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INTRODUCTIONNew Developments in Employee and Labor Relations is designed to identify important new case law, policies, and initiatives in Federal employee and labor relations. The case descriptions are necessarily concise and are only intended to provide enough detail to allow readers to identify cases of potential interest. These descriptions should not be interpreted as the Office of Personnel Management's endorsement of the case law, and some of the holdings raised in the descriptions may be inconsistent with the Office of Personnel Management's policy and subject to continuing litigation. Readers are also reminded that in some instances, the Office of Personnel Management's policy may be modified by individual agency regulations and applicable collective bargaining agreements. In such cases, consultation with agency headquarters staff is essential. Additional information on the Office of Personnel Management's initiatives and policies can be obtained by email er@opm.gov or by telephone (202) 606-2920.ADMINISTRATIVE LAW JUDGEThe administrative judge dismissed as untimely the appeal claiming that the Office of Personnel Management (OPM) had applied an improper employment practice to appellant in rating him under the administrative law judge examination. Upon review, the Board disagreed. Extrapolating from case law in other kinds of appeals, it found the appellant had put OPM on notice that he believed the examination was biased, and OPM's failure to give him notice of appeal rights under those circumstances excused his late filing. O'Leary v. OPM, AT300A980635-I-1, May 16, 2000.ALTERNATIVE DISPUTE RESOLUTIONOPM'S Recognition ceremony and reception for outstanding Alternative Dispute Resolution Programs. On October 5, OPM will hold a public recognition ceremony honoring recipients of the 2000 OPM Director's Award for Outstanding ADR Programs followed by a reception for all attendees.The ceremony will take place at the U.S. Office of Personnel Management, Alan K. Campbell Auditorium, 1900 E Street, N.W., Washington, D.C. The reception will immediately follow in Room 1350. All individuals who are involved in, will be involved in, or are interested in, the resolution of Federal workplace disputes are invited to attend. This includes agency Dispute Resolution Specialists; Directors of Agency Legal Offices and legal staff; Directors of Personnel and other human resources staff, Directors of Equal Employment Opportunity and EEO specialists; management and union officials; members of agency labor relations partnerships; National Partnership Council members; and ADR Award nominees and recipients. For more information, please contact the Employee Relations Division of the Office of Workforce Relations at OPM by telephone at (202) 606-2920 or by email at er@opm.gov. ATTORNEY FEESThe Federal Labor Relations Authority (FLRA), noting that this was the fourth time that the issue of the union's entitlement to attorney fees in this case had been referred to FLRA, remanded the case to the parties "for submission to a new arbitrator to grant the Union's request for attorney fees and determine what amount of fees would be reasonable."In the initial award, the arbitrator--after finding that the agency didn't compensate the grievant at the proper rate of pay after he had accepted a temporary promotion to a supervisory position--closed the case without addressing the issue of entitlement to attorney fees. The union appealed to FLRA which bounced it back noting that the union never asked the arbitrator for attorney fees. When the union subsequently asked the arbitrator for attorney fees, the arbitrator declined, holding that he was functus officio. FLRA set aside that award and remanded the case for resubmission to the arbitrator. The arbitrator again denied attorney fees--but the grounds weren't clear. FLRA set aside that award and remanded the case for resubmission. Again the matter was referred to the arbitrator who again denied the attorney fees, finding that the fees weren't warranted in the interest of justice and the amount of fees wasn't reasonable. This time the arbitrator added that "[i]f this does not satisfy the Authority, I request that it not be remanded to me again." FLRA, finding that the arbitrator's latest decision contained no analysis and no factual findings, obliged. Alabama Association of Civilian Technicians and Alabama National Guard, 0-AR-3145, March 31, 2000, 56 FLRA No. 29. CHARGES AND PENALTIESThe Merit Systems Protection Board granted the appellant's petition for review of an administrative judge's decision that his agency properly removed him for, among other things, insubordination. While the appellant attended a meeting that he was told he should not attend, the agency did not take into account the fact that the appellant stated when he attended the meeting that he was not there as an official representative but rather was attending as a "volunteer." The Board determined that this disclaimer voided the agency's charge of insubordination. While the insubordination charge was not sustained, other charges were, including failures to complete his work properly. The Board concluded that, because the appellant's position of Family Program Specialist was one of special trust and confidence and because of the appellant's "long-standing pattern of failure to performance assignments in a timely fashion," removal was appropriate. Blank v. Army, DA0752980348-I-2, March 10, 2000.Noting that the appellant's prior disciplinary record "revealed a pattern of conduct by [the appellant] to disregard the agency's and her supervisor's expectations of her performance and conduct," the Merit Systems Protection Board