Leaders in Nationwide Federal Employment Law

As a federal employee, you have a great deal invested in your career. If your job, your security clearance or your employment rights or benefits are threatened, you need a powerful advocate on your side.

At Passman & Kaplan, P.C., Attorneys at Law, we know the law and how to protect you. Our highly experienced lawyers wrote the "Federal Employees Legal Survival Guide," now in its third edition. We have successfully represented individuals across the U.S. and worldwide in employment and labor law matters.

Based in Washington, D.C., we regularly represent federal workers throughout the United States, as well as U.S. federal employees serving in foreign countries and consulates. We welcome employees of every federal agency, from Homeland Security and the Department of Defense to the Forest Service, the Treasury and Veterans Affairs.

Contact us today if you need legal assistance with any of the following:

US Federal Employment Law

  • Discrimination & EEOC
  • Qui Tam Whistelblower Claims/OSC
  • Security Clearances
  • Disciplinary & Adverse Actions/MSPB
  • Disability & Accommodations
  • Retirement Issues

Call Passman & Kaplan, P.C., Attorneys at Law today at 202-789-0100 to arrange your consultation.

Joseph V. Kaplan

Jurisdictions:

  • Nationwide (Federal Employment Law Cases)

Admitted to Bar:

  • District of Columbia, 1981
  • Pennsylvania, 1978
  • Maryland, 1992
  • U.S. District Court District of Maryland, 1992
  • U.S. District Court Eastern District of Pennsylvania, 1979
  • U.S. Court of Appeals District of Columbia Circuit, 1980
  • U.S. Court of Appeals Federal Circuit, 1980
  • U.S. District Court of the District of Columbia, 1981
  • U.S. Court of Appeals 4th Circuit, 1993
  • U.S. Court of Appeals 11th Circuit, 1996
  • U.S. Supreme Court, 1997
  • U.S. Court of Appeals 1st Circuit, 2014

Education:

  • Pennsylvania State University, 1975
  • Gonzaga University, 1978
  • George Washington University National Law Center, 1979

Professional Memberships and Achievements:

  • U.S. Merit Systems Protection Board (MSPB)
  • Federal Labor Relations Authority (FLRA)
  • U.S. Equal Employment Opportunity Commission (EEOC)
  • Defense Office of Hearings and Appeals (DOHA)
  • Federal Mediation and Conciliation Service (FMCS)
  • Federal Service Impasses Panel (FSIP)
  • D.C. Human Rights Commission (DCHRC)
  • D.C. Office of Employee Appeals (OEA)
  • Twice elected as the National President of the Society of Federal Labor and Employee Relations Professionals (SFLERP)
  • National Employment Lawyers Association (NELA) - Member
  • Washington Metropolitan Employment Lawyers Association (MWELA) - Member
  • Authored Federal Merit Systems Year Book from 1994 - 1998, a leading reference book on the Merit Systems Protection Board, published by the Labor Relations Press.
  • Co-Author of "Federal Employees Legal Survival Guide"
  • Co-Author of "Litigating Federal Sector Employee and Labor Disputes: A Practitioner's Handbook" by Dewey Publications
  • Served as a court-certified expert witness on MSPB procedures in U.S. District Court
  • Fellow of The College of Labor and Employment Lawyers, Inc., 2008

 

Edward H. Passman

Jurisdictions:

  • Nationwide (Federal Employment Law Cases)

Admitted to Bar:

  • District of Columbia, 1986
  • Maryland, 1981
  • U.S. Court of Appeals District of Columbia Circuit, 1978
  • U.S. District Court of the District of Columbia, 1978
  • U.S. Federal Courts

Education:

  • Pace University, 1961
  • Harvard University Law School, 1964
  • UCLA Graduate School of Business, 1966

Professional Memberships and Achievements:

