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Postal EEO Forum

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11918
N.Y. City Wiseguy
01-17-2017
04:58 PM ET (US)
Of course I wish we had some action on this board. Everyone still celebrating the New Yewar?
11917
postalvetPerson was signed in when posted
01-02-2017
09:14 PM ET (US)
of course all this changes on jan 20, 2017
11916
Former USPS InspectorPerson was signed in when posted
01-02-2017
08:02 PM ET (US)
I did some research on the USPS' obligation (if any) to abide by the decision of an Arbitrator and found a Federal District court case in U.S. POSTAL SERVICE v. AMERICAN POSTAL UNION (46 F.Supp.2d 457 (1999)) involving an arbitrators decision that an Union Employee be reinstated after termination. The Federal court Judge states that "Despite the preference courts express in favor of deferring to arbitration awards, courts will review and set-aside awards, when appropriate, based upon a number of grounds". The Judge further states "The Federal Arbitration Act provides additional grounds for vacating awards, including fraud, arbitrator bias or misconduct, procedural unfairness, and the ground that the arbitrator exceeded his authority". So, don't count on the USPS accepting or feeling obligated in implementing an Arbitrators Decision UNTIL Ordered to do so by a Federal District court judge(s) up to the most extreme Federal Appeals court. This of course often costs the employee undue legal expenses in the 10s of thousands. An EEOC Judges Decision is at times not accepted by the USPS in its entirety resulting in the USPS issuing a Final Agency Decision (FAD) reflecting this causing the victim employee to endure what is currently and additional 2 years until the OFO at most times issues an order that the USPS comply with the original EEOC Judges decision.

My advice is to start preparing your EEOC (and usable in other forums) Preconference report detailing in specificity your case with evidence attachments. My prepared report alone is 26 pages single spaced with evidence attachments is in excess of 250 pages. This document will be a work in progress from when your problems/victimization started (and even before detailing your exceptional work/awards with the agency) past your termination (emotional and physical complications with doctors records and job searching diary). My goal in posting to this Forum is to encourage everyone to fight for a make whole remedy to your wrong. My case is an extreme and most often boggles the mind of people who know it.
11915
postalvetPerson was signed in when posted
01-02-2017
05:52 PM ET (US)
/m11913 "Final thoughts to postalvet. When the EEOC stated that the agency was under no obligation to adhere to the decision of the arbitrator, I believe the EEOC was referring to itself. It’s also a federal agency. The EEOC is under no obligation to adhere to the decision of the arbitrator, though that doesn’t mean that they can’t consider it."

I agree with your comments above but I believe former meant it like they printed it "Agency is under no obligation to adhere to the decision of an Arbitrator." meaning the post office.

if they did not mean the post office they should have said so.
11914
N.Y. City Wiseguy
01-02-2017
10:37 AM ET (US)
Shazam, the discussions in this forum are getting deep. PEA, please always add your two cents as I believe in MHO you are the best at what you do. I thank God you did not choose to go to the dark side and join management.
BTW people...Happy New Year
11913
Postal Employee AdvocatePerson was signed in when posted
01-02-2017
10:03 AM ET (US)
Some good debate going on. I’d like to add my two cents worth.

An aggrieved employee can file in multiple forums at the same time regarding the same issue. A grievance, of course, should be filed within 14-days for any matter that violates the Collective Bargaining Agreement. If the matter/event involved disparate treatment and/or failure to accommodate, the employee must contact the agency’s EEO office within 45-days of that same event. DO NOT wait for the outcome of the grievance. Both the agency and the EEOC have dismissed EEO complaints because the employee waited for the grievance outcome to file, well after the 45-day time limit.

The MD-110 permits an agency to dismiss a claim for several reasons. [Chapter 5, Section IV] One of those reasons is if the employee is launching a “collateral attack”. That is, the employee is filing a matter with the EEOC that belongs in another jurisdiction. For example, an employee doesn’t file with the EEOC if the agency failed to properly process workers’ comp paperwork. That belongs under the jurisdiction of OWCP. Similarly, a hazard in the workplace is filed with OSHA and not EEOC. You see the point. The exception occurs when the employee has proof that other employees were treated differently or more favorably than they were under the same or similar circumstances.

