Gilbert Employment Law, P.C.

September 11, 2020

Gilbert Employment Law, PC, in conjunction with Cohen, Milstein, Sellers, & Toll, PLLC, has filed a putative class action lawsuit in federal court, challenging a federal agency’s policy of blocking its employees from fighting personnel actions before the Merit System Protection Board (MSPB).  The case, Alvarez et al. v. Department of Health and Human Services, Civil Action No. 20-cv-02626 (CCB), argues that by preventing employees from challenging personnel actions before the MSPB, the Department of Health and Human Services (DHHS) is denying its employees of their constitutionally-guaranteed rights.

Most federal employees cannot be subjected to severe discipline without being provided with the opportunity to respond to the allegations against them.  If a federal agency upholds certain proposed disciplinary actions (such as removals, reductions in grade or pay, suspensions for more than 14 days, or furloughs for 30 days or less), the employee has the right to challenge the action before the MSPB.  The MSPB is a federal agency that oversees and adjudicates the propriety of these kinds of serious discipline.  It exists to, among other things, overturn disciplinary actions that have been taken due to discrimination, retaliation against whistleblowers, and failure to accommodate employees’ medical conditions.

The MSPB is composed of three members, appointed by the President, by and with the advice and consent of the Senate. In order to issue final decisions, the MSPB must have a quorum of at least two members.  Since January 2017, however, the MSPB has lacked a quorum, and since that time, it has been hobbled by the Trump administration’s failure to appoint any members to the Board.  Beginning on March 1, 2019, for the first time in the MSPB’s history, none of the three MSPB Board Member positions was occupied by an officer confirmed by the U.S. Senate.  The Board’s three seats remain empty, and as a result, it cannot hear any appeals.

The Board acts as an appellate body to the decisions of its administrative judges, who issue initial decisions on disciplinary actions.  Although there has not been a quorum since January 2017, the MSPB has taken the position that its administrative judges may continue to oversee and rule on adverse action cases.  Beginning in August 2019 and continuing to today, DHHS has challenged that position, resulting in its employees’ cases being placed on indefinite hold.

Relying upon the Supreme Court’s decision in Lucia v. Sec. & Exch. Comm’n, 138 S. Ct. 2044 (2018), DHHS argued that in the absence of any Senate confirmed MSPB members, MSPB administrative judges lack the delegated authority required to adjudicate appeals of adverse employment actions.  As a result, DHHS requested that the cases be placed on hold until a Board is appointed.  In response, the MSPB’s administrative judges have placed these cases on indefinite hold.

By using this strategy, over the course of the past year, DHHS has sought and was granted an indefinite hold in 77 appeals filed by at least 72 current or former employees of DHHS.  These employees have no other method by which they can challenge their employment actions, which may be improper (for example, due to whistleblower retaliation or discrimination).  The Alvarez case was filed to end this unconstitutional practice by DHHS.

Alvarez is currently pending before Judge Catherine Blake in U.S. District Court for the District of Maryland.  The putative class contains at least 72 members, all current and former employees of the Department of Health and Human Services, who have been subjected to adverse employment actions and thereafter denied rights guaranteed by statute to challenge the actions taken against them. All media inquiries may be directed to Plaintiffs’ counsel Kevin Owen, by calling 301-608-0880.  Plaintiffs are represented by Kevin Owen, Gary Gilbert, Christopher Bonk, Alexis Tsotakos, and David Norken, of Gilbert Employment Law, P.C.; and by Joseph Sellers and Brian Corman of Cohen, Milstein, Sellers, & Toll, PLLC.

Gilbert Employment Law, P.C., stands in solidarity with those outraged and grieving following the recent murders of Breonna Taylor, Ahmaud Arbery, George Floyd, Tony McDade, Sean Reed, Nina Pop, Steven Taylor, Rayshard Brooks, and countless other victims of police brutality. Each of them should be alive today. As a law firm dedicated to fighting for civil rights, we affirm our support for the #BlackLivesMatter movement in the quest for justice long overdue.