upheld the appellant's removal on a current charge of overestimating the delivery time on her mail route. The Court of Appeals for the Federal Circuit, however, concluded that the Board had erred when it relied on the prior disciplinary record to reach its decision. In this regard, the court noted that, at the time the agency removed the appellant, "at least some" of the (three) prior disciplinary actions were being reviewed under a grievance process. The court commented that could be "no doubt" that a penalty determination cannot be supported by an earlier disciplinary action that has been reversed. With this in mind, the court held broadly that "as a matter of law, consideration may not be given to prior disciplinary actions that are the subject of ongoing proceedings challenging their merits." The court commented that to hold otherwise would "risk harming the legitimacy of the reasonable penalty analysis, by allowing the use of unreliable evidence (the ongoing prior disciplinary actions) to support an agency action." Thus, it remanded the case back to the Board for further consideration of a proper penalty. Believing that the court's decision is contrary to long-standing precedent of the Board and that it would have substantial negative impact on agencies' ability to take appropriate and timely disciplinary actions, the Office of Personnel Management and the Department of Justice petitioned the court for rehearing of the matter. This request was denied on July 13, 2000. Gregory v. Postal Service, Appeal No. 00-3123, (Fed. Cir., May 15, 2000). COMPENSATORY DAMAGESThe Equal Employment Opportunity Commission (EEOC) awarded one of its highest compensatory awards for non-pecuniary damages in this case involving a finding of disability discrimination. The EEOC administrative judge (AJ) found that the agency terminated the employee's appointment after the employee informed the agency that he was HIV-positive. The AJ recommended non-pecuniary damages in the amount of $185,000 and pecuniary damages in the amount of $792. The agency accepted the pecuniary damages award but only made a non-pecuniary award of $15,000. On review, the EEOC found that the complainant lost custody of his daughter, lost all of his possessions and was forced to live on the streets for two years as a result of the agency's discriminatory act. Therefore, the agency was obligated to pay non-pecuniary damages in the amount set by the AJ, $185,000. Mack v. West, Secretary of Veterans Affairs, EEOC Appeal No. 01983217, June 23, 2000.DISCRIMINATIONIn a case decided by the Supreme Court, the petitioner, Mr. Reeves, alleged that he was terminated from his supervisory position at Sanderson Plumbing Products because of age discrimination. He filed suit in district court and the case went before a jury. In accordance with McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973), Reeves first made a prima facie case of age discrimination and then the burden shifted to the employer to show a nondiscriminatory reason for the termination. The employer's testimony and documentation included reasons such as Reeves' shoddy record-keeping and the fact that he failed to discipline his employees who were absent and late. The burden then shifted back to Reeves and he was able to show that the employer's reasons were false. For example, he showed that he had no authority to discipline employees who were absent and late--this authority was held by his supervisor. The jury returned a verdict in Reeves' favor. Sanderson Plumbing then brought the case to the Court of Appeals for the Fifth Circuit who reversed, finding that Reeves had not introduced sufficient evidence for a rational jury to conclude that he had been discharged because of his age. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals as to whether a plaintiff's prima facie case of discrimination, as defined in McDonnell Douglas, combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination. It decided that in this case the Court of Appeals erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination and that the court erred in overturning the jury's verdict. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, (2000).EMPLOYEE/LABOR RELATIONS TRAININGThe Office of Personnel Management's 2000 Symposium on Employee and Labor Relations (SOELR) was held in Atlanta, Georgia on June 13-16, 2000, and was attended by 950 individuals from across the country and overseas. The conference offered ten different all-day pre-conference workshops and workshops throughout the conference on 47 different topics. Planning is now underway for SOELR 2001. OPM will announce the site and dates for the 2001 conference in November 2000. The latest information about the conference can be obtained by checking OPM's home page at www.opm.gov, emailing us, or calling us. about four months before the conference, OPM will mail out brochures and update the home page to include the conference brochure. This comprehensive conference is devoted to recent developments and emerging issues in employee relations, labor relations, dispute resolution, performance management, and partnership.The 15th annual Federal Dispute Resolution Conference (FDR) was held in Anaheim, California on August 20-24, 2000. This conference, oriented toward equal employment opportunity specialists, personnelists, and attorneys, was attended by more than 1,000 individuals. FDR XVI will be held in New Orleans, Louisiana. Brochures for the next conference are usually mailed out in the first part of the year in which the conference is held. The brochure, along with any other conference information, will be available on FDR's Internet website at http://www.fdr-conference.org/.
Created 27 February 2001 |