Justia Labor & Employment Law Opinion Summaries

Higgins began working at the Memphis VA Medical Center (VAMC) in 2007. Throughout his employment, Higgins reported unlawful activity ranging from misuse of agency letterhead to improper disposal of biohazardous material. Higgins had a history of conflict with his supervisors and coworkers. In 2016, a psychologist diagnosed Higgins as meeting the criteria for PTSD, chronic, concluding that “Higgins cannot work, even with restrictions, and this is permanent.” In March 2017, the VAMC suspended Higgins for using profanity with his supervisor. It was “the third incident of a similar type.” Because of his whistleblower status and PTSD, Higgins was offered a suspension without loss of pay.In June 2017, the VAMC removed Higgins based on charges of disruptive behavior and the use of profane language during three incidents. The VAMC’s Chief of Police considered Higgins’s statements a valid threat and recommended that the Director wear a bulletproof vest and receive a police escort to and from his car. The Director successfully filed a workers’ compensation claim for PTSD. An Administrative Judge determined that removal was “within the range of reasonableness” and promoted “the efficiency of the service.” Higgins had established a prima facie whistleblower retaliation defense but the agency would have removed Higgins even absent his protected whistleblowing activity. The Federal Circuit affirmed, rejecting arguments that the Board improperly discounted evidence of Higgins’s PTSD and that the AJ abused his discretion by excluding testimony relevant to institutional motive to retaliate. View "Higgins v. Department of Veterans Affairs" on Justia Law

In 2011, Sistek was appointed as a director at the VA’s Chief Business Office Purchased Care. Sistek subsequently made several protected disclosures to the VA’s Office of the Inspector General (OIG) questioning various financial practices and perceived contractual anomalies. Sistek’s supervisor became aware of Sistek’s concerns. Sistek was subsequently subjected to an investigation. Sistek filed a complaint with the Office of Special Counsel (OSC) alleging whistleblower reprisal based on several personnel actions, including the letter of reprimand. Sistek later filed an individual right of action appeal with the Merit Systems Protection Board, alleging retaliation under the Whistleblower Protection Act. The Administrative Judge declined to order any corrective action, finding that a retaliatory investigation, in itself, does not qualify as a personnel action eligible for corrective action under the Act. The OIG subsequently confirmed that the concerns raised by Sistek were justified. Sistek retired from the VA in 2018.The Federal Circuit affirmed. The Act defines qualifying personnel actions at 5 U.S.C. 2302(a)(2)(A); retaliatory investigations, in and of themselves, do not qualify. The Act provides that a retaliatory investigation may provide a basis for additional corrective action if raised in conjunction with one or more of the qualifying personnel actions. View "Sistek v. Department of Veterans Affairs" on Justia Law

The VA promoted Dr. Sayers to Chief of Pharmacy Services for the Greater Los Angeles (GLA) Health Care System in 2003. In 2016, a VA site-visit team discovered violations of policy in the pharmacies under Sayers’s supervision. When Sayers failed to follow orders to immediately correct the violations, the VA detailed him from his position pending review. Months later, the VA sent another team to the GLA pharmacies, discovering numerous, serious policy violations. Because compliance fell within Sayers’s purview, the GLA Chief of Staff proposed Sayers’s removal. The GLA Health Care Director acted as the deciding official and sustained the charges. The Merit Systems Protection Board (MSPB) and the Administrative Judge affirmed his removal, finding that substantial evidence supported factual specifications that Sayers failed to perform assigned duties and failed to follow instructions. The AJ declined to consider Sayers’s argument that his removal constituted an unreasonable penalty, inconsistent with the VA’s table of penalties and violating the VA’s policy of progressive discipline.The Federal Circuit vacated his removal. The basis for Sayers’s removal, the 2017 Accountability and Whistleblower Protection Act, 38 U.S.C. 714, which gives the VA a new, streamlined authority for disciplining employees for misconduct or poor performance, and places limitations on MSPB review of those actions, cannot be retroactively applied to conduct that occurred before its enactment. View "Sayers v. Department of Veterans Affairs" on Justia Law

