INTELLIGENCE AND SECURITY CLEARANCES. DOHA lists some decisions and we give the DOHA link, in our home page. In most cases, the Government denied a clearance because the employee met a disqualified condition and did not mitigate it OR some facts or focus is missing from the case file which would have resulted in the clearance. (Usually the Government knows its business here and a disqualifying condition applies. The Government, however, tends to focus on the concern, not beyond it.) In some cases, the employee gives wrong answers on the security form or in interviews because of an aggressive interviewer, tired employee, or the employee does not know what is material or confuses opinion and inference with fact, or the employee has lied (which is a felony, by the way) or for other reasons. In other cases, the employee will not get a clearance now but can take actions to mitigate matters for a future clearance. An obvious example is an alcoholic who needs to stop drinking. The case outcomes are VERY fact determinative and focused on the individual person. By knowing what is important, you can take proactive steps but also be direct with the Government why the clearance should be granted (or with yourself on why to wait and not appeal.)

NON COMPETE AGREEMENTS. We do not list many cases here. We may later mainly because it is a fun area for us. However, the Agreements are subject to State law and vary some by law and vary A LOT by the facts of each case and the job. On most we find ourselves focused on whether the Agreement has binding language and, if so, the reasonableness of restrictions according to geographic and industry limitations. At that point you and your job becomes the focus, as do practical concerns. These noncompete cases -- and trade secret, duty of loyalty, and proprietary information cases -- get very individualized.

Divorces Prior to 1985: Former spouse argued that she was entitled to survivor benefits by virtue of an amended court order dated October 1, 1987. The MSPB rejected that argument because the couple divorced prior to May 7, 1985, and 5 C.F.R. §838.802(a) extends survivor benefits, where those benefits are provided by court order, to marriages that ended on or after May 7, 1985. Aldrich v. Office of Personnel Management (Fed.Cir.2006),

SECURITY CLEARANCE -- ACTION IN WRONG COURT AND BEING FOCUSED EARLY ON THE SECURITY CLEARANCE ISSUE. In employment termination case, former employee alleged discrimination and retaliation and breach of a mediation agreement, and the District Court dismissed for lack of jurisdiction. The Court of Appeals held that adjudication of the employee's claims would have required consideration of the merits of the agency's explanation that the employment termination was because the employee could not keep a security clearance, and thus the Court did not have subject matter jurisdiction. Bennett v. Chertoff (D.C.Cir.2005)

NOT UNDERSTANDING CASE EARLY AND NOT RAISING SIMILAR SUBSTANTIVE CLAIMS AS WOULD IN COURT. Miles v. Dell, No. 04-2500 published (4th Cir. November 22, 2005). "Before a plaintiff has standing to file suit under Title VII, he must exhaust his administrative remedies by filing a charge with the EEOC." Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002). The exhaustion requirement ensures that the employer is put on notice of the alleged violations so that the matter can be resolved out of court if possible. See EEOC v. American Nat’l Bank, 652 F.2d 1176, 1186 (4th Cir. 1981). While "[t]he EEOC charge defines the scope of the plaintiff’s right to institute a civil suit," "[a]n administrative charge of discrimination does not strictly limit a Title VII suit which may follow; rather, the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Bryant, 288 F.3d at 132 (quoting Chisholm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). In other words, "[i]f a plaintiff’s claims in her judicial complaint are reasonably related to her EEOC charge and can be expected to follow from a reasonable administrative investigation, the plaintiff may advance such claims in her subsequent civil suit." Smith v. First Union Nat’l Bank, 202 F.3d 234, 247-48 (4th Cir. 2000).

EQUAL PAY WHEN SAME DUTIES AND SAME WORK. The Court found that the employee established a prima facie case under the Equal Pay Act because the employee performed "substantially similar" work to his identified comparators. The Court rejected the “three factor” criteria the agency offered in defense of its actions. Harrison v. Principi (D.S.C.2006), 2006 WL 1581807

MISCONDUCT AND NO MITIGATION OF PENALTY. The deciding official mitigated a proposed removal to a demotion to a part-time position. The employee filed an appeal that the penalty was unduly harsh. The AJ mitigated the penalty to a demotion to a lower level, non-supervisory position. The MSPB agreed with the Agency and held that the deciding official considered mitigating factors and it was improper for the AJ to independently weigh them. Batten v. United State Postal Service (2006). (From another case: "The Board will give deference to an agency's decision regarding a penalty unless that penalty exceeds the range of allowable punishment specified by statute or regulation, or the penalty is "so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion." Parker v. U.S. Postal Service, 819 F.2d 1113, 1116 (Fed.Cir.1987); see Lachance v. Devall, 178 F.3d 1246, 1251-52, 1258 (Fed.Cir.1999).")

