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Introduction
Postal Employee Network is pleased to provide our postal members and visitors with our section FEDERAL LAW and You! All articles are authored by Mitchell Kastner, Esq., former Merit Systems Protection Board Administrative Judge. Please read Mr. Kastner's bio HERE
 
Observations
Each observation will start with a few lines written here and continue via a downloadable PDF file. If you do not have the Adobe Reader please use the link on your left to download a free copy.

Observations - Articles
PLEASE READ DISCLAIMER & COPYRIGHT NOTICE


- Layode v. Nicholson
- Amaral v. OPM: FERS Disability Retirement Quiz
- Suing Your Boss
- An Employee's Guide to Administrative Investigations
- Free of Charge: An Employee’s Guide to Understanding
- Adverse-Action Notices

- Is the Employee an "Employee"?
- How to Practice Law without a License but with Impunity.
  Federal Preemption of State-Law Malpractice Claims
- Obey Now and Grieve Later. A Primer on Insubordination
- Sick as a Dog. A User's Guide to Sick Leave
- Postal Employee Initial Denial of Disability Retirement
- Reprisal
- Unreasonable Accommodation
- Illegal Suspension
- Threatening Letter from Employer
- Intersection Between Workers’ Compensation and
- Disability Retirement

- Disparate Treatment
- Sexual Verbal Harassment


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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- This article pertains to postal employees.

Sick as a Dog. A User’s Guide to Sick Leave.
by Mitchell Kastner, Esq. - bio HERE

Postal Service employees don’t have a statutory or regulatory right to sick leave; their right to sick leave, unless granted in a collective-bargaining agreement, is spelled out in the ELM.

In the 1998 decision in House v. Postal Service, the Postal Service demoted Donald House from EAS-16 Supervisor to the position of Part-Time Flexible Distribution Clerk, PS-05 because (1) on November 9, 1996, he falsely reported that he worked ten hours, starting at 6:30 a.m., when he in fact did not arrive until about 8:20 a.m.; and (2) from November 14 through November 24,1996, he requested and was granted sick leave whilst he worked multiple shifts at a tavern.

On appeal to the Board's regional office, the administrative judge (AJ) found, following a hearing, that the agency had proven both specifications by preponderant evidence. He further found that House failed to establish that the agency committed harmful procedural error, and that the demotion penalty was within the bounds of reasonableness.

House petitioned MSPB to review the initial decision; MSPB denied the petition; but reopened the case on its own motion, reversed the initial decision, sustained the first specification only, and reduced the penalty from... click here (PDF) to read entire article.

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- This article pertains to postal employees.

Postal Employee Initial Denial of Disability Retirement

Steven O. Douglas (postal employee) vs. Office of Personnel Management
Mitchell Kastner, Esquire for the Appellant

On December 18, 2004 the appellant, a postal employee, filed a timely appeal from the November 24, 2004 reconsideration decision of the Office of Personnel Management (OPM) that denied his application for disability retirement.

from Mitchell Kastner, Esquire
In this appeal from an OPM reconsideration decision denying appellant's application for a disability retirement, I was able to convince OPM to rescind its reconsideration decision and to grant Mr. Douglas's application retroactive to his last day in a pay status. I point this out because my competitors irrationally insult OPM on their websites. I believe these lawyers do a disservice to their clients by off-putting OPM who after all adjudicates their client's applications for disability retirement at the first two steps. This is not to say that OPM does not make some egregious errors; they do. It is to say that it just makes no sense to lambast OPM in public or before the Board when you will have to submit other clients' applications for review. I have found that without exception that if you establish a personal relationship with the OPM reviewing official and make a concerted effort to find out what he or she is looking for, you will increase the likelihood of having a meritorious application approved.

I think it is also worth noting that I was able to represent Steve Douglas successfully although he lives in Minnesota and I have not met him face to face. In that regard, please note that MSPB field and regional offices conduct telephone hearings on appeals from OPM reconsideration decisions.
Mitchell Kastner, Esq.

Please CLICK HERE to read about this case. (a PDF file)

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- This article pertains to postal employees.

Osama’s Message to Management: Don’t Get Angry. Get Even.
Reprisal & Temporal Proximity

“I will tell you whom I would pay money to hear speak,” I said to myself as I bent down to scoop the poop. “I would pay to hear Osama bin Laden to teach a seminar to federal or postal service supervisors on how to successfully retaliate against employees who engaged in protected activity.”

