, the Department of Veterans Affairs (“the agency”) appointed Dr. Muhammad as a Fee Basis Physician at the New Mexico Veterans Affairs Healthcare System in Albuquerque, New Mexico. His appointment initially covered the period from October 20, 2014, to September 30, 2015. He was assigned a panel of 1,195 patients, who he began seeing on October 27, 2014. On November 4, 2014, the Acting Associate Chief of Staff for Ambulatory Care sent Dr. Muhammad an email noting that she was working on redistributing the panel of patients he was assigned to cover and asked if he would be willing to work a full-time schedule until she could complete that task. Later that evening, Dr. Muhammad and the Associate Chief of Staff had a telephone conversation during which Dr. Muhammad raised concerns about being assigned to see a panel of over 1,000 patients, which he believed to be a patient safety issue. According to Dr. Muhammad, the Associate Chief of Staff had a “very angry tone” and told him that if he did not want the job, she had plenty of physicians lined up for the position. Following that telephone call, Dr. Muhammad responded to the Associate Chief of Staff’s email by indicating that he was unable to work full-time due to personal and family commitments. He offered to temporarily work a 5-day week but listed several reasons why he should not be assigned a full panel of patients, such as his concern for the patients’ continuity of care given the temporary nature of his appointment. He presented various options for what he believed would allow him to provide services for the agency at an acceptable level of patient safety. Only one of those options involved assigning him a panel of patients, which he proposed be limited to 400 patients. He concluded, “If none of the above is workable then I am afraid I am unable to provide what you are expecting,” in which case he suggested he could remain on staff on an asneeded basis. The Associate Chief of Staff responded that she would reassign his patients and asked if he would continue working for the rest of the week. She also offered him a part-time position in Gallup, New Mexico. Dr. Muhammad responded, indicating he would work the remainder of that week but that he was not interested in the part-time Gallup position. He asked if he would be retained on an as-needed basis or if he would instead be terminated. The Associate Chief of Staff responded only that she would let him know about future needs. Dr. Muhammad continued to see patients through Friday, November 7, 2014. On or around November 10, 2014, Dr. Muhammad’s credentials at the Albuquerque facility and his computer access to patient records were terminated. .. CONTINUED .. COURT DECISION: (.html)
♦ August 12, .. 5th Cir.: Hopkins v. Wayside Schools .. Soon after his employment began, Plaintiff-Appellant Mr. Hopkins purportedly started discovering “numerous financial errors, mismanagement, and misappropriation of both state and federal funds received by Wayside.” For example, Hopkins found that federal funding was being miscoded, resulting in these funds being utilized for improper purposes. He further discovered that Wayside was commingling operational funds, state and federal funds, and debt service funds in one account. Hopkins reported this “gross mismanagement of funds” to Wayside’s superintendent and finance committee, and these financial issues were discussed at board meetings, committee meetings, and individual meetings up until November 2019. However, according to Hopkins’s complaint, instead of taking corrective action, Wayside “put a target on [Hopkins’s] back” and began engaging in retaliation. In January 2020, Plaintiff-Appellant Mr. Hopkins was terminated from his employment with Wayside Schools, a nonprofit organization that operates open-enrollment charter schools in Texas. Hopkins alleges that he was terminated for reporting mismanagement of federal funds. He further alleges that he was terminated due to his race and the Equal Protection Clause of the Fourteenth Amendment. The district court dismissed Hopkins’s claims, concluding that Wayside Schools is entitled to Eleventh Amendment sovereign immunity as an “arm of the state.” THE APPEALS COURT : We disagree, finding that Wayside Schools has not met its burden of proving that it is entitled to Eleventh Amendment immunity. Accordingly, we REVERSE the district court’s dismissal of Hopkins’s whistleblower-retaliation claim , and we relatedly REVERSE the district court’s order striking this claim from the operative complaint. However, we AFFIRM the dismissal of Hopkins’s race-discrimination claim. .. CONTINUED .. COURT DECISION: (.html)
♦ August 12, .. 6th Cir.: Noble v. Cincinnati Public Library .. Prior to the Facebook post at issue, no one at the Cincinnati Public Library (“the Library”) had ever expressed any concern about Mr. Noble’s work performance or his ability to do his job. Nothing in the record indicates that he had failed to perform his duties as a security guard or that he had harassed anyone or engaged in any disruptive behavior while on or off the job. Apparently, though, Noble’s politics were not the same as those of some of his colleagues. That became evident in 2020, following the deaths of George Floyd and others. At that time, the United States experienced extensive protests in support of BLM. Noble had worked for over two years as a Library security guard. In that role, he helped secure the Library for patrons and staff. In 2020, during protests led in part by the organization known as Black Lives Matter (BLM), plaintiff Eric Noble made the mistake of sharing an insensitive meme on his personal Facebook page. Only his Facebook friends, who numbered less than 100, could see his posting. He took down the meme less than 24 hours after it went up and after his mother had advised that he do so. But it was too late. Some of Noble’s Facebook friends who worked with him at the Library saw the post. They complained to the Library. After an investigation, Noble’s bosses did not think his quick removal of the meme was good enough that he should be forgiven. Instead, the Library terminated his employment as a security guard. Mr. Noble appealed his termination. .. CONTINUED .. COURT DECISION: (.html)
♦ August 09, .. 8th Cir.: Famuyide v. Chipotle .. The lawsuit stems from Ms. Famuyide’s employment with Chipotle. Her complaint alleges that a co-worker began to sexually harass her soon after she commenced employment in May 2021. In November 2021, the co-worker sexually assaulted Famuyide in the restroom of the restaurant where they worked. Famuyide reported the assault to her manager. The complaint alleges that the store manager initially wanted to fire both Famuyide and the co-worker, but that another manager saved her job. Famuyide then took a leave of absence from work because she was emotionally unable to perform her duties. The complaint explains that on February 15, 2022, during Famuyide’s leave of absence, she was unable to access the company’s online employee portal and thought she had been terminated. Chipotle notified her on March 1, however, that the termination had been rescinded. The company explained that she had been terminated “in error” due to a mistake in how her leave of absence was entered into a data management system. Famuyide’s complaint filed in April 2023 alleges that Chipotle engaged in unfair employment practices under Minnesota law (hostile work environment, reprisal, and retaliation), and that the company is vicariously liable for assault and battery and for intentional infliction of emotional distress. The complaint further asserts that Chipotle negligently hired, retained, and supervised the co-worker, and that the company failed to provide a safe work environment. .. CONTINUED .. COURT DECISION: (.html)
♦ August 09, .. DcDc: Abdelaal v. Wsp Global Inc .. Plaintiff Mr. Abdelaal is “a Black/African American male in his mid-30s.” WSP and Urban Engineers were contractors working on Washington Metropolitan Transit Authority (“WMATA”) renovation projects: WSP was the first-tier owner on the WMATA contract, and Urban Engineers was the second-tier owner. In 2022, Urban Engineers hired Mr. Abdelaal as a Senior Electrical Inspector and assigned him to work at two locations: 2251 26th Street, NE and the Shepherd Parkway WMATA site. Throughout June 2022, Mr. Abdelaal made various complaints to WSP and Urban Engineers alleging racial discrimination and safety violations on-site. Mr. Abdelaal alleged that Defendants “refused water, ice and shelter to African American workers in the midst of a D.C. summer heatwave.” Specifically, Shaun Pratt, a white WSP project manager, allowed Brian O’Hare, a white Urban Engineers employee, access to water, ice, a trailer in which to cool off, and parking at the job site, but did not allow Mr. Abdelaal and other Black Urban Engineers employees such amenities. Mr. Abdelaal was also told by a white supervisor that he and another Black Urban Engineers employee needed to “ask permission for ice,” while their white colleague was not required to ask for permission. When Mr. Pratt and Mr. O’Hare learned that Black Urban Engineers employees were attempting to “use the facilities to cool down and/or grab water and ice, WSP and Urban Engineers approved a key code lock on the door to prevent the African American employees from using the space.” On June 23, 2022, Mr. Abdelaal was suspended from his employment and barred from the worksite. He was also “notified that he was not to report to work and that Toney Maceo”—a white WSP employee—“had terminated [him].” Mr. Abdelaal alleges that he was later told he had been suspended because “Urban Engineers was investigating his discrimination and NTSSA and FRSA claims.” He claims that the true reason for his suspension, however, was “to prevent [him] from making any additional complaints.” From June 23, 2022 to August 2022, Mr. Abdelaal continued to make complaints to Urban Engineers and WSP, stating that he believed he was being retaliated against for raising discrimination and safety issues. On August 5, 2022, Mr. Abdelaal was terminated from his position. Urban Engineers employee Meredith Clark informed Mr. Abdelaal that “WSP had made the decision to terminate and remove him from the WMATA renovation sites.” Although Mr. Abdelaal was qualified for multiple positions that were open at the time of his termination, “Urban Engineers falsely told him that there were no open and available jobs for which he was qualified.” .. CONTINUED .. COURT DECISION: (.html)
♦ August 07, .. DcDc: Nguyen v. Del Toro (Navy) .. From 2015 until 2022, Plaintiff, Ms.Nguyen, worked for Naval Sea Systems Command (“NAVSEA”) as a General Engineer --a national security-sensitive position-- that required her to “obtain and maintain” a security clearance. In May 2018, she alleged that her colleagues discriminated against her based on her “race, national origin, age, and sex” and subsequently “retaliated against her for engaging in protected activity.” In later EEO filings, Plaintiff claimed that her employer was hacking into her personal electronic devices, recording her conversations on Microsoft Teams, preventing her from communicating with her support network, and stealing hard copies of files related to her EEO cases. On March 17, 2022, Segura took an additional step. He advised Plaintiff that NAVSEA Command also intended to “suspend [her] access to classified information and assignment to a sensitive position.” He explained that this decision was “a result of reported paranoid ideations and documented declarations of paranoid ideations” that cast doubt on her “judgment, reliability, and capacity to protect classified information.” Because of her inability to continue working as a General Engineer without access to NAVSEA facilities or classified information, McKimmy placed Plaintiff on administrative leave the same day. Plaintiff, Ms.Nguyen, brings this Title VII action against Defendant Secretary of the Navy Carlos Del Toro in his official capacity. She alleges that her employer’s decisions to revoke her security clearance and suspend her indefinitely without pay were made in retaliation for her history of discrimination complaints and created a hostile work environment. .. CONTINUED .. COURT DECISION: (.html)
♦ August 07, .. TCA: Tennessee v. Weatherspoon .. This case arises from the Defendant’s participation in selling drugs to a confidential informant (“CI”). A Hardin County, Tennessee grand jury indicted him on three counts of selling .5 grams or more of cocaine. The State responded and noted that the drug task force had used the CI on three occasions to purchase drugs from the Defendant on the following dates and in the following quantities: . 87 grams of cocaine on March 7, 2022, 1.25 grams of cocaine on March 23, 2022, and .81 grams of cocaine on April 22, 2022. According to the State, on this recording the Defendant is heard saying, “You like that shit; don’t you” to his customer and also that he indicates that he will have more cocaine to sell later that evening. A video of this transaction is included in the record and, while the statements of the Defendant are not entirely clear, it appears the State’s assertions about them were accurate. Defendant’s counsel noted that the Defendant only had one misdemeanor conviction twenty years prior, no felony convictions, and no prior violations of any probationary sentence. Defendant’s counsel asked for an alternative sentence. a Drug Task Force agent, testified that he was the case agent for each of these offenses. He reviewed the footage returned by his CI, and the agent noted that the Defendant came from a back bedroom of his mother’s house to the kitchen where he met the CI. Agent Hooper indicated that the Defendant was unemployed during these events, other than making and reselling t-shirts. During cross-examination, Agent Hooper testified that there was no one else present in the home during the drug transactions. A Hardin County jury convicted the Defendant, Mr. Weatherspoon, of one count of the sale of .5 grams or more of cocaine, and he later pleaded guilty to two additional counts of the sale of .5 grams or more of cocaine. The trial court sentenced the Defendant to an effective sentence of ten years of incarceration as a Range I offender. This appeal followed. .. CONTINUED .. COURT DECISION: (.html)
♦ August 07, .. th Cir.: Community Health Center v. Kansas Dept. of Labor .. Kansas law calls for judicial review of the actions of State agencies. This case focuses on the technical aspects of such a review. Dr. Deines was employed by the Community Health Center of Southeast Kansas, Inc. The Community Health Center terminated the doctor's employment when she failed to get a COVID-19 vaccine. Dr. Deines sought administrative relief from the Department of Labor because her employment was terminated. She alleged that the Community Health Center violated Section 1 of 2021 Special Session House Bill 2001 by denying her request for a religious exemption. The Department of Labor ruled for Dr. Deines. The Community Health Center of Southeast Kansas, Inc. appeals the dismissal of its petition for judicial review of a Department of Labor ruling. This order concerns the Health Center's action discharging one of its employees. .. CONTINUED .. COURT DECISION: (.html)
♦ August 05, .. 11th Cir.: McCarthy v. City of Cordele Georgia .. The City Commission of Cordele, Georgia, hired Roland McCarthy, a white man, as its Finance Director in 2017. In January 2021, the Commission unanimously promoted McCarthy to City Manager. McCarthy demonstrated “exemplary service and expertise” in these roles. This appeal involves a complaint about racial politics in a small town in rural Georgia. Joshua Deriso campaigned for election as chairman of the City Commission of Cordele, Georgia, by publicly stating his intent to “replace Caucasian employees with African Americans”; to lead “an entirely African American” City Commission; and to replace Roland McCarthy, the white City Manager, with a black City Manager. On social media, Deriso declared, “Structure needs to change . . . More Blacks!!!”; “The new City Manager should be Black”; and “it is time for African Americans to run our city.” Deriso won the election. The same day he and fellow commissioners took their oaths of office, the Commission voted on racial lines to fire McCarthy and to replace him with a black City Manager. Without a tie vote, Deriso, as chairman, did not vote. But he encouraged the other black commissioners to fire McCarthy because he is white. Before the vote, Deriso and Royce Reeves, another black commissioner, warned McCarthy that he would be re- placed with a black City Manager. And they told him that he could not return to his former position as Finance Director because he “did not look like” them. The question for us is whether those allegations permit the inference that the City Commission fired McCarthy because he is white. .. CONTINUED .. COURT DECISION: (.html)
♦ August 05, .. DSC: Richardson v. Unemployment Insurance Appeal Board .. Richardson filed for unemployment benefits with the Delaware Department of Labor (the “Department”) after being discharged from her employer, Claymont Community Center. According to her employer, Richardson was terminated because she would not perform certain duties. The Department found Richardson properly discharged and denied her unemployment benefits (“Disqualification Notice”). According to the record, a Claims Deputy mailed a copy of the Disqualification Notice to Richardson’s residence on September 22, 2020. The Disqualification Notice became final on October 2, 2020. Thereafter, a Claims Deputy issued a notice of determination establishing overpayment of benefits in the amount of $5,400.00 (the “Overpayment Determination”) pursuant to 19 Del. C. § 3325. Richardson timely appealed the Overpayment Determination and a hearing was scheduled to address the Overpayment Determination only. At the hearing, Richardson asserted she never received the Disqualification Notice. On the record, the Referee noted that the Disqualification Notice became final on October 2, 2020, and Richardson did not appeal the Disqualification Notice. The Department then reminded Richardson that the scope of the hearing was only to address the Overpayment Determination, not the Disqualification Notice. The Referee later affirmed the Overpayment Determination finding an overpayment of benefits was established in the amount of $5,400.00 (the “Referee’s Decision”). This appeal stems from an Unemployment Insurance Appeal Board’s (the “Board”) decision affirming the Appeals Referee’s (the “Referee”) decision finding Appellant Laura J. Richardson was overpaid unemployment benefits. Richardson contends she never received notice that she was disqualified from receiving unemployment benefits. For the reasons set forth, the Court is unable to review the Board’s decision due to the Board’s inadequate factual findings. Accordingly, the Board’s decision is REVERSED AND REMANDED. .. CONTINUED .. COURT DECISION: (.html)
♦ August 05, .. ACI: Kandala v. Zarraga .. On August 23, 2019, plaintiff filed suit against defendant for breach of contract and deceptive practices. Regarding breach of contract, plaintiff alleged that on April 12, 2016, he loaned defendant $64,819.38, “payable without interest on demand,” to enable her to purchase a condominium. Defendant failed to repay him. Plaintiff also alleged that defendant was liable for deceptive practices where on or about April 20, 2018, she tendered him a personal check for $64,819.38 that was dishonored due to insufficient funds and thereafter failed to pay him that amount. Plaintiff maintained that defendant’s actions of delivering a check as payment for the loan, knowing that it would not be paid by the depository, and her willful refusal to provide funds constituted deceptive practices. Plaintiff sought damages totaling $64,819.38 plus attorney fees and costs. Appended to the complaint was an image of defendant’s check number 764 for $64,819.38 payable to plaintiff, dated April 20, 2018, with the handwritten word “LOAN” in the “Memo” line. Following a bench trial, the trial court entered a $67,819.38 judgment for plaintiff, Dr. Rajiv Kandala, on his claim for deceptive practices against defendant, Macy Zarraga, also known as Macy Manuel, and found him not liable on defendant’s counterclaim for intentional infliction of emotional distress (IIED). Defendant appeals, contending the court erred in not finding plaintiff liable for IIED. .. CONTINUED .. COURT DECISION: (.html)
♦ August 05, .. Fed Cir.: Murphy v. OPM .. Mr. Murphy and Ms. Dahlstrom are former federal employees that receive annuity benefits under FERS. They are married and share a joint bank account. Due to OPM’s error, between May 2013 and February 2014, petitioners received nine payments of funds intended for another annuitant into their joint account at Gate City Bank, totaling $5,486.65. OPM indicated it recovered $2,800.00 from Gate City Bank, leaving petitioners’ joint overpayment balance at $2,686.65. Between August and November 2014, OPM administratively offset petitioners’ annuity payments, ultimately recovering a total of $1,343.32 from each petitioner. In June 2016, however, OPM authorized refunds in the amount of $1,343.32 to each of Mr. Murphy and Ms. Dahlstrom because it had not provided petitioners with due process prior to the 2014 administrative offsets. Subsequently, in letters dated July 2016, OPM individually informed petitioners of its final decisions finding petitioners liable for the remaining overpayment balance of $2,686.65. In the same letters, OPM informed petitioners that it would collect $1,343.33 from Mr. Murphy’s annuity, and $1,343.32 from Ms. Dahlstrom’s annuity, over fourteen monthly installments beginning in November 2016. Petitioners appealed to this court on June 7, 2023—70 days after the Board’s final decision. .. CONTINUED .. COURT DECISION: (.html)
♦ August 2, .. 3rd Cir.: Saintil v. Borough of Carteret .. On the morning of January 30, Adison Trigueno called the Borough of Carteret Police Department (“CPD”) to report that he found his boss, Anthony Mocci, unconscious. When police arrived, they found Mocci dead from bludgeoning to the head. CPD contacted the County Prosecutor’s Office (“MCPO”) and a homicide investigation ensued. .. CONTINUED .. COURT DECISION: (.html)
♦ August 2, .. CAW: Verduzco v. King County Washington .. Mr. Verduzco took part in a call where Lee was on speaker phone. Lee had limited time between meetings, so she stated that those on the call “needed to be quiet and listen, this was not the time to respond.” Verduzco, who wears hearing aids, couldn’t understand what Lee was saying via speaker phone because “the sound was garbled and a little distorted.” According to Verduzco, he attempted to ask Lee why she was so upset, but Lee told him “to not say a word, to just listen to what she had to say, to go away and think about it and then maybe have a conversation later.” Verduzco was “stunned” and “embarrassed.” According to Lee, she was “heated” on the call and it “was an intense conversation”; however, she felt she was raising an issue with her employees that was her prerogative to raise. Others who participated in the call described Lee as upset and stern on the call, but not yelling, and only discussed Lee’s concerns about the hiring process. The conversation was no longer than 5 to 10 minutes. Verduzco was very upset after the call and believed that Lee treated him “like a dumb Mexican.” Verduzco felt that “‘[t]his is what racism looks like.’” That afternoon, Verduzco sent an email to Christie True, Director of the County DNRP. Verduzco copied several individuals on the email, including Lee’s direct supervisor. The email subject line stated: “Joan Lee’s Emotional and Verbal Racist/Sexist Micro-aggression toward Rey Verduzco and Alice Chapman.” In the email, Verduzco wrote that Lee “proceeded to emotionally and verbally abuse” him and that Lee “yelled, berated, and intimidated him over the phone. [Verduzco] characterize her behavior as racist toward him.” Verduzco also wrote: “I felt I was being emotionally and verbally assaulted and subjected to a stereotypical and racist response by a white woman towards a Latino man.” Verduzco concluded his email with the following: The racism perpetrated by white women toward men of color is a pattern in [the DNRP-Water and Land Resources. This is the third micro-aggression I’ve been subjected to in the last month alone. . . . My question to you Christie is when is this going to stop? What are you going to do to ensure that your employees are not subjected to racist and sexist behavior by colleagues and leadership? .. CONTINUED .. COURT DECISION: (.html)
