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Veterans Affairs Accountability and Whistleblower Protection Act

The President recently signed The Veterans Affairs Accountability and Whistleblower Protection Act of 2017 into law. Friend-of-the-firm Bill Aramony attended the recent bill signing at the White House.  Bill has over 30 years representing employees and veterans, and he has a distinguished history of advocating for veterans.  A number of the Act’s changes are noted below.

The bill amends Title 38 U.S.C. to improve the accountability of employees of the Department of Veterans Affairs. For Senior Executive discipline and removal, the bill allows advance notice, the ability to be represented by an attorney or other representative, and the ability to grieve the decision.

It gives 15 business days to process a disciplinary action, inclusive of 7 business days for the executive to respond to the proposed action. The grievance procedure is 21 days. The bill does not provide for review of SES discipline by the Merit Systems Protection Board (MSPB). Non-SES Employees may be removed, demoted, or suspended for reasons of performance or misconduct.

The advanced notice and response period of 15 business days, with 7 days allowed for employee’s response to a proposal to remove, demote, or suspend.

MSPB appeal time is 10 business days (it was 30 calendar days). The burden of proof on the agency is “substantial evidence.” Before the agency’s burden was preponderance of evidence.

MSPB cannot mitigate VA chosen penalties. The bill supersedes any conflicting provisions of collective bargaining agreement(s).

The bill mandates that the VA institute whistleblower protections and a position of assistant secretary for accountability and whistleblower protection. The bill allows the VA Secretary to reduce the pension of a VA employee convicted of a felony that influenced job performance.

The bill also allows the VA Secretary to recoup any bonus or award paid to any employee engaged in poor performance or misconduct discovered after giving the bonus.

If you have any questions about the Act or about VA and other employment-related issues, contact the office today. Or contact Bill Aramony at 703-299-8496.

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Were you wrongfully terminated?

This is a question that comes up a lot. The answer, typically, is no. Virginia is an “at-will” employment state, which means that an employer can fire you for any reason so long as it is not one that is prohibited by law.

A frequently seen pattern is where two coworkers don’t get along, one gets promoted to become the supervisor of the other, and the newly promoted supervisor then fires the other worker shortly afterwards. Let’s look at this. If this is all there is to the story, then there probably is not a wrongful termination.

In order for a firing to be a “wrongful termination” the firing must be because of some prohibited reason. Here, the two coworkers just don’t get along. Even if the manager said that he was firing him because they didn’t get along as coworkers and, that wouldn’t be a problem. It would be a problem, however, if the new manager fired his former coworker because of:

  • their age;
  • their race;
  • their religion;
  • their sex;
  • their national origin (the country they are from);

In order to prove this, the terminated coworker would have to have some proof of their new bosses’ discriminatory intent. That’s just a fancy way of saying that they’d have to be able to show bias or bigotry. They might be able to do that, for example, if the reason that they had not been getting along is that Mr. “New Supervisor” was always telling inappropriate and racist jokes. It’s pretty rare that this kind of explicit evidence exists.

Often, I ask potential clients: “Can you look yourself in the mirror and honestly say you think you were fired because of your age, race, sex, religion or nationality?” I call this the “mirror test.” It’s important because it helps people separate their anger at being terminated from the facts of their case. If you can’t pass the mirror test then it’s unlikely that you’ll be able to win a wrongful termination discrimination case. This is because these cases can take a long time to resolve and the lives of the complainant’s can be subjected to intense scrutiny. If you don’t believe in your case, then it’s likely a judge or jury won’t either.

If you can pass the mirror test, however, you might want to seek out an attorney to go over the unique facts and circumstances of your case.

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Religious Discrimination, Endorsement, Accommodation and Football (Part I)

I’ve been thinking about football lately–mostly because of the dramatic and seemingly overnight way Jim Harbaugh turned around Michigan’s troubled football program. Even with the heartbreaking loss to the Michigan State Spartans, I think it’s fair to say that the Wolverines are back. And though I usually don’t watch football, even I’m excited.

