Trump Pick to Lead MSPB Seeks to Limit Hearings, Charge Federal Employees to File Cases, and Hold Secret Meetings

In his opening speech to the 2017 MSPB Summit hosted by the Federal Circuit Bar Association, MSPB Acting Chair Mark Robbins, designated by President Trump on January 23, 2017, announced his new initiative to impose changes to Board practices and procedures.

The first priority announced in his self-described “wish list,” is to exempt himself from the Sunshine in Government Act of 19761 so that he and other anticipated Trump appointees to the Board may hold closed-door, off-the-record meetings to deliberate and issue decisions of the Board. Robbins indicated that he believed the post-Watergate reform law inhibited his ability to quickly issue decisions affecting the rights of federal employees and whistleblowers.

Additionally Robbins announced that he wanted to allow federal agencies to seek summary dismissal of employees’ claims without allowing the case to be heard by an administrative judge. Although the MSPB does not currently allow for parties to seek summary judgment, and the statute which established the MSPB does not set forth such a practice, Robbins nevertheless seeks to curtail federal employees’ rights.

Finally, Robbins announced that he wanted to impose barriers for employees to seek an appeal before the MSPB. Such barriers include a filing fee of up to several hundred dollars, matching U.S. District Courts filing fees; and monetary sanctions imposed against employees for filing claims which they do not win. Robbins did not specify how much such fees and fines would cost employees who choose to exercise their rights. At this time neither the EEOC nor the MSPB impose filing fees or sanction employees who lose a case with monetary fines.

The attorneys at Gilbert Employment Law are dedicated to protecting your rights as federal civil servants and whistleblowers. We do not support the newly announced policy agenda of Acting Chair Robbins.

If you believe your civil service and whistleblower rights have been violated please contact us to schedule a consultation.

[1] 5 U.S.C. § 552b.

The Law Offices of Gary M. Gilbert & Associates, P.C. Argued Two Cases Before the Fourth Circuit Court of Appeals on March 22, 2017

The Law Offices of Gary M. Gilbert & Associates is pleased to share the audio clips from oral arguments presented on behalf of two employees alleging employment discrimination, which both occurred on the same morning before the Fourth Circuit Court of Appeals.


The first case, Smyth-Riding v. Science and Engineering Services, et al., was argued by Meghan A. Droste for the Appellant and Ziad Haddad of Tobin, O'Connor & Ewing, for the Appellees. The District Court granted Appellee's Rule 50 Motion at the close of Appellant's case. The issues before the Court were whether a jury could find Appellees retaliated against Smyth-Riding when they fired her and effectively decreased her salary, and whether the District Court erred when it granted the Rule 50 Motion on Appellant's sex discrimination claim without explanation. The audio from this oral argument can be found here:


http://coop.ca4.uscourts.gov/OAarchive/mp3/16-1184-20170322.mp3


The second case, Works v. Social Security Administration, was argued by Stephanie M. Herrera for Appellant and Jason Medinger for the Appellee. The case was before the Fourth Circuit Court of Appeals for the second time on oral argument. The issue was whether the District Court erred when it found there existed no genuine disputes of material fact regarding Works' termination, that attendance was an essential function of her job, and when it failed to consider whether Works' approved disability-related absences imposed an undue hardship on the SSA. You can locate and download the audio from this oral argument here:


http://coop.ca4.uscourts.gov/OAarchive/mp3/16-1184-20170322.mp3


A very big thank you to everyone who assisted in mooting these teams in preparing for the oral arguments. We hope to share favorable decisions in a future website posting.

Lack of MSPB Quorum – What it Means

Susan Tsui Grundmann resigned as chairman of the Merit Systems Protection Board (MSPB) on January 7, 2017. With Grundmann's departure, the MSPB, a quasi-judicial agency that oversees disputes arising from disciplinary actions and prohibited personnel practices involving federal workers, is now down to a single board member, Mark A. Robbins. While this may seem innocuous at first, Grundmann's resignation means that the MSPB no longer has a "quorum", or the minimum number of members necessary to issue decisions within their purview, until President Trump nominates a new board member. While the Board's Administrative Judges still have the authority to issue Initial Decisions, the MSPB cannot issue the following types of decisions:

      • Petition for Review Decisions;
      • Interlocutory Appeal Decisions;
      • Rulings on requests for an extension of an initial stay request filed by the Office of Special Counsel;

One clear impact is the inevitable delay in processing petitions for review from initial decisions issued by Administrative Judges. If you do file a petition for review after January 7, 2017, your petition will be acknowledged by the Office of the Clerk and processed according to MSPB procedure, however you should be prepared to wait. Please keep in mind that, even though the Board will be delayed in issuing a decision because of a lack of quorum, it does not toll your deadline for filing a petition for review.

