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Postal EEO Forum

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11613
SlingshotPerson was signed in when posted
05-19-2015
02:26 AM ET (US)
The Truth About Perjury
http://resources.lawinfo.com/criminal-law/...-about-perjury.html

You hear it all the time on TV dramas and in the movies. A person perjures himself thereby creating legal trouble for himself and often for others. Perjury is a crime that carries a significant sentence. It is, therefore, important to understand the truth about what perjury is and what the consequences of perjury are before you testify under oath in any type of proceeding.

Perjury is a Crime

While many people consider perjury and lying to be interchangeable terms, they are different. Perjury is a federal crime, and like all federal crimes, certain elements must be present in order for a person to be guilty of the crime. The federal crime of perjury is defined in the U.S. Code at 18 USC 1621. According to that law a person perjures himself if:

He has taken an oath before a competent tribunal, officer, or person,

In any case in which a law of the United States authorizes an oath to be administered,

That he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, and

He willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.

Therefore, all lying does not constitute perjury. A person must have taken a proper oath promising to be truthful and the untruth must be about a material fact. For example, if a person lies about the number of children he has to hide the fact that he has an illegitimate child and that fact is not pertinent to the car accident case in which he’s testifying then the fact is likely not considered material and a perjury charge is likely unjustified.

The states have similar statutes about perjury that are applicable if the perjury occurred pursuant to an oath given by a state court or in a state court proceeding.

Possible Criminal Sentences for Perjury

The usual federal sentence for perjury includes a fine, a prison term not to exceed five years, or both a fine and a prison term. Different sentences exist for those convicted of perjury under state law.

It is important to note that perjury, like all other crimes, requires a prosecutor to bring a lawsuit against the accused in court. It is not enough for an attorney to claim that you perjured yourself. In order to be sentenced, you must be formally charged with the crime and provided the same rights as other accused criminals including the right to a jury trial.

Hiring an Experienced Criminal Defense Attorney

It is important to seek the assistance of an experienced criminal defense attorney if you have been formally charged with perjury so that all of your rights are protected and the strongest possible defense is mounted on your behalf. However, you might also seek the assistance of a criminal defense attorney earlier in the process. For example, you might seek the counsel of an attorney prior to testimony if you are concerned about telling the truth on the stand or you might seek counsel after your testimony if you believe that you may have perjured yourself.

The American system of justice is dependent on people respecting oaths and telling the truth. When people do not tell the truth under oath about material facts then a miscarriage of justice can occur. Therefore, perjury is a serious crime with a serious sentence and those accused of perjury should seek immediate legal representation.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.
11612
SlingshotPerson was signed in when posted
05-09-2015
05:28 PM ET (US)
Where the agency grants an accommodation but then does not follow through in a timely fashion, the delay may constitute an “ongoing violation.” For example, in Talavera v. Secretary of Labor, 0120093513 (2010), the agency dismissed a failure to accommodate complaint for untimely counselor contact where in August 2008 it responded to the complainant’s accommodation request indicating that “appropriate accommodations” would be implemented. In November 2008, the agency partially implemented some accommodations. In February 2009, the complainant contacted an EEO counselor alleging that the accommodations had not been completed. In reversing the agency’s dismissal of the complaint, the Commission in Talavera noted:
As regards the claim of denial of reasonable accommodation, the agency found that on August 29, 2008, the agency responded to his request for a reasonable accommodation by agreeing to undertake “appropriate accommodations [that] would be afforded to you that would allow you to improve your focus, concentration and organization.” The agency further notes that “on November 3 2008, a partial installation of your workstation was completed, and a sample chair with lumbar support was provided until the arrival of your permanent replacement chair.” The agency concluded that because the agency responded to his request for a reasonable accommodation in August, 2008, his February 2009 Counselor contact is untimely. The Commission, however, disagrees. Complainant is essentially alleging that the agency’s response to his accommodation request has been insufficient, and so delayed that it amounts to a denial of the request. In his Formal Complaint, complainant states “reasonable accommodation continues to be minimized.” Complainant is therefore alleging an ongoing violation, and we note that the record shows that by November 2008, the accommodation had not yet been completed. It is therefore reasonable to conclude that, notwithstanding the August 2008 agency response, complainant subsequently came to the conclusion that the agency’s response in practice was so insufficient as to amount to a denial of the request.
Whether or not an accommodation is so delayed or defective as to constitute a denial of the request is a merits determination that depends on the facts of the case. However because complainant is alleging an ongoing violation, we find that his February 2009 Counselor contact was not untimely with regards to the claim alleging denial of reasonable accommodation, We therefore AFFIRM the FAD in part and REVERSE the FAD in part and REMAND the claim of denial of reasonable accommodation to the agency.
11611
Salt water taffy
05-07-2015
02:03 PM ET (US)
Trying to understand the W.E.P.

