text:
U.S. Equal Employment
Opportunity Commission
Volume XV, No. 2
Office of Federal Operations
Spring Quarter 2004
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).
Carlton M. Hadden, Director, OFO
Donald Names, Director, OFO's Special Services Staff
Editor: Arnold Rubin
Writers: Robyn M. Duponte, Arnold Rubin, Gerard Thomson, Aina Watkins
Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.
Abuse of Process Found. The Commission found that the complainant engaged in an abuse of the EEO process such as would warrant dismissal of his complaint. Complainant asserted that he was subjected to discrimination when he was not considered for employment. According to the record, complainant initially filed a formal complaint in 1993, with regard to the denial of his requests for reinstatement to employment. The Commission noted that, since that time, complainant has received 30 appeal decisions regarding the denial of reinstatement, and the issue was considered by the United States District Court, and the Court of Appeals for the Eighth Circuit. The Commission found that, rather than seeking relief from discrimination, complainant made a concerted attempt to retaliate against agency officials when he filed the instant complaint. Specifically, complainant filed repeated complaints against the same agency officials, raising claims similar or identical to those on which he had already received a decision. In addition, the Commission found that complainant was overburdening the EEO process. Walker v. United States Postal Service, EEOC Appeal No. 01A05028 (July 20, 2001), request for reconsideration denied, EEOC Request No. 05A11062 (March 4, 2002).
Failure of Agency to Appeal Administrative Judge's (AJ's) Decision Works as Ratification. An EEOC AJ found that the agency discriminated against the complainant because of his race (African-American) when he was decertified as an Air Traffic Controller and reassigned to another facility. The agency issued a final order adopting the EEOC AJ's finding of discrimination. However, in its final order, the agency declined to fully implement the AJ's order of remedies, in particular the AJ's award of $75,000.00 in compensatory damages, which the agency stated that it was appealing. However, the agency failed to file an appeal from the AJ decision with the EEOC. The Commission noted that its regulations required that if an agency does not fully implement the decision of an AJ, it must simultaneously file an appeal with the EEOC's Office of Federal Operations, and append a copy of the appeal to its final order. The Commission found that the agency's failure to file an appeal was not obviated by its statement in its final order that it "appealed" the AJ's decision. The Commission concluded that the agency's failure to file an appeal resulted in its ratification of the AJ's decision. Accordingly, the agency was ordered to provide the relief as set out in the AJ's decision, including the award of compensatory damages. Knight v. Department of Transportation, EEOC Appeal No. 01A33172 (December 30, 2003).
Across the Board Reduction Sustained. The complainant in this case alleged discrimination on the bases of race, color, disability, age and reprisal concerning a number of agency actions over a two-year period. The EEOC affirmed an EEOC AJ finding of retaliation concerning some of the challenged agency actions. In her appeal, the complainant challenged the AJ's 20% reduction of attorney's fees. The Commission noted that the complainant was not successful on all of her claims, and that in general attorney's fees may not be recovered for work on unsuccessful claims. The Commission found that the AJ's fee award accurately reflected the overall successful effort complainant put forth in proving reprisal. Assuming it was true that complainant's claims were not easily separable, the Commission found that the AJ's 20% across-the-board reduction was reasonable given that complainant was successful on only a part of her complaint. Blinick v. Department of Housing and Urban Development, EEOC Appeal No. 07A20079 (February 3, 2004).
Agency Not Liable for Back Pay During Period Petitioner was Self Employed. In an earlier decision, the EEOC found that the complainant had been discriminated against on the basis of his race (Black) when he was not selected for a Legal Technician position. The order for relief included placement in the position and back pay. In this petition for enforcement, the complainant/petitioner argued that the agency had incorrectly denied him back pay for a period of time during which he was self- employed. The Commission denied the petition, and concluded that there was no evidence that petitioner attempted to mitigate his damages. In this case, petitioner voluntarily resigned from a position in the field for which he had been trained, and in which he was earning a higher wage than he would have had he been hired by the agency, in order to open a small business. Petitioner elected to remove himself from the job market and, as such, did not attempt to mitigate his damages. Beaton v. Department of Justice, EEOC Petition No. 04A30044 (January 13, 2004).
Complainant Fails to Demonstrate Commonality; Complaint Must be Processed as Individual Complaint or Dismissed. The complainant filed a class action on behalf of a purported class of African-American female employees who were allegedly discriminated against in a variety of agency actions, including promotions, assignments and training. An EEOC AJ issued a decision denying class certification. In affirming the decision to deny class complaint certification, the Commission found that, with the exception of race and sex, the class agent had failed to identify facts common to the class as a whole. The Commission noted that, where a class complaint is dismissed, the agency's final order must inform the agent that the complaint is being filed on that date as an individual complaint of discrimination and will be processed accordingly, or that the complaint is also being dismissed in accordance with the Commission's regulations. In this case, the AJ's decision, which became the agency's final order, did not address complainant's individual complaint. Accordingly, EEOC ordered the agency to process complainant's complaint as an individual complaint. Blue, et al. v. Department of Defense, EEOC Appeal No. 01A30926 (January 5, 2004), request for reconsideration denied, EEOC Request No. 05A40407 (February 25, 2004).
Class Certification Proper. Complainant's formal complaint asserted that the agency's application of its merit evaluation system, which imposed a 10% cap on managers receiving a "far exceeds" rating, resulted in female postmasters being denied the opportunity to be eligible for and receive a "far exceeds" merit rating. An AJ subsequently certified a class of all female postmasters employed in 1999. The Commission modified the definition of the class to encompass: female postmasters whose performance exceeded expectations but received a "met expectations" rating due to the 10 percent cap. The class complaint, as modified, was remanded to an EEOC District Office for processing. Holmes, et al. v. United States Postal Service, EEOC Appeal No. 07A20020 (October 27, 2003).
Commission Awards $90,000.00 in Nonpecuniary Damages. Complainant, who ultimately retired from the agency on disability, claimed that the agency failed to reasonably accommodate her medical conditions (chronic urticaria, dermatographism, and formaldehyde allergy). Specifically, the agency did not allow her to telecommute, nor did it grant her request to assign her to a work area that met her physician's requirements. An AJ found that the agency discriminated against complainant on the basis of disability when it denied her reasonable accommodation. The AJ also found that the agency had failed to make a good faith effort to accommodate complainant, and as a result was liable for compensatory damages. In its examination of the appropriate amount of damages to award, the Commission noted that complainant, her husband, and close friends testified that she experienced emotional distress; her relationship with her husband deteriorated; she became withdrawn and suffered lowered self-esteem. In addition, complainant's physician testified that her symptoms were mild prior to her arrival at the agency, and that she had never suffered a pattern of illness prior to her arrival at the agency. Her physician stated that he had been frustrated by the agency's failure to accommodate the complainant's condition, and that if it had complied with his recommendations to do so, complainant's symptoms would have improved. As to the duration of the harm, the physician noted that the symptoms were most severe for a 1-2 year period in 1997-98, but that they were ongoing, and continued into the year 2001. Gamez v. Social Security Administration, EEOC Appeal No. 07A20129 (October 27, 2003), request for reconsideration denied, EEOC Request No. 05A40247 (January 5, 2004).
Complaint Must Be Signed by Complainant or Attorney. It is not sufficient that a formal EEO complaint be signed by complainant's non- attorney representative. The Commission advised the agency to request that complainant sign the complaint. If he failed to do so, the agency could dismiss the complaint for failure to comply with the applicable EEOC regulations. Arellano v. United States Postal Service, EEOC Appeal No. 01A34803 December 12, 2003).
