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Kimberly Bailey was a mail carrier in Melrose Park, Ill., when her supervisor ordered her to take leave without pay in January 1997. A month earlier, when she was five months pregnant, Bailey had asked to have her responsibilities cut back. She was assigned to light duty for a month before her supervisor told her to go home until she was called back to work. According to the supervisor, only one light duty position was available, the positions were "first come, first served," and Bailey was the fourth person to request light duty.

Bailey sought counseling from her Equal Employment Opportunity office and filed a formal discrimination complaint in August 1997. Bailey contended that her supervisor had discriminated against her because she was pregnant. An EEOC administrative judge found that she had not been discriminated against because employees on light duty were called back to work, but neither postal nor union officials were able to locate her, they said. The agency adopted the EEOC decision.

Bailey appealed the final agency decision, alleging that the postmaster told her when he sent her home it was because she was pregnant. She also contended that another coworker was sent certified and express mail asking her to return to work, but that the Postal Service failed to use those measures to contact her.

The commission decided that while Bailey did not have a disability as described under the 1973 Rehabilitation Act, she was discriminated against because of her pregnancy. The case was sent back to the agency for a new hearing.

Kimberly Bailey v. Postal Service, Equal Employment Opportunity Commission, (Doc. #01994321, January 16, 2002.

Back Pay for INS Whistleblowers

Two senior managers at the Immigration and Naturalization Service who were punished for speaking out about lax border security after the Sept. 11 attacks will receive compensation from the agency, according to the Office of Special Counsel.

The INS has agreed to give Border Patrol agents Mark Hall and Robert Lindemann back pay plus interest for the loss of all special pay for the time the two were suspended and demoted for speaking to the news media about lax border security on the country's northern border. The INS will also expunge the disciplinary actions from their personnel records and will provide whistleblower protection training for all managers and supervisors in the agency's Detroit office and eastern regional office. Hall and Lindemann work in the Detroit office.

"Especially in these times of heightened concern about national security, it is crucial to protect federal employees like Mr. Hall and Mr. Lindemann when they shine public light on security concerns," said Elaine Kaplan, head of the Office of Special Counsel, an independent agency that investigates allegations of whistleblower retaliation.

"Employees should never, of course, make public disclosures of classified information, but their disclosures did not involve classified information," she added.

Hall and Lindemann told the news media last fall that 28 field agents were assigned to protect more than 800 miles of the northern border with only one working boat and with damaged equipment. They also criticized the INS' detention policies.

In April, the INS reversed its decision to suspend and demote agents Hall and Lindemann for speaking to the news media. The agency decided not to discipline the agents after reviewing reports from the Office of Special Counsel and the Justice Department's inspector general. The special counsel's report concluded that the INS had retaliated against Hall and Lindemann for talking to the press. The Justice Department questioned the INS decision to discipline Hall and Lindemann and said the punishment would not hold up in court.

At that time, the INS said it supported the efforts of the Detroit office's Border Patrol chief "to prevent the disclosure of information adversely affecting border security or the safety of INS employees." The agency said it believed that some of the statements made by Hall and Lindemann "included sensitive information about the northern border in a time of national crisis."

OSC case, May 2, 2002.

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