LEGAL BRIEF of Postal Employees Cases
(EEOC, MSPB, District Courts)
Rejects Agency Award of $5,000.00 and Awards $150,000.00 in Non-Pecuniary
Damages. Complainant appealed from the agency's final decision awarding
compensatory damages in the amount of $5,000 in connection with
complainant's claims arising from discrimination in violation of Title VII
(retaliation) and the Rehabilitation Act (herniated disc), when, inter alia,
a supervisor went on a "crusade" to remove complainant from limited duty
status, force him to request light duty and submit medical documentation to
support that request. In addition, complainant filed a second complaint,
claiming that the agency issued him a Notice of Separation - Disability. In
both instances, the Commission found discrimination and ordered the agency
to conduct a supplemental investigation into complainant's entitlement to
Kloock v. United
States Postal Service, EEOC Appeal No. 01A31159 (February 5, 2004).
The Postal Service was wrong to subtract APWU
and National Alliance of Postal and Federal Employees (NAPFE) union dues from back pay
granted to a Motor Vehicle driver the agency improperly
The appellant was removed from his position as a Motor Vehicle Operator, effective May 8, 1999, based on the charge of threatening his supervisor. On appeal, the administrative judge (AJ) sustained some, but not all, of the specifications the agency cited in support of the charge, and found that the appellant had not established his claim of racial discrimination. The AJ mitigated the penalty to a 60-day suspension.
Eventually, the Postal Service granted Samuels $29,000 of the additional back pay he requested. But he filed another appeal with the Merit Systems Protection Board, arguing that the Postal Service owed him still more, because it improperly subtracted union dues and health insurance premiums from his back pay.
According to evidence he was a member
of both APWU and NAPFE at the time of his removal. He argues, however, that
he did not have the benefit of union representation during the period
following his removal, and that he never signed any document requesting that
union dues be taken out of his back pay award.
The Federal Labor Relations Authority
found that an agreement for dues deduction authorization no longer applies
to an employee when his employment is terminated. In the FLRAs view,
an employees decision to become a union member and to pay union dues
through automatic payroll deduction is a voluntary decision, and that, in
the absence of any statutory or regulatory constraint requiring a different
policy, the purposes of its statute are best served by a policy which gives
to an employee who is reinstated after a determination that his removal was
unwarranted or unjustified the option of having his union membership
retroactively restored. In other words, if the reinstated employee so
chooses, he would incur a retroactive obligation for the dues not paid
during the period of his removal, and the union would be obligated to
provide him with any benefits which might have accrued to him as a union
member during that period. Alternatively, he should be given the option of
joining the union as if he were a newly hired employee, in which case his
obligation to the union would begin with the signing of a new dues
|Reduction in force Preference Eligible -MICHAEL J. MARCINO v.USPS -The petitioner by letter in 1997 was informed that his level 6 sorter position would be abolished. The petitioner further alleged that he was coerced into bidding for the level 5 position when he was told that "[a]nyone that did not bid on the level 5 positions posted would risk the chance on being an unassigned clerk subject to be involuntarily assigned by the agency." The petitioner also alleged that "[t]he agency further coerced the employees when we were advised that failure to bid on a level 5 position [sic], we would be involuntarily reassigned by the agency to any position or tour they deemed fit." The petitioner was then converted to an unassigned regular clerk with a saved grade level. The petitioner had the option of awaiting an appealable adverse action - either an actual reduction in grade or being informed by the agency that there were no alternative level 6 positions available. Yet, the petitioner "simply accepted an alternative employment option" by bidding for and accepting a position as a level 5 sorter. This decision was voluntary, the petitioner had not been reached for release before his application was made, and his reduction in grade did not constitute an appealable demotion. full text of case 9/22/03|
APWU: Law Firm Files Class Action
Suit over Effects of Anthrax Drug CIPRO
The law firm of Sheller, Ludwig & Badey, P.C., has initiated a
lawsuit against Bayer Co., the manufacturer of CIPRO, seeking relief for
affected employees who experienced side effects from its use, such as:
|FMLA CLASS ACTION: Attorneys Barbara Edin, working with co-counsel Elwyn Schaefer and Todd McNamara have a class action certified against the USPS in the Western District for qualified individuals with disabilities when it (1) unreasonably required re-certification of FMLA requests; (2) unreasonably delayed and/or denied FMLA requests or stated they were "not currently approved;" (3) systemically required second and third opinions to support the FMLA requests; and (4) designated disability-related absences as AWOL and/or disciplined employees for disability-related absences when FMLA was disapproved. The Attorneys believe this case will go national. Click on link for more information 8/1|
7/14/03-Disability Law - Direct Threat
Complainant Not a Direct Threat: Discrimination Found. Complainant, a distribution clerk, had been treated for back problems over many years. A letter from complainant's most recent physician stated that he had a herniated disc, and he was advised not to lift objects weighing more than 20 pounds and to rest if the pain recurred. After conducting a fitness-for-duty examination, the agency informed complainant that the medical officer had assessed him as a moderate risk. The plant manager subsequently concluded that complainant's continued employment would not be in either complainant's or the agency's best interest and terminated complainant.