♦ August 02, .. th Cir.: FTI, LLC v. Duffy .. This matter arose when defendants Robert J. Duffy, Stephen L. Coulombe, and Elliot A. Fuhr resigned their positions with plaintiffs FTI, LLC, and FTI Consulting, Inc. (collectively, FTI), to work for defendant Berkeley Research Group, LLC (BRG), taking with them numerous FTI employees and clients. FTI brought suit alleging that the individual defendants were in violation of the noncompetition, nonsolicitation, and confidentiality provisions of their employment agreements and that, acting in concert with BRG, all the defendants wrongfully used FTI's confidential information to poach FTI's employees and clients. Following a trial, a jury found the individual defendants liable for breach of contract and BRG liable for tortious interference with contractual relations. In addition, the trial judge found BRG liable for aiding and abetting breaches of fiduciary duties. The jury awarded FTI over $21 million in compensatory damages against all the defendants. The defendants appealed. .. CONTINUED .. COURT DECISION: (.html)
♦ August 02, .. OCA: Huth v. Smithers-Oasis Co. .. Mr. Huth resigned from his employment with Smithers-Oasis Company (“Smithers-Oasis”) on December 17, 2021. He applied for unemployment compensation, but his application was disallowed. Mr. Huth appealed the initial determination, and the disallowance of his application was affirmed, noting that he “quit … on 12/17/2021 without providing specific facts regarding his reason for quitting.” Mr. Huth appealed the redetermination to the UCRC. The hearing officer found that Mr. Huth’s job responsibilities required him to support multiple work sites, that he expressed concerns about working with an individual at one work site, and that management addressed his concerns. The hearing officer found that, nonetheless, Mr. Huth chose to resign rather than to perform his job duties. According to the hearing officer, Mr. Huth “brought his concerns to his manager, and they were discussed…” but “after the conversation he discontinued all communication with his manager and then resigned.” The hearing officer characterized Mr. Huth’s conduct as “unreasonable[,]” concluding that “he resigned because he did not receive the outcome he desired.” Based on these findings, the hearing officer concluded that Mr. Huth quit work without just cause and affirmed the redetermination. Mr. Huth requested review of the hearing officer’s decision by the UCRC, which allowed the request and scheduled a further hearing. Following that hearing, a second hearing officer also affirmed the redetermination. The second hearing officer concluded that Mr. Huth did not resign in response to impending discharge and, as a result, considered whether Mr. Huth quit work without just cause. The hearing officer observed that “quitting is a drastic measure and should only be done as a last available option…” and concluded that “it cannot be found that Mr. Huth acted reasonably or as an ordinarily prudent person would in a same or similar situation before deciding to quit.” Mr. Huth appealed the UCRC’s decision to the Summit County Court of Common Pleas. The common pleas court affirmed the UCRC’s decision, concluding that the record supported the UCRC’s findings; that the UCRC’s decision was not unlawful, unreasonable, and against the manifest weight of the evidence; and that the UCRC’s failure to enforce a subpoena did not deny Mr. Huth a fair hearing. HERE, Mr. Huth appealed to the Ohio Court of Appeals (OCA). .. CONTINUED .. COURT DECISION: (.html)
♦ August 1, .. CAW State Of Washington v. Robatcek .. FACTS In the afternoon of April 5, 2022, Nicholas Scardino was in his backyard working on his lawn mower. His 12 year-old dog, Pepe, was tethered in front of their home. Around 3 PM, his neighbor, Robatcek, arrived home after running some errands. While unloading his groceries, Pepe was barking, which aggravated Robatcek. The barking lasted 15 to 20 minutes. In response, Robatcek devised a plan to “pop Pepe in the ass” with his airsoft bullet ball gun (BB gun) in an attempt to get Pepe to “quit barking” and go under the porch. Robatcek went inside his home, got his BB gun, pumped it “just a couple” of times, aimed at Pepe, and fired. Peering around the side of the houses, Nicholas1 saw Robatcek aim at Pepe and fire. After firing, Nicholas asked Robatcek what he was doing; Robatcek did not answer. Nicholas asked again and Robatcek sneered while stating, “I shot your dog because it was barking” and proceeded to go in his house. Nicholas went to the front of the house where he found Pepe under the porch, picked him up, and saw that Pepe’s eye was “bleeding everywhere.” Nicholas called the police and his mother, Sheila Scardino, at work. Officer Hunter Heim and animal control officer Ariana West arrived at the scene. Sheila arrived shortly after. HERE, Robatcek appeals his conviction for one count of animal cruelty in the first degree. He argues the superior court erred when applying the definition of “physical injury” (a) to animal cruelty. He also argues that there is insufficient evidence supporting his conviction of animal cruelty. Finally, Robatcek argues that the trial court’s order requiring him to pay the victim penalty assessment (VPA) and deoxyribonucleic acid (DNA) collection fees as legal financial obligations (LFOs) is unauthorized and must be stricken from the judgment. .. CONTINUED .. COURT DECISION: (.html)
♦ August 1, .. CCA: Riaz v. Altura Centers for Health .. Plaintiff, Ms. Riaz , worked for Altura as a salaried dentist. In a letter dated May 8, 2018, Altura’s legal counsel informed plaintiff that her employment was being terminated for cause. Plaintiff was accused of “1. Being employed at a competing dental clinic … in violation of Altura’s policies re ‘moonlighting’”; “2. Unprofessional and discourteous treatment and demonstrating a poor attitude toward Altura employees … as well as Altura patients”; “3. Engaging in behavior that was potentially harassing towards Altura employees, including dental assistants, often treating dental assistants and others with disrespect”; and “4. Performing dental work that fell below the standard of care and/or charging/billing for work that was not done, or properly done.” After receiving the termination letter, plaintiff wrote to Altura’s chief executive officer and alleged she was “fired in retaliation for bringing OSHA/HIPAA violations as well as bringing claims of harassment and bullying from some of the employees at Altura to HR’s attention.” Plaintiff claimed to be suffering “emotional distress” because of the “wrongful termination.” Riaz (plaintiff) sued Altura Centers for Health (Altura) for unlawful termination of her employment. .. CONTINUED .. COURT DECISION: (.html)
♦ August 1, .. NCA: Lund-Ross Constructors v. Duke of Omaha .. The Duke of Omaha .. Lund-Ross Constructors, Inc. (Lund-Ross), entered into an agreement with The Duke of Omaha, LLC (the Duke), to be the general contractor for the construction of an apartment complex. Lund-Ross then hired A Raymond Plumbing Inc. (Raymond) as a subcontractor. After the Duke withheld pay- ment to Lund-Ross, Lund-Ross withheld payment to Raymond. Pursuant to an arbitration clause in their contracts, the Duke and Lund-Ross proceeded to arbitration. After the arbitration hearing, Raymond submitted a counterclaim. The arbitrator entered an award finding that the Duke owed Lund-Ross $307,103 and that Lund-Ross owed Raymond $215,508.31. Citing procedural irregularities, Lund-Ross filed a motion to vacate or modify the award in the district court for Douglas County, requesting that the court enter an order vacating the award, or at least that portion which provided for any award made in favor of Raymond. The district court denied the motion after finding that none of the grounds for vacatur under the Federal Arbitration Act (FAA) were present. Lund-Ross now appeals the district court’s denial of its motion. .. CONTINUED .. COURT DECISION: (.html)
♦ July 31, .. DcDc: Anderson v. Garland (Justice) .. Anderson joined U.S. Department Of Justice (DOJ) in 2008. From 2010 until April 2020, Anderson worked as a Program Operations Specialist in the Office of Justice Programs (OJP) in Washington, D.C. Her responsibilities included reviewing contractor work performance, responding to Freedom of Information Act requests, processing requests for equipment and supplies, and tracking government purchase card use. Anna Anderson was fired from her job at the U.S. Department of Justice in 2020. In the lead up to her termination, Anderson received negative performance reviews and was denied telework privileges—all because, Anderson alleges, she refused to withdraw a 2016 EEO complaint against her previous boss. Anderson now sues Attorney General Merrick Garland claiming retaliation in violation of Title VII. .. CONTINUED .. COURT DECISION: (.html)
♦ July 31, .. 5th Cir.: Papin v. Univ of MS Med Ctr .. This case arises out of the termination of a medical resident by the hospital at which he was employed. Appellee University of Mississippi Medical Center (“UMMC”) terminated the employment contract of the Appellant, Dr. Joseph Papin, due to a series of complaints about his workplace behavior, culminating in a serious incident involving care of a patient with a severe wound. Following an eight-day trial, a jury found that UMMC breached a contract with Dr. Papin—not because UMMC had violated Dr. Papin’s original employment contract, but because the director of its residency program, Dr. T. Mark Earl (“Dr. Earl”), had signed a “Remediation Agreement” with Dr. Papin that would have given him sixty days to improve in the residency program. The jury found that this document was a contract, and that UMMC violated it when its Human Resources department terminated Dr. Papin’s employment contract without letting him finish the remediation period. The jury awarded Dr. Papin $6 million in damages: $14,651 in past lost earnings; $660,000 in past physical pain and suffering, mental suffering, or emotional distress; $886,000 in future physical pain and suffering, mental suffering, or emotional distress; and $5 million in punitive damages. The trial court set aside the jury’s verdict. The trial court ruled that no reasonable jury could have found that the Remediation Agreement that Dr. Papin and Dr. Earl had signed was a contract, because Dr. Earl did not have the authority to enter into a contract on UMMC’s behalf. This appeal followed. .. CONTINUED .. COURT DECISION: (.html)
♦ July 30, .. 5th Cir.: Washington v. Sunflower County .. Frederick Lewis Washington served as County Administrator for Sunflower County, Mississippi until September 20, 2021. As County Administrator, Washington’s duties generally “concerned administrative duties of carrying out the policies and directions of the Board of Supervisors in performing such tasks as making estimates of expenditures for the annual budget, hiring, directing and controlling the work of County employees, and managing administrative and accounting functions.” On or about September 17, 2021, Washington learned members of the Board of Supervisors had engaged in what Washington believed to be an illegal bid-rigging scheme. Washington “informed the Chancery Clerk (the Clerk of the Board of Supervisors) that the Board had made an illegal purchase of a garbage truck.” In doing so, he “reported to the Board” the potential legal problems with their own actions. At the next Board meeting, the Board “went into executive session . . . and discharged Washington from his employment.” In November 2021, Washington filed a Notice of Claim before the Board, seeking re-employment and damages for his purportedly unlawful termination. .. CONTINUED .. COURT DECISION: (.html)
♦ July 30, .. FLRA: Army v. AFGE .. In July 2021, to balance a staffing shortage at one of its three fire stations, the Agency reassigned a firefighter (the original firefighter) from one fire station to another. The Union filed a grievance, alleging the Agency violated Article 35 of the parties’ agreement because it did not consider seniority in conducting the reassignment. The matter proceeded to arbitration before an arbitrator (the previous arbitrator) who issued a November 17, 2021 award and a December 8, 2021 clarification of that award (collectively, the first clarified award). In the first clarified award, the previous arbitrator found the Agency violated the parties’ agreement by reassigning the original firefighter without considering seniority. The previous arbitrator directed the Agency to return the original firefighter to his original station, and stated that future firefighter reassignments “shall be consistent with [the first clarified award] and determined by seniority as appropriate.” The Agency initially returned the original firefighter to his original position. However, in March 2022, the Agency implemented “reassignments impacting approximately 90% of the firefighters,” including the original firefighter. The Union filed another grievance, which went to arbitration before the Arbitrator. .. CONTINUED .. FLRA DECISION: (.html) (.pdf)
♦ July 30, .. MSC: Stegall v. Resource Technology Corporation .. Plaintiff, Mr. Stegall, had been hired to work at an FCA vehicle assembly plant in 2013 through Brightwing, a staffing agency. In late 2015, FCA announced its plans to eliminate plaintiff’s shift at the plant the following summer, but plaintiff claimed he was led to believe that he and the other employees would be offered jobs at another plant. In April 2016, plaintiff raised concerns about asbestos in the workplace to one of his FCA supervisors. According to plaintiff, the supervisors indicated that they would conduct air quality tests and provide plaintiff with the results. Through the months of May and June, plaintiff made periodic requests for the air quality test results but did not receive them. Plaintiff sent another communication to his supervisors about not receiving the results of the air quality tests and threatened to file complaints with the federal Occupational Safety and Health Administration and the Michigan Occupational Safety and Health Administration (the Michigan OSHA). Plaintiff was terminated on June 17, 2016, and he was instructed that his employment ended effective the day that FCA ceased operations on his second shift. On July 6, 2016, plaintiff filed a discrimination complaint with the Michigan OSHA, naming defendants in the complaint. Thereafter, plaintiff brought this action, claiming that his employment had been terminated by defendants in retaliation for his failure or refusal to violate the law and for exercising a right conferred by well-established legislative enactment, including occupational safety laws. .. CONTINUED .. COURT DECISION: (.html)
♦ July 30, .. CCA: Rocha v. County of Fresno .. Plaintiff and appellant Mr. Rocha was first hired by County in 2005 to work as a social worker in its Department of Social Services (DSS). While employed at DSS, Rocha developed two injuries for which he required workplace accommodations. Specifically, in 2009, he began experiencing carpal tunnel syndrome and, in 2016, he developed a bulging disc in his back. DSS accommodated Rocha’s medical conditions, in part, by changing his work assignments and reducing his typing and computer time. According to Rocha, he received positive performance reviews while at DSS. However, given his physical limitations and the extensive work requirements of his position at DSS, Rocha decided to seek transfer to the Fresno County Library (County Library). Plaintiff and appellant Daniel Rocha is a former employee of the County of Fresno (County). Fresno County terminated Rocha’s employment after it determined Rocha had violated several County personnel rules. Thereafter, Rocha filed suit alleging County had (1) discriminated against him on the basis of his medical conditions and physical disability, (2) retaliated against him for making protected complaints pertaining to his medical conditions and physical disability, and (3) failed to prevent the alleged acts of discrimination and retaliation. Fresno County moved for summary judgment. .. CONTINUED .. COURT DECISION: (.html)
♦ July 25, .. ACI: People v. Bush .. Oak Park, Illinois is an (affluent) suburb located directly adjacent to Chicago's west side Austin neighborhood (Austin is one of the most dangerous neighborhoods in America). At trial, Oak Park police officer Johnny Patterson testified that on the morning of May 3, 2015, he prepared for work by dressing in his uniform pants, a t-shirt, and a Cubs jersey. He carried his loaded, off-duty .40-caliber firearm in a holster on his hip. About 5:10 a.m., he drove his vehicle from the front of his house to the alley, parked, and walked into his garage through the service door to retrieve a protein shake from the refrigerator. Although the sun was not up yet, the area near the garage was “well-lit” by an alley light. As Patterson exited the garage into the alley, he saw motion to his left. He turned and saw a person 20 to 25 feet away “come from behind a pole and start approaching *** with a weapon.” In court, he identified this person as defendant. Defendant walked toward Patterson at a fast pace, pointing his weapon directly at Patterson’s face. Patterson was at the driver’s door of his vehicle and defendant walked to the bumper. Patterson said, “I am the police, I am the police.” A second man appeared and grabbed Patterson’s sides and pockets, patting him down. Patterson glanced at the second man, but his focus was on defendant. The second man said, “He got something, shoot him, shoot him,” at which point defendant opened fire. A bullet struck Patterson’s right forearm, which he used to cover his face. Patterson moved, was shot in the left side, and pulled his own weapon and returned fire as he went to the ground. Patterson recalled firing his own weapon four times. Defendant fired more rounds, one of which struck Patterson’s right calf. Defendant started to back up and fell. Although defendant had fallen, he was still firing. Patterson did not know whether he had hit defendant “until he was running away and he yelled to his partner, ‘He shot me, he shot me.’ ” Defendant and the second man ran northbound through the alley toward 103rd Street. After defendant and the other man fled, Patterson called his wife, who called 911. .. CONTINUED .. COURT DECISION: (.html)
♦ July 25, .. 7th Cir.: Craig v. Wrought Washer Manufacturing .. Mr. Craig, who is black, worked at Wrought, a producer of washers, nuts, and bolts.. He began his employment in the general labor pool but eventually worked his way up to a job in stamping. Throughout Mr. Craig’s employment with Wrought, Paul Schaefer was the plant manager. Mr. Craig became the union president in 2018. In this role, he negotiated the union’s contract with Wrought. During contract negotiations in 2018, Mr. Craig expressed his concerns to Schaefer about what he viewed as Wrought’s lack of minority leadership. Earlier, in 2017, Mr. Craig expressed his concerns about racial discrimination at Wrought to Schaefer. On November 28, 2018, Mr. Craig got into a disagreement with a lead employee and a supervisor. This disagreement became a “yelling match” and worked its way up the shop floor and eventually to the front near Schaefer’s office. After Schaefer and a union employee informed Mr. Craig that he was in the wrong, Mr. Craig went back to the shop floor and began writing a union grievance. Later that same day, Mr. Craig handed Schaefer a grievance alleging racial discrimination based on Schaefer’s lack of response to Mr. Craig’s concerns about racial disparities at Wrought. Handing this grievance to Schaefer constituted the first step of the union’s grievance process. On December 3, Schaefer gave Mr. Craig a written warning for being loud and disruptive during the November 28 incident. Although Schaefer stated that Mr. Craig was “consistently loud, disruptive,” and that “that was the way he operated,” Mr. Craig had received no earlier discipline for his behavior. Schaefer told Mr. Craig that Wrought “can’t have this kind of behavior” and that he needed “to get something on file” about the incident. Events at Wrought escalated further in early-tomid-March. On March 7, Mr. Craig’s work supervisor, Jason Jacobs, caught him using his cell phone while running his stamping machine. Wrought had a policy against its employees using cell phones while on the shop floor, and so Jacobs verbally warned Mr. Craig to put away his phone. The next day, Jacobs saw Mr. Craig using his cell phone three more times on the shop floor. The third time, he reprimanded Mr. Craig. A terse exchange between the two followed. After hearing Mr. Craig’s version of the story, Schaefer credited Jacobs’s version and suspended Mr. Craig without pay. On April 5, Schaefer called Mr. Craig to discuss his return to work. Schaefer informed Mr. Craig he could return to work if he signed Wrought’s “Last Chance Agreement.” Mr. Craig refused to sign the Last Chance Agreement. Wrought subsequently terminated Mr. Craig. .. CONTINUED .. COURT DECISION: (.html)
♦ July 24, .. 6th Cir.: Cartwright v. d.e. Foxx .. d.e. Foxx employed Mr. Cartwright in a sales position. In over a year on the job, Cartwright failed to make a single sale. The Company put Cartwright on a performance improvement plan, but nothing changed, and roughly seventeen months after placing Cartwright in his role, Foxx fired him. At the same time, Foxx fired two of Cartwright’s colleagues, both of whom similarly failed to generate sales activity. One of those colleagues was ten years Cartwright’s junior. Neither Cartwright nor his colleagues were replaced, and their collective responsibilities fell to their supervisor, the sole remaining employee in their department. Cartwright sued Foxx under the Age Discrimination Employment Act (“ADEA”)alleging that Foxx fired him because of his age. .. CONTINUED .. COURT DECISION: (.html)
♦ July 24, .. MSPB: Caldwell v. OPM .. The appellant, Ms. Caldwell, filed the instant appeal challenging OPM’s reconsideration decision denying her disability retirement benefits under the Federal Employees Retirement System (FERS). We find that the appellant’s failure to contact the administrative judge as promised does not evidence a lack of diligence or negligence or an intent to abandon her appeal. Based on the foregoing, we find that the appellant has not exhibited an intent to abandon her appeal, nor negligence or bad faith. .. CONTINUED .. MSPB DECISION: (.html)
♦ July 241, .. FLRA: VA v. AFGE .. The Agency assigned the grievant, an advanced medical support assistant and the Union’s chief steward, to a temporary detail at a community‑based outpatient clinic. During this detail, the Union requested that the grievant receive 100% official time to conduct representational activities at multiple clinics. Under Article 48, Section 10.A of the parties’ agreement, Union locals “receive an allotment of hours equal to 4.25 hours per year for each bargaining[‑]unit position represented.” As relevant here, “[w]here a local represents employees at a [community‑based outpatient clinic], . . . at a duty station greater than 50 miles from the facility, that local union will be allotted 25% official time at that duty station.” The Union requested that the Agency grant the grievant 75% official time to represent his duty station and two other clinics, with 25% official time allocated per clinic. The Union also noted that it was allotting the grievant 25% official time from the Union’s bank of hours which, when added to the grievant’s 75% official‑time allotment, made the grievant eligible for 100% official time. .. CONTINUED .. FLRA DECISION: (.html)
♦ July 24, .. 5th Cir.: Dabbasi v. Motiva Enterprises .. Mr. Dabbasi began his employment with Motiva in June 2014, when he was 48 years old. He worked as a Gasoline Coordinator in the Economics and Scheduling (“E&S”) Department at the Port Arthur, Texas Refinery and reported to Production Planning Manager Rod Dolan. Dolan placed Dabbasi on a Performance Improvement Plan (“PIP”) in 2015 because he allegedly was “aggressive” and “intimidating.” The PIP, however, was discontinued. Dabbasi later won a “President’s Award” on three occasions, including in 2015 and 2018. Despite this, Dabbasi received subpar performance ratings on his 2015, 2016, and 2017 annual reviews. Plaintiff Dean Dabbasi was terminated in 2019 by his employer, Defendant Motiva Enterprises. As a result, Dabbasi brought an age- discrimination claim against Motiva under the Age Discrimination in Employment Act. .. CONTINUED .. COURT DECISION: (.html)
♦ July 23, .. DcDc: Oviosu v. Wolf (DHS) .. The plaintiff, Esther Oviosu, brings this civil action against the defendant, Alejandro Mayorkas, in his official capacity as the Secretary of Homeland Security, asserting the following claims: (1) discrimination based on her race and color and (2) retaliation based on prior Equal Employment Opportunity (“EEO”) activity. Currently pending before the Court is the defendant’s motion to dismiss, or in the alternative, for summary judgment. Upon careful consideration of the parties’ submissions,1 the Court concludes for the following reasons that it must deny the defendant’s motion to dismiss and grant the defendant’s motion for summary judgment. .. CONTINUED .. COURT DECISION: (.html)
