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LEGAL BRIEFS of Postal Employee Cases

(EEOC, MSPB, Appeals, District Courts)

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EEOC Cases

MSPB

District Courts, Other

Improper Disclosure of Medical Info

FMLA CLASS ACTION:

USPS Return-to-Duty Policy

Qualified Individual with a Disability

Denial of  Reasonable Accommodation

Mail Handler Denied Job Due to Weight

Distribution Clerk Not a Direct Threat:

 Discrimination - Medical Condition

Unnecessary Fitness-for-Duty Violates Rehabilitation Act

MSPB: USPS was wrong in deducting Union dues from backpay

Demotion – Disciplinary Actions

Preference Eligible Reduction in Force

MSPB reverse dec.in Vets'  Preference

Former Mail Handler  vs USPS' action

Supv. Files Suit over Forced Resignation

USPS violated the Rehabilitation Act-

Same Sex Harassment Denied

Reasonable Accommodation

Postal Supv's Suit vs USPS Dismissed

Letter Carrier loses suit against USPS

Deaf Employees Class Action vs USPS

Unreasonable Accommodation?

Religious Accommodation

Reduction in force Preference Eligible

Employer May Be Sued for Disclosing FMLA-Request Contents

Letter Carrier deprived of FMLA rights

EEEOC Links

 MSPB Links

 OtherOther Federal Links

EEOC Official Website

EEOC Decisions

USPS EEO NO FEAR ACT Info

EEO Discussion Forum

EEOC Enforcement Guidance on Reasonable Accommodation

Merit Systems Protection Board

MSPB Decisions

U.S. Courts

(disclaimer: the cases are for informational purposes and not a substitute for legal advice)

(10/10/10) Race Discrimination - Prima Facie Case: Employee, among other claims, alleged that the Postal Service discriminated against her on the bases of race and disability when her requests for a schedule change were denied and her leave request was denied. The EEOC found that the Postal Service's assertion of "quota full" and "holiday staffing" were too vague and ambiguous and were not sufficient to rebut the employee's prima facie case of race discrimination. Therefore, the EEOC ordered the Postal Service to take remedial action. Padilla v. Potter (2010) EEOC


(1/31/09) Reprisal Discrimination –  Employee alleged, among other claims, that the Postal Service discriminated against him in reprisal for prior EEO activity when his computer access was taken away. The Postal Service contended that the employee's computer access was taken away in accordance with USPS policy and not for any discriminatory reason. The EEOC determined that the Postal Service articulated legitimate, nondiscriminatory reasons for its decision and that the employee failed to establish that the Postal Service's articulated reasons were groundst for discrimination. Therefore, the EEOC dismissed the reprisal claim. Rebele v. Potter (2009), EEOC


(1/31/09) Rehabilitation Act - Violations: Employee alleged that he was discriminated against when the Postal  management did not allow him to return to duty. The EEOC Administrative Judge found that the Postal Service violated the Rehabilitation Act by making a disability-related inquiry and not allowing the employee to return to work. The EEOC found that the requests made by the Postal Service were overly burdensome under the circumstances. The EEOC also found that the Postal Service refused to allow the employee to return to work even after its own Threat Assessment Team determined that the employee posed no threat. Therefore, the EEOC concluded there was a violation of the Rehabilitation Act and ordered remedial action. Grayson v. Potter (2009), EEOC

(1/31/09) Race Discrimination: Former employee alleged, among other claims, that the Postal Service discriminated against him on account of his race and gender by disciplining him and terminating him for chronic tardiness and absenteeism. The Court of Appeals found that the fact that the employee’s supervisors were the same race, combined with the employee’s undisputed long history of chronic lateness and absenteeism, substantially weakened any inference of race-based discrimination. The Court found that when female supervisors disciplined the employee, there was undisputed evidence that he was late or absent on those days. Therefore, the Court dismissed the case. Neely v. U.S. Postal Service (Third Circuit Court of Appeals 2009)

(8/25/07) Reprisal Discrimination: Employee alleged that he was discriminated based on reprisal when he was repeatedly ordered by his manager to discuss his EEO claim. The EEOC found that despite the employee's strongly expressed reluctance to meet with the manager about his EEO claim, the manager repeatedly ordered him to do so, and expressly told the employee he wanted to meet about his EEO claim. The EEOC found that the manager's repeated orders were a violation because they reasonably likely would deter protected activity, and the employee stated he felt intimidated and bullied by the manager to drop his EEO claim. The EEOC concluded that the Postal Service retaliated against the employee. Boff v. Potter (2007)


