Index

• Insight By Mike Causey: Paying for Thrills
• Union Perspective: NFFE, Mourning Loss, Moves On
• OPM Retains Time-in-Grade Rule
• Postal Union Members Rally Against Amendment
• Senate Approves Two for FLRA
• In Brief: EPA Orders Staff to Cooperate with IG
• In Brief: Bill Would Expand Vets’ Use of Medicare
• In Brief: CBP Offers Reward in Agent’s Murder
• Informed Investor: Preparing for the Roth IRA Conversion Opportunity in 2010: Part I
• You Be The Judge: Was Maintenance Inspector Discriminated Against?

Insight by Mike Causey: Paying for Thrills

I think I read somewhere that August is “Rant Month.” I hope so. If it isn’t, it ought to be, because I’ve been stewing about something for years and recent events brought it to a head.

The events are:

1) Two journalists who wandered into North Korea from China got caught and were sentenced to heavy jail time. It caused the U.S. government lots of heartburn, maybe forced us to give the North Koreans something—tangible or diplomatic—that we didn’t want to give them. Former President Clinton went over as a “private citizen” and brought the two journalists home, where they no doubt are getting a hero’s welcome. I always wonder in cases like this: Who pays the bills? The answer, I think, is: Look in the mirror. I am happy that the two were pardoned by the North Koreans. I would be even happier if they had never put themselves in harm’s way in the first place.

2) Tourists who went on “vacation” in Iraq apparently wandered over the border into Iran and were apprehended. Uncle Sam no doubt will get them out, maybe by the time you read this, but again, it may cost us—you, me and the government—a lot more than just money. These tourists should go to the beach, or a dude ranch, or the neighborhood pool next vacation.

A couple of years ago a young guy—twentysomething—decided to kayak around the big island of Hawaii. They call it the big island because it is really, really big. Anyhow, he got swept out to sea. Lost his paddle or something. The state and federal governments launched a massive search. Coast Guard personnel risked their lives to save the guy. They finally did. He was badly sunburned and dehydrated, but they took care of that at the hospital. The first thing he said when he came to is that as soon as he got better he was going to do it again. So stand by, Coast Guard—be prepared to drop what you are doing for our adventure-loving friend.

Another case: In the 1970s, Washington was hit by a major hurricane. It was one of those that got bigger and stronger as it moved north. As I recall, we got it worse than did Richmond, Va.; and Harrisburg, Pa., got it worse than us. Anyhow, the Potomac rose to unbelievable levels, covering the parkway on the Maryland side, as well as the C&O Canal, which runs alongside the river. Only the tops of very tall trees were visible. The water was moving fast. I was watching it one day when we noticed two kayakers stuck in a tree.

The U.S. Park Police, Maryland state police, the Coast Guard and a county police squad spent the better part of the morning risking their lives—and expensive equipment—to save the two thrill-seekers. Some people in the crowd, watching the dangerous rescue attempts, shouted that the police should, uh, arrest the dudes rather than rescue them. They finally got out, although a couple of cops were hurt and some equipment lost and ruined. The guys lost their kayaks, but they probably had insurance.

Every year, in the U.S. and around the world, thousands of mountain and rock climbers get stuck or hurt, and have to be rescued. Eventually, they must be rescued by local authorities or National Park Service types who probably earn less in a year than the climbers spent on equipment and transportation. Helicopters are often brought in and climbers must take lots of life-threatening risks to save the climbers.

What I propose is this: People who are planning to vacation in a war zone, or in a country where they have pledged to kill us, should have to post a bond. As in lots of money. It would be in an account controlled by the government. These folks would get their money back if they came back on their own. But if some of Uncle Sam’s people have to go get them, and foot the bills, these people would forfeit the substantial bond. It would be used to pay what it cost to save them, with any leftover going to a charity that supports people who save lives for a living.

A substantial cash bond (say a couple of hundred thousand bucks) also should be required of people who have the guts, time and money to climb dangerous mountains. It would be used to cover the expenses for rescuing them. Or they could go without making the deposit, provided they sign a paper saying they don’t need, want or expect any help if they get into trouble.

