Index

• Insight by Mike Causey: Enough!
• FAA Needs To Strengthen Controller Training
• Bill Would Give Feds Paid Family Leave
• VA Health Care Wins Praise
• Brief: Memo Offers Flexibilities to Feds in Flooded Region
• Brief: VA Reaches Out to Vets with Mortgage Problems
• Brief: Panel Rejects Tax Debt and A-76 Privatization Programs
• Brief: GAO: Manpower Shortages Threaten FPS Mission
• Brief: NFFE Wins Forest Service Employees at Allegheny National Forest
• Brief: PEER: EPA Library Re-Openings Hampered
• Legal Matters: Employees May Sue Over Age-Complaint Retaliation
• Informed Investor: Health Insurance and Military Service
• You Be The Judge: Did Treasury Employee Suffer Retaliation?

Insight By Mike Causey: Enough!

I’m as ticked off about high prices, lousy service and having to deal with recordings (rather than real people) as you are. I’m tired of having to do all the work making reservations, paying bills, especially when the system—designed to save them, not you, time—doesn’t work.

I don’t like self-service lines where you scan your card, scan your items and then the system doesn’t work. An alarm is sounded somewhere and eventually a very tired, bored assistant manager comes from the back, fiddles with the equipment and then handles the transaction the old-fashioned way. Meantime you have lost half an hour, but they’ve saved the price of a checker.

All of the above is to explain why, the other day, I decided I had had enough. I was going to get revenge for myself and for you. After all, I am nothing if not unselfish. My problem, if I have any problem, is that I care too much.

Anyhow I drew my line in the sand when I had a blowout. Don’t know what I hit, but it took out my right front tire. I managed to make it home driving on the rim and a shredded tire proving two things:

1) Unlike in the movies, you don’t have to stop if they shoot out a tire. You can run on the rims for, well, for a long, long time.

2) That said, there is a good reason why people, even crooks, stop when the tire starts to shred. Because running on the rims makes for a mess and, unless it’s a stolen car, it is an expensive thing. Better to give up, find a wimpy judge and take your punishment rather than run on the rims.

Anyhow, I’ve set the stage for my upcoming road (or rim) rage.

That was Friday night. Saturday a.m. I called the Exxon Station up the street. They towed my car and put one of those donut tires on it. Handsome they are not. But it got me to work, then I brought it back to the station. They said they would have the parts, a new wheel, etc., by Monday.

On Monday I took a cab to the subway station. Took the subway to work. All this involved a lot of walking, but it was okay. I decided to rent a car if necessary. There is a rental office right next to my Chevy dealer, from which I had bought my car.

I went back to the Exxon place to ask how long it would be. Which hour or day would my car be fixed? He was on the phone telling somebody who MIGHT come in how to get there. Then he took another phone call. Then another while me, I, a cash-paying, in-place cash customer cooled my heels.

Bingo. I walked out. First time, I think, for me.

They could take the tire they ordered, the parts they ordered and shove them in the unsold parts bin.

I got smart. Took it to the dealer. Dealer says looks bad. They will call me. I rent car. Dealer says come back late tomorrow. This I do, after turning in the rental car next door. Dealer then says it will be another day. I go back and rent another car, my previous rental having been cancelled by the system—whatever that means.

Next day I drive my rental car to the dealer. It’s gonna be another day, he says. Okay, says I. At least it is being done at a dealer, with genuine Chevy parts and certified Chevy technicians. Also I showed that Exxon station a thing or two.

Four days later—after three rental cars—I got my car back. The bill from the Chevy dealer was $1,100 and change. My service rep said I also needed to visit the body shop (I assume he meant for my car, not me). But I tuned out while he explained why.

The good news was that outside of the cost of renting a car for four days, and the cost of the repairs and labor and tire, I had really zinged the Exxon station.

Revenge is a dish best served cold. And it is really sweet.

Up to a point.

After paying for the repairs ($1,100 as I said) and for the car rentals, probably another $200 to $240, and a couple cabs and subway fare cards I had been tapped. But it was worth it. After all I had only been without my car for 4 days.

Then I checked the unretrieved messages on my cell phone. I had been so put out by the car repair stuff I had neglected it for 4 or 5 days. Guess what?

The first message was from the Exxon station. The folks who ordered my tire, wheel and another part. And who were going to install same until they ignored me and I walked out in a huff. Or huffed out in a walk, whatever.