(8/25/07) Fatal Attraction Costs Letter Carrier Her Job - Victoria Shaffer, a letter carrier issued a notice of removal for  threatening to kill her co-worker/former married lover. The co-worker called the Postal Inspection Service while on his route, reporting that Shaffer had threatened him. He stated: After a 1 ½ year relationship things got ugly today on my route. Vicky [Shaffer] parked behind my truck ... When I got out of my truck and turned around, she grabbed my shirt, kissed me and turned around and walked away. She got in her car and left. A few minutes later she pulled up to the curb, rolled down the window and said, “Next time I’ll put a bullet in your head.” Shaffer filed a gender discrimination suit against the Postmaster General. According to federal court documents the case was recently dismissed.

(7/11/07) Court: Father Can Substitute for deceased postal worker in lawsuit: Robert H. Lary, Jr. died on February 17, 2007, after the court issued its original opinion on his case. Lary’s personal representative moved to have Robert H. Lary, Sr., his father and personal representative, substituted as the petitioner, and the Postal Service moved to vacate ther original opinion and dismiss the appeal as moot. The Federal Court of Appeals granted the motion to substitute and denied the Postal Service's motion. In the court's original opinion they held that the Postal Service materially breached its settlement agreement with Lary by failing to provide required documents in a timely fashion. Lary v. U.S. Postal Serv., 472 F.3d 1363, 1365 (Fed. Cir. 2006). The court vacated the decision of MSPB and remanded for entry of a decree of specific performance and also (in the event that OPM determined, on the merits, that Lary was entitled to disability retirement payments) an order of back pay and other relief. Lary vs USPS


(7/11/07) Union did not act unreasonably, discriminatorily or in bad faith in arbitrating grievance of removed letter carrier.
A letter carriers' union did not act unreasonably in deciding not to arbitrate the grievance of an Illinois letter carrier who was removed for submitting false medical documentation. The union did not act unreasonably in deciding not to arbitrate her grievance that she should have received progressive discipline instead of being discharged. It reviewed the documentation she provided and concluded that she could not show that her doctor or someone from his office had written the medical note as she claimed. The union relied on previous arbitration decisions to conclude that the United States Postal Service (USPS) could discharge her for a first offense of that type without resorting to lesser discipline first. The union also did not act discriminatorily or in bad faith. There was no evidence the union did not take her grievance to arbitration because of her race, sex, or for any reason other than that it did not believe the grievance was meritorious, or that the union acted fraudulently, deceitfully, or dishonestly. Jordan v. U.S. Postal Service


(5/05/07) Denial of Dependent Care: Postal Employee alleged that she was discriminated against in reprisal for prior protected EEO activity when her request for eight hours of family-related sick leave was denied and she was required to submit to a medical clearance before returning to work. The Administrative Judge found discrimination and awarded $40,000 in non-pecuniary damages. The EEOC concluded that the employee demonstrated that the Postal Service reasons for its actions were more than likely a pretext for reprisal discrimination and that the award of $40,000 was consistent with the amounts awarded in similar cases. Dickerson v. Potter


(5/05/07) Hostile Work Environment – Racial Discrimination: Postal Employee alleged that the agency discriminated against him on the basis of race when he was subjected to a hostile work environment. The EEOC found that although the employee was easy to pick on because of his low level position and veteran status, the fact that his African-American supervisors and co-workers did not like Caucasians demonstrated that race was the basis of the hostile conduct. The EEOC also determined that the agency failed to prove the two essential elements of an affirmative defense to vicarious agency liability for supervisory conduct. Therefore, the EEOC found discrimination and affirmed the AJ’s award of $10,000 in compensatory damages. Brown v. Potter


(7/31/06) Disclosure of Medical Information: Employee alleged that she was retaliated against for prior EEO activity when she was called into the office with a co-worker and her medical appointments and personal business were discussed. The Postal Service dismissed, for failure to state a claim, finding that the employee was asserting a violation of the Privacy Act, which is outside the purview of the EEO process. However, the EEOC concluded that the employee could have been claiming an unlawful disclosure of medical information in violation of the Rehabilitation Act, and as such, her claim should not have been dismissed. The EEOC reversed and remanded to the Postal Service for further processing. Hamilton v. Potter