Immigration and Customs Enforcement (ICE) notified Ricci that she had been “tentatively” selected for a Criminal Investigator position; she was required to satisfactorily complete a background investigation before receiving a final offer of employment. ICE subsequently sent Ricci a “Notice of Proposed Action,” stating that her background investigation had revealed information serious enough to warrant that she be found unsuitable for the position and possibly denied examination for all ICE positions for up to three years. ICE alleged that Ricci had engaged in numerous acts of misconduct while employed with the Boston Police Department. Ricci filed an appeal with the Merit Systems Protection Board, claiming that ICE’s claim was based upon bad intelligence and that ICE was “continuing the . . . discrimination.” The administrative judge explained that the board generally lacks jurisdiction over an individual’s non-selection for a specific position, even if that non-selection is based upon the suitability criteria set out in 5 C.F.R. 731.202. Ricci asserted that ICE’s actions "effectively constitute[d] a suitability action of debarment.”The Federal Circuit affirmed the AJ's dismissal for lack of jurisdiction. ICE’s action was a non-selection for a specific vacant position. ICE did not take any “broader action” against Ricci, such as “debarring her from future agency employment.” Regardless of the impact on an applicant’s ability to secure future federal employment, the board may only review actions designated as appealable. View "Ricci v. Merit Systems Protection Board" on Justia Law

In 2014, the Phoenix VA Health Care System where Potter worked was in the midst of a patient care crisis that had resulted in an investigation by the Department of Veterans Affairs Office of Inspector General (OIG). Potter alleges she engaged in five whistleblowing activities by making four protected disclosures and by cooperating with OIG. In December 2014, during a reorganization of the Phoenix DVA, Potter’s title was changed, which she claimed amounts to a demotion; a position for which Potter had applied was withdrawn in November 2015; and Potter was assigned to “unclassified duties.” Potter alleges that in early 2017, conditions at the Phoenix DVA forced her “involuntary resignation.” constituting the agency’s fourth and final reprisal. Potter accepted an offer for a Staff Nurse position at the VA Northern California Health Care System in 2017, and filed a whistleblower reprisal complaint at the Office of Special Counsel. A Merit Systems Protection Board administrative judge found that Potter had shown only one prima facie case of whistleblower reprisal but denied corrective action because the government established that the DVA would have taken the same action even if Potter had not made the protected disclosures. The Federal Circuit affirmed as to three alleged reprisals. The court vacated as to the November 2015 failure to hire. View "Potter v. Department of Veterans Affairs" on Justia Law

In 1999, while working at the San Juan VA Medical Center, Dr. Sanchez, a urologist, reported to his superiors what he believed to be improper practices. In 2000, Sánchez received a proficiency report prepared by his supervisor, indicating that his performance “ha[d] shown a significant [negative] change since his last evaluation.” Sánchez was reassigned to the Ambulatory Care Service Line, where he believed that he would not perform surgery, care for patients, or supervise other staff members. He concluded that these actions were retaliation for his whistleblowing activities. Sánchez and the VA entered into a settlement agreement under which Sanchez was to be reassigned to the Ponce Outpatient Clinic with a compressed work schedule of 10 hours per day for four days per week, to include three hours of travel per day. The parties adhered to the Agreement for 16 years. In 2017, Sánchez received a letter, informing him that he was required to be at the Ponce clinic from “7:30 a.m. until 4:00 p.m. from Monday through Friday.” An AJ rejected his petition for enforcement with the Merit Systems Protection Board. The Federal Circuit affirmed. The background of the Agreement supports the conclusion that 16 years was a reasonable duration. As the party claiming a breach, Sánchez had the burden of proof but did not offer evidence that the claimed animosity persisted after that 16-year time period. View "Sanchez v. Department of Veterans Affairs" on Justia Law