The message was simple: They had the parts and could install them the same day. That would have been 3 days (and a couple of rental cars) later. Oh, and the price? The message asked if $239 would be alright. That included parts, tire and labor.

I figure I am still a winner: I made my point (which matches the point in my head) and helped stimulate the economy in so many more ways.

When it comes to consumer fights back I am Charles Bronson and Clint Eastwood on steroids...

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FAA Needs To Strengthen Controller Training

The Federal Aviation Administration (FAA) needs to improve its badly fragmented air traffic controller facility training program as it hires more new controllers to replace an increasing number of departing agency veterans, according to a pair of government audits and testimony before a House panel.

That program continues to be extremely decentralized—and its efficiency and quality varies from one location to another, said Department of Transportation Inspector General Calvin Scovel III, who testified June 11 before the House Aviation and Transportation subcommittee about the state of FAA’s facility training program.

FAA is under increasing pressure to ramp up its training program as it prepares to hire and train 17,000 new controllers through 2017, Scovel said. An ongoing retirement surge can be traced back to the air traffic controller strike in 1981, when 10,438 striking controllers did not return to work. After then-President Reagan fired all the striking controllers, FAA—between 1982 and 1983—hired over 8,700 new ones, many of whom are now nearing retirement, Scovel said.

FAA now is facing a fundamental transformation in the composition of its controller work force as the overall percentage of controllers in training has grown substantially over the past four years, Scovel said. From April 2004 to April 2008, the overall size of the controller work force remained relatively constant, but the number of controllers in training (“developmental” controllers) increased by 1,407, or nearly 64 percent, while the number of fully certified professional controllers (CPC) decreased by 1,364, or 11 percent (see table above).

FAA expects the percentage of controllers in training to continue to increase to as much as 30 percent of the work force over the next four years. New graduates of the FAA Academy assigned to air traffic control facilities are classified as developmental controllers until they complete all the necessary requirements to be certified for all of the air traffic control positions within a defined area of a certain facility.

The Office of Inspector General (OIG), however, recommended that FAA establish realistic standards for the number of “developmental” controllers that facilities can accommodate. Many facility managers, training officers and union officials told the OIG that the proportion should be much lower than the current 25 percent of the work force.

The Government Accountability Office, in testimony to the panel, noted that controller retirements are taking place sooner than FAA expected. As a result, FAA has had to adjust its hiring targets upward—from 1,420 in Fiscal Year (FY) 2008 to 1,877, for example. While FAA has met its hiring targets so far, it has had to expand its applicant pool, in large part because fewer military controllers are seeking civilian employment.

Patrick Forrey, president of the National Air Traffic Controllers Association (NATCA)— which is embroiled in a labor dispute with FAA dating back to 2006—testified that controllers are spending more time on position, and working more airplanes with fewer certified controllers, resulting in a fatigued work force. The two-year-old labor dispute also has “caused an attrition tsunami that has seen nearly 2,700 controllers and trainees leave the system since,” Forrey said. “It is not a coincidence that delays, near misses and runway incursions have all increased as the number of controllers has diminished.”

The OIG suggested that FAA ensure that training standards address individual facilities’ capacity, and encourage veteran controllers to transfer to busier, higher-level facilities. In his testimony, Forrey also suggested that lawmakers force the agency back to the bargaining table with NATCA to complete contract negotiations. In addition, he recommended that FAA work with NATCA and the National Academy of Sciences—or another independent third party—to re-establish scientifically-based staffing ranges for each facility.

To see more, go to: www.oig.dot.gov/item.jsp?id=2310,wwwgaogov/high-lights/d08908thigh.pdf or www.natca.org/assets/Documents/mediacenter/NATCAWrittenTestimony001.pdf.

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Bill Would Give Feds Paid Family Leave

Under a bill recently introduced in the Senate, federal employees would be granted four weeks of paid leave for the birth or adoption of a child.

The bill, the Paid Parental Leave Act (S 3140), was introduced by Sen. Jim Webb, D-Va., on June 16 with several co-sponsors, including Sens. John Warner, R-Va., Hillary Clinton, D-N.Y., John Kerry, D-Mass., and Charles Schumer D-N.Y. A companion measure, H.R. 5781, was approved by the House Committee on Oversight and Government, and is awaiting a full vote in the House.