♦ July 23, .. MSPB: Morrison v. Navy .. The appellant was employed as a GS-7 Firefighter, a non-critical sensitive position which required him to maintain eligibility for a security clearance. The agency agency revoked his eligibility for a security clearance because the extent of his indebtedness and failure to provide sufficient evidence of repayment or resolution of his debts cast doubt on his judgment, reliability, and trustworthiness. The agency proposed his removal on March 28, 2012, based on the charge of Denied Eligibility to Access Non -Critical Sensitive Areas. On July 13, 2012, the appellant's third-level supervisor told him that the charge against him had been sustained and that he was to be removed that same day. Although the appellant was advised of the agency’s decision, the decision letter was not issued to him that day because he decided to retire before the removal could take effect. The appellant filed an involuntary retirement appeal with the Merit Systems Protection Board (MSPB). MSPB found that he nonfrivolously alleged that his retirement was involuntary because he materially relied on agency misinformation, vacated the initial decision, and remanded the appeal for a jurisdictional hearing. By letter dated July 6, 2016, the agency determined that it would have effected the appellant’s removal had he not retired on July 13, 2012. Consistent with the Board’s order, the agency therefore documented his removal, effective July 13, 2012, as when an employee retires in lieu of removal. This appeal followed. .. CONTINUED .. MSPB DECISION: (.html)
♦ July 23, .. CAW: Mcguire v. Boeing Company .. McGuire started working as a flight line mechanic and inspector for The Boeing Company (Boeing) in October 2011. Prior to working for Boeing, McGuire underwent two major back surgeries: a lumbar laminectomy in 1999 and a cervical discectomy and fusion in 2007. On December 8, 2012, McGuire was working in an enclosed area when a coworker reportedly pointed a knife at his face. McGuire filed an industrial injury claim and sought benefits for post-traumatic stress disorder (PTSD), which he asserted was proximately caused by the knife incident. On January 10, 2013, McGuire sustained an industrial injury to his back while bending, turning and lifting an airplane part. The Board found that this injury did not aggravate McGuire’s preexisting lumbar degenerative disc disease. After sustaining this injury, McGuire was off work until March 11, 2013. On March 14, 2013, three days after returning to work, McGuire sustained a third industrial injury when he was sitting at a cafeteria table and a co-worker put his hand on McGuire’s neck and shoulder and exerted pressure while lowering himself to sit at the table, proximately causing a strain/sprain of his neck. McGuire sought workers’ compensation for physical injuries sustained as a result of this incident, and the Department accepted the claim. McGuire never returned to work, and in January 2015, Boeing terminated his employment. On May 6, 2019, the Department closed this claim without a permanent disability award. McGuire, representing himself, appealed the claim closure to the Board. .. CONTINUED .. COURT DECISION: (.html)
♦ July 23, .. VCA: Episcopal Diocese of Southern Virginia v. Marshall .. The two plaintiffs in this case are Robert K. Marshall and his wife, Tatiana C. Marshall. The three defendants are the Episcopal Church, the Episcopal Diocese of Southern Virginia, and the Right Reverend Susan B. Haynes. Bishop Haynes was sued “both individually and in her official capacity” as the diocesan bishop. The only claim at issue here is Count XI. That count alleges that Bishop Haynes committed defamation per se in May 2022 when she told the congregation of the Episcopal Church of Redeemer–Midlothian (“Redeemer”) that Marshall had engaged in sexual misconduct and that he had admitted as much. The trial court overruled Bishop Haynes’s plea in bar, holding that the ecclesiastical-abstention doctrine was not implicated. We summarize the facts relevant to that claim. .. CONTINUED .. COURT DECISION: (.html)
♦ July 19, .. 5th Cir.: Bardell v. Jefferson Prsh Sch Bd .. Mr. Bardell was Dean of Student Services at Martyn Alternative School when he was demoted for inappropriate conduct. He has since unsuccessfully applied for numerous administrative positions. Bardell, a black male over 40 years old, filed suit against Jefferson Parish School Board alleging discrimination regarding the denial of the administrative positions. Bardell alleges that he has applied to over 80 leadership positions since 2013. He argues he is qualified for these positions because he holds two master’s degrees and is working toward a doctoral degree from Vanderbilt University. Bardell asserts the School Board wrongfully refused to promote him and instead hired younger candidates who are not black males. .. CONTINUED .. COURT DECISION: (.html)
♦ July 19, .. MSPB: Flores v. SSA .. The appellant was a Social Insurance Specialist with the Social Security Administration (SSA). She was hired under a career-conditional appointment, effective August 31, 2018, and was subject to a 1-year probationary period. Prior to her appointment, she filled out an Optional Form 306 (OF-306). Therein, she answered “no” on question 12 asking: During the last 5 years, have you been fired from any job for any reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement because of specific problems, or were you debarred from Federal employment by the Office of Personnel Management or any other Federal agency? The appellant recertified the form on her first day of employment with the SSA. The appellant subsequently filled out a Questionnaire for Public Trust Positions, Standard Form 85P (SF-85P), on February 7, 2019. Therein, she answered “yes” when asked: Has any of the following happened to you in the last 7 years? Fired from a job. Quit after being told you’d be fired. Left a job by mutual agreement following allegations of misconduct. Left a job by mutual agreement following allegations of unsatisfactory performance. Left a job for other reasons under unfavorable circumstances. On the SF-85P, she clarified that, in May of 2018, she left a job by mutual agreement following allegations of unsatisfactory performance. She identified the reason being an “[i]llegal company policy, currently being sued. On June 7, 2019, the agency terminated the appellant effective that day. The termination memorandum noted that the appellant gave inaccurate information when she answered “no” on question 12 on the OF-306, and later reaffirmed the inaccurate information on the same form. The appellant thereafter filed the instant appeal, .. CONTINUED .. MSPB DECISION: (.html)
♦ July 19, .. 6th Cir.: Odell v. Kalitta .. Kalitta is a cargo airline that is headquartered in Ypsilanti, Michigan, and is owned by Conrad Kalitta (“Conrad”). On October 11, 2021, Kalitta issued an employee notice in response to the COVID-19 pandemic and Executive Order 14042 (“EO 14042”), stating that “Kalitta would be complying with the EO and that every employee would have to be vaccinated.” The Kalitta notice also stated that employees “who were unable to receive a vaccination, due to a disability or a sincerely held religious belief, can request an accommodation . . . by October 31, 2021, and will be placed on an unpaid leave effective December 8, 2021.” Conrad also offered a $1,000 payment to employees who had been or would be “fully vaccinated by the December 8th deadline.” On an October 19, 2021 conference call, Kalitta’s Vice President of Human Resources allegedly stated that even if employees who had received an accommodation could return to work, Kalitta did not “want them back.” .. CONTINUED .. COURT DECISION: (.html)
♦ July 18, .. ACA: DeJean v. DeJean .. Approximately five years before the wife filed her complaint for a divorce, the wife discovered that the husband "liked to talk to other women online. He'll find someone and befriend them online and then enter an inappropriate relationship. They'll have phone sex or even video each other." The wife stated that she had obtained that information from the husband's cellular telephone. She also testified that he had met some women in person. However, she stated that she did not know if he had met any women "recently. Honestly, I kind of avoided looking just because I don't … want to know," she said. She also stated that she had no proof that he had had sexual intercourse with any woman other than her during the marriage. The husband denied that he had had a sexual relationship with anyone but the wife, but he admitted that he had had "text message exchanges" with other women. According to him, he had stopped that after the wife mentioned it to him, but he later testified that he had stopped texting other women when the parties moved to Gulf Shores. The husband also admitted that the wife had caught him when he went to Texas in 2015 or 2016 to meet with a woman that he had met online .. CONTINUED .. COURT DECISION: (.html)
♦ July 18, .. FLRA: Maryland Air National Guar v. IAFF .. In the attached decision and order (decision), Federal Labor Relations Authority (FLRA) Regional Director Jessica S. Bartlett (the RD) found that: (1) certain fire‑protection personnel (firefighters) fall within the express terms of a bargaining-unit certification held by the Association of Civilian Technicians (ACT); and (2) severing the firefighters from the bargaining unit that ACT represents (the ACT unit) would not be appropriate. Therefore, she dismissed the International Association of Fire Fighters’ (IAFF’s) petition for an election to determine whether the firefighters want IAFF to represent them in a separate bargaining unit. IAFF filed an application for review of the decision (application), arguing, among other things, that the RD failed to apply established law in finding the firefighters fall within the express terms of the ACT unit’s certification (the ACT certification). .. CONTINUED .. FLRA DECISION: (.html)♦ July 18, .. FLRA: VA v. AFGE .. This matter is before the Authority on exceptions to an award of Arbitrator Jack P. Cerone filed by the Agency under § 7122(a) of the Federal Service Labor‑Management Relations Statute[1] and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exceptions. On March 8, 2024, the Authority issued an order (March PDO) directing the Agency to correct a procedural deficiency in the filing of its exceptions. The March PDO also stated, “[F]ailure to respond to or comply with this order by March 22, 2024, may result in dismissal of [the Agency’s] exceptions.” The Agency did not respond to the March PDO. On April 15, 2024, the Authority issued a show-cause order (April SCO) directing the Agency to show cause why its exceptions should not be dismissed for failure to comply with an Authority order The April SCO also provided that “failure to comply with this order by April 29, 2024, may result in dismissal of the Agency’s exceptions.” The Agency did not respond to the April SCO. The Authority will dismiss a party’s filing when the party does not comply with an Authority order concerning that filing. Failure to respond to a show-cause order is among the grounds that warrant dismissal. As discussed above, the Agency did not respond to the April SCO, which expressly stated that failure to respond may result in dismissal of the Agency’s exceptions. .. CONTINUED .. FLRA DECISION: (.html)
♦ July 18, .. MSPB: Baker-Dubbs v. FDIC .. The appellant was employed by the federal depositor's Insurance Corporation (FDIC) as a Corporate Graded (CG)-14 Senior Ethics Program Specialist with its Office of General Counsel. On June 27, 2018, the FDIC proposed to remove the appellant based on charges of inappropriate conduct and misuse of duty time. Effective September 30, 2018, the FDIC sustained both charges and demoted the appellant to the position of a CG-12 Board Support Specialist. The charges stemmed from the appellant’s actions of repeatedly performing some of her father’s duties as an agency Contract Specialist between September and December 2017. .. CONTINUED .. COURT DECISION: (.html)
♦ July 15, .. NJSC AD: Lenz v. Board of Trustees, Etc. .. On February 1, 2008, Mr. Lenz was enrolled in Public Employees' Retirement System ("PERS") through his employment with Hudson County Department of Roads and Property ("County"). Mr. Lenz was promoted to the position of manager of public property in 2012. After receiving the promotion, Lenz submitted a budget request for an annual salary of five percent above the salary of his highest paid subordinate. This was based on the County's purported unwritten policy "with respect to a five-percent differential between the salaries of particular supervisors and their next ranking subordinate." The County denied Mr. Lenz's request. Accordingly, in June 2015, Lenz sued the County in the Law Division for violation of the policy. The complaint was subsequently removed to federal court. He claimed he served in a supervisory capacity "at all times," even prior to being promoted in 2012. At some point prior to Lenz filing the lawsuit, he developed Parkinson's disease. Here, petitioner Mr. Lenz appeals from the final administrative decision of the Board of Trustees ("Board"), Public Employees' Retirement System ("PERS"), rejecting an administrative law judge's ("ALJ") decision that Lenz's retroactive salary increase be included as creditable compensation for pension calculation purposes. .. CONTINUED .. COURT DECISION: (.html)
♦ July 15, .. 11th Cir.: Spagnolia v. Charter Communications .. Ms. Spagnolia began her employment with Charter in 2016. She moved to Colorado in 2017 to work as a Regional Operations Center Specialist in the Denver area. From April to July 2019, Ms. Spagnolia took leave under the Federal Medical Leave Act to give birth to her second child. Like many mothers of newborns, Ms. Spagnolia needed to pump breast milk. Her supervisor, Chris Williams, told her that she could use the office Wellness Room when she needed to pump. She was allowed to pump on company time. Since the Wellness Room was temporarily unavailable because of construction, Ms. Spagnolia pumped in a bathroom. After Ms. Spagnolia objected to this venue, a different supervisor, Brian Tritz, suggested she pump in the locker room, and offered her his key card. Although Charter had a women’s locker room, Ms. Spagnolia felt uncomfortable in that location since it was accessible with a man’s key card. With no satisfactory pumping location, Ms. Spagnolia emailed Mr. Tritz to ask for a sustainable solution. Here, Ms. Spagnolia sued her former employer, Charter Communications, under the Colorado Anti-Discrimination Act (CADA) alleging that she was fired in retaliation for making reasonable requests for lactation accommodation. Ms. Spagnolia met with Mr. Tritz to discuss the change in policy. She surreptitiously recorded the meeting. Charter later discovered that she had done so and terminated her on August 29 for violating internal policies prohibiting surreptitious recordings of meetings. Ms. Spagnolia sued Charter alleging (1) pregnancy discrimination, (2) gender discrimination, (3) failure to accommodate, (4) retaliation, and (5) termination in violation of public policy. .. CONTINUED .. COURT DECISION: (.html)
♦ July 15, .. MSPB: Van v. VA .. In November 2009, the appellant was appointed as a staff Physician in the Imaging Service of the agency’s Audie L. Murphy Memorial Veterans’ Hospital (Audie Murphy VA) in San Antonio, Texas. The hospital’s Imaging Service is divided into four sections – Diagnostic Radiology, Interventional Radiology, Nuclear Medicine, and Radiation Oncology. Each section is headed by a Section Chief, and the Imaging Service as a whole is headed by a Service Chief. The Imaging Service used to be called the “Radiology Service.” These terms are used interchangeably throughout the record. In the fall of 2014, the agency appointed Dr. A as the new Chief of the Imaging Service. Shortly thereafter, Dr. A personally selected a physician to work in the Imaging Service on a contract basis, and in January 2015, the appellant raised concerns about the competency of this physician based on multiple errors that he had made reading and interpreting images. These concerns precipitated an inquiry and a formal peer review that resulted in a delay in the subject physician securing a civil service appointment, although he was ultimately returned to the Imaging Service with limited privileges. Shortly after Dr. A became aware of the appellant’s disclosures, she and some of the upper management at the Audie Murphy VA began subjecting her to a number of personnel actions that the appellant believed to be retaliatory. The appellant’s working conditions eventually led her to resign her position effective June 30, 2015, and pursue a mammography fellowship at the neighboring university hospital. Around the same time, an unrelated investigation led to Dr. A’s reassignment and removal. Dr. L, who was Deputy Chief of Medical Staff at the time, stepped in to fill the vacant Service Chief position. In light of this personnel shift, which had removed Dr. A from her chain of command, the appellant immediately regretted her decision to resign, but she felt that she had to go through with it because she had already made a commitment to the university. Prior to her resignation, on April 28, 2015, the appellant filed a whistleblower complaint with the Office of Special Counsel (OSC). .. CONTINUED .. COURT DECISION: (.html)
♦ July 15, .. 10th Cir.: Whitson v. Hanna .. Sheriff Thomas Hanna of Sedgwick County, Colorado, sexually assaulted an intellectually disabled prisoner while transporting her between county jails. The victim, Peatinna Biggs, filed this civil-rights suit under 42 U.S.C. § 1983 by and through her guardian ad litem, Plaintiff Hollis Ann Whitson, against Sedgwick County, the Sedgwick County Sheriff’s Department, and Sheriff Hanna in his individual and official capacities. The district court granted the motion of the County and the Sheriff’s Department (the municipal defendants) to dismiss the complaint against them, reasoning that the County could be liable only if “the challenged conduct [had] been taken pursuant to a policy adopted by the official or officials,” and “Hanna’s actions were not pursuant to Department policies, but in direct contravention of them.” Hanna was then found liable by a jury in his individual capacity. Whitson appeals the dismissal of the claims against the municipal defendants, which are legally equivalent to claims against Hanna in his official capacity. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. Sheriff Hanna’s actions fell within the scope of his policymaking authority regarding the custody and care of prisoners and subjected the municipal defendants to liability. .. CONTINUED .. COURT DECISION: (.html)
♦ July 12, .. SC NY: Pastor v. August Aichhom Center .. Ms. Pastor commenced this employment discrimination action against defendants The August Aichhom Center for Adolescent Residential Care, Inc. (Aichhom) and Renelle Pope, an employee of Aichhorn, on the basis of her race and ethnicity. Ms. Pastor claims that in the summer of 2020, while Aichhorn was transitioning its employees to a successor entity, the Child Center of New York (Child Center), Ms. Pastor was delayed in starting with the Child Center by approximately two months due to discrimination by Aichhorn and Ms. Pope. Plaintiff alleges that Ms. Pope failed to include plaintiff in the original transitioning employees list because Ms. Pope is a "racist and hated Puerto Ricans". .. CONTINUED .. COURT DECISION: (.html)
♦ July 12, .. 11th Cir.: Holloway v. TelaGen, LLC .. Ms. Holloway worked as a tissue recovery technician at telaGen, LLC, from 2017 to 2020. As part of her job duties, Holloway would meet with expecting mothers and recover birth tissue, which can be used for different tissue grafts. Holloway performed well as a technician and was even named employee of the year in 2019. But her performance was not perfect. In December 2019, she failed to report to work without notifying her supervisor. Because of that absence, Holloway missed seven scheduled cesarean sections. When Brett Miller, telaGen’s director of operations, approached Holloway about her absence, she lied about missing so many procedures, suggesting that she had been at work that day. Miller later sent Holloway an email in January 2020, counseling her that her absence from work and subsequent dishonesty were unacceptable. Holloway was warned that, going forward, she was to “report anything that prevents [her] from getting to work appropriately.” Before she was fired, Holloway had voiced concerns about telaGen’s COVID-19 response and her desire for leave. Victoria Holloway brought suit against her employer telaGen, LLC, alleging employment discrimination, retaliation, and leave interference. .. CONTINUED .. COURT DECISION: (.html)
♦ July 12, .. 11th Cir.: Monteagudo v. The De Moya Group .. Mr. Monteagudo was a construction worker for De Moya Group, Inc. His supervisor, Noel Leon consistently harassed Monteagudo based on Monteagudo’s Cuban descent and inability to speak English. Eventually, Monteagudo reported the harassment to the Vice President of Field Operations, Chris De Moya, and requested reassignment to a new job site. Chris De Moya promptly transferred Monteagudo. But Monteagudo’s problems only got worse from there. Upon arriving at the new job site, Manuel Comes — one of Monteagudo’s new supervisors — approached Monteagudo and said that he would be keeping a close eye on Monteagudo. Apparently, “Comes had been warned [Monteagudo] was ‘problematic’” on his previous site. Not long after that interaction with Comes, Monteagudo was berated and struck by Alejandro Leon—another supervisor on Monteagudo’s new job site and the son of Noel Leon. Alejandro Leon concluded the attack by threatening to make Monteagudo “disappear” “if anything happened to” Noel Leon. Monteagudo reported the attack to Comes, who responded by telling Monteagudo to refrain from reporting it to anyone else. A few days later, Jerome Nasso (another supervisor on the new job site) fired Monteagudo after he found Monteagudo asleep on a machine. Monteagudo sued under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act, alleging that his three new supervisors were retaliating against him for reporting the harassment by his initial supervisor. .. CONTINUED .. COURT DECISION: (.html)
♦ July 11, .. FLRA: VA Topeka, ks v. AFGE .. The grievants work as nurses in a VA community-living center under the same supervisors (supervisors). On April 22, 2022, the VA issued a notice implementing mandatory weekly COVID-19 testing for vaccinated employees (the notice). The notice required employees to undergo testing during “duty hours,” and provided that employees who were “unable to obtain a test during . . . duty hours” would be compensated with “normal overtime hours.” The notice also required unvaccinated employees, or employees who did not disclose their vaccine status, to be tested every two to three days. The supervisors informed one grievant that “she was not going to be compensated” for testing time outside duty hours. The Union then filed a grievance. The Union alleged the VA failed to properly compensate the grievants for time spent undergoing testing testing time outside duty hours. ... CONTINUED .. FLRA DECISION: (.html) (.pdf)
♦ July 11, .. 6th Cir.: Salekin v. Denis McDonough (VA) .. For nearly 25 years, Dr. Choudhury Salekin worked as a neurologist and sleep specialist for the Department of Veterans Affairs. His first two decades appear to have gone smoothly. Then things took a turn for the worse. First, the VA had concerns with Salekin’s work performance. In his last few years with the VA, Salekin scored poorly on performance reviews and failed a routine evaluation. He sometimes arrived late to work and failed to complete trainings. He also yelled at a nurse, left patients’ social security numbers in public areas, and neglected to properly record a few patients’ diagnoses. So the VA relieved Salekin of his supervisory duties and asked two neurologists to independently review his case reports. Of the 20 reports reviewed, the neurologists agreed that 17 fell short of the standard of care. Other concerns arose when a few of Salekin’s female patients asked to see a new doctor. According to one patient, Salekin asked if she had a boyfriend and told her she was “much too pretty” not to have one. Salekin denied making any inappropriate comments. But in an abundance of caution, the VA suspended Salekin from treating patients until a panel could investigate the allegations. Ultimately, the panel corroborated the allegations. And, after listening to Salekin’s side of the story, the VA issued him a written reprimand. The VA also had concerns with Salekin’s professional ethics. A nurse informed supervisors that Salekin was providing outside medical care while on the clock at the VA. Supervisors also heard that Salekin was making outside referrals for VA patients and using VA records and equipment for private gain. As a result, the VA locked Salekin out of his office and assigned him to a new workspace while his office was searched. In his office, investigators found “a large number” of documents related to Salekin’s private practice. Eventually, the VA fired Salekin. According to the VA, Salekin engaged in “improper conduct,” created an “appearance of impropriety,” and demonstrated a “lack of candor.” After the VA fired Salekin, he sued. He alleged the VA discriminated against him based on his national origin. (Salekin is from Bangladesh.) He also alleged the VA retaliated against him for previous complaints he had filed with the Equal Employment Opportunity Commission. Finally, Salekin claimed the VA created a hostile work environment. .. CONTINUED .. COURT DECISION: (.html)