This message is directed to United States Postal Workers. Were you ever told in writing or otherwise of the Windfall a Elimination Provision Act, and that your benefits would be reduced at any point and time after your employment with the USPS ended, through retirement, disability, or otherwise?

Now, although this normally applies to FERS employees, it could apply to CSRS offset employees. Also, has anyone been informed by SSA , in a disability circumstance that they needed to apply to OPM for their regular retirement monies, prior to their 62nd birthday? Please refer to this numbered message. Thanks!
11610
KIMMIEKPerson was signed in when posted
05-03-2015
11:50 PM ET (US)
Kay are you still working for him? You need to contact your UNION immediately for help on this- This is harassment of the worst kind and should NOT be tolerated. If you are not on their schedule you will also need to contact Human Resources and tell them what he did- There is zero Tolerance for Bullying at this agency. Also File an EEO charge as well. Get the ball rolling ASAP
11609
Kay
05-03-2015
12:36 PM ET (US)
My PM followed me out of his office and told me he knew what he was going to do when I seaid I was done with him. When I asked what he said he was going to send me to doctor. I told him I already go to doctor and he said not that kind and pointed to his head . Did not report because my word again his. What could I have done?
11608
rivkahPerson was signed in when posted
04-29-2015
10:33 AM ET (US)
PEA...USPS is still ignoring that order. Before my most recent job offer, I saw an email from my district HRM to my then OIC with a list of all the work they were not allowed to include in my job offer.
11607
KIMMIEKPerson was signed in when posted
04-27-2015
12:30 PM ET (US)
THANKS PEA I remember this.
11606
Postal Employee AdvocatePerson was signed in when posted
04-27-2015
09:21 AM ET (US)
Since I’m am not free to say what I want on PEN without being treated like a child and having my posts modified without my permission, I’m going to provide responses on the EEO and NRP boards here.
There has been some discussion about the unions falling down on the job when it comes to NRP. Anyone that has read any of my posts or articles knows that I am often a critic of the unions and their too frequent incompetence. And I agree that the unions should have been more aggressive in a class-action grievance on behalf of the injured and impaired.
However, on April 22, 2010, Arbitrator Kathy L. Eisenmenger (who is also an attorney) ruled against the Postal Service in one of the earliest grievances regarding NRP. Therein she stated that, “The Postal Service is ORDERED to cease and desist from utilizing the erroneous standard of “necessary” work as the Postal Service has improperly restricted its meaning.” She also required the Postal Service to reassess the grievant under ELM 546.142 rather than the NRP process.
With the possible exception of this particular grievant, the Postal Service did not “cease & desist” as they were ordered to do. It was not until January, 2011, through EEO complaints and MSPB appeals that the Postal Service was forced to stop utilizing NRP and implementing ELM 546.
So I agree with the sentiment that the unions could have done more, but, in the face of the Postal Service ignoring the cease & desist order of an Arbitrator, it left the unions rather impotent regarding NRP.
As a side note, I know that the unions are engaging in contract negotiations but I haven’t seen them raise any concerns on the national level, that the Postal Service suffers no consequences for ignoring an order from an arbitrator. This is also going on when arbitrators are awarding grievants back pay awards and the Postal Service isn’t paying the employee. Hopefully at some point, union members will start to recognize that binding arbitration is a joke, and overall actually diminishes the protections of employees rather than protects them. That’s a subject for another post.
11605
SlingshotPerson was signed in when posted
04-14-2015
02:31 PM ET (US)
Spoliation of evidence

From Wikipedia, the free encyclopedia

The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.[1] Spoliation has two possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration (if convicted in a separate criminal proceeding) for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference, or by other corrective measures, depending on the jurisdiction.

The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: the finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.