EEOC Administrative Judge concluded that the agency regarded complainant as being disabled and terminated him based on that perception. On appeal, the Commission agreed with the AJ that the agency regarded complainant as disabled, based upon its assessment that he could not lift more than 20 pounds, bend, or lean, as described in his medical documentation. The Commission noted complainant's uncontradicted testimony that, on the few occasions when he had to lift more than 20 pounds, he merely put on a back brace. EEOC also noted that complainant was subsequently reinstated into a distribution clerk position and thus concluded, as did the AJ, that complainant was a qualified individual with a disability under the Rehabilitation Act. The Commission found that the agency had failed to conduct an individualized assessment, taking into account the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Accordingly, the Commission found that the agency had failed to show that complainant's continued employment in his distribution clerk position posed a direct threat, and that his termination violated the Rehabilitation Act. As part of the relief ordered, the Commission directed the agency to investigate complainant's entitlement to compensatory damages; reinstate him retroactively; determine back pay; and consider disciplining the responsible management officials. Arnow v. United States Postal Service, EEOC Appeal No. 07A10023 (November 15, 2002).
Law - Reasonable Accommodation
Complainant Unlawfully Denied Reasonable Accommodation. The Commission found that the agency violated the Rehabilitation Act when it failed to provide complainant, a deaf employee who uses sign language to communicate, with an interpreter during a safety talk. The Commission found no evidence to support a finding that the provision of interpreter services would have caused an undue hardship. EEOC also noted that the agency failed to provide evidence that it attempted to contract the services of an interpreter in contemplation of the safety talk. As part of the relief ordered, the Commission directed the agency to train its management officials as to their obligations under the Rehabilitation Act; to notify complainant of his right to submit objective evidence in support of his claim for compensatory damages; and to consider disciplining the responsible management official(s). Saylor v. United States Postal Service, EEOC Appeal No. 01A05281 (November 15, 2002); see also Holton v. United States Postal Service, EEOC Appeal No. 01991307 (November 7, 2002) (denial of services of interpreter for hearing impaired employee for presentation of new automation concept violated Rehabilitation Act).
posted 8/9/03 MSPB DISMISSES VETERANS'
PREFERENCE REDUCTION IN FORCE F APPEALS -DISCUSS
Reduction-in-Force (RIF) : MSPB consolidated the appeals of six employees as the employees made similar allegations that they were demoted by USPS a reduction in force (RIF). The MSPB found that the employees either (1) did not have their positions abolished when they bid to and accepted lower-grade jobs, (2) had their jobs abolished but were never assigned to positions at a lower grade than their former positions, or (3) bid to and accepted lower-grade positions after their positions were abolished but without the agency ever having expressly told them that they would not be assigned to positions at their former grade levels. In none of these instances were the employees subject to a RIF demotion appealable to the MSPB under the applicable regulations and case law. Accordingly, the MSPB held that none of the appeals were within the MSPB's jurisdiction and dismissed each of the appeals. Burger, et al. v. United States Postal Service (2003),
Previous Decision: Burger v USPS, Docket Number DE-0351-00-0167-1-1, the board held that "even if the appellants bid to lower-level positions, they did so under circumstances clearly indicating that there were no positions at their current grade levels to which they were entitled under the collective bargaining agreement. In other words, the agency's demoting the appellants to lower-graded positions was the functional equivalent of confirming that there were no positions at their former grade levels to which they were entitled."