The following summaries briefly discuss Commission findings of discrimination and remedies as applicable.
Discrimination Based on Age.
Applying the substantial evidence standard to the AJ's finding of facts, the Commission reversed the agency's final order and found that complainant had been discriminated against based on age (61), when she was not selected for either of two temporary Legal Assistant vacancies. The AJ had found that complainant's qualifications were plainly superior to those of the selectees (ages 44 and 29, respectively) and found not credible the agency's reasons for its actions. Finally, the AJ had concluded that the agency failed to show that complainant would not have been selected even absent a discriminatory animus. By way of remedies, the AJ had ordered the agency to retroactively promote complainant with back pay, interest, and benefits. Yablon v. Social Security Administration, EEOC Appeal No. 07A20096 (June 25, 2003).
Discrimination Based on Disability Failure to Provide Reasonable Accommodation.
The Commission found that the agency had failed to provide complainant with reasonable accommodation for her disability (bilateral chronromalacia of the patella with arthritis in both knees) in connection with her request to have a ramp built so that she could perform her job without having to climb steps. Complainant stated that the only function of her position that she could not perform was the climbing. EEOC found complainant to be a qualified individual with a disability since she could otherwise perform the essential functions of her position and was substantially limited in the major life activity of climbing. The Commission noted that an agency is obligated to provide reasonable accommodation for any limitations resulting from a disability. EEOC stated that the limitation that is the basis of the accommodation request need not itself be substantially limiting. As long as the limitation is a consequence of a disability covered under the Rehabilitation Act, the request must be granted absent an agency showing of undue hardship.
In this case, the Commission found the agency failed to meet its burden when it failed to provide evidence that installing a ramp posed an undue hardship. EEOC rejected the agency's actions of reassigning complainant twice to positions within her medical restrictions, but at apparently undesirable locations. EEOC noted that reassignment is the accommodation of last resort, and should be employed only after it has been determined that: (1) there are no effective accommodations that would allow the employee to perform the essential functions of her position; or (2) all other reasonable accommodations would pose an undue hardship. The Commission ordered the agency to provide complainant with the opportunity to return to her bid assignment, after participating in the requisite interactive process with complainant to determine if there was an effective accommodation, which would allow complainant to perform her job without an undue hardship. EEOC also ordered the agency to advise complainant of her right to submit objective evidence of compensatory damages. Coe v. United States Postal Service, EEOC Appeal No. 01A20972 (August 11, 2003).
Disability Discrimination Complainant Regarded As Disabled and a Direct Threat.
Complainant, who had type-1 insulin- dependent diabetes mellitus since age 12, applied for the position of Special Agent, with the agency's Drug Enforcement Agency (DEA), and was made a tentative offer subject to successfully completing the application process, which included a medical examination. At the time of his application (late 1997), complainant had been employed since 1995 by a police department in Arkansas. He had also been serving, for about one year, as an undercover narcotics detective, assigned to a task force that operated in two counties. As part of the task force, complainant conducted surveillance and was subjected to adverse working conditions, including 50-60-hour work weeks. In addition, he was assigned to a DEA task force operating in his area, and he claimed that he performed all the duties of a Special Agent without any accommodation or difficulty.
A Public Health Service Physician in Arkansas examined complainant and recommended him for employment, sending his medical records to a Health Services Unit in Washington, D.C., for final review. However, a reviewing contract physician questioned complainant's suitability for the position and asked to have complainant's personal physician provide more detailed information. Complainant's physician, an endocrinologist, wrote that complainant had never been treated in the emergency room or missed work due to his illness and that he was currently taking four shots of insulin a day. The DEA's Chief Medical Officer informed complainant that he was medically disqualified due to his condition and medication schedule. Although complainant offered to reduce his insulin regimen to two shots a day as he had successfully done in the past, he was informed that this was not acceptable because of the potential risk to complainant of future medical complications associated with diabetes. Complainant filed an EEO complaint, and the agency, in its FAD, found no discrimination, noting that both agency doctors were concerned with the risk of a hypoglycemic event, which could jeopardize complainant's life as well as the lives of agents who served with him.
On appeal, the Commission reversed the FAD and found that the agency regarded complainant as being substantially limited in the major life activity of eating. EEOC noted that both agency physicians emphasized their belief that complainant needed a sterile environment and a regular schedule, which would enable him to eat and take his shots on time. The Commission also found complainant to be a qualified individual based, in part, on his work history in law enforcement.
EEOC found that the agency failed to sustain its burden of showing that complainant was a direct threat to the safety of himself or others, by posing a significant risk, i.e., high probability of substantial harm. The Commission found that the reviewing physicians had engaged in generalized assumptions about complainant's condition, and preconceived notions about how his condition would impact his current health and what the future consequences would or could be. EEOC found that the agency had failed to conduct an individualized assessment and take into account complainant's medical and work histories. EEOC further found that agency officials had failed to follow the agency's own guidelines regarding applicants who had effectively performed investigative law enforcement. As a remedy, the Commission ordered the agency to place complainant in the hiring process at the point at which the process stopped, and to investigate complainant's entitlement to compensatory damages. Harrison v. Department of Justice, EEOC Appeal No. 01A03948 (July 30, 2003).
Hostile Work Environment Based on Gender.
The Commission affirmed an AJ's finding that complainant was discriminated against based on sexual harassment and sex-based harassment. The AJ noted that the agency tolerated the use of sexist comments and jokes in the workplace that included a coworker's reference in writing to menstrual cycles; a written joke about PMS; and a photograph showing horses mating, which was put in complainant's mail slot. The AJ also considered a one-time comment made by a coworker who called complainant a "selfish b..ch." The AJ found that management was aware of the conduct and failed to promptly take remedial action to cure or correct the conduct. EEOC found that these unwelcome incidents, taken as a whole, were sufficiently severe or pervasive to alter the conditions of complainant's employment and create an abusive working environment. The Commission ordered the agency to pay complainant attorney's fees and costs of over $15,000.00; nearly $12,000.00 in pecuniary damages for recorded medical expenses; and $31,000.00 in nonpecuniary damages for stress resulting from the discrimination. EEOC also ordered the agency to consider disciplining complainant's supervisor, who had been identified as being responsible for the discriminatory acts. Hiebert v. Department of Transportation, EEOC Appeal No. 01A05253 (May 30, 2003). Cf. Archie v. United States Postal Service, EEOC Appeal No. 01A11588 (August 4, 2003) (agency not liable for sexual harassment by coworker (CW) where the agency conducted an immediate and thorough investigation; disciplined CW after determining that he had harassed complainant; permitted her to take leave; and assured complainant that CW would never work in the same facility as she).
Discrimination Based on National Origin, Sex, and Retaliation.
Complainant was not promoted to a Supervisory Criminal Investigator position, in favor of a selectee who was outside her protected groups (Hispanic, female, protected activity). The Commission drew an adverse inference due to the failure of the agency to provide the investigator with the names of the agency officials involved in rating and ranking the candidates for the "best qualified list" (BQL) despite repeated requests. EEOC further found that the agency had failed to meet its burden of articulating a legitimate explanation for its failure to put complainant on the BQL. Finally, the Commission found that the agency had failed to meet its burden of demonstrating that it would not have selected complainant even absent discrimination. Accordingly, the Commission ordered the agency to offer complainant the position at issue with back pay, interest, and other benefits. The issues of attorney's fees and costs, as well as compensatory damages, were remanded for a hearing. Castillo v. Department of Homeland Security, EEOC Appeal No. 01A22854 (November 4, 2003).
Discrimination Based on Race and Color.
