Newsletter - March/April 2012

March - April

Case Remanded Due to Arbitrator’s Failure to Properly Consider PostRemoval Mitigating Factors

On April 10, 2012, the Federal Circuit issued its decision in Norris v. Securities and Exchange Comm’n, No. 2011-3129 (Fed. Cir. Apr. 10, 2012)., vacating and remanding an arbitrator's decision to sustain the removal of Mr. Norris from federal employment. The case was briefed at the Federal Circuit by Michael Kator and Adam Casner of Kator, Parks & Weiser, and argued by Mike Kator. The best take-away from the decision is that at MSPB, or at arbitration, in an adverse appealable action of a federal employee, you may present evidence of post-disciplinary good conduct in favor of mitigation. The MSPB and/or the arbitrator must consider such evidence. This is useful, for example, when an employee's misconduct may be explained by mental illness which then improves after the employee receives new treatment post-termination.

Some good excerpts:

“In this case, the arbitrator erred in holding that "post-removal . . . good conduct is not relevant to the issue before the arbitrator." Arbitration Decision, slip op. at 57 n.17. In assessing the reasonableness of the penalty imposed, the arbitrator was required to consider post-removal evidence that was brought to his attention. On remand, the arbitrator should consider the post-removal evidence submitted by Norris in evaluating the relevant Douglas factors. We express no opinion as to the weight to be given such mitigating evidence.

On remand, we leave to the arbitrator to determine whether, in light of all the evidence, the penalty of removal "did strike a responsible balance within tolerable limits of reasonableness." Douglas, 5 M.S.P.B. at 333.”

The decision is available on-line at:

– submitted by Cathy Harris

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Newsletter - March/April 2012

Conferences and Seminars

D.C. Bar Programs

“Drafting Employee Handbooks,” Thursday, April 26, 2012, 6-8:15 p.m. The cost is $89 is cosponsoring section members, $99 for D.C. Bar members, $109 for Government attorneys, and $129 for others.

“Affirmative Action Compliance Update,” Monday, April 30, 2012 from 12:30 p.m. to 2:00 p.m. at Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Ave., N.W., Conference Room 201, Washington D.C. 20004. The event is free. No registration is required.

“Most Employment Cases Settle – Getting to Mediation and Making it Work,” Wednesday, May 2, 2012 from 12:00 p.m. to 2:00 p.m. The cost is $20 for section members, $15 for students, and $30 for others.

D.C. Bar programs are generally held at the D.C. Bar’s new location at 1101 K Street, N.W., First Floor, Washington, D.C. unless otherwise stated. For more information and to register for these programs, please visit: EJC Annual Labor Day Breakfast

On Labor Day 2012, the Employment Justice Center will celebrate 12 years of successful advocacy and legal victories for low-wage workers! The EJC will hold its Annual Labor Day Breakfast on Friday, September 21, 2012 from 8:00 to 9:30 a.m., at the Capital Hilton Hotel, 1001 16th St N.W., Washington, D.C., for a breakfast to celebrate and honor the 2012 Workplace Justice Award recipients. For more information, go to:


MWELA D.C. Happy Hour, Thursday, May 17, 2012

Visit for the most current information.

MWELA Case Evaluation Clinic

MWELA's Case Evaluation Program, on March 22, 2012, conducted four case evaluations for the benefit of MWELA members seeking advice on issues in cases they are bringing.

The four cases included:

• an ADA lawsuit in USDC-E.D.VA for a former government contract employee who alleges constructive discharge;

• an ADA and FMLA complaint for a terminated employee against a local company;

• a complicated hostile work environment case before two U.S. District Judges in D.C. based on retaliation; and

• an age discrimination claim for an older woman who was RIF'ed by a government contractor.

Reviewing two cases each, the two case evaluation panels discussed a number of procedural, tactical, and substantive issues with the initiating attorneys in an hour-long session for each case.