The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had "consciousness of guilt" or other motivation to avoid the evidence. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator. Some jurisdictions have recognized a spoliation tort action, which allows the victim of destruction of evidence to file a separate tort action against a spoliator.[2]

Spoliation is often an issue in the context where a person claims he has been injured by a defective product which he then discarded or lost.[3] In that circumstance, the defendant manufacturer or distributor may move to dismiss the case on the basis of spoliation (instead of just having to rely on the plaintiff's usual burden of proof, the argument being that any testimony of plaintiff's witnesses would not overcome the spoliation inference born of the lost evidentiary value of the missing product itself).[4]

The use of a spoliation inference may be warranted depending on the circumstances, but not all cases of spoliation warrant this serious response by the court. In a 2013 case before the Texas Supreme Court named Brookshire Brothers Ltd. v. Aldridge, A man named Jerry Aldridge went into one of Brookshire Brothers' supermarkets, and after a few minutes in the store, slipped and fell. He went to a doctor approximately 90 minutes later, and returned to the store five days after the accident to complain of back injuries caused by the fall. The supermarket chain's security department only kept what it felt was the relevant part of that store's surveillance video consisting of just before to a few minutes after Mr. Aldridge slipped and fell. When he first filed suit against Brookshire Brothers without an attorney, Mr. Aldridge was able to get video evidence consisting of the 30 seconds before he slipped and fell, plus the next seven minutes. He attempted to obtain more of the store's video surveillance footage, but was refused. When he hired an attorney, the attorney was also unable to obtain footage from before or after the event (which might have been useful to prove negligence based on how long the spill was on the floor, or on the seriousness of Mr. Aldridge's injury). The store's surveillance system automatically writes over previously recorded video after 30 days, unless saved separately. Brookshire Brothers did not keep any additional footage from before or after the accident. The trial court judge found that the store's refusal to provide the additional video footage constituted spoliation, and gave the jury a "spoliation inference instruction". The jury was instructed that they may find the failure by the store to retain (and subsequently provide to the other party) the additional footage may be considered an attempt to hide evidence that Brookshire Brothers' management knew would be damaging to their case. The jury returned a verdict for Mr. Aldridge in excess of US $1 million. The Texas Twelfth District Court of Appeals upheld the verdict and the spoliation inference instruction. The Texas Supreme Court reversed, ordering a new trial, stating that it was abuse of discretion by the trial court to issue a spoliation inference instruction in this case, that the court should have imposed a different corrective measure on Brookshire Brothers (a less severe sanction), and that a spoliation inference instruction to the jury is only warranted in egregious cases of destruction of relevant evidence.[5]

A closely related concept to spoliation of evidence is tampering with evidence, which is usually the criminal-law version of the same concept, namely when a person alters, conceals, falsifies, or destroys evidence in an investigation by law enforcement or by a regulatory authority. An act of ruining or destroying evidence may sometimes be considered both spoliation of evidence and tampering with evidence. For example, when police destroy their own dashboard-camera footage or seize and destroy a citizen's video footage of an incident, it may constitute spoliation of evidence in a criminal case against the defendant if the footage tended to create reasonable doubt for the defendant, and also constitute tampering if the video were evidence of police misconduct in a criminal or regulatory investigation of the police's actions. The goal of spoliating or tampering with evidence is usually to cover up evidence that would be disfavorable to the doer in some way.

Spoliation of evidence is often important in e-discovery matters, as oftentimes records in electronic form such as SMS messages may be difficult to retrieve, preserve, or monitor.

Companies and organizations often attempt to avoid spoliation of evidence (or being accused or held liable therewith) by using a legal hold. Often, the legal departments of the company or organization will issue a prescribed order to the relevant employees to retain and preserve their discoverable materials (such as e-mails and documents).
11604
SlingshotPerson was signed in when posted
04-12-2015
03:58 PM ET (US)
[PDF]the new summary judgment motion: the motion to dismiss ...
www.lclark.edu/live/files/4099