McCord injured his back while serving in the Army and was discharged with a 20% disability rating. Because his rating was below 30% and he served for less than 20 years, McCord received severance pay instead of ongoing military retirement pay and received monthly VA benefits. The Army Board for Correction of Military Records later corrected his record to reflect a 30% disability rating and entitlement to medical retirement pay, rather than severance pay. McCord later challenged the government’s calculation of his entitlement to military retirement back pay and its claimed right to recover the severance pay and requested damages for medical expenses that he incurred because he was not afforded TRICARE coverage before the correction. The Claims Court rejected McCord’s approach to back pay calculation as “double-dipping,” denied relief regarding the recoupment of severance pay “as not ripe,” and held that McCord failed to exhaust administrative procedures for securing TRICARE benefits. The Federal Circuit affirmed except as to the out-of-pocket medical expenses. The court cited 10 U.S.C. 1201, 1203, 1212(d)(a), and 2774, as defining entitlement to retirement pay or severance pay, VA benefits, and the circumstances for recoupment of severance pay. A veteran receiving VA benefits may face a disadvantage if he also secures an award of military retirement pay because he would not be entitled to severance pay but military retirement pay includes TRICARE coverage. View "McCord v. United States" on Justia Law

McGuffin began his employment with SSA as a preference-eligible veteran, entitled to receive CSRA (Civil Service Reform Act, 92. Stat. 1111) protections after one year. During his first months, McGuffin had a low case completion rate and had cases that were past the seven-day benchmark. He requested training; SSA sent him to a training course. SSA was apparently otherwise satisfied with his work. About eight months after his hiring, SSA began to consider terminating McGuffin. It was noted that, as a preference-eligible veteran in the excepted service, McGuffin would acquire procedural and appellate rights after completing one year of service, so that “McGuffin must be terminated prior to the end of his first year” while another employee could be terminated "within her 2-year trial work period.” Although his work improved, four days before attaining full employee status, SSA terminated McGuffin for failure to “satisfactorily perform the duties” of the attorney advisor position. In a case under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301–35, which prohibits discrimination based on military service, the Federal Circuit reversed the Merit Systems Protection Board. SSA closed the door on McGuffin before the end of his first year to avoid the inconvenience of defending itself should McGuffin assert his procedural CRSA safeguards. McGuffin’s preference-eligible veteran status was a substantial factor in SSA’s termination decision. McGuffin was not performing so poorly as to justify the rush to remove him. View "McGuffin v. Social Security Administration" on Justia Law

Montelongo was a West Point student cadet, 1973-1977, then served in the Army 1977-1996, from which he retired. From June 21, 2001, to March 28, 2005, Montelongo served as a civilian presidential appointee in the Air Force. An Air Force human resources officer advised Montelongo that his time as a cadet could be “bought back” and credited toward an eventual civil service annuity under the Federal Employees Retirement System (FERS), 5 U.S.C. 8401–8479. Montelongo made the small payment to “buy back” his four years at West Point and, in 2017, applied for a FERS annuity. The Office of Personnel Management and the Merit Systems Protection Board concluded, and the Federal Circuit affirmed, that only his time as a presidential appointee (just under four years) counted as creditable civilian service. Montelongo did not satisfy the five-year threshold requirement for a FERS annuity. Montelongo’s cadet time was “military service” that was creditable service under 5 U.S.C. 8411(c)(1) but was not “civilian service” for which section 8410 sets a five-year minimum for annuity qualification. View "Montelongo v. Office of Personnel Management" on Justia Law

Citing the Fair Labor Standards Act, which entitles employees to overtime pay for their hours of work that exceed 40 hours per week, 29 U.S.C. 207(a)(1), a group of U.S. Border Patrol Agents sought compensation for activities they claim were performed during “hours of work” while attending a voluntary canine instructor course. Agents who do not seek canine instructor certification by attending that course do not suffer any adverse consequences with respect to their existing jobs. Agents are motivated to obtain canine instructor certification in order to “mak[e] that next step in [their] career” and to potentially become a “course development instructor or . . . to be maybe an assistant director, even director.” The Claims Court granted the government summary judgment. The Federal Circuit affirmed. The course did not constitute “hours of work” under the Office of Personnel Management's regulations. The student instructors were not “directed to participate” in off-hours studying within the meaning of 5 C.F.R. 551.423(a)(2); the primary purpose for enrolling in the DCIC was for career advancement. View "Almanza v. United States" on Justia Law