How the EEOC’s Maintenance of an “Alleged Offenders” Log Can Help Prevent the Next Harvey Weinstein

SAMUEL ESTREICHER, JOSEPH SCOPELITIS

NYU law professor Samuel Estreicher and recent graduate Joseph A. Scopelitis argue that the EEOC should maintain a log of “alleged offenders” to help prevent the next Harvey Weinstein. Estreicher and Scopelitis explain why such a log would effectively balance the interests of the alleged offender and victim, the employer, and the public.

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Young v. Merit Systems Protection Board

Docket: 19-2268

Opinion Date: June 11, 2020

Judge: William Curtis Bryson

Areas of Law: Government & Administrative Law, Labor & Employment Law

Young was serving a one-year probationary period working for the IRS when the agency removed her for misconduct. Young appealed to the Merit Systems Protection Board, challenging her removal as an unlawful adverse action and filed a formal Equal Employment Opportunity (EEO) complaint alleging that she had been terminated because of discrimination based on her national origin, disability, and prior protected EEO activity. An administrative judge (AJ) dismissed Young’s action, reasoning that Young was a probationary employee, not entitled to full appellate rights. Young filed a complaint with the Office of Special Counsel, alleging whistleblower retaliation. The Office did not take action. Young then filed an Individual Right of Action (IRA) appeal, claiming that she had disclosed attendance violations and a hostile work environment, including refusal to accommodate her disabilities, and that she had been removed from her position in retaliation for those disclosures. The AJ ordered Young to make a nonfrivolous showing that she had made protected disclosures that led to her removal with detailed factual support. Young did not respond. The AJ dismissed her IRA appeal. Young contends that she was unable to file a timely response because of health issues, but she never sought an extension and she submitted other filings during the period she was given for filing a response. The Federal Circuit affirmed. Young failed to make nonfrivolous allegations that she made disclosures that the Board has jurisdiction to address in an IRA appeal,

Carr v. Wilkie

Docket: 19-2441

Opinion Date: June 11, 2020

Judge: Todd Michael Hughes

Areas of Law: Military Law, Public Benefits

Carr served Air Force active duty, 1976-1980, earning 45 months of education benefits under Chapter 34 (Vietnam-era GI Bill), Carr used 41 months and 11 days of those benefits for his own education before the entire Chapter 34 program expired. After September 11, 2001, Carr returned to active duty and would have been eligible for 36 additional months of benefits under Chapter 33 (Post-9/11 GI Bill), but 38 U.S.C. 3695 limited him to a cumulative total of 48 months. Carr transferred those benefits to his daughter, 38 U.S.C. 3319, who used paid for two semesters. Due to a VA error, she initially did not receive payments to cover the final days of the Fall 2010 semester and was informed, incorrectly, that she had exhausted her benefits. Later, it was discovered that she had 19 days of benefits remaining; one day was applied to the Fall 2013 semester. Chapter 33 permits extensions of education benefits “in a roundabout way” to the end of the semester, 38 C.F.R. 21.9635(o)(1). The regional office, the Board of Veterans’ Appeals, and the Veterans Court rejected Carr's Chapter 33 claim. The Federal Circuit reversed and remanded for consideration of the unaddressed regulatory challenge. . The Veterans Court resolved the appeal through statutory interpretation and did not address the transferred benefits regulation; 38 U.S.C. 3695(a)’s aggregate multi-program benefits cap does not preclude end-of-term extensions of benefits authorized under individual benefits programs.