Lewis & Clark College
Feb 18, 2010 - This Symposium Article argues that the motion to dismiss is the new summary judgment motion. In Iqbal v. Ashcroft and Bell Atlantic. Corp. v...............
THE NEW SUMMARY JUDGMENT MOTION: THE MOTION TO DISMISS UNDER IQBAL AND TWOMBLY
This Symposium Article argues that the motion to dismiss is the new
summary judgment motion. In Iqbal v. Ashcroft and Bell Atlantic
Corp. v. Twombly, the Supreme Court created a new standard for
granting motions to dismiss under Rule 12(b)(6). Under the standard, a
court decides whether a claim is plausible. This new plausibility
standard is converging with the standard for summary judgment under
Rule 56. Not coincidentally, the motion to dismiss appears to be having
some of the same effects as summary judgment, including on the
dismissal of employment discrimination claims. Moreover, as a result of
the similarities between the motion to dismiss and the summary judgment
standards, the Supreme Court case of Swierkiewicz v. Sorema N.A.,
which concerned the standard by which courts dismiss employment
discrimination claims under Rule 12(b)(6), effectively may be dead. This
Article concludes that the differences between the motion to dismiss and
summary judgment call into question the propriety of Iqbal and
Twombly.
11603
SlingshotPerson was signed in when posted
04-11-2015
07:24 PM ET (US)
Making a material misrepresentation during the course of an EEOC investigation could be considered a punishable crime under 18 U.S.C. Section 1001. The requirement that the misrepresentation be “material” is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.” U. S. v. Gaudin, 515 U.S. 506, 510 (1995). (A lie can still be “material” even if it fails to persuade the decisionmaker to reach a different conclusion in the case.)
11602
SnowedPerson was signed in when posted
04-07-2015
11:09 PM ET (US)
ladybuy-
You are in the wrong forum....A CA-2a is what you need. You have a recurrence of disability due to withdrawal of limited duty. Go to Injured forum.
Edited 04-07-2015 11:11 PM
11601
SlingshotPerson was signed in when posted
04-07-2015
10:45 PM ET (US)
This is a Comment on the Equal Employment Opportunity Commission (EEOC) Proposed Rule: Federal Sector Equal Employment Opportunity

For related information, Open Docket Folder Docket Comment
Having worked with the EEOC's federal sector program since its inception, representing employees, unions, and agencies, and with prior private sector experience in litigation under Title VII, I offer these comments.

 First, the mixed case process should be eliminated. Any action within MSPB's jurisdiction should be appealed through MSPB and, following exhaustion of the MSPB process, review of EEO issues, if they were pursued, would be only through an EEOC appellate organization (OFO) or district court. Cases of disputed MSPB jurisdiction, e.g., constructive adverse actions (forced retirements, resignations, downgradings), would be initiated with MSPB and if rejected there, appellants would receive a notice allowing them to follow EEO procedures described in the following paragraph.

 As to all other cases, the current process is too cumbersome, too expensive for all parties, and too long. I'd suggest adopting the MSPB model, with a variation. An individual would file a complaint and hearing request with an EEOC district or field office. The case would be assigned to a judge. Before the onset of any litigation steps, mediation would be mandatory. Failing settlement, the judge would allow the parties to conduct traditional discovery, motion, and hearing practice, with the judge's decision subject to review by either side with an EEOC appellate organization (OFO) or, at the option of the complainant, resort to district court before or after EEOC appellate review. The variation I speak of is mandatory mediation. At MSPB, mediation is voluntary. The EEOC litigation process would conducted through an electronic system similar to that in use at MSPB, FLRA, and in all federal courts, with exceptions as needed for paper filing and mailed service. it is expected that this process would require appointment of more judges, and it is expected that many cases would receive early disposition through a motion to dismiss or for summary judgement. The overall saving to the taxpayers of the funds spent for the current internal EEO processes would be considerable.
11600
Site Administrator
04-03-2015
04:54 PM ET (US)
Lady of Light, your IP address will be banned if you keep posting this crap.
Edited 04-03-2015 04:54 PM
11599
Ladybuy
04-03-2015
09:58 AM ET (US)
My case was closed because my doctor had not sent medical reports I was told from 2011. I have since found out that the CA-17 is for the employer, not OWCP. Now the CE says that I have to submit a CA-2a which would give them access to all of my medical records. Does anyone know of a way to get your case reopened after being closed without submitting the CA-2a? Also, I my modified job was taken away after I would not sign for a new modified job greatly exceeding my limitations. Then, I was put off the clock. With my case being closed, I cannot claim compensation for wage loss or medical treatment. Over the years, I paid for my medical treatment out-of-pocket, since OWCP was so late in paying my bills, leaving me to pay them if I wanted to see my doctor or get paperwork they sent that had to be completed with a short deadline.
11598
Lady of Light
03-30-2015
06:31 AM ET (US)
Hi! How are you?News from Oprah: http://holidayletsinbath.co.uk/had.php She says it works! Lady of Light
Sent from Yahoo Mail for iPhone
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