Life is dangerous enough without looking for trouble. Most of us don’t go into the worst parts of our cities—night or day—because we know we are targets. Nor do we stick our fingers in light sockets, or (after a certain age) put beans up our noses.

Actions have consequences. Various federal, state, local and private groups are dedicated to saving lives even, and often, at the risk of their own.

If these thrill-seekers—often they are pretty affluent—want to keep pushing the envelope, fine. Be my guest.

But leave a little rainy day money—say $500,000—or more, in case you need bailing out, even if what you are planning is illegal. Because we as a society and a government help people in trouble. But it would be nice of those who knowingly and happily risk their lives for kicks, or a T-shirt or video of themselves in action, could pay the bill for their rescues. Or maybe the tuition for the kid whose mother or father dies while saving the thrill-seeker.

Just a thought.

:: Back to Top ::

Union Perspective: NFFE, Mourning Loss, Moves On

William R. Dougan, a longtime union official with the National Federation of Federal Employees (NFFE)—and recently its National Secretary Treasurer—took office as president of the union in June in the wake of the unexpected death of NFFE President Richard N. “Rick” Brown. Under Brown’s 10-year stewardship, the union came back from the brink of collapse to be once again among the top tier of federal employee unions. The union represents more than 100,000 workers at various agencies ranging from the Department of the Interior to the Department of Veterans Affairs. This week, FEND offers a lively exchange with Dougan on his union’s top priorities, and his opinion on the many issues facing his and other federal employee unions.

Q&A WITH NFFE PRESIDENT WILLIAM R. DOUGAN

Before becoming NFFE President, you served as team leader in negotiating the Forest Service’s last Master Agreement, completed in 2007. Can you tell us about those negotiations, and how they contributed to your work now, if they did?

Dougan: The Forest Service Council is made up of about 90 locals, plus or minus, so that’s a significant number of locals within NFFE. Our membership in those was about 2,000 members. So that work helped me, organizationally, to learn about the union, and to hone my leadership and communications skills. Working with the executive board in the council is similar to working with our national executive board. I think all of that helped me. And I think my time as NFFE national secretary treasurer—where I served for a little over two years before stepping in upon Rick’s [Brown’s] passing—also helped me to become very familiar with a lot of the issues that we deal with here, now, at the national level.

What were the most difficult parts of the Forest Service contract negotiations?

Dougan: The history of that contract—that bargaining agreement—goes way back. The Forest Service has a nationwide bargaining unit, and we’ve had a good contract for a number of years. So, for any given contract negotiation in the recent past, I would say in general neither party—the union or the agency—has come to the table hoping to make a large number of really significant changes to our contract. That’s very helpful—that those before us did a really good job of getting a good contract … [However,] one of the most difficult parts of our last contract negotiation was that we completely overhauled our negotiated grievance procedure. We took the previous procedure, which was a three-step process, and we did away with that. We went to a one-step process. And we added a ‘pre-grievance, informal process’ … to try to work out the problem informally [between management and employee] first. 

What remains the biggest problem area for you at NFFE? What are your most important two or three goals for the union at this point?

Dougan: In terms of goals for our union, one of our primary focus areas continues to be organizing and recruiting new members. That presents a lot of opportunities and challenges for us. We just developed a strategic organizing plan for NFFE, and we will soon be beginning to implement that. And I am very optimistic that this will really help us to focus our organizing and recruiting of new members in the next several years. I think that’s probably the biggest thing we’ve got going. A couple of other areas are important. We are obviously still very concerned about NSPS [National Security Personnel System]. It’s a focal point, legislatively speaking—getting this thing stopped once and for all. It continues to morph into something different every time you think you’ve got it under control. We—and other unions—also are anticipating that the Obama administration will issue an executive order which would restore partnership and collaborative labor-management relations in the federal government. We think that it’s something that’s long overdue. Basically, the previous administration [did away with] Clinton’s executive order on partnership. Then we went through eight years without partnership in the federal government. I think that’s been a real detriment.

You now have a new White House, one which has presented itself as more union-friendly than the last administration. In your observation, is that true on the ground so far?

