CASE LAW UPDATE
A REVIEW OF SIGNIFICANT SUPREME
COURT, FLRA, MSBP, EEOC AND
ARBITRATION DECISIONS IN 2009.
Title VII: Ricci et al. v. DeStefano et al.
Perceived tension between disparate treatment and
disparate impact theories.
Must be a “strong basis in evidence” to believe
challenged test/practice is illegal before invalidating
results.
A test should be validated for job-relatedness,
business necessity, and potential disparate impact
before using it.
Bargaining Unit Status: USDA, Forest Service and NFFE
Section 7112(b)(3) excludes employees engaged in
personnel work in other than "a purely clerical
capacity."
Employees exercising independent judgment and
discretion in initiating or recommending personnel
actions fall under (b)(3).
Being a “subject matter expert” alone doesn’t qualify
for (b)(3) exclusion.
Grievance/ULP Procedures; Conditions of Employment:
Davis-Monthan AFB and AFGE
Section 7116(d): “issues” can be raised in the
grievance or ULP procedures, but not both.
“Issue” means the same set of factual circumstances
and a substantially similar legal theory.
“Conditions of employment” and “working
conditions” are synonymous for purposes of
agencies’ bargaining obligations.
“Covered By” Doctrine: National Treasury Employees Union
and U.S. Customs Service
Agencies avoid bargaining over mid-term topics
“covered by” existing contract terms.
“Covered By”: expressly addressed in the agreement
or inseparably bound up with a subject
Agencies must bargain over proposals obligating
them to bargain mid-term over all matters not
expressly addressed in a current agreement.
Unilateral Changes in Working Conditions During Impasse –
SEC v. FLRA
A change may be implement before bargaining if it is
necessary for an agency’s functioning.
The FLRA, not an agencies, get deference from
courts in deciding if this condition is met.
Back pay is an appropriate remedy if the lost raise
was likely to have been received, although not
guaranteed.
Higher-Graded Duties: IRS, SB/SE and NTEU Chapter 78
Temporary promotions for performing HGDs are
generally limited to 120 days or less because of
competition requirements.
HGDs peformed for multiple years can be remedied
by a series of 120 promotions.
Focus on duties already classified at higher level in
an existing position description.
Administrative Leave : Chapter 92 and Internal Revenue
Service
Emergency conditions may make it “unreasonable”
to attempt to get to work.
Generally, “reasonable efforts” must be documented.
Chapters should be prepared to assist employees
with documentation.
Gather as much evidence of the travel obstacles as
possible.
Associating With Criminals; Untimely Discipline: CBP and
NTEU Chapter 164
In “improper association” cases, focus on what was
known at the time of the association.
No “harm” is needed to overturn discipline as
untimely.
Unilateral Changes in Working Conditions; Leave Scheduling:
CBP Eagle Pass and NTEU Chapter 178
Agencies must honor agreements between
predecessor employers and unions representing
agency employees.
Before changing working conditions established
under those agreements, agencies must provide the
current exclusive representative notice and an
opportunity to bargain the change.
Disability Discrimination; Reprisal: IRS and NTEU Chapter 72
Discriminatory conduct + retaliation = $$$$ for
victim/employee.
When considering “make whole” relief, don’t
overlook lost work time and overtime caused by the
challenged conduct, as well as lost overtime
opportunities.
Indefinite Suspensions – OPM Rescinds Proposed Indefinite
Suspension Regulations
The regulations would have:
Greatly expanded the grounds for imposing
indefinite suspensions;
Required agencies to only prove the fact of an
accusation of serious misconduct to justify an
indefinite suspension.
OPM has rescinded the proposed regulation following
NTEU opposition.
Adverse Actions -- Stella Crumpler v. Department of Defense,
Egan --decisions to security clearances are
unreviewable.
Revocation means job loss.
Crumpler – Egan reasoning extended to non-critical
sensitive positions decisions.
Crumpler II - new MSPB majority revisits decision
because of potential widespread impact.
Adverse Actions – Mitigation: Ryan C. Spencer v. United States
Postal Service
An agency cannot impose a harsher penalty than a
proposed penalty.
The MSBP or an arbitrator cannot impose a harsher
penalty on appeal than was imposed by the agency.
Is a permanent demotion less severe than a thirty
day suspension?
Adverse Actions – False Statements - Laura R. Boltz v. Social
Security Administration
Look past the label to the substance of the allegation
to determine what an agency must prove to sustain
the charge.
False statements charges require proof of specific
intent: knowingly making a false statement with the
intent to deceive.
Retaliation -- Security Clearance Revocations: Fonda-Wall v.
Holder, Attorney General, Department of Justice
Decision to revoke a security clearance is
unreviewable, but the motive can be examined.
If the motive is unlawful retaliation for protected
EEO activity, the agency cannot be ordered to restore
the clearance, but the victim can be compensated for
damages.
Compensatory damages can be pecuniary (economic
or monetary) or non-pecuniary.
Disability Discrimination – Disparate Treatment: Katz v.
Clinton, Secretary, U.S. Department of State
Agencies may not discriminate against disabled
individuals or individuals “regarded as” disabled.
Agencies must conduct “individualized assessments”
of employees’ abilities, not rely on assumptions.
Retaliation for Protected EEO Activity: Griffin v.
Napolitano, Secretary, Department of Homeland Security
Test: Whether alleged retaliatory act is reasonably
likely to deter an individual from engaging in
protected activity.
Medical information provided in connection with a
reasonable accommodation request or in pursuit of
an EEO complaint must be kept strictly confidential.
Threatened Retaliation for Protected Activity: Vincent v.
Potter, Postmaster General
Retaliation claims generally require proof of:
Knowledge of the complainant’s activity.
Intent to retaliate.
Threats of retaliation are a per se violation.
Threats of retaliation are always considered
reasonably likely to deter protected activity.
EEO Damages: Bartolomeo v. Napolitano, Secretary,
Department of Homeland Security, Agency
Compensatory damages for unlawful discrimination
may be pecuniary and non-pecuniary.
Pecuniary damages are out-of-pocket and economic
losses caused by the discrimination.
Pecuniary damages cannot be speculative.