(7/31/06) Fitness-for-Duty Examinations: Employee alleged she was discriminated against on the basis of race, sex, disability and age when she was scheduled for a fitness-for-duty examination without prior explanation for why one was necessary. The Postal Service dismissed, for failure to state a claim, holding that she was not an "aggrieved employee." The EEOC found that being sent for a fitness-for-duty exam affects a term, condition, or privilege of employment, thus rendering the employee aggrieved. The EEOC, therefore, reversed the dismissal and remanded for processing. Munford v. Potter


(5/16/06)  Isadore Banks, a letter carrier from Arkansas, learned that when he is on the injury compensation periodic rolls, his answers to routine questions will be carefully scrutinized.  One mistake on OWCP Form CA-1032 resulted in his removal from the U.S. Postal Service, the loss of all compensation benefits and ten months in prison.  He was also assessed $62,508.86 in penalties. Banks II vs U.S. Postal Service (FedCir)

OWCP form CA 1032 states in part that “The kinds of services which you must report includes such activities as carpentry, mechanical work, painting, contracting, child care, odd jobs, etc. Report activities such as keeping books and records, or managing and/or overseeing a business of any kind, including a family business. Even if your activities were part-time or intermittent, you must report them."
 

(5/16/06) The US Court of Appeals for the Federal Circuit upheld a MSPB ruling that a Criminal Investigator for the Office of the Inspector General of the US Postal Service does not qualify as a management or supervisory employee.  As a result Stephen Freeman lost his appeal of his removal for "lack of jurisdiction."  Freeman argued unsuccessfully that the results of his investigations frequently resulted in disciplinary action against other employees of the Postal Service and thus he should be deemed a supervisory or management employee. Freeman vs MSPB (FedCir)
 

 (4/21/06) Disability Retirement , Eligibility – Rural Carrier petitioned for review of the initial decision that affirmed the agency’s decision denying her application for disability retirement. MSPB found that the employee established by a preponderance of the evidence that she was unable to perform useful and efficient service in her position.  MSPB determined that while the employee might have been able to perform less arduous duties, the applicable Collective Bargaining Agreement (CBA) prohibited consideration of rural carriers for light-duty assignments. Therefore, the MSPB ordered the agency to grant the application for disability retirement.

Merchant v. Office of Personnel Management (2006)


  Mail Handler’s Removal for Off-Duty Conduct Upheld

On August 9, 2004, while Charles White was attending the Mail Handler’s Union picnic in Jacksonville, Florida, he and one of his co-workers became involved in a fight involving deadly weapons. After conducting an investigation, the Postal Service removed White from duty. White appealed to MSPB, which affirmed the Postal Service's decision. The administrative judge found that, based on White’s admissions against interest that he brandished a knife against a co-worker, the Postal Service proved its charge of improper conduct. The Board found that the misconduct had an adverse effect on the efficiency of the service because, although the misconduct did occur off-duty, it involved two agency employees, occurred in the presence of many postal employees who were attending a union-sanctioned event, troubled postal employees after the fact, and put postal employees in harm’s way.   |

Federal Circuit Decision [PDF]


(3/21/06)  - Court of Appeals Affirms Removal of Former Oakland USPS District Manager

The U.S. Court of Appeals affirmed the "initial" decision of the Merit Systems Protection Board in the case of former Oakland district manager Kirby A. Faciane who was removed from the post al service for " unacceptable conduct and Interference with Investigation." Kirby was charged with "creating an actual or apparent conflict of interest by failing to disclose his relationship" with a female who was placed in an Acting Postmaster (OIC) position. PDF version of MSPB decision

Federal Circuit Court Decision (PDF)  |

 

- Postal Workers Shouldn't Be Harassed


Quiles-Quiles v. Henderson, No. 05-1591, holds that PMG is not entitled to a judgment as a matter of law (and the Quiles was entitled to a statutorily-capped amount of $300,000, which the district court reduced jury award from $950,000) under the Rehabilitation Act because, the District Court found that Quiles had not shown that he was disabled. But, the First Circuit Court concludes that, “The evidence therefore ... sufficient for the jury to conclude that the Postal Service regarded Quiles as disabled because his superiors erroneously believed that he was unable to perform a broad class of jobs due to his mental impairment.” "The postmaster general also argues that he wasn’t really harassed because “that type” of people (that is, blue-collar-types) are always harassing each other" in the workplace. In sum, court concludes that the evidence was sufficient to show that he 1) was harassed; 2) because of his disability; and 3) he was retaliated against for complaining about it


