Recent Federal Sector Court Decisions

Poland v. Chertoff (9th Cir 07/20/2007) - 9th Circuit  vacates trial court's finding of a constructive discharge in involuntary lateral transfer from supervisory position in Portland to non-supervisory position in Virgina in which the claimant worked for 5 months before retiring. Court also vacates the damages and attorneys fees awarded for the constructive discharge claim. Court affirms trial court's finding that the claimant was retaliated against by being subjected to an intensive administrative inquiry on his conduct, where claimant established that a biased manager influenced or was invloved in the decision making process.  
Weber v. Battista (DC Cir 07/17/2007) Complainant need not initiate EEO counseling on claim amended into pending complaint where that claim is like or related to accepted claim. A lowered performance appraisal can be actionable adverse action where incentive bonus is tied to rating.
Harris v Brownlee (8th Cir 02/26/2007) No breach of settlement agreement ehere Complainant receives "the benefit of the bargain that he 'reasonably expected,' ..., when he entered into the settlement agreement."
Laber v. Harvey (4th Cir Feb. 16, 2006) - Federal employee cannot file lawsuit challenging remedy issued in administrative EEO proceedings without also putting liability at risk.
Mahtesian v. Lee, (9th Cir May 10, 2005). Federal employee's claims of defamation, invasion of privacy, and interference with employment interests against background investigator and coworker  in their personal capacities for making false statements against him are dismissed as preempted by his administrative remedies under the Civil Service Reform Act.
Valentine-Johnson v. Roche, - F.3d - (6th Cir. October 22, 2004) Discharged employee who withdrew her MSPB mixed case appeal is  permitted to pursue her termination and discrimination claims in Federal court where MSPB AJ gave her erroneous advice and her employer agreed with position.  
Woods v. Perry (8th Cir. July ,12,2004) - Summary judgment for agency affirmed on sex discrimination claim because employee failed to present evidence that "the unusual employer that discriminated against the majority." 
Hardison v. Cohen (11th Cir. July, 8, 2004) - VA resident appointed under Title 38 is not entitled to pursue Bivens action arising from his discharge. Court may have equitable jurisdiction.
Farrell v. Principi, - F.3d - (9th Cir. May 11, 2004) - Federal Employee not required to exhaust administrative remedies where civil lawsuit is interpreted as seeking de novo review of favorable EEOC decision.
Bankston v. White, -F.3d - (9th cir. Oct. 1, 2003) - Federal employee not required to exhaust administrative remedies before filing Age Discrimination lawsuit.
Hines v. Widnall, 334 F.3d 1253 (11th Cir. June 27, 2003) - District court decision denying class certification  affirmed as class representatives' claims were not typical of individuals in class. EEOC's certification of class is not binding in federal court action where claimants did not conclude administrative process but filed civil suit after a certification determination had been made.
Lopez v. Johnson, 333 F.3d 959 (9th Cir. June 23, 2003) Employee of private contractor at Naval yard not a federal employee for the purposes of the Rehabilitation Act. Summary judgment granted to employer on his disability discrimination claim arising from denial of handicapped parking space. 
Butler v. Social Security Administration 331 F.3d 1368 (Fed Cir 06/13/2003). MSPB did not have jurisdiction over Administrative Law Judge's claim that contesting removal of his supervisory and managerial responsibilities.
Dattoli v. Principi, 332 F.3d 505 (8th Cir. June 11, 2003) Circuit court upholds grant of summary judgment to Department of Veterans Affairs on plaintiff's sexual harassment and disability discrimination claims based on findings that alleged harasser engaged in conduct offensive to both genders and vocal impairment did not constitute a disability.
Gobert v. U.S. Dept. of Interior 323 F.3 1099 (5th Cir. Mar. 26, 2003) Attorney who prevailed on non-selection lawsuit in federal court is entitled to collect both reasonable attorneys fees from the defendant and a contingency share of Judgment. 
Salinas v. United States (Fed Cir Mar. 25, 2003) Trial court correctly determined that it lacked jurisdiction over federal employee's Back Pay Act claim; Merit Systems Protection Board had exclusive jurisdiction over employee's claim.
Welch v. Dept of the Army (Fed Cir Mar. 25,2003) Merit Systems Protection Board affirmed in concluding that federal employee was not "constructively demoted." 
Martinez v. Dept of  Army (5th Cir 01/22/2003) Federal employee's federal lawsuit which was filed more than 180 days after he filed his formal complaint is not subject to dismissal for failure to exhaust administrative remedies because he requested EEOC hearing and then filed suit before the hearing process was complete. All that's required is a good faith effort to exhaust administrative remedies. 
Flanagan v. Ashcroft, (7th Cir. January 21, 2003) - DEA agents' claims of discrimination and reprisal based on their agency's alleged hostile, egregious and unprofessional investigation of harassment claims involving them was properly dismissed for failure to state a claim under Title VII. 
Dept. of Air Force v. Federal Labor Relations Authority (DC Cir 01/17/2003) Union with bargaining rights has the right to have a representative present during mediation session of eeo complaint since that is an discussion concerning adjustment of a grievance.
Farrell v. Dept of the Interior (Fed Cir 12/18/2002) Demotion of US Park Police officer was lawful even though the employer departed from its own table of penalties.
Jensen v. Henderson, - F.3d - (8th Cir. December 10, 2002) Continuing violation theory applied to render complaint timely where one act of sexual harassment occurred during 45 day precomplaint period.  
Montoya v. Chao (10th Cir 07/11/2002) The 30 day statute of limitations for federal employees to file lawsuits alleging violation of Title VII, the ADEA and FLSA is not jurisdictional and therefore subject to equitable tolling. 