♦ July 10, .. 4th Cir.: Hayes v. Sonabank .. This appeal is about Sonabank’s decision to terminate Ms. Hayes’s employment in March 2020. Hayes began working for Sonabank in 2018, and in October of that year, the Bank invited Hayes to become a Relationship Manager (“RM”). Hayes accepted the position, where she was responsible for (among other things) “developing and implementing business development strategies and activities in order to attract profitable new business for the Bank,” while also “generating new deposit accounts and servicing the deposit needs of clients.” The then-president of Sonabank held periodic meetings with the RM team and emphasized the need to secure and “grow . . . deposits” from new and existing clients. Hayes’s performance in meeting these goals was mixed at best. Hayes, an African American woman, alleges that Sonabank did so after she reported racially discriminatory remarks and acts by the Bank, constituting retaliation that violated ... the Civil Rights Act of 1964. Sonabank, however, maintains that it terminated Hayes’s employment as a “Relationship Manager” because of her deficient job performance and lack of production. The district court found that though Hayes made a prima facie showing of retaliation, Sonabank in turn offered a legitimate, nonretaliatory reason for firing her. Ms. Hayes appealed. .. CONTINUED .. COURT DECISION: (.html)
♦ July 10, .. CCA: Lim v. City of Downey .. Plaintiff Mr. Lim was injured while on duty as a probationary police officer for defendant City of Downey (City) and placed on disability leave. While on disability leave, Lim engaged in physical activity that violated his work restrictions and then made sworn statements in a workers’ compensation deposition denying such physical activity. On April 1, 2019, Magana emailed McQueen, stating that Lim “runs a basketball league in Los Angeles.” She reported that on April 11, 2019, Lim ran a number of errands, used his crutches only while at a medical appointment and at the Americana at Brand, and “unload[ed] several items from his vehicle.” A day or two after he was found applying pressure, twisting and turning on both feet, and then up to get into the vehicle [sic] as well, with no supports.” On April 25, Magana reported in “surveillance investigations that took place” on April 5, 6, 11, 17, and 18, 2019, that Lim was observed to walk both with and without crutches. “He displayed no restriction . . . [and] was observed carrying several heavy items while walking back and forth. He was entering and exiting and driving . . . vehicles with no signs of hesitation.” She stated, “There’s potential to proceed with filing for fraud” and noted that RJN would submit exhibits to the district attorney for criminal investigation. After Lim was cleared to return to work, and while he was still a probationary at-will employee, City terminated Lim’s employment because it believed he had engaged in workers’ compensation fraud. Lim sued City under the Fair Employment and Housing Act for disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process, and failure to prevent discrimination or retaliation. .. CONTINUED .. COURT DECISION: (.html)
♦ July 10, .. 8th Cir.: Huber v. Westar Foods .. Westar Foods operates a number of Hardee’s restaurants in the Midwest, employing more than 200 people. In December 2018, Westar hired Huber as a store manager for a Nebraska Hardee’s location. Prior to employment with Westar, Huber had worked in the fast-food industry for fifteen years. Westar hired Huber to work full-time at fifty hours per week. Huber’s ten-hour shifts typically began at 5 a.m. and ended at 3 p.m., while Huber’s duties included managing restaurant staff, overseeing store operations, and ensuring the store was opened each day. In December 2019, Ms. Huber experienced a diabetic episode that caused her to miss work. Huber began to feel sick because of her diabetes. When Huber woke up for her shift on the morning of December 20, her blood glucose level was low, and she was experiencing symptoms consistent with hypoglycemia. Indeed, because of her blood glucose level, Huber “felt out of it” and did not know who or where she was. Huber realized she needed to go to work but then forgot and became confused as to what was happening or where she was supposed to be. Days later, her employer, Westar Foods, Inc., fired her. Thereafter, Huber brought this action alleging disability discrimination under the Americans with Disabilities Act (“ADA”), as well as interference with and retaliation for exercising her rights under the Family and Medical Leave Act (“FMLA”). Westar filed a motion for summary judgment, which the district court granted. Huber appeals. WE REVERSE and remand for further proceedings consistent with this opinion. .. CONTINUED .. COURT DECISION: (.html)
♦ July 10, .. ICA W: Woods v. WorkForce West Virginia .. Ms. Woods worked for Employer as a tutor at its North Charleston location from August 7, 2016, to February 22, 2023. She worked four hours per day at a rate of twenty- five dollars per hour. Ms. Woods was permitted to work a total of ten to fifteen hours every two weeks. However, Ms. Woods was submitting timesheets reflecting up to thirty hours of work per two-week period. According to Ms. Woods, she had an agreement with Employer’s former executive director, who previously approved her to submit additional hours because she was tutoring two different subjects. Ms. Woods would clock in for work hours prior to the location opening. Ms. Woods claimed she was using that time to sanitize the classrooms, make photocopies for her lessons, or to perform other administrative tasks prior to the children arriving. Employer’s current Executive Director, Dianna Graves (“Director Graves”), instructed North Charleston management to direct Ms. Woods to stop submitting timesheets that exceeded the ten to fifteen biweekly hours she was authorized to work. Despite this directive, Ms. Woods’ timesheet practices did not change. On February 21, 2023, Director Graves met with Ms. Woods. According to Ms. Woods, Director Graves advised her that if she did not limit her timesheets to the biweekly total of ten to fifteen hours, her employment would be terminated. During the administrative hearing, Director Graves testified that she met with Ms. Woods to discuss the hours reported on her timesheets but denied giving Ms. Woods the ultimatum to comply or be terminated; in fact, Director Graves stated she was not contemplating formal discipline against Ms. Woods when the meeting occurred. During this meeting, both parties became argumentative and raised their voices concerning the issue. Ms. Woods contended that she tried to explain why she was logging additional hours, but Director Graves did not allow her to do so. It is undisputed that Ms. Woods voluntarily left her employment during or after this meeting. On February 26, 2023, Ms. Woods filed a claim for unemployment benefits. The issue on appeal is whether the Board erred in its determination that Ms. Woods had left her employment voluntarily without good cause involving fault of her employer, and was, therefore, disqualified from receiving unemployment benefits. .. CONTINUED .. COURT DECISION: (.html)
♦ June 27, .. FLRA: IRS v. NTEU .. The Arbitrator issued an award finding the Agency violated the parties’ collective‑bargaining agreement by failing to provide an employee (the grievant) adequate counseling before lowering her overall performance rating. As a remedy, the Arbitrator directed the Agency to raise the grievant’s rating. The Agency filed exceptions arguing the award is contrary to § 7106(a) of the Federal Service Labor‑Management Relations Statute (the Statute)and fails to draw its essence from the parties’ agreement. For the reasons below, we find the Arbitrator's award is contrary to law and set it aside. .. CONTINUED .. FLRA DECISION: (.html) (.pdf)
♦ June 25, .. ACI: People v. Allen .. THE 11th COMMANDMENT : IF HE CAN'T SLEEP IN YO BED, HE WON'T -RISK LIFE- TO PROTECT YO STUFF. .. Timothy Parent testified that he lived in unit 509. At approximately 5:30 a.m. on October29, 2017, Mr. Parent awoke to someone knocking on his door and yelling, “I know she’s in there, I know—my girl is in there, I know my daughter’s in there.” Mr. Parent looked through the peephole and saw defendant, whom he identified in court. Mr. Parent called security from inside his unit. A security guard responded within minutes, but no one was in the hallway outside Parent’s unit. The security guard then left. Mr. Parent exited his apartment, and as he waited to board an elevator, a man ran down the hallway screaming for help, yelling “he’s on top of my roommate and he’s raping her.” Mr. Parent followed the man yelling for help to another unit and saw defendant standing naked in the doorway. Mr. Parent told defendant to get out, and defendant charged at him, so Parent ran down a stairwell hoping to lead defendant to security in the lobby. Parent reached the lobby, but defendant did not follow him. Parent told a security guard that defendant was attacking someone, and the security guard called police. Mr. Parent identified a photograph of a decorative wreath that was taken from his unit’s front door sometime between October 28 and October 29, 2017. Ms. T.F. testified that she lived in unit 515. She and her friend Daniel McEvoy went out to celebrate her birthday and returned to her unit at approximately 2 a.m. on October 29, 2017. T.F. slept in her bed, and McEvoy slept on the couch. Ms. T.F. did not remember whether she locked the door that night. She awoke to defendant, whom she identified in court, naked on her bed. Defendant grabbed T.F.’s hair, shoved her head toward his erect penis, and “told her to suck it.” T.F. tried to pull back, but the man shoved her head down “very forcefully.” T.F. started to cry and said “no,” but defendant repeatedly told her to “shut the f*** up, don’t say anything, be quiet.” Defendant forced his penis into T.F.’s mouth for several minutes, then pulled her dress up and told her to lie down. Defendant lay on top of T.F., inserted his penis into her vagina, placed his hand on her throat, and applied pressure. McEvoy came into the bedroom, and T.F. said, “Please help me.” McEvoy asked defendant who he was, and defendant responded, “I’m Satan.” Defendant removed himself from T.F. and chased McEvoy into the hallway. McEvoy’s testimony was consistent with T.F.’s. McEvoy testified that he and T.F. went out to celebrate her birthday and returned to T.F.’s unit at approximately 2:30 a.m. on October 29, 2017. He woke up when he heard a struggle in T.F.’s bedroom. He went to check on her and saw defendant, naked on top of T.F., sexually assaulting her. McEvoy moved toward defendant and asked who he was; defendant responded, “I’m Satan.” Defendant lunged at McEvoy, McEvoy ran into the hallway outside the uni yelled for help as defendant pursued him into a stairwell .. ??? If I Ain't Worth It » Neither Are You .. CONTINUED .. COURT DECISION: (.html)
♦ June 25, .. OCA: Long v. KeltanBW, Inc. .. KeltanBW owns and operates a daycare center, Goddard School of Beachwood (“GSB”), in Beachwood, Ohio. Ms. Long began working as a floating assistant teacher at the daycare center on June 8, 2021. Ms. Long worked until July 1, 2021, before taking time off to travel to the Dominican Republic for liposuction surgery. At some point before July 1, 2021, Long asked for and was granted time off to care for her fiancé’s father while he was recovering from COVID-19. Ms. Long returned to work on August 24, 2021, with restrictions on lifting due to her surgery, no more than ten pounds for three months beginning July 19, 2021. KeltanBW assigned Long to the preschool rooms because of the lifting limit. On September 16, 2021, Long took time off to care for her fiancé who was recovering from surgery. The following week Long was late between one to four hours on the days she was assigned. The center was short-staffed on October 4 when Long arrived for work. Long was assigned to the infant room. As she bent over to pick up an infant, Long heard a popping sound and realized she had injured her back. On October 5, 2021, Long informed KeltanBW that she had injured her back while bending over to lift an infant the day before and would not return to work until October 11, 2021. Long was terminated on October 9, 2021. KeltanBW alleged the termination was due to poor attendance. On March 24, 2022, Long filed a complaint against KeltanBW and claimed workers’ compensation retaliation (Count 1); wrongful discharge in violation of public policy, under R.C. 4123.90 (Count 2); and negligent training and supervision under R.C. 4112.02(J) (Count 3). On July 1, 2022, Long amended her complaint to include disability discrimination (Count 4). KeltanBW answered the amended complaint on July 6, 2022. .. CONTINUED .. COURT DECISION: (.html)
♦ June 25, .. Fed Cir.: Perlick v. DVA .. BACKGROUND In July 2010, the Department of Veterans Affairs (“VA”) hired Dr. Deborah A. Perlick as a temporary Research Health Science Specialist for a one-year term, subject to renewal. From 2010 through 2017, the VA renewed Perlick’s term each year coinciding with the duration of federally funded research projects Perlick worked on. In September 2017, while serving as the Principal Investigator for a multi-site study on veterans with mild traumatic brain injury, Perlick discovered approximately $78,000 missing from the study’s funding. She reported the missing funds to various VA officials. On November 3, 2017, Perlick was terminated. She was 67 years old and had worked for the VA for over 20 years. Perlick filed a complaint with the Office of Special Counsel seeking corrective action under the Whistleblower Protection Act (“WPA”) and received no response. Perlick subsequently filed an Individual Right of Action appeal with the Board under the WPA. J.A. The Board found Perlick had established her claim of protected whistleblowing disclosures and that her request for corrective action must be granted. Perlick was awarded back pay through March 31, 2020, which was the completion date of the last federally funded research project that Perlick worked on at the VA. Perlick later moved for both consequential and compensatory damages pursuant to 5 U.S.C. § 1221(g)(1)(A). She requested $2.146 million in consequential damages, in the form of (1) actual and projected annual salary, (2) estimated lost retirement contributions, and (3) actual and anticipated medical costs. She also sought $500,000 in compensatory damages for reputational harm and emotional distress. Dr. Deborah A. Perlick petitions for review of a decision of the Merit Systems Protection Board (“the Board”) denying-in-part and granting-in-part her request for consequential damages and compensatory damages pursuant to 5 U.S.C. § 1221(g). WE VACATE THE BOARD’S DECISION and remand for further proceedings consistent with this opinion. .. CONTINUED .. COURT DECISION: (.html)
♦ June 14, .. 2nd Cir.: Tyson v. Town of Ramapo .. Plaintiff-Appellant Ms. Tyson, an African-American woman, appeals from an award of summary judgment in favor of the Town of Ramapo, individual Town officials, and police officials (collectively, the “Town”), on claims that her employment termination was discriminatory on the basis of her gender and race in violation of her constitutional right to equal protection. Tyson alleged that, while she was employed as a police officer, the Town denied her the opportunity to perform light duty assignments after she sustained an off-duty injury, even though other officers—particularly Caucasian and male officers—were permitted to perform light duty assignments under similar circumstances. Tyson asserts that, had she been allowed to perform light duty assignments, she would not have been out of work, and thus, her employment would not have been terminable under New York Civil Service Law § 71. .. CONTINUED .. COURT DECISION: (.html)
♦ June 14, .. 6th Cir.: Bryant v. Alejandro Mayorkas .. Plaintiff has been a patrol officer with the U.S. Customs and Border Protection Agency (CBP) in southeast Michigan since 2002. In March 2017, Director of Field Operations Christopher Perry promoted Bryant to supervisor, which was subject to an 18-month probationary period. Within four months of his promotion, Bryant’s peers twice complained about his sleeping while on duty, prompting a CBP investigation into the matter. Bryant’s conduct caused Perry to lose “confidence in [Bryant’s] ability to be an effective supervisor,” so he revoked Bryant’s promotion. Bryant, who is African American, asserts in this litigation that his demotion constituted racial discrimination and retaliation for having engaged in protected activity (filing a complaint with the EEOC) in violation of Title VII. Following a five-day trial, a jury disagreed and rendered a verdict in the CBP’s favor. Bryant now appeals, challenging adverse evidentiary rulings prohibiting evidence of alleged discriminatory animus by non-decisionmakers, statistical data regarding the CBP’s promotions of African Americans, and questions regarding whether witnesses had seen a picture of a Caucasian employee sleeping while on duty. .. CONTINUED .. COURT DECISION: (.html)
♦ June 14, .. ACI: Alexander v. Loyola University Medical Center .. The plaintiff, an employee of Loyola University Medical Center, was hired into its billing department, and by 2016 she had attained the position of manager of collections. In that role, she oversaw around 20 employees working in the collections department. A substantial number of the collections department’s employees are bilingual speakers of Spanish and English, and they frequently spoke Spanish among each other in the office prior to May 2019. On May 8, 2019, an incident occurred in which a collections department employee named Melissa Connor chastised two other coworkers for conversing in Spanish, telling them that they should be speaking only English in the workplace. The following day, one of the staff members who had been speaking Spanish complained to the plaintiff that Connor’s behavior had been rude. Conner also complained to the plaintiff that it was unfair for staff members who spoke Spanish to do so on the job, as she could not understand what they were saying or whether their conversations were personal or work-related. Later that day, the plaintiff brought the issue to the attention of her supervisor, Anna Carpenter, who was the interim director of Loyola’s single billing office. Carpenter told the plaintiff to document the incident and that she would look into it. According to the plaintiff’s discovery deposition testimony, on May 22, 2019, Carpenter informed her that she had spoken to Loyola’s human resources department about the matter and was told that Loyola had a policy where only English could be spoken during office hours. She said that people can only speak Spanish when they’re on their lunch or their brakes and during office hours that people could only speak English in the office. .. CONTINUED .. COURT DECISION: (.html)
♦ June 12, .. 11th Cir.: Robinson v. Holman (USMS) .. Mr. Robinson was an employee of Akal Security {Akal}, which contracted with the United States Marshals Service (“USMS”) to provide security for the Richard B. Russell Federal Building in Atlanta, Georgia. He worked as a court security officer for approximately three years before being fired on January 6, 2017. Robinson alleges that during those three years, he and a fellow security officer were harassed because of their sexuality. After complaining to his supervisors, Robinson claims, Akal and USMS retaliated against him in a variety of ways, including by changing his “schedule weekly in an effort to harass him and cause him to violate time rules.” Robinson also claims that he was assaulted by Michael Holman, a lead court security officer. Holman and a supervisor called Robinson into a meeting to discuss his tardiness to work a few days earlier. At this meeting, Robinson claims that Holman, without being provoked, “puff[ed] out his chest” to threaten Robinson and then struck him in the face, causing Robinson’s mouth to bleed. Robinson—in a counseled complaint—alleged Title VII retaliation claims against Akal and USMS, state-law claims of defamation and false light invasion of privacy against Akal, and state-law claims of battery and assault against both Akal and Holman. .. CONTINUED .. COURT DECISION: (.html)
♦ June 12, .. 3rd Cir.: Walley v. Amazon.com .. Ms. Walley filed suit pro se against Amazon alleging that it wrongfully placed her on leave, prevented her from clocking in, and changed her stock maturity date and her health benefits. Her only specific claim was that Amazon took these steps in retaliation for her filing of a Delaware worker’s compensation claim for injuries that she suffered in an automobile accident. But Walley also checked a box on the civil cover sheet identifying her suit as arising under the Americans with Disabilities Act (“ADA”), and she alleged that a doctor previously had cleared her to work with restrictions. HERE, Ms. Walley appeals from an order dismissing her complaint against Amazon.com. .. CONTINUED .. COURT DECISION: (.html)
♦ June 12, .. SCV: Potanas v. Department of Corrections .. Plaintiff, Mr. Potanas, was employed by DOC as the superintendent of Southern State Correctional Facility (SSCF). In January 2017, DOC terminated plaintiff from his position for cause after finding that he engaged in misconduct and gross misconduct. DOC determined that plaintiff “intimidated a health services professional into changing her clinical recommendations” for a seriously functionally impaired inmate from “segregation is contra-indicated” to “segregation is contraindicated for more than 14 days.” He treated the health-services professional in a demeaning manner. DOC further found that plaintiff was unprofessional and disrespectful to the health-services professional’s supervisor and had, on multiple occasions, attempted to assert control over the supervisor’s staff’s professional mental health assessments, which was outside the scope of plaintiff’s authority. DOC considered this an example of a larger pattern of unprofessional behavior. It added that plaintiff’s actions clearly influenced supervisors to also engage in behavior that had been determined as misconduct. DOC had no confidence in plaintiff’s ability to perform his duties as superintendent. For these and other reasons, DOC terminated plaintiff from his position. Plaintiff sued DOC, arguing that DOC improperly fired him in retaliation for engaging in activity protected by 3 V.S.A. § 973. That law prohibits the State from retaliating against an employee for: .. CONTINUED .. COURT DECISION: (.html)
♦ June 07, .. OCA: Darling v. AFSCME Union .. On December 19, 2022, twelve public sector employees filed a complaint alleging their employers continued to authorize automatic payroll deductions for union membership fees after the employees voluntarily resigned from each of their respective unions. After the United States Supreme Court rendered its decision in Janus v. AFSCME, each appellant sought to terminate their union membership and requested that the termination take effect immediately, including their removal from the membership rolls and the cessation of membership dues. While OAPSE agreed to terminate their membership, it continued to receive membership dues deductions from appellant’s paycheck. OAPSE informed the appellants they were bound by their union membership contract, which only permitted the revocation of payroll deduction authorization for membership dues during specified periods each year, referred to as “opt- out windows.” OAPSE informed the appellants it would honor their requests and cease collecting membership dues at the next soonest opt-out window. .. CONTINUED .. COURT DECISION: (.html)
♦
June 07,
.. FLRA:
DVA v. AFGE
..
