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NEWS AND CASE ALERT
July 18th, 2022 | Issue #14-07
TABLE OF CONTENTS
FIRST CIRCUIT DECISION DEMONSTRATES THE CONTINUING JURISDICTIONAL QUAGMIRE OF MIXED CASES, AND RESULTANT JOB SECURITY FOR LAWYERS
PLEAD EXCEPTIONS WITH PRECISION AT THE FLRA
MSPB DEFINES HOSTILE ENVIRONMENT FOR WHISTLEBLOWER APPEALS
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The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details at deweypub.com/flraguide)
The EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details at deweypub.com/eeoguide)
FIRST CIRCUIT DECISION DEMONSTRATES THE CONTINUING JURISDICTIONAL QUAGMIRE OF MIXED CASES, AND RESULTANT JOB SECURITY FOR LAWYERS
To MSPB appellant challenged a constructive suspension The suspension appeal was dismissed for lack of jurisdiction when the AJ concluded the appellant failed to establish a lack of reasonable accommodation during the time she was placed on leave status. Appellant sought review in the Federal Circuit, but that court determined that the appeal required examination of the appellant’s discrimination claim, as to which the Circuit lacked jurisdiction. The Federal Circuit transferred the appeal to the U.S. District Court in Maine. Appellant argued to the district court that she was not bringing a discrimination claim, and the district judge sent the case back to the Federal Circuit—where it did not remain, the Circuit sending the case back to the district judge in Maine, who then accepted the government’s argument that the court case was not timely initiated.
Appellant then appealed to the First Circuit, and that court recognized that she timely appealed to the Federal Circuit—within 60 days of the Board’s decision—but not within the 30 days to file a district court complaint from a mixed-case Board decision. The result was that the district court’s decision was affirmed: the case was time barred from district court review even though it was timely filed with the Federal Circuit. Equitable tolling was not addressed by the First Circuit because the argument was not developed before the district court.
The result? At least in the First Circuit, timely filing with the Federal Circuit does not automatically meet the timeliness requirement for a district court EEO case if the Federal Circuit decides it lacks jurisdiction over the appeal. The First Circuit described the dispute as having ping-ponged between the Federal Circuit and the District of Maine. Appellant lost the game, never getting merits review of her constructive suspension. Lesson learned: file with the Federal Circuit within 30 days if there’s a possibility that an EEO claim will block that court’s jurisdiction.
Wilson v. VA, No. 21-1498 (1st Cir. June 14, 2022 NP)
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. (more details at deweypub.com/mspb)
Using Board and Federal Circuit cases as examples, Charges & Penalties offers the most comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. (more details at deweypub,com/mscp)
PLEAD EXCEPTIONS WITH PRECISION AT THE FLRA
FLRA litigation has its complexities. But those who litigate the cases at that agency usually have familiarity with the playing field and rules of play. Agencies are represented by specialist lawyers. Unions have their counsel, or local unions may be represented by local union officials who will have had training from the unions or through government-paid classes. And FLRA leaves MSPB in the dust when it comes to offering training and instructional material on its website and external training or labor relations assistance to any party that seeks it.
The result is that FLRA expects focused pleading when it is asked to review an arbitrator’s award—and most of FLRA’s docket consists of exceptions to those awards. A recent example involves a grievance asserting the agency failed to bargain over a change to a quarterly staffing roster. The arbitrator determined, following the agency’s summary judgment motion, that there was no bargaining duty because the change was covered by the parties’ agreement. In its exceptions, the union argued the arbitrator’s use of a summary judgment process did not draw its essence from the contract and that the arbitrator exceeded his authority—arguments that FLRA addressed and rejected. FLRA ruled that the parties’ contract did not address use of summary judgment, so the arbitrator’s adjudication of the motion did not conflict with the parties’ agreement: essence exception denied. Similarly rejected was the argument that the use of summary judgment—denial of a hearing—exceeded the arbitrator’s authority, since the parties’ contract did not limit that authority and the process was consistent with the arbitrator’s assessment of how to conduct any hearing requested by the union.