We thank evaluators Gary Brown, Lenore Garon, Jon Gould, Jim Klimaski, Scott Oswald, Valencia Rainey, and Donna Rucker for generously offering their time and wise counsel to assist fellow MWELA members. ("Model juror" Edith Thomas, Ph.D, made a useful contribution as well.) We also thank The Employment Law Group for hosting the March 22 program. MWELA's Case Evaluation Program offers case evaluation panels on a periodic basis or at the specific request of a member.

The next case evaluation panel is scheduled for April 19. This panel will consider (1) an attorney's fees/Laffey rate issue (D.C. Circuit appeal) and (2) a complicated case involving FMLA, pregnancy discrimination, and equal pay. These case evaluations will take place at the offices of Gebhardt & Associates, LLP, 1101 17th Street, N.W., Suite 807, Washington, D.C. We will schedule another case evaluation panel in June. In the meantime, if a MWELA member needs a case evaluation, please call me at (202) 496-0400 .

– Joe Gebhardt, Co-chair

MWELA Case Evaluation Committee

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Newsletter - March/April 2012

Hostile Work Environment Claim Survives Summary Judgment

We just got a pretty good summary judgment decision in a D.C. District Court case, Herbert v. Architect of the Capitol, Civil Action No. 09-01719 (CKK). The decision is on Lexis, at 2012 U.S. Dist. LEXIS 37129.

It's the first case I can remember in a little while where the D.D.C. has let a hostile work environment claim survive summary judgment, but the case is really a civil procedure case, as she does not actually discuss the merits of the hostile environment claim.

A couple of points I thought were interesting in the case:

(1) The judge required us to split up the Plaintiff's case because some of the things we alleged in this civil action happened after discovery was well under way in a prior case we had filed. The court granted summary judgment on the prior claim (which if I am remembering correctly was premised on a reprimand). Judge Kollar Kotelly has left the door open for us to raise even the claims that were dismissed in the prior case as elements of the hostile environment in this case.

(2) She recognizes that even settled claims can be used as background to establish the hostile environment;

(3) She also recognized that - in some circumstances - discrete actions are suitable for consideration under a hostile environment theory. This is counter to some of her earlier decisions.

(4) A word to the wise when putting your facts together with Judge Kollar Kotelly: When you are citing to the factual support for your contention, cite to everything you have. Don't stop at one or two cites if you have 3 or 4 possible cites, as the following footnote illustrates:

Herbert has submitted a declaration with his opposition, which he cites in support of other allegations in his responsive statement of material facts. The Court is aware that, in his declaration, Herbert alleges that "[a]cting as a point man during Congressional [*13] moves entitles employees to better performance appraisals." Decl. of Cornell Herbert ("Herbert Decl."), ECF No. [43-5], ¶ 3. The Court declines to consider this allegation because Herbert failed to cite it as support for his contention that "[a]cting as a point man entitles employees to better performance appraisals." Pl.'s Resp. Stmt. ¶ 20 (citing Williams Decl. ¶ 11). See Fed. R. Civ. P. 56(c)(3) ("The Court need consider only the cited materials."); Scheduling & Procedures Order (Feb. 24, 2011) ("Scheduling Order"), ECF No. [34], ¶ 6(f) ("The parties must furnishprecise citations to the portions of the record on which they rely; the Court need not consider materials not specifically identified.") (bold in original). By doing so, Herbert failed to put the AOC on notice that he was relying on the allegation in his declaration and deprived the AOC of an opportunity to render a meaningful response.

Luckily for us, the point we were trying to make here was a very minor part of his claim. The AOC fared much worse. Kollar Kotelly basically ignored all of their arguments against our hostile environment because of a lack of clear citations to the record:

Meanwhile, where the AOC does address specific component acts identified by Herbert in its reply, its response almost invariably contravenes the terms of this Court's Scheduling and Procedures Order. Simply by way of example, the AOC (1) improperly attempts to incorporate argument made in its memoranda instead of setting forth all the information relevant to its response in its correspondingly numbered paragraph, see Def.'s Reply Stmt. ¶¶ 45-47, 49-50, 56-60, 102-111, (2) fails to offer precise citations to evidence in the record, id. ¶¶ 46-48, 49-53, 55-60, 65-119, and (3) fails to segregate its response to each paragraph in Herbert's responsive statement with a separate corresponding paragraph, see id. ¶¶ 46-47, 49-50, 52-53, 56-60, 66-72, 74-75, 76-79, 80-83, [*40] 86, 98-99, 102-111, 113-119. The Court declines to consider a response so plainly non-compliant with its directives.