Jones v. Dept of Transportation (Fed Cir 07/09/2002) Federal employees who receive donated leave from other employees under federal program may be terminated prior to exhaustion of that leave. 
Chao v. Bremerton Metal Trades Council (9th Cir 06/25/2002) Federal Sector Labor Organization is subject to Title IV requirements of the Labor Management Reporting and Disclosure Act. The Civil Service Reform Act does not preempt legal action to set aside union officer election.
Gee v. Principi (5th Cir 05/08/2002) Summary judgment to VA on employee's retaliation claim reversed. Evidence that employer's articulated legitimate non-discriminatory reason for taking the action is false is sufficient to create triable fact issue on motivation.  
Jacob-Mua v. Veneman (8th Cir 05/08/2002) Summary judgment in favor of  Depart. of Agriculture affirmed on plaintiff's claims of race discrimination, retaliation, and racial harassment claim. Nonpaid researcher not an  employee and diminution of job duties is not an actionable adverse job detriment. 
Haebe v. Dept of Justice (Fed Cir 04/29/2002) MSPB erred in substituting its credibility determinations for those of its  Administrative Judge. AJ's decision reversing removal reinstated.
Bieber v. Dept. of the Army (Fed Cir 05/02/2002) MSPB decision sustaining removal of Army management affirmed against charges that bias of Administrative Judge violated due process. Appellant must demonstrate "a deep-seated favoritism or antagonism that would make fair judgment impossible" to establish a due process claim based on judicial bias.
Salinas v. O'Neill (5th Cir 04/09/2002) Compensatory damages award of $300,000 supported only by testimony of customs employee denied a promotion and his spouse reduced to $150,000 as clearly excessive.
Economou v. Caldera, - F.3d - (2d Cir. April 5, 2002) Discharged Corps of Engineers employee who elected to appeal his termination before the MSPB and then withdrew his appeal in order to pursue an eeo complaint on the discharge failed to exhaust his administrative remedies. Summary judgment to defendant affirmed.
Hall v. Clinton (DC Cir 04/05/2002) White House computer system manager's state law claims against Hilary Clinton and the Democratic National Committee barred by comprehensive remedial scheme of Civil Service Reform Act. District court's dismissal of her claims upheld.  
Sizova v. National Institute of Standards & Technology and Univeristy of Colorado (10th Cir 03/13/2002)
Dispute concerning plaintiff's efforts to contact eeo counselor precluded dismissing her Title VII claims on jurisdictional grounds; Fellowship participant who worked at Federal agency which provided funding for her position can be federal employee for Title VII purposes; University is not her employer under Title VII.    
Walley v. Dept. of Veterans Affairs (Fed Cir 01/31/2002). MSPB has jurisdiction over claim that partially recovered FECA claimant's termination during her probationary period violated her restoration rights; termination sustained because  claimant failed to prove termination was solely because of compensable injury.  
Stewart v. Evans (DC Cir 01/11/2002). Federal employee's 4th Amendment claim, arising from illegal search by superiors, was not barred by Civil Service Reform Act.
Stout v. Potter (9th Cir 01/10/2002). Summary judgment to Postal Service affirmed on female postal inspectors' claims that promotional selection process had a disparate impact on females.
Aldrup v. Caldera (5th Cir 12/10/2001) Summary judgment in favor of federal employer affirmed on employee's Title VII retaliation, ADA discrimination claims, and his administrative appeal of Merit Systems Protection Board's discharge decision.
Swenson v. Potter - F.3d - (9th Cir. November 30, 2001) Jury verdict based on coworker's sexual harassment reversed because because Postal Service took effective corrective action. 
Paul v. Small (D.C. Cir. 11/16/2001) Federal employees'  retaliation claims are actionable under the Age Discrimination in Employment Act, 29 U.S.C. 633a.  
United States Postal Service v. Gregory (Supreme Court 11/13/2001) The Merit Systems Protection Board in assessing the appropriateness of  a penalty for a Federal employee adverse action can consider prior disciplinary actions even though union grievances contesting those actions are pending. 
Delong v. Dept of Health and Human Svc (Fed. Cir. 09/05/2001) A federal employee convicted of a specified  violent related crime can be removed from her position.  Federal employment is not a fundamental right which triggers strict scrutiny under the Constitution's due process clause.  
Sisley v. Leyendecker (8th Cir 08/09/2001) - Trial court did not err in dismissing United States Postal Service employee's Bivens action against his supervisor, on the basis that employee had remedies under the Postal Reorganization Act; existence of alternative remedies precluded Bivens suit by federal employee. http://caselaw.lp.findlaw.com/data2/circs/8th/011079p.pdf
Shoaf v. Dept of Agriculture (Fed Cir 08/07/2001) Federal Circuit Court of Appeals remands Merit Systems Protection Board's decision that Forrest Service whistleblower was not contructively discharged. Administrative law judge failed to consider the totality of the circumstances surrounding employee's resignation in concluding that federal employee's resignation was voluntary. http://laws.findlaw.com/fed/003148.html
Russell v. Principi (DC Cir 07/27/2001)  An lowered performance appraisal that results in a reduced bonus can constitute an adverse employment action that is actionable under Title VII.

Sommatino v. United States (9th Cir.2001, 06/18/2001) Female employee of Naval Postgraduate School found to be precluded from bringing action under Federal Tort Claims Act, where her allegations regarding male co-worker's intentional touching and his sexually suggestive and vulgar remarks are typical of offensive workplace behavior giving rise to action to remedy hostile work environment. 

Last revised June 11,2008

On Line Sine 1995
© 2001 Adam J. Conti, LLC, all rights reserved