Federal Employee Law Observer

Case Reviews and Telephone Consultations

mknjlaw — Tue, 27 Nov 2007 12:23:17 -0500

I charge a fee of $350 for case reviews or telephone consultations that may last up to two hours. The fee is payable in advance thru Paypal or by money order. Please send me an email if you want to consult with me by phone. (If you live in New Jersey, New York or Pennsylvania, you may want to meet with me in person). I will send you a Paypal invoice if that is the method of payment you chose. Upon receipt of notification of payment, I will contact you to schedule the consultation. Do not send any documents until you have paid the fee and we have spoken on the phone.

Please do not call or email me with brief or simple questions for which you expect answers for free. For although I enjoy what I do, I do it as a profession and not as a hobby. I would appreciate your understanding in that regard.

Mitchell Kastner

mknjlaw@patmedia.net

Restoration following recovery from compensable injury

mknjlaw — Tue, 27 Nov 2007 12:18:40 -0500

An employee who has recovered from a compensable injury is not entitled to be restored to his position unless he can show that he was separated as a result of the compensable injury. This article reviews in depth the different tests that the Federal Circuit Court of Appeals and the Merit Systems Protection Board use to determine if there is a sufficient connection between the employee's compensable injury and his separation.

FERS Disability Retirement: An Untenable Position

mknjlaw — Wed, 03 Oct 2007 19:18:57 -0400

This article discusses how an otherwise disabled applicant maybe disqualified from receiving a FERS disability retirement annuity unless he takes a few simple precautions before he files his application. Although the precautions are simple, the case law that discusses the grounds for disqualifcation is not simple. I review the case law in simple English.

Reinventing Yourself under the Privacy Act of 1974

mknjlaw — Fri, 22 Sep 2006 13:56:16 -0400

Want to move on, but you can't because of uncomplimentary stuff about you in your OPF or another folder in a "system of records" ? Read on about your rights under the Privacy Act of 1974.

Ka-Ching! How to Ring the Cash Register at EEOC

mknjlaw — Mon, 20 Feb 2006 19:03:46 -0500

Maximize your recovery of compensatory damages at EEOC for psychological trauma resulting from intentional discrimination.

Update: How to Survive and F-bomb Attack. Layode v. Nicholson

mknjlaw — Sat, 10 Sep 2005 16:23:41 -0400

Remember the article, "How to Survive a F-bomb Attack"? Did you think I made up all of the facts? You did? You were wrong. They were based not so loosely on the formal complaint in Layode v. Nicholson. I am attaching herewith the decision on that complaint issued on September 7, 2005 by EEOC Administrative Judge Francis Polito. It is not exactly the verbatim decision issued by Judge Polito. For some reason or another EEOC believes that its decisions are covered by the Privacy Act and therefore to the extent possible the names contained therein should not be disclosed. So I scanned in Judge Polito's decision to Omnipage Pro, converted the document to an MS Word doc, found the names and replaced them with an identifying label. As you are reading this decision, you might want to ask yourself these questions: Did Judge Polito find the Alleged Harasser guilty of harassing the Complainant because of her sex, creating a hostile sexual environment or both? If he found the Alleged Harasser guilty of only the former, to what extent if any is his decision vulnerable to attack on appeal if he did not find that the Alleged Harasser did not also abuse other similarly situated females? Did Judge Poltio find the harassment "severe or pervasive" or both? Can the agency be held liable if the admixture of sexual and non-sexual harassment constitutes pervasive harassment? What did Judge Polito find the agency did that it ought not have done to avoid vicarious liability? Did you think that Judge Polito's compensatory damage award was fair and reasonable? What might the Complainant adduced to increase her compensatory damage award. Did you notice that the agency did not even contest my attorney-fee application.They never do. Ever. Because my hourly rate is embarassingly low and because I keep track of my time well. Most importantly, whenever possible I make my clients do the leg and grunt work for me to reduce the bill.

