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Layode v. Nicholson
This article pertains to postal
employees.
Hi,
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 (PDF).
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 embarrassingly 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. "? 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
.Read
Here (PDF)
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
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Amaral v.
OPM: FERS Disability Retirement Quiz
Dear Reader:
Enclosed herewith please find the MSPB initial
decision in
Amaral v. OPM (PDF file) 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?
Read this Article -
Click Here (PDF)
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
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Suing Your Boss:
Westfall is Your Downfall
I am in the midst of the greatest crisis
of self-confidence I have had in my entire professional
life. I, a former MSPB Administrative Judge and federal
personnel lawyer extraordinaire, am being put to shame
by a hobbyist. That’s right, I cannot compete with a
federal employee, who represents co-workers before EEOC,
and never loses. Not only was he never an EEO Hearings
Officer, as I was with the Civil Service Commission, but
he isn’t even a lawyer. Let me explain:
Subscribers to this newsletter may
recall that a few emails back, I quoted from a portion
of the transcript of the deposition of a VA EEO Manager
who, for the life of him, could not figure out why being
called a“bitch” might be offensive to a woman. I
received many emails in response, one of which was from
a current employee of the Interstate Commerce Commission
(I am using the long defunct ICC to protect the identity
of the employee). I thought this employee was an
attorney specializing in representing federal employees.
His email reads in pertinent part as follows:
click here (PDF)
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Ruby and Me
An Employee's Guide to Administrative
Investigations
I met Ruby Weston when she appeared
before me at the hearing on the appeal of her removal
from the Department of Housing and Urban Development to
the Merit Systems Protection Board in New York City,
where I served as an Administrative Judge.
Ms. Weston testified that she was first
employed with HUD as a realty specialist in its New York
Area Office and was then reassigned to its Newark Area
Office to serve as an equal opportunity specialist.
Thereafter, HUD received information which suggested
that her son was the actual buyer of real property on
Pilling Street in Brooklyn, New York, sold by HUD when
she was serving as a realty specialist for that property
and, further, that she saved document received and
endorsed a check from an insurance company in settlement
of a claim for fire damage to the property. Richard J.
Scott of the Office of the Inspector General of HUD
began a criminal investigation into this possible
conflict of interest by interviewing Ms. Weston on
January 23, 1979. He informed her of the pending
investigation and her rights under the law, including
the right to remain silent and to have the advice of an
attorney. Although not stated in either the MSPB or
Federal Circuit Court of Appeal decisions, Ms. Weston
answered Mr. Scott's questions, although she declined to
sign a statement setting forth the matters discussed.
Thereafter, Scott's efforts to continue
the interview with or without her...
To Read This Article
CLICK HERE (a PDF file)
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Free of Charge
An Employee’s Guide to Understanding
Adverse-Action Notices
Ken Ward, President of the North Central
Council, National Joint Council of Food Inspection
Locals, AFGE, asked me to train union officials on the
charge of “Conduct Unbecoming at their convention on
April 16, 2005. Preparing for this training caused me to
question again why an agency bothers labeling the
misconduct which it is charging the employee with. As
far as I know, an agency can skip the label and simply
narrate the acts of misconduct in a notice proposing an
adverse action.
Let’s see if a law, regulation, or rule
requires an agency to put a label on the misconduct. To
Read This Article
CLICK HERE (a PDF file)
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Is the Employee an “Employee”?
A Simple Quiz for Representatives
If you represent federal employees or
postal workers, then you surely know who is entitled to
appeal or grieve disciplinary actions. Right? Then you
should have no problem scoring 100% on this simple
“yes-no” quiz. Just answer the seven questions and email
or fax the quiz back to me. I will score your quiz and
email it back to you. In about a week or so, I will post
the answers on my blog and in a follow-up email
newsletter.
To Read This Article
CLICK
HERE (a PDF file)
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- This article pertains to postal employees.
How to Practice Law
without a License but with Impunity
Federal Preemption of State-Law Malpractice Claims
by
Mitchell Kastner, Esq. - bio
HERE
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. A case in point:
I knew a postmaster of a small post
office, who not only had several of his own cases
against the Postal Service going on at most times, but
also stirred up other postal workers to file all manner
of complaints against the Postal Service. Let’s call
this postmaster “Perry Mason," the famous, fictional TV
trial lawyer. Before he and I nearly came to blows
outside of the Brick, NJ Post Office (I think), Perry
would refer cases to me for which I was eternally
grateful. Perry referred to me an MSPB case involving
the removal of a supervisor. He insisted on being
co-counsel with me on the case. After I finished
deposing a few witnesses, to my surprise, Perry
announced that he would also question the witnesses.
Perry asked some questions and the Postal Service
representative objected to the questions for being
off-the-wall. I adjourned the deposition for a moment
and Perry, the client, and I stepped outside of the post
office at which the deposition was being taken. Perry
and I got into a nasty fight about the relevancy of his
questions and finally I told my client that he had to
choose between Perry and me. The client wisely chose me,
and we had a successful outcome to the case. As I now
fantasize about the fight between Perry and me, I tell
Perry, “Graduate from college; graduate from law school;
pass the bar; and then you can practice law.” Whether I
said this to Perry or not, one thing is for sure: Perry
never referred me another case. After filing several
more cases against the Postal Service, Perry quit,
retired or was fired.
The compulsion to play lawyer infects
craft employees, too. One letter carrier who subscribes
to this newsletter stated in an email to me that the law
was his “hobby.” I was tempted to write back to him
that..
Read this article
Click Here
a PDF file
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- This article pertains to postal employees.
OBEY NOW AND GRIEVE LATER. A PRIMER ON INSUBORDINATION
by
Mitchell Kastner, Esq. - bio
HERE
Obey now and grieve later. A principle
to live by.
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. [Internal citations omitted.]
Read this article
Click Here
a PDF file
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