Justia Labor & Employment Law Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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McIntosh, employed by the Department of Defense, was responsible for approving travel expenses for government contracts. McIntosh, on several occasions refused to approve invoices and refused to provide contract information to her coworkers. Her supervisor, Boswell, informed McIntosh that her actions amounted to a “refus[al] to perform [her] job requirements.” McIntosh filed grievances, alleging that she was being forced to disclose unauthorized information and was harassed. The agency investigated and denied McIntosh’s grievances. McIntosh took sick leave for the day of her scheduled performance review, before Boswell’s retirement. Boswell requested medical documentation. McIntosh returned to work after Boswell retired. Cohen became her supervisor. Upon her return, McIntosh submitted a letter from her doctor, stating that she “should be excused from work due to illness from 3/22/2017 through 3/24/2017.” Employee Relation determined that the documentation was not acceptable. McIntosh never provided additional documentation but reiterated her grievances and requested reassignment. She declined to speak to Cohen and went home. Cohen placed McIntosh on paid leave and issued a Notice of Proposed Removal. The deciding official, Van Winkle, sustained the removal.The Merit Systems Protection Board affirmed, finding that the Department would have removed McIntosh even absent her protected whistleblowing activity. The Federal Circuit affirmed, rejecting arguments that the Board’s administrative judges are improperly appointed principal officers under the Appointments Clause and that substantial evidence did not support the Board’s decision. View "McIntosh v. Department of Defense" on Justia Law

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Johnson was a Dyess Air Force Base firefighter from 2017-2019. In 2018, Johnson’s mother came to live with Johnson's family. She took around 13 pills to treat health issues; Johnson was taking “seven or eight” pills. The Air Force subsequently selected Johnson for a mandatory random drug test. He tested positive for oxycodone and oxymorphone. Johnson told his supervisor, Ranard, that he had accidentally taken his mother’s pills instead of his own prescribed medication. Ranard proposed that Johnson be fired. The deciding officer, Lieutenant Colonel Fletcher, fired Johnson, explaining that he could not “risk the possibility of Johnson] coming to work again under the influence of illicit drugs.” At an arbitration hearing, Fletcher testified that he “just [didn’t] believe” that Johnson accidentally took his mother’s pill, having consulted his wife, a registered nurse, and his brother-in-law, a nurse practitioner, who “confirmed that the likelihood of that happening is slim to none.” The arbitrator denied Johnson’s grievance, affirming his termination.The Federal Circuit reversed and remanded. Fletcher’s ex parte communications violated Johnson’s right to due process. When Fletcher’s relatives allegedly “confirmed” that the chances of Johnson taking his mother’s pill were “slim to none,” they were not confirming information in the record; they were providing new opinions on the evidence. View "Johnson v. Department of the Air Force" on Justia Law

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The United States Court of Appeals for the Federal Circuit held that the interim relief statute does not preclude a second removal action while a first removal action is still pending when the second action cures a procedural deficiency in the first action.The Department of the Treasury initiated a removal action against Petitioner charging him with misuse of government property. Treasury sustained the charge and removed Petitioner. A Board administrative judge (AJ) reversed based on a due process defect in the action. Treasury and Petitioner both petitioned for review. While that petition was pending, Treasury initiated a second removal action based on the same charge and specifications that cured the procedural deficiency in the first removal action. Treasury then removed Petitioner. An AJ upheld the second removal action, and that decision became the Board's decision. The Federal Circuit affirmed, holding that Treasury was not precluded from initiating the second action while the first action was still pending. View "Coy v. Dep't of Treasury" on Justia Law