(12/31/05) Appropriate Penalties – Mitigating Circumstances: USPS removed employee from supervisor position based on a charge of "Improper Conduct" following an incident in which the employee struck a customer. The Administrative Judge mitigated the penalty to a demotion because the employee was provoked by the customer's racial slurs. The MSPB disagreed with the Administrative Judge’s finding that the customer’s behavior was sufficient provocation to the employee’s violent reaction. The MSPB found that it was incumbent on the employee to remove herself from the situation with the customer and she failed to do so. The MSPB concluded that the Administrative Judge should not have mitigated the penalty and reinstated the removal. Harris v. U.S. Postal Service (2005)
(12/31/05) Reasonable Accommodation: Employee alleged that the agency discriminated against her when it denied her request for a reasonable accommodation to move her to a more favorable area in light of her breathing problems. The AJ found that the agency denied the employee a reasonable accommodation. The EEOC found that the agency's assertion that it provided the employee with a work environment within OSHA standards was not sufficient to show that the workroom floor would have been an effective accommodation for employee. The EEOC also found that the agency failed to show how the accommodation would have been an undue hardship and affirmed the AJ’s decision. Iftikar-Khan v. Potter (2005)

(9/12/05)- Falsification of Records - Employee was removed from his position based on a charge of misrepresentation related to a forearm/wrist tendonitis condition. The MSPB sustained the removal. The employee contended that the finding that he committed a willful misrepresentation was unsupported by substantial evidence. The Court found that it was plausible that the employee’s Attention Deficit Hyperactivity Disorder could have led to the mistakes on his workers’ compensation form. The Court concluded that the agency did not satisfy its burden to establish intent to deceive on the part of the employee and reversed the decision of the MSPB.

Freeman v. U.S. Postal Service (pdf) 


(8/23/05) Fitness-For-Duty Examination Violated the Rehabilitation Act. EEOC found that complainant was subjected to disability discrimination when he was sent for a fitness-for-duty examination (FFDE). Complainant, who suffered from heart disease, had a problematic relationship with co-workers and supervisors. In referring complainant for the FFDE, the agency stated that complainant’s continued “stressing” over minor details and personality conflicts could cause him physical harm. The Commission stated that, while the agency referred complainant for the examination because of his heart condition, it did not demonstrate a reasonable belief that his condition impaired his ability to perform the essential functions of his position, or that complainant posed a direct threat to himself or others. In fact, the agency indicated that complainant had no limitations. Thus, the agency failed to show that the FFDE was job related and consistent with business necessity. By way of relief, the Commission ordered the agency to advise complainant of his right to submit objective evidence in support of his claim for compensatory damages, provide training for the agency officials involved in the decision to send complainant for an FFDE, and to consider taking disciplinary action against those officials. Gloger v. United States Postal Service, EEOC Appeal No. 01A31462 (February 10, 2005), request for reconsideration denied, EEOC Request No. 05A50640 (April 25, 2005).
(8/07/05) Discrimination – Misconduct Charges: Former employee alleged that she was subjected to discrimination when she was required her to complete a form documenting her late arrival, while other employees were not required to do so, and when she was removed after a verbal altercation with her supervisor. The Administrative Judge's found discrimination on both claims. The EEOC found that that the AJ properly determined that the agency failed to consistently address violations of its Zero Tolerance Policy. The EEOC also determined that the AJ properly concluded that the responsible management officials did not actually believe that the employee intended physical harm to the supervisor by virtue of her remark. The EEOC affirmed the AJ’s decision and ordered the agency to reinstate the employee, in addition to back pay, benefits, and damages. Vashi v. Potter (2005)
(7/28/05) Court Upholds Firing of Postal Worker Working Second Job at UPS - (pdf) Former New York Postal Worker Scott Sieber alleged that throughout his ten-year employment with the USPS, they knew of his dual employment with United Parcel Service (UPS) but failed to take any action against him despite the Postal Service’s rules against working for a competing carrier of mailable matter. Sieber claims that the timing of his termination suggests an intention to retaliate against him for participating as a witness in a former co-worker’s discrimination suit against USPS. The Appeals Court agreed with a district court's ruling that employee was terminated solely for his refusal to resign his employment with UPS