Dougan: So far we’re seeing a mixed message. Obama, as a candidate seeking office, was pretty adamant about being on our side and supporting our issues, for the most part. So far, since the inauguration, we’ve seen in some cases some very positive things. I’m very pleased with the senior-level positions that have been filled in the federal government. And in the FLRA [Federal Labor Relations Authority] and MSPB [Merit Systems Protection Board], etc., I think he’s done a very admirable job of finding a good mix of people with good leadership qualities. I think he’s going to help us here to move forward. What I am not so pleased about is this NSPS thing. We had assurances from the Obama administration that NSPS was going to die its death. But for whatever reason, it continues to exist. I think the problem here is that Obama has come out—at least in the press—as pushing in favor of pay for performance, and that has made some sort of a tie to NSPS. I think these people don’t understand that NSPS is much more than pay for performance. That’s an important piece of it, but there are other pieces of NSPS that have nothing to do with pay for performance. I think that we as taxpayers, and federal employees and union representatives, would be much better served by looking at what John Berry as the head of OPM has been talking about since he came into his position. He has been pushing for looking at overhauling all the various personnel systems we have in the federal government, and coming up with a single personnel system that will work for the federal government as a whole. I’m very supportive of doing that. And, I think in order for us to do that, we have to stop pushing this NSPS agenda, set it aside, and look at all the options on the table. And if we are going to design a new personnel system, let’s get labor and management sitting down at the same table, working to do that. NSPS right now has become the 300-lb. gorilla in the corner of the room that’s sort of tainting this idea of a fresh look and review of personnel systems.

Susan Tsui Grundmann—who served as NFFE’s chief counsel in fighting NSPS and other matters—was recently nominated by the White House to head the Merit Systems Protection Board. If she is confirmed, do you expect her to make a big difference for employees in their appeals of personnel actions?

Dougan: I can’t comment specifically on her nomination—I am trying to respect the confirmation process. But I will go so far as to say that I believe with her appointment, she brings a lot of good qualities to that position. And I look forward to her ultimate confirmation by the Senate. I think she is a very good selection for that position.

Your union recently suffered a terrible shock and loss, as union president Richard Brown suddenly passed away at the end of June. What will he be remembered for most?

Dougan: Rick Brown was many things to many people. But I think the most important thing he accomplished in his tenure as president was rescuing NFFE from the throes of nearly dissolving as a union. He stepped into that situation when he was elected president in 1998. At that point, our union had gone through very tumultuous times, through many years and several presidents—and a period of bickering and fighting between our executive board and our union leadership. Rick stepped in and immediately took charge. He had the vision to see what the problems were, and to quickly create the strategy to deal with them. And he pulled us back from the brink of bankruptcy and closing the doors. Then he took us back from there in his 10-plus years, to the point where we are still the oldest federal union in the United States. I feel we have coalesced around his leadership the past 10 years, and we now speak more with one voice than we did in the past. We know where we are and where we want to go. And a lot of credit for that—the turnaround in our membership as well as for taking care of the finances—it has to fall to Rick. He should be credited for that. I hope people remember him for this, in addition to all of the other wonderful things he has done, because without it we wouldn’t be having this conversation today—with me as president of NFFE.

To see more on NFFE, go to www.nffe.org.

:: Back to Top ::

OPM Retains Time-in-Grade Rule

The Office of Personnel Management (OPM) announced in an Aug. 11 Federal Register notice that it would retain the time-in-grade (TIG) regulation, and abandon the plans to eliminate it proposed by the previous administration.

TIG, which applies to federal employees in competitive service General Schedule (GS) positions grades 5 and above, requires employees to serve for 52 weeks at a position before becoming eligible for a promotion. A rule change proposed in the waning days of the Bush administration last year would have abolished TIG this month, and employees would have been promoted whenever supervisors determined that they met qualifications for a new position.

OPM, which originally published the TIG elimination regulation in November 2008, later postponed the new rule’s May 18, 2009, effective date to Aug. 16, 2009, to seek additional comments on the rule.

Among those submitting comments, employee organizations noted that without TIG, managers could hire candidates who qualify for higher-grade levels to positions at lower-grade levels, and then promote them quickly to higher-grade positions without competition. The net effect would be that such employees could obtain higher-graded positions such as GS-12 based on competition at a lower-graded position such as GS-5.