Postal employees can simultaneously file a grievance and an EEO complaint of discrimination. [There’s an exception in the Rural contract that allows for the grievance to be placed in abeyance pending outcome of the EEO complaint.] One has no effect on the other.

Confusion can also occur when an employee is faced with a “mixed-case” complaint. That is, an event or incident that usually falls under the jurisdiction of the EEOC, also happens to fall under the jurisdiction of the Merit Systems Protection Board. There are two primary circumstances that result in a mixed-case: a) the employee has an accepted workers’ comp claim and they can work but only within their medical restrictions, but the agency refuses to provide them with work; and, b) the employee is a ‘preference eligible’ and was placed in a non-work, non-pay status for more than 14-days. [The time limit for filing an appeal with the M.S.P.B. is 30-days, however, the Board will waive that time limit when there’s no evidence that the employee was notified of the time limit.]

The Postal Service will often force an employee into filing an appeal with the M.S.P.B., even if the employee does not want to, by designating the claim as a mixed-case complaint. Then once an M.S.P.B. judge is assigned, the Postal attorney will argue that the Board does not have jurisdiction. It’s a tactic that drains the employee’s resources and significantly delays the EEO complaint. [Once the Board issues its final decision, the employee can appeal that decision to the EEOC to get it back where the complaint was before being forced into a Board appeal.]

Postal employees can simultaneously file a grievance and an M.S.P.B. appeal until one of two events occurs. In the grievance procedure, the employee must designate which forum they intend to pursue once the grievance reaches pre-arb. In the M.S.P.B. forum the employee must make this designation prior to an administrative judge convening a hearing. Until then, both forums can proceed in parallel.

Unless you have specifically designated a representative in the EEO arena, you don’t have a representative. The agency’s informal complaint process is handled by an Alternative Dispute Resolution (ADR) Specialist, who, per the regulations, is supposed to act in a ‘neutral’ role. However, ADR Specialist (once known as an EEO Counselor) are filled from the ranks of management as they are EAS employees. They do not represent you. They are not permitted to make an assessment on the merits of your complaint, and they are not permitted to dissuade you from filing. ADR Specialists are supposed to review the discrimination allegations by the employee, and obtain a response from management. Often, they will pressure the employee to participate in mediation and request an extension during the informal phase of the complaint. Delays of any kind, in my opinion, always favor the employing agency.

My point is, you don’t have a representative until you name one. A union steward is not automatically assigned as they usually are in grievances. Additionally, union stewards are supposed to have a modicum of expertise in the contract. There is no similar obligation to know anything at all about EEO complaints. [The union’s lack of interest in my offers of EEO training bears this out.]