(6/25/05) MVS Driver Wins Reinstatement - A Special Panel that resolves disputes between EEOC and MSPB on June 23rd overruled the MSPB in Robert Boots vs. USPS.  It said DOT regulations adopted voluntarily by the USPS do not override EEO rules with regard to disability discrimination.  The Special Panel directed the MSPB to order the appellant’s restoration to duty and the back pay and benefits that go with it. Robert Boots was removed from his position in the USPS as a Tractor-Trailer Operator for taking an antiseizure medication that was disclosed when he was hired in 1998.  He had an accident-free driving record.  The DOT changed its rules in October 2000 that were subsequently used to disqualify Boots and remove him in 2002.


(4/9/05) Constructive Suspension – Jurisdiction: Employee asserted that the agency constructively suspended him for more than fourteen days when, upon being cleared for duty by his personal physician after an absence due to an injury to his right knee, he was told to leave the building and was placed in a non-duty, non-pay status pending clearance from his doctor for his left knee. The AJ found that the MSPB lacked jurisdiction because the employee was only allegedly ready, willing, and able to work for less than fourteen days of his absence. The MSPB vacated and remanded the case because the MSPB has held that jurisdiction over an appeal from an alleged constructive suspension does not depend on whether the employee was ready, willing, and able to work.

MSPB, Barnes v. U.S. Postal Service (2005)


(4/9/05) Major Life Activities – Criteria – Substantial Limitation – Insufficient Evidence: Employee was demoted when he refused to travel for training that the agency believed was necessary for his employment. The employee filed a lawsuit alleging discrimination based on a medical disability. The District Court granted summary judgment for the agency. On appeal, the employee claimed to suffer from hypertension and stress that precluded him from traveling. The Court of Appeals agreed with the District Court that the employee’s symptoms did not prevent him from performing any major life activities. The Court concluded that the employee was not disabled for purposes of the Rehabilitation Act and affirmed summary judgment. Fox v. U.S. Postal Service (9th Cir.2005)
(3/1/05) Fitness-for-Duty Examinations – Disparate Treatment: Employee alleged discrimination by the agency with regard to various terms and conditions of his employment. The AJ issued a comprehensive decision finding no discrimination. The EEOC found that the agency failed to demonstrate that it possessed a reasonable belief that the employee’s heart condition impaired his ability to perform the essential functions of his position, or that the employee posed a direct threat to himself or others on account of his heart condition. The EEOC determined that the agency failed to establish that its referral of the employee for an initial fitness-for-duty examination (“FFDE”) was job-related and consistent with business necessity. The EEOC concluded that the agency violated the Rehabilitation Act by referring the employee for the initial FFDE. Gloger v. Potter (2005)
(3/1/05) Sexual Harassment – Employer Liability – Failure to Take Remedial Action: Employee alleged she was discriminated against because of her sex when she was subjected to a hostile work environment based on a co-worker's conduct. The Administrative Judge (“AJ”) concluded that the agency took immediate and appropriate corrective action to address the workplace misconduct that it knew or should have known about. The EEOC found that by telling the employee that she would have to provide the complete name of the individual in order for the agency to "fully investigate" the matter and by placing the responsibility on her to locate and identify the co-worker, the agency failed to act in an effective, immediate and appropriate manner. The EEOC determined that the agency’s failure to act properly caused the employee to be subjected to further harassing behavior. The EEOC concluded that the employee established her claim of sexual harassment. Lopez v. Potter (2005)
(9/9/04) Reasonable Accommodation – Denial: Employee alleged that he was denied a reasonable accommodation when he was not provided with an interpreter during a service talk about anthrax and when local police and Postal Inspectors questioned him. The agency contended that the events at issue occurred during unusual and emergency circumstances, such that a reasonable person could not find a violation of the Rehabilitation Act. The EEOC found that to the contrary, that in this extraordinary circumstance, where the physical safety of the employee and his co-workers was the subject of discussion, it was uniquely pressing for him to have access to the information being conveyed. Therefore, the EEOC found that the agency denied the employee a reasonable accommodation. Kelly v. Potter (2004),
 