Last position occupied: Amaral v. OPM---A FERS disability-retirement quiz

mknjlaw — Mon, 08 Aug 2005 11:05:02 -0400

I have posted the MSPB initial decision in Amaral v. OPM in which (so far) I successfully represented Rosemarie Amaral in her appeal of an OPM reconsideration decision denying her application for a FERS disability-retirement application. Because of its "unique" (Judge Kasich's word) facts, it is a wonderful teaching tool. Please read it very carefully---perhaps twice----and then take this quiz. If Ms. Amaral's data conversion operator position was abolished on March 12, 2004 from which position, if any, did the Postal Service remove her on March 12, 2004? (This of course beggars the question: must an employee at all times encumber a position? Is the answer different for a federal employee than for a Postal Service employee?) If OPM decides not to file a petition for review from Judge Kasich's decision, as a consequence of which Ms. Amaral's disability retirement application will be granted, to what date will her disability retirement be retroactive. If it is retroactive to March 13, 2004, the effective date of her removal, can she truthfully state that she was not fired from the Postal Service? In other words, does the disability retirement supersede the removal? (This of course has "clean paper" implications for those who were fired for misconduct and subsequently had a disability retirement approved retroactive to the effective date of removal.) Was the Postal Service required to run a RIF when it abolished all of the positions in its Fishkill REC Site. If so what rights if any would Ms. Amaral have had in the RIF? Does her veterans preference status make any difference in your answer? If Ms. Amaral were a federal employee and if she were RIF'd could the agency deny her assignment to a position because she was physically incapable of performing the duties of the position? Ms. Amaral's hearing was telephonic. If she had insisted on an in-person hearing, could the administrative judge have denied her request without getting reversed? If she prevails on her appeal, what is the likelihood that Ms. Amaral will recover attorney fees against OPM? Mitchell Kastner, Esq. http://fedemplaw.blogcollective.com/blog 95 Smith Road P.O. Box 5967 Somerset, NJ 08875-5967 (732) 873-9555 (630) 839-3398 Fax

Suing Your Supervisor

mknjlaw — Sun, 26 Jun 2005 19:50:57 -0400

Thinking about suing your supervisor? Read on: you will be disappointed. Click the paper clip icon and read the entire article.

Ruby and Me: An Employee's Guide to Administrative Investigations

mknjlaw — Mon, 09 May 2005 21:46:20 -0400

Ruby Weston was fired from her job with HUD because she followed the advice of her daughter the lawyer not to answer the questions put to her by HUD's office of Inspector General because the US attorney had not provided Ruby with a letter declining to prosecutor her. I was the administrative judge on Ruby's appeal of her removal to the Merit Systems Protection Board. I mitigated her removal to a 15 day suspension. But the board and the Federal Circuit Court of Appeals overruled me and reinstated Ruby's removal. To learn more on how to behave during an administrative investigation, click on the paper clip and read the entire article

Free of Charge: An Employee's Guide to Understanding Adverse Action Charges

mknjlaw — Tue, 12 Apr 2005 21:10:39 -0400

The Inadvertent Whistleblower: Part I

mknjlaw — Wed, 06 Apr 2005 20:01:51 -0400

What if you did not intend to blow the whistle but you did anyway? What coould you do if your boss retaliated against you? In this article, I discuss just how easy it is to blow the whistle, purposefully or otherwise.

Who is an "employee"?

mknjlaw — Wed, 09 Mar 2005 08:20:31 -0500

Under 5 USC section 7513(d), an "employee" can appeal an adverse action to the Merit Systems Protection Board. But just who ia an "employee" who can appeal? Just take this short quiz to test your knowledge. The answers are provided herein.

How to Practice Law without a License but with Impunity.

mknjlaw — Wed, 02 Feb 2005 18:11:43 -0500

I am convinced beyond peradventure that some infants exit their mothers� wombs with the compulsion to litigate, which, thereafter, they are powerless to resist. They are not at fault; they were born to litigate. This article explains how someone who suffers from this compulsion can satiate it without getting sued successfully. The key is knowing preemption doctrine.

