The Wick Law Office is the representative for a class certified against the Department of Veterans Affairs. If you are a current or former VA employee of the Eastern Colorado Healthcare System, you may have received notice about the class action. If you have questions or would like additional information, please contact us at: Amelia@wick-law.com or 720-636-3969.
Supreme Court Establishes Burdens of Proof for Federal-Sector Age Discrimination Claims
On April 6, 2020, the Supreme Court issued its decision in Babb v. Wilkie, Secretary of Veterans Affairs, which addresses the burdens of proof and available remedies for federal government applicants and employees that allege an agency subjected them to age discrimination. The Court ruled that to prevail on a claim of age discrimination, an applicant or employee does not need to show that his or her age is a “but-for” cause for the agency taking the action at issue. Rather, a federal applicant or employee need only show that his or her age was an adverse consideration in the agency’s decision-making process. However, to obtain anything other than injunctive or forward-facing relief, such as reinstatement to a position or compensatory damages, the federal applicant or employee does need to show that his or her age was the but-for cause for the agency’s discriminatory decision.
If you are a federal government applicant or employee who believes you have been subjected to discrimination, The Wick Law Office can help.
Sexual Harassment Claims Frequently Brought Against The Federal Government
The United States Commission on Civil Rights recently released information regarding the number of sexual harassment complaints filed by federal government employees between 2015 and 2018. Overall, federal government employees, more than 4 out of 5 of whom were woman, filed sexual harassment complaints with their respective federal agencies at a rate of 1.5 complaints per day. For more information regarding the Commission’s findings, see https://www.courthousenews.com/sex-harassment-claims-pile-up-for-uncle-sam-1-5-a-day/.
If you are a federal government employee who has been subjected to sexual harassment or other discriminatory behavior, The Wick Law Office is here to assist you.
Court Determines That The MSPB Can Review The VA’s Choice Of Penalty Against Its Employees.
Recently, the Federal Circuit Court of Appeals released an important decision for employees of the Department of Veterans Affairs who may find themselves the subject of disciplinary action. In 2017, Congress made effective the Department of Veterans Affairs Accountability and Whistleblower Protection Act, which made it easier for the VA to terminate its employees and also made more difficult employees’ ability to challenge their terminations with the Merit Systems Protection Board (MSPB). In Sayers v. Department of Veterans Affairs, the VA terminated Dr. Sayers from his position in 2017 for conduct that occurred in 2016. He challenged his termination with the MSPB. The MSPB applied the standards in the Department of Veterans Affairs Accountability and Whistleblower Protection Act when deciding to uphold Dr. Sayers’s removal from the VA. The Federal Circuit ruled that the MSPB could not rely on the Department of Veterans Affairs Accountability and Whistleblower Protection Act in deciding whether the VA properly removed Dr. Sayers because the conduct for which Dr. Sayers was removed occurred prior to the enactment of the Act and the Act cannot be applied retroactively. Importantly, the Court also made clear that the MSPB is not bound by the VA’s choice of penalty and can instead choose to impose a lesser penalty. As the Court explained, “When correctly interpreted, § 714 [of the Act] requires the Board to review whether the Secretary had substantial evidence for his decision that an employee’s actions warranted the adverse action. The Board cannot meaningfully review that decision if it blinds itself to the VA’s choice of action. Deciding that an employee stole a paper clip is not the same as deciding that the theft of a paper clip warranted the employee’s removal.” A full copy of the Court’s decision is available here: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-2195.Opinion.3-31-2020_1560799.pdf
If you are a federal government employee who has been proposed for discipline or already disciplined, The Wick Law Office can help.
The Wick Law Office is open-remotely!
We will continue to be open and working remotely until further notice. If you have questions about employment law, particularly relating to federal, state, or city employees, feel free to contact us.
THE EEOC DETERMINES THAT FLEXIBLE SITUATIONAL TELEWORK CAN BE A REASONABLE ACCOMMODATION FOR FEDERAL EMPLOYEES
In the recent case of Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (January 22, 2020), the EEOC found the Agency failed to accommodate a federal employee when it denied her request for flexible situational telework. The employee, who was an individual with a disability because of her Diabetes and Autonomic Neuropathy, requested flexible situational telework. Specifically, she “needed to be able to determine each morning if it was ‘appropriate to go into work or work from home depending upon [her] symptoms’” and “to decide if she was too ill to drive into the office to work on a particular day when she was experiencing symptoms.” Although the Agency claimed the reasonable accommodation would pose an undue hardship, the EEOC found that core duties of the position could be performed remotely. In finding discrimination, the EEOC reminded the “Agency that the federal government is charged with the goal of being a ‘model employer’ of individuals with disabilities, which may require it to consider innovation, fresh approaches, and technology as effective methods of providing reasonable accommodations.”
If you have questions about this case or your employment situation, please contact the Wick Law Office at 720-999-5390 or ben@wick-law.com.
THE EEOC INCREASES COMPENSATORY DAMAGES AWARD FOR UNITED STATES POSTAL SERVICE EMPLOYEE
In a recent decision from the EEOC’s Office of Federal Operations, the EEOC increased an employee’s award of non-pecuniary, compensatory damages from $10,000 to $85,000. Scott K. v. U.S. Postal Service, EEOC Appeal No. 0120182127 (February 20, 2020). The EEOC found that $10,000 was insufficient to compensate the federal employee for the agency’s failure to provide a reasonable accommodation for his disability. As a result of the discrimination, the employee was diagnosed with Major Depressive Disorder. Although he did not submit medical evidence, he did provide detailed statements explaining the extent of the other impacts of the discrimination, including his “mental anguish, headaches, stomach aches, mood changes, crying episodes, aggressiveness, irritability, insomnia, tension, depression, emotional distress, and anxiety.” As a result, the EEOC determined the appropriate award of damages for emotional and physical harm was $85,000.
