D. A. v. Department of V.A . (December 2009)
Mr. Ackerman, represented a V.A. physician who was reassigned and removed from some of her duties, while the Agency conducted an Investigation into allegations of misconduct. Although the investigation was completed quickly, and the client was exonerated, the Agency continued to keep the Physician in her reassigned position with, no valid reason. Mr. Ackerman's client alleged that she was subjected to disparate treatment due to her gender and National Origin. The EEOC Administrative Judge agreed and ordered the Agency to pay Mr. Ackerman's client compensatory damages, to restore leave to his client and to fully pay her attorneys fees. This case was NOT appealed by the Agency.
MERIT SYSTEMS PROTECTION BOARD
R.B. v. Department of Homeland Security, SF-0752-13-3302-I-1-December 3, 2014.
In this case, Mr. Ackerman represented a Financial Specialist, a Manager, with the Transportation Security Administration. (TSA). Mr. Ackerman’s client spent a day escorting a visiting Federal Official, from another Agency, around the Burbank Airport. At the end of the day, after leaving the secure area, the guest requested to be allowed back into the secure area again. The Manager brought the visitor back into the secure area but failed to require that the guest go through the requisite screening process. Instead, he brought the visitor in on his own, and advised the TSA screener that he had permission to bypass the screening process. In fact, he did not have specific permission to do so, but he believed he was allowed to do this.
Mr. Ackerman’s client was charged with “undermining required security procedures” and “misrepresentation”. He was removed after the Agency’s Deciding Official sustained both charges. After a full hearing before an Administrative Judge of the Merit Systems Protection Board, an Initial Decision was issued sustaining both charges as well as the penalty of removal. Mr. Ackerman filed a Petition for Review of the Initial Decision with the MSPB in Washington D.C.
Upon review by the full Board, a Final Order was issued vacating the Initial Decision in part and mitigating the penalty of removal to a thirty (30) day suspension. The Board sustained the charge of undermining security procedures but reversed the charge of misrepresentation. The Board held that the charge of misrepresentation could not be sustained because the employee did not “intend to defraud the agency for his own personal gain”. The Agency was ordered to restore the client to his position and to pay him full back pay and Attorneys fees.
S. S. v. Dep't. of the Air Force, DOCKET # SF-0432-13-0564-I-1 October 17, 2014
In this Case Mr. Ackerman represented a Civilian employee of the Air Force employed as a CHEMIST Level III. The Agency removed the employee based on the Agency's Contribution Plan which required a specific level of contribution for each employee based upon his grade level. The Agency placed the employee on a Contribution Improvement Plan and then determined he failed to contribute adequately to maintain his position. After a full hearing before an Administrative Judge of the M.S.P.B. the termination of Mr. Ackerman’s client was REVERSED and the employee was ordered restored to duty. The Judge ruled that the Agency failed to present sufficient evidence to show that the employee failed to meet his required contribution level. The Agency appealed the Initial Decision of the A.J., however, the full board sustained the decision in a Final Order.
In this case, the Administrative Judge found that the agency’s removal action was equivalent to an action taken under 5 U.S.C. chapter 43. The Judge found that the agency was only required to prove that it placed the appellant on a contribution improvement plan that provided him an opportunity to improve and that his contribution score fell below the required level within 2 years of the start of the CIP. He found that the agency did not meet its burden to prove by substantial evidence that the appellant failed to make an adequate contribution during the period at issue. The administrative judge found that the agency’s witnesses made general, conclusory assertions concerning the appellant’s performance during the 2012 rating period, without providing specific examples of deficiencies that justified his low contribution score.
Postmaster L.C. v. U.S. Postal Service
SF-0752-09-0817-I-1; SF-0752-09-0949-I-1 (January 5, 2010)/h3>
In this case Mr. Ackerman represented a Postmaster accused of sexual misconduct. The Agency demoted the Postmaster to a craft employee claiming she tried to induce another employee to engage in sexual conduct with a high-level manager, in order to further the career of the Postmaster. After a full hearing before an Administrative Judge, an Initial Decision was issued finding that the Agency had NOT proved the charges. Mr. Ackerman successfully established that the charges were unfounded. Mr. Ackerman won the Appeal to the M.S.P.B. and a Decision restoring the Postmaster to her position as a Postmaster was issued. Mr. Ackerman's client was awarded attorneys fees and back pay and the Agency chose NOT to Appeal the Decision of the A.J.