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The Federal Employees’ Retirement System Act provides early retirement benefits to law enforcement officers (LEOs), 5 U.S.C. 8412(d) after obtaining sufficient "LEO credit," which may be awarded for time served in either a primary law enforcement position or secondary (supervisory or administrative) law enforcement position if an employee is “transferred directly” to a secondary position after serving in a primary position. Klipp worked for the TSA, 1991-2009. In a parallel case, Klipp was determined to be entitled to LEO credit for 1991–98, but not for 1998–2008; his 2004–2009 position was not eligible for LEO credit, although it was a secondary position, because there was a break in service between his primary position and his secondary position.Klipp then sought primary LEO credit for his post-2004 position. In 2004, TSA hired Klipp as a Supervisory Criminal Investigator-Assistant Federal Security Director-Law Enforcement (AFSD-LE) for the New Orleans International Airport. The government never hired subordinate officers or investigators for him to supervise. In 2005, Klipp’s position title changed to “nonsupervisory” criminal investigator. Klipp argued that LEO credit can be awarded if the applicant’s actual duties were primarily LEO duties, even if the position description denotes a secondary position. The Merit Systems Protection Board denied Klipp's request for retroactive LEO retirement coverage for 2005-2009. The Federal Circuit vacated. The Board did not properly analyze whether 50 percent or more of Klipp’s actual duties were LEO duties under circuit precedent. View "Klipp v. Department of Homeland Security" on Justia Law

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Rickel, a Fire Protection Specialist at Naval Air Station Jacksonville, was Assistant Chief of Training, responsible for determining training requirements, reviewing training records, and ensuring that firefighters’ certifications were current. Rickel applied for the Deputy Fire Chief position. Fire Chief Brusoe selected Gray. Rickel questioned the promotion and Gray’s candor in his application, asserting that several unidentified candidates had been promoted without required credentials. Gray responded that Rickel should update the training records. Rickel questioned Gray’s authority as his supervisor and claimed that his position did not require him to do so. Chief Brusoe informed Rickel that Gray was his supervisor. Gray instructed Rickel to update the records and documented that such a task was within his job description. The due date passed. The Executive Officer of Naval Air Station Jacksonville confirmed that the task was within Rickel’s responsibilities. Rickel did not respond to requests for status updates nor did he complete the work. Gray undertook the project, noting that it took 16.5 hours.Chief Brusoe proposed to remove Rickel for failure to follow instructions. Rickel appealed to the Merit Systems Protection Board, alleging unlawful retaliation for his protected disclosures. The Federal Circuit affirmed the Board’s finding that Rickel had engaged in protected whistleblowing activity, which was a contributing factor in the removal decision but that the agency had proven “by clear and convincing evidence that it would have removed [Rickel] even in the absence of his protected activity.” View "Rickel v. Department of the Navy" on Justia Law

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Bannister has been employed by the VA for over two decades. While working as a pharmacist at the Baton Rouge Southeast Louisiana Veterans Health Care System, Bannister received a notice of proposed removal under 38 U.S.C. 714 based on conduct unbecoming a federal employee. The notice alleged that Bannister had repeatedly spoken rudely and inappropriately to veterans and coworkers, had “yell[ed] and scream[ed]” at pharmacy personnel after being informed that she had been assigned to provide curbside triage to patients.The VA issued a final decision sustaining the charge but mitigating the proposed penalty to a 30-day suspension. After considering Bannister’s “written replies” “along with all the evidence developed and provided to [Bannister],” the deciding official “found that the charge as stated in the notice of proposed removal [was] supported by substantial evidence.” Bannister contested whether the charged conduct occurred, and she alleged as an affirmative defense that the VA suspended her in reprisal for protected whistleblowing activity. The Merit Systems Protection Board upheld Bannister’s suspension.The Federal Circuit rejected her whistleblower claim but found that the Board’s decision as to the underlying suspension rested on an incorrect statement of law. On remand, the Board should apply the preponderance-of-the-evidence standard of proof. View "Bannister v. Department of Veterans Affairs" on Justia Law

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Bryant was a VA police officer, assigned to the Columbus Community Based Out-Patient Clinic in Columbus, Georgia. The VA issued Bryant a notice of proposed removal under 38 U.S.C. 714 based on conduct unbecoming a federal employee. The notice alleged that while sheriff's officers were attempting to serve Bryant “with a Temporary Family Violence Order of Protection,” Bryant made inappropriate statements and displayed a lack of professionalism; Bryant “ma[de] threats” that “caused these [officers] to fear for their safety,” which was “unacceptable” and “inexcusable” for a “[f]ederal [p]olice [o]fficer entrusted with carrying a loaded firearm each day.”The deciding official found that the charge was supported by substantial evidence and decided to remove Bryant from employment. Bryant contested whether the charged conduct occurred and whether removal was an appropriate penalty under the Douglas factors, and alleged as an affirmative defense of reprisal for protected whistleblowing activity. The administrative judge found that “the agency proved the charge by substantial evidence.” The Federal Circuit vacated in part. The Merit Systems Protection Board applied the wrong standard and, on remand, must apply a “preponderance of the evidence” standard to determine whether the conduct occurred and apply the Douglas factors to the penalty. Bryant failed to prove his affirmative defense of whistleblower reprisal. View "Bryant v. Department of Veterans Affairs" on Justia Law