Being Black in America should not result in disproportionate targeting by law enforcement, or any of the many forms of discrimination that are directed at Black people, including discrimination in employment. Nobody should have to live in fear of being killed by police, and nobody should have to mourn the loss of a loved one due to violence from those who are meant to protect and serve them.

At Gilbert Employment Law, we are committed to supporting our Black employees, Clients, and local communities during this increasingly difficult time, made ever more so due to a global pandemic that is disproportionately affecting Black and Brown communities. In order to take actionable steps towards progress, we pledge to audit our hiring paths to ensure that we are meeting our responsibilities to communities affected by 400 years of systemic racism in this country. We support our employees who engage in civic engagement that is meaningful to them, including the provision of additional paid leave to our employees to allow for such engagement. We pledge to explore and propose charitable donation strategies, socially responsible divestiture, and contract sourcing in furtherance of civil rights and social responsibility.

We welcome feedback from our clients and our colleagues in the civil rights community on how we can serve as better allies to all those marginalized by inequality. Today and always, Gilbert Employment Law stands in solidarity with the fight for justice and freedom for all.

The Maryland General Assembly, under sponsorship of Delegate Aruna Miller, issued Gilbert Employment Law partners Gary Gilbert and Stephanie Herrera, and of-counsel, Joe Gebhardt, citations in recognition for their advocacy and achievements on employment related issues. Specifically, the Maryland General Assembly recognized Mr. Gilbert, Ms. Herrera, and Mr. Gebhardt for “skillfully bringing [their] talents to serve a diverse range of clients with wide-ranging needs in employment and labor law.” The Maryland General Assembly also recognized Ms. Herrera for “being named a Maryland 2018 Rising Star”. The awards were presented by Delegate Miller on January 15, 2018. Delegate Miller is a member of the House Appropriations Committee where she is Chair of the Oversight Subcommittee on Personnel, a leading committee on personnel and employment issues.

On January 5, 2018, the District of Columbia Department of Employment Services (DOES) issued a decision in favor of Maria Fuentes, represented by Gilbert Employment Law, P.C. and found that Vador Ventures, Inc. d/b/a Total Quality Building Services (“Total Quality”), violated the Protecting Pregnant Workers Fairness Act of 2014 (“PPFWA”) when it prohibited Ms. Fuentes from returning to the workplace after she requested an accommodation related to her pregnancy and pregnancy related conditions. DOES awarded Ms. Fuentes full backpay and reasonable attorneys’ fees and ordered Total Quality to pay a $3,000 penalty to the Pregnant Workers Protection Fund.

In March 2017, Ms. Fuentes, a cleaner, began experiencing severe back pain as a result of her pregnancy. Her doctor recommended that, due to her pregnancy and pregnancy related conditions, Ms. Fuentes be accommodated in the workplace, including avoiding excessive bending or squatting. On March 27, 2017, Ms. Fuentes provided a doctor’s note setting forth her restrictions to Total Quality. DOES found that, pursuant to her doctor’s recommendation, Ms. Fuentes could perform the majority of her duties and the only duty that Ms. Fuentes could not perform was cleaning the bathrooms. The same day, Total Quality informed Ms. Fuentes that she could no longer continue her employment unless her doctor authorized her to work without restriction. DOES found that Total Quality “show[ed] an unwillingness to reasonably accommodate [Ms. Fuentes]” when it refused to allow Ms. Fuentes to work “unless she provided a medical note releasing her to full-duty.” DOES further found that Total Quality could have provided an accommodation such as a “switch in bathroom duties between employees,” which would not have posed an undue hardship to Total Quality.

The PPFWA was designed to address the concern that all-too-often vulnerable, pregnant employees, like Ms. Fuentes, were placed on leave or terminated from employment when they could continue performing their duties with a reasonable accommodation. The PPFWA was intended to expand protections to pregnant workers to ensure they are able to maintain their jobs during a time they are most in need of stable employment. The decision by DOES will further the purpose of PPFWA and will encourage employers to comply with the law and provide appropriate accommodations to pregnant employees.