The Commission affirmed the AJ's finding that the agency had discriminated against complainant on the bases of race (African- American) and color (black) when a Caucasian employee was placed non-competitively during an office-wide reorganization into a GS-12 Supervisory Military Personnel Management Specialist position. As part of the remedies ordered, the Commission directed the agency to retroactively promote complainant to the position at issue or a substantially equivalent position with back pay and benefits. On appeal, EEOC also modified the AJ's order that the responsible management official be restricted from involvement in employment decisions until she received EEO training. The Commission noted that, while training was appropriate, the AJ's order was clearly intended to be a form of discipline. The Commission noted that it was EEOC's practice to advise agencies to consider disciplining managers who had engaged in unlawful discrimination, rather than ordering discipline. The Commission also awarded complainant attorney's fees and costs of nearly $18,000.00, and $35,000.00 in non-pecuniary compensatory damages. Jennings v. Department of the Army, EEOC Appeal No. 07A20034 (April 29, 2003). See also Blinick v. Department of Housing and Urban Development, EEOC Appeal No. 07A20079 (February 3, 2004) (the Commission noted that, while its regulations state that each agency shall take appropriate disciplinary action against employees who engage in discriminatory practices, EEOC cannot discipline or order the discipline of employees directly).
Discrimination Based on Retaliation. The Commission found that complainant was subjected to retaliation for her prior EEO activity when she was denied leave requests. Specifically, EEOC found that management knew of her prior EEO activity and subjected complainant to harsher treatment and instigated procedures with complainant in mind and aimed at disadvantaging her. The agency, through its managers, subjected complainant to a hostile and retaliatory work environment that tainted each of the leave-related actions taken by agency officials towards her. As part of the relief awarded, the Commission ordered the agency to take appropriate steps to have the harassing retaliation against her stop in her current position by removing complainant from the supervision of the responsible management officials. Kinnard v. Department of Veterans Affairs, EEOC Appeal No. 01A04694 (April 29, 2003), request for reconsideration denied, EEOC Request No. 05A30835 (August 28, 2003).
Internal Union Matters. Complainant's claim, that a union president denied her representation on union matters, was not cognizable. The Commission reiterated its holding that, except in limited circumstances, the EEO process is not a mechanism to attack internal union matters. Gaona v. United States Postal Service, EEOC Appeal No. 01A32867 (July 16, 2003), request for reconsideration denied, EEOC Request No. 05A31076 (September 23, 2003).
Right to See a Union Steward. The complainant alleged that he was retaliated against when his supervisor had denied his request to see a shop steward. The Commission found that the allegation failed to state a claim, and that a complainant should not use the EEO complaint process to raise a matter more appropriately brought pursuant to the collective bargaining agreement. The proper forum for complainant to pursue a remedy for this claim, the Commission stated, is through the grievance process, as this is a matter that requires a determination of the application of the parties' Collective Bargaining Agreement (CBA). Mitchell v. United States Postal Service, EEOC Appeal No. 01A34572 (December 11, 2003), request for reconsideration denied, EEOC Request No. 05A40351 (February 3, 2004). See Jadeja v. United States Postal Service, EEOC Appeal No. 01A31742 (October 16, 2003) (the right to go to a union is an issue more appropriately handled in the collective bargaining, not the EEO, process). See also Hayes v. United States Postal Service, EEOC Appeal No. 01A34923 (December 9, 2003) (denial of access to agency official on two occasions to conduct union business is not cognizable for EEO purposes).
Request for Official Time to Act as EEO Representative. The Commission found that complainant lacked standing to challenge the agency's denial of official time for him to act as an EEO representative for a former coworker at another agency. EEOC noted that such a claim lies with the aggrieved, not his or her representative. Owen v. Social Security Administration, EEOC Appeal No. 01A35197 (December 30, 2003).
Claim Against the Office of Inspector General (OIG) Dismissed. Complainant alleged harm from the actions of an OIG agent during the course of an investigation. The Commission stated that it had previously held that statements made during the course of an OIG investigation do not form the basis of an actionable claim, and were a collateral attack on the investigation. The Commission affirmed the agency's dismissal for failure to state a claim, finding that the proper forum for such matters lay not with the EEO process but with the OIG. Stickevers v. Department of Veterans Affairs, EEOC Appeal No. 01A32970 (December 30, 2003).
Church Affiliation. A claim of discrimination based on church affiliation sets forth a justiciable claim, based on religion, under Title VII of the Civil Rights Act of 1964. Trimble- Gee v. Department of the Treasury, EEOC Appeal No. 01A34916 (December 30, 2003).
Comments Made During a Progress Review. Complainant alleged that she was discriminated against on the bases of race and color when she received undesirable comments during a performance feedback session. The Commission affirmed the agency's dismissal for failure to state a claim, stating that progress reviews are proposed personnel actions that do not, without further action, render an employee aggrieved. The Commission also found that the various comments complainant purportedly received were insufficient to state a claim of harassment. Zellars v. Department of the Air Force, EEOC Appeal No. 01A34449 (November 21, 2003), request for reconsideration denied, EEOC Request No. 05A40327 (January 29, 2004).
Complainant claimed that he was subjected to disability discrimination when his former supervisor made unauthorized disclosures of confidential medical information to various agency facilities, which then denied him employment. In his evaluation of complainant, the supervisor wrote that he would not recommend complainant for rehire unless his medical condition was resolved. The Commission noted that complainant failed to establish that he was an individual with a disability, as there was no evidence that he had or was regarded as having, a condition that substantially limited a major life activity. Nevertheless, the Commission found that the supervisor's statement disclosing the nature of complainant's impairment (plantar fascitis) violated the Rehabilitation Act, since documentation of an individual's diagnosis or symptoms is confidential medical information. The Commission ordered the agency to remove all documentation containing medical information from complainant's work folder, as well as provide training for the responsible management officials. Gianikos v. United States Postal Service, EEOC Appeal No. 01A21992 (October 16, 2003), request for reconsideration denied, EEOC Request No. 05A40208 (January 22, 2004).
Being Named as a Responsible Management Official Does not Constitute Protected Activity. Complainant alleged reprisal discrimination when he was denied a higher level detail and career advancement. The Commission noted that complainant's claim of reprisal was based solely on his status as the individual named as the responsible management official in another employee's EEO complaint. The Commission noted that, without more, complainant's complaint did not set forth a claim of retaliation. Chesney v. United States Postal Service, EEOC Appeal No. 01A24401 (October 27, 2003).
Untimely Appeal. The Commission rejected complainant's contention that his incarceration should waive the applicable 30-day period for filing an appeal. Complainant had filed his appeal four years after his receipt of the FAD. Coimbre v. Department of Veterans Affairs, EEOC Appeal No. 01A24898 (November 24, 2003) request for reconsideration denied, EEOC Request No. 05A40546 (April 29, 2004).
The Commission strongly supports the settlement of complaints at all stages of the EEO process.[1] The Commission's regulations governing the processing of federal sector complaints of discrimination provide that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties.[2] The Commission has held that a settlement agreement constitutes a contract between the employee and the agency, to which ordinary rules of contract construction apply.[3] The Commission has further held that the face of the agreement best reflects the understanding of the parties.[4] It is the intent of the parties as expressed in the settlement agreement, and not some unexpressed intention, that controls the agreement's construction.[5]
EEOC regulations require that a settlement agreement be made in writing, and be signed by the parties.[6] This requirement is consistent with the principles of contract law. Nevertheless, the Commission has, on occasion, found settlement agreements to be valid and enforceable when they are entered orally into the record in the presence of an Administrative Judge, and transcribed by a court reporter.
