The MSPB Finally Has A Quorum

For the first time since 2017, the Merit Systems Protection Board (MSPB) has a quorum. The MSPB is the Board that serves as an appellate court issuing precedential and non-precedential decisions when reviewing initial decisions of MSPB administrative judges. When all seats are occupied, the Board has three sitting members. Although only two of the three seats presently are filled, having two members allows for the quorum needed to issue decisions.  

 

Because there was no quorum between 2017 and 2022, there is a backlog of approximately 3,600 appeals awaiting a decision from the MSPB. In addition to any new cases filed with the MSPB, the two members of the Board will have to issue decisions on the backlogged cases. Although this will be a time consuming process, it is long overdue.

 

If you have questions about the MSPB, or other employment rights of federal employees or applicants, please contact Ben Wick at ben@wick-law.com or 720-999-5390.

 

COVID 19 “Long-haulers” May be Entitled to ADA and Rehabilitation Act Protections

The Department of Justice (DOJ) and the Department of Health and Human Service (DHHS) have released guidance addressing protections under the Americans with Disabilities Act (ADA) and the Rehabilitation Act for COVID-19 “long-haulers.” Symptoms of “long-COVID” can range from joint pain to neurological damage and may persist for months after the initial onset of symptoms. In short, “long-COVID” may be a protected disability under the ADA or Rehabilitation Act if the associated physical or mental impairment substantially limits one or more major life activities or major bodily functions. Each situation is different and should be analyzed based on the individual. However, the guidance provided by DOJ and DHHS clarifies that COVID “long-haulers” may be entitled to reasonable accommodations in the workplace and other legal protections pursuant to the ADA and Rehabilitation Act. The guidance can be found at:

https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html

If you have questions about the protections for individuals with disabilities pursuant to the ADA or Rehabilitation Act, please contact the Wick Law Office at 720-999-5390 or ben@wick-law.com.

Federal Employees: Additional Whistleblower Protections Proposed

The House recently proposed additional protections for federal whistleblowers, including broadening the scope of covered employees. The proposal contains clarifications for prohibitions on retaliation and for the definition of retaliation. The bill also includes provisions designed at speeding the processing of whistleblower complaints and ensuring full relief for employees, including that the prevailing employee would be entitled to attorneys’ fees. More information can be found at:

https://www.fedweek.com/fedweek/broadened-whistleblower-protections-proposed/

For questions about whistleblower retaliation or the Whistleblower Protection Enhancement Act of 2012, please contact the Wick Law Office at 720-999-5390 or ben@wick-law.com

The Wick Law Office Wins Important Victory Against the United States Postal Service

The Wick Law Office recently obtained an import victory in a discrimination case against the United States Postal Service for an federal employee whose case began in 2014. The Postal Service failed to accommodate our client for a period of approximately 18 months and intentionally violated her medical restrictions. USPS also subjected her to retaliation and harassment, including when it referred her for investigation to the Office of Inspector General (OIG), delayed the processing a request for Family and Medical Leave Act (FMLA) leave, delayed her claim for workers’ compensation benefits, and paid her incorrectly. Throughout the time period when the discrimination was occurring, her supervisor made demeaning and derogatory comments about her medical conditions and her need for reasonable accommodations. Based on the evidence and testimony at hearing, an EEOC Administrative Judge issued a decision fully in favor of our client and ordered the Agency to pay a substantial monetary award to our client for her lost wages, damages, and attorneys’ fees. This victory should serve to send a message to USPS that discrimination and retaliation, particularly against individuals with disabilities, will not be tolerated by the Equal Employment Opportunity Commission.

If you are the victim of discrimination, please contact us at 720-999-5390 or https://www.wick-law.com. An award in the case is not an indication of future results or an outcome of any other case. 

VA Class Action

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 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

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.


https://www.fmcs.gov/fmcs-and-eeoc-sign-memorandum-of-agreement-shares-commitment-to-actively-resolve-federal-workplace-disputes/

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

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.

Federal Employee USERRA Claims