The National Treasury Employees Union (NTEU) applauded OPM’s move. “Many managers are not well-trained,” said NTEU President Colleen Kelley, “and pay or promotion schemes instituted without training, objective criteria and adequate oversight can lead—and have led—to favoritism, nepotism and actual illegal discrimination.”

NTEU pointed out that agencies already have the ability to reward employees within the GS pay system—through Quality Step Increases for superior performance, for example.

OPM said that it would consider revamping the TIG rule at a later date as part of a larger review of the way the federal government pays its employees.

“OPM has determined that it would be more productive to consider the merits of the time-in-grade issue as part of a more comprehensive review of pay, performance, and staffing issues that OPM and the Administration are conducting in various contexts than to regulate one isolated issue in a piecemeal fashion,” the agency said.

To see more, go to: http://edocket.access.gpo.gov/2009/E9-19174.htm or www.nteu.org/PressKits/PressRelease/PressRelease.aspx?I=1468.

:: Back to Top ::

Postal Union Members Urged to Rally Against Amendment

The American Postal Workers Union (APWU) is urging members to use the congressional summer recess to organize grassroots opposition to a Postal Service relief bill amendment that APWU says would ruin the collective bargaining process.

Senators left town last week without voting on a final version of the Postal Service Retiree Health Benefits Funding Reform Act of 2009, S. 1507. Union leaders want members to use the down time to sound off against an amendment to the bill, sponsored by Sen. Tom Coburn, R-Okla., that would require arbitrators who rule on postal contracts to take into account the “financial health of the Postal Service.” The amendment is a mistake, APWU says.

In testimony earlier this month before a Senate subcommittee, APWU President William Burrus argued that the amendment would shift the emphasis to the service’s financial condition when other issues are at stake. “Collective bargaining is either free or it’s not,” Burrus said, adding that Coburn’s amendment would put “a thumb on the scale” for management during contract deliberations.

At the same hearing, National Association of Letter Carriers (NALC) President Fred Rolando told lawmakers that they were misled when the amendment was introduced. Rolando noted that when Coburn offered the amendment, he erroneously declared that “the current law prevents arbitration boards from considering postal finances.” This statement went unchallenged during consideration of the amendment, the NALC president added.

Under current law, arbitrators must consider the “comparability” of postal workers’ wages to those of employees in the private sector who perform similar work. But they also consider USPS financial status as part of the larger negotiating picture without the single focus that the Coburn amendment would mandate, APWU said.

Burrus pointed out that Coburn and other Republican senators left the subcommittee hearing before the union leaders testified, and none of them returned for the question-and-answer session with the union leaders.

In a memo to members posted Aug. 10 on its Web site, APWU asked that members arrange meetings with senators or their staffs while they are back home this month. The union also encouraged members to help spread the word to fellow workers in break rooms and at union meetings.

“I urge every APWU member to make our voice heard by sending letters to their U.S. senators,” said Burrus.

S. 1507 and a House companion bill, H. 22, would reverse a law that requires the Postal Service to “pre-fund” retiree healthcare benefits—a requirement that threatens financial well-being of the Postal Service. Union leaders support the larger effort to eliminate the pre-funding requirements, and asked that senators embrace H. 22, which does not contain such an amendment. USPS recently announced a third-quarter loss of $2.4 billion, which means that USPS probably will post a $7 billion deficit for Fiscal Year 2009.

To see more, go to: http://apwu.org/news/webart/2009/09-092-s1507-update-090810.htm. 

:: Back to Top ::

Senate Approves Two for FLRA

The Senate by unanimous consent on Aug. 7 approved the nominations of Julia Akins Clark and Ernest DuBester to the Federal Labor Relations Authority (FLRA).

Clark, who will be the new FLRA general counsel, served as general counsel of the International Federation of Professional and Technical Engineers (IFPTE) before her appointment. Clark holds a law degree from American University, and started her legal career as an honors program trial attorney in the Department of Justice’s Antitrust Division.