In Opfer v. Department of Commerce,[7] the parties entered into a settlement agreement on the record before an Administrative Judge, whereby the agency agreed to pay complainant $100,000.00 in compensatory damages, restore a percentage of the leave taken by complainant during a two-year period, and provide complainant with a scooter, in exchange for complainant's agreement to withdraw all outstanding EEO complaints. The Administrative Judge noted that the agreement was placed into the record, and was binding on the parties. Subsequently, the parties were unable to reduce the agreement to writing due to a disagreement over the agency's boilerplate non-disclosure clause. Citing its decision in Acree v. Department of the Navy,[8] the Commission noted that it has only upheld the validity of an oral settlement agreement in one type of situation, that is, when a verbal agreement is entered during a hearing before an Administrative Judge, as evidenced by a hearing transcript. Applying the decision in Acree, the Commission found the agreement to be binding on the parties, stating that the hearing transcript evidenced the intent of the parties, and reducing the agreement to writing was a mere formality, since the terms of the agreement were clearly ascertainable and agreed to by the parties.
Alternatively, the Commission, in Harris v. United States Postal Service,[9] found that a purported oral settlement agreement was invalid. Complainant had asserted that the parties entered into an oral settlement agreement regarding two EEO complaints, which provided for the payment of $60,000.00. The Commission stated that the agreement was not reduced to writing, and that there was no hearing transcript or equivalent document on which to bind the parties. The Commission noted that a document, which complainant stated was faxed to him by the agency, was merely a proposal to settle, and did not evidence a final agreement.
One additional requirement for a valid settlement agreement is that there be consideration from both parties. That is, each party must incur some legal detriment in exchange for the other party's promise. Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. If one party incurs no legal detriment, however, the Commission may find the agreement void for lack of consideration.
In Tamura-Wageman v. Department of the Army,[10] for example, the settlement agreement provided that, in exchange for the complainant withdrawing her complaint, the agency would allow the complainant the opportunity to file a grievance related to a counseling statement she received, and that complainant's former supervisor would treat her with dignity and respect, not discuss the counseling statement with her current supervisors, and not subject her to retaliation. The Commission found that the agreement was void for lack of consideration. Specifically, the Commission stated that the agreement did not provide any consideration for the withdrawal of the underlying complaint. The agency acknowledged that filing a grievance was a right afforded all employees. Thus, the agreement did not provide complainant with any benefit to which she was not already entitled.
Similarly, the Commission found the settlement agreement in De La Garza v. United States Postal Service[11] to be void for lack of consideration. The agreement provided that, in exchange for the withdrawal of the complaint, the Manager of Injury Compensation would obtain copies of EEO and grievance decisions which complainant indicated provided him with certain hours and days off. The Manager would then communicate with other management officials to make appropriate changes to complainant's rehabilitation job offer. The Commission noted that by agreeing to comply with EEO and grievance decisions, the agency was only providing complainant with what it was already required to provide. Thus, complainant received no consideration for withdrawing his complaint.
In Wills v. United States Postal Service,[12] the parties entered into a settlement agreement which provided that the complainant would be treated with dignity and respect, all personal issues that were addressed with complainant would be conducted in a professional manner, any issues concerning complainant's employment of a personal nature would be kept personal, any disciplinary action issued to complainant would not be laid openly on the supervisor's desk, complainant would not be subjected to retaliation, all leave requests would be handled according to contract provisions, complainant would not be unreasonably denied a request to use the phone, and management would not go beyond its authority when inquiring concerning complainant's medical treatment. The Commission found that the agreement contained no consideration from the agency. The Commission stated that the agency provided complainant with nothing more than that to which she was entitled as an employee. Thus, the agreement was unenforceable for lack of consideration.
In Holland v. United States Postal Service,[13] the applicable provisions of the settlement agreement included an agreement by the parties that "threats are based upon individual perceptions," and must be taken seriously, and that management will immediately advise employees who report threats of their options and right to file an official threat assessment. The Commission, again, found that the settlement agreement was unenforceable for lack of consideration. The Commission noted that the agency had incurred no legal detriment, but had merely agreed to abide by its own policy concerning threats against employees. The settlement agreement was, therefore, void.
The parties in Washington v. United States Postal Service,[14] entered into two settlement agreements, both of which provided that complainant would not be subjected to retaliation. In addition, one of the agreements included a clause stating that one management official would assist complainant in making an appointment with her supervisor. The Commission found that both settlement agreements were void, because no consideration was provided to complainant in either agreement. The Commission noted that the agency agreed merely to treat complainant in accordance with existing statutes and regulations.
The Commission has also, in certain circumstances, voided only certain provisions of an agreement which lack consideration. In Steinmetz v. United States Postal Service,[15] the Commission noted that a provision of the settlement agreement stating that complainant's EEO file would remain confidential pursuant to applicable agency regulations and the Privacy Act, did not require the agency to do anything more than it was already legally obligated to do. Thus, that particular provision was void for lack of consideration. The Commission stated, however, that the entire settlement agreement was not invalid, given that other consideration was exchanged through separate provisions of the agreement. The Commission noted that the agreement would be reformed without the invalid provision.
In addition, in Mark v. Department of the Air Force,[16] the Commission invalidated a provision of the settlement which provided that the agency would follow applicable personnel regulations. The Commission noted that the provision failed to confer on the complainant anything more than that to which he was already entitled. The Commission stated that the agreement would be reformed, without the specified provision, given that the parties had exchanged other consideration, including a correct position description, and mid-year performance feedback.
The parties in Freeman v. Department of the Army,[17] entered into a settlement agreement which provided, in part, that the agency would recalculate complainant's disability retirement at the GS-14, step 10 level. The agency amended complainant's personnel records to reflect the higher grade level. The Office of Personnel Management, however, refused to adjust complainant's retirement, stating that it appeared that the settlement agreement was drafted in order to provide complainant with an annuity in excess of that to which he was properly entitled. In addressing the issue of breach of settlement, the Commission noted that, even if read broadly, the underlying complaints raised no claim which would support the award of a higher level position. Further, the Commission stated that an agency may apply only those remedies which a court could order if the case were to go to trial, and the relief provided to settle an EEO complaint cannot be greater than the relief a court could order under such circumstances.[18] Complainant did not assert that he was denied a promotion to the GS-14 level, and the record did not suggest that, but for the alleged hostile work environment, he would have achieved that grade. Thus, the Commission found the provision in question to be unenforceable.
The Commission may also examine subsequent, intervening events when considering whether there is a lack of consideration. In Lee v. Department of the Army,[19] the agency agreed to consider complainant for placement into a vacant Supervisory Contract Specialist position for which she was qualified during a specified period of time. The agreement classified this consideration as a "noncompetitive referral." The Commission rejected the agency's assertion that it did not breach the agreement, because the position in question was without funding during the specified period of time due to a hiring freeze. The Commission noted that while the adequacy or fairness of consideration is generally not an issue, in this case, the hiring freeze effectively made it impossible for complainant to receive the priority consideration for which she had bargained. Thus, the Commission found that the hiring freeze resulted in such an inadequacy of consideration that the agreement was void.
The Commission has, additionally, found the terms of a settlement agreement to be void for reasons other than a lack of consideration. In Luongo v. United States Postal Service,[20] the parties agreed that complainant would be returned to work following a medical examination at an agency medical unit. The agreement, however, also provided that complainant would continue to pursue the issue of back pay. The Commission found that there was no meeting of the minds between the parties. Specifically, the agreement raised the issue of back pay, which was inseparable from the issue of reinstatement raised with the EEO Counselor, without resolving the matter.