  • Speaker - Labor and Employment Law, Federal Training Foundation, Inc., 2001 - 2005
  • Speaker - "Alternative Dispute Resolution in the Federal Government", Society of Federal Labor & Employee Relations Professionals, Washington, DC Chapter, 2006
  • Speaker - "Summary Judgment Litigation at the EEOC", 25th Annual Employment Law & Litigation Institute, Georgetown University Law Center Continuing Legal Education, April 12, 2007
  • Society of Federal Labor & Employee Relations Professionals, Past President, 1972 - Present
  • Fellow, The College of Labor & Employment Lawyers, Inc, 2004-Present
  • Co-Author - Federal Employees Legal Survival Guide, National Employee Rights Institute, 1999
  • Co-Author - Federal Employees Legal Survival Guide, National Employee Rights Institute, Second Edition, 2004
  • Co-Author - "Compensatory Damages in the Federal Sector," BNA Employment Discrimination Reporter, Vol. 29, No.3, July 28, 2007
  • Author - Chapter 14, "Retirement and Reemployment" A Guide to Merit Systems Protection Board Law and Practice, Dewey Publications Inc., 2007

 

 

The attorneys of Passman & Kaplan (P&K) literally wrote the book on federal employment law. The representative cases below reflect how our firm regularly applies this knowledge to secure justice for our clients and to shape the law favorably for all those who work in the government sector.

DC EMPLOYEE DISCRIMINATORILY FIRED REINSTATED THROUGH P&K REPRESENTATION

On July 10, 2017, the District of Columbia Office of Human Rights (OHR) issued its Final Order in Massengale v. D.C. Fire and Emergency Medical Services, OHR Docket No: 14-360-DC(CN). OHR reversed Ms. Massengale's 2014 termination, finding that her termination was in retaliation for Ms. Massengale's 2013 OHR complaint of sex discrimination, and ordered her reinstated with back pay. Ms. Massengale was represented by Passman & Kaplan Senior Counsel Adria S. Zeldin.

EEOC EXPANDS COMPENSATORY DAMAGES AWARD IN GROUNDBREAKING P&K CASE

On June 9, 2017, the Equal Employment Opportunity Commission (EEOC) issued a precedential decision in Lara G. v. U.S. Postal Service, EEOC Request No. 0520130618. On its own initiative, the EEOC reopened the case to reverse prior precedent on compensatory damages awards. Previously, EEOC administrative judges were required to issue compensatory damages awards similar to prior EEOC damages decisions. P&K argued that this comparison should adjust the earlier damages awards for inflation, to avoid eroding the real value of older compensatory damages awards. In earlier decisions in this case, the administrative judge and the EEOC's Office of Federal Operations (OFO) both ignored P&K's novel legal argument. The EEOC's new decision-issued directly by the Commission members themselves through the Executive Secretariat-overrules the prior OFO decisions and directs that future damage awards include an adjustment for inflation, increasing compensatory damages awards for both Lara G. and future complainants. Lara G. was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan.

MSPB EXPANDS CONSTRUCTIVE SUSPENSION CASE LAW IN P&K CASE

On September 27, 2016, the Merit Systems Protection Board (Board) issued a precedential decision in Thomas v. Dept. of the Navy, 2016 MSPB 34. The Board reversed the administrative judge's dismissal decision below, reinstating Ms. Thomas' appeal. Ms. Thomas claimed that the Agency had compelled her to take 3 days/week of leave without pay (LWOP) because it had denied her reasonable accommodation request for telework, and reporting to her workplace on those days would violate her doctor's orders. The Board found that Ms. Thomas had made a non-frivolous allegation that the Agency's actions denied her a meaningful choice on whether or not to take the LWOP, thus constituting a possible constructive suspension. This decision expands the circumstances recognized in Board precedent for constructive suspension claims. Ms. Thomas was represented by Passman & Kaplan Founding Principal Edward H. Passman and Passman & Kaplan Associate Erik D. Snyder.