Reduction-in-Force (RIF): Employee received notice that he would be involuntarily reassigned. Because he chose not to bid on any posted assignments, he was arbitrarily assigned to the automation section at his current pay and grade. Employee appealed this assignment to the MSPB, which dismissed the appeal for lack of jurisdiction. Employee argued that the agency conducted a reduction in force (RIF) when it reassigned him. The Federal Circuit Court affirmed the dismissal because employee was merely reassigned at the same pay and grade, not subject to a RIF, and reassignment of a preference eligible postal employee to a position at the same pay and grade is not appealable to the MSPB. Hoard v. U.S. Postal Service (Fed.Cir.2003)
Background: Hoard was a flat sorter machine clerk for the U.S. Postal Service in Portland, Oregon, when he received notice on June 29, 2001, that he would be involuntarily reassigned due to the impact of automation. Because he chose not to bid on any posted assignments, he was arbitrarily assigned to the automation section at his current pay and grade on August 31, 2001. On December 1, 2001, Hoard appealed this assignment to the board, which dismissed the appeal for lack of jurisdiction. Hoard argues that the Postal Service conducted a reduction in force (RIF) when it reassigned him. A RIF occurs when an agency "releases a competing employee from his or her competitive level by furlough for more than 30 days, separation, demotion, or reassignment requiring displacement." 5 C.F.R. § 351.201(a)(2). Because Hoard was merely reassigned at the same pay and grade, he was not subject to a RIF, and "reassignment of a preference eligible postal employee to a position at the same pay and grade is not appealable to the Board." See Roche v. U.S. Postal Serv., 80 F.3d 468, 471 (Fed. Cir. 1996). Accordingly, the board properly dismissed his appeal for lack of jurisdiction." An employee who has been furloughed for more than 30 days, separated, or demoted by a reduction in force action may appeal to the Merit Systems Protection Board." 5 C.F.R. § 351.901. 6/21/03
MSPB Supports Union's Position Veterans' Preference Issues
UPDATE #50 September 20, 2001 (APWU website)
Another BIG MSPB win for preference eligibles who were reduced in grade without the implementation of the RIF procedures. As previously reported in the UPDATE, the Veterans Preference Act requires that a preference-eligible employee may be reduced in grade only through the RIF procedures and when reduced must be provided notice of appeal rights to MSPB. The APWU national agreement prohibits a RIF of any employee on the rolls on November 20, 1998, or who has achieved six years of continuous service. Nevertheless, postal management has reduced preference eligibles in grade without conducting a RIF or notifying employees of their appeal rights.
In a previous UPDATE, I informed the membership of a landmark MSPB decision deciding that a preference-eligible employee who bid to a lower lever position must be restored to his previous grade 6 because of the USPS failure to abide by MSPB regulations. The most recent decision is Ernest M. Yohn, III v United States Postal Service, dated September 10, 2001. The employee was a former LSM operator whose job was abolished and after being declared unassigned, he bid to a lower level position. After reading the information provided in the UPDATE, he filed an MSPB appeal.
The administrative law judge ruled that an assignment to a lower-grade position constitutes a RIF demotion even when the employee voluntarily applies for or is offered an assignment to that position, as long as the assignment was made after the agency had informed the employee that his original position had been abolished and that he had not been selected for assignment to a position at his former grade level.@
In defending their actions, the Postal Service argued that "the appellant did not have to bid on the lower grade position but could have remained indefinitely in his unassigned regular clerk position at the same grade and pay. In addition, it states that there were vacancies at the PS level 6 grade for which he could have successfully bid based on his seniority. And it refers to the fact that he acknowledged on appeal that he bid for the lower-graded position for personal reasons.@
Charlie Robbins, President of the Palm Beach Area Local, and Eileen Meginley, Steward, are responsible for this major win and are to be congratulated.
|Reinstatement - Selection Procedures: Applicant for reinstatement, who had been terminated due to attendance problems resulting from her medical condition (lupus), filed a claim of disability discrimination by the agency. Agency appealed to EEOC to affirm the agency's rejection of the Administrative Judge's (AJ) finding that the agency had discriminated against applicant. The EEOC affirmed the AJ's decision, finding that the agency discriminated against applicant based on her disability when it applied its reinstatement/re-hire policy to her when she requested reinstatement to her former position. The agency's policy not to re-hire employees discharged for cause, when applied to applicant, screened her out on the basis of disability, failing to provide any measure of applicant's ability to perform the essential functions of the position to which she sought reinstatement. Pointer v. Potter (E.E.O.C. 2003)|
Act of 1973
- Violations: Applicant filed a formal complaint with the EEOC alleging that
she was discriminated against on the basis of her race (black) and
disability (weight). The agency's Medical Director rated applicant as a
"moderate risk" of future injury due to her weight. [The Mail
Handler is 5' 5" and weighs 343 lbs.] The agency had a policy
of denying employment to any applicant who was rated a "moderate risk". The
EEOC found that the agency's finding of unsuitability for employment was not
explained in any detail. The agency also failed to address the duration of
the risk posed by applicant's weight and the nature and severity, the
likelihood, and the imminence of the potential harm. The EEOC found no
evidence to support the agency's conclusion that applicant posed a direct
threat and concluded that the agency's denial of employment was in violation
of the Rehabilitation Act. Order:
the agency shall offer complainant the position
of Mail Handler or a substantially equivalent position at an agency
facility within thirty miles of complainant's home. 2.
The agency shall award complainant back pay with interest and other
benefits due complainant, for the period from July 28, 1998 to the
date she enters into or declines to enter into duty. The agency
shall determine the appropriate amount of back pay with interest and
other benefits due complainant, 3. The issues of compensatory damages
and attorney's fees and costs are REMANDED to the Hearings Unit of the
Dallas District Office.
Henderson v. Potter (E.E.O.C. 2003)
Disclosure of Medical Condition Unlawful
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