For more information on this issue, please review the official MSPB FAQ about the Lack of Board Quorum here.

Notable MSPB Decisions in 2016

This past year was filled with noteworthy decisions impacting Merit Systems Protection Board (MSPB or the Board) case law. Here's a look back on two cases that may have a significant impact on future MSBP litigation:

Thomas v. Department of the Navy, 2016 MSPB 34 (Sept. 27, 2016).

In this case, an employee alleged that she had been forced to choose between working in an office containing mold and irritants to which she was allergic, or being placed on "Leave Without Pay" status, thereby subjecting her to a constructive suspension. The administrative judge determined that the MSPB did not have jurisdiction over the matter, holding that the employee could not establish the agency had deprived her of a meaningful choice, and, therefore, had not established that she suffered a constructive suspension.

On appeal, the Board reversed the administrative judge's decision. The Board found that the employee had made a nonfrivolous allegation that she was constructively suspended, explaining that the choice between accepting nonpay status and working in violation of her doctor's orders was not a meaningful one.

The decision clarifies the threshold showing for jurisdiction in a constructive suspension claim and may help to avoid the improper dismissal of proper constructive discharge claims for lack of jurisdiction moving forward.

Parkinson v. Dep't of Justice, 815 F.3d 757 (Fed. Cir. 2016), reh'g en banc granted, opinion vacated, No. 2015-3066, 2016 WL 4375197 (Fed. Cir. Aug. 8, 2016).

This case came before the Federal Circuit on appeal from the Board's decision, which sustained the employee's removal for lack of candor under oath and obstruction of process. The Court sustained the obstruction charge but reversed the Board's decision with respect to the lack of candor charge. Key to the court's decision was its analysis distinguishing between "lack of candor" and "falsification." It explained that "lack of candor" requires two elements: "that the employee failed to be fully forthright, and that the employee did so knowingly." Id. at 766.

The Board upheld the lack of candor charge based on the appellant's conflicting statements—first that he had asked a person to engage in impropriety, and later that he had directed that person to do so. Parkinson v. Dep't of Justice, 121 M.S.P.R. 703 (2014) (Table). The Board found this was an indication that the appellant intended to deceive the Office of Inspector General so as to minimize his culpability.

But the court determined that this interchange of words only indicated that the appellant had failed to be fully forthright, not that he had done so knowingly. The court emphasized that it was the agency's burden to show that the appellant "knowingly" failed to be fully forthright, and that making the determination based on the absence of other plausible explanations improperly shifted this burden.

Renn Fowler, Esq., author of MSPB Charges and Penalties, A Charging Manual, and Of Counsel to Gary M. Gilbert & Associates, P.C., called this the most important MSPB case of the year. In August, the Federal Circuit granted the Agency's petition for an en banc rehearing, the result of which is still pending.

Here at The Law Offices of Gary M. Gilbert & Associates, P.C., our team of dedicated MSPB attorneys are uniquely experienced at navigating the dynamic legal landscape of the Board's law. To learn more about our services and how we can help you, contact us today.

GMGA Welcomes Janeí Au, Sandra Braschi, and Joseph Spoerl to the Firm

GMGA is pleased to announce that Janeí Au, Sandra R. Braschi, and Joseph Spoerl were sworn in as members of the Maryland bar this week and join our team of associate attorneys. All three associates worked as law clerks with GMGA prior to being sworn in as attorneys.

Janeí Au graduated from American University Washington College of Law. While at the Washington College of Law, Janeí was the Note and Comment Editor for the Journal of Gender, Social Policy & the Law, with a comment published in its annual law review. Janeí has volunteered for Workplace Fairness, an organization dedicated to promoting fair treatment of workers through public policy.

Sandra Braschi graduated from American University Washington College of Law. During law school, Sandra was a Senior Staffer for the Administrative Law Review, the Senior Dean's Fellow for the Legal Analysis Program, and a member of the Latino/a Law Students' Association. She worked as a judicial intern for the Honorable Raymond J. Dearie in the U.S. District Court for the Eastern District of New York and the Honorable Gerald Bruce Lee in the U.S. District Court for the Eastern District of Virginia. During her final year of law school, Sandra practiced as a Rule 16 Student Prosecutor in the American University Washington College of Law's Criminal Justice Clinic, and competed in the Hispanic National Bar Association's Moot Court Competition in Las Vegas, Nevada, and the International Arbitration Competition in Santiago, Chile.