DuBester, who will serve as an FLRA board member, served as chairman and a member of the National Mediation Board (NMB) under President Clinton, and has worked as a mediator at NMB since July 2005. DuBester holds a law degree from Catholic University, and served as legislative counsel to the AFL-CIO from 1984-93.

“During her 21 years of employment with IFPTE, [Clark] has served with extraordinary honor and distinction,” said IFPTE President Gregory J. Junemann. “She has worked tirelessly to provide assistance to all IFPTE locals, in which her efforts had a significant and positive impact on every local and every sector of our union.”

During a nomination hearing last month, Sen. Daniel K. Akaka, D-Hawaii, said the selection of Clark and DuBester to FLRA comes at a decisive time for the agency, which is suffering from low morale and questions about its leadership. In the Partnership for Public Service’s 2009 Best Places to Work Rankings, FLRA ranked last among small federal agencies, the senator said.

“The nominations of Mr. DuBester and Ms. Clark come at a critical juncture for the FLRA,” Akaka said. “The FLRA is responsible for providing leadership in establishing policies and guidance relating to federal sector labor relations. For far too long, however, the FLRA has failed to carry out its mission.”

For one thing, Akaka said, FLRA has been without a general counsel since February 2008 and its board has been short-staffed.

“Personnel shortages have led to a serious backlog of cases at the FLRA,” Akaka said. “I expect these nominees to be strong advocates for fair employment practices in the federal government.”

An independent agency, FLRA administers the labor-management relations program for 1.9 million non-Postal federal employees worldwide, approximately 1.1 million of whom are exclusively represented in 2,200 bargaining units.

To see more, go to: www.whitehouse.gov/the_press_office/President-Obama-Announces-More-Key-Administration-Posts-6-4-09/, www.ifpte.org/Downloads/Archives/Press%20Releases/2009/PRAkinsClarkFLRAconfirmed.pdf or http://hsgac.senate.gov/.

:: Back to Top ::

In Brief: EPA Orders Staff to Cooperate with IG

Environmental Protection Agency (EPA) Administrator Lisa Jackson ordered agency staff to cooperate with the EPA Office of Inspector General (OIG)—effectively reversing parts of an existing internal “gag order,” according to documents posted Aug. 10 on the Public Employees for Environmental Responsibility (PEER) Web site. Jackson’s Aug. 7 email to all EPA employees partially rescinds a June 16, 2008, email distributed throughout EPA’s Office of Enforcement and Compliance Assurance warning staff not to respond to outside questions without prior approval. The Jackson memo partially reverses that policy, stating: “It is imperative that, upon request, agency personnel provide OIG auditors, evaluators and investigators with full and unrestricted access to personnel, facilities, records (including, but not limited to, reports, databases and documents), or other information.” Although the Jackson memo lifts the ban on talking with the OIG, it left unanswered whether the 2008 prohibition against speaking to congressional investigators, the Government Accountability Office and the media was still in place, PEER noted. “Unfortunately, the new policy appears to be that EPA employees will be only half-gagged,” said PEER Executive Director Jeff Ruch. “It shows how low EPA had sunk that the administrator must signal as a policy change that employees will now cooperate with their own Inspector General.” To see more, go to: www.peer.org/news/news_id.php?row_id=1227.

:: Back to Top ::

In Brief: Bill Would Expand Vets’ Use of Medicare

Rep. Bob Filner, D-Calif., has introduced a bill that would—if passed into law—allow veterans to use their Medicare benefits to receive health care from the Veterans Health Administration at the Department of Veterans Affairs (VA). The bill, H.R. 3365, the Medicare Reimbursement Act, would require VA to develop a program that would allow the department to bill Medicare for services rendered to vets enrolled in Medicare Part A or B.  Under current law, VA has the authority to bill enrolled veterans and their private health care insurers for the treatment of veterans’ non-service-connected conditions. However, current law prohibits VA from billing Medicare, Filner said, thereby barring older vets from using their earned Medicare benefits at VA health care facilities. H.R. 3365 also prohibits setting a reimbursement rate that is less than 100 percent of the amount that Medicare would pay a participating provider, Filner said. Introduced last month, the bill has been referred to the House Veterans Affairs health subcommittee. To see more, go to: http://veterans.house.gov/news/PRArticle.aspx?NewsID=461.