The Congressional Budget Office (CBO) estimates that if enacted the legislation would cost a total of $850 million over the period Fiscal Years 2009 to 2013. The Webb bill also closely tracks similar legislation adopted by the Senate Armed Services Committee, as part of the current National Defense Authorization Bill, which would authorize up to 21 days of paid paternity leave for the military. 

“The legislation we introduced today is an issue of fairness for the working family,” Webb said. “Paid parental leave will improve recruitment and retention for federal agencies.”

In anticipation of the much-discussed upcoming wave of retirements—about 40 percent of the federal workforce is expected to retire in the next 10 years—Webb noted that a solid offer of paternity/maternity leave could be used as a federal recruitment tool. 

Webb pointed out that about three-fourths of Fortune 100 companies provide an average of six to eight weeks of paid leave to new mothers. “The federal government should be the leader in workplace policy,” Webb said—following up with a declaration that the government should “provide benefits that are as good as the ‘best practices’ in the private sector.”

Under the Family and Medical Leave Act (FMLA), passed in 1993, federal workers can take up to 12 weeks of unpaid leave, but in practice many cannot afford to go without pay for very long, Webb noted.

FMLA guarantees that upon returning from leave, an employee must be returned to the same position or to an “equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment.” The Paid Parental Leave Act would offer the same protections. Leave under the pending legislation could not, however, be taken in addition to the time off allocated under FMLA.

Federally Employed Women (FEW), an advocacy group for female federal workers, endorsed Webb’s bill. “Quite simply, new parents should be with their children and enjoy one of the most important moments in their lives,” FEW said in a statement.

“This is important, badly needed legislation that puts our family values to work,” said Debra L. Ness, president of the National Partnership for Women & Families, which also supports the measure. “It would benefit federal workers directly by providing four weeks of paid leave when babies are born or adopted.”

Other organizations declaring their support for the bill include the American Federation of Government Employees, the National Treasury Employees Union and the American Federation of State, County, and Municipal Employees.

To see more, go to: www.few.org or http://webb.senate.gov/newsroom/record.cfm?id=299243&.

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VA Health Care Wins Praise

A new internal Department of Veterans Affairs (VA) review gives the VA’s health care system top grades for the promptness and quality of care it delivers to veterans.

The report, mandated by Congress in February, noted that 98 percent of veterans who sought care with the department’s Veterans Health Administration (VHA) were seen within 30 days of making their appointment at primary care facilities. Agency specialty care facilities reported booking 97 percent of veterans within 30 days of the initial contact, the report said.

This facilities “report card” looked at patient waiting times, staffing levels, infection rates, surgical volumes, quality measures, patient satisfaction, service availability and complexity, accreditation status and patient safety.

“VHA facilities provide high quality outpatient and inpatient medical care when compared to national external composite benchmarks developed by VHA,” the report said.

“I’ve been using the VA for ten years or more,” J.P. Brown III, the National Commander of AMVETS, a major veterans service organization, told FEND, “I’ve gotten excellent care, whether it was just for a cold or a major medical problem.”

Brown said he thought the report card’s praise was “accurate,” but he noted that the assessment listed several areas of care in possible need of improvement—particularly in providing equal treatment for men and women veterans.

“It’s unacceptable,” he said. “They now have specialty clinics for women, but despite these improvements,” according to Brown’s reading of the report, the discrepancy had not been eliminated.

“It really struck us—partly because we are co-sponsoring the National Summit on Women Veterans’ Issues this week—that women’s health care is not on a par with the men’s health care,” Dave Autry, spokesman for the Disabled American Veterans, echoing Brown, told FEND.

Indeed the gender disparity was one of two key challenges the re-port’s authors identified for VHA: “Unadjusted outpatient quality scores for women were lower than those for men in many facilities,” the report said, and, second, “African-American veterans were less satisfied with their health care than white veterans.”

However, when adjusted for age and health status, the report tentatively concluded there was no difference in the care provided to men and women.

“While significant differences in clinical prevention scores by gender were reported, these differences in the composite scores between male and female were not adjusted for age or other health-related factors,” the report said. “Where these adjustments are made, the data suggest no substantial differences in rates of appropriate care.”

Similarly, the report concluded that when adjusted, minority and white patients also had “quite similar” outcomes.

