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.
The Merit Systems Protection Board recently debated a local government case that could have an impact on enforcement of the Hatch Act in federal agencies.
Merrick Malone and Margie Utley, both former employees of the Washington, D.C., city government, were found guilty of violating the Hatch Act when they encouraged various D.C. agency heads to attend a birthday celebration/fundraiser for then-mayor Sharon Pratt Kelly. The Hatch Act regulates government employees' political activities.
The chief administrative law judge at the Merit Systems Protection Board said Malone and Utley's offenses were in violation of the Hatch Act, but were not serious enough to warrant firing them. But before the pair found out what their punishment would be, they both resigned. To ensure they weren't getting off scot free, the judge suggested that Malone and Utley be barred from working for the D.C. government for ten and five years, respectively. But the board did not take the judge's recommendation, saying that the two violators' resignations rendered the complaint moot.
The Office of Personnel Management then stepped in. OPM feared that the board's decision would allow federal agencies to circumvent the Hatch Act by rehiring violators right after they resigned.
The board denied OPM's petition to reconsider the case, but then reopened the case on its own accord. After much review, MSPB modified its original decision to say that a resignation does not render a Hatch Act prosecution moot after all. Rather, if a Hatch Act violator resigns, a decision must still be made on whether the violation warrants firing. Any decision to suspend or fire a Hatch Act violator will remain in that person's official personnel files, whether they resign or not-but an employee cannot be barred from future employment.
Lesson: You can be fired for violating the Hatch Act, but that doesn't mean you can't get another government job in the future.
Merrick Malone and Margie Utley v. Special Counsel, Merit Systems Protection Board (CB-1216-94-0015-R-1, CB-1216-94-0016-R-), November 10, 1999
Doctor's Orders
A psychiatrist at the Veterans Affairs mental health clinic in Martinez, Calif., failed to follow doctor's orders. Unfortunately, the doctor was his supervisor. So Chelvadaurai Harichandran was fired. Harichandran appealed his dismissal to the Equal Employment Opportunity Commission, saying he was fired because of racial discrimination.
But at a hearing on the VA's decision, several co-workers told an administrative judge tales of Harichandran's insubordination. Apparently, he did not get along well with his supervisor and often would refuse to answer his pages and to acknowledge staff members who knocked on his door, even when he was in his office not seeing patients. Harichandran was assigned three other supervisors in turn, and they all reported similiar problems.
The judge said that Harichandran had failed to establish a case of discrimination. Further, even if there was a slight reason to believe his firing might have been related to discrimination, the agency proved it had a legitimate, non-discriminatory reason for firing him anyway.
Lesson: If you like pretending you're not in the office, your agency can help you make that a reality.
Chelvadaurai Harichandran v. Department of Veterans' Affairs, Equal Employment Opportunity Commission (370-96-X2117), September 9, 1999.
Visualize a Promotion
After working 30 years as a visual information specialist, a grade 12 male employee of the Defense Intelligence Agency was shocked to see a woman with no experience in the visual information field promoted above him to a grade 13 visual information specialist.
Furthermore, the woman did not even perform visual information work once she got the promotion. The employees' supervisor told the agency's EEO counselor that the chief of the directorate favored females and had directed the supervisor to do whatever was necessary to promote the woman. Because the woman faced more competition for promotion in her own field (writing), the supervisor created a vague job description that would allow the woman to be promoted to Grade 13 in the visual information specialist field.
The male employee was no doubt further shocked when the agency said this case of pre-selection did not constitute discrimination. Now more than three years after the woman was promoted, the Equal Employment Opportunity Commission has struck down the agency's decision, ordering that the agency promote the man, give him back pay, and pay his attorney's fees.
Lesson: Those who pre-select will ultimately pay a painful price.
Jones v. Defense Department, Appeal No. 01970581, Equal Employment Opportunity Commission, Oct. 1, 1999.