:: Back to Top ::

In Brief: CBP Offers Reward in Agent’s Murder

Customs and Border Protection (CBP) this month announced it was offering a $250,000 reward for information leading to the arrest and conviction of those responsible for the death of Border Patrol (BP) Agent Robert Rosas. The BP agent was killed in the line of duty July 23 near Campo, Calif., after responding to suspicious activity in an area notorious for alien and drug smuggling, said CBP acting Commissioner Jayson P. Ahern. The CBP award is being offered in addition to the FBI’s $100,000 reward offer and an additional $10,000 offer for the recovery of Agent Rosas’s service weapon. Reports indicate that Rosas exited his vehicle in the vicinity of a truck trail to track a group of individuals. Border Patrol Agents patrolling nearby heard gunshots in the vicinity, and later found Rosas’s body near his service vehicle. He had been shot several times. CBP is asking anyone with information concerning the death of Rosas to contact the FBI at (858) 565-1255. To see more, go to: www.cbp.gov/xp/cgov/newsroom/news_releases/08062009_3.xml.

:: Back to Top ::

Informed Investor: Preparing for the Roth IRA Conversion Opportunity in 2010: Part I

Congress recently passed legislation that will allow federal employees who are contributing to the regular Thrift Savings Plan (TSP) to contribute instead to a Roth TSP. The Roth TSP option most likely will not be available until the middle of 2011. In the meantime, employees should make every effort to contribute to a Roth IRA. During 2009, an individual filing as single or as head of household with an adjusted gross income (AGI) of less than $105,000, or a married individual filing as married filing jointly with an AGI of less than $166,000, can contribute as much as $5,000 to a Roth IRA. Individuals 50 years old or older as of Dec. 31, 2009, may contribute as much as $6,000.

Many federal employees have higher incomes that do not allow them to contribute to Roth IRAs. Individuals also can convert a traditional IRA to a Roth IRA. However, under current law, an individual is not allowed to convert a traditional IRA to a Roth IRA if his or her modified AGI exceeds $100,000. This is true if an individual files as single, head of household or married filing jointly. Under current law, a married individual who files as married filing separately is prohibited from converting no matter what his or her income is.

While the income limitations for Roth IRA contributions will remain, the rules for Roth IRA conversions will change starting Jan. 1, 2010. As a result of the passage of the Tax Increase Prevention and Reconciliation Act of 2006 (TIPRA), Congress eliminated—at least for the year 2010—the income limitation for Roth conversions, as well as the restrictions on those individuals who file their taxes as married filing separately. The result is that more individuals—including many federal employees whose incomes are too high—will be eligible to convert their traditional IRAs to Roth IRAs. The change also could allow many retirees, including federal annuitants who rolled over their 401(k) retirement accounts or TSP accounts into a rollover (traditional) IRA, to convert to a Roth IRA.

But with a conversion, taxes unfortunately are an issue that individuals must deal with. When a traditional or qualified retirement plan such as the TSP is converted to a Roth IRA, federal and state income taxes are due on all pretax contributions and earnings included in the converted amount.

The 2006 tax law allows the option for paying the taxes due on conversion on one’s 2010 income taxes. But rather than reporting the converted amount on one’s 2010 income tax return, TIPRA allows the option of reporting the income equally on one’s 2011 and 2012 tax returns. For example, if a retiring federal employee decided to convert $100,000 of his or her TSP account to a Roth IRA in 2010, then the individual could include $50,000 on the 2011 tax return and $50,000 on the 2012 tax return. This would make sense for an individual who expects to be in a lower marginal tax bracket as a result of having less taxable income in 2011 and 2012.

But there is a good chance that Congress will raise taxes to reduce the country’s enormous federal deficit, perhaps as early as 2011. By deferring the income resulting from one’s Roth IRA conversions performed during 2010 into 2011 and 2012, an individual could end up paying more federal income taxes compared to declaring the Roth IRA income conversion on 2010 taxes when tax rates will likely be lower.

