Re: Lawyers need more money

I'm not sure what your grief is. She asked for a desk audit which apparently showed she was being asked to perfom duties above her pay grade. She wanted to be fairly compensated for the work she was performing.
For some reason, the agency tried to compete the promotion, which I don't think is the right thing to do if this is an accretion - specifically, management had the chance to assign the duties to another worker and chose to assign them to her. Competing the promotion after the fact gives the impression of retalliation.
I am not sure why she chose to sue her coworkers, but perhaps it was a tactic to scare them from applying for her rightful promotion. A poor tactic, indeed, but the agency is not without fault.

Re: Lawyers need more money

If there are other GS-11's in the competitive area then by giving those duties to that one 11 gave her an unfair advantage. They should compete the position to give all qualified 11's a fair chance at the 12. Mgmt has the option to remove the duties or fill at the higer level. All competitive 11's should have the chance at an upgraded position.

Re: Lawyers need more money

If she was on an identical position description as her co-workers, mgt would be obligated to compete it. You cannot accrete one person if all of their PDs are identical.

Re: Lawyers need more money

She asked for a desk audit because her PD was no longer a valid decription of her duties. The desk audit should have revised her PD and re-graded her position.
Most federal organizations moved to very generic PDs a few years ago. I don't know about HUD, but certainly all the big agencies - CMS, most of the DoD branches.
So I stand by my earlier comment - it's hard to tell who is at fault, but it certainly looks like a bit of a retaliatory move by the agency. She was already performing the work, it had been assigned to her, she should be a lock for the promotion, whether it was competed or not. Why even bother with competing it? She would have a good basis for a complaint if someone else got the job she was already doing.

Re: SUING BECAUSE OF DISCRIMINATION

You need to read the article more closely. It describes who can be sued and who cannot be sued. Federal employees are part of a larger organization; you usually cannot sue them individually for events at work under most conditions and have any chance of winning. the attorney who summarized the case is just telling those reading the article how the law works in practice.

Re: SUING BECAUSE OF DISCRIMINATION

Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988, usually called the “Westfall Act,” in response to a controversial Supreme Court decision, Westfall v. Erwin, 484 U.S. 292, (1988). This decision changed the immunity standard that previously protected federal employees from common law tort suits. In Westfall, the Supreme Court held that a federal employee’s conduct must be both discretionary and within the scope of employment before it was absolutely immune from state-law liability. This meant that non-discretionary supervisory acts could be the subject of a common law tort suit in state court.

Re: suing feds

The Supreme Court assumed that frivolous suits against government employees would be quickly thrown out before they could seriously hamper government operations by preoccupying the time and attention of the sued employees. Unfortunately, the Court was wrong! In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court confronted the question of whether it had opened the door too far, and whether it had opened the door to far, and whether too many constitutional tort cases against federal employees were proceeding to trial or, at least, exposing federal employees to invasive “discovery.” As a result of excessive requests, federal employees were sometimes forced to produce volumes of documents, costing the defendant-employees both money and time.

Thus, the Court in Harlow developed a new test on qualified immunity from tort suits. Current law holds that a government employee exercising a discretionary function is not liable if his/her conduct “does not violate clearly established statutory or constitutional rights of which a reasonable would have known.” In effect, to now bring a constitutional tort case, the plaintiff must submit direct evidence of improper motivation by the particular federal employee. Plaintiffs who merely allege this improper motivation, or “malice,” but provide no direct evidence, will have their suits dismissed.

Re: Classification Appeal

I don't think she was not qualified because they found that she was doing the work of a higher grade. I don't see anything that says her performance ratings were low or that she had disciplinary issues. So, obviously, she was doing her job well.

Generally a desk audit is supposed to result in a grade adjustment. The "competition" excuse almost sounds as if someone had a buddy they wanted to promote no matter who it displaced. There was also no mention of what would have happened to the original plaintiff if the job was indeed given to someone else.

As for suing individuals: apparently no one has read the EEO rules for filing. Unlike a regular grievance, in an EEO complaint you HAVE to mention individuals in the complaints, even though the agency ultimately pays any fines and penalties. I work closely with our EEO people and they have confirmed that nothing can be filed if the victim does not provide names.