(9/9/04) Harassment – Reprisal-Based: Employee alleged that he was subjected to harassment when his supervisor yelled at him from across the workroom floor and frequently told him he was the worst Clerk at the facility. The EEOC found sufficient evidence that the employee was subjected to harassment based on reprisal for his prior EEO activity. The EEOC determined that the supervisor’s actions were sufficiently severe or pervasive to alter the terms or conditions of his employment and create an abusive or hostile environment. Waring v. Potter (2004
New Retaliation Case (9/4/04)

A Modified Window/Distribution Clerk at the agency's Indiatlantic Postal Facility, alleged that he was discriminated against, based on disability and prior EEO activity (arising under the Rehabilitation Act). After his complaint was processed and assigned to an administrative judge (AJ), the AJ issued a Summary Judgement decision, finding that the complainant had not met his prima facie burden. The final agency decision (FAD) merely implemented the AJ's decision. The complainant appealed to the OFO, who REVERSED the FAD, and REMANDED it to the agency for corrective action pursuant to their ORDER.

The situation involved the Steward of the Indiatlantic Post Office, who, just three weeks after filing an EEO complaint, found himself being reassigned to the Suntree Post Office because of his "medical restrictions" (he had already worked his assignment with existing restrictions for some time). The Postmaster denied any knowledge of the complainant's prior EEO, however, the complainant was able to recall with specificity, his discussion with the Postmaster about his EEO, as well as prove that the Postmaster had responded to inquiries from the agency's EEO Dispute Resolution Office. The EEOC found the Postmaster was not credible.

In their decision, the EEOC found that, "in light of the evidence, we find that no reasonable fact-finder could find that the agency's articulated reasons for reassigning complainant were credible".

In their ORDER, the EEOC instructed the agency to take remedial action against the Postmaster, including "training in the obligation and duties imposed by the Rehabilitation Act". Further, "(t)he agency shall consider taking disciplinary action against the management official(s) identified as being responsible for the decision to reassign complainant to Suntree Post Office. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not impose discipline".

David A. Greenidge v. John E. Potter, PMG
Appeal No. 01A42155 (August 30, 2004)

_______________
This employee also has pending EEO Complaints, including constructive discharge, because of retaliation and hostile working environment. If you need additional information, please feel free to contact me.

As Always, I Am,

J.R. Pritchett
Postal Employee Advocate
 

(8/1/04) Postal Worker Successfully Appeals Dismissal of FMLA Claim - Judge: This appeal from the dismissal of a claim under the Family and Medical Leave Act of 1993 (“FMLA”) raises an important issue of statutory construction. Specifically, this appeal requires us to interpret the phrase “hours of service” as it is used in the FMLA

(7/29/04) Court: USPS Denial of "Limited Duty" to Pregnant PTF Employee Did Not Violate Pregnancy Discrimination Act -The crux of the PTF's argument is that the Postal Service unlawfully restricted her, as a pregnant woman, to light duty, and precluded her from limited duty, because limited duty assignments are only given to employees with on-the-job injuries. The court ruled that this argument had no merit. The court reasoned that while "it is true that the Postal Service decides who is eligible for light duty, subject to its collective bargaining obligations, the PTF erred in contending that the same is true of limited duty. "To mandate that Guarino, whose condition indisputably places her in the “light duty” category under the collective bargaining agreement, be classified as “limited duty” would be to mandate preferential treatment for pregnant employees over other workers with non-occupational injuries/illnesses. This the law forbids." Guarino v. Potter, U.S. Court of Appeals for the Fifth Circuit


(7/08/04) Employer Liability: Employee alleged that she was sexually harassed by her supervisor and later, the same supervisor yelled and threatened to terminate her employment. The EEOC found that the agency's anti-harassment policy was not sufficiently publicized and that it did not contain all of the elements required for an effective anti-harassment policy. The EEOC also found that the action taken by the agency against the supervisor was not prompt and effective. Therefore, the EEOC concluded that the agency was liable for the harassment of the employee. Briggs v. Potter (2004),

(6/22/04)-EEOC: Class Certification Proper. Colorado Postmaster's formal complaint asserted that the agency's application of its merit evaluation system, which imposed a 10% cap on managers receiving a "far exceeds" rating, resulted in female postmasters being denied the opportunity to be eligible for and receive a "far exceeds" merit rating. EEOC subsequently certified a class of all female postmasters employed in 1999. EEOC modified the definition of the class to encompass: female postmasters whose performance exceeded expectations but received a "met expectations" rating due to the 10 percent cap. The class complaint, as modified, was remanded to an EEOC District Office for processing. 2001 Background of Holmes, et al. v. USPS case