Joseph Spoerl graduated from George Washington University Law School. During law school, Joseph was part of the Public Justice Advocacy Clinic, DC Law Students in Court Litigation Clinic, Federal Circuit Bar Journal, and participated in the Willem C. Vis International Moot Court Competition. Joseph also volunteered with Whitman Walker's Social Security Disability Insurance Clinic. There, he assisted clients with chronic disabilities by helping them file for benefits. Joseph also interned for the Honorable Judge Gerald Bruce Lee at the U.S. District Court for the Eastern District of Virginia.

Election 2016

In light of the results of the recent presidential election, The Law Offices of Gary M. Gilbert & Associates recognizes the work we do has become more important than ever. The struggle to move forward on the path for civil rights in this country has been fraught with personal sacrifice and often accompanied by major steps backward after nearly every small step forward. And yet we persist.

We chose this path because we believe that the color of one's skin or the place from whence one traveled to come to this great land should not be a barrier to enjoying the same rights and privileges as all others. We believe that women's rights are civil rights, and that civil rights are human rights. We believe that a person is no less valuable because of a disability and deserves the same rights as others.

We recognize that without a struggle, there can be no progress. We will not be discouraged, and we will continue to work tirelessly to make our future a better one.

The staff of The Law Offices of Gary M. Gilbert & Associates is developing various strategies to continue to advocate on behalf of our clients, from aggressively pursuing employers with discriminatory practices to attending the upcoming Women's March on Washington. We hope you will join us in working to strengthen the civil rights laws of our great nation.

Election Day 2016 - November 8, 2016

The Law Offices of Gary M. Gilbert & Associates reminds you to exercise your rights to participate in our democratic process and vote on Tuesday, November 8, 2016. You can find information about your polling place here: http://www.vote411.org/. Federal employees can find information about excused absences for voting here: https://www.chcoc.gov/content/excused-absence-voting-4.

GMGA Welcomes Veteran Powerhouse, Kathleen J. England, to the Firm

The Law Offices of Gary M. Gilbert & Associates, P.C., has announced that Kathleen J. England has joined the practice as Managing Attorney of the Las Vegas Office, to be known in Nevada as the Gilbert England Law Firm.

Kathleen Jane England, a Boston native, a 1975 cum laude graduate of Michigan State University and a 1978 graduate of Suffolk University Law School, started her legal career in the Las Vegas City Attorney's Office. Ms. England went into private practice with Vargas & Bartlett in 1982 and has practiced with a number of firms in the Las Vegas area and handled a wide variety of cases. Early in her career, Ms. England chaired the Defendants' Settlement Committee in the MGM Grand Fire Litigation (MDL #453) and defended state legislators in election challenges. Ms. England helped to found the Nevada State Bar's Young Lawyer's Section, was active in many of the American Bar Association's sections (Young Lawyers, General Practice, Gavel Awards), and was appointed to the Nevada Supreme Court's Gender Bias Task Force. She chaired the first City of Las Vegas Ethics Review Board and the Nevada State Bar's Character & Fitness Committee. She also co-chaired a project with Habitat for Humanity for the local bar association. Ms. England served on the Nevada State Bar's Board of Governors for ten years (2001-2011) and was President of the Nevada State Bar from June 2009 to June 2010. The Nevada Supreme Court has appointed her to a number of commissions. She is a frequent Continuing Legal Education presenter locally and nationally and has been a Master of the Bench for the Nevada Inn of Court and is currently a member of the Southern Nevada Association of Women Attorneys, the Las Vegas Chapter of the National Bar Association, and the National Employment Lawyers Association. Ms. England has also co-chaired committees researching and producing issues of the Nevada Lawyer, documenting the contributions of women attorneys and African-American attorneys in Nevada. Ms. England's clients have won substantial judgments in Title VII cases, including federal jury verdicts against Nevada Department of Prisons, SAKS Fifth Avenue, and Clark County Department of Aviation. She is active in many community organizations (Girl Scouts, homeless shelter, rape crisis shelter, Planned Parenthood) and has received many honors and awards. For over 30 years, Ms. England's civil litigation practice has been devoted to representing victims of discrimination and sexual violence.

Gary Gilbert, Deryn Sumner, and Ernest Hadley to Speak at EEOC Law Week

Gary Gilbert, Deryn Sumner, and Ernest Hadley will serve as instructors with the Federal Employment Law Group's (FELTG) EEOC Law Week in Washington, D.C., from September 26, 2016, through September 30, 2016. EEOC Law Week provides seminars related to all major aspects of federal employment discrimination law, including an overview of the EEOC, current trends in EEO law, disability law, and remedies. The program is designed to assist practitioners in navigating the EEO process. More information is available here: https://feltg.com/event/eeoc-law-week-2/

Pregnancy Discrimination

When women become pregnant, they often face a harsh reality: it is not uncommon for employers to terminate them or otherwise force them to leave their jobs. Pregnancy discrimination has been going on for decades but recent developments have brought attention to the issue. Legally speaking, pregnancy discrimination in the workplace occurs when an employer takes an adverse action against an employee or a job applicant because they are pregnant or have intentions of getting pregnant.