The data came from multiple sources across the VA, and the report noted that VA facilities often outscored private-sector health plans in quality standards generally accepted by the health care industry.

VA has launched an aggressive program to ensure that women veterans receive quality care, including placement of advocates for women patients in every outpatient clinic and medical center, the VA said in a June 13 statement.

The VA statement said that the agency and interested parties planned to address women’s health as a major topic at VA’s National Summit on Women Veterans’ Issues, scheduled for June 20-22 in Washington.

To see more, go to: www.va.gov/health/docs/Hospital_Quality_Report.pdf.  

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In Brief: Memo Offers Flexibilities to Feds in Flooded Region

The Office of Personnel Management (OPM) issued a memorandum June 18, reminding federal employers of the various human resources flexibilities available to help federal employees hit with personal or property losses resulting from recent devastating floods along the Mississippi River. The worst floods to strike the Midwest in at least 15 years had by week’s end killed at least 24 people, injured 148 and caused billions of dollars in damage, according to preliminary estimates. The memo reasserts that agencies, faced with severe weather emergencies, can grant salary advances to employees ordered to evacuate for safety reasons; excuse absence with pay; offer travel, subsistence payments and various pay arrangements as well as implement short-term telework for displaced employees. The flexibilities are designed to provide agencies with needed tools to “help mitigate the emotional stress of employees impacted by natural disasters, while positioning agencies to continue providing vital government services,” said OPM Director Linda M. Springer. To see more, go to www.opm.gov/news/opm-issues-hr-flexibilities-reminder-to-help-federal-employees-and-agencies-recover-from-midwest-floods,1412.aspx.

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In Brief: VA Reaches Out to Vets with Mortgage Problems

The Department of Veterans Affairs (VA) said it is providing a wide array of financial assistance programs to prevent veterans from defaulting on their home loans, as the overall national number of foreclosures skyrockets. VA said data for the first four months of this year show that veteran foreclosures are down more than 50 percent compared to the same period in 2003. VA attributes this to prudent credit underwriting standards, its supplemental loan servicing program and VA financial loan counselors. About 2.3 million home loans still in effect were purchased through VA’s home-loan guaranty program, which makes home loans more affordable for veterans, active-duty members and some surviving spouses by protecting lenders from loss if the borrower fails to repay the loan. To obtain help from a VA financial counselor, veterans can call 877-827-3702 or click on www.homeloans.va.gov. “VA is reaching out to veterans to keep people in their homes,” said VA Secretary James Peake. To see more, go to: http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1514.

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In Brief: Panel Rejects Tax Debt and A-76 Privatization Programs

The House Financial Services and General Government Appropriations subcommittee June 17 recommended the elimination of the IRS private debt collection program—and called for a one-year moratorium on other government privatization efforts. The measures were included as language in a Fiscal Year 2009 budget markup approved on a voice vote by the panel. The controversial IRS debt collection effort, which pays private collection agencies a bounty for every tax debt dollar they collect, has been severely slowed by consumer complaints and questions over its viability from the start. Numerous IRS officials have acknowledged since the program’s inception that federal workers can collect back taxes more efficiently than the private debt collectors. The House in April passed a tax bill, H.R. 5719, that would eliminate the debt-collection program, a bill whose counterpart awaits action in the Senate. The subcommittee’s call for a privatization freeze is designed to give the next administration an “opportunity to consider and implement its own workforce policies,” said subcommittee Chairman José E. Serrano, D-N.Y., who called the A-76 competitions a, “controversial and detrimental federal workforce program.” To see more, go to: http://serrano.house.gov/PressRelease.aspx?NewsID=1567.

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In Brief: GAO: Manpower Shortages Threaten FPS Mission

Staffing shortages at the Federal Protective Service (FPS) threaten to undermine the agency’s mission of protecting the nation’s 9,000 federal government buildings, a Government Accountability Office (GAO) report has found. A decrease in staffing of about 20 percent since Fiscal Year (FY) 2004 has led the agency to cut down on some security measures at government buildings. FPS generally has eliminated proactive patrols at government buildings that would detect and prevent criminal incidents and terrorism-related activities, the report said. FPS also continues to struggle with managing its contract guard program and the implementation of key measures such as security cameras. With regard to the cameras, GAO found that many of those installed at multiple high-risk facilities were not working properly, preventing FPS investigators from identifying suspects. The report noted that the agency aims to improve security by transitioning toward an investigator-based workforce of more highly skilled employees. FPS has an annual budget of about $1 billion, 1,100 employees and 15,000 contract guards located throughout the country. The report, released June 18, is available at: www.gao.gov.

