Arbitration Award for Air Reserve Technician (ART) Bargaining Unit Employees of NAIL Local 7

In National Association of Independent Labor (NAIL), Local 7 and U.S. Department of the Air Force, 4th Fighter Wing, Seymour Johnson Air Force Base, North Carolina, FMCS No. 16-51813 (August 11, 2016), the National Association of Independent Labor (NAIL), represented at arbitration by Bonney, Allenberg & O’Reilly, P.C., received an arbitration award that prevents the Air Force from requiring that Air Reserve Technicians (ARTs) wear their military uniforms while in civilian employment status.  The arbitration decision found the Air Force’s requirement that the ARTs wear their military uniforms while in civilian employment status to be contrary to 10 U.S.C. Section 772.  Arbitrator Ellen Saltzman wrote, in part, that the Agency was to “immediately cease and desist requiring ARTs to wear a military uniform while working in their civilian job.”  The full text of the arbitration award can be read by clicking on the following link: NAIL, Local 7 and U.S. Dep’t of Air Force, 4th Fighter Wing, SJAFB, FMCS No. 16-51813 (August 11, 2016).

If you are a federal government employee in need of legal representation and would like to discuss your situation with an attorney from our office, please call the law firm of Bonney, Allenberg & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.  CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE, AND CASE RESULTS FROM ONE CASE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE. 

Retaliatory Reassignments: Where an employee is involuntarily moved or reassigned because he or she engaged in protected EEO activity, the Agency’s action may be viewed as retaliation.

Many federal government employees who have engaged in the EEO process know all too well that EEO activity may be received negatively by their chain of command. Most federal government employees who engage in the EEO process are also aware that they have the right to file an EEO complaint based on retaliation in the event they feel their management has taken a materially adverse action against them because of their EEO activity. One form of retaliation may be an involuntary reassignment to a different position, schedule, or work location. When reassigning an employee who has engaged in protected EEO activity, managers will often use the rationale that they are reassigning the employee away from whatever co-worker or supervisor was named in the employee’s EEO complaint as a way of “protecting” that employee. In reality, these types of involuntary reassignments may be viewed as punitive in nature, especially where the employee who engaged in EEO activity is moved to a less desirable work location or given less desirable duties.

Even if an Agency claims that a reassignment of an employee is intended to protect the employee rather than retaliate against the employee for having filed an EEO complaint, the involuntarily reassigned employee may have a viable EEO complaint that the reassignment was actually based on retaliation for the employee’s protected EEO activity. In Moore v. Department of Education, EEOC Appeal No. 0120111258 (August 15, 2013), the Complainant was detailed to an undesirable work assignment after filing an EEO complaint alleging, in part, sexual harassment. The Complainant’s third-level supervisor stated that after being informed of the EEO complaint, the Complainant was reassigned to “protect her” in the event her allegations of sexual harassment proved to be true. The EEOC found that detailing Complainant was not appropriate corrective action for the sexual harassment she suffered, explaining “that a complainant should not be involuntarily transferred or otherwise burdened, because such measures could constitute unlawful retaliation.” The EEOC concluded that the Complainant’s transfer in that particular case “was due to retaliation for Complainant’s claims of sexual harassment.”

Similarly, in Abrigo v. Department of Homeland Security, EEOC Appeal No. 0120064230 (September 15, 2008) (which was cited in the Moore decision), the Agency changed the Complainant’s schedule “to protect” her while investigating her sexual harassment claims. Even though the EEOC affirmed a finding of no discrimination as to the sexual harassment claims, the EEOC found that the subsequent schedule change was retaliatory. The EEOC concluded that the Agency failed to articulate a legitimate nondiscriminatory rationale for the schedule change, holding “that the undisputed record supports the finding that the agency engaged in reprisal toward complainant on the basis of her prior protected EEO activity when it changed her schedule.”

If you feel you have been subjected to retaliation for engaging in protected EEO activity and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

A Suspension By Another Name Is Still A Suspension

Sometimes, federal agencies will place an employee out of work without pay against the will of the employee. This happens primarily in situations where the employee has been suspended from work for any host of reasons, usually involving some finding of misconduct by the employer. In the federal government, most civil service employees cannot be suspended unless and until they are provided with due process – namely, written notice of a proposed disciplinary action and an opportunity to respond orally and in writing to that proposed disciplinary action.

However, in some circumstances, the employing agency will effectively suspend an employee by placing him or her out of work without pay, but will not call the action a “suspension.” When an Agency makes an employee choose between using her paid leave or being carried in a Leave Without Pay (LWOP) or Absent Without Leave (AWOL) status, it is called “enforced leave.”

In Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987), the U.S. Court of Appeals for the Federal Circuit held that an agency placing an employee on enforced leave due to a medical condition constituted an appealable suspension of more than fourteen (14) days. More recently, in Abbott v. U.S. Postal Service, 121 MSPR 294 (2014), the Merit Systems Protection Board (MSPB) confirmed the longstanding ruling from Pittman that an agency’s placement of an employee on enforced leave for more than 14 days constitutes a suspension that can be appealed to the MSPB.

Even more recently, in Martin v. U.S. Postal Service, 2016 MSPB 6 (2016), the Postal Service placed an employee in a Leave Without Pay (LWOP) status without her consent for a retroactive period of time, which the MSPB found to be an appealable suspension action. Because the Agency had never given the employee notice of a proposed suspension and an opportunity to respond, the MSPB reversed the LWOP status entirely by finding that the Agency suspended the employee without due process.

In cases like Abbott and Martin, the employing agency did not necessarily refer to the employment actions it took against those employees as being “suspensions,” but the MSPB still found that the Agency had effectively suspended the employees, requiring the Agency to carry the same burden of proof and provide the same due process guarantees as are required in any other suspension of greater than 14 days. (Suspensions for 14 days or less are typically not appealable to the MSPB.)

If you have been involuntarily placed out of work without pay and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

EEO Investigations, Part 2 of 2: Think About the End Before You Amend When it Comes to EEO Complaints

Any time a federal government worker is thinking about filing an EEO complaint, some of the most significant considerations involve the potential relief or remedy you could receive if you are successful in your EEO complaint.  Two of the most important questions to ask yourself are: (1) What do I want to happen as a result of my EEO complaint? and (2) What relief am I likely to get if I succeed in my EEO complaint?  An attorney specializing in federal employment law can likely assist with the second question, but only you can answer the first question.  If you have already become involved in the EEO complaint process and are considering filing an amendment to your EEO complaint based on subsequent discrimination against you, it is important to once again consider these two questions.

When trapped in a difficult work environment, it may seem like second nature for a federal employee to pick up the phone and call the EEO office whenever a possible discriminatory act is taken against them.  Federal employees certainly have the right to file EEO complaints when they feel that have been subjected to unlawful discrimination, and the EEOC takes the prohibition against reprisal for engaging in EEO activity very seriously.  However, it is important to consider your ultimate potential relief for each issue prior to amending an existing EEO complaint.

Within the federal government, EEO contact must be made within 45 calendar days of the discriminatory action, even if you already have an ongoing EEO complaint as to a previous matter.  If you have previously initiated EEO contact based on discrimination, and a subsequent discriminatory action is taken against you, you have the right to seek to amend your EEO complaint to include the subsequent discriminatory action.

In some cases, the employee is left with virtually no choice but to amend his or her EEO complaint.  As an example: an employee files an EEO complaint based on a discriminatory performance appraisal, and, while her EEO complaint is being investigated, she is subsequently reassigned to undesirable duties outside of her position description. If the employee (the “complainant”) amends her EEO complaint to include the issue of being tasked with undesirable duties, she will be able to request to have the reassignment canceled or reversed as potential relief through a successful EEO complaint.  By amending her complaint during the investigation stage, the complainant typically implicitly agrees to extend the timeframe to have her EEO complaint investigated.  Normally, the Agency is allowed 180 days after the date of the Complainant’s formal complaint of discrimination to investigate the complaint (see Part 1 for a discussion of the 180-day investigation timeframe).  However, if a Complainant amends her complaint, the Agency is typically afforded an additional 180 days after the date of the amendment to complete its investigation.  Specifically, when an amendment is filed, the Agency is required to complete the investigation within the earlier of 180 days after the filing of the last amendment or not later than 360 days after the filing of the original formal complaint of discrimination.  Amendments can therefore lead to delays in the EEO process by allowing the Agency more time to investigate.

For some people and in some situations, being able to amend their EEO complaints to include a subsequent discriminatory action is worth the extended investigation period.  In the example of the complainant who was subjected to the undesirable reassignment, if she did not amend her EEO complaint, she would not have the right to seek a reversal of the reassignment as part of her relief through the EEO process.  However, in a case where the subsequent discriminatory actions are not as egregious, there may be limited additional relief that can be awarded, or no additional relief at all, if the EEO complaint is amended.  It is therefore important to think seriously about what your additional relief may be when deciding whether to amend your EEO complaint to include a new issue.  If your ultimate decision is to amend your EEO complaint based on a new discriminatory incident, make sure to file the amendment within 45 calendar days of that new discriminatory incident.

If you are engaged in EEO activity, are considering filing an EEO complaint, or are considering filing an amendment to an existing EEO complaint and would like to discuss your situation with an attorney, please call the law firm of Bonney, Allenberg, & O’Reilly, P.C. to set up an initial consultation with one of our attorneys.