It would make no sense for Congress to grant an employee a right only to have the employee reluctant to exercise the right for fear of management reprisal. To thaw the “chilling effect” of reprisal, Congress has created a separate cause of action for reprisal in all of its labor-relations statutes.1 For example, the anti-retaliation provision of Title VII of the Civil Right Act of 1964 provides...

To read the entire observation/article, or to download Click Here

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- This article pertains to postal employees.

The Letter Carrier & the Chair:
A Tale of an Unreasonable Accommodation

If you are not a letter carrier with the Postal Service, pretend you are one. (Much later, I will ask you to pretend that you are a Postal Service window clerk; and, in this story, you will be the better off for it.)

One day, while loading trays of mail into your delivery truck, you feel a sharp, stabbing pain in your back. But the pain subsides and you deliver your route. By the next morning, however, your back has stiffened up, and the pain is so severe---it is now also radiating down your back to your right leg----that you cannot get out of bed. You call your supervisor to report the yesterday’s injury and to advise her that you won’t be in. You ask her to send you OWCP Form CA-1. You go to your family physician who prescribes muscle relaxants, and advises you to stay out of work for a week. In the meanwhile, you have received the CA-1, filled it out, sent it back to your supervisor, who sends it to the post office’s district “comp” office, which forwards it on to OWCP. Now you must pretend really hard because we are going to assume that the post office does not dispute the claim, and admits that you sustained a compensable injury for which you are entitled to Continuation of Pay.

After a week in bed, you are still no better. Your family physician refers you to an orthopedist who orders an MRI. The MRI shows that you have ruptured your spinal disk between vertebras L5 and S1. You go to physical therapy for several weeks to strengthen your back, but it does not help. Epidural injections of a cortisone-line drug do...

To read the entire observation/article, or to download CLICK HERE


- This article applicable to postal employees.
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Illegal Suspension of Grievant

To: Postal Service Advocate
From:
Mitchell Kastner
CC:
Grievant & NPMHU Local President
Re:
Illegal Suspension of Grievant

By this memorandum, I am notifying you that I will file an appeal with the Merit Systems Protection Board from the agency’s decision to constructively suspend Grievant from November 1, 2003 through January 13, 2004 unless the agency agrees to pay $8267 less the usual payroll deductions.

As you are aware, on September 11, 2003, the agency placed Grievant on Emergency Placement without pay for allegedly threatening MDO [first-level supervisor]. Grievant has advised me that subsequently the agency paid him his base salary from September 11, 2003 through October 31, 2003, but, thereafter, he was continued on Emergency Placement without pay until January 13, 2004, the effective date of his removal. Grievant and I allege that the agency’s decision to continue Grievant on Emergency Placement without pay constituted a suspension for more than fourteen days which violated 5 U.S.C. § 7513, which provides in pertinent part as follows:

To read the entire observation/article, or to download CLICK HERE

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Mitchell Kastner, Esq. - bio HERE


- This article is applicable to Federal and Postal Employees.
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What would you do if you received this threatening
letter from your employer?

A review of your leave records indicates that you have been carried in a Leave Without Pay (LWOP) status since [month] 2003 due to [psychological condition]. The records indicate that you have used 1,400 hours of LWOP in 2003 and 1,520 in 2004.

In [month] 2003 you elected to receive pay and compensation from the Office of Workers' Compensation Programs (OWCP). At that time you elected to continue on LWOP and you remain to be held in that status.

While I am concerned about your health and well being, as the [supervisor's position], I must be concerned with the efficiency of work operations as well. If your return to work is not foreseeable in the near future, then your position of [name of position] needs to be filled with someone who is available to work.

The following is a list of options currently available to you to resolve this matter. If you decide not to pursue one of these options, then the [agency name] will be required to take appropriate action, including steps to remove you from your [name of position] position and the Federal Service.

Your options are as follows:

1. Return to your [name of position] position on a full-time basis. Your return to duty must be preceded with appropriate documentation, which establishes your fitness for duty.

2. Apply for disability retirement under the Office of Personnel Management (OPM) FERS regulations. The forms for filing an application for disability retirement and an estimated annuity computation can be requested from the [administration center].

3. Elect to resign with an option to apply for disability retirement, if eligible, within one (1) year from the effective date of your resignation, Should you resign and withdraw your retirement contributions from FERS, you forfeit your entitlement to an annuity.

To read the entire observation/article, or to download CLICK HERE


- This article applies to postal and federal employees.
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The millionaire retiree who safely traversed the
dangerous intersection between workers’ compensation
and disability retirement.

How much will OPM pay you if you retired on disability? Let’s run the numbers.