But I was also thinking about football because of a religious discrimination case that’s been brewing in the media. Maybe you’ve heard about it.

Coach [AM] has two passions: Islam and Football. A former U.S. Marine and combat veteran, he converted to Islam after he married a Muslim woman and coaches football at his local high school. He loves the kids; loves coaching them, watching them grow up, graduate and then start families of their own.

Like all Muslims, Coach AM practices the salat. The salat is one of the pillars of Islamic faith and it requires Coach to pray five times a day. One of those times is at sunset and since he’s the football coach, he’s sometimes on the football field when the sun sets. He might be conducting football practice or even coaching a game. No problem though, Coach simply waits until the practice or game is over, then lays down his prayer mat on the 50-yard line and says his prayers.

Some of the students, who are also practicing Muslims, occasionally join Coach and say their prayers with him. Others watch respectfully. None of the students is bothered by it.

Eventually though, someone sees this devout Muslim praying on the high school’s fifty-yard line and is bothered by it. They contact the school district. The school district starts to get worried. Are they endorsing religion? Are they potentially liable for this? They order Coach to stop. They tell him to stop praying. They tell him to stop practicing his faith.

But just rolling over and giving up isn’t exactly in this Marine’s DNA. After all, that’s not the spirit that took Iwo Jima. He refuses to stop his prayers and is fired.

Sound unbelievable? Well, as it happens I made up Coach AM. But this exact thing is more or less what happened to Coach Joe Kennedy of Bremerton, Washington. Except that Coach Kennedy isn’t a Muslim, he’s a Christian. And his case got me thinking about the intersection of religious accommodation, the endorsement clause, and religious discrimination.

I made up Coach [AM], a hypothetical Muslim coach in the same situation as Coach Kennedy, because the mandatory practice of the salat crystallizes the issue in the case. Still, there are a couple of factors at play here, and they make for an interesting mental exercise. We’ll start with the easy bit. I don’t think that anyone is going to argue that the act here, prayer, is not religious in nature.

Among other things, Title VII of the Civil Rights act of 1964 prohibits religious discrimination and requires employers “reasonably accommodate” an individual’s religious practices. 42. U.S.C. § 2000e-2(a)(1).  These are two separate things.

First, an employer may not take “adverse employment action” against an employee “because of” their religion. The term adverse employment action is fairly broad in that it provides a wide range of protection. This includes the obvious, such as termination, refusal to hire, or the denial of a promotion as well as more subtle things such as unjustified negative evaluations or references. But the EEOC does not believe that Title VII is a “general civility code” and it does not apply to all “insensitive or offensive comments, petty slights, and annoyances illegal.” EEOC Compliance Manual Section 12.

Title VII is violated, however, “when an employer or supervisor explicitly or implicitly coerces an employee to abandon, alter, or adopt a religious practice as a condition of receiving a job benefit or avoiding an adverse action.”   Id. (citing , Ventners v. City of Delphi, 123 F.3d 956, 964 (7th Cir. 1996).

I think that based on this guidance both Coach [AM] and Coach Kennedy have a case.  Coach Kennedy and the hypothetical Muslim Coach [AM] were asked to stop praying and then, when they wouldn’t, they were terminated. Here’s where it starts to get interesting, though.

The case is at an intersection that will require the deciding court to balance between the two coaches’s protected rights under Title VII and the school’s obligations under the Establishment Clause of the constitution. The EEOC recognizes that a government employer may argue that a requested religious accommodation (in this case permitting the Coaches to continue to pray at the 50-yard line) may pose an undue hardship where it would cause the government employer to run afoul of the Establishment Clause.

No doubt, that’s what the school district will argue in Coach Kennedy’s case, and it’s interesting because the case—a Title VII discrimination case—will potentially be decided on an interpretation of the Establishment Clause.  Fascinating.

I’ll be monitoring the case and will provide further analysis of the school district’s possible defense in part II.

-Kirk

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