OR MAYBE SO. Employee was fired because of refusal to carry out assigned duties where the safety of persons and/or property is involved and a threatening, workplace comment. The MSPB sustained the remova on refused to carry out his assigned duties. The employee argued on appeal that the appropriateness of the penalty was not properly assessed by the MSPB because only one charge was sustained. The Court agreeed and remanded the case for further proceedings. Zwagil v. General Services Admin. (Fed.Cir.2006).

NATIONAL GUARD TECHNICIAN -- LAW AND FIGHT MILITARY SIDE OF HOUSE. BUT WATCH LEGISLATION FOR DOD AND INTELLIGENCE COMMUNITIES. SOME POSSIBLE OR ACTUAL CHANGES IN 2006, 2007. After employee was terminated from his civilian position in the Department of the Army because he had been discharged from the United States Army Reserve (USAR), employee appealed his termination from the civilian job. The Merit Systems Protection Board (MSPB) dismissed the appeal, and employee appealed. The Court of Appeals held that grounds for employee's discharge from USAR were not reviewable indirectly through MSPB, and thus, MSPB did not err in dismissing appeal of termination from the civilian job, which resulted from discharge from the USAR. Lauck v. Army, No. 01-3225, (Fed. Cir., March 27, 2002 (unpublished). In Singleton, National Guard technician sought corrective action under Whistleblower Protection Act (WPA) and the Court of Appeals, Clevenger, Circuit Judge, held that claim was one as to which MSPB could not afford an effective remedy. Singleton v. MSPB, 244 F.3d 1331 (2001).

NEXUS TO PROTECTED ACT, WEIGH IMPACT, REPRISAL. In not selecting an Employee for a position the selecting official said that one reason the employee was not selected was prior complaint of harassment against a former supervisor. The EEOC concluded that absent her complaint of harassment, the employee would have been selected for the position and upheld finding of retaliation. Wardle v. Bement (2006).

WHAT IS A REASONABLE ACCOMMODATION AND FACT DETERMINATIVE. Disabled Employee's telecommuting arrangement terminated for a period of 24-weeks, and Employee alleged failure to give a reasonable accommodation. The Court found these questions raised a genuine issue of material fact for trial and denied the agencys motion for summary judgment. Cripe v. Mineta, (D.D.C.2006).

POST EMPLOYMENT RESTRAINTS: Even when NO non compete agreement, take care. Common law and statutory restraints apply to post employment activities. An Employee has a fiduciary duty of loyalty during employment and may make arrangements to compete post-employment absent a contractual restriction. However, the employee cannot act unfairly. In many cases, and States, an employee may not solicit employer customers before departing or engage in other activities harmful to the employer. prefer employer interests to employee interests when working for employer.

VRRA and potential USERRA issues: Mr. Kiszka served in AGR from November 1984 to May 1994, at which time he was reappointed as a civilian technician in MANG. MANG characterized his 1994 appointment as a reemployment pursuant to the Veterans' Reemployment Rights Act ("VRRA"), 38 U.S.C. Chapter 43. He retired after being involuntarily separated from the National Guard upon reaching the mandatory retirement age and time in rank. See 10 U.S.C. §§ 14506, 14513. OPM denied retirement for several reasons. The Court held that: Mr. Kiszka has not shown that he was entitled to reemployment with MANG, and consequently he has not shown that his AGR service interrupted creditable civilian service. He has therefore not shown that he is entitled to a CSRS annuity under 5 U.S.C. § 8336(d)". Kiszka v. OPM, 04-3038 (Fed. Cir. 22 June 2004).

ADVERSE ACTIONS: An early road map of potential issues is a good idea.

Comment: See the interplay among the MSPB, EEOC, and U.S. District Court forums when an adverse action case has discrimination issues, also? Basically, once a matter has been determined as the basis for a judgment, a party against whom the claim, issue, or fact was resolved cannot re-litigate the matter. An Employee alleged discrimination after she was removed from her position. She first appealed to the EEOC, which dismissed for lack of jurisdiction. The employee then filed an appeal of her removal to the MSPB in which she failed to preserve her discrimination claims. After the employee filed a lawsuit alleging discrimination, the agency moved for summary judgment. The Court found that because the employee failed to present her discrimination claims on direct appeal from the MSPB, the doctrine of res judicata precluded her from litigating them before the Court. Lozado- Boulware v. Snow (N.D.Ill. December 2004).

MORE RETIREMENT CASES (seeing more and more now): Form over substance and is the Covington holding dead? The Court did not accept a mutual mistake argument concerning erroneously checked box on an OPM form and held that the election of survivor annuities on an OPM form irrevocable and election could not be changed or revoked once it was received by OPM, and a statement on the election form acknowledged that the signatory understood the irrevocable nature of the election. Impact mitigated by wife's later waiver. James v. Office Of Personnel Management (Fed.Cir. 03-3313, 23 June 2004).