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wardy jr
02:08 PM ET (US)
Pittman v. Donahoe

Status Update

   As of October 7, 2016, the status of the case has changed. One class member filed a complaint in federal court.

   The District Court of Colorado issued an order on April 11, 2016, dismissing the class member's complaint.
   The class member filed an appeal to this dismissal. This appeal is still pending.

***** USPS continues to take the position that based on the terms of the settlement agreement this complaint challenges the settlement agreement and the distribution process must be stayed until this dismissal is final.

___Continue to visit the website for status updates. (www.pittmanclass.com)
Edited 10-18-2016 02:09 PM
Postal Employee AdvocatePerson was signed in when posted
11:35 PM ET (US)
Reposted from December, 2013

Many of you are aware of the concept of a Last Chance Agreement or LCA. I have often seen management issue severe discipline and/or removal for seemingly minor offenses and then offer the employee an LCA rather than go to a hearing or arbitration. The premise of course is to give the offending employee “one last chance” to modify their behavior.

Only a small percentage of employees who agree to an LCA are able to avoid the inevitable discipline that will come later, and/or survive past the LCA’s imposed terms and deadlines. Last Chance Agreements are merely traps that ensure that management will just fire you later rather than sooner.

Generally, the terms and conditions of an LCA impose expectations and restrictions on the employee not usually imposed on others. There are always unforeseen events that can be interpreted as violating the terms of the LCA. Also, an LCA can contain language that is subjective in nature, allowing management wide discretion in its interpretation.

One rarely sees an employee prevail in arbitration, EEO or M.S.P.B. when a Last Chance Agreement is involved. Why? Primarily because the issue being adjudicated isn’t so much whether a new infraction occurred; whether the penalty is too severe; or even if there was just cause for the discipline. Instead the issue is whether the charged infraction was a violation of the provisions and terms of the LCA. Take for example an attendance issue. Management may try to serve a removal on an employee for X number of unscheduled absences (not otherwise covered by FMLA) in a six month period. The LCA may specify that only a fraction of the usually permitted unscheduled absences can be used within an encompassing period of time (e.g. two unscheduled absences in a six-month period); something that the employee believes s/he can achieve. Even though the employee may have a valid and legitimate reason for an additional unscheduled absence [even an event out of his or her control], the LCA does not allow or make concessions for valid absences; only for a specific number of absences in the designated period of time.

An LCA is merely the last step in a removal action eventuality. And consider this – if management had all the evidence necessary to support severe discipline or a removal action they would follow through with the discipline or removal. The offer of a Last Chance Agreement is a red flag that management does not have sufficient evidence to support the adverse action. Management doesn’t offer a Last Chance Agreement simply because they are considerate, kind and altruistic. We’re talking about individuals with sociopathic tendencies, without conscience, remorse or regret for harming another individual in order to achieve their own career advancement or privilege.

Further, I maintain that an LCA is not a legitimate part of the grievance process. Implementation or use of a Last Chance Agreement is not supported by any agency rule, regulation or contractual provision. It is a fabricated method of disciplining employees that the unions should never agree to. In fact, an LCA unilaterally deprives an employee of their Article 16 protections. The union does not have the authority to strip individual employees of any part of the contract that was negotiated to effect all craft employees.

“The agency may not modify a rule sub silentio in a manner that is inconsistent with the rule as announced and then defending its decision on the basis of a practice inconsistent with the written rule.” See Allentown Mack Sales and Service, Inc. v. NRLB, 522 U.S. 359 (1998).
My point is that implementation of an LCA is essentially the silent modification of an existing rule (Articles 15 & 16), though the change in the rule has not been negotiated.

My advice is that an employee should NEVER agree to an LCA. All you will be doing is putting off your removal until sometime later within the next two years (the usual life of an LCA). If your union tries to convince you to agree to accept an LCA they are either: too lazy, unskilled or uneducated to adjudicate your grievance; guilty of malpractice (a.k.a. – Failure to Duty to Fair Representation); or, someone in the union is using the employee as a bargaining chip for some other favor or consideration with management (I’ve personally seen this happen).

Certainly I am not discouraging settlement of an adverse action, so long as the settlement does not make reference to, or otherwise infer that the agreement represents the employee’s “last chance” or “last opportunity” to somehow modify their behavior. Any employee receiving counsel from their representative encouraging them to accept a Last Chance Agreement should question whose interests are really being considered.