OPM will pay you the higher of two amounts: “(1) the first figure is the amount of your ‘earned annuity’ (your earned annuity is a percentage of your highest 3 years' average salary); (2) the second figure is the lower of the following two items: 40 percent of the highest 3 years' average salary or the earned annuity you would get if your length of service were extended to age 60.

Let’s assume that 40 percent of your “high-3 average” is greater than your earned annuity but less than your earned annuity would be if you worked until 60. If your high-3 average was $50,000 and you began to receive a CSRS disability annuity when you were 35, how much would you receive over your lifetime? If I assume that you are going to live another forty-eight years and that the COLA will average three percent over that time frame, the future value of your CSRS disability pension will be $2,088,167.92. That does not include the value of government’s contribution to the health insurance you will receive if you elect to remain in the Federal Employees Health Benefits Program.

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...

To read the entire observation/article, or to download CLICK HERE


- This article applies to postal and federal employees.
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Disparate-Treatment Law

The Problem: Explaining Disparate Treatment
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 …”

To read the entire observation/article, or to download Click Here


- This article applies to postal and federal employees.
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Sexual Verbal Harassment under Title VII

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.

Title VII of the Civil Rights Act of 1964i: Prohibitions against
Sexual Harassment

Title VII provides employees the "right to work in an environment free from discriminatory intimidation, ridicule, and insult.". And the environment can be hostile to you even if you are not the subject of the ridicule and insult. According to the EEOC Guidelines, sexual harassment consists of: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." (Emphasis added). Like cigarette smoke, an employee can be polluted by sexual harassment, not directed at her, but which still permeates her work environment. The D.C. Circuit held that "[e]ven a woman who was never herself the object of harassment might have a Title VII claim if she were forced to work in an atmosphere in which such harassment was pervasive." (Emphasis added).

That’s all well and good, but in my hypothetical, you are the victim of your exboyfriend’s vulgarity and profanity. Let me flesh out the details of this purely fictional incident.

To read the entire observation/article, or to download Click Here

More Articles Are On The Way!!
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Mitchell Kastner, Esq. Bio
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Mitchell Kastner served as an Administrative Judge with the United States Merit Systems Protection Board and its predecessor, the United States Civil Service Commission, for ten years. During the last three years of his tenure, he was the Deputy Regional Director of the Board's New York Regional Office. As an Administrative Judge, he conducted hearings and wrote decisions on all of the appeals over which the Board's Regional Offices had jurisdiction, including adverse actions (removals, demotions, and suspensions for more than 14-days); reductions in force; denials of within-grade salary increases; disability retirement reconsideration decisions; legal retirement reconsideration decisions; performance-based removals or reductions in grade; OPM suitability determinations; denials of restoration of reemployment rights, and certain terminations of probationary employees. As an EEO Hearing Officer with the Civil Service Commission, he conducted hearings and wrote recommended decisions on all complaints of discrimination over which the Commission had jurisdiction. This function is now performed by Administrative Judges with the Equal Employment Opportunity Commission.

Since returning to private practice in 1985, he has represented employees before the Board on all of these types of appeals and several others which were added after he left.. He has also represented federal employees and postal workers before EEOC and in federal court on claims under all of the federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act. With the exception of the National Rural Letter Carriers Association, he has represented bargaining unit members of every major postal service worker union in arbitrations. He has provided training for both APWU and NPMHU.

Mitchell Kastner, Esq.
95 Smith Road
P.O. Box 5967
Somerset, NJ 08875-5967
E-Mail: mknjlaw@patmedia.net
(732) 873-9555
(630) 839-3398 Fax

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DISCLAIMER and COPYRIGHT NOTICES

Disclaimer

Mr. Kastner's articles do not convey legal advice of any kind. Before you take any action that may effect your legal rights, you should consult with an attorney. Sending Mr. Kastner an email or telephoning him does not create a lawyer-client relationship between you and Mr. Kastner nor will any communication between you and him be considered as confidential in the absence of a pre-existing express agreement by Mr. Kastner to the contrary.

The opinions expressed in the articles are Mr. Kastner's alone and may not reflect the Postal Employees Network.

Copyright Notice

All copyrightable text are © Mitchell Kastner. All rights reserved. You may reproduce Mr. Kastner's articles for your own personal use and for non-commercial distribution - Postal Employee Network retains permission for webpage and Internet reproduction of all Kastner material contained herein - DO NOT REPOST without permission from Postal Employee Network and M. Kastner. All copies must include this copyright statement.

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