S. N. v. DEPARTMENT OF VETERANS AFFAIRS,
Docker Number SF-0752-09-0683-I-1-October 7, 2009
In this case Mr. Ackerman represented a V. A. Employee employed as a Program Support Assistant. The Agency removed the female employee after she and her male Supervisor became involved in a physical altercation at work. The Agency alleged Mr. Ackerman's client instigated the physical altercation and was responsible for the confrontation. The Agency terminated BOTH the Supervisor and Mr. Ackerman's client for the incident. After a full hearing before an Administrative Judge of the M.S.P.B. the termination of Mr. Ackerman's was mitigated to a 60-day suspension. The Judge ruled that although Mr. Ackerman's client was involved in the altercation, she did not initiate it and the maximum penalty that could be sustained was a 60-day suspension. Mr. Ackerman's client was awarded back pay and attorneys fees and restored to duty.
A.N. Vs. U.S. Postal Service, SF-0752-11-0141-I-1 (March 18, 2011)
In this case Mr. Ackerman represented a Mail Handler employed by the U.S. Postal Service who was terminated for using an Agency computer and telephone improperly, including receiving and sending pornographic materials. The employee, who had Veterans Preference, Appealed his removal to the Merit Systems Protection Board. Mr. Ackerman represented the employee in a hearing before an Administrative Judge of the M.S.P.B. Although the charges were all sustained, Mr. Ackerman argues that the penalty of removal was beyond the bound of reasonableness. The Judge agreed and found that the Agency did not properly consider the Douglas factors. He also found the Agency improperly considered prior discipline that had not been imposed until after the instant removal.
The penalty of removal was reduced to a suspension. Mr. Ackerman's client was restored to duty with back pay and full attorneys fees. The agency chose NOT to Appeal the Decision.
T.S. v. Dept. of Homeland Security, DOCKET NUMBER SF-0752-12-0508-I-1
(September 4, 2012)
In this case, Mr. Ackerman represented a Department of Homeland Security Import Specialist, who was required to successfully complete a training program as a condition of her employment. After failing to pass the training course the employee returned to her duty station where she was demoted to a GS-7 clerical position from her GS-11 position. The Agency demoted the employee to a GS-7 clerical position even though she had held a variety of Officer positions at various grades. Significantly the employee had previously held a GS-12 position for more than 10 years. The Judge found that the Agency charge was sustained because the requisite test was failed by the employee. The Judge found that the employee had failed to meet a condition of her employment. However, the A.J. MITIGATED the penalty to demotion to a GS-9 level position that had been open. The Judge found that the Agency could have demoted the employee to a vacant GS-9 position and improperly demoted her to a GS-7 position, which was too harsh of a penalty. Mr. Ackerman's client was awarded back pay and attorney fees and restoration to a GS-9 position. The Agency chose not to Appeal the decision.
MERIT SYSTEMS PROTECTION BOARD CASES
1. In TINA HIGHLEN v. DEPARTMENT OF AGRICULTURE, Mr. Ackerman represented a female Firefighter who was wrongfully removed after the Agency refused to honor a Settlement Agreement reached with her in an EEO matter. After appealing the Decision of an M.S.P.B. Administrative Judge, who ruled against her, Mr. Ackerman got a U.S. Federal District Court Judge to remand the matter that was then reversed by the Administrative Judge. After the Agency's Petition for Review was denied, the Female Firefighter was awarded full back pay, attorney fees and restoration to her position.
Case Name: HIGHLEN v. JOHANNS, SF-0752-05-0437 M-1(2008) District. Court Case # 06-CV-0957 W (BLM) (July 27, 2007)
2. In ANDREW CLARK v. DEPARTMENT of THE AIR FORCE, the Agency demoted Mr. Ackerman's client from a GS-13 to a GS-12 and suspended him for 60 days for a variety of alleged misconduct including sexual harassment of subordinates. After a hearing before an Administrative Judge of the M.S.P.B. the penalty was reduced to a 30-day suspension and most of the charges were dismissed. The employee was restored to his appropriate grade level and awarded full back pay and attorney fees.