Proof The Federal Labor Relations Apparatus Is Rigged Against Good Management Practices ..
The grievant is an Advanced Medical Support Assistant (AMSA) at a Department of Veteran Affairs (DVA) clinic, and assists patients with scheduling and other matters related to seeing medical-care providers.
Before 2021, DVA consistently rated the grievant’s performance as “exceptional” in all elements, resulting in annual “overall” ratings of “outstanding.”
The grievant’s supervisor changed and, on November 18, 2021, the new supervisor rated the grievant as “fully successful” for the “Scheduling Process and Procedures” element (the scheduling element), which resulted in an overall rating of fully successful.
The appraisal contained no explanation for the rating.
On December 16, 2021, the grievant emailed her supervisor and several others in her supervisory chain, requesting an explanation for the scheduling element’s rating.
When the grievant received no response, she contacted her supervisor again on December 21, 2021.
The grievant’s supervisor responded she would provide the results of an audit of the grievant’s work on which the rating was based (the scheduling audit).
On December 21, 2021, the Union filed a grievance, alleging DVA failed to provide “any counseling or direction” to the grievant “for a mark down on the critical element,” and seeking to have the grievant’s overall rating “upgraded” to “outstanding.”
The matter proceeded to arbitration.
Arbitrator David V. Breen issued an award (1) finding a grievance concerning an employee’s (the grievant’s) performance appraisal procedurally arbitrable and (2) granting the grievance on the merits.
Specifically, the Arbitrator found that DVA violated the article in the parties’ agreement governing performance appraisals (Article 27).
As a remedy, he directed DVA to raise the grievant’s performance rating.
The Agency filed exceptions to the award on nonfact, essence, and contrary‑to‑law grounds.
In particular, DVA argues that the award unlawfully interferes with its management rights to assign work and direct employees under § 7106(a)(2) of the Federal Service Labor-Management Relations Statute.
.. CONTINUED
..
FLRA DECISION:
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♦ June 06, .. FLRA: AFGE v. DVA .. The Department of Veterans Affairs (The Agency) hired the grievant on October 25, 2020 as a chaplain through a temporary appointment at the General Schedule (GS)-12 level (GS-12 position). In November 2021, while serving in this temporary position, the grievant applied for a GS‑13 supervisory chaplain position (GS-13 position). On December 13, 2021, the Agency rejected his application, informing the grievant he did not meet the minimum requirements for the GS-13 position because he should not have been hired at the GS-12 level. The Agency explained this “hiring error” occurred due to changes in the chaplain position requirements made after the grievant applied for, but before he assumed, the GS‑12 position. The Agency further explained he needed one year of experience at the GS-12 level to qualify for the GS-13 position, and his error-based service in the GS-12 position could not be credited toward that requirement. The DVA retroactively reduced the grievant’s grade to GS-9, effective as of his hiring date. The Agency then retroactively changed his grade to GS-11, effective October 2021, which the Agency determined was when he obtained the certification required for that grade. On June 19, 2022, the Agency appointed the grievant to a permanent GS-11 position. The Union filed a grievance challenging the grievant’s non-selection for the GS-13 position, and his “constructive demotion” to the GS-9 and GS-11 levels. To remedy the grievance, the Union requested, in relevant part, the Agency promote the grievant to the GS-13 position, and rescind the two personnel actions that effectuated his reductions in grade. The Agency denied the grievance, and the parties proceeded to arbitration. .. CONTINUED .. FLRA DECISION: (.html) (.pdf)
♦ June 06, .. 5th Cir.: Cavalier v. LA Dept Pub Sfty & Corr .. Cavalier was fired from his job as a Louisiana State Police Trooper. On September 30, 2021, Cavalier, represented by counsel, filed suit against his former employers. Cavalier alleged retaliatory discharge in violation of the First Amendment, and wrongful termination under Louisiana’s whistleblower law. On October 6, 2022, the parties attended a mandated settlement conference with the magistrate judge and agreed to settle the case. The magistrate judge confirmed the terms of the settlement with each party— including Cavalier—and each verbally expressed agreement. The settlement conference was not transcribed, but Cavalier has acknowledged in an affidavit that he verbally agreed to the settlement at that time. Among other terms, the agreement stated that the Defendants would pay Cavalier $200,000, that Cavalier resigned from his previous position, and Cavalier would not seek to be rehired. That same day, the magistrate judge issued an order stating the parties had reached a settlement, and the next day, October 7, 2022, the district judge conditionally dismissed the case, to be reopened if the settlement was not consummated. About a week later, on October 13, 2022, Cavalier expressed dissatisfaction with the settlement to his counsel, who subsequently withdrew from representing Cavalier. Cavalier obtained new counsel, who filed a motion to reopen the case and rescind the settlement. .. CONTINUED .. COURT DECISION: (.html)
♦ June 06, .. VSC: in re dissolution of Koffee Kup Bakery .. On October 30, 2018, Hubert Aubery, Koffee Kup Bakery's Chairman, offered Mr. Morin employment as KKB's CEO, with an anticipated start date no later than December 3, 2018. Mr. Morin accepted the offer on November 1, 2018 The agreement provided for an annual base salary of $260,000, plus several bonuses. First, the agreement promised "a signing bonus; $15,000 as a sign-on bonus, payable with your first paycheck." It also promised that "[a]fter six months of employment, you are eligible for an additional $15,000 bonus." Finally, the agreement stated: "You are eligible for an annual bonus which is targeted at 35% of base salary and linked to objectives defined annually. In the first year, KKB will guarantee 25% out of 35%. First year objectives will be defined by you and the Chairman." The agreement also provided that in the event of termination without cause, Mr. Morin “will be provided a severance of six (6) months payable through regular payroll” as well as an additional month of severance up to a maximum of 12 months for each year of completed service after one year. .. CONTINUED .. COURT DECISION: (.html)
♦ Jun 5, .. MCSA: Ingersoll v. State .. Shortly after midnight on June 4, 2001, Gregory Collins, a correctional officer at the Eastern Correctional Institution (“ECI”), age 32, was shot and killed while driving home from his job. Mr. Ingersoll was a person-of-interest in the initial investigation into the murder, along with others, but the case went cold. Eighteen years later, ... ... In June 2019, Ms. Doe told Special Agent Ryan McCabe, a member of an FBI narcotics taskforce assigned to the Eastern Shore of Maryland, that the tenant living with her might have information about Mr. Collins’ murder. Ms. Doe had been working with Special Agent McCabe since February 2019 on an unrelated case. Because the crime was not within the FBI’s jurisdiction, Agent McCabe contacted Corporal Scott Sears with the MSP Homicide Division in Salisbury and arranged a meeting with him, Cpl. Sears, and Ms.Doe. As a result of that meeting, Ms. Doe was given a digital recorder and agreed to record conversations between herself and Mr. Ingersoll. ... CONTINUED .. COURT DECISION: (.html)
♦ Jun 5, .. 5th Cir.: Young-Trezvant v. Lone Star College .. Ms. Young-Trezvant was employed by Lone Star College, a Texas junior college, as a library assistant. Ms. Young-Trezvant, was fired on February 21, 2023, because she refused to come to work and failed to meet with her supervisors. Young- Trezvant has filed this lawsuit, in which she has alleged sixteen claims against LSC. Specifically, she alleges seven state-based tort claims (negligent misrepresentation, negligence, gross negligence, fraud, breach of duty of good faith and fair dealing, defamation, and wrongful termination), two state- based contract claims (breach of policy and breach of contract), one consumer protection claim (a Texas Deceptive Trade Practices Act violation), and six employment-based claims, including harassment, discrimination, and retaliation. ... CONTINUED CONTINUED .. COURT DECISION: (.html)
♦ Jun 5, .. DC Cir.: Absolute Healthcare v. NLRB .. Absolute Healthcare, which does business as Curaleaf, operates medical marijuana dispensaries throughout the United States. The National Labor Relations Board found that Curaleaf committed four unfair labor practices, including unlawfully firing an employee for trying to unionize a Curaleaf store in Gilbert, Arizona. The Board also ordered Curaleaf to read aloud to its Gilbert-based employees a notice describing the Board’s findings and to grant the union access to Curaleaf’s Gilbert store. Because the The National Labor Relations Board’s unlawful-discharge finding is not supported by substantial evidence, we grant Curaleaf’s petition for review and deny the Board’s cross-application for enforcement as to the unlawful-discharge finding and the notice-reading and union-access remedies. ... CONTINUED CONTINUED .. COURT DECISION: (.html)
♦ Jun 3, .. 6th Cir.: Montez Morton v. Greater Cleveland Reg'l Transit Auth .. Mr. Morton, a former bus operator for the Greater Cleveland Regional Transit Authority (“GCRTA”), lost his job twice in 2020. After successfully obtaining reinstatement in the spring of that year, he was permanently terminated in late fall. Morton was first terminated after testing positive for a prohibited substance under GCRTA’s substance abuse policy. He was terminated again after he knocked a passenger off of the waiting area platform and onto the train tracks of a commuter train as he awaited the train’s arrival. Morton says that each of his terminations was attributable to discrimination—first disability discrimination then race discrimination. Morton filed suit against GCRTA, arguing that it violated the Americans with Disabilities Act. .. COURT DECISION: (.html)
♦ Jun 3, .. OCA: Giant Eagle v. Indus. Comm .. Mr. Jefferson worked for Giant Eagle Grocery Stores. On July 12, 2022 Jefferson was injured while working as a diesel mechanic for Giant Eagle. His workers’ compensation claim was allowed for the physical conditions of: (1) laceration right index finger, and (2) displaced fracture distal phalanx right index finger. On the date of the injury, Jefferson was transported to University Hospitals Ahuja Medical Center emergency room. Audrey Demarco, PA-C, completed an “Attending Physician Form” indicating Jefferson was capable of returning to work with the restriction of sedentary work only. Demarco also signed another form addressed to the “Treating Physician,” which included a provision entitled “Safety Review Program Summary.” That summary stated “all team members who experience a work related accident, receive medical attention, and are released to return to work their next scheduled working day, must return to work and participate in the Safety Review Program unless prohibited from doing so by the treating physician.” The form did not include Jefferson’s name or the date of injury. Demarco checked a box on the form indicating that “team member can return to work for the Safety Review Program.” After Jefferson returned to the workplace on July 12, 2022, he was terminated from his employment based on Giant Eagle’s investigation into allegations that Jefferson had previously physically threatened a co-worker in violation of Giant Eagle’s anti-harassment policy. .. COURT DECISION: (.html)
♦ Jun 3, .. MD CSA: Gundlach v. Morgan Stanley .. In November 2019, the Maryland Workers’ Compensation Commission (the “Commission”) issued a decision finding that Mr. Gundlach, appellee, had “sustained an occupational disease of pneumonitis (lungs) arising out of and in the course of employment” as a financial advisor for Morgan Stanley & Co., one of the appellants. The Commission found that Mr. Gundlach had an average weekly wage of $6,730.27, and it ordered Morgan Stanley and its insurer to pay Mr. Gundlach’s causally related medical expenses. It further ordered that the case be held for consideration whether Mr. Gundlach had sustained permanent partial disability. Appellants sought judicial review of the Commission’s decision, and the case was tried before a jury in the Circuit Court for Anne Arundel County. Appellants moved for judgment at the close of all the evidence, arguing that, as a matter of law, Mr. Gundlach did not sustain an occupational disease compensable under the Maryland Workers’ Compensation Act (the “Act”) .. COURT DECISION: (.html)
♦ May 31, .. SCP: Com. v. Vo, T. .. If Your Girlfriend Got Drugs In Her Panties ... She Probably Gonna Blame You. .. The police were surveilling Destiny Barnes [(Barnes)] in a hotel room, believing that she was distributing controlled substances. Police heard Barnes speaking on the telephone. They then heard her advising other individuals in her hotel room that they had to leave because the “re-up” was on its way. A “re-up” is a delivery of drugs. Upon the door opening, the police detained everyone in the room. Several were females. While the individuals were being detained, one of the officers left the room and hotel so that a female officer could replace him to assist in searching the female suspects. While Sergeant Hoffman was walking through the hotel lobby, he saw Appellant and Codefendant, Kara Mason [(Mason)], walking into the hotel lobby. Hoffman contacted the officers that were in the hotel room to advise them he believed the two individuals were coming to the hotel room. The two individuals did. They were also detained. While detained, Appellant told Mason numerous times to not say anything. When the female police officer arrived, she took Mason to the bathroom and searched her wherein she found methamphetamines and fentanyl packets in her underwear. Upon returning Mason to the detaining area, Ms. Mason advised two officers that “he made me hold the drugs”, “he made me hold the drugs for him”. .. CONTINUED .. COURT DECISION: (.html)
♦ May 31, .. 6th Cir.: Tressa Sherrod v. Wal-Mart Stores .. While visiting Wal-Mart’s sporting goods department, John H. Crawford, III picked up an unpackaged Crosman MK-177 pellet gun. He then carried the pellet gun—which resembles an AR-15 assault rifle—around the store. Alarmed at the sight, a fellow customer phoned 911 to report that someone was loading and waving a weapon in the building. Responding officers Sean Williams and David Darkow arrived at the scene. Observing Crawford with the pellet gun, Darkow commanded him to drop the weapon and get on the ground. Williams believed that Crawford was carrying a genuine assault rifle, which he was about to fire. So Williams fatally shot Crawford within seconds of Darkow’s command. Tressa Sherrod, executrix of Crawford’s estate, along with members of Crawford’s family, filed suit against Wal-Mart, asserting negligence, premises liability, survivorship, loss of consortium, and wrongful death. .. CONTINUED .. COURT DECISION: (.html)
♦ May 31, .. 9th Cir: Daniel Garcia v. Walmart .. Daniel Garcia appeals from the district court’s summary judgment in favor of Walmart, Inc., in his employment action alleging federal and state claims for disability discrimination, failure to accommodate, and retaliation, as well as state law tort claims. “We review de novo the district court’s order granting summary judgment.” “We view the evidence and determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” We affirm in part, reverse in part, and remand. The district court erred in granting summary judgment to Walmart on Garcia’s disability-discrimination claims under the Americans with Disabilities Act (“ADA”) and Washington Law Against Discrimination (“WLAD”). Walmart argues that Garcia remaining on leave, not returning to work, and resigning were due to Garcia’s own actions and inactions rather than any discrimination by Walmart. QUESTION: Did Walmart subjected him to three adverse employment actions: (1) remaining on involuntary leave; (2) not returning him to work for four months; and (3) forcing him to resign (constructive discharge). If so, these would constitute adverse employment actions Now, the plaintiff must show that the defendant’s alleged nondiscriminatory reason for the adverse employment action was pretextual. .. CONTINUED .. COURT DECISION: (.html)
♦ May 30, .. 8th Cir.: Ringhofer v. Mayo Clinic Ambulance .. During the Covid-19 pandemic, Mayo required all employees to receive the vaccine. Any employee exempted from vaccination was required to test weekly. On December 3, 2021, Mayo notified all employees that they must comply with the policy by January 3 or be terminated. Alleging failure to accommodate their religious beliefs under Title VII and the Minnesota Human Rights Act, five employees sued The Mayo Clinic, Mayo Clinic Health System–Southeast Minnesota Region, and Mayo Clinic, Ambulance (collectively “Mayo”). They claimed Mayo terminated them for refusing Covid-19 vaccinations or testing. The district court dismissed the claims, ruling that (1) Ms. Miller and Ms, Ihde did not exhaust their administrative remedies under Title VII, (2) the other plaintiffs failed to plausibly plead religious beliefs that conflict with Mayo’s Covid-19 policies, and (3) the MHRA fails to provide relief for not accommodating religious beliefs. This court REVERSES and REMANDS. .. COURT DECISION: (.html)
♦ May 30, .. 5th Cir.: Berry v. Sheriff's Ofc Ouachita Prsh .. In October 2000, Mr. Berry, who is African American, was hired by the OPSO as a deputy and assigned to the Ouachita Parish Correctional Center as a correctional officer. In February 2003, he was promoted to the rank of corporal, a position he held for thirteen years. In August 2016, Berry transferred to the Transitional Work Release Center. After transferring, he was demoted in rank, and his pay was decreased. In November 2017, Berry filed a racial discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”), contending that Caucasian employees of the OPSO were allowed to transfer while maintaining their rank and pay. Defendants learned of Berry’s EEOC complaint sometime in February 2018. Also in January or February 2018, Berry qualified to run for the city council of Winnsboro, Louisiana. He did not inform anyone in his chain of command at the OPSO of his run for office. Berry went on to win the election on March 24, 2018. Berry’s superiors at the OPSO learned of his election to the city council from the television news or through the newspaper. Four days after the election, the OPSO terminated Berry’s employment because he could not be a deputy with the OPSO and a councilman at the same time. His separation paper stated that he was terminated for violating Louisiana law, i.e., Louisiana’s prohibition on dual officeholding. After his termination, Berry filed another complaint with the EEOC, asserting that he was terminated unlawfully as retaliation for prior EEOC complaint. After receiving right-to-sue letters from the EEOC, Berry filed the instant action. ... CONTINUED .. COURT DECISION: (.html)
♦ May 30, .. MSC: State v. N. Puccinelli .. Appellant Neldia Marie Puccinelli (Neldia) worked for ProMark in Florence. Her employment was terminated when it was discovered she had taken funds from the company through payroll and company checks and also had inappropriately used the company credit/debit card for personal expenditures. ProMark filed a civil suit - Ravalli County—against Neldia seeking damages in the amount taken by Neldia from ProMark together with costs of suit and other relief the court deems just and proper. On December 9, 2009, Neldia and ProMark entered into a Settlement Agreement “to fully, finally and forever settle and resolve all claims for relief, causes of action, claims for injuries and damages, and any other issues or matters related to or stemming from the facts, circumstances and allegations that form the basis for this lawsuit[.]” Pursuant to the Settlement Agreement, Neldia was to transfer to ProMark all right, title and interest to specific items of personal property listed in the agreement and then make 84 monthly payments of $350 to ProMark commencing May 5, 2010. Neldia transferred all the items of personal property delineated in the Settlement Agreement to ProMark, commenced making the $350 per month payments on May 5, 2010, and continued to make monthly payments thereafter. On January 4, 2010, the civil case was dismissed as fully settled with prejudice. Nineteen months after the civil case was dismissed as settled, on August 9, 2011, the State filed an Information charging Neldia with three counts of theft by embezzlement totaling approximately $30,000 Appellant Neldia Marie Puccinelli (Neldia) appeals from the August 25, 2022 Judgment on Revocation of Suspended Sentence issued by the Twenty-First Judicial District Court, Ravalli County. ... CONTINUED .. COURT DECISION: (.html)
♦ May 24, .. CAW: Norwood v. Multicare Health System .. Norwood is an anesthesiologist. She signed a “Services Agreement” with LT, agreeing to provide services to LT’s clients as an independent contractor of LT. The Services Agreement included an arbitration provision that mandated arbitration in Atlanta, Georgia of “any controversy or claim. Norwood worked for a short time for both Tacoma and Rainier at MultiCare facilities. During her time at both facilities, Norwood alleged that she witnessed unsafe medical practices. She claims that after she reported these unsafe practices she was forced to resign from Tacoma and was terminated from Rainier. Norwood sued Tacoma, Rainier, and MultiCare, asserting claims of tortious interference with contractual relations, wrongful constructive discharge in violation of public policy, wrongful discharge in violation of public policy, and intentional infliction of emotional distress. Tacoma, Rainier, and MultiCare moved to arbitrate Norwood’s claims pursuant to the arbitration provision in her Services Agreement with LT. .. CONTINUED .. COURT DECISION: (.html)