Obey and Grieve. A Primer on Insubordination

mknjlaw — Fri, 21 Jan 2005 13:59:23 -0500

To receive the �fair day�s pay� to which you are entitled under the Fair Labor Standards Act, you must give to your employer in return a �fair day�s work.� And it is your employer�s sole prerogative to determine what work you must perform, when you must perform it by, and how you must perform it. The Court of Claims said it all in 1975: It is appropriate to observe at the outset that the prime duty and foremost obligation of any employee is to exert effort and energy in the accomplishment of assigned tasks. It is not too much to ask to require a person to function in the job he or she was hired to do. Those in the working force certainly have a legitimate interest in seeking to better their working conditions, and to that end an employee has a right to express his dissatisfactions to those in positions of higher authority. But he is assuredly not free to simply drop assigned work in order to protest management policies; nor is an employee permitted to devote all of his labor--at the expense of his normal duties--to convince superiors that his approach to management techniques is more enlightened than theirs. This court has admonished Government employees in the past that they may not refuse to do work merely because of disagreements with management, and that if they fail to perform their duties, they do so at the risk of being insubordinate.

Sick as a Dog. A Employee's Guide to Sick Leave

mknjlaw — Fri, 14 Jan 2005 13:21:06 -0500

In the midst of flu season, you might be asking yourself just how sick you need to be before your agency must grant you sick leave (provided you have any to use). Do you have to be �sick as a dog,� as the title of the article of this article implies? And if you do, what medical evidence must you give to the agency, upon your return to work, to prove that you had been that sick?

Osama's Message to Management: "Don't Get Angry. Get Even."

mknjlaw — Tue, 02 Nov 2004 15:50:48 -0500

Can retaliators bide their time to strike back? The courts don't think so. In a circumstantial evidence case of reprisal, the retaliation has to follow closely on the heels of the employee's protected activity. Osama bin Laden's admission that he attacked the World Trade Center in 2001 in retaliation for Israel's invasion of Lebanon 19 years earlier validates the advice, "Don't get angry. Get even." It also invalidates the "close temporal proximity" element of a prima facie case of reprisal based on circumstantial evidence.

What would you do if you received this threatening letter from your employer?

mknjlaw — Mon, 25 Oct 2004 22:12:32 -0400

You cannot expect your employer to keep you on the rolls indefintely while you receive workers' compensation benefits. Sooner rather than later, your employer will force you to make hard choices---as this employee found out. Read our subscribers' advice to this employee as well as our fearless author's responses to that advice.

Vindicating the rights of veterans preference eligibles in emergency placements under the ELM

mknjlaw — Sat, 16 Oct 2004 00:07:29 -0400

Veterans preference eligibles who complete more than one year of current and continuous service in the postal service are entitled to the process due to them under 5 U.S.C. section 7513 if they are suspended for more than 14 days under the ELM's emergency placement procedures. After reading this redacted memorandum of law which I sent to the Postal Service advocate in an arbitration I was handling, the Postal Service paid the grievant over $8K in backpay for suspending him for more than 14 days on emergency placement without giving him the process to which he was due. Because management and the union so thoroughly misunderstood the veteran's rights, I believe that this mal-practice is widespread. This redacted memo is only a stop-gap until I can publish a less legalistic newsletter.

The Use of Teletubbies to teach the concept of similarly situated employees in a disparate treatment discrimination claim

