Following are summaries of issues in some of my pending or recently decided cases.

• Rights of Employees of the Veterans Canteen Service.

(a) In 1946 Congress created the Veterans Canteen Service within the Veterans Administration, and specified that its employees were covered by the Veterans Preference Act. Did the MSPB correctly hold that congress had excluded canteen service employees from the VPA due process rights now codified in chapter 75?

(b) In 1990 Congress gave MSPB appeal rights to non-preference excepted service employees with more than two years of current continuous service, with two sets of exclusions:


(1) All of the agencies that OPM had identified as statutorily-excepted from the competitive service, other than the Veterans Canteen Service; and ...

(2) Employees in Schedule C or the equivalent.

Did the 1990 law exclude the Veterans Canteen Service or its non-Schedule C employees from its coverage?

• Appeal Discharge Through the Grievance Procedure.

The issues before an arbitrator included whether a written communication from the employee to the agency was a grievance, whether it was timely submitted to the agency, and whether it was timely pursued through the grievance procedure.

(a) Was it arbitrary and capricious for the arbitrator to find that a statement beginning, "I am appealing the recently received removal from you dated April 22, 2008 ..." was not an appeal?

(b) Was it arbitrary and capricious to find that the grievance was untimely based on the fact that a different grievance, which had been previously withdrawn by the union, was not timely filed?

• Enforce EEOC decision; summary judgment in selection case.

(a) It is undisputed that the agency has never complied with an EEOC final order. Was the district court precluded from enforcing the order by the fact of the EEOC's acceptance of a false ex parte claim of compliance?

(b) For admittedly discriminatory reasons, an agency manager moved the employee out of the office where she had been serving as a team leader, and then selected another employee to be acting director of the office. The manager justified the failure to select the first employee on the ground that, solely because she was outside the office at the time the selection was made, she was less qualified than the other employee. Could a reasonable jury find that the transfer was a mere pretext for discrimination?

(c) Can a federal employee be denied discovery in a Title VII action on the ground that discovery prolongs litigation?

• Performance Discharges.

Can an agency fire an employee under the performance law (which allows the agency to win if its decision is supported by mere substantial evidence), where ...

(a) Employees are not given an opportunity to participate in establishing the performance standards ...

(b) The performance standards do not, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria related to the job in question, and ...

(c) There has not been an actual OPM review of whether the agency's performance appraisal system, as actually operated, actually meets the statutory requirements.

• Failure to Articulate Non-Discriminatory Reason for Apparently Discriminatory Action.

The agency removed a $30,000 per year physician comparability allowance from a foreign-born employee under conditions that create a prima facie case of discriminatory motives.

(a) Was the determination that the agency was not assigning the employee physician duties a mere pretext for removing the allowance, where there was not a bona fide inquiry as to his actual duties?

(b) Did the agency fail to rebut the prima facie case of discrimination when it failed to introduce evidence of a non-discriminatory reason for not either assigning the employee physician duties in his current position or reassigning him to a valid physician position?

• Discriminatory Written Reprimand for Which No One Takes Responsibility.

The immediate supervisor of a deaf employee gave him a written reprimand for getting into an altercation with a building guard, which occurred because of communication problems. The supervisor said that she merely delivered the reprimand, and that the decision to issue it was made by her boss. The supervisor's boss said that he did not make the decision; that the decision was made by the immediate supervisor. Since no one takes responsibility for making the decision, has the agency failed to meet its burden of introducing evidence that the true reason for the decision was not discriminatory?

• Discharge for Off-Duty Misconduct.

A black male employee pled guilty to an off-duty offense of receiving property which he should have known was stolen. The agency - which has a record of punishing black males more severely than other employees - fired him on the ground that no one who has ever done anything dishonest (cheating on one's income tax? cheating on one's spouse? taking home government pens?) can ever work for the agency.

(a) Since the admitted off-duty offence did not necessarily include dishonest intent, is there any ground for discipline at all?

(b) Is there any reason other than race and sex discrimination for not responding to the offense with a suspension rather than discharge?

• Constructive Discharge Through Failure to Accommodate.

The agency's failure to accommodate an employee's disability led to his disability retirement by exacerbating his condition to the point that now he cannot work at all.

(a) Is this a constructive discharge?

(b) Since he can't return to work, what should be remedy be?

• Discriminatory Refusal to Allow Employee to Work at Home.

A black female employee who was involved in EEO litigation against the agency was injured in a car accident, and for six months had to stay home. Her request to work from home was denied on the ground that "This is not a welfare office." There was work she could have usefully performed from home. Was this discrimination?

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