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Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (I-Connecticut) is urging the Senate to confirm nominee Martha Johnson as head of the General Services Administration (GSA). Johnson's nomination has been held up since June, when she was unanimously approved by the Homeland Security and Governmental Affairs Committee.

On Monday, Lieberman called Johnson, a former Chief of Staff for GSA, an "extraordinary nominee" who can "hit the ground running" performing a job that is "critically important to the efficient operation of the federal government." Noting that GSA has not had a permanent leader since April 2008, Lieberman said that it is time for "stable leadership" at GSA.

"It's been very frustrating for members of our committee to see such a qualified nominee held up for more than half a year because of something that has nothing to do with the nominee's qualifications," the lawmaker stated. "The hold in this nomination has been completely unrelated to Ms. Johnson herself and her appointment has broad bi-partisan support. I urge my colleagues to vote yes on cloture so we can confirm this excellent nominee and she can get to work for the American people."

We'll let you know what happens.

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OmniGov Training Institute is offering a special opportunity for you to attend FMA's Management Training Seminar titled, "Dynamically Leading the Government of Today Into Tomorrow."

Don't miss this opportunity to learn more about FMA and join John Berry, Director of OPM, and industry experts for a dynamic managers' training seminar.

Non-members who attend will receive a FREE 1-year FMA membership!

For more information, and to sign up, go to www.fedmanagers.org, click on "Events," and select "FMA's 72nd National Convention."

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A disabled federal employee's lawsuit against the Office of Personnel Management (OPM) and Long Term Care Partners for denying him long term care insurance coverage has survived the federal government's motion to dismiss.

The case began when an employee of the Department of Health and Human Services (HHS) applied for long term care insurance through the Federal Long Term Care Insurance Program, which is sponsored by OPM and administered by LTC Partners. The employee has paraplegia and uses a push wheelchair to assist with walking. He revealed this fact in his LTCIP application.

The application form stated that an affirmative response to the question of whether he used a medical device, aid, or treatment, such as a wheelchair, would make him ineligible "for any of the insurance options under this program shown in Part F of [the] form." The employee submitted his application and later received a letter from LTC Partners denying his coverage because of his wheelchair use. The employee subsequently sued in federal district court, among other things, under § 501 of the Rehabilitation Act, alleging that the defendants unlawfully discriminated against him because of his disability when they rejected his LTCIP application.

The OPM Director and LTC Partners moved to dismiss the employee's complaint, arguing that he failed to allege sufficient facts that demonstrate that the administration of the plan was a subterfuge to evade the purposes of the Rehabilitation Act under § 501. The employee countered that he pled all the facts necessary to state a claim under § 501.

The federal district court explained in its opinion that section 501 provides a cause of action for federal employees alleging disability discrimination under the Rehabilitation Act, and that the standards under Title I of the Americans with Disabilities Act of 1990 ("ADA") apply when determining whether § 501 of the Rehabilitation Act has been violated in a complaint alleging employment discrimination. The court further explained that under Title I of the ADA, "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."

Despite its general intention to prohibit employment discrimination against disabled individuals as expressed in Title I of the ADA, however, Congress created an exception so that organizations can sponsor or provide bona fide benefit plans not subject to state insurance laws even if they offer different terms to disabled individuals. This exception, commonly referred to as a "safe harbor" provision, allows a bona fide benefits plan to exist even if it would otherwise violate the ADA. Nonetheless, the exception does not allow an organization to administer a benefits plan that is "used as a subterfuge to evade the purposes" of the ADA in preventing employment discrimination based on disability.

The court's opinion noted that subterfuge is defined as "a scheme, plan, stratagem, or artiface of evasion, which ... connotes a specific intent ... to evade a statutory requirement." A statutory requirement is evaded where there is "actual intent to discriminate in those aspects of the employment relationship protected" by the ADA.

While the employee must establish as part of his prima facie case that the safe harbor is merely a subterfuge, the court stated, he need not plead every element of his prima facie claim to survive a motion to dismiss. Therefore, the court said that a motion for summary judgment, and not a motion to dismiss, is the proper vehicle by which the defendants may raise their challenges to the sufficiency of the employee's showing of subterfuge.

However, the court went on, the employee's allegations must still give rise to an entitlement to relief in order to survive the motion to dismiss, meaning that he must have pled a factually plausible § 501 claim under the Rehabilitation Act. Under Title VII, the ADEA, and the Rehabilitation Act, the two essential elements of an employment discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff's race, color, religion, sex, national origin, age, or disability.

In this case, the court found that the employee pled that he received a letter from LTC Partners stating that he was denied coverage because he answered that he used a wheelchair. This factual assertion plausibly alleges the adverse employment action prong of the employee's discrimination claim, the court stated. It also satisfies the second material element of an employment discrimination claim - that the defendant took action because of a prohibited consideration. Thus, the court determined that the employee has made a factual allegation that provides independent corroboration of his belief that LTC Partners denied his coverage on the basis of his disability, and that allegation is entitled to a presumption of truth.

Accordingly, the court ruled that the employee has stated a claim of employment discrimination under § 501 of the Rehabilitation Act, and denied the OPM Director's and LTC Partner's motions to dismiss as to this claim.

The case is Rouse v. Berry, United States District Court for the District of Columbia, Civil Action No. 06-2088 (RWR), January 29, 2010.

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As reported above, the Merit Systems Protection Board this week released a report on employee perception of fair and equitable treatment. A major finding of the report is the continuing employee belief that supervisors are not held accountable for unfair or discriminatory treatment. The MSPB specifically recommended that agencies strengthen processes for supervisor accountability. This follows last year's OPM issuance of best practices for enforcement of the No FEAR Act, which made similar recommendations.

What this means for supervisors is continuing pressure on higher level management to hold supervisors accountable for unfair treatment. How should supervisors respond to this increased scrutiny?

First, supervisors should sense and identify those personnel situations that are likely to result in a complaint of discrimination or abuse of supervisory authority. Next, supervisors should keep documentation about an event explaining why a supervisor took certain actions. The documentation needs to be sufficiently detailed so