(6/15/04) Reprisal Discrimination – Interference with EEO Process: Employee alleged that the agency retaliated against her when a Senior level manager made a statement indicating that the employee could be subject to a $10,000 fine for pursuing her pending EEO complaint. The Administrative Judge (“AJ”) found that the agency’s conduct constituted reprisal discrimination. The EEOC determined that the threat of sanctions by the Senior level management official made out of the ordinary course of the EEO process could only discourage employees from participating in the EEO process. The EEOC concluded that the agency’s conduct was unlawful interference with the EEO process and affirmed the AJ’s decision. Eberly v. Potter (2004)
Fighting 'disabled' label-A postal employee battled for his job before the Merit Systems Protection Board, but didn't get the outcome he was hoping for. The case involved Abraham Gonzales, a USPS employee who was suspended by the agency because he failed to perform his job in a satisfactory manner. Postal Service officials thought Gonzales was disabled and should file for disability retirement. Gonzales disagreed and appealed his suspension. The appeal was settled by mutual agreement, which stipulated that Gonzales undergo an examination by a "neutral" physician. If the physician determined that Gonzales was able to perform the duties of any of three agreed-on positions, the Postal Service would return him to duty. But, if the physician determined that Gonzales was permanently unable to perform the duties of any of the positions, Gonzales would apply for disability retirement (Federal Computer Week -2003)
(6/01/04)-Removal – For Cause: A former Postal Supervisor (EAS- 16) petitioned for review of a final decision of  MSPB sustaining his removal for misuse of Postal funds. The Court determined that there was a question as to whether the employee was removed for misuse funds or whether he was removed for failing to be forthcoming and cooperative with the USPS in its investigation of the matter of the cancellation of a government-issued credit card (“GICC”), conduct with which he was not charged. Therefore, the Court vacated the decision and remanded it to the MSPB for further determination.

The court determined that: It is well settled that "when an agency proposes to discipline an employee, it must notify the employee of the conduct with which he is charged 'in sufficient detail to permit the employee to make an informed reply.'" We have further stated that "only the charge and specifications set out in the [notice of proposed removal] may be used to justify punishment because due process requires that an employee be given notice of the charges against him in sufficient detail to allow the employee to make an informed reply." . In short, when an agency disciplines an employee, it may only do so based upon the charges in the notice of proposed removal-so that the employee knows the misconduct with which he or she is charged and  may defend against the charge. The problem in this case is that there is a question as to whether this fundamental requirement of due process was met. "Thus, it is not clear whether, in this case, there has been compliance with the requirement that "only the charge and specifications set out in the [notice of proposed removal] may be used to justify punishment." O'Keefe, 318 F.3d at 1315. In other words, was __ Allen removed for the conduct with which he was charged, or was he removed for failing to cooperate with the USPS, conduct with which he was not charged? Under these circumstances, we think that the appropriate course is to vacate the decision of the Board and to remand the case to the Board for further proceedings to determine whether the agency complied with the requirements of due process" Allen v. U.S. Postal Service (Fed.Cir.2004)

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(6/01/04) Appropriate Penalties – Length of Service: Postal Employee Ordonez was removed from the Postal Service effective May 15, 2002, for "failure to be regular in attendance." At the time of removal, Ordonez had approximately twenty-four years of Federal service, sixteen in the Air Force and eight in the Postal Service. Except for a period of about ten months immediately preceding  removal the records shows no disciplinary action taken against Ordonez. However, Administrative Judge affirmed the removal. Ordonez appealed the removal for failure to be regular in attendance, arguing that the penalty of the removal was unreasonable. Ordonez argued that when the AJ considered previous federal service, he mistakenly stated that Ordonez had served for eight years, whereas the postal worker had actually served sixteen.. The Court determined that, based upon several instances of unsatisfactory attendance and warnings and repeated offenses, the error in prior service would not have changed the result and affirmed the removal. Ordonez v. U.S. Postal Service (Fed.Cir.2004)