♦ May 23, .. 6th Cir.: Craddock v. FedEx Corp .. Ms. Craddock began working at FedEx in 1983. She started her FedEx career sorting packages at a facility part-time; over time, she was promoted several times. In April 2015, Craddock became a senior project process analyst in FedEx’s Supply Chain Office. To help acclimate Craddock to her new role, Scallions assigned her a training partner, Cindy Fischer. Despite not serving as Craddock’s supervisor, Fischer monitored Craddock’s office arrival and departure times, for which Fischer ultimately received a verbal warning to stop tracking Craddock’s whereabouts. On December 3, 2015, Ms. Craddock went to Ms. Fischer’s cubicle and asked why she kept emailing Scallions about Craddock’s comings and goings. Ms. Fischer got upset, began yelling, and then stood up facing Craddock toe-to-toe. The parties dispute what happened next; Craddock says she raised her forearm and “brushed up against” Fischer as Fischer stepped closer to her, and Fischer says Craddock pushed her. Later that day, Scallions called and notified Craddock that she was suspended. Rich Psyzniak, a representative from FedEx’s Human Resources department, stated that he called Craddock later that day and spoke with her about the contents of the suspension letter and the underlying incident; Craddock claims this conversation never took place. On January 27, 2016, Scallions and Psyzniak called Craddock and notified her that FedEx was terminating her for workplace violence. Ms. Craddock filed a complaint with the Equal Employment Opportunity Commission. .. CONTINUED .. COURT DECISION: (.html)
♦ May 23, .. FLRA: Army National Guard v. ACT Union .. Statement of the Case: The grievants work as Military and Family Readiness Specialists, directing military members and their families to governmental and private services, and documenting those activities in an electronic records system. Because the grievants’ position was classified as FLSA exempt, the Agency compensated the grievants with compensatory time instead of overtime pay when they worked over forty hours in a week. The Union filed a grievance alleging the Agency violated the FLSA by failing to pay the grievants time and a half for overtime. The Agency denied the grievance, and the parties proceeded to arbitration. .. CONTINUED .. FLRA DECISION: (.html)
♦ May 22, .. CA DC: Hockaday v. WMATA .. Ms. Hockaday worked for the Washington Metropolitan Area Transit Authority as a police officer in the Metro Transit Police Department (MTPD) from 2002 until she retired in 2022. She was repeatedly promoted and eventually became a lieutenant. Ms. Hockaday claims to have been subjected to a hostile environment because of her race, sex, and protected activity. Answering contention interrogatories, she asserted that eight alleged acts constituted the hostile environment: First, in 2008, supervisor George Burns allowed unnamed male employees to make sexist remarks. The employees said that the MTPD did not “need any more women sergeants,” and one of them joked that, if Hockaday had not returned from sick leave, he would have given her a “lap dance.” ... CONTINUED .. COURT DECISION: (.html)
♦ May 22, .. CCA: Hoglund v. Sierra Nevada Memorial-Miners Hospital .. In 2004, the Hospital hired Ms. Hoglund as a phlebotomist trainee. In February 2011, at age 56, Hoglund became the sole laboratory supervisor, supervising all of the phlebotomists at the Hospital. She loved her job and worked well with her supervisor. Hoglund hoped to work at the Hospital until she was 72. In May 2011, the Hospital hired Horne as its director of clinical operations, making Horne Hoglund’s new supervisor. Horne was six years younger than Hoglund. From the time Horne was hired until Hoglund was terminated, Horne made derogatory comments to Hoglund about her age. Horne and Hoglund would have frequent one-on- one meetings, in which Horne would tell Hoglund she looked “sloppy,” that she disliked her hair and manner of dress, and that she thought Hoglund was “old-fashioned.” Hoglund found Horne’s critiques unnerving, as she felt her appearance was perfectly acceptable, and had never been criticized for her dress before. Horne also asked Hoglund multiple times how long she was planning on staying, and if she was going to retire. ... CONTINUED .. COURT DECISION: (.html)
♦ May 22, .. NJSC AD: I/M/O Michael Maudlin, Etc .. Former state trooper Maudlin was employed by the New Jersey State Police as a state trooper from November 19, 1987, to July 30, 2009. For his over twenty years of service, Maudlin was entitled to a State Police pension. Effective May 6, 2008, Maudlin was suspended without pay pending an internal affairs investigation into allegations of misconduct. On July 27, 2009, Maudlin pleaded guilty to the charges and separated from service pursuant to a plea agreement he entered into with the State Police. In exchange for his resignation, the State Police agreed Maudlin would retain his right to collect a pension. On August 12, 2021, Maudlin applied for a RLEO permit ... which was denied. HERE, Michael Maudlin appeals. .. COURT DECISION: (.html)
♦ May 21, .. 8th Cir.: Meinen v. Bi-State Development Agency .. Bi-State Development Agency provides public transportation services in the St. Louis area. Meinen, a white male, began working as a Transit Security Specialist (“TSS”) Lead on the night shift in Bi-State’s Public Safety Department. In early 2021, he began experiencing harassing behavior from an unidentified female African American TSS employee. On several occasions the female TSS employee intentionally rubbed her backside on him, which Meinen reported to both his supervisor and to her supervisor. Another time, the female TSS employee loudly told Meinen: “It’s not cheating if it’s not in your race.” Once again, Meinen reported this comment to both his supervisor and her supervisor. Meinen was terminated on May 17, 2021. On July 8, 2021, Meinen filed a claim with the EEOC alleging discrimination based on race and gender along with a retaliation claim. .. COURT DECISION: (.html)
♦ May 20, .. OCA: Michalek v. Ohio State Univ. Wexner Med. Ctr. .. wow ... you gotta read this case ... -> a slow descent into hospital hell .. On February 22, 2019, Kyle and Stephanie L. Michalek were preparing for the next day’s gender reveal party for their first child. Stephanie, who had previously suffered two miscarriages early in the first trimester, was 29 weeks pregnant. Kyle and Stephanie had invited 70 of their friends and family members to celebrate their baby’s arrival at their new house in Utica, Ohio. As Stephanie, Kyle, and their family readied Kyle and Stephanie’s house for the party, Stephanie began feeling sick. Kyle’s mom, Lisa Michalek, urged Stephanie to lie down and rest. When Lisa checked on Stephanie 15 minutes later, Stephanie told Lisa that she was feeling worse. Lisa and Stephanie agreed that Stephanie needed to go to the emergency room. CONTINUED --- A SLOW DESCENT INTO HOSPITAL HELL .. COURT DECISION: (.html)
♦ May 20, .. OCA: State v. Chappell .. they didn't prove that i thought about it ... before i murdered him .. aggravated murder, murder, attempted murder, felonious assault, tampering with evidence, carrying a concealed weapon. Ms. Chappell was employed at Springco, an industrial plant in Cleveland, Ohio. On November 25, 2021, Chappell worked third shift. Springco had an unusual work environment: employees and their friends, who seemingly could come and go at will even though they were not employed by the company, would drink alcohol, smoke marijuana, and have sex while working or visiting the company; these activities were especially prevalent during third shift. What was not allowed at the plant, however, were firearms. Witness testimony and exhibits entered into evidence at trial established that Springco prohibited anyone from carrying firearms into the building. Despite that rule, it is undisputed that Chappell had a firearm in her purse, which she admitted she concealed and brought into the plant on the night of the shooting; according to Chappell, she always carried her gun for protection. Defendant-appellant, Katia Chappell (“Chappell”), appeals her conviction in the shooting death of Dominique Johnson (“Johnson”) and shooting of Rebecca Patterson (“Patterson”), which was rendered after a jury trial. In challenging her conviction for aggravated murder, Chappell contends her conviction was not supported by sufficient evidence because the state failed to prove that she acted with prior calculation and design. CONTINUED .. COURT DECISION: (.html)
♦ May 15, .. OCA: Murtha v. Rossford Schools .. "Evil Cheerleaders" Upset With Uniform Colors , LIE To Get Vice Principle Fired .. Background : Appellee was formerly the REVS assistant high school principal and athletic director. On February 7, 2019, three female Rossford high school students complained to the Rossford high school principal that appellee had inappropriately touched them on their hair, faces, or bodies and that he made inappropriate comments to them. The principal called appellant, then the superintendent of Rossford, to inform him that students had made complaints against appellee. Appellant put appellee on a paid administrative leave beginning February 8, verbally informing appellee that a complaint had been made against him. On February 11, 2019, appellant sent a letter to appellee stating that Rossford had received a complaint that appellee had engaged in misconduct with a student. Spangler’s Investigation Appellant instructed Megan Spangler, a Rossford anti-harassment compliance officer, to investigate the complaints. Spangler’s report detailed the three complaints made by students whom she designated as Students 5, 11, and 12. All three complainants alleged that appellee had inappropriately touched them on their hair, faces, or arms, as well as made inappropriate comments about their appearances. Student 11 stated that appellee had touched her hair, ears, or nose over 40 times in the past year, and she had heard appellee make a derogatory comment about another student’s body. Student 12 stated that appellee had played with or twirled her hair and massaged her shoulders more than once, and appellee had looked down her shirt and stared at her chest. Student 5 stated that appellee touched her hair and had grazed her buttocks with his hand, made inappropriate comments and jokes, and would stand too close to her. All three stated that they felt uncomfortable due to appellee’s actions. During her investigation, Spangler asked students and staff members whether they knew of anyone who would want to get appellee in trouble, and she discovered that the complainants likely had a retaliatory motive in making the complaints. Spangler included approximately two paragraphs summarizing the potential motive in her investigation report. CONTINUED .. COURT DECISION: (.html)
♦ May 15, .. 11th Cir.: Faile v. Hart .. On April 3, 2020, Plaintiff was living in his office at a rental property he managed in Leesburg, Florida. That afternoon, Plaintiff had an altercation with the tenant and her boyfriend during which the boyfriend pushed Plaintiff to the ground. As Plaintiff walked away, he “exposed a small portion of skin on the right side of his lower back and approximately one to two inches . . . of his right upper buttocks,” slapped the exposed area, and told the boy- friend, “Kiss my ass.” The tenant and her boyfriend recorded a video of Plaintiff as he walked away. Both Plaintiff and the tenant contacted the Leesburg police to report the altercation, and Defendants Hart and Carter responded to the scene. The officers questioned Plaintiff, the tenant, and her boyfriend about the most recent altercation and the incidents that had occurred previously during the day. The tenant and her boyfriend told Carter during questioning that they had a video recording of Plaintiff exposing his buttocks and possibly his genitalia as he walked away from them earlier. Plaintiff was booked and remained in the Lake County jail until 8:00 p.m. that evening, when he bonded out. CONTINUED .. COURT DECISION: (.html)
♦ May 15, .. FLRA: Federal Bureau of Prisons v. AFGE .. The grievants are medical personnel working at the Agency’s prison facility, which does not maintain around-the-clock medical staff on site. To manage medical issues arising after work hours, the Agency requires the grievants to remain “on call,” on a rotating schedule, from 10:00 p.m. to 6:00 a.m. in order to receive phone calls from the facility. During these on-call phone conversations, the grievants answer medical questions and prescribe medications to inmates at the facility. Previously, the Agency paid the grievants overtime for the time spent on these calls. In July 2019, the Agency notified the grievants that, based on its interpretation of a regulation regarding the compensability of time spent “on call,” the Agency would “no longer be compensat[ing]” them for their time spent on work calls while in an on-call status. After attempting informal resolution, the Union filed a grievance in August 2022. The grievance proceeded to arbitration. .. FLRA DECISION: (.html)
♦ May 13, .. VAOIG: VA Improperly Awarded $10.8 Million in Incentives to Central Office Senior Executives .. In September 2023, VA announced it had erroneously awarded millions of dollars in critical skill incentive (CSI) payments to senior executives at its central office. VA cancelled the payments, notified Congress, and requested the Office of Inspector General (OIG) review the matter. .. VAOIG REPORT: (.html)
♦ May 13, .. DC Cir.: Maria Esparraguera v. Department of the Army .. Maria Esparraguera served as a career appointee in the Senior Executive Service—the top corps of managers in the federal government—until the Department of the Army removed her from those ranks. Esparraguera sued, claiming that the Army violated her constitutional due process rights. That claim depends on showing that the removal implicated a property interest protected by the Due Process Clause. The district court dismissed her suit for failing that threshold requirement. WE REVERSE. .. COURT DECISION: (.html)
♦ May 13, .. SC NJ: Savage v. Township of Neptune .. Plaintiff Ms. Savage began her career as a police officer with the Neptune Township Police Department in 1998. In December 2013, she filed a lawsuit against the Department, the Township of Neptune, and others for sexual harassment, sex discrimination, and retaliation, contrary to the Law Against Discrimination (LAD). The parties entered into a settlement agreement in 2014. Savage filed a second action in April 2016 against a number of the same defendants, alleging that they had violated the settlement agreement and engaged in continuing -- and “intensified” -- sex discrimination, harassment, and retaliation. The parties entered into another settlement agreement in July 2020. Paragraph 10 of the agreement requires in part that the parties agree not to make or cause others to make any statements “regarding the past behavior of the parties” that “would tend to disparage or impugn the reputation of any party. A television news show aired a story about the case and an interview with Savage in August 2020. Defendants contend that Savage violated the non- disparagement provision of the settlement agreement during the interview both through comments she made, such as “you abused me for about 8 years,” and comments by the interviewer, such as “Savage says the harassment and retaliation intensified with bogus disciplinary charges.” Defendants filed a motion to enforce the second settlement agreement. The trial court granted the motion, finding that the LAD barred only non-disclosure and confidentiality agreements and that Savage instead violated a non-disparagement clause. .. COURT DECISION: (.html)
♦ May 13, .. OSC: Disciplinary Counsel v. VanBibber .. In a two-count complaint, relator, disciplinary counsel, charged VanBibber with a total of five ethical violations, arising primarily from his being charged with and convicted of traffic offenses in multiple Ohio counties, his dishonesty with law-enforcement officers during traffic stops, his failure to comply with court orders related to his traffic violations, his mismanagement of his client trust account, and his failure to cooperate in the ensuing disciplinary investigation. The parties submitted stipulations of fact, misconduct (including three ethical violations that were not charged in relator’s complaint), and aggravating and mitigating factors. They also submitted 70 stipulated exhibits. The matter proceeded to a hearing before a three-member panel of the Board of Professional Conduct. The panel found by clear and convincing evidence that VanBibber had committed the charged misconduct and the additional stipulated violations. After considering the relevant aggravating and mitigating factors and our relevant precedent, the panel recommended that VanBibber be suspended from the practice of law in Ohio for two years with the entire suspension conditionally stayed. The board adopted the panel’s findings of fact, conclusions of law, and recommended sanction. VanBibber Appealed. .. COURT DECISION: (.html)
♦ May 07, .. FLRA: VA v. AFGE .. AFGE filed a grievance alleging a VA manager notified firefighters at the Department of Veteran Affairs' Bath, New York facility (Bath facility) in June 2021 that they could receive training and certifications to satisfy the directive’s requirements only from nationally accredited programs (accreditation requirement). The grievance alleged the accreditation requirement violated VA policy and a past practice whereby the VA permitted firefighters to satisfy the directive’s requirements by receiving training from state‑accredited certification programs. The grievance also alleged the VA violated the CBA and committed an unfair labor practice (ULP) by not providing the AFGE with notice and an opportunity to bargain before implementing the accreditation requirement. The VA denied the grievance, and the parties proceeded to arbitration. .. FLRA DECISION: (.html) (.pdf)
♦ May 07, .. OCA: GROB Sys v. McDermott .. GROB Systems, Inc. (“GROB”) is an engineering company that builds automation systems. In order to fill its needs for skilled labor, GROB utilizes an apprenticeship program to recruit, educate, and train employees. Generally, the apprenticeship requires an individual to “make their services available solely to GROB for a period of 4- years.” In exchange for the 4 years of service, GROB paid the apprentices and agreed to provide practical training and specialized training. In addition, GROB also paid tuition for the apprentices to earn an associate’s degree. The full provision in the contract reads as follows: As a condition of being selected to participate in the Apprenticeship, the Apprentice agrees to make their services available solely to GROB for a period of 4-years. For nearly 46 months after joining the apprenticeship program, McDermott worked for GROB. Because McDermott had a year of his education completed when he started the apprenticeship, he was “fast-tracked” into specialized training. On March 26, 2021, McDermott resigned his employment with GROB effective April 7, 2021. At the time McDermott notified GROB of his resignation, McDermott was 71 days shy of 4 years in the program. Following his resignation, GROB’s CFO sent McDermott a letter informing him that he was required to reimburse GROB pursuant to paragraph 14 of the parties’ contract. McDermott responded that he believed he fulfilled the requirements of the agreement. On June 9, 2021, GROB filed a complaint against McDermott alleging, inter alia, breach of contract. GROB sought to recover $25,000 pursuant to paragraph 14 in the contract. McDermott denied breaching the contract, maintaining that he had fulfilled the agreement. CONTINUED .. COURT DECISION: (.html)
♦ May 03, .. 10th Cir.: Freeman v. Raytheon Tech .. Collins Aerospace is a subsidiary of defendant Raytheon, a frequent DOD contractor. In February 2021, almost a year into the COVID-19 pandemic, Collins Aerospace hired Mr. Freeman as a schedule analyst manager. Later that year, the President issued an executive order instructing all federal agencies to insert a clause into new government contracts requiring the contracting company to comply with COVID-19 guidance issued by the federal government. Around that time, Collins Aerospace implemented a policy promulgated by Raytheon requiring all employees to be vaccinated against COVID-19 or apply for an exemption (“Covid Policy”). Mr. Freeman has Beta Thalassemia, a genetic blood disorder that causes anemia like symptoms and increases his risk profile with respect to the COVID-19 vaccine. Because of this condition, he opted against the vaccine and requested and received an exemption. He refused to comply with the Covid Policy requirements for unvaccinated employees, however, because he believed the policy was ineffectual and discriminatory towards unvaccinated employees. Mr. Freeman made this complaint to the Collins Aerospace Human Resources department to no avail. And in January 2022, Collins Aerospace fired him for his refusal to comply with the Covid Policy. Mr. Freeman subsequently filed a complaint with the EEOC complaining of discrimination but withdrew the complaint before the EEOC completed its investigation. .. COURT DECISION: (.html)
♦ May 03, .. 10th Cir.: Oldridge v. Layton .. Mr. Oldridge was a longstanding Wichita Police Department (WPD) veteran who was assigned to the Professional Standards Bureau and later the WPD academy. In 2019, the Wichita Eagle published an article quoting statements that WPD Chief Gordon Ramsay had made in a deposition in a case related to questionable police practices. According to that article, Chief Ramsay was concerned that police officers—including, potentially, Oldridge—had engaged in misconduct during criminal investigations. The article reported that Chief Ramsay had testified that he had reassigned several officers as a result. Although not named directly, those officers impliedly included Oldridge. In response to the article, Chief Ramsay issued a public statement claiming that the reassigned officers “committed no legal or WPD internal violations.” Based on that public statement, Oldridge believed that Chief Ramsay had been caught in a lie: he had testified in his deposition that police officers had committed WPD violations, but he had said the opposite in the public statement issued after the deposition. Accordingly, Oldridge delivered a dossier containing Chief Ramsay’s deposition, his public statement, and copies of Kansas statutes pertaining to false communications to the Sedgwick County District Attorney. This supposedly provided a basis to support a prosecution of Chief Ramsay for violating Kansas law. He was terminated in 2019 after a series of disputes with his supervisors. Mr. Oldridge sued the City of Wichita and several of its employees after his dismissal from the police department, alleging First Amendment retaliation. .. COURT DECISION: (.html)