      J.R. Pritchett
      Administrative Law Representative
08:03 AM ET (US)
I am not surprised to see there is still blatant violations against workers in the USPS still happening. Maggie, get out if you are still young, nothing is worse then being harrassed daily with NO
recource. You will never get justice. The wait is at least 3 years and the whole system is a waiste of time, energy, money (if you have a lawyer), and the UNION is VACANT when you look for help! Find peace in anothr occupation. THe USPS is still back in the fifties when it comes to human rights.
07:56 AM ET (US)

Becareful of the Last Chance Agreement. In my experience they will use it in any way they can against you. You must immediately submit a grievance that the lca is unwarranted and that signing it was a condition to your reinstatement it was signed under duress. You must also point out in the grievance that working under such harsh conditions as the LCA causes stress every day. Agian in my experience when they invoke it and you attempt to make all these points the dispute resolution team will state that you had made no mention that it caused difficulty. You also must determine who else under similar circumstances in your office has been forced to sign the LCA. You must be careful as to what it covers. In my case it was signed regarding alleged safety violations as invoke for other violations. they Dispute resolution team will attack you on the grounds of a contractual violation and state that just cause does not apply. BE CAREfUL
maggie2010Person was signed in when posted
07:30 PM ET (US)
Call me 510 913 2875
06:58 PM ET (US)
I have an eeo against the usps. Does anyone have insight how long it takes to get a hearing once the request for a hearing has been submitted please?
N.Y. City Wiseguy
12:34 AM ET (US)
See if an attorney would take this case for a piece of the action. They violated your 4th Amendment right to privacy. If the attorney agrees to a cut of the cash sue the shit outta 'em.
Salt Water Taffy
12:39 AM ET (US)
What a waste of 30 years! <sigh>
Former USPS InspectorPerson was signed in when posted
07:37 PM ET (US)
I would add the medical disclosure to the EEO complaint if able.
whipping boy
05:16 PM ET (US)
Question.... I have currently an EEO, multiple grievances and a Whistle Blower Complaint pending and today I became aware of a blatant disclosure of my medical information to the entire workroom floor. I believe this to be a HIPAA violation that is clear cut. How would you proceed? Which avenues are available for things of this nature?
maggie2010Person was signed in when posted
03:46 PM ET (US)
Maggie says: thank you for sharing the expensive " training" experience with us.
KIMMIEKPerson was signed in when posted
01:18 PM ET (US)
Thank you Former and NY! That was what we were told they only handle this class action where more than one had a FMLA problem. You are saying just what the FMLA DOL Specialist said when he talked with us.
Former USPS InspectorPerson was signed in when posted
12:04 PM ET (US)
Just so you know when you file an FMLA complaint with the DoL via the form and they decide to investigate and find the Agency has violated FMLA law(s) the DoL will send the Agency a nasty letter telling them they violated the FMLA law and ASK them to comply with the law and correct the violation. The Agency is under NO obligation to remedy the situation as ASKED to do and the only thing the victim employee can do is take the DoL letter results of investigation and file a Federal lawsuit in district court of which cost about $400 then your years of litigation and tens of thousands of dollars begins. The DoL rarely if ever files a lawsuit for individual victims of FMLA violations and only reserves that to class action cases. To note, I had my 3 day EEOC hearing mid August 2016 and am awaiting an obvious winning order and in my EEOC hearing we gave judicial notice that the evidence and testimony provided from Agency managers admissions prove FMLA violations of my protected FMLA leave as a small part of my bigger case and the EEOC Judge stated the EEOC is not the forum for this type of FMLA violation and only the Wage and Hour Division has jurisdiction. I thought this was incorrect due to https://www.eeoc.gov/decisions/0420150008.r.txt recent FMLA decision but I am not going to argue unless its to the OFO about my FMLA violations. The agency only recognizes MSPB, EEOC OFO and Federal Appeals Court orders as I have noticed. Then even in those decision cases you may have to file an enforcement of order violation.
N.Y. City Wiseguy
10:42 AM ET (US)
Go to post where Former Postal Inspector supplied a link. Print out the form and mail it in CERTIFIED mail. You will notice the FMLA section. Kick their ass.
N.Y. City Wiseguy
10:37 AM ET (US)
FMLA is a FEDERAL law. Who insures compliance with FEDERAL law, a union? Ask for a copy of the rule/regulation concerning this action on their part. Question: what if no union is present, e.g. Walmart?
Ask for the website where it reads the union will handle it and in case of no union present what does a compliant do?
Should be interesting.
KIMMIEKPerson was signed in when posted
08:39 AM ET (US)
N.Y THEY would not even allow the complaint to be filed.THEY stated they do not handle individual cases and that the UNION must grieve this.THE agency only will pursue the complaint if there is evidence of many HAVING a problem- this call was a Chicago call to the agencies FMLA department.
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