The Pregnancy Discrimination Act of 1978 (PDA) was an amendment to Title VII of the Civil Rights Act of 1964. Pursuant to the PDA, an employer may not discriminate against a woman because of pregnancy, childbirth, or other related medical conditions, and if an employer does discriminate on any of these bases, it is considered unlawful sex discrimination under Title VII. Like Title VII, the PDA applies to employers that have fifteen or more employees and includes state and local governments, the federal government, employment agencies, and labor organizations.

It is important for both employers and employees to be aware of its obligations under the PDA, as the employer is required to do more than just refrain from discrimination. For example, accommodations may be necessary. If an employee cannot perform her job duties due to a medical condition that is caused by her pregnancy or childbirth, the employer must treat the pregnant employee the same as any other employee with a temporary disability, including "by providing light duty, modified tasks, alternative assignments, disability leave, or leave without pay." Equal Employment Opportunity Commission, Facts about Pregnancy Discrimination, available at https://www.eeoc.gov/eeoc/publications/fs-preg.cfm.

The Family and Medical Leave Act (FMLA) also provides additional protection for pregnant employees; if a new parent qualifies as an employee under the FMLA, he or she is entitled to twelve weeks of unpaid leave. Id. Furthermore, employers and employees should keep in mind that an injury caused by pregnancy may qualify as a disability under the Americans with Disabilities Act (ADA), triggering an employee entitlement to reasonable accommodation.

One recent case addressing pregnancy discrimination involved an ex-Chipotle employee who was fired because she was pregnant. In addition to addressing the termination, a jury in U.S. District Court in Washington, DC found that when the employee's manager restricted the employee's water and bathroom breaks and did not grant her leave to attend medical appointments, it constituted discrimination. See CNBC, Ex Chipotle Employee Awarded $550,000 In Pregnancy Discrimination Lawsuit, here. As such, the jury awarded the former employee $550,000. Id.

In a similar matter, the U.S. Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit against Your Health Team, L.L.C. for firing a home health aide because she was pregnant and was told that she needed a doctor's note to return to work after disclosing her pregnancy. See Equal Employment Opportunity Commission, Your Health Team, L.L.C. To Pay $20,000 to Settle EEOC Pregnancy Discrimination Suit, https://www1.eeoc.gov/eeoc/newsroom/release/7-29.cfm. "Despite providing confirmation from her doctor that she could return to work, the company decided to fire the aide just minutes after she furnished the required note." Id. As a result of the lawsuit, the employer agreed to pay $20,000 in damages as part of a settlement agreement. Id.

For more information about pregnancy discrimination, please visit The EEOC.

The Law Offices of Gary M. Gilbert & Associates, P.C., is Happy to Announce the Addition of Four Post-Graduate Law Clerks to its Practice

The Law Offices of Gary M. Gilbert & Associates, P.C., is happy to announce the addition of four post-graduate law clerks to its practice. Congratulations and welcome to the newest members of our firm, Janeí Au, Sandra R. Braschi, David Karman, and Joseph Spoerl.


Janeí Au –American University Washington College of Law


Janeí Au recently graduated from American University Washington College of Law. While at the Washington College of Law, Janeí was the Note and Comment Editor for the Journal of Gender, Social Policy & the Law, with a comment published in its annual law review. Janeí has volunteered for Workplace Fairness, an organization dedicated to promoting fair treatment of workers through public policy. Janeí has a strong interest in gender issues related to employment. During her free time, Janeí practices Krav Maga and Khali, and enjoys baking and crocheting.


"I'm very excited to join the Gary M. Gilbert and Associates team!" – Janeí Au


Sandra Braschi –American University Washington College of Law


Sandra Braschi recently graduated from American University Washington College of Law. During law school, Sandra was a Senior Staffer for the Administrative Law Review, the Senior Dean's Fellow for the Legal Analysis Program, and a member of the Latino/a Law Students' Association. She worked as a judicial intern for the Honorable Raymond J. Dearie in the U.S. District Court for the Eastern District of New York and the Honorable Gerald Bruce Lee in the U.S. District Court for the Eastern District of Virginia. During her final year of law school, Sandra practiced as a Rule 16 Student Prosecutor in the American University Washington College of Law's Criminal Justice Clinic, and competed in the Hispanic National Bar Association's Moot Court Competition in Las Vegas, Nevada, and the International Arbitration Competition in Santiago, Chile. Sandra has a strong interest in litigating sexual harassment and wage theft claims before judicial and administrative bodies. Sandra, who attended St. Thomas University on an athletic scholarship, continues to play soccer in her free time in Washington, D.C. recreational leagues.