P & K CLIENT WINS PROMOTION UP EIGHT PAY BANDS

In his April 22, 2016 Decision (Ware v. USPS, EEOC Nos. 531-2011-00122X, 531-2012-00029X), an Administrative Judge of the EEOC awarded P & K client Anthony Ware a promotion up eight pay bands, from EAS-17 to EAS-25, in a case whose underlying facts go back to 2009. From 2009-2010, Mr. Ware had applied for several promotions, but despite his excellent qualifications, was not selected for any of the positions he sought. Believing that discrimination and retaliation were at work, Mr. Ware engaged Passman & Kaplan to litigate the case. After years of intense litigation, the Judge agreed with P & K's argument that Mr. Ware should be awarded the highest-level position for which he applied and was deemed qualified, ordering the Agency to pay more than six years of back pay, with all reasonable step and pay raises Mr. Ware would have received had he been promoted to the position in 2010, as well as attorney fees and costs, and more than $20,000 in additional compensatory damages. Mr. Ware was represented in this case by P & K Senior Associate Johnathan P. Lloyd.

MSPB OVERTURNS SUSPENSION IN PASSMAN & KAPLAN CASE

In its January 21, 2016, decision in Martin v. U.S. Postal Service, 2016 MSPB 6, the Merit Systems Protection Board (MSPB) overturned the suspension of Ms. Martin. Ms. Martin had retired as part of a settlement agreement of an EEO complaint which was designed to enhance Ms. Martin's retirement annuity. The settlement agreement became void when the Office of Personnel Management denied the annuity enhancement, and so Ms. Martin sought reinstatement. The Agency instead unilaterally placed Ms. Martin on involuntary retroactive leave without pay (LWOP) status. The MSPB found that Ms. Martin's placement on LWOP constituted a suspension, which was legally defective because the Agency had failed to give Ms. Martin her pre-suspension due process rights. The MSPB ordered the Agency to retroactively reinstate Ms. Martin to full duty status for the entire retirement/LWOP period, and remanded the case for a hearing on Ms. Martin's discrimination claims. Ms. Martin was represented by P&K Founding Principal Joseph V. Kaplan.

DEFAULT JUDGMENT AGAINST GSA IN PASSMAN & KAPLAN CASE

On April 6, 2015, the General Services Administration (GSA) decided not to appeal the default judgment order imposed against it in EEOC No. 5702-2012-00608X. GSA was sanctioned for its failure to timely investigate an EEO complaint, in a case where the Complainant only received the report of investigation from the Agency 506 days after the formal complaint, and 350 days after the last amendment. After a damages hearing, EEOC Supervisory Administrative Judge Stephens awarded Complainant retroactive reinstatement to the SES, back pay, $50,000 in compensatory damages, a neutral reference should Complainant decide to look for an alternative job, just under $50,000 in attorneys' fees and costs, remedial EEO training at GSA, and posting of notice. Complainant was represented by Passman & Kaplan Senior Associate Adria S. Zeldin.

EEOC OVERTURNS DISMISSAL IN PASSMAN & KAPLAN CASE

In its January 28, 2015, decision in Complainant v. Department of the Air Force, EEOC Appeal No. 0120142407, the EEOC's Office of Federal Operations (OFO) overturned the Air Force's dismissal of an EEO complaint, remanding it for investigation. The Complainant was a contract employee, but based on Passman & Kaplan's argument, OFO found that the Complainant was a 'joint employee' of the Air Force entitled to file complaints in the federal-sector EEO complaints process. OFO also found that Complainant had properly stated claims for harassment, reassignments and constructive discharge. OFO also rejected the Air Force's claim that Complainant's EEO complaint was untimely, relying on written documentation issued by the Air Force's EEO office which showed the EEO office improperly turning the Complainant away 3 years earlier when the Complainant attempted to initiate an EEO complaint at that time. OFO ordered the Air Force to accept the complaint and promptly conduct an investigation. The Complainant was represented by P&K Founding Principal Joseph V. Kaplan and P&K Senior Associate Andrew J. Perlmutter.