The Commission has also addressed the issue of whether a settlement agreement should be invalidated due to coercion or duress. In Fontecha v. Department of Defense,[21] complainant asserted that she was coerced into signing the settlement agreement, and under duress when she did so. Nevertheless, the Commission noted that the record included a sworn affidavit from complainant's representative, stating that complainant signed the agreement against his recommendation, and that she appeared to be in control, confident, and fully aware of what she was doing, rather than intimidated, exhausted or ill. Thus, the Commission found that the evidence showed that complainant knowingly and voluntarily entered into the settlement agreement.
In Escano v. United States Postal Service,[22] complainant also asserted that she was under duress when she signed the settlement agreement. The Commission noted, however, that the agreement specifically indicated that the parties signed the document without coercion. The Commission found no evidence that the agreement was void or unenforceable.
The parties in Barnett v. United States Postal Service,[23] executed a settlement agreement during a hearing before an Administrative Judge, which provided that the agency would pay complainant $150.00 and appoint her to a casual clerk position after she successfully completed the normal hiring process. The agency attempted, on two occasions, to pay complainant the $150.00 sum stated in the agreement, but complainant returned the money to the agency, stating that she wanted the agreement declared null and void. In addition, complainant failed to contact the stated facility to initiate the hiring process, despite being notified by the agency of the need to do so. On appeal, complainant contended that her attorney coerced her into signing the settlement agreement. The Commission noted that complainant corroborated that her attorney yelled at her, insulted her, refused to refund his fee if she fired him, and repeatedly told her that she had no choice but to sign the agreement. Nevertheless, the Commission stated that complainant failed to show that the attorney or the agency made a threat to cause her harm or loss if she failed to sign the agreement. In so finding, the Commission noted that the attorney's refusal to repay complainant her legal fees if she fired him was a matter governed by their contractual agreement, and could not be construed as a threat for failing to execute the agreement. In addition, the Commission stated that complainant could not claim duress by her own counsel. Thus, the Commission found that the agreement was valid and binding.
It is noted that, when a settlement agreement is invalid, and the complainant opts to have the complaint reinstated for processing, the parties would have to be returned to the status quo ante as of the time that the agreement was executed. In Jones v. Department of Defense,[24] the parties entered into a settlement agreement which provided that the agency would pay complainant back pay, compensatory damages, and attorney's fees. In addition, if complainant chose to pursue disability retirement, the agency agreed to provide written assurance that, if complainant's medical condition improved and he was able to return to work, he would be given an assignment appropriate with his background and training. Subsequently, when complainant requested that the agency re-hire him, the agency demanded that he submit a medical release. The Commission ultimately found that the provision of the agreement concerning complainant's return to work was void, as there was no meeting of the minds regarding the terms of his re-employment. Complainant was given the choice of having his complaints reinstated for processing, or specific enforcement of the agreement absent the voided provision.[25] Complainant advised the agency that he wished to have his complaints reinstated, and submitted a cashiers check in the amount of $100.00 for purposes of returning to the status quo ante. The agency returned the check to complainant, and advised him that the total amount which had been paid under the settlement agreement was in excess of $100,000.00. In response to complainant's petition for enforcement, the Commission noted that the amount specified by the agency was verified by the settlement agreement and documentation concerning the back pay calculations. The Commission stated that its prior order clearly notified complainant that if he chose to have his complaints reinstated, he must return all monies or benefits received under the settlement agreement. There was no provision for a partial payment, and complainant's attempt to tender $100.00 was ineffective to return his agreement benefits to the agency. Thus, the Commission found that, despite complainant's stated desire to have his complaints reinstated, his failure to return all of the money received precluded his effective election of that option.
The Commission's regulations support the settlement of EEO complaints at all stages of the administrative process. In addition, a settlement agreement made in good faith and otherwise valid will not be set aside simply because it appears that one of the parties made a poor bargain. The Commission will, however, when appropriate, invalidate an agreement, or portion thereof, which lacks consideration, or when there was no meeting of the minds between the parties.
2. EEOC Regulation 29 C.F.R. § 1614.504(a).
3. Roberts v. USPS, EEOC Appeal No. 01842193 (May 8, 1985).
4. See Wilson v. EEOC, EEOC Appeal No. 01881684 (October 13, 1989).
5. Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795 (August 23, 1990).
7. EEOC Appeal No. 01A11610 (September 10, 2002).
8. EEOC Request No. 05900784 (October 4, 1990).
9. EEOC Appeal No. 01A22673 (September 24, 2002).
10. EEOC Appeal No. 01A11459 (March 7, 2002).
11. EEOC Appeal No. 01A21519 (November 4, 2003).
12. EEOC Appeal No. 01A32415 (November 18, 2003).
13. EEOC Appeal No. 01A21524 (April 2, 2003).
14. EEOC Appeal No. 01A33928 (December 12, 2003).
15. EEOC Appeal No. 01A34038 (November 21, 2003).
16. EEOC Appeal No. 01A34283 (November 6, 2003).
17. EEOC Request No. 05990031 (July 13, 2001).
18. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 12-2 (May 17, 2000).
19. EEOC Appeal No. 01A20577 (April 25, 2002).
20. EEOC Appeal No. 01A24090 (April 3, 2003).
21. EEOC Appeal No. 01A33055 (November 14, 2003).
22. EEOC Appeal No. 01A33756 (November 25, 2003).
23. EEOC Appeal No. 01A34141 (November 25, 2003), request for reconsideration denied, EEOC Request No. 05A40283 (January 29, 2004).
24. EEOC Petition No. 04A30002 (November 3, 2003).
25. Jones v. Department of Defense, EEOC Request No. 05A01067 (July 8, 2002).


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Event: Lehigh Valley 2020
| Team Leader:
Team Fundraising Goal:
| Amount Raised: $25.00
Welcome to Team Can't Break My Stride!
I hope you will join me in my fight to end Cystic Fibrosis by walking with me on Saturday, May 4, 2019 at the Lehigh Valley Great Strides event.
There are approximately 30,000 Americans living with cystic fibrosis. They are moms, dads, sisters, brothers, daughters, sons, friends and co-workers who struggle every day just to breathe.
We walk for them. Will you join us? All we need you to do to become a member of our team is click on the "Join our Team" button. From there you can make a donation and start your fundraising.
By becoming a member of our team and making a donation, you are joining a growing group of people committed to finding a cure for cystic fibrosis. Together, we are adding tomorrows to the lives of people living with CF by supporting the search for a cure.
Great Strides is a fun, family-friendly event that raises awareness and support for people with CF and their families.
Infections can exacerbate CF symptoms and worsen lung function, so we ask attendees at Foundation-sponsored events to observe the following best practices to reduce the risk of germ transmission:
To further reduce the risk of cross-infection, the Foundation's attendance policy recommends that all people with CF maintain a safe 6-foot distance from each other at all times while attending an outdoor Foundation-sponsored event. All Great Strides walks are non-smoking events.
© 2020 Cystic Fibrosis Foundation. Legal Terms & Conditions | Privacy Policy

subset: commoncrawl


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4370 Perkiomen Ave
Reading, PA 19606
Next to Boscovs' East & Fox Movie Theater!
Ages 14 & Up. (14 to 18 yrs must be accompanied by an adult)
Arrive 10-15 min early to get uncorked, smocked & in your seat! If you desire more time to unwind, visit with friends & breathe before we get twisted, we invite you to arrive up to 30 min prior to start time- it's your Happy Half Hour!
