Re: Ney v. Department of Commerce (MSPB)

[Peter Ney <pete@ney.com>]

Debra,  

Thank you for the quick response.  Friday morning would be great.  You pick the time.  Earlier is better.

I work for OPM (Federal Investigative Services) out of my home office, and Anne is adjunct faculty at the local College, also working from home, so we are pretty flexible on scheduling your call.

We looked at the probationary issue.  Anne has filled in for GS employees, but as a reserve officer.  All Coast Guard Petty Officers and Officers are National Marine Fisheries Service enforcement officers, but even that is a stretch.

The AJ has accepted jurisdiction over the USERRA and marital status claim.  He had a pre-hearing conference and a hearing scheduled, but suddenly the lawyer from the Department of Commerce wanted to go to mediation.  We are still waiting for a mediation judge to be assigned.  I don't hold out much hope for settling this pre-hearing.  They are hung up on Anne being a term (13 month) limited employee.  They do not want to reinstate her to the present.  They have offered to allow her to resign at 13 months and they have already changed the SF-50 termination code.  We argue that not only would she have continued in the position, or transitioned to another position within NMFS, but that they knew it was being converted and funded as a permanent position. They had to get rid of her and they had to give her an SF-50 termination code that so derogatory she would not be able to compete for the position again.  

We would agree to a settlement that would have her resign at 13 months, she would not be able to work there again anyhow, but the $ amount would have to increase to cover the lost wages/leave/benefits, etc.  We do believe that the case is well documented in our favor, and if they don't want to make Anne whole again, we will have no problem at a hearing.

This case is complicated, but Anne's termination was so sloppy it is comical. It is a case study in what not to do! We are still amazed that the Department of Commerce's General Counsel is still hanging in there.

Please let us know what time to expect your call (727) 374-5732.

Thanks,  Pete Ney





On Feb 23, 2011, at 5:41 PM, Debra A D'Agostino wrote:

Pete,

I work with Mark on several federal employment law matters and routinely
practice before the MSPB.  I have also handled several cases with NOAA,
including one which is still pending.

I briefly reviewed the materials you forwarded and already have several
questions, so if you and Anne are available, I would like to set up a time
when we could talk about the claims, relief, and possible representation.
I'm available tomorrow morning or Friday, so please let me know what
day/time works best for you.  

Also, in reviewing the Board's Opinion, I noticed the Board commented about
whether Anne was appropriately classified as a probationer (versus and
employee with appeal rights) - has this issue been addressed or is there
still an argument to made?  

Yours,


Debra A. D'Agostino
Partner

1800 Diagonal Road, Suite 210
Alexandria, Va. 22314
debra@puckettfaraj.com
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-----Original Message-----
From: Peter Ney [mailto:pete@ney.com] 
Sent: Wednesday, February 23, 2011 5:18 PM
To: Mark S. Zaid
Cc: 'Anne Ney'; 'Eric S. Montalvo'; 'Haytham Faraj'; 'Debra D'Agostino'
Subject: Re: Ney v. Department of Commerce (MSPB)

Mark,

I have attached a few of the basic documents.  The AJ originally dismissed
the marital status case but it was remanded on appeal and he was ordered to
review it for USERRA and VEOA violations.  We have not been able to find a
lawyer in this area that is confident in MSPB cases, and who understands
USERRA/VEOA violations, prohibited personnel practices and dealing with a
federal agency.  The Department of Labor has assigned an investigator to
pursue the VEOA complaint Anne made with them, but they will not participate
in the MSPB appeal.

We are not in a position to put down a huge retainer and run up huge legal
costs.  The MSPB will award attorney's fees if we prevail and we can add a
percentage of any award to make the case attractive to a willing and
qualified lawyer.  Our current settlement offer is - reinstatement to
present with all back pay, etc. and $250,000.  

I hope that the unique aspects of this case; probationary employee, military
reserve CWO4 with 30 years of service, USERRA, female on female
discrimination, and blatant misuse of the public trust will interest a
lawyer with the experience to bring it to a quick resolution.  We still hold
out hope that they will want to avoid a messy public hearing that puts the
credibility of a bunch of scientists under the scrutiny of the MSPB/OPM/DOL
and the OSC.  If any of your colleagues are interested, I would be happy to
talk to them. 

Thanks for your time,

Pete