– submitted by Les Alderman

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Newsletter - March/April 2012

Judge Issues $5.4 Million Verdict to Former DynCorp Employee

Judge Bruce White, Fairfax Circuit Court Judge, issued the verdict this morning, after three days of trial. The amount was $5,401,555.35 (as of today, with the prejudgment interest). Rod Leffler and I (along with Rod's partner, Alexa Mosley, and my partner, Carla Brown was involved in much of the litigation and motions practice) represented Gerald York, a former employee of DynCorp who was terminated first without cause (under a lay off), and then 10 days later for cause. DynCorp would not pay his Retention Bonus, because they found a gun in his drawer after they changed the locks and told him not to come back. They tried to use that as a basis to terminate him for cause, so they would not have to pay the Retention Bonus. DynCorp terminated Col. York for cause 10 days after DynCorp terminated him not for cause (DynCorp claimed that since it provided 2 weeks' notice, he was still an employee, so it could still terminate him for cause). Under the Retention Agreement, Gerald York had a right to notice and an opportunity to cure before termination for cause, which DynCorp did not do, claiming that the violation of their weapons policy was material and not curable because of the imminent danger to employees.

Judge White found that notice must be given, that DynCorp had contracted to provide notice and an opportunity to cure, under the circumstances it was curable, and Gerald York was therefore entitled to the Retention payment, plus interest from March 11, 2011 at 6%.

The attorneys on the other side were Steve Robinson, David Greenspan and Hans Riede from McGuire Woods. Highest offer: $1.9 million; lowest demand: $4.9 million.

Other significant events: DynCorp's expert was excluded because the Designation was insufficient, under Crane. Also - the Court chastised counsel for DynCorp for discovery abuses during trial, including not providing clearly available information in discovery, claiming it was not aware of any documents, and substituting its own self-serving documents for the actual documents requested. There were also misrepresentations made by counsel for DynCorp on the record that were disproven by documents and deposition testimony.

Thanks for your support! This was an ugly litigation, but Justice prevailed and the good guy won.

– submitted by Elaine Charlson Bredehoft

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Even with a last minute change venue, MWELA’s Annual Conference, held on March 9, 2012 at the Washington Plaza Hotel, once again proved to be a great educational and social event for its 150 attendees. The Annual Conference also provided a wonderful opportunity to honor long-time MWELA member Joel Bennett as MWELA Lawyer of the Year for his career dedicated to protecting the rights of employees, and in particular for his work defending allegations that his client’s sexual harassment complaint against former presidential primary candidate Herman Cain was frivolous.

The Conference featured six panel discussions and a luncheon keynote speech by EEOC Commissioner Chai Feldblum, followed by a cocktail reception.

MWELA would like to thank its conference planning committee and our Bronze sponsor: LEX
GROUP VA; as well as our Exhibitors: Capital Inquiry, Capital One, LexisNexis, NELA,
ThomsonRueters/FindLaw, and Workplace Fairness

MWELA’s Officers are Re-Elected

The current MWELA officers have been re-elected
by the Board for another year-long term. The
officers are: R. Scott Oswald, President, Jonathan
Puth, President-Elect; John Ates, Vice-President;
Alan Kabat, Treasurer; Yuval Rubenstein, Secretary.