mknjlaw — Fri, 15 Oct 2004 23:45:52 -0400

Many employees with whom I consult about work-related problems have an imprecise understanding of illegal discrimination. Rightly or wrongly, they believe that mostly all of the inconveniences which befall them at work or elsewhere, including instances of inclement weather, were caused because of some form of discrimination. Their misunderstanding of discrimination, I concluded, was mainly linguistic in origin. �Discrimination� is a nominalization of the verb �discriminate� as harassment is a nominalization of the verb �harass� (properly pronounced like the name Harris). By burying the verb within the noun, the writer of �discrimination� hides from the reader the action conveyed by �discriminate.� Hence: �The agency discriminated against me because I am a White Anglo-Saxon Protestant male� better conveys to the reader what the agency did to the writer than �I was a victim of discrimination because I am �� So the first injunction I make to consultees is that, henceforth, they will never use �discrimination,� but will use �discriminate� instead. But consultees do not usually understand what �discriminate� denotes, because they don�t see the verb �contrast� lurking within �discriminate.� If they did, they would reflexively look to see how the agency is treating them in comparison with how the agency is treating their co-workers. They perceive only that the agency has treated them badly and then scurry off by themselves to an EEO Counselor to initiate an informal complaint. I try to improve their comprehension of discrimination by first exchanging the noun phrase �disparate treatment� for �discrimination� and then converting the nominalization �treatment� to its verb form, infra.

An Unreasonable Accommodation: The Letter Carrier's Chair

mknjlaw — Fri, 08 Oct 2004 23:37:40 -0400

The tale of the disabled letter carrier who could not persuade the postal service to buy him an ergonomic chair to accommodate his low-back injury and how the postal service got away with it.

The Devastation of an F-Bomb Attack: Verbal Sexual Harassment

mknjlaw — Fri, 08 Oct 2004 23:01:22 -0400

You would think that if your ex-boyfriend dropped the �F- bomb� on you four or five times one night at work while accusing you of being a female dog, he would be guilty of sexual harassment. Right? It depends.

Sybil Trelawney, Professor of Divination at Hogwarts School of Witchcraft and Wizardry, gives instructions on the use of the Orb to prognosticate the performance of the candidates on a best-qualified list

mknjlaw — Fri, 08 Oct 2004 22:20:46 -0400

Unlike Professor Trelawney the courts of this country and the Equal Employment Opportunity Commission don�t believe that selecting officials can peer into a crystal ball to divine the future performance of candidates on a best-qualified list. Mainly for this reason (I assert), the courts and the Commission have created the �clearly-better qualified� doctrine. Under this doctrine, in the pretext stage of a disparate treatment case, the unsuccessful candidate must prove by a preponderance of the evidence not merely that she was better qualified than the selectee, but also clearly better qualified. So much better qualified in fact that �disparities in curricula vitae are so apparent, as virtually to jump off the page and slap us in the face."

Surviving a PIP

mknjlaw — Fri, 08 Oct 2004 21:58:54 -0400

In the antediluvian epoch, before January 11, 1979, the effective date of the Civil Service Reform Act of 1978, federal agencies found it much harder to fire an employee whose performance was sub par. Whether they wanted to remove the employee for misconduct or poor performance, the agency had to prove its charges by a preponderance of the evidence, and had to establish that the removal was taken for such cause as would promote the efficiency of the service. Because of the incessant whining of federal managers who complained without good reason that it was impossible to remove poor-performing federal employees, Congress enacted 5 U.S.C.A. � 4303, which made it much easier to fire federal employees accused of unacceptable performance. Indeed, Peter Broida, Esq., the undisputed dean of federal employment law lawyers said, �A well-structured performance action is tough to beat.� Why are Chapter 43 actions so difficult to beat or, more accurately, so easy for the agency to win?

The Dangerous Intersection between Worker's Comp and Disability Retirement

mknjlaw — Fri, 08 Oct 2004 21:30:48 -0400

If you are receiving compensation under the Federal Employees Compensation Act for an on-the-job injury , you might reasonably ask why you should consider applying for a FERS or CSRS disability retirement annuity when you are receiving 75% of your monthly pay tax-free. (By contrast, FERS and CSRS retirement annuity payments are taxable. ) Because your agency will remove you for being physically unable to work ; then OWCP might dump you off its rolls after its second-opinion doctor finds you no longer disabled ; and by then it would be too late to file for a disability retirement because you would have been off your agency�s rolls for more than a year. So the femtosecond your agency even starts to menace you about being on comp for so long, you had better start preparing to apply for disability retirement as an alternative to workers� compensation since you cannot collect both at the same time.