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In Brief: NFFE Wins Forest Service Employees at Allegheny National Forest

The National Federation of Federal Employees (NFFE) won the right to represent Forest Service employees at the Allegheny National Forest in Pennsylvania in a recent union election. “This was truly a grassroots effort,” said NFFE Business Representative Gary Johanson, a key organizer of the workers. “A few employees who had worked in NFFE-represented forests in the past were instrumental in this victory. They recognized the value of union representation, contacted us, and worked from the ground up to make this happen.” The new local, NFFE said, will be comprised of approximately 105 bargaining unit members, who will be given access to the union’s training courses and other benefits. The members of the new local will be governed by a master agreement between NFFE and Forest Service employees. For more, go to www.nffe.org.

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In Brief: PEER: EPA Library Re-Openings Hampered

Public Employees for Environmental Responsibility (PEER) recently criticized Environmental Protection Agency (EPA) efforts to re-open a series of environmental libraries, alleging the agency has failed to involve employees in the plan. PEER also alleges that the agency—which was ordered by Congress to restore the libraries—has allocated only minimal space and resources to the renewed effort, and continues to delay in resolving an outstanding unfair labor practices complaint filed over its earlier preemptory removal of libraries and related services. The agency’s now-defunct closure plan had called for eliminating 10 percent of EPA’s network of laboratories and research centers. The plan would have permitted EPA regional administrators to carry out personnel reductions targeting higher-ranking (GS-12 to GS-15) scientists, analysts and managers. But in December 2007, Congress intervened and ordered EPA to re-open the libraries. EPA since has moved sluggishly to restore the libraries, according to PEER, because lawmakers permitted the agency to control the process. To see more, go to: www.peer.org/news/news_id.php?row_id=1065.

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Legal Matters: Employees May Sue Over Age-Complaint Retaliation

By David Weiser and Adrienne Tranel

For federal employees, age bias complaints have restrictions that are not present for all other types of discrimination claims (including no compensatory damages and no attorneys’ fees during the administrative process).  But the Supreme Court recently rejected one more restriction that some federal agencies had been pushing. This new ruling makes clear that federal employees may file retaliation complaints in connection with age bias. This good news for federal employees is in line with other Supreme Court decisions upholding retaliation claims even when a statute does not explicitly mention retaliation as a possible type of complaint.

The recent Supreme Court case is called Gomez-Perez v. Potter. The employee in question was a window clerk for the Post Office in Puerto Rico. She requested a temporary transfer, which was granted. She later requested to be returned to her original post, but this was refused, and she filed an age discrimination complaint. Shortly thereafter, she filed a second claim, asserting that she was subjected to a variety of unfavorable actions in retaliation for her prior age bias complaint.

She sued, but the Post Office succeeded in having the case dismissed. Both the trial court and the court of appeals agreed with the Post Office because the statute allowing age bias complaints against federal agencies does not contain any explicit authorization for retaliation claims. This set the stage for the Supreme Court decision on May 27, 2008.

The Supreme Court agreed that the age bias statute does not specifically mention retaliation, but that is not the end of the story. In cases from 1969 and 2005, the Supreme Court had determined that federal civil rights statutes should be interpreted to protect against retaliation, even if retaliation is not mentioned in those laws. In the Gomez-Perez case, the Supreme Court said that the same principle applies to federal employees and age-bias retaliation claims. Thus, the Supreme Court sent the case back down to a trial court so Ms. Gomez-Perez may litigate her retaliation lawsuit.

In essence, the Supreme Court’s recent decision re-affirms the general rule that federal civil rights laws should be interpreted to contain an implied claim for retaliation, even when the statute is silent on the subject of retaliation.  But even with this victory for employees, it is important to note two areas of caution. First, federal employees with age discrimination complaints still face strict limits that are unique among all other types of discrimination claims: no compensatory damages, and no attorneys’ fees during the administrative process. (Congress has so far made little progress in correcting this aberration.) Second, the Post Office and other agencies may continue to push arguments that restrict federal employee claims based on narrow readings of federal civil rights statutes.