If you have questions about this decision, or available compensatory damages in your case, feel free to contact The Wick Law Office at 720-999-5390 or ben@wick-law.com
Available Damages and Recovery in Age Discrimination Cases
The damages for victims of age discrimination in the workplace differ from the damages available to employees who have been subjected to discrimination based on race, national origin, sex, color, religion, disability, or retaliation. Our latest article addresses the recovery available to private and public employees who have been subjected to age discrimination.
Benjamin E. Wick will be presenting at a seminar with the Colorado Trial Lawyers Association
We hope you will join us for the upcoming Employment Law Seminar with the Colorado Trial Lawyers Association on May 31, 2019. Benjamin E. Wick will be presenting on Representing Government Employees.
To register or learn more information about the seminar, please go to:
https://www.ctlanet.org/index.cfm?pg=events&evAction=showDetail&eid=69316
FMCS and EEOC Sign Memorandum of Agreement for Federal Sector Discrimination Cases
As discussed in the article below, federal employees now have access to mediators from the Federal Mediation and Conciliation Services (FMCS). The Equal Employment Opportunity Commission (EEOC) will be working to identify federal sector EEO (discrimination, harassment, or retaliation) cases that would be good candidates for resolution. Those cases will be referred to FMCS for mediation.
This is good news for federal employees. Hopefully, it will help to resolve some of the backlogged cases before the EEOC and reduce the time period for a judge to be assigned to cases that cannot be resolved through mediation.
Protections From Discrimination For Employees In Colorado
As is the situation in many states, Colorado has state laws that prohibit discrimination. This means that employees in Colorado may be protected by federal law from discrimination in the workplace and have additional protection under state law. An overview of those protections can be found in our latest article:
MSPB Loses Only Remaining Board Member
The Merit Systems Protection Board (MSPB) presently has no Board members. The lack of Board members does not impact the processing of MSPB cases for federal employees before Administrative Judges. However, it does delay the processing of appeals of MSPB Administrative Judge’s decisions, which are known as petitions for review. Our new article includes a discussion on this issue.
MSPB Loses Only Remaining Board Member Amid Massive Backlog Of Cases
The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA) provides important protections for employees using leave in various situations, including for a serious health condition or to care for a newborn child. Not only is it unlawful to deny FMLA leave, when an employee meets the requirements for such leave, but it is also unlawful to interfere with the use of FMLA leave or to retaliate against an employee for taking FMLA leave. Find out more information about FMLA leave in our new article.
Employee Rights And Protections Under The Family And Medical Leave Act
Alternative Dispute Resolution: Overcoming Impasse
Alternative dispute resolution (ADR) can be an effective means of resolving employment related disputes, including federal and private sector discrimination, harassment, and retaliation cases. Have you ever wondered how to overcome an impasse in a mediation or other ADR process? Our article from the Colorado Lawyer is still timely and relevant for anyone participating in ADR.
Protections for Private Employees who are Veterans: The Uniformed Services Employment and Reemployment Rights Act of 1994
We previously posted information about employment protections for federal sector employees who are veterans. In order to provide similar information for employees working for private employers, our latest guidance addresses USERRA Claims For Private Sector Employees. As always, should you have questions or wish to discuss your claims, contact us at 720.999.5390 or ben@wick-law.com
Employment Protections For Veterans Who Are Federal Employees
If you are a currently enlisted service member, including a reservist, or a veteran, and employed by the federal government, there are additional rights that can protect you from unlawful actions in the workplace. One of the laws that specifically protects currently enlisted service members and veterans is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Our guidance on USERRA claims is at the link below. The Wick Law Office is proud to represent veterans in USERRA claims and other employment matters. If you have questions or would like to discuss your situation, please contact us.
Colorado Unemployment Standards
In light of the ongoing federal government shutdown impacting furloughed federal employees, and the latest statement about their eligibility for state unemployment benefits, we are re-posting our Employee Guide to Unemployment Insurance in Colorado.
If you have questions about unemployment or any other employment related matters, feel free to contact us at 720.999.5390 or ben@wick-law.com.
Fact Sheet For City And County Employees In Colorado
Many employees of cities and counties in Colorado have additional rights relating to employment matters that differ from the rights of private-sector employees. For example, certain city and county employees in Colorado can challenge disciplinary actions and raise allegations of discrimination through internal administrative processes. In addition, claims of discrimination can be filed through the CCRD or EEOC, as is the case with private-sector employees. Our Fact Sheet for City and County Employees in Colorado has additional information.
Colorado State Employee Rights and the State Personnel Board
Employees of the State of Colorado in classified positions, who are certified, have the right to challenge personnel actions to the Colorado State Personnel Board. The ability to challenge such actions differs from the rights of at-will employees in the private sector. There are certain factors in determining who can appeal to the State Personnel Board and what actions can be appealed. Our new fact sheet includes useful information for state employees about the State Personnel Board, raising claims of discrimination, and the Colorado Governmental Immunity Act. Please contact us if you have any questions or need additional information.
Federal Government Shutdown: How can a Federal Employee Challenge a Furlough?
The partial shutdown of the federal government has had a major impact on federal employees who have been furloughed. As a furloughed federal employee, do you have any options for challenging a furlough? Read our guidance on federal employee furloughs and find out.