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Dr. Standley was employed by the Department of Energy (DOE) National Nuclear Security Administration. Standley contends that over several years he sought to ensure that the Space and Atmospheric Burst Reporting System (SABRS) for nuclear detection, was funded and supported, believing this was required under section 1065 of the National Defense Authorization Act of 2008. He claims his superiors attempted to block funding and his work on SABRS. In 2015, Standley sent an email entitled “Obstruction of Public law 110- 118, NDAA 2008, Maintenance of Space-based Nuclear Detonation Detection System” to the Under Secretary of State for Arms Control and International Security Affairs, with copies to Department of Defense representatives, and the Office of Special Counsel. Following several additional unsuccessful attempts to change DOE's position, Standley filed an unsuccessful appeal with the Merit Systems Protection Board, alleging that DOE and its employees retaliated against him for his efforts to change the DOE policy by not selecting him for any of three DOE Director positions posted in 2014-2017. Standley claimed he was engaging in protected whistleblowing when he opposed efforts to defund SABRS. The Federal Circuit affirmed. Substantial evidence supports the Board’s decision. Section 1065 does not require that the DOE provide its SABRS program to the Secretary of Defense. The court acknowledged “Standley’s well-intentioned beliefs about the mission,” and his pro se status, but found his challenges to a government policy decision with which he disagreed unavailing. View "Standley v. Department of Energy" on Justia Law

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Ash challenged the Office of Personnel Management’s (OPM) denial of his application for disability retirement benefits. Ash asserted disparate treatment based on race and prior protected activity. The Merit Systems Protection Board (MSPB) affirmed. Ash appealed.The Federal Circuit transferred the case to the District of Maryland. Because this case involves an action that is appealable to the MSPB and a discrimination allegation, it is a mixed case. Under 5 U.S.C. 7703(b)(1)(A), an appellant generally must appeal a final MSPB decision to the Federal Circuit but if the appellant has been affected by an action that the appellant may appeal to the MSPB and alleges that a basis for the action was discrimination prohibited by enumerated federal statutes, then the appellant has a “mixed case” and must seek judicial review in federal district court. One of those enumerated federal statutes is 42 U.S.C, 2000e16, which prohibits racial discrimination with respect to “personnel actions.” An appeal arising from a benefits decision can be a “personnel action” giving rise to a mixed case. An OPM decision that adversely affects retirement “rights or benefits,” like the Ash decision, is a “personnel action,” 5 U.S.C. 8461(e), that is appealable to the MSPB and alleges discrimination. View "Ash v. Office of Personnel Management" on Justia Law

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Dr. Smolinski is a Supervisory Physician in the Traumatic Brain Injury Clinic of the Landstuhl Regional Medical Center (LRMC), an Army hospital in Germany. He was a Lieutenant Colonel in the Army and occasionally saw patients at LRMC as a visiting provider. The Army purportedly changed the salary Smolinski was offered and delayed his move to a new position. Smolinski’s subsequent complaint under the Whistleblower Protection Act, 5 U.S.C. 1221, alleged those actions were retaliation for his wife’s 2017 patient complaint, his 2018 testimony in an investigation into an officer, and his 2019 Office of Special Counsel (OSC) complaints.The Merit Systems Protection Board dismissed his complaint, citing lack of jurisdiction because Smolinski failed to establish that those activities were protected disclosures. The Federal Circuit affirmed in part. Smolinski failed to allege sufficient factual matter to state a plausible claim that his wife’s patient complaint was a protected disclosure, and did not exhaust his administrative remedies regarding his claim of retaliation for his OSC complaints. With respect to Smolinski’s claims alleging retaliation for his 2018 testimony, however, the court reversed the dismissal and remanded for the Board to consider those claims on the merits. View "Smolinski v. Merit Systems Protection Board" on Justia Law