Legal Briefs: Northern disclosure

ksaldarini@govexec.com, klunney@govexec.com

Every Friday on GovExec.com, Legal Briefs reviews 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.

Valerie Morman, a sales cashier at the Defense Department's Fort Richardson, Alaska campus was having serious health problems, so she asked to be reassigned to an earlier, and less demanding morning shift. When her request was denied, Morman filed a complaint alleging discrimination due to her race, Alaskan native.

Soon after, Morman received a letter alleging that she was abusing the agency's leave policy. She added reprisal to her list of complaints.

Eventually, persistent health problems forced Morman to resign from her job. But when she found out she could have taken leave without pay instead, she asked to withdraw her resignation. The fort wouldn't allow her to stay because her job had already been filled by a part-time employee.

An administrative judge pointed out that full disclosure of alternatives to resignation, including leave without pay, is the agency's responsibility. The agency's failure to fully disclose Morman's options and its subsequent refusal to withdraw her resignation was retaliatory and discriminatory, the judge ruled.

DoD was ordered to give Morman her job back or find a comparable job for her.

Lesson:If you don't make sure employees know all of their options, you may regret it later.

Valerie G. Morman v. Department of Defense (01973349), Equal Employment Opportunity Commission, May 17, 2000.

Customary Closing

Byron D. Cagle, a Treasury Department employee, sold his home in Woodbridge, Va. when he was transferred from his Washington, D.C., post to a job in Texas. Cagle's real estate agent told him that it was customary for the seller to help pay for some of the purchaser's closing costs.

Before he agreed, Cagle checked with his agency to make sure he could be reimbursed for such costs. The agency relocation office told him that if the charges were customary in his area, then they could be reimbursed.

Cagle's realtor produced documentation of sales of similar homes in his subdivision for the most recent six months. The data showed that in 58 out of 60 home sales, the seller had contributed to the buyer's closing costs.

But when Cagle asked to be reimbursed for the $3,386 in closing costs that he contributed, Treasury denied the claim. Treasury argued that helping pay for a buyer's closing costs may be common in Calgle's county, but that this does not make the practice customary. Instead, the practice is dictated by current market conditions, and is therefore temporary, the agency said.

So Cagle produced more data showing that 93 percent of home sellers in his region in the past four years paid for some of their buyers' closing costs.

The General Services Administration Board of Contract Appeals said enough was enough. Cagle met his burden of proof for showing that paying closing costs is customary where he lived, so he should be reimbursed, a judge ruled.

Lesson: If more than 90 percent of people are doing something, it's customary.

In the Matter of Byron D. Cagle (GSBCA 15218-RELO) GSBCA, April 28, 2000.

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