"It is incredibly rewarding to work with a group of attorneys who care as much about their cases as their clients do." – Sandra Braschi


David Karman- Georgetown University Law Center


David Karman recently graduated from Georgetown University Law Center. While attending law school, David was the Articles Editor for the Georgetown Journal of Legal Ethics, and also took part in the Institute for Public Representation in the Civil Rights Division. He has also volunteered for the Constitution Project, an organization that researches and develops policy positions on modern constitutional issues, and Rural Dog Rescue, where he has helped with adoption events and fundraisers. During his downtime, David likes to spend time outdoors, whether it be hiking or camping. David says he learned everything he knows about arbitration from Deflategate.


"Excited to be part of the team!" – David Karman


Joseph Spoerl –George Washington University Law School


Joseph Spoerl recently graduated from George Washington University Law School. During law school, Joseph was part of the Public Justice Advocacy Clinic, DC Law Students in Court Litigation Clinic, Federal Circuit Bar Journal, and participated in the Willem C. Vis International Moot Court Competition. Joseph also volunteered with Whitman Walker's Social Security Disability Insurance Clinic. There, he assisted clients with chronic disabilities by helping them file for benefits. Joseph also interned for the Honorable Judge Gerald Bruce Lee at the U.S. District Court for the Eastern District of Virginia. During his free time, Joseph enjoys outdoor activities, especially tennis or sand volleyball, and has an identical twin brother! Joseph is very excited to start his legal career at Gary M. Gilbert and Associates, with a strong interest in the LGBT issues in employment.


"Excited to start my legal career with a group of passionate attorneys making a positive impact on our community!" – Joseph Spoerl

Fourth Circuit Victory for Construction Workers Stiffed of Overtime Pay on Federally-Funded Worksite

 

In a published 3-0 opinion written by Judge Diaz, the Fourth Circuit vacated and remanded the district court’s grant of summary judgment for Defendant Power Design, a federal construction contractor. Plaintiffs, represented by Daniel A. Katz and Lucy B. Bansal of The Law Offices of Gary M. Gilbert and Associates, P.C., and Virginia Diamond of Ashcraft & Gerel, LLP, are 20+ electrical construction workers who performed work on the Bethesda Navy Exchange. The federally-funded work was subject to the prevailing wage requirements of the Davis-Bacon Act (DBA) and the Contract Work Hours and Safety Standards Act (CWHSSA), neither of which has an explicit private right of action. Plaintiffs brought suit for unpaid overtime wages under the Fair Labor Standards Act (FLSA).

Although the Plaintiffs did not file any claims under the DBA or CWHSSA, Defendant argued that Plaintiffs’ claims were barred because there is no private right of action under those statutes. Defendant reasoned that  Plaintiffs could not “circumvent” Congressional intent to limit DBA/CWHSSA enforcement to administrative actions by the Department of Labor (DOL) by using the private right of action in the FLSA to sue for unpaid overtime wages. Plaintiffs’ argument, which the Fourth Circuit adopted, countered that Congress intended for the FLSA to be broadly applied, and that there is nothing in the DBA, CWHSSA, or FLSA that prohibits Plaintiffs’ action.

In addition to ruling that the Plaintiffs’ FLSA action could go forward, the Fourth Circuit adopted the DOL’s interpretation of DBA regulations that require FLSA overtime wages to be calculated at one-and-one-half times an employee’s DBA prevailing wage rate, regardless to whether or not the employee actually regularly received that rate of pay. See  29 C.F.R. § 5.32(a).

This sweeping decision in favor of the Plaintiffs marks a great victory for employees on DBA/CWHSSA worksites also subject to the FLSA, who now know that the broad humanitarian mandate of the FLSA is alive and well in the Fourth Circuit.

Special thanks go to MWELA/MELA members Omar Melehy, Sally Dworak-Fisher and Tassity Johnson of the Public Justice Center, Nick Woodfield, Rick Seymour, Jeremy Greenberg, Alan Banov, Jerry Goldstein, and co-counsel Virginia Diamond, who assisted with preparations for oral argument.  Also a tremendous thanks to Erin Mohan and Paul Frieden of the DOL, who briefed and argued in support of Plaintiffs as amicus curiae.