PASSMAN & KAPLAN, PC, WINS ENFORCEMENT OF BREACHED SETTLEMENT AGREEMENT

Passman & Kaplan, PC, successfully sought enforcement by the Equal Employment Opportunity Commission (EEOC) of a breached settlement agreement. In its October 16, 2014, decision in Complainant v. Department of the Air Force, EEOC Appeal No. 0120141465, the EEOC's Office of Federal Operations found that the Agency breached its December 4, 2013, settlement agreement with the complainant, and reversed the Agency's Final Agency Decision (FAD) on the matter. The FAD found a breach of a clause in the settlement agreement which required the complainant's supervisor to obtain authorization before communicating with the complainant's subordinates. However, the FAD failed to address any remedy for the breach. The EEOC agreed with the Agency's finding of breach, but went further to award Complainant reasonable attorney fees and costs related to the appeal and to order that the Agency comply with the settlement agreement and submit a report of compliance to the EEOC. The complainant was represented by P&K founding principal Joseph V. Kaplan

PASSMAN & KAPLAN OBTAINS RELIEF IN VETERANS PREFERENCE CASE

Passman & Kaplan recently obtained relief for an employee under the Veterans Employment Opportunity Act (VEOA). In MSPB Docket No. CH-3330-14-0445-I-1, the employee (a preference eligible veteran) was not selected for a GS-13 position. After filing an appeal at the MSPB, Passman & Kaplan successfully settled the case. Under the settlement agreement, the employee will receive the GS-13 promotion position, and reimbursement of attorneys' fees and costs. Our client was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan and Passman & Kaplan Senior Associate Andrew J. Perlmutter.

PASSMAN & KAPLAN WINS EMPLOYEE REINSTATEMENT; REMOVAL REVERSED FOR DUE PROCESS VIOLATION

On June 13, 2014, the Merit Systems Protection Board (MSPB) issued a nonprecedential decision in Halfacre v. Dept. of Homeland Security, MSPB Docket No. DC-0752-12-0626-I-1. Reversing the administrative judge's decision below, the MSPB found that Ms. Halfacre was denied Constitutional due process in her removal, rendering the removal fatally legally defective. On appeal, the MSPB unanimously reversed the removal decision. Under clear precedent from the MSPB and its chief reviewing court, the Court of Appeals for the Federal Circuit, federal employees are entitled to notice of the charges against them (including all aggravating factors) and a chance to respond before any adverse action is implemented--a right which rises to the level of 5th Amendment Constitutional due process. The MSPB found that the agency's failure to notify Ms. Halfacre of an undisclosed aggravating factor and failure to give her the chance to respond to the issue rendered her removal legally flawed, and thus ordered the removal reversed with full back pay. Ms. Halfacre was represented by Passman & Kaplan Founding Principal Joseph V. Kaplan and Passman & Kaplan Senior Associate Adria S. Zeldin.

PASSMAN & OBTAINS DEFAULT JUDGMENT AGAINST POSTAL SERVICE; CLIENT TO RECEIVE RETROACTIVE PROMOTION

Sept. 23, 2013 -- This past week, Passman & Kaplan received a very favorable decision from the EEOC's Baltimore Field Office granting default judgment to our client as a sanction for USPS's gross misconduct during litigation. The case involved more than 20 non-selections of the same individual and two complete sets of discovery requests. Throughout the entire discovery process, USPS showed a disturbing lack of attention to the case. First, USPS missed its initial discovery production deadline - even then, the responses it did provide were to only one of the two outstanding sets of discovery requests. Despite repeated informal attempts to address numerous deficiencies in its discovery responses, USPS refused to provide the requested information, sometimes simply ignoring counsel's emails. Even after the AJ granted the complainant's motion to compel (to which the Agency did not even respond), USPS produced responses to the wrong discovery requests after the AJ's ordered deadline. Although the AJ gave USPS another opportunity to produce responses to the correct requests as ordered, it again failed to meet the AJ's deadline. P&K counsel filed three motions for sanctions documenting USPS's ongoing discovery misconduct and non-compliance with the AJ's orders. Upon granting our motion for default judgment, the AJ ordered USPS to our client in one of five positions he had previously been deemed at least minimally qualified for, or another mutually-agreeable position. Our client was represented by P&K associate Johnathan Lloyd.