♦ May 03, .. DCCA: Royal v. D.C. Metropolitan Police .. Appellant Mr. Royal is a lieutenant with the Metropolitan Police Department (MPD). Before the Office of Employee Appeals (OEA), he challenged two decisions of the MPD to suspend him without pay. The first suspension, for a period of fifteen days, was for Lt. Royal’s allegedly deficient response to an incident of possible domestic violence on February 7, 2015. The second suspension, for twenty days, was for using unnecessary force in an off-duty altercation on April 16, 2015, and for “inefficiency” in the performance of his duties apart from that matter. The inefficiency charge was based on three sustained adverse actions within a 16-month period, namely, his suspension for the February 2015 incident and two earlier suspensions. After an evidentiary hearing, an OEA Administrative Judge (AJ) concluded that the MPD failed to prove either the February 2015 misconduct charges or the April 2015 unnecessary force charge on which it had relied. But while the AJ therefore reversed Lt. Royal’s 15-day suspension, he did not overturn the 20-day suspension. The AJ upheld that suspension based on other charges concerning Lt. Royal’s conduct in the April 2015 incident that the MPD itself had considered and rejected, and on the inefficiency charge. The AJ did not explain why he upheld the inefficiency charge even though he had rejected the February 2015 complaints on which that charge was partly grounded. The Superior Court affirmed the AJ’s decision on Lt. Royal’s petition for review. In this court, Lt. Royal contends he is entitled to reversal of his 20-day suspension as well as his 15-day suspension. .. COURT DECISION: (.html)
♦ May 1, .. NYCA: The People v. Harvey Weinstein .. Every person accused of a crime is constitutionally presumed innocent and entitled to a fair trial and the opportunity to present a defense. Defendant was convicted by a jury for various sexual crimes against three named complainants and, on appeal, claims that he was judged, not on the conduct for which he was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts. We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial. .. COURT DECISION: (.html)
♦ May 1, .. MCA: Sandra Ziots v. Promedica Employment Services .. Plaintiff testified that, on January 27, 2020, she arrived at Bay County Medical “to service hospice patients” at approximately 7:30 a.m., and that she and another certified nursing assistant physically moved a patient wearing a gait belt after the patient’s shower at approximately 8:00 a.m. According to plaintiff, the other nursing assistant was to hold onto the patient’s gait belt to stabilize the patient while plaintiff helped the patient dress, but failed to manipulate the gait belt effectively, and the patient fell upon plaintiff, injuring plaintiff’s back and right hip. Plaintiff testified that she “took the resident back to her room, and when [she] went to bend down, [her] back was shooting, having pain,” such that she was not “able to bend.” Plaintiff reported her injury to a charge nurse at Bay County Medical, who provided plaintiff with an incident report, which plaintiff completed, and instructed plaintiff to proceed to North Pine Clinic. Plaintiff drove herself to North Pine Clinic, arriving at approximately 8:45 a.m. Plaintiff remained in her car for a time because she said she was in too much pain to exit the vehicle. Plaintiff testified that when she entered North Pine Clinic, she provided the paperwork from Bay County Medical to the receptionist, Nichol Raymond, and asked to use the restroom, upon which Raymond escorted her to the restroom while handing her a cup and asking her to provide a urine sample. According to plaintiff, after providing the sample, Raymond escorted plaintiff into an examination room, where Raymond presented her with an evidential breath test device (EBT), and asked plaintiff to take a deep breath and exhale into it. After she complied with Raymond’s instructions, Raymond left the room “for a few minutes,” then returned to the room with the EBT machine and instructed plaintiff to repeat the exercise, which she did. Plaintiff estimated that the time between the first and the second test was “maybe 25 minutes.” According to plaintiff, Raymond then left her in the exam room momentarily, then returned and informed her that she had “failed” the alcohol breath test. Plaintiff immediately protested that she had not been drinking and the test was not accurate. Raymond then informed her that three others had recently used the same machine and registered blood-alcohol levels of zero, and therefore “there [was] no way” plaintiff’s results could have been a false reading. Plaintiff’s test results were a blood-alcohol level of 0.043 at 9:45 a.m. and 0.015 at 10:00 a.m. Raymond provided plaintiff with a document stating that she passed the drug test but failed the alcohol test, and after plaintiff again challenged the accuracy of the positive test results, Raymond reiterated that plaintiff did fail the test, and stated that Raymond was going to contact plaintiff’s employer. A medical note from North Pine Clinic indicated that a person “from Bay county medical was notified [of plaintiff’s positive alcohol test results] and stat[ed] [that] we are to instruct [plaintiff] to go to her place of employment right away.” While plaintiff waited for her boyfriend (now husband) to pick her up from North Pine Clinic, defendant’s human resources administrator, Julie Rousse, called plaintiff and instructed her to immediately report to work for observation and to complete an investigative interview. However, plaintiff and her boyfriend first went to the Bay City Police Department in hopes of obtaining another breathalyzer test, but were informed that the department did not provide such service to the public. They then proceeded to Covenant HealthCare’s MedExpress Bay City, an urgent care facility, and requested a breathalyzer test, which was administered, revealing a result of 0.00 at 12:04 p.m. .. COURT DECISION: (.html)
♦ May 1, .. 5th Cir.: United States v. Coles .. Mr. Coles worked as a security guard at a Minnesota bar and restaurant, Cowboy Jack’s, for about two weeks in August 2019 before he was fired. Around 9:00 a.m. the day after being terminated, Coles returned to Cowboy Jack’s prior to opening time under the guise of looking for his cell phone. Sarah Baker, a Cowboy Jack’s employee, allowed Coles inside. When they went into the management office, Coles closed the door, pulled a shotgun from under his trench coat, cocked it, and ordered Baker to fill a backpack with money from the safe. Coles ordered Baker to kneel on the ground and used a phone cord to restrain her. When Baker turned towards Coles, he struck her in the back of the head, “kind of knock[ing] [Baker] out.” While Baker laid on the ground, Coles fled. A security camera captured the whole robbery. Less than a month later, on September 7, 2019, a security guard employed by Clé Nightclub in Houston robbed Clé. The robber entered the Clé management office around 2:00 a.m. and asked to retrieve his briefcase he left there earlier. He introduced himself as “Wyatt” to Breanna Wilson, Clé’s assistant general manager, retrieved the briefcase, briefly exited, and returned moments later to request change for a $100 bill. “Wyatt” then pulled out a gun, cocked it, and ordered Wilson and Michael Wheatley, who was also in the office, to fill the briefcase with money, telling them that they could “consider [themselves] dead” if they did not put in at least $20,000. After about two minutes, Jonathan Hellard, a Clé bartender, entered the office. “Wyatt” said, “excuse me,” to Hellard and exited. Hellard paused for a moment before realizing that Clé had been robbed and then chased the robber out Clé’s back door. The robber jumped into the driver’s side of a vehicle, lowered the passenger’s window, fired a bullet at Hellard, and drove away. An inconclusive analysis of the bullet later determined that it could have been fired from a .40 caliber handgun. Cle’s surveillance system recorded the robbery. Harris County Deputy Sheriff Broderick Green worked for Clé at night but had left a few hours prior to the robbery. Green returned to Clé after the robbery, wrote a report, and obtained an arrest warrant for “Cordale Glover,” the name on the Minnesota Identification Card the robber had presented to Clé when he applied for the security guard position and interviewed with Wheatley. On September 17, 2019, Officer Shayne LeRouge pulled over a car driven by Coles in Gretna, Louisiana. LeRouge asked Coles to exit the vehicle after LeRouge smelled marihuana. Coles told LeRouge his name was “Wyatt Glover.” Upon searching the vehicle, LeRouge found a bag of marihuana and a .40 caliber pistol and ammunition, and a Minnesota Identification Card bearing the name “Cordale Glover.” LeRouge noticed that Coles did not match the height, weight, or photograph on the identification card. LeRouge transported Coles to a local police station. Coles refused to identify himself at the police station, even asserting that he was Jamaican. When Coles began speaking with a Jamaican accent during the interrogation, LeRouge contacted Immigration and Customs Enforcement, who identified Coles through a fingerprint analysis. .. COURT DECISION: (.html)
♦ Apr 29, .. CAW Jamie Litvack, V. University Of Washington .. Dr. Litvack appeals the summary judgment dismissal of her gender discrimination claim under the Washington Law Against Discrimination. Dr. Litvack argues that the trial court erred in ruling that she failed to provide sufficient evidence under the pretext prong of the burden shifting McDonnell Douglas framework which requires she produce evidence of a genuine dispute over either (1) that the defendant’s reason is pretextual or (2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer. Because the evidence shows competing inferences of discrimination and nondiscrimination, there is a genuine issue of material fact as to whether discrimination was a substantial factor motivating the employment decision. We reverse the order granting summary judgment dismissal of the discrimination claim and remand to the trial court for further proceedings. .. COURT DECISION: (.html)
♦ Apr 29, .. 9th Cir.: Mattioda v. Nelson (NASA) .. Dr. Mattioda, a scientist with NASA, has physical disabilities related to his hips and spine that he alleged required him to purchase premium-class airlines tickets for flights over an hour long. He sued NASA under the Rehabilitation Act of 1973, alleging that he suffered a hostile work environment after informing his supervisors of his disabilities and requesting upgraded airline tickets for work travel, and alleging he was discriminated against due to his disability by being passed over for a promotion. Addressing the hostile-work-environment claim, the panel held that a disability-based harassment claim is available under the Americans with Disabilities Act of 1990 and the Rehabilitation Act. Turning to the merits of Dr. Mattioda’s claim, the panel held that the district court correctly applied the Iqbal/Twombly standard in assessing his complaint. The district court erred, however, in concluding that Dr. Mattioda failed to allege a plausible causal nexus between the claimed harassment and his disabilities. The panel also rejected NASA’s argument that Dr. Mattioda’s hostile-work environment claim failed on the alternative ground that he did not allege sufficiently severe or pervasive harassment. The panel concluded that Dr. Mattioda alleged sufficiently severe or pervasive harassment to survive NASA’s motion to dismiss, and plausibly alleged a hostile-work environment claim based on his disability. ... CONTINUED: .. COURT DECISION: (.html)
♦ Apr 29, .. ICAWV: Quanta Services, Inc. v. Bolling .. Mr. Bolling, a power transmission lineman, sustained an electrocution injury on March 10, 2021, while employed by Quanta. He received TTD benefits from March 10, 2021, through April 6, 2021. Mr. Bolling attempted to return to work on April 7, 2021. Mr. Bolling was seen by Crystal Mitchell, PA-C, on April 15, 2021, who removed Mr. Bolling from work and noted that Mr. Bolling was experiencing increased anxiety about returning to work. PA Mitchell’s assessment was anxiety disorder, memory impairment, and a history of sudden cardiac arrest successfully resuscitated. Ms. Mitchell noted that Mr. Bolling was continuing treatment with Dr. Vaught for his memory impairment. On June 8, 2021, PA Mitchell indicated that the claimant was able to return to work without any restrictions. On February 21, 2023, the claim administrator issued an order denying a request for TTD benefits for the period from April 15, 2021, through June 8, 2021, due to a finding that Mr. Bolling was not temporarily and totally disabled for that time period. Mr. Bolling protested this order. Carl Musser, Jr., M.D., signed an affidavit dated November 29, 2021. Dr. Musser stated that he was a cardiac electrophysiologist and he had provided consultation and evaluation of Mr. Bolling while he was at Carilion Roanoke Memorial Hospital in March 2021. Dr. Musser indicated that Mr. Bolling had sustained an electric shock on March 10, 2021, which caused a cardiac and respiratory event. Dr. Musser noted that the injury necessitated Mr. Bolling’s admission to the hospital, subsequent treatment, and a clinic follow-up. Dr. Musser opined that Mr. Bolling’s compensable injury caused him to miss work from the date of his injury through April 6, 2021, and from April 15, 2021, through June 15, 2021. On September 11, 2023, the Board reversed the claim administrator’s order, which denied a request for temporary total disability benefits for the period from April 15, 2021, through June 8, 2021. The Board found that Mr. Bolling had established that he was temporarily and totally disabled from April 15, 2021, through June 8, 2021. Further, the Board found that the fact that Mr. Bolling did not file an application for further adjustment of benefits was a technicality. Quanta now appeals the Board’s order. .. COURT DECISION: (.html)
♦ Apr 29, .. ICAWV: Williamson v. WV Board of Registered Nurses .. Petitioner Ms. Williamson (“Nurse Williamson”) appeals the March 28, 2023, final order of the West Virginia Board of Registered Nurses (“Board”), which found that she had engaged in professional misconduct and imposed disciplinary sanctions. During her administrative hearing, Nurse Williamson indicated that around 9:00 a.m. Patient exhibited severe vaginal swelling. In response, Nurse Williamson applied ice to the affected area, changed Patient’s position, and used a “peanut ball” to open her pelvis. Nurse Williamson notified Patient’s treating OB-GYN, Dr. Hamilton, of Patient’s status and the actions taken. Dr. Hamilton, who was present at the Hospital, told Nurse Williamson to continue taking those types of actions to promote the progress of labor. Nurse Harris performed a vaginal examination of Patient at 11:06 a.m. A second vaginal examination was performed by Nurse Williamson at 11:48 a.m. at which time Patient had been in labor for approximately two hours. According to Nurse Williamson, her examination revealed that Patient was fully dilated and that her vaginal swelling had reduced but was still present. Nurse Williamson testified that at that time, Patient’s numbness prevented her from wiggling her toes or feeling the necessary pressure to begin the pushing necessary for the baby’s delivery, and that as a result, the baby was travelling back up the birth canal instead of down. At this time, without consulting Dr. Hamilton or the attending anesthesiologist, Nurse Williamson turned off the epidural. At some point between the two vaginal examinations, Dr. Hamilton was advised of Patient’s status. Then, at 11:57 a.m., Dr. Hamilton was informed by Nurse Williamson that the epidural had been stopped. According to Nurse Williamson, Dr. Hamilton was not alarmed by her actions but instructed her to restart the epidural. However, the notes in Patient’s medical record indicate that Dr. Williamson told the Anesthesia Department that Patient’s epidural had fallen out. The Anesthesia Department was contacted, and the epidural infusion was restarted approximately fifteen minutes after it was discontinued; however, Patient’s chart indicates that the epidural had been disconnected for an unknown period of time prior to notifying the anesthesia provider. Further, the restarting of the epidural is noted in Patient’s chart, but Nurse Williamson’s actions prior to that are not. In her testimony, Nurse Williamson stated she had been too busy to chart her other actions and had trusted Nurse Harris to chart the information for her. A complaint was made to Nurse Williamson’s supervisor by the Hospital’s Anesthesia Department. The supervisor then filed an incident report with the Director of Nursing, Ms. Denny (“Director Denny”). Director Denny investigated the matter and met with Nurse Williamson who refused to respond to the internal complaint and obtained legal counsel. On June 15, 2020, Director Denny filed a complaint with the Board, alleging, among other things, that Nurse Williamson had engaged in professional misconduct by practicing beyond the scope of professional nursing when she discontinued the epidural without a doctor’s order. .. COURT DECISION: (.html)
♦ Apr 23, .. 10th Cir.: Rhoads v. Stormont Vail HealthCare .. Dr. Rhoads specializes in internal medicine. He was a hospitalist at Stormont employed under a contract he signed in 2019. In 2020, other doctors at Stormont reported concerns that Dr. Rhoads was exhibiting signs of dementia and that his work was showing a steady decline in quality. These concerns led to the formation of an internal committee at Stormont. That committee recommended a temporary restriction of Dr. Rhoads’s clinical privileges and referred him to Acumen Assessments, Inc. (Acumen) for evaluation. Dr. Rhoads scheduled an appointment with Acumen for January 2021 and worked his last shift as a hospitalist in November 2020. Acumen diagnosed Dr. Rhoads with mild neurocognitive disorder. He was not considered fit to return to the practice of medicine at that time, and he agreed he would likely not be able to return to his work as a hospitalist. ... CONTINUED .. COURT DECISION: (.html)
♦
Apr 23,
.. 7th Cir.:
Tabatha Washington v. City of Chicago
..
In the evening of May 30, 2018, plaintiffs Tabatha Washington and Donte Howard, along with Washington’s cousin Carlton White, all engaged in physical altercations with Kim Edmondson outside Washington’s apartment in Chicago. When the conflict ended, Edmondson left the area and walked about half a mile north. There he encountered three of his friends, Anthony Beard, Khadijah Hill, and Larry Nelson, in a parking lot. Edmondson was shirtless and bleeding from his lip and chest. He told his friends that he had been jumped by two men and one or two women with a pole. He then walked behind a nearby dumpster to urinate. Soon after that, someone else told Beard, Hill, and Nelson that Edmondson had collapsed. They walked over and saw him behind the dumpster lying on his back, not breathing, with blood pooling around his head. They called 911 and flagged down nearby police officers, but first responders were unable to revive Edmondson. He was pronounced dead at the scene. The medical examiner later concluded that Edmondson died from blunt-force trauma to the back of the head.
Chicago Police Department detectives Vincent Alonzo, Adrian Garcia, and Demosthenes Balodimas arrived to investigate. The three parking-lot witnesses each told them of Edmondson’s wounds to the chest and lip, and they told the detectives Edmondson’s story about being beaten up by several of his neighbors. One of the parking-lot witnesses knew where Edmondson had lived and led detectives to the apartment building, about a half-mile away—the same building where Washington lived.
The detectives canvassed the building to see if anyone knew about an altercation with Edmondson. Detective Balodimas later said that, when he was standing outside Washington’s apartment, he heard her say, “F*** that b**** he got what he deserved,” and “he ain’t gonna get my gun.” Balodimas also said he heard White say, “You gotta protect, you gotta fight.” Plaintiffs dispute all of these assertions. A detective knocked on the door of Washington’s apartment and Washington, White, and Howard opened the door. Howard at first told the detectives they could not enter without a warrant. The detectives asked if everything was alright, and Washington told them “there was an altercation earlier, with some guy that had been evicted from this building.” She also said, “He was trying to fight me.”
Washington then allowed the detectives to enter her apartment. She and White spoke to detectives in one room while Howard and another friend, Cynthia Cage, sat on a couch nearby. White explained that there was an altercation with a man who had been evicted from the building who “kept coming around trying to fight,” and White was defending himself. Washington added “he tried to hit me,” saying she hit him to defend herself. Detective Garcia told the group that they needed to come to the police station to straighten everything out. Washington said that Cage had not been involved in the altercation and that Howard had just gotten there. Howard told detectives falsely that his name was Jeremiah Johnson and claimed that he had just arrived at the apartment.