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(5/17/04)  Appeals Court Revives Hispanic Postal Managers' Lawsuit-(Denver-AP) -- A federal appeals court reinstated a lawsuit Monday filed by seven Hispanic U.S. Postal Service managers who accuse the agency of discrimination. The Tenth U.S. Circuit Court of Appeals overruled a federal district court that dismissed the suit in 2002. The district court ruled the plaintiffs hadn’t exhausted all administrative steps before suing. The plaintiffs work in Colorado, Texas, Nebraska and New Mexico. They accuse the Postal Service of failing to inform them of advancement opportunities, granting merit raises and bonuses unequally, and retaliating against them when they complained of alleged discrimination. They filed grievances with the Postal Service and the Equal Employment Opportunity Commission in 1996.The workers filed suit in 1997 when three months passed without a decision from either agency.The plaintiffs are Longino Monreal, Felix Figueroa and Lorenzo Ortiz of Texas; David Medina and Ernest Candelaria of Denver; Richard Sanchez of Omaha, Neb.; and David Naranjo of Espanola, N.M.

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(5/05/04) Medical Restrictions – Violations: A letter carrier alleged that the Postal Service discriminated against her when it ordered her to work outside of medical restrictions and ultimately  removed from USPS because of race. The Postal Service rejected the Administrative Judge’s finding of discrimination. The EEOC found that the employee's supervisor had required the employee to carry mail when the temperature was extremely cold and outside of her medical restrictions. The EEOC rejected USPS' argument that the supervisor estimated that the temperature would rise by the time the employee delivered the outside portion of her delivery route. The EEOC affirmed the Administrative Judge’s finding that the employee had established an inference of race discrimination and remanded the case. Henderson v. Potter (2004)

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(4/22/04) Postal Supervisor Files Suit over Forced Resignation-Equitable relief is appropriate where the U.S. Postal Service insisted on the exhaustion of administrative remedies, but effectively prevented its employee from using those remedies, a federal district court ruled . The case began on September 19, 2002, when a 25 yr. USPS Customer Service Supervisor had a physical altercation with a co-worker, after consuming large amounts of alcohol during his lunch break. Shortly thereafter, on September 25th, the Postal Service told the supervisor he could either be terminated or resign within the hour, subject to the terms of a resignation agreement. Among other provisions, the resignation agreement stated that the supervisor “agrees to withdraw any current appeals in any administrative forum, including EEO and MSPB and further agrees not to file any future appeals in any administrative forums, including EEO and MSPB, concerning his employment and/or this settlement agreement.” While the agreement referenced “current appeals,” there were apparently no administrative proceedings pending at the time of the agreement. Given the choice of being fired or resigning, the supervisor chose to resign, and signed the agreement.

Subsequently, however, the supervisor filed a complaint in federal district court, claiming that he was forced to resign in violation of the Rehabilitation Act. He further alleged that he had been diagnosed as suffering from a disability, namely alcoholism, depression and anxiety; that his behavior on September 19th was directly caused by his disability; and that he should have been given a reasonable opportunity for rehabilitation. In responding to the supervisor’s district court complaint, the Postal Service pointed out that under the pertinent laws, the supervisor should have exhausted his administrative remedies before filing suit. Specifically, the Postal Service claimed that the supervisor should have either filed a complaint with the agency’s Equal Employment Opportunity office or appealed to the U.S. Merit Systems Protection Board, and that he could not proceed with the action in federal district court until he exhausted his administrative remedies.

But the court concluded that the Postal Service could not have it both ways, by asking the supervisor to sign the resignation agreement barring him from filing administrative appeals, and then arguing that his federal suit could not proceed because he had not exhausted his administrative remedies. Noting that equitable relief is appropriate “where an agency misleads or misdirects a claimant so as to prevent the claimant from seeking an administrative remedy,” the court found that equitable relief was proper in this case. “This is not to say that the Postal Service was barred from reaching a settlement with [the supervisor] in which [the supervisor] agreed to refrain from using administrative procedures,” explained the court. “However, there is surely an anomaly now in having the Postal Service insist on the exhaustion of administrative remedies, which it effectively prevented him from using.” Accordingly, the court declared the provision in the resignation agreement barring the supervisor from pursuing his administrative remedies null and void, and gave him an opportunity to pursue these administrative remedies while it stayed the district court action. 
The court stated further," Since the action is being stayed, as already described, there is no occasion to deal with the merits of the pleadings. The need to do so will come if and when the litigation is activated. Thus the motion of the Postal Service to dismiss the complaint for failure to assert valid claims is denied as moot." (name withheld by PR v. U.S. Postal Service, U.S. District Court for the Southern District of New York-  (summary is from  compilation of  several legal journals and court case)
 

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