Also, financial planners recommend that an individual not convert to a Roth IRA unless the individual can pay the taxes due from a source other than the traditional IRA or retirement plan being converted. If, for example, an employee were to convert $100,000 of a TSP account to a Roth IRA, then the employee should pay the taxes due from a source other than the TSP.

What should federal employees whose anticipated 2009 income makes them ineligible to contribute or convert to a Roth IRA during 2009 do in order to fund a Roth IRA when the conversion rules change on Jan. 1, 2010? Any employee—no matter the amount of their anticipated 2009 AGI—is eligible to contribute to a nondeductible traditional IRA. In particular, an individual with at least $5,000 of earned income is eligible to contribute to a nondeductible traditional IRA for 2009. If such a contribution is made, then IRS Form 8606 needs be filed along with the individual’s 2009 federal income taxes. This form proves to the IRS that any money contributed to a nondeductible traditional IRA was already taxed. This is important because in converting a traditional IRA to a Roth IRA, one does not want to pay tax on IRA monies that have already been taxed.

The next “Informed Investor” column will discuss some strategies for federal employees that will minimize—if not avoid—paying taxes due when they convert their traditional IRAs to Roth IRAs during 2010.

:: Back to Top ::

You Be The Judge: Was Maintenance Inspector Discriminated Against?

I worked a long time for the federal government, and I always hoped that if I ran into trouble at work, at least I’d get fair treatment,” explained Ninon Gilman,* a maintenance inspector at a federal facility in San Francisco. “Well, in recent years, bad trouble came—I began suffering chronic pain from an injury, then clinical depression, and then on-the-job discrimination against me—as an African American, as a woman and as a gay person. It just got out of control.

“Finally, when the folks who ran the employee ‘vanpool’ program rejected me out of obvious discrimination, I filed several complaints against them and my agency—and I expect to win.”

“Ms. Gilman has definitely had a hard time,” Jacqueline Sergeant, a lawyer for the government, replied. “But none of it is due to her employer, even down to her rejection from the vanpool, which occurred due to legitimate reasons—as we’ll show.”

FACTS: Ninon Gilman worked for many years as a maintenance inspector at the Presidio Trust—a federal organization that manages a large tract of San Francisco parkland and commercially leased buildings formerly used by the U.S. Army.

In the early years of this decade, Gilman alleged she was discriminated against by her colleagues, and purposely kept out of the employee vanpool by bigoted coworkers. In formal complaints—filed beginning in May 2003 to the equal employment opportunity (EEO) office at the Presidio Trust—she alleged that she “was discriminated against on various occasions because of her race, gender, sexual orientation, and disabilities.”

Her initial complaints focused on her exclusion from the vanpool. She presented evidence, including the fact that all the members at the time were male. A federal administrative judge (AJ) who heard the case, however, denied her appeal—and the Presidio Trust’s EEO officials, who also considered her complaints, agreed with the AJ’s finding and set aside her complaint.

Gilman next took her complaint to the Equal Employment Opportunity Commission (EEOC). In May 2005, while an initial EEOC complaint was pending, she added new charges. For example, she added that a supervisor in 2002 had “made racist remarks about Mexicans being ‘better laborers’ than African Americans,” further traumatizing her at work; and that another supervisor “unfairly” rated her performance with a lower grade than she deserved. These charges and others added up to a picture of Gilman having been under siege at work for her sex, race and orientation.

EEOC investigated, then dismissed four of the charges, and next agreed with the AJ and the Trust in denying the rest of Gilman’s claims, finding inadequate evidence to support them.

Gilman appealed the Trust’s dismissal of her claims to a federal district court. But that court, too, found for the Trust. The court’s denial of some charges was on the merits, according to documents, but on others it turned on a finding that Gilman “had failed to contact an EEO counselor within 45 days of the alleged discrimination”—a condition that the court took to be necessary under the law governing Gilman’s case (29 C.F.R. § 1614.105(a)(1)).

But Gilman appealed yet again, to the U.S. Court of Appeals for the 9th Circuit.

Did Gilman suffer on-the-job discrimination?

DECISION: The appeals court reconsidered Gilman’s many allegations of discrimination.

