ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
Jon Arthur, a temporary employee of the National Park Service, worked aboard the U.S.S. Arizona Memorial in Honolulu, Hawaii as a tour guide. During a Memorial Day ceremony at Pearl Harbor, Arthur stood by his supervisor without saluting the flag. His supervisor nudged him and whispered to him to salute, but he refused and made his disdain for the ceremony clear through "snorts and grunts." Later, Arthur's supervisor reprimanded him for not saluting the flag, which is one of his job duties, and suggested that he find a job somewhere else if he had such an obvious dislike for his current duties.
Arthur later was fired for poor performance, but he filed a complaint with the Equal Employment Opportunity Commission, claiming he was discriminated against on the basis of religion, which he listed as "Christian/nondenominational."
The EEOC, on appeal, found that Arthur was fired because people on his tours often complained about him, because he offered his own political views during tours and because he refused to cooperate with coworkers and visitors.
According to the EEOC, Arthur never voiced a religious objection to saluting the flag and never asked for special accommodation due to his religious views. Arthur's termination was upheld.
Lesson: Don't confuse political statements for religious convictions.
Jon E. Arthur v. Babbitt, Secretary, Department of Interior, Equal Employment Opportunity Commission (99 FEOR 1236), July 23, 1999.
Costly Error
The beauty of travel agents is that they take care of all of the inconveniences of travel planning, from comparison shopping for the best deals to booking flights. But if you're a federal employee, you can't always sit back and rely on your agency's travel office to take care of all the gory details for you.
Desiree Fray, a State Department employee stationed in Cape Town, South Africa, learned that lesson the hard way. Fray had her office's travel agent book her flight from Cape Town to Washington and back, with a stop in London for a vacation on the return trip. When Fray got back to work and submitted her travel voucher, she was hit with a surprise- a $1357.88 penalty for violation of the Fly America Act.
The Fly America Act requires all federal employees to fly on United States flag carriers unless the only available flights are on foreign carriers. Fray's return leg from London to Cape Town was on South African Airways. American Airlines, however, offered the same flight for the same price, so Fray was held liable for violating the law.
Fray was taken aback, claiming she assumed she could follow the advice of the agency travel agent. But under federal regulations, the traveler is ultimately responsible for payment of charges incurred for failure to comply with government regulations.
The travel agent thought that because the prices for the flight on American and South African Airways were the same, it didn't matter which carrier Fray took.
Fray appealed the decision, but ended up having to pay for her travel agent's mistake. The General Services Administration's Board of Contract Appeals was lenient on her, though, saying the agency applied a penalty that was disproportionate to the offense. Her penalty was reduced to $729.51.
Lesson: Never assume your travel agent knows best.
Desiree Fray v. Embassy Pretoria Budget & Fiscal Office, General Services Board of Contract Appeals (GSBCA 15012-TRAV), July 23, 1999.
Car Wreck
As she was driving along her route, letter carrier Theresa Cole reached back for a parcel and a drink of water. She suddenly lost control of her vehicle, which jumped the curb and smacked into a sign pole and a tree.
The Postal Service decided to fire her, but then reduced the penalty to a 10-day suspension. Cole, a black employee, filed a complaint with the Equal Employment Opportunity Commission, charging that white employees who caused worse accidents received lesser punishments.
A white employee, for example, made a left-hand turn into oncoming traffic, causing a collision. The employee only received a letter of warning.
Even though the Postal Service had a policy calling for the removal of employees who cause car accidents, the EEOC agreed with Cole that the agency's treatment of her was unfair, given the way USPS handled white employees' accidents. The commission ordered the agency to reduce Cole's punishment to a letter of warning.
Lesson: Be consistent in disciplinary matters. And keep your eyes on the road.
Cole v. USPS, Equal Employment Opportunity Commission, Appeal No. 01972948, July 8, 1999.