National News Alert

"Employees Removed for Political Activity Violation"

Government Employees Removed for Hatch Act Violations

The Office of Special Counsel, the agency responsible for investigating and prosecuting violations of the Hatch Act restrictions that prevent government workers from participating in certain political activity, recently announced that severe penalties were imposed against two employees in separate enforcement actions.

An employee at the National Institutes of Health (NIH) was terminated for violating the Hatch Act by soliciting political contributions and inviting 63 people, including NIH employees, to a fundraiser at her home in Bowie, Maryland. She also made an online political contribution using her government computer while on duty and in her NIH office.

The second enforcement action involved a New Jersey state employee who had duties in connection with federally financed activities. This employee violated the Hatch Act restrictions against running for partisan political office and pursuant to a settlement agreed to retire and be barred from employment with any state or local agency within the State of New Jersey for 15 months. For more information, see the attached OSC press release.

OSC Hatch Act Press Release

2011 OSC Hatch Act Guidance

Details on political activities that public servants are allowed under the modern

Hatch Act. From the U.S. Office of Special Counsel.

BLACKS IN GOVERNMENT® SUPPORTS OBAMA HEALTHCARE REFORM

“Ask the Lawyer”

By, Neil A.G. McPhie, Esq.

Q.What do you do if you accuse an agency of racial discrimination and it responds with some bogus explanation?

A. Agencies usually respond to allegations of discrimination made in Equal Employment Opportunity (EEO) complaints with some nondiscriminatory reason. The task for government employees then becomes proving that this explanation is “pretextual,” or untrue and cover for an actual discriminatory motive.

As the U.S. District Court for the District of Columbia noted in its 2008 decision inBrady v. Office of the Sergeant of Arms, the most popular strategy involves showing that the employer treated an employee in a protected class differently from employees of another race. The employee could also show the employer is lying. Just saying any employee of another race received more favorable treatment is not enough. As the U.S. 7^th Circuit Court of Appeals noted earlier this year inColeman v. Donahoe, the criteria for similarly situated co-workers usually includes the same supervisor, subjection to the same standards and engagement in similar conduct minus any differentiating mitigating or differentiating circumstances.

However, the court inColeman added that the inquiry into similarly situated co-workers is “flexible” and it is not looking for “clone[s].” This case involved a U.S. Postal Service mail processing clerk who was removed after 32 years of service after she told her psychiatrist, among other things, that she thought about killing her supervisor. The psychiatrist informed the Postal Service about this threat, and Coleman was subsequently placed on off-duty status and terminated.

Coleman filed a lawsuit against the postmaster general claiming discrimination on the basis of her race, sex and disability and retaliation for prior discrimination complaints. Coleman noted that the same manager who fired her punished two white Postal Service employees with one-week suspensions after they threatened to kill another employee at knifepoint. A district court dismissed the suit, finding the two white employees – who had a different supervisor and worked different jobs – were not similarly situated to Coleman. The 7^th Circuit reversed this decision, noting that the case of the two white employees was “close enough to Coleman's to provide a ‘meaningful comparison’ and to permit a reasonable jury to infer discrimination.”

Public sector employees who were subjected to unlawful discrimination should contact an employment law attorney. Federal employees have 45 days after a discriminatory act occurred to contact an Equal Employment Opportunity (EEO) counselor.

Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached atnmcphie@fedattorney.com. To schedule a meeting with an attorney call 202-787-1900.