Case Name: Andrew Clark v. Department of the Air Force, SF-0752-07-0817-I-1 (2008)
3. In LINDA EDWARDS v. DEPARTMENT of TRANSPORTATION [F.A.A.], Mr. Ackerman represented an Air traffic Control Specialist who was removed for being "unavailable for duty," when she was away for work because of medical problems. Although the employee continued to submit medical evidence with anticipated dates of return, the Agency wrongfully removed the employee. After the Administrative Judge ruled against the employee, Mr. Ackerman appealed the decision on behalf of his client and the decision was reversed by the full Board. The Agency was ordered to restore Mr. Ackerman's client to duty and attorneys fees were awarded.
Case Name: Linda D. Edwards v. Dept. Of Transportation, SF-0752-08-0062-I-1 (2008)
4. In Stevenson v. U.S. Postal Service, Mr. Ackerman's client was a Supervisor, Maintenance Operations (EAS-17), with 15 years of Federal Service, when he was removed for the charge of irregular Attendance and A.W.O.L. After a full evidentiary hearing before an Administrative Judge of the M.S.P.B., it was held that the Agency had improperly charged Mr. Ackerman's A.W.O.L. and that his removal was unwarranted. The A.J. held that denial of leave requests was improper and that the employee did not have actual prior notice that he might be disciplined for his attendance. The A.J. ruled that Mr. Ackerman's client should not have been disciplined at all. The A.J. REVERSED the removal and ordered the employee restored to duty with full back benefits and attorneys fees.
Case Name: Stevenson v. U.S. Postal Service SF-0752-10-0051-I-1 (May 13, 2010)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CASES
1. In R. V. v. U.S. POSTAL SERVICE, See: R. V. v. John E. Potter, Postmaster General, No. 340‑A1‑3282X Appeal No. 07A20046 (September 2003), Mr. Ackerman represented an employee with a seizure disorder who was not allowed to return to work after he fell and injured himself at work. After a full hearing before an Administrative Judge the Agency was ordered to return the employee to duty with full back pay, lost wages, compensatory damages and attorney fees.
2. In D. S. v. ERIC HOLDER, Jr., [Department of Justice] No. 340-98-3611X Appeal No. 07A00005, Mr. Ackerman represented a female employee who was physically accosted by a high-level manager while at work. The Agency tried to defend itself by claiming the manager was an "equal opportunity abuser" and treated males just as badly as females. After that defense failed before an Administrative Judge and failed again on Appeal, the employee was awarded $200,000 in compensatory, costs incurred and attorney fees.
3. In R. L. v. John E. Potter, Appeal No. 0120102789 (November 30, 2010), Mr. Ackerman's client was a female Letter Carrier with the U.S. Postal Service who endured seven years of a male co-worker interfering with her ability to work. Specifically the co-worker made obscene noises at the woman, whistled at her, visited her therapist, called her at home at night and generally harassed her at work. Despite numerous complaints to management, no effective action was taken to stop the conduct. Additionally, the agency retaliated against Mr. Ackerman's client in how she was assigned overtime. After an Administrative Hearing before an Administrative Judge, and an Appeal to the Equal Employment Opportunity Commission, Mr. Ackerman's client was awarded $150,000 in compensatory damages for her pain and suffering in addition to attorney fees, and restoration of leave. This case was notable because the award of $150,000 was based only on the testimony of the Complainant and her co-workers with no supporting medical evidence.
4. In G. W. v. John E. Potter, Appeal No. 0720090017 (March 18, 2009), Mr. Ackerman represented a Letter Carrier who had a variety of ailments related to his feet. His medical provider recommended that he be allowed to go home for two hours each day to elevate his feet, as a reasonable accommodation for his disability. He was allowed this modification to his work schedule for approximately three years. However, in 2006 a new supervisor arrived who refused to continue providing the reasonable accommodation and the modified work schedule. Mr. Ackerman, on behalf of his client, presented claims of disability discrimination, failure to provide reasonable accommodation and retaliation for requesting reasonable accommodations. After a full evidentiary hearing before an Administrative Judge, the Agency was found liable for retaliation but not disability discrimination. Mr. Ackerman's client was awarded compensatory damages for pain and suffering, attorneys fees and lost benefits. The Decision was upheld by the Commission.