Final thoughts to postalvet. When the EEOC stated that the agency was under no obligation to adhere to the decision of the arbitrator, I believe the EEOC was referring to itself. It’s also a federal agency. The EEOC is under no obligation to adhere to the decision of the arbitrator, though that doesn’t mean that they can’t consider it. Essentially, they are defining the parameters of its own jurisdiction. The EEOC believes that Congress did not give it that authority. If that is to change, this specific issue would need to be appealed to Federal District Court with a higher level interpretation.
11912
Former USPS InspectorPerson was signed in when posted
12-31-2016
01:48 PM ET (US)
We should remember that managements/agency attorney interpretations of "THIS AGREEMENT AND ALL OTHER RULES AND LAWS APPLICABLE...." are often times MUCH different than the employees and found to have been violated by a Judge. Management has often times just terminated employees to see if the employee has the stomach (or balls backed up with $) to fight in an EEOC, MSPB and/or Federal District court of which results in an often times large expense to the former employee. My experience is that my TSP of $200k and insights on how the system actually works (learned ALOT by experiencing first hand as a victim) helped immensely. My advice is that you must prepare, if able, for war with the agency with having $$$,$$$ on hand to battle. If you have a $,$$$ case and wish to keep your job don't spend $$$,$$$ for a war. Knowledge is power and the agency counts on employees not knowing how those systems actually work in relationship to what the laws, rules, regulations with associated AGREEMENTS. For me OPM disability retirement along with my TSP for expenses to wage war made the difference. Because I knew: Agency may not deduct disability retirement benefits payments from back pay award. In an earlier decision, the Commission ruled that complainant was a victim of disability discrimination, and ordered reinstatement and back pay. The Order also directed the U.S. Postal Service not to deduct from the back pay award any disability retirement benefits paid to complainant before his reinstatement. The agency filed this petition for clarification of the disability retirement benefits directive. Citing to EEOC policy guidance, the Commission explained that it is not equitable for an employer to be permitted to recoup these pension payments. The decision also discussed Arneson v. Social Security Administration, 128 F. 3d 1243 (8th Cir. 1997), in which the court applied the common law collateral source rule. Savage v. United States Postal Service, EEOC Petition No. 04990044 (March 28, 2000). Now this same ruling is expected to apply to my front pay for an additional 10 years (precedent setting) until my mandatory retirement at age 57. So 4 years back pay and 10 years front pay @ $125,000+ per year not including interest, attorneys fees, compensatory damages ($300,000 cap) are not mitigated by OPM. My information is based off of what REALLY happens and should not be labeled as "bad information". @ JJMV, only wait on the EEOC rep if you must to file your case in another forum if there are time limits. The Agency benefits most of the time unlike in my case in which them dragging it out is costing them more money.
11911
jjmvPerson was signed in when posted
12-31-2016
12:10 PM ET (US)
So former us inspector according to your posting ; you won at the EEOC level if so that's great and encourageing; give us any free advice that you can give I am waiting to hear from a EEOC rep. that contacted me informing me that he was my rep. and that after he reviews my case he will be contacting me I imagine that he is in contact with my employer
11910
postalvetPerson was signed in when posted
12-31-2016
10:58 AM ET (US)
/m11908 you are putting out bad information!

the law, title 39 of the US code and the title 39 of the code of federal regulations makes this statement false.

"Agency is under no obligation to adhere to the decision of an Arbitrator."
11909
N.Y. City Wiseguy
12-31-2016
10:26 AM ET (US)
Former Inspector....Article 3 of our collective bargaining agreement is, MANAGEMENT RIGHTS. First sentence, Management shall have the exclusive right, (notice the coma?) SUBJECT TO THIS AGREEMENT AND ALL OTHER RULES AND LAWS APPLICABLE...."
Therefore management DOES NOT have an EXCLUSIVE right but must adhere to law and collective bargaining agreement thereby making this an INCLUSIVE right. When the Statement on Workplace Violence was agreed to by all parties management claimed it did not pertain to them. A national arbitrator disagreed,
So.....the myth of management having all the power is bull.
I'm wishing all the luck in the world to kick the ever loving shit of them and take them real good.
11908
Former USPS InspectorPerson was signed in when posted
12-30-2016
10:55 PM ET (US)
As it pertains to the Code of Federal Regulations (CFR) and any violations alleged to have occurred regarding the Agencies adhering to the CFR. All should remember what entities the Agency recognizes as having true power and is willing to use that power to hold the agency accountable for those violations thus issuing enforcement actions that the Agency fears. There is not much in the way of what the Agency fears because the individual players are rarely if ever held personally accountable. I have seen people waiting on the decision of an Arbitrator in hopes for a remedy to a wrong they have suffered resulting in them being unable to timely file a legitimate claim either with the MSPB or EEOC. Both of which have strict time limits of complainants. NEVER wait (unless you must) on the decision of 1 forum to start your complaint in another forum(s). The Agency will and often does complain that employees are leveraging collateral attacks but let the MSPB, EEOC and/or Federal District court Judges make that decision given the facts of your case in relationship to the CFRs. What is written in black and white of which the Agency claims it will/does abide by is often times a lie. Agency attorneys response even when facing overwhelming evidence of wrongdoing by them is "So sue us". I put $150,000+ in legal/medical expenses where my mouth is and after a 3 day EEOC hearing am confident in an $2+ million individual award undisputed by the Agency. I documented my case(s) with evidence as I have done in numerous cases that resulted in criminal convictions. Approaching Inspection Service supervisors, managers, executives and attorneys as criminals really helped my case(s).
11907
postalvetPerson was signed in when posted
12-30-2016
07:20 PM ET (US)
/m11906 "As I stated before the Agency is under no obligation to adhere to the decision of an Arbitrator."