The detectives handcuffed Washington and White, placed them in separate squad cars, and took them to the police station for further investigation.
This case presents claims for unlawful pretrial detention under the Fourth Amendment and 42 U.S.C. § 1983, along with state-law claims for malicious prosecution.
Plaintiffs Tabatha Washington and Donte Howard claim that defendants, Chicago Police Department detectives Vincent Alonzo, Adrian Garcia, and Demosthenes Balodimas, deliberately misled judges and a grand jury to secure judicial determinations of probable cause to detain plaintiffs on charges of first-degree murder.
After over a year in custody, Washington and Howard were tried and acquitted on all charges.
They then filed this suit.
The district court granted summary judgment to the defendants, and plaintiffs have appealed.
..
COURT DECISION:
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♦ Apr 23, .. CAW: Worland, V. Kitsap County .. Mr. Worland worked for the County in various roles from 2012. Worland was a member of the Teamsters Union Local 58. At some point, Worland alleged that the County failed to properly compensate him for overtime. He maintained that the County ordered him to change his time card to omit overtime he had claimed. And when Worland refused, the County began retaliating against him in a myriad of ways. Around July 2019, Worland met with the Assistant Director of Public Works of the Utilities Division (Assistant Director) to discuss alleged harassment Worland suffered over the past couple years—some of the harassment related to Worland’s use of sick leave. The Assistant Director received several allegations of misconduct regarding Worland, and in December 2019, the Assistant Director asked the County’s Department of Human Resources to investigate the allegations. Subsequently, the County held a pre-termination hearing. In February 2020, the County terminated Worland based on seven categories of alleged misconduct. The Union filed a grievance seeking Worland’s reinstatement, which proceeded to arbitration. An arbitrator determined the County terminated Worland for just cause. Worland subsequently brought this action for wrongful termination in violation of public policy. .. COURT DECISION: (.html)
♦ Apr 22, .. 11th Cir.: Jean Charles v. GEO Group Inc .. Ms. Jean Charles, a Black, Haitian woman, worked as a case specialist for GEO Group Inc a government contractor in Orlando, Florida, which administered a federal immigration program. Jean Charles received raises every year until 2011, when she “reached a cap.” After she hit the cap, she received “lump sum payments every year but no raises and no promotions.” She was the only Black, Haitian employee in her office, and the “only employee in her group to reach a cap,” which her employer failed to justify or explain. In 2016, she was denied a promotion without explanation. Then, after she filed a charge of discrimination raising these allegations with the Equal Employment Opportunity Commission (“EEOC”), she was fired despite being in good standing and having “no previous record of discipline.” Marie Jean Charles, a Black, Haitian woman, filed a lawsuit alleging discrimination and retaliation under Title VII following her termination as a case specialist for a government contractor. After the defendants answered, and discovery began, the district court sua spone dismissed the operative amended complaint as a shotgun pleading and ordered Jean Charles to replead. When Jean Charles did so, the defendants moved to dismiss, and the court granted that motion, dismissing the action with prejudice on shotgun-pleading grounds and for failure to state a claim. U.S. 11TH CIRCUIT: After careful review, we hold that the district court abused its discretion by invoking the shotgun-pleading doctrine, and we vacate and remand for further proceedings. A plaintiff in Jean Charles’s position may not be able to identify in a complaint which defendant was responsible for which acts or omissions she experienced as an employee. Nor would such allegations add any clarity to the essence of her claims—that is, that she experienced discrimination and retaliation prohibited by Title VII as an employee of the facility operated by the defendants. Having concluded that the district court improperly invoked the shotgun-pleading doctrine, we vacate and remand for further proceedings. VACATED AND REMANDED. .. COURT DECISION: (.html)
♦ Apr 18, .. Supreme Court of the United States: Muldrow v. City of St. Louis .. THE U.S. SUPREME COURT MADE IT EASIER FOR WORKERS TO BRING EMPLOYMENT DISCRIMINATION SUITS OVER JOB TRANSFERS BASED ON SEX, RACE, RELIGION. Sergeant Jatonya Clayborn Muldrow maintains that her employer, the St. Louis Police Department, transferred her from one job to another because she is a woman. From 2008 through 2017, Muldrow worked as a plainclothes officer in the Department’s specialized Intelligence Division. In 2017, the new Intelligence Division commander asked to transfer Muldrow out of the unit so he could replace her with a male police officer. Against Muldrow’s wishes, the Department approved the request and reassigned Muldrow to a uniformed job elsewhere in the Department. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. After the transfer, Muldrow no longer worked with high-ranking offi- cials on the departmental priorities lodged in the Intelligence Division, instead supervising the day-to-day activities of neighborhood patrol of- ficers. She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts. Muldrow brought this Title VII suit to challenge the transfer. She alleged that the City, in ousting her from the Intelligence Division, had “discriminated against” her based on sex “with respect to” the “terms [or] conditions” of her employment. .. U.S. SUPREME COURT DECISION: (.html) NPR Discussion
♦ Apr 18, .. 11th Cir.: Allred v. Florida .. Allred had a romantic relationship with Tiffany Barwick. They ended their relationship with a fight. The fight happened during Allred’s 21st birthday party, which was attended by 50 guests. In attendance was Michael Ruschak, who was Allred’s closest friend. After the breakup, Allred learned that Barwick and Ruschak had begun a sexual relationship. Allred messaged Ms. Barwick calling her a “whore” because of her relationship with Ruschak. Allred said he could not forgive her for that and threatened, “if I ever see Ruschak again I will kill him.” Allred pulled up to the house. He repeatedly rammed his truck into Barwick’s car, which was parked outside. Allred then walked to back of the house and banged on a sliding glass door. Ms. Barwick ran away to hide. Allred walked into the house, gun in hand. The occupants scattered. Allred noticed Mr. Ruschak peering from the kitchen and pursued him, shooting him four times. Ruschak was killed instantly. Allred continued to the bathroom, where he found Barwick hiding in the bathtub. He shot her six times. She, too, died instantly. As Allred moved through the house, Roberts grabbed him, trying to stop him. Allred shot Roberts in the leg and escaped. Allred left the crime scene and drove home. He called 911 and reported that he had killed two people. .. COURT DECISION: (.html)
♦ Apr 18, .. FLRA: VA v. AFGE .. As relevant here, the issues before the Arbitrator were: “Did the Union fail to follow the Master Agreement Grievance Procedure as outlined in Article 43, Sections 6 and 7? If so, what is the appropriate remedy?” The Agency argued that, by filing the grievance at Step 3, the Union violated: (1) Article 43, Section 6, which states that “every effort will be made to settle grievances at the lowest possible level”; and (2) Article 43, Section 7, Note 5 (Note 5), which states that “grievances should normally be resolved at the lowest level possible.” The Arbitrator interpreted the parties’ agreement as stating, “as a general rule,” that grievances should be resolved at the lowest possible level. However, he also observed that Note 5 permits filing a grievance at a higher step “when the supervisor at the lower level clearly has no authority to resolve the issue.” The Arbitrator noted the Union’s grievance alleged an unfair labor practice (ULP), an equal‑employment‑opportunity (EEO) violation, and “discrimination against [the] Union President . . . based on Union activity.” The Arbitrator found those were “the type of assertions, if true, which would affect the entire bargaining unit,” and that, “by their nature, . . . were not capable of being settled at the preliminary stages of the grievance procedure and must be resolved at a higher level of management.” Therefore, “based on the specific allegations found in the Union’s [g]rievance,” the Arbitrator concluded the Union properly filed its grievance at Step 3. As such, he denied the Agency’s grievance. On January 10, 2024, the Agency filed exceptions to the award, and on February 6, 2024, the Union filed an opposition. .. FLRA DECISION: (.html) (.pdf)
♦ Apr 17, .. MSPB: Shepherd v. Department of Homeland Security .. Ms. Sheppard, (The appellant) was employed by the agency’s Federal Emergency Management Agency (FEMA) as a Reservist Emergency Management Specialist. On October 22, 2021, the agency terminated her based on charges of conduct unbecoming and lack of candor. The basis of the conduct unbecoming charge was that she allegedly discussed a subordinate employee’s medical condition with her while on speakerphone and within earshot of other employees, including a nurse practitioner, without her consent. The agency also alleged that she called the same subordinate employee a “bitch” on another occasion. She was charged with lack of candor because she later stated that her subordinate consented to having the nurse listen on speakerphone, which her subordinate denied. The appellant filed a timely appeal to the Board, alleging that the agency investigated her alleged misconduct and terminated her in retaliation for, among other matters, her participation in her coworker’s EEO case, her counseling of her subordinate, and her April 16, 2021 report of her Group Supervisor’s behavior. .. MSPB DECISION: (.html)
♦ Apr 17, .. SCI: Attorney Disciplinary Board v. Neff .. Attorney Mr. Neff made at least nine comments that are at issue in this disciplinary proceeding. At least some of his comments were made in front of his employees Ms. Tanvi Yenna and Ms. Carly Schoemaker. Three of Neff’s comments related to defendants in criminal cases pending at the county attorney’s office. While prosecuting a criminal defendant, Neff told Yenna that a criminal defendant’s “asshole” would be “this big” by the time the criminal defendant left prison. Neff formed a circular shape with his hands when he made the statement. Another time, while prosecuting a case involving sexual exploitation of a minor, Neff told Yenna that the defendant should “lube up” and “grab his ankles.” After losing a criminal sex abuse case, Neff told Yenna and Schoemaker that he wished the defendant would be “raped by antelopes and mauled by lions at the same time.” Neff also made inappropriate comments about judges. Neff “occasionally” referred to judges as “bitches” following an unfavorable decision. Neff once referred to a particular judge as a “limp dick” because Neff was frustrated about how the judge presided over a sexual assault trial in which the defendant was acquitted. Finally, Neff told several off-color stories and jokes in the workplace. While discussing false accusations in criminal cases, Neff relayed to Yenna and Schoemaker that he was falsely accused of sexual assault in college. In the fall of 2019 or spring of 2020, Neff told Yenna and Schoemaker about a college memory in which another student came to class wearing pajamas and no shirt. The student’s penis fell out of his pajama pants, and the professor yelled at the student that he “[did] not care how proud he was of his size, get out.” Sometime in early 2020, Neff made a joke. Upon arriving late to the office after snow-blowing his driveway, Neff remarked that he spent the morning blowing five inches, though he did not believe his wife minded. In response to a staff member’s smirk, Neff quipped, “That’s what she said.” This statement was a quotation from a running joke made on the TV show “The Office.” Yenna and Schoemaker frequently used the quote in the workplace. The final statement relates to a telephone call Neff received from a member of the public. Neff related to Yenna that the caller referred to Neff’s predecessor as a “faggot.” .. COURT DECISION: (.html)
♦ Apr 17, .. SCI: White v. State of Iowa And Iowa Department Of Human Services .. Ms. White's (The plaintiff) hostile-work-environment complaints about her boss led to his termination. The State argues that we should decide “under what circumstances can evidence of harassment of other employees be used to prove that the plaintiff’s work environment was impermissibly hostile?” The district court denied the employer’s pretrial motion in limine to exclude so-called “me too” evidence1 as unduly prejudicial, and the employer lodged a “standing” objection to certain exhibits. Considerable me-too testimony was admitted at trial without objection. The plaintiff’s own job duties as a supervisor included receiving reports of alleged discrimination experienced by other employees, and she relied, in part, on such reports to support her own hostile-work-environment claim. The jury found that the plaintiff proved a hostile work environment and awarded her $260,000 for past emotional distress and $530,000 for future emotional distress. State employer appeals judgment on jury verdict awarding damages for a hostile-work-environment claim under the Iowa Civil Rights Act. Suprene Court of Iowa: We conclude that the harassment the plaintiff personally experienced was not objectively severe or pervasive enough to alter the terms or conditions of her employment. On that ground, the district court erred by denying the State’s motion for JNOV. We REVERSE the judgment for the plaintiff and REMAND. .. COURT DECISION: (.html)
♦ Apr 16, .. OCA: Colerain Twp. v. AFSCME .. In February 2021, an employee of the township was placed on FMLA leave after submitting a doctor’s note to the township that provided that the employee could not lift, push, or pull anything over ten pounds, and must be allowed to take certain breaks due to an issue with his lumbar spine. The employee and the township stayed in communication over the next couple of months concerning the employee’s treatment and pending return-to-work date. The township informed the employee that the restrictions in place were "severely limiting to the requirements” of his position and emphasized the importance of a date certain that the employee could return to work with no restrictions. The employee submitted additional physician certifications to the township—one in March and one in April—and continued communication with the township regarding the status of his treatment. The employee’s restrictions remained in place, but he was cleared by his physician for light duty as of April 7, 2021. On April 28, 2021, the township sent a letter to the employee informing him that his FMLA leave was set to end on May 5, 2021, and, because the restrictions in place did not allow him to perform the essential functions of his position, he would need to provide a physician certification releasing him for full duty as of May 13, 2021. The letter stated, “Failure to be medically cleared and appear for full-duty work on May 13, 2021, will be considered an absence without approved leave for which you may be subjected to discipline up to and including termination.” .. COURT DECISION: (.html)
♦ Apr 16, .. 11th Cir.: Thomas v. Walmart, Inc .. Mr.Thomas began working as a maintenance associate at the Walmart in Snellville, Georgia around October 2019. He alleges that, beginning in August 2021, another employee named Nathalee Gooden would sometimes approach him at work and speak to him. She complimented his vintage car and mentioned that she wanted to go for a ride in it, once asked whether he was married or dated, once asked where he lived, and once allegedly touched his arm to see whether he was wearing a ring. Thomas never complained about the behavior or otherwise alerted anyone at Walmart, other than briefly discussing the interactions with a supervisor “in a sort of hilarious fashion” that “wasn’t in a ... serious way.” As part of his normal work routine, Mr. Thomas would place trash into a compactor in the back of the store. One day while compacting trash, some of the waste fell onto Thomas’s body. Frustrated, he began cursing. Gooden overheard the language and approached him, instructing him to calm down and refrain from using profanity. Gooden then says that Thomas began to verbally attack her, using profanity and making negative references to her race. Thomas concedes that he used profanity during the altercation and that he told her to get away from him. Gooden immediately reported the incident to Jewel Hemphill, the temporary store manager, who then investigated the incident by interviewing Thomas, Gooden, and other associates in the area at the time of the altercation. When all associates corroborated Gooden’s account of events, Hemphill fired Thomas after deciding that such behavior was inappropriate and inconsistent with Walmart’s culture and values. Separately, before the altercation with Gooden, Thomas requested a leave of absence with Walmart’s third-party medical leave coordinator so he could undergo cancer treatment for six weeks beginning in October. His request was still pending at the time he was fired. Thomas filed a pro se complaint against Walmart, alleging claims under Title VII and the ADA for sexual harassment, disability discrimination, and retaliation. He alleged that he worked under different terms of employment from similarly situated employees, faced sexual harassment, did not receive disability accommodations, was retaliated against, and was ultimately fired. .. COURT DECISION: (.html)
♦ Apr 15, .. DCAF: Carroll v. State of Florida .. When the results of Tate High School’s 2020 homecoming queen election came in, Ms. Carroll’s daughter appeared to have won convincingly. But not everyone was convinced. The teacher responsible for administering the election reported to school officials that many votes in the election had been flagged by the election application software—and that every flagged vote had been cast for Carroll’s daughter. At the time, Ms. Carroll was an assistant principal at Bellview Elementary School, with district- wide access to all student accounts in the school district’s FOCUS portal. It was suspected by some that Carroll’s daughter had access to her mother’s credentials to the FOCUS portal and had used that access to acquire confidential student information. Information that she then used to cast votes for herself in the homecoming queen election. The school district appointed Gary Marsh to investigate the report. ... CONTINUED .. COURT DECISION: (.html)
♦ Apr 15, .. ICA: Kerwood v. Elkhart County Sheriff .. On November 30, 2017, the Elkhart County Sheriff’s Department (the “Sheriff’s Department”) received a report from loss prevention at a Walmart regarding a radio which had been left in a cart. The radio “appeared to be a police radio” and “had A227 written on it.” Officer Eric Schuman was assigned to the call. Sergeant Adam Leeper, the officer in charge, was informed that a video taken from a security camera showed that the radio had been left by a person wearing a Concord Township Fire Department (“Concord Fire”) shirt, and the officers contacted Concord Fire Assistant Chief Sean Miller, who identified Kerwood as the person wearing the shirt. Assistant Chief Miller indicated that Kerwood had been recently hired as a volunteer, he was serving a probationary period, and during that period he was not permitted to wear department-identifying clothing or carry a radio when he was not on duty. According to Sergeant Leeper, “A227” was “a unit number for then Sergeant Lanzen” with the Sheriff’s Department, the officers contacted Sergeant Lanzen to check if he had his radio, he did have his radio, and the concern was that the radio discovered at the Walmart had been illegally obtained. Also on November 30, 2017, a meeting was held at a Concord Fire station at which Kerwood, Assistant Chief Miller, Sergeant Leeper, Officer Schuman, and other individuals were present. During the meeting, Sergeant Leeper stated: “We have to be careful when it comes to you because of your past.” Kerwood asked “what history or past,” and Sergeant Leeper “said [his] arrest for the police impersonation.” According to Kerwood, he was later forced to resign from Concord Fire, and he signed a resignation letter dated May 28, 2018. Kerwood later began a volunteer firefighter position at Kankakee Township Fire Department (“Kankakee Fire”). Kankakee Fire terminated Kerwood’s position as a volunteer firefighter. Kerwood sought a volunteer position with the Springfield Township Fire Department but was not accepted due to its relationship with Kankakee Fire. In June 2019, Kerwood filed a complaint alleging that he was found not guilty for a prior criminal charge, the court ordered the Sheriff’s Department to expunge and seal all records of the charge and arrest, the Sheriff’s Department failed to comply with the order, employees of the Sheriff’s Department disseminated information about his prior arrest, and as a result he was terminated from Kankakee Fire. ... CONTINUED .. COURT DECISION: (.html)
♦ Apr 15, .. 3rd Cir.: Ingram v. Dunbar .. In March 2020, the Pennsylvania House Republican Caucus (“PHRC”) hired Ms. Ingram to serve as the district office manager for State Representative Eric Davanzo. The district office in question is in West Newton, Pennsylvania and is open to the public. Constituents are often present. Ms. Ingram worked in this role for two years. Then, in May 2022, something quite literally started not smelling right. Ms. Ingram and a coworker “began sporadically smelling strong, foul odors” reminiscent of “raw chicken” while at work. The intense stench burned their eyes and caused headaches. Ms. Ingram voiced her concerns several times to Representative Davanzo, who each time referred her to the office landlord, Joyce Pawlik. But after several complaints, Ms. Pawlik claimed to be unable to locate the source of the miasma. For a month, Ms. Ingram’s ailments were her only clues in the office mystery. Then, in June, Ms. Pawlik responded to a text message about the stink’s “vengeful” return by suggesting that a leak in the building may be to blame. Days later, Ms. Ingram observed water coming in through the floor of the office. At an apparent dead end with Representative Davanzo and Ms. Pawlik, Ms. Ingram also emailed Lisa Zaucha, the Southwest Regional Coordinator of District Operations for the PHRC. Ms. Zaucha appears to have been responsible for hiring and supervising employees such as Ms. Ingram. For a month and a day, Ms. Ingram’s request bore no fruit. At last, on July 7, Ms. Zaucha responded to follow up on the “mold situation.” When Ms. Ingram explained that the situation was very much still an issue, Ms. Zaucha forwarded their exchange to PHRC Senior Deputy Chief Counsel James Mann. Mr. Mann advised Ms. Zaucha to purchase an at-home mold test to assess the office. Ms. Zaucha forwarded this prescription back to Ms. Ingram, calling it “good advice” and offering to reimburse Ms. Ingram for the purchase. As instructed, Ms. Ingram purchased a test and, removing the cover from an air vent, soon discovered “a significant amount of a mold-like substance.” The test revealed that substance to be a mixture of Aspergillus/Penicillium and Stachybotrys, the latter of which is the genus that includes black mold. The same day, Ms. Ingram reported her findings to Representative Davanzo “in order to protect herself, her colleagues, and Rep[resentative] Davanzo’s constituents.” But when she did, Representative Davanzo bluntly asked: “Who the f— gave you permission to do this?” The representative then wrote a profanity-laden email to PHRC staff and another Pennsylvania representative demanding that Ms. Ingram and Ms. Zaucha be fired. ... CONTINUED .. COURT DECISION: (.html)
