Research Notes

EEOC awards damages, fees and costs to legacy CBP employee because employer lost relevant evidence

An EEOC Administrative Judge awarded back pay and other damages, plus attorney fees and litigation costs, where the employing agency (Customs & Border Patrol, now part of Homeland Security) failed to preserve relevant evidence.  Our client claimed sex discrimination resulted in his not being promoted for a number of job openings.  When the case finally came to a hearing years later, Homeland Security had destroyed the promotion packet of the female employee selected for the earliest of the promotions.  This deprived our client of the ability to show he was substantially better qualified than she, resulting in an award in his favor.

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EEOC finds TSA baggage screener was retaliated against

In a March 2013 emailed notice to the parties and their attorneys, with formal decision to follow, an EEOC Administrative Judge found that a TSA airport baggage screener had been illegally retaliated against for filing a sex discrimination complaint.


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ECAB remands wage-loss denial by OWCP after letter carrier’s hours were reduced under NRP

When an industrially-injured Postal worker was “reassessed” by the Postal Service in 2009 and her work hours were reduced, she filed a claim with OWCP for wage-loss benefits under FECA.   She had partially recovered from her work injury and had been performing modified duty for years based on a loss of wage-earning capacity (“LWEC”) determination by OWCP that her modified duties were suitable.  Her claim for OWCP benefits was denied.  We successfully argued that OWCP failed to follow proper procedures in issuing the denial, including its own rules which prohibit basing an LWEC on makeshift work.  The Board, after oral argument by Mr. Brown in Washington DC, agreed and remanded the case to OWCP for re-adjudication following proper procedures.


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Air traffic controller avoids mandatory retirement with new position

Through filing and prosecuting several discrimination complaints, based on not being selected for job openings allegedly due to age or sex discrimination, our office was able to secure for the client a new position and other benefits.  The client was an air traffic controller who, during the litigation, found a lower-paying FAA job in another city that was not a controller position.  He had to move there and maintain two households while awaiting the outcome.  The new job obtained for him was back in his city of choice, was at substantially higher pay, and was not subject to the mandatory retirement age.  The Agency also paid monetary damages in the settlement.

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ECAB Reinstates Benefits for Air Marshall

In a January 13, 2012 decision, the ECAB reversed the termination of a Federal Air Marshall’s benefits, finding that the District Office had failed to meet its burden of proving that his condition had resolved on the basis of video surveillance and an independent medical examination. The ECAB found that the Office’s second opinion examiner did not offer sufficient rationale for changing his medical opinion after reviewing the video surveillance.


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ECAB Orders Pay Reinstated For Federal Law Enforcement Officer

The Employee Compensation Appeals Board has ordered OWCP to reinstate the wage-loss compensation of a long time federal law enforcement officer who was injured in the line of duty.

His employer had offered him a temporary light duty assignment which his doctors had stated was outside of his physical capabilities. OWCP made an informal determination that he could do the job and cut off his benefits.

The ECAB ruled that before terminating wage loss benefits, OWCP has to find the offered light duty position suitable. It must then give adequate notice to the claimant of its finding and give him an opportunity to respond. It did none of those things in this case.

Therefore, the Board overturned the Office’s decision stating, “[t]he Office did not follow proper procedures to determine that the modified job offered to appellant was suitable.” It further stated, “The notice and termination decision in this case appear as aberrations to established Office procedures and the well-defined precedent of the Board.”

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ECAB rules that Rural Carriers are covered driving to work

The Employee’s Compensation Appeals Board has ruled that a rural carrier who was in a car accident on her way to work was in the performance of duty as she was driving the vehicle which she intended to use to deliver mail on the date of the accident. The accident resulted in the amputation of the carrier’s leg. The carrier’s employer, the USPS, had argued that she did not have express permission to use that specific vehicle on the day of the accident. ECAB found that even if the carrier had violated the policy on getting permission before using her vehicle, such a technical violation would not remove her from the performance of her duties. ECAB ordered the District Office of OWCP to accept the claim.


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Widow’s pension awarded by OPM during MSPB appeal

The Office of Personnal Management reversed its position and awarded a survivor annuity to the former spouse of a deceased federal employee.  OPM had twice denied the widow’s application for death benefits, before she sought legal advice from our office.  Prior to the hearing, we filed briefs that convinced OPM to rescind its former decision and award the lifetime benefits to the widow.   OPM then faxed us a letter on 12/05/08, just prior to the pre-hearing conference that day, telling us of their favorable decision.

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MSPB Orders OPM to Grant Disability Retirement to Senior Border Patrol Agent

The Merit Systems Protection Board has reversed the decision of an administrative judge who, after a hearing, sustained the denial of the disability retirement application of an 18 year veteran of the US Border Patrol. The employee was injured and subsequently put on administrative leave for the investigation of non-work related misconduct. In denying the Agent’s initial application, OPM had stated that he had failed to show he was injured before he was placed on administrative leave. The Board ruled that the Office of Personnel Management (OPM) should have considered whether the injured worker became disabled at any period during his employment, up to and including the period of time that he was on administrative leave.

The employee had introduced uncontested medical evidence showing that he had several herniated discs. The Board found that the claimant had “presented an overwhelming body of consistent and competent medical evidence that corroborate[d] his subjective complaints, and [established] that his medical condition [was] incompatible with either useful and efficient service or retention in his former position” (Henderson v. OPM, Docket No. AT-844E-08-0071-I-1, August 4, 2008 at p.14).




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Postal Service Board of Appeals

* Mike Noble and U. S. Postal Service, PSBCA No. 5046, (08/26/04) – Postal Service’s termination of postal contractor’s route contract for alleged default converted to termination for convenience, with liquidated damages awarded.


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