have you read title 39 cfr or us code 39?
Edited 12-30-2016 07:22 PM
11906
Former USPS InspectorPerson was signed in when posted
12-30-2016
05:27 PM ET (US)
FYI regarding issues in which an Agency engages in Arbitrations with its employees. As I stated before the Agency is under no obligation to adhere to the decision of an Arbitrator. This is further evident in:

ENFORCEABILITY OF ARBITRATOR'S DECISION
DiPleco v. United States Postal Service, EEOC Request No. 05980032 (January 30, 1998).
The Commission stated that it will review an EEO complaint challenging an arbitration decision in certain circumstances, where there is an allegation of discriminatory administration of an agency's grievance process, or discriminatory implementation of an arbitration award. However, the Commission characterized this request as, in essence, a request to enforce the decision of the arbitrator, and ruled that it was outside the jurisdiction of the Commission. Appellant's request was denied.
11905
N.Y. City Wiseguy
12-15-2016
05:40 PM ET (US)
With all the News stations and 60 Minute type programs you may take a shot of getting someones attention. Call your story, "In the interest of justice" especially with the DOJ.
Wish ya luck, only wish I could have helped in some small way
11904
Former USPS InspectorPerson was signed in when posted
12-14-2016
11:43 PM ET (US)
MSPB only takes cases it determines to have Jurisdiction over and in my case I did not qualify. As for Doctrine of, "In the interest of justice" only applies if you have the money to pursue "justice" of which I do. The USPS' only hope was to beat me down by way of my amassed legal and medical expenses and agreeing to an about $200k settlement when my case is over $2 million. The DOJs only interest was in disposing of my issues by interfering with the state TRO process buy having my case removed at the dismay of the State judge who had no control. Justice for the DOJ is not its main focus and defending the government is paramount at ALL costs. Once the my never loses trial attorney I chose reviewed the Judges rulings denying the USPS' summary judgement motions he jumped all in the EEOC route instead of going to Federal District court. The USPS failed to even dispute the damages and elected not to have their own doctor testify of which he had flew from Arlington, VA to California and was waiting in the Federal Courthouse to testify. My doctor projected 10 years until I would be able to return to work and the emotional damage suffered is permanent to support a huge award. Back pay, interest, medical expenses, attorney fees and front pay. Also since the acts involve intentional ADA violations by the USPS the damages are not mitigated by any past or future earnings I may earn.
Edited 12-14-2016 11:47 PM
11903
N.Y. City Wiseguy
12-14-2016
10:14 PM ET (US)
Inspec...in your research have you come across a case whereby the MSPB allowed a Postal Inspector to proceed with a charge?
Have you applied the Doctrine of, "In the interest of justice" cause? Where are you located? My interaction with Inspection Service have proven financially WHOPPEE !!!
The only time I was screwed up was when an Inspector from Houston told the truth..blew my line of question right out the window. Otherwise I been successful.
I am puzzled, "The DOJ had the TRO case removed from state court into the Federal District court than dismissed for lack of Federal court jurisdiction". Sooooo they remove the case from state to Federal just to dismiss for lack of jurisdiction? In comes the, "interest of justice application."
I am a retired letter carrier originally from NYC and I grow tired. I live by the creed, if your right you can never be wrong....but if your wrong...you can never be right.
We'll talk again tomorrow. I gotta get in the gutter for this fight. Or maybe just back off? Goodnight Champ
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