First, the court agreed with the district court in upholding its denial on the merits of all but a few of Gilman’s discrimination claims. However, several incidents of alleged discrimination by the Presidio Trust were not, to the court, so clearly deniable on their merits.

The case instead “turns on a question of law previously undecided in this circuit,” the court wrote. “[N]amely, whether a federal employee seeking to proceed under Title VII must contact a person with the job title ‘Counselor’ to exhaust her claims” and appeal in federal court.

Under the federal Title VII anti-discrimination law passed in 1972, federal employees are permitted under certain conditions to file torts against the government in district court—but only after seeking relief through the EEO system at the agency where the alleged discrimination occurred.

The court found that while Gilman had met this requirement of Title VII, she had not met the letter of an EEOC regulation—a requirement that she must contact an EEO “Counselor” within 45 days of the event.

However, the court took issue with this specific rule, as it was not required by the law, but had been issued by EEOC. While the court wrote that in general it respected the rule, “it makes good sense to interpret ‘contact with a Counselor’ pragmatically, to include contact with agency officials [holding other titles] with EEO counseling responsibilities or a connection to the counseling process.”

Hence, the court found for Gilman on the timeliness issue—legally, she had contacted some EEO officials in good time. Therefore, the appeals court ruled that the district court—which had thrown out her case on this technicality—will have to re-hear the remainder of the complaints in her case on the merits.

(U.S. Court of Appeals for the 9th Circuit, Docket No. 07-17177, 7/23/09)

Discuss the outcome of this case at www.FederalSoup.com. Click on the "You Be The Judge" Forum.

*Names and dialogue are fictitious, but details are based on a real case.

:: Back to Top ::

Maxine Lunn, General Manager
Phil Piemonte, Managing Editor
Nathan Abse, Staff Writer
Frank Klimko, Contributing Writer
Mike Causey, Columnist
Edward Zurndorfer, Columnist

Published by 1105 Government Information Group; Anne Armstrong, President

1105 Government Information Group is part of 1105 Media, Inc.; Neal Vitale, CEO

SUBSCRIPTION RATES: Newsstand: $5.00
1 year - $97, 2 years - $184, 3 years - $262

For electronic delivery, phone (703) 891-8552 or email sitelicense@FederalDaily.com

Call customer service at 1-800-989-3363, or mail to: Federal Employees News Digest, 3141 Fairview Park Drive, Suite 777, Falls Church, VA 22042

The Comptroller General has ruled that federal agencies and departments may buy Federal Employees News Digest publications with government funds. This decision is No. B-185591. Federal Tax ID 20-4583700

NOTICE:  WARNING CONCERNING COPYRIGHT RESTRICTIONS The copyright law of the United States (Title 17, United States Code) governs the making, dissemination, and reproduction of any Federal Employees News Digest publication.  Criminal copyright infringement is investigated by the FBI and may constitute a felony with a maximum penalty of up to five years in prison and/or a $250,000 fine.  Unlawful dissemination or reproduction of protected information may give 1105 Government Information Group a civil right of action against you and your employer, if applicable. To report copyright violation or unauthorized distribution of this document, please call (703) 891-8552 or email sitelicense@FederalDaily.com

Copyright ^© 2009 by 1105 Media, Inc. All rights reserved. Reproduction in whole or in part in any form or medium without expressed written permission of 1105 Government Information Group is prohibited. For our private policy, click here. Mail requests to “Permissions Editor,” c/o Federal Employees News Digest, 3141 Fairview Park Drive, Suite 777, Falls Church, VA 22042 or editor@FederalDaily.com.

The information in this newsletter has not undergone any formal testing by 1105 Media, Inc. and is distributed without any warranty expressed or implied. Implementation or use of any information contained herein is the reader’s sole responsibility. While the information has been reviewed for accuracy, there is no guarantee that the same or similar results may be achieved in all environments. Technical inaccuracies may result from printing errors and/or new developments in the industry.

This publication’s subscriber list, as well as other lists from 1105 Media, Inc., is available for rental. For more information, please contact Edith Roman Associates: Phone: 800-223-2194; E-mail: info@edithroman.com; Web: www.edithroman.com