ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
A Veterans Affairs Department employee alleged that managers in her office were drinking away the work day at a local bar-and asking her to cover for them. Three people corroborated her allegations, which she filed with the office's human resources department, the U.S. Attorney's office and the VA Inspector General's office.
But instead of acting on the information, the managers issued the employee a three-day suspension for printing more than 10 photocopies at a time, taking too many government envelopes at one time and pointing her finger at a manager.
The employee fought the suspension and, with the help of the National Federation of Federal Employees, got the VA to reduce the suspension to one day and then got an independent arbitrator to order the VA to pay her for the day she was suspended.
No actions have been taken against the managers.
Lesson: The bars may be open all day, but justice isn't always served.
Arbitrator's decision, June 29, 1999.
Dueling Investigators
James Steen worked for the Veterans Affairs Inspector General Office of Investigations in the Seattle branch. He and other agents complained to the inspector general in 1989 that George Strehle, who supervised the Seattle branch from the Los Angeles office, excessively used profanity and harassed the agents in Seattle. When Michael Costello took over the investigations office in 1990, he tried to resolve the dispute between Strehle and the Seattle agents. But the agents backed off and decided not to pursue their complaints.
Then in 1992, Costello decided to eliminate two positions in the Seattle office and transfer them to Los Angeles. He selected Steen to transfer to the L.A. office. Steen said he did not want to work for Strehle. So Costello instead offered Steen a transfer to New York. Steen didn't want to go to New York, saying it was too expensive, and instead applied for a job in the Houston office. Steen didn't get the job in Houston, so Costello went ahead and transferred him to New York. Steen then went on sick leave for a year, requested worker's compensation benefits and filed a whistleblower claim against Costello.
Two years ago, the Merit Systems Protection Board ordered the VA to suspend Costello for 30 days for whistleblower retaliation.
After years of tangled accusations and legal actions, the U.S. Court of Appeals for the Federal Circuit this month found Costello not guilty of whistleblower retaliation and reversed the board's suspension order.
Lesson: It's hard to make the case for retaliation when the manager tries to accomodate the whistleblower.
Costello v. Office of Special Counsel (97-3410), U.S. Court of Appeals for the Federal Circuit, July 16, 1999.
Ahh ... To Be Young
Old age may bring wisdom, but youth can be an advantage in getting a job. Three applicants for an Army air traffic controller position were rejected for the job. Instead, the Army chose a much younger applicant. The three older men subsequently filed suit against the Secretary of the Army for age discrimination.
A district court found that the older men were rejected for two reasons related to age. First, because they had attained higher pay grades in their careers, they would have require higher salaries than the young applicant. Second, because the men were also closer to retirement than the chosen applicant.
Even so, the court ruled that a direct link between age and the given reason the employer did not choose them does not mean the employer is guilty of age discrimination. Under the law, reliance on factors correlated with age by itself does not equal age discrimination. In this case, the court found, the same hiring decision would have been made regardless of the age of the applicants. The Equal Employment Opportunity Commission agreed and upheld the district court's decision.
Lesson: Age, like a fine wine, is expensive.
Robert P. Dilla, Hale P. Lane Jr., et al., vs. Togo D. West Jr., Secretary, Department of the Army, Equal Employment Opportunity Commission (98-6457), July 8, 1999.