EEO Investigations, Part 1 of 2: Keep the Agency Accountable for 180-day Investigations in EEO Cases

In EEO cases filed against federal government agencies, the EEOC allows for a 180-day investigation period starting from the date the complainant files his or her formal complaint of discrimination.  Specifically, the 180-day timeframe is set out in the EEOC’s Management Directive 110 (MD-110), which sets out policies, procedures, and guidance for federal sector discrimination complaints.  The MD-110 was recently revised, but still maintains the same 180-day timeframe in which to conduct the investigation into formal complaints of discrimination against federal agencies.

The MD-110 explains, “Agencies are responsible for conducting an appropriate investigation of complaints filed against them.”  This means that when a federal employee or applicant files a formal complaint of discrimination against a particular government agency, that agency is responsible for conducting and completing the investigation of the discrimination complaint.  Once the investigation has been completed, or once 180 days have passed since the complainant filed his or her formal discrimination complaint, the complainant then has the opportunity to request a hearing before an EEOC Administrative Judge.

The MD-110 obligates the responsible Agency to complete the investigation with 180 days of the formal complaint being filed.  The 180-day timeframe can be extended by up to 90 days if the complainant agrees to such an extension.  The 180-day timeframe can also be extended by up to an additional 180 days in the event the complainant files an amendment to his or her complaint during the investigation phase (see Part 2 for a discussion of EEO amendments).  If an Agency fails to meet its deadline to complete the investigation, once a hearing request is filed and an Administrative Judge is assigned to the case, the Judge can potentially order sanctions against the Agency for failing to timely complete the investigation.  Sanctions can range in severity, and in a number of cases, EEOC Administrative Judges and the EEOC itself have found the most severe form of sanction – a default judgment in the complainant’s favor – to be warranted against the Agency.

In an attempt to avoid potentially severe sanctions, agencies often will request that complainants agree to extend the investigative period.  While every case is different, in many circumstances, it does not benefit the complainant to agree to an extension.  When (1) the complainant does not agree to the investigation, (2) no amendment has been filed during the applicable time frame (see Part 2 for a discussion of EEO amendments), and (3) the Agency still does not complete the investigation within the allotted 180 days, the complainant may be able to make a motion for the EEOC Administrative Judge to impose sanctions against the Agency for the untimely investigation.

If you have questions about the federal sector EEO complaint process that you would like to address with one of our attorneys, please call the law firm of Bonney, Allenberg& O’Reilly, P.C., to schedule an initial consultation.

The Americans with Disabilities Act Turns 25

July 26, 2015 marked 25 years since the Americans with Disabilities Act (ADA) was signed into law.  The protections of the ADA apply to federal employees through the Rehabilitation Act of 1973, which was the model for the ADA.  The law prohibits employers from discriminating against qualified job applicants and employees based on their physical or mental disabilities.  Just as important, the law requires employers to provide reasonable accommodation to qualified individuals, so long as it will not result in an undue hardship to the employer.  Reasonable accommodations can come in many different forms, depending on the individual’s medical restrictions and job duties.

Disability issues in employment situations continue to be the source of an ever-changing area of law.  Passage of the ADA Amendments Act of 2008 (ADAAA) created a whole new world of opportunity for individuals facing challenges at work due to their medical conditions.  The ADAAA rejected a series of Supreme Court interpretations that had significantly restricted the protections of the ADA.  The ADAAA clarified and expanded the ADA’s definition of “disability” to widen the scope of coverage under both the ADA and the Rehabilitation Act.  Because of the broadened definition of “disability,” the ADAAA allows for protection of a wide variety of physical and mental medical conditions that would not have otherwise received coverage by the law.

If you are a federal employee or applicant for federal employment and believe that you have suffered mistreatment or been denied reasonable accommodation based on a disability, please contact the law firm of Bonney, Allenberg, & O’Reilly, P.C., at (757) 460-3477, to request an initial consultation.

MSPB Reverses Indefinite Suspensions Pending Review of Security Clearances

US-MeritSystemsProtectionBoard-Seal In a series of recent decisions, the Merit Systems Protection Board (MSPB) reversed the indefinite suspensions of federal government employees who had been suspended from their civil service jobs without pay pending decisions regarding the status of their security clearances.

The MSPB ordered the employing agencies to cancel the indefinite suspensions of the employees and pay corresponding back pay and benefits. Have you been affected by an indefinite suspension pending an outcome regarding the status of your security clearance? If so, contact the law firm of Bonney, Allenberg & O’Reilly regarding your specific needs at 757-460-3477.