As to the arbitrator’s processing of the grievance and the associated motions concerning the decision to grant or deny a hearing and the summary judgment motion, Member Kiko by footnote reference expressed her “disappointment with the management of this case,” but she added that “because the Union did not raise an unfair-hearing exception, the Authority may not consider it.” To that footnote was added another by Member Grundmann, who expressed “her serious concerns with the Arbitrator’s handling of this case,” but also opined that FLRA could not consider an unfair-hearing exception that the Union hadn’t raised. Chairman DuBester, by concurring opinion, remarked that the “Union raised a plausible argument that it was denied a fair hearing.”
The FLRA regulation on exceptions, 5 CFR 2425.6, lists denial of a fair hearing as a basis for an exception to an award. But there’s a fair argument to be made that when exceptions clearly demonstrate, without regulatory citation, an arguable regulatory criterion for an exception, that FLRA put substance over form and deal with the argument—if necessary, directing the other party to respond to the exception that is argued if not properly cited. The regulation does not require a party to specify the regulatory provision describing the exception. The regulation requires “the excepting party must explain how, under standards set forth in the decisional law of the Authority” that the award is deficient based on one of the listed categories.
AFGE Local 2052, Council of Prison Locals 33 and Bureau of Prisons, FCC Petersburg, VA, 73 FLRA 59 (June 14, 2022).
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This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2022 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details at deweypub.com/mscs)
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MSPB DEFINES HOSTILE ENVIRONMENT FOR WHISTLEBLOWER APPEALS
Appellant was a supervisory physical therapist at a VA hospital who complained of reprisal after he complained to medical center executives of deficient patient care by the appellant’s supervisor. The retaliation consisted of a refusal of the appellant’s request for a salary review, removal of some prior responsibilities, yelling at him at meetings, and subjecting him to a hostile work environment. There were other allegations.
Appellant declined a hearing and he submitted a jurisdictional response to the MSPB AJ. The Board determined that the appellant exhausted his OSC remedies as to at least some of the acts of alleged reprisal and that the appellant established that he made at least one protected disclosure. Then the Board got to the point—whether the appellant alleged that the personnel action complained of constituted, as described in 5 USC 2302(a)(2)(A)(xii), “any [other] significant change in duties, responsibilities, or working conditions.” Said the Board:
[T]o constitute a covered personnel action under the WPA, an agency action must have practical consequences for the employee. Therefore, we conclude that to amount to a “significant change” under section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the overall nature or quality of an employee’s working conditions, responsibilities, or duties. . . .
In determining whether an appellant has suffered a “significant change” in his duties, responsibilities, or working conditions, the Board must consider the alleged agency actions both collectively and individually. . . .
. . . Thus, as described above, although the “significant change” personnel action should be interpreted broadly to include harassment and discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities will be found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). . . .
. . . .
Although the appellant submitted witness affidavits supporting many of his allegations, we find that he has failed to establish by preponderant evidence that the agency’s actions constituted harassment to such a degree that his working conditions were significantly and practically impacted. His chain of command may have been unresponsive to his requests or untimely in providing guidance, but such deficiencies do not amount to harassment. In addition, the three alleged incidents involving yelling were spread out over the course of a year and, while unprofessional, were not sufficiently severe or pervasive to significantly impact the appellant’s working conditions. The investigations, although likely inconvenient, were not overly time-consuming, did not result in any action against the appellant or follow-up investigation, and appear to have been routine workplace inquiries.
The result: hostile environment allegations under whistleblower law will be subject to review for the overall nature of the harassing conduct and the overall impact on the appellant’s working conditions. As with hostile environment allegations in the EEO arena, in establishing conditions as “severe or pervasive,” much depends on the employee’s ability to explain what occurred and the impact of those occurrences, and much depends on the sensitivities of the adjudicator, first the AJ (EEOC or MSPB), then the reviewer (EEOC or MSPB).
Skarada v. VA, 2022 MSPB 17 (June 22, 2022)
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