PASSMAN & KAPLAN ACHIEVES $585,000 SETTLEMENT IN PRIVACY ACT LAWSUIT

Passman & Kaplan successfully settled Brunotte v. Tangherlini, Acting Administrator, General Services Administration, Civil Action No. 08-0587. In this case, which had been pending in U.S. District Court for the District of Columbia, P&K alleged that employees of the General Services Administration and its Office of Inspector General committed violations of the Privacy Act in an apparent attempt to interfere with Ms. Brunotte starting a new job at the Government Printing Office. After successfully defeating GSA's motion for summary judgment on two counts of Privacy Act, the GSA, acting though an Assistant U.S. Attorney, agreed to mediate the claims through the court's mediation program. Under the settlement agreement, the government will pay $400,000 to Brunotte, plus an additional $185,000 in attorneys' fees and costs.

PASSMAN & KAPLAN WINS REINSTATEMENT OF REMOVED FEDERAL EMPLOYEE

In Miller v. Dept. of the Interior, 2013 MSPB 27, Passman & Kaplan defeated the Department of the Interior (Agency) at the Merit Systems Protection Board (Board). The unanimous Board overturned the administrative judge's decision, reversing the Agency's removal of Ms. Miller. The Agency had removed Ms. Miller after her refusal to accept a management directed reassignment from Sitka, AK to a new position in Anchorage, AK. Ms. Miller had no performance issued in her Sitka post, and the Sitka position was not being abolished; the agency then had to advertise and fill both the Sitka and Anchorage slots after removing Ms. Miller. In reversing the AJ's decision, the unanimous Board used the opportunity to overturn its prior caselaw, as a result simplifying the pleading standards and legal analysis used in cases involving removals for failure to accept a management directed reassignment. The Agency was ordered to retroactively reinstate Ms. Miller to her position in Sitka with back pay and possible attorneys' fees and costs. Ms. Miller was represented by Passman & Kaplan Founding Principal Edward H. Passman.

U.S. Court of Federal Claims Allows Equal Pay Act Claim to Proceed; Allows Amendment

On January 26, 2011 Judge Mary Ellen Coster Williams of the U.S. Court of Federal Claims rejected the Government's motion to dismiss postal manager Beverly Martin's pay discrimination claim. Martin v. United States, Case No. 10-183C (Fed. Cl.) Passman & Kaplan Founding Principal Joseph V. Kaplan represent Ms. Martin. Ms. Martin, an employee of the U.S. Postal Service, sued under the Equal Pay Act, alleging that the Postal Service paid her less than her male successor for performing the same duties. Judge Williams' decision rejected the Government's argument that the recent Supreme Court Iqbal and Twombly decisions effectively required Ms. Martin to prove her Equal Pay Act case outright in order to survive a motion to dismiss. In particular, Judge Williams held that Ms. Martin properly alleged that the actual job duties she and the male comparator performed in their respective positions, and not their formal job titles, controlled whether or not they could be compared for pay discrimination analysis. Judge Williams also ruled that the fact that the male comparator did the job after Ms. Martin was no bar to Ms. Martin's Equal Pay Act claims.

To learn more about how Passman & Kaplan, P.C., Attorneys at Law can assist you, contact us online or call 202-789-0100 or 800-881-0140. Our Washington law office serves D.C., Maryland and Virginia, and federal employees nationally and internationally.

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