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Informed Investor: Health Insurance and Military Service

Federal employees who are called up to active military duty in support of a contingency operation will be in a non-pay civilian status while they are receiving military pay. They could therefore lose—at least temporarily—their Federal Employees Health Benefits Program (FEHBP) health insurance coverage while serving on active duty. But two recently-passed laws have made it easier for these employees to keep their FEHBP coverage.

The National Defense Authorization Act of 2005—Public Law or P.L. 108-375—amended FEHBP laws to provide up to 24 months of continued FEHBP coverage for federal employees and their families when an employee is called to active duty in support of a contingency operation. P.L. 108-375 authorizes agencies to pay both the employee’s share and the government’s share of FEHBP premiums for up to 24 months. In particular, P.L. 108-375 provides that this benefit be available to any employee who: (1) is enrolled in the FEHBP program; (2) is a member of a reserve component of the armed forces; (3) is called to active duty in support of a contingency operation; (4) is placed on leave without pay or separated from service to perform active duty; and (5) serves on active duty for more than 30 consecutive days.

P.L. 108-454—the Veterans’ Benefits Improvement Act of 2004—extended the length of an employee’s health insurance coverage from 18 to 24 months when the employee is absent because of service in the uniformed services. For FEHBP purposes, P.L. 108-454 applies to employees who are called to active duty but who may not meet all of the requirements of P.L. 108-375, as stated above.

While serving in the uniformed services, an employee also has access to health insurance coverage through the TRICARE program—TRICARE Prime or TRICARE Standard—for the employee and family members younger than age 23.  But if family members are not satisfied with TRICARE coverage, or if they have doctors and hospitals who do not accept it as insurance, they also will have access to their FEHBP plans—at least for the first 24 months that their federal employee family member is serving in the uniformed services.

Upon returning to federal service, can these employees reactivate their FEHBP coverage following more than 24 months of active military duty? FEHBP regulations provide that an employee’s FEHBP enrollment is automatically reinstated upon returning to federal employment following active duty.

Certain separating active military duty members and eligible family members also may be entitled to the Transitional Assistance Management Program, or TAMP—a transitional health insurance program under TRICARE. An employee’s human resources office can assist the employee in determining his or her eligibility for TAMP.

An employee’s agency can postpone automatic reinstatement of the employee’s FEHBP enrollment until TAMP ends if the employee signs a Waiver of Immediate Reinstatement of FEHBP. To do this, the employee should bring his or her Certificate of Release or Discharge from Active Duty (DD214) to the human resources office. The human resources officer then will be able to determine when an employee’s 180 days of transitional TRICARE will end.

Employees can revoke at any time the waiver of immediate reinstatement of FEHBP election. They may do so by signing the revocation request at the bottom of the Waiver of Immediate Reinstatement of FEHBP form and submitting it to the human resources office. Employees should make sure that their FEHBP coverage takes effect by checking their leave and earnings statements to determine that FEHBP premiums have been deducted from their paychecks.

Employees should note that the loss of transitional TRICARE is considered to be a Qualifying Life Event (QLE). Since the loss of transitional TAMP is a QLE, they can request an enrollment change into FEHBP from 31 days to 60 days after they lose TRICARE coverage.

Those employees who have returned from active military service and who are still enrolled in FEHBP and are covered by TAMP may cancel their FEHBP coverage. If they pay their FEHBP premiums via payroll deduction using pre-taxed salary (called premium conversion), they may cancel their FEHBP coverage within 60 days of the date they will be restored to a civilian position, or within 60 days of another QLE that permits cancellation of coverage. If they do not participate in premium conversion, they may cancel FEHBP coverage at any time.

Employees who cancel their FEHBP coverage in favor of TAMP should be aware that: (1) they and their dependents are no longer covered under the FEHBP; (2) they may not re-enroll in the FEHBP until they lose their TAMP coverage or have another qualifying QLE that permits  enrollment—otherwise, they will have to wait until the next “open season” to re-enroll in the FEHBP; (3) should they retire, they may not re-enroll in the FEHBP; and (4) if they die, their survivors will not have an FEHBP family enrollment—even if a family member is eligible for a survivor annuity.

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You Be the Judge: Did Treasury Employee Suffer Retaliation?