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Newsletter - March/April 2012

OFO Remands Case to MSPB Involving Complainant’s Disclosure of Documents and Information to EEOC Investigator and His Attorneys

The saga of Marcus Smith is almost over, we hope. In 2005, the Federal Aviation Administration proposed to suspend Marcus for 30 days based on four charges. The first two charges were based expressly on his giving documents and information to the EEO investigator and to us, his attorneys. The third charge was unauthorized removal and possession of a disciplinary memo to his supervisor. The fourth charge was garbage. We won before the Atlanta MSPB with AJ Pamela Jackson. She found that the Agency had disciplined Marcus for engaging in protected activity, found retaliation, and reversed the discipline. The FAA (Russell Christenson) filed a Petition for Review, which the Board (2-1) granted on the first three charges (the dismissal of the fourth charge was affirmed).

We filed a Petition with the EEOC Office of Federal Operations. The OFO did not decide the case on direct evidence, but concluded that Marcus had established a prima facie case and the Agency had articulated a legitimate non-retaliatory reason for its action. The OFO was primarily troubled by the fact that Marcus had found a counseling memo for his supervisor in his supervisor's desk drawer which he turned over to the investigator because he thought it was relevant to his case (he was not represented by counsel at the time and as a non-lawyer his belief in the relevance of this document was understandable). Marcus was authorized by his supervisor to look in the desk drawer for a different document, and the memo was on the top of the pile.

The OFO then remanded back to the MSPB for the taking of additional evidence on comparators. The parties filed additional briefs on this issue with the MSPB, which then forwarded this "new evidence" to OFO. Four and one-half years after the filing of the initial Petition (note that the regs establish that OFO has 60 days to issue a decision), OFO finally ruled in Marcus's favor. It isn't the cleanest decision. They don't come right out and say you can't discipline someone for giving documents to an investigator, but they found an adverse inference against the Agency for its behavior during the Petition process which they equated with pretext. Specifically, the Agency asserted that there was evidence of employees similarly charged and punished who had not engaged in protected activity; however, they refused to produce this evidence in direct contravention of the EEOC's order. I note that the comparator evidence actually produced by the FAA, after it maintained for years that there were no comparators and refused to produce such evidence, reflected that they only charge employees who have engaged in protected activity with this particular violation.

So, now the case goes back to the MSPB for its determination of whether it will uphold its initial decision or agree with the EEOC's decision. I am hopeful that the Board will do the right thing this time. None of the original Board members are now on the Board. Assuming they confirm the EEOC's decision, we will proceed to a damages hearing, and boy, can I tell you, there are a lot of damages, not to mention fees.

– submitted by Elaine L. Fitch

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Newsletter - March/April 2012

State of Maryland Settles Sexual Harrassment/Assault Suit

We're pleased to announce a settlement in the case Demby et al v. Department of Health & Mental Hygiene et al., No. 1:06-cv-01816-CCB (D. MD) for $425,000 plus extensive programmatic relief in our case against the Maryland Department of Health & Mental Hygiene, the Mental Hygiene Administration, and the Eastern Shore Hospital Center. Our two female clients -- one developmentally disabled and the other with a traumatic brain injury -- were sexually harassed and sexually assaulted by staff and co-workers at a sheltered workshop in Cambridge, MD.

Importantly, in addition to monetary relief, the settlement agreement binds the state to undertake and enact annual training of all patients, clients, and staff of every state mental health and developmental disabilities facility, as well as all facilities licensed by the Mental Hygiene Administration and Developmental Disabilities Administration throughout the state of Maryland (not just this single sheltered workshop). Where necessary the state will undertake new rule-making and regulations. Specifically, the state must develop with advocates for the mentally and intellectually disabled effective curricula for that population to understand, resist, and report instances of abuse, sexual abuse, and sexual contact. Employees of state and licensed facilities are also required to undertake specific annual training in that area. As well, under the terms of the settlement every reported instance of sexual or exploitive acts must be reported within one day to the Maryland Disability Law Center. The nonmonetary relief was a critical goal of our clients.

The case was filed originally by Mike Tarone, who co-counseled the case with me and my associate Jeremy Monteiro. Judge Catherine Blake presided over the case and will continue to for another couple of years while the non-monetary relief is implemented.

– submitted Jonathan C. Puth

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Newsletter - March/April 2012