If you're coming with others, but making reservations separately, give us your group's name or point person in the Special Request box. We'll seat you together! Please also indicate in the special request section of your reservation any special needs you may have.
BYOB: Drinks and food! We provide cups, plates, napkins & bottle openers. We do NOT provide ice or eating or serving utensils.
FINDING US: We are very conveniently located next to Boscovs East and Nature's Garden in the Reading Mall. Parking is plentiful and free.
PAYMENT POLICY: Payment online or via phone is required to guarantee your reservation. If you choose to not pay online, please call the studio at 610-572 4050 to pay by phone.
REFUND/CANCELLATION POLICY:A full refund will be given for any seat cancelled with 24 hours notice. A store credit will be given for individuals canceling with less than 24 hours notice. No refund or credit will be given for No Shows and No Notice given.
Classes with insufficient enrollment may be cancelled. Registrants will be notified via email and/or phone prior to the scheduled class time. You may choose to have your reservation moved to another class, receive a gift certificate to be used at a later date or have your payment refunded.
Painting with a Twist reserves the right to change paintings due to unforeseen circumstances.
Get notified the next time we schedule this painting!
Paint this artwork at your own private event
REFUND/CANCELLATION POLICY: REFUND/CANCELLATION POLICY; PUBLIC CLASSES AND SEATS IN PRIVATE CLASSES: A full refund will be given for any seat cancelled with 24 hours notice. A store credit will be given for individuals canceling with less than 24 hours notice. No refund or credit will be given for No Shows and No Notice given. PRIVATE EVENT HOSTS: Refer to the cancellation policy contained in your Private Event Agreement.
We are BYOB - we only serve paint water and fun! You must be 21 or over to consume alcohol in our studio.
Public Classes after 6 pm are 14+ (under 16 must be accompanied by an adult). We welcome age 7 and older for Family Day or afternoon classes. For Kids Parties, ages 7-12 is perfect.


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Rate this article and enter to win
When you live with others, carving out some personal space in your home is essential—it maximizes your ability to concentrate, express yourself, and decompress from the stresses of student life. Whether you live in a residence hall, at home with family, or in an off-campus apartment with roommates, making a shared living space your own is key to succeeding academically (and mentally) this semester. Here's how.
1. Create a designated study space in your home
Find a nook in your bedroom, living room, or kitchen—preferably at a desk or table. If your chosen study space is in a common area, be sure to talk with your roommates or family ahead of time to determine which area will be needed for studying and at what times. That way, you won't have to worry about getting set up with your favorite cup of tea, lucky sweatpants, and perfectly organized notes—only to have your roommate's friends show up as soon as you're in the zone.
"My office indicates it's alone time. If I am in there with the door shut, my partner knows to let me work or be. He is extremely open to hearing things like that and often encourages me to hang out with myself when I have downtime."
—Maddi I., second-year graduate student, California State University, Northridge
Pro tip: Study at a desk or table; avoid studying in bed.
Studying in bed may cause our brain to associate the bed with stimulating or stressful activities rather than sleep. Using your bed only for sleep helps strengthen the mental connection that associates your bed with sleep, so your brain knows not to rev up when you're trying to wind down. In fact, strengthening our brain's association between our bed and sleep—and weakening its association with stimulating activities—is a common treatment for insomnia called stimulus control therapy (Indian Journal of Psychiatry, 2012).
If you live in a residence hall or with a lot of other people, you may be pretty cramped. You can use the following pointers to make your study space more inviting:
- Decorate your workspace with inspirational pictures and quotes to stay motivated.
- Buy a comfortable chair or chair pad, and have a good lamp to study by.
- Keep things organized using wall-mounted file holders or a bulletin board above your desk for notes, a calendar, or a to-do list.
- Place a soothing tabletop fountain or small plant on or near your desk for a little mental tranquility.
2. Use ergonomics for pain-free studying
Where you study is only part of the equation; how you study is just as important. "A lot of the time, people don't think about the way that they are working until they start to hurt," says Dr. Alan Hedge, a professor at Cornell University who specializes in ergonomics, the science of designing and arranging equipment to maximize efficiency and minimize injury. While sitting at your desk, proper ergonomics can help you stay comfortable and avoid pain during lengthy cram sessions. "If you can find a neutral [body] position, you are going to be more healthy, you are going to be more alert, you are going to perform better," says Dr. Hedge.
- Keep your monitor at arm's length, at eye level or slightly below.
- Keep hands at or slightly below elbow level; support wrists so they are level.
- Adjust your chair height so your knees are roughly level with hips.
- Take frequent breaks to stand, stretch, and walk around.
- Consider investing in an ergonomic chair or standing desk.
3. Manage distractions
It's inevitable that other people will be around when you're studying, at least some of the time. More than 40 percent of respondents to a recent student survey say that the presence of roommates and family at home has an impact on their choice of study location, and almost 50 percent say their most pressing distraction when studying is other people.
"The biggest challenge that I face when I'm trying to study is my friends or classmates wanting to talk to me," says Brandon P., a junior at Troy University in Dothan, Alabama.
- Let the people you live with know that when they see you in your chosen study spot, you are effectively hanging up a "do not disturb" sign.
- Wear headphones—this can work as a visual cue to others to give you some space while simultaneously drowning out ambient noise.
4. Establish clear boundaries
Sit down and talk to the people you live with to establish ground rules about things like quiet times and cleaning schedules. You can even write up a contract (to keep it casual, write it on a white board or get crafty with a poster board). Doing this early on, before you're deep into the stresses of the school year, can prevent conflict later.
"I try to communicate openly and honestly with [my roommates about] my expectations or study needs," says Micah T., a fourth-year undergraduate at Stanford University in California.
5. Make the space feel like your own
"It is really important for me to personalize my space," says Katie T., a fifth-year undergraduate at Stanford University. "I put up posters of things I like, and I keep sticky notes around to remind myself of positive affirmations and to connect with my values and personal goals. I tend to adapt to the people around me when I live with others, so I've learned it is important to make sure my environment fosters a robust connection to my internal self."
- Hang your favorite poster, tapestry, or artwork.
- Go shopping with your roommate for shared items such as couch pillows or kitchen gadgets.
- Decorate the walls or your workspace with pictures of your friends, family, or pets.
- If away from home, bring a meaningful item from your childhood, such as a crocheted blanket your grandmother made or a souvenir from a family trip.
4 ways to solve roommate conflict: The Ohio State University
Dealing with difficult people & difficult situations: The University of Kansas Counseling and Psychological Services
Declutter your dorm room with these 26 organization ideas: Extra Space Storage SpaceWise
Article sources
Alan Hedge, PhD, professor of design and environmental analysis, Cornell University, Ithaca, New York.
Judy Morris, master of Feng Shui, Feng Shui Research Center, Austin, Texas.
Canadian Centre for Occupational Health and Safety. (2010, November 1). Working in a sitting position: Good body position. Retrieved from https://www.ccohs.ca/oshanswers/ergonomics/sitting/sitting_position.html
Sharma, M. P., & Andrade, C. (2012). Behavioral interventions for insomnia: Theory and practice. Indian Journal of Psychiatry, 54(4), 359. Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3554970/
Student Health 101 surveys, June 2012 and May 2019.


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Music is a huge part of my everyday life. I am always listening to music and I decided that it would be fun to make monthly playlists! Each playlist will feature some new songs, some old songs and a random mix of genres. I will be listening to these songs throughout the month and I hope you enjoy my playlist!
Please share this playlist with your friends and link me to your own monthly playlists!
Check out June's playlist below or click here. Check out May's playlist here.