“I put in many years at the Treasury Department, and earned my way up the ladder,” said Tim Folsom*, a longtime employee at the department. “And I would have waited longer to retire—but after I complained about a corrupt manager, every day became a struggle, so I decided to move on to the private sector—and fast.”

“You see, the manager first hit back at me by depriving me of workplace responsibilities,” he continued. “Later, after I’d left for the private sector, he slandered me while gossiping with my new bosses—so they laid me off.” 

“I can’t hope to get back either position now—my old job or my newer one,” Folsom said. “But I can pursue my appeals until I win some money and—maybe—satisfaction.” 

“Mr. Folsom presents a very elaborate and very flawed complaint,” replied George Dobbs, an attorney with the agency. “Besides, he failed to prove his case in two legal venues—why would a third be any different?”

FACTS: Tim Folsom worked at the Department of the Treasury, rising through the ranks over many years. For the last several of those years, he worked as an Assistant Director of the Office of the Currency Law Department Enforcement and Compliance Division, and then with the department’s Financial Crimes Enforcement Network. While in that last position, the Bank of America Corporation came calling and hired him as a senior vice president. But, in early February 2007, just a few months into the private-sector job, suddenly the bank laid him off. 

Folsom filed a complaint with the Office of Special Counsel (OSC) on Feb. 21, 2007, alleging that he only left federal service because a corrupt supervisor had retaliated against him for whistleblower activity—retaliation he endured before and after his retirement from government employment. First, Folsom alleged that after he complained about the supervisor’s corruption, many of his work responsibilities were mysteriously transferred to a female colleague who, Folsom claimed, was the supervisor’s secret girlfriend. Second, Folsom charged that as he exited government employment, the same supervisor slammed him with a dishonest, negative performance review—a misdeed that led to uncomplimentary gossip, costing Folsom his private sector post months later.

But on June 4, 2007, OSC notified Folsom that it would end its investigation into his complaints without taking any action on them. Folsom next appealed to the Merit Systems Protection Board (MSPB). Yet, here too, an administrative judge (AJ) with the panel turned him down. The AJ found that Folsom’s complaint to the OSC was far weaker—and oddly different—than the one he filed with the MSPB. 

Specifically, the AJ threw out Folsom’s first claim to MSPB—that he had suffered severe losses of money and recognition in his government job “as a result of whistleblowing.” The AJ then rejected Folsom’s second claim, that whistleblower retaliation haunted him even at his private-sector job after the same supervisor badmouthed him to bank officials. The AJ found that what the supervisor did to Folsom may have been many things, but it was “not a personnel action.” More elaborately, Folsom “failed to show that personnel actions taken by the private sector at the urging of government are ‘personnel actions,’” the AJ ruled, for the purposes of an MSPB appeal. Because Folsom’s job loss at the Bank of America did not technically constitute a personnel action, and due to other weaknesses in the complaint, the AJ found that no whistleblower retaliation occurred—and threw out the rest of his appeal. Folsom appealed again, to the full MSPB.

Did Folsom suffer retaliation—and should he win restitution? 

DECISION: The full board reconsidered Folsom’s case. But on the claim that his supervisor had caused Fulsom to be fired (by badmouthing him to his new employer), and hence committed a retaliatory personnel action, the panel concurred with the AJ: to qualify, such actions must be “taken with respect to an employee in, or applicant for, a covered position in an agency…” In the panel’s opinion, Fulsom could in no way qualify under this “covered position” clause. “The AJ correctly dismissed this claim for lack of jurisdiction,” the full board wrote.

But on Folsom’s other main claim—that the AJ wrongly had found that he had failed to exhaust all administrative remedies with the agency and OSC—the panel found for the appellant. Although OSC had declined to pursue his case, it had affirmed Folsom’s claims in its June 4, 2007, “close-out letter.” Because that body had clearly considered—and rejected—his complaints, Folsom had exhausted his administrative claims and had every right to pursue them with MSPB. The panel agreed that Folsom had “made a non-frivolous allegation” and that “a disinterested observer could reasonably conclude that the...supervisor’s actions constituted an abuse of authority.” The panel also reiterated that there is no minimal legal standard for retaliation to be heard by MSPB, and that Folsom’s case should therefore be heard. The board remanded his complaint to the AJ to reconsider based on the merits.

(MSPB, Docket No. DC-1221-07-0810-W-1, 6/6/08)

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

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