Passman & Kaplan, P.C. concentrates its practice in employment, labor and discrimination law, specializing in Federal Civil Service law.
Establishing Discrimination
In Annette Davis v. Department of the Interior, 2010 MSPB 161 (August 5, 2010), the MSPB ("Board") found that the administrative judge ("AJ") used an incorrect standard in dismissing Davis’s affirmative defenses of race and sex discrimination in her appeal of her removal from the Department of the Interior. The Board also found that the AJ erred when he did not notify Davis of the requisite burden needed to obtain a hearing on her discrimination claims.
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| Published: September 1, 2010
Definition of Disability
A federal district court in Colorado recently held that gender dysphoria falls within the realm of conditions specifically excluded from protection against disability-based discrimination under the Rehabilitation Act. Michaels v. Akal Security and U.S.
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| Published: August 25, 2010
Suspension for Hatch Act Violation
On the heels of its recent decision in Special Counsel v. Pattie Ware, 114 MSPR 128 (June 9, 2010), in which the MSPB ordered Ware's removal from her position with the Department of the Treasury's Bureau of Engraving and Printing for violations of the Hatch Act, the Board issued its decision in Special Counsel v. Phillip Mark, 210 MSPB 159 (August 2, 2010), overruling the administrative judge's (AJ) penalty of removal, and instead imposing a penalty of a 120-day suspension for the respondent, Mark.
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| Published: August 18, 2010
EEOC Approves Default Judgment
The EEOC recently approved a default judgment against the Department of Interior for failure to comply with its case processing regulations. Talahongva-Adams v. Department of the Interior, Appeal No.
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| Published: August 11, 2010
MSPB Reverses Indefinite Suspension
In the recent decision, Gonzales v. Department of Homeland Security, 2010 MSPB 132 (July 12, 2010), the MSPB reversed an administrative judge's decision affirming an indefinite suspension. At the conclusion of a long, technical, and scholarly review of the Board precedent concerning indefinite suspensions, the Board concluded, in short, that:
"[T]he mere existence of the agency's open investigation into allegations regarding the appellant's conduct is not ‘cause' for taking an action under subchapter II of chapter 75.
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| Published: August 4, 2010
Agency Found to Be a Joint Employer
On May 11, 2010, the Equal Employment Opportunity Commission's Office of Federal Operations in Carranza v. Dept. of the Army, EEOC Appeal No.
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| Published: July 28, 2010
Adverse Inference for Failure to Produce Documents
The EEOC recently upheld an administrative judge's drawing of adverse inferences against the agency due to its failure to produce work assignment logs and its records retention policy. Butler v. Department of Homeland Security, EEOC Appeal No.
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| Published: July 21, 2010
Telework Not a Reasonable Accommodation
The EEOC recently held in Yeargins v. Department of Housing and Urban Development, EEOC DOC 0320100021 (May 14, 2010), that agencies need not provide telework as a reasonable accommodation to disabled employees if the employees are poor performers.
Kevin Yeargins received a kidney transplant in early 2005. Following a series of serious complications, Yeargins was hospitalized in January 2006 and diagnosed with Aspergillus and Cytomegavirus pneumonia and lung failure.
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| Published: July 14, 2010
MSPB Orders Removal on Hatch Act Charges
In the recent decision, Special Counsel, Petitioner, v. Pattie Ware, Respondent, Docket No. CB-1216-09-0025-T-1 (June 9, 2010), the MSPB overruled an administrative judge's (AJ's) proposed penalty of a 60-day suspension for several Hatch Act violations and instead ordered the respondent's removal from her position.
Ware, a program analyst and contracting officer technical representative with the Department of the Treasury's Bureau of Engraving and Printing, admitted that she had invited 16 people to a fundraiser for then-candidate Barak Obama; forwarded a campaign email to 14 people, including federal contract employees; sent another email to 15 people urging them to vote for the Obama-Biden ticket; sent both emails from her government-issued computer while located in her government office using her government email account; and that she sent an email containing a solicitation for campaign donations.
Each of these undisputed actions was found to violate the Hatch Act, and so the only issue left to resolve was the appropriateness of the penalty.
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| Published: July 7, 2010
Religious Accommodation
On May 7, 2010, the EEOC Office of Federal Operations ("OFO") issued its decision in White v. Department of Defense, EEOC Appeal No. 0120080191.
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| Published: June 30, 2010