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Police: Couple killed in crash had drugs in systems
Newlyweds died in crash at curve in St. Augustine on Christmas Day
ST. AUGUSTINE, Fla. – A newlywed couple who died in a crash on Christmas Day on a dangerous curve in St. Augustine had a number of chemicals and drugs in their systems, according to the St. Augustine Police Department.
Police said toxicology reports were finalized in the deaths of Trevor and Jennifer Leonardi. Both died when the truck Trevor Leonardi was driving left Anastasia Boulevard at a high speed and struck a large tree on Red Cox Drive near St. Augustine Fire Station No. 2, police said.
Both Leonardis had been "huffing," or inhaling freon from aerosol cans, police said. They said Trevor had Xanax and other tranquilizers in his system. Jennifer had tranquilizers, amphetamines, over-the-counter cold meds and weight-loss pills in her system, and had been smoking marijuana, police said.
Specifically, Trevor was found to have heavy concentrations of difluoroethane, or freon, a commonly used gas found in aerosol cans used to clean computer screens, in his system. He also had Alprazolam, or Xanax, and benzodiazepines in his system.
Jennifer was found to have heavy concentrations of difluoroethane, pseudoephedrine, norpseudoephedrine, amphetamine, phentermine, Delta-9-THC, benzodiazepines, cannabiniods.
Officers with the St. Augustine Police Department said they're continuing to investigate the crash to determine the exact speed at the time of impact and should have those results by the end of the month.
After the crash, there was concern about the dangers of the curve in the roadway. The Florida Department of Transportation said Wednesday it would add more signs, markings and reflective bumpers to make the road safer.
Copyright 2013 by News4Jax.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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Family and Social Medicine
Family and Social Medicine
Established in 1978, the Department of Family and Social Medicine plays a significant role in the development of clinical care and training in urban family medicine. Each year, our team of dedicated physicians, nurses, social workers, and specialists provide comprehensive care to approximately 55,000 patients each year. We provide general and specialty care in two primary outpatient clinics of the Montefiore Medical Group, the Family Health Center and Williamsbridge, and have more than 20 affiliated in the Bronx and Westchester, such as Fordham Family and Castle Hill Family Practices.
Through more than 32 years of experience in providing primary and ambulatory care to patients in the Bronx, the Department has gained a reputation for excellence in social medicine. Our patients, ranging in age from newborns to seniors, depend on us for acute care, immunization, sick visits and dental care. Spanning a wide spectrum of social services, we provide everything from flu shots to treatment for severe cases of diabetes and AIDS. Each patient is ensured not only exceptional care but a follow-up appointment within 48 hours. We also offer inpatient and palliative care services for individuals with terminal illnesses.
Society of Teachers of Family Medicine 2014 Annual Spring Conference:
Download a complete list Department of Family and Social Medicine presenters and posters here.


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Ok, I am kind of lost. I have a Bold 9650 and I am having intermittent issues with receiving attachments. Some will come through but some will not. No specifics though as it is not only for doc or docx as some of those will work. The message does not show attachments but when I look at it on my computer, it has them. I am on an Enterprise server and my host vendor says I need to reinstall Attachment Services. I have the Blackberry Dsktop Software version 22.214.171.124 and I can't seem to find my way through it as I was able to in older versions.
Any help is great.


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mhocker10 wrote:the high Omega 6's I planned for and give the Omega 3 dose daily.(850mg DHA/EPA combined)
Bump that up to 1g/10lbs of dog for a while, especially since the dog was kibble fed. You'll need to be fixing the cellular 6:3 ratios for EVERY cell. You can also use MCT (flavorless) or coconut oil as a supplement.
mhocker10 wrote:I am also going to go to a local Mennonite farm tomorrow and haggle on prices.. they produce free range chicken, and grass fed beef -- probably a good place to source organs to.
LUCKY! I'd ask them about the Green Tripe (uncleaned cow intestines), as they may just give it to you.


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Assault Weapons Ban Expires 9/13/04 - Bush must sign renewal
In 1994, Congress passed and the President (Bill Clinton) signed the Assault Weapons Ban banning Americans from purchasing assault weapons such as AK47s (weapons of war & mass destruction) in gun shops and other venues. I'm not talking about hunting rifles or even hand guns...ASSAULT WEAPONS are for killing massive numbers of people at one time.
However, starting next Monday, they can and will be sold LEGALLY (i.e., the bill "sunsets"--unless President Bush signs the renewal of the Assault Weapons Ban as he promised to do). Please send a message to President Bush to sign the ban renewal.
Here are a few websites with facts on the upcoming deadline, and information on how you can send a message to the President to SIGN THE ASSAULT WEAPONS BAN BEFORE IT EXPIRES ON SEPTEMBER 13.
This is not a partisan issue; it is a matter of life and death.
From 9/10 NYT , a column by Clyde Haberman focusing on Congresswoman Carolyn McCarthy and the good work she's been doing.
For those who would play "devils advocate", here's a story about how gun manufacturers view things: Detroit Free Press.
Make Congress send him the bill
Non partisan part here:
The president can't sign what Congress does not send him. If you support continuation of this ban then get on your senators and representatives to pass the bill so it can be sent to the president. I read that the president has said that he will sign it if it is sent to him.
Partisan part here:
Personally I don't think it makes a bit of difference if it is signed or not. I own several firearms and many of them, save the single action revolvers I own, could kill many people in just a few seconds.
I own firearms that would be covered under the ban. pistol grip shotguns and handguns with magazine capacities >10. I bought all of these guns after I was a police officer (for all 9 months) so I was not covered under any special exemption.
That said I am sure that there are lots of nuts and criminals that should not own guns, and I think the instant background system does a good job of weeding them out. Someone I worked with asked me to buy a gun for him because he was a felon as he wrote a bad check many years ago for > $500. I explained that straw purchases like that would make us both felons, and I also told him if I saw him with a gun I would narc on him. Nice guy but the law is the law.
So I can be killed just as easily with a non-ban gun as I can with a ban gun. There is no real definition of what an 'assault weapon' is, they are banned primarily by how they look or how many bullets they hold - stupid reasons to ban an otherwise legal gun.
So lets enforce the gun laws we have now, and not re-enact the ban. Remember president Reagan was shot with a
Re:Classic liberal
It may be flamebait but it is true.
Classic liberal
Birdie is a classic liberal. She has decided this issue on emotion and facts will not be allowed to stand in the way.
birdie, is this really a response? I asked for reasons to think that the assault weapon ban has reduced or can reduce crime or accidental death and injury from firearms. The heart of my comment was this: that if no evidence can be adduced that a will do what is claimed for it, then it is irrational to advance it as a remedy for the problem in question. If you have reason to think the assault weapons ban has proved effectual, show me the reason. If not, what possible argument can be advanced in its support?
"I heard the N.R.A. say that only a small amount of people, of police officers, were killed with these types of assault weapons," she (McCarthy) said. "Well, you know what? To me, a small amount, whether it's 5 percent, 6 percent, that's a lot of lives that can be saved.
Show me reason to think that the assault weapon ban, the law in question, will save one life. The most the ban does is make arms and magazines covered by the ban, but manufactured before it, more expensive. And (pace Senator Kerry) the difference in price will not deter even a modestly funded terrorist effort. Of course, any serious terrorists will not even bother with the semi-automatic weapons legally available on the American market. How tough would it be to import a couple of crates of real (i.e. fully automatic) AK-47s on a truck or container ship, given the supposed incompetence of homeland security under Bush?
"Let's face it," she said, "unfortunately down the road some horrible incident's going to happen, and then the American people will wake up and go, 'Well, why didn't our congresspeople take care of this?' That's when an awful lot of people here in the House are going to have to look at themselves and ask, 'Why didn't we prevent this?' "
Please explain to me exactly how Congressman McCarthy knows that something horrible will occur that could have been prevented by the ban? Note that as a matter of simple, bare, unpartisan logic, both conditions must be met:
- something horrible involving "assault weapons" will happen; and
- that horrible something will turn out to be something of which we can say with some certainty that it could have been prevented by the law known as the assault weapons ban.
Let's grant that (1) is true and something horrible will occur at least once; how does Congressman McCarthy know that (2) is also the case for enough (1)s so as to merit a law? If (2) isn't the case, then the assault weapons ban will have been entirely irrelevant for the the horrible event (1). McCarthy's argument for the assault weapons ban fails if she cannot show that (2) will obtain with (1) at least some of the time.
And, if the American people ask "why didn't our congresspeople take care of this?" without first asking "is there a Constitutional law that could have prevented this", then they will demonstrate yet again that they have the government they deserve.
Re:illegal guns
I misread part of M's post, sorry. however, the point remains.
Makhno seems to have figured it out.
On a more technical note; M described his weapons saying that they would be covered under the ban. That would seem to indicate they are covered by the present ban which is up for renewal.
Oddly enough, I'm not a big gun hater either. My dad was a career law enforcement officer, in Alabama. He was a serious competitive shooter and I virtually grew up on the police range.
At 14 and 15 yrs., the only police officer I knew who could regularly beat me on the PPC course was my dad. I took him off the 'better than me' shooters list at 16.
I own no guns now and live in Canada where people own guns but don't carry them around. It's better this way. I've lived in both environments and this is better.
Re what M said about the
Remember the two nuts that held the entire LA police department at bay while shooting up the neighbourhood with assault weapons?
There are plenty of firearms around without having these automatic cannons in the mix.
What need has an honest citizen for a pistol gripe shotgun, that can be carried under an overcoat? It is not a target weapon, it is not a hunting weapon. For home defence it need not be concealed. I don't get it?
I think Matthew's point was that he was able legally to purchase items that under other conditions would be covered by the ban. E.g. it is perfectly legal under the ban to purchase magazines that hold more than 10 rounds as long as the magazines were manufactured prior to the ban. Perhaps the chief effect of the ban has been to jack up the price of pre-ban magazines and guns.
Re: illegal guns
Thomas, you forgot to ask Matthew if he had stopped beating his wife/dog/boss/whatever.
I'm curious to find out how people reason that assault weapons should be banned. So often one hears reasons like "no-one needs an assault rifle" or "they are just designed to kill people", which really don't amount to a serious argument, since they give no evidence that assault weapons are in fact a large enough threat to public safety to merit legislation. The only force that such arguments have as far as I can tell is emotional.
So what reasons do you give to argue that assault weapons are a great enough danger to merit a special law? Here are some suggestions--perhaps you have others.
- Are assault weapons favored by criminals or used in a particularly
high proportion of crimes in the U.S.?
- Do assault weapons kill a particularly large number of people each year?
- Do assault weapons fire a more powerful round than other firearms?
- Are assault weapons more accurate than other firearms?
Of course, for any of these reasons to carry weight, they must be backed up with evidence. For instance, if assault weapons aren't frequently used in crimes, then even in the best case banning them obviously won't have much (if any) effect on the crime rate. Likewise, if they aren't implicated in many firearm-related injuries or deaths, banning them won't have much effect on public safety. To argue cogently from a crime or public safety perspective, it seems to me one needs to demonstrate an actual effect of the availability of assault rifles on these areas. Can you show any evidence that the assault weapon ban has had any real effect on crime or firearms casualties so far?
You may well have other reasons. If so, I'd be curious to know what they are. Do you think that the only valid category of reason to ban assault weapons is for reasons of public safety? Or are there other categories of argument against assault rifles?
I for my part have to wonder why Tom Diaz of the Violence Policy Centervpc.org> said (and I'm citing the Volokh Conspiracyvolokh.com>):
"If the existing assault weapons ban expires, I personally do not be lieve it will make one whit of difference one way or another" in "reducing death and injury."
Was Diaz perhaps being too candid?
Re:illegal guns
Quote from md's post: "I own firearms that would be covered under the ban. pistol grip shotguns and handguns with magazine capacities >10."
So, if Bush signs what he should, then md would indeed, by his own admission, be the owner of illegal firearms. I'm sure he'd dispose of them appropriately if necessary.
You know what you all need, don't you? A gun registry!(my tongue is very much in cheek) That way you can waste millions of gov't money on a program that is idiotic and takes away some of your rights re: the police and searches.
I don't think Joe Citizen needs to own fully or semi automatic weapons. However, I don't have a problem with people owning guns--for hunting, target shooting or protection, as long as things are stored properly and safely. Yes, you read that right: this Cdn liberal isn't against gun ownership!! Background checks and waiting periods should be mandatory.
My step father is a retired gunsmith, so I grew up with guns in the house and while I have never fired a weapon (nor have any interest to) I was taught how to properly handle a gun. When we had the corner store, dad did smithing and sold weapons, accessories, ammo. After my parents sold the store, dad had a shop out of the house, but the red tape and the fees they were charging him finally drove him out of business. Once the registry was made law, he got rid of his guns. He does belong to the NFA (NRA lite)and did try to fight the registry. But as usual, the cdn gov't steamrolled it in. Now it's cost us a couple million bucks and it isn't worth two cents.
But that's just MY two cents...
Re:Make Congress send him the bill
Birdie, I have to agree with Mdoneil. He presents reasoned arguments. In addition, my family has had a traditional mistrust of "gun control" due to experiences in the "old country". I suppose it's in the blood.
Re:illegal guns
You and I may know that it has nothing to do with his arguement, but who knows what Johnny Ashcroft may think? His mind works in mysterious ways and he could consider the hapless Mdoniel a "person of interest"...perhaps an I.R.A. connection...We'll just have to wait and see.
Re:illegal guns
What does any of that nonsense have to do with his arguement? He said he had no special priviledges when he bought the guns so they're not illegal.
illegal guns
M. Are you advertising to the world that you own multiple illegal guns? Combine that with some of the things you've said around here and other places, you may be up for a close inspection of the Patriot Act.
You see, there is a fringe elements of the right that scare the feds as much as Arabs do.
I suppose, for the Secret Service, you might fit the profile of a potential right wing terrorist.
"A dreary carefully conservative appearance, doesn't relate well with the opposite sex, has a collection of illegal guns, that he's very proud of, has a uniform fetish, has been having trouble finding and keeping jobs, has trouble with authority figures, likes to read about dictators, political tyrants and assassinations. Only lasted nine months on the police department...might have a grudge about it, writes nasty things to and about elected officials..."
Now, getting serious, I am not suggesting that anything I said about you, above, is true. But, anyone reading your stuff, around here and other places, could actually interpret you, your words, your actions, in just the manner described above.
Once someone in authority decides to see you that way, finding 'evidence' is not that difficult.
If you had stayed with the police a couple of years, you may have figured out why the majority of police departments in the US support the assault weapons ban.
A word to the wise: You are no longer a police officer. The weapons restrictions apply to you as much as anyone else. The FBI is only a phone call away to anyone in America.
Anyone could drop a dime on you, anytime. As you just said, the law is the law.
When the reality of this sinks in, that nervous dread in the back of your head is what every Arab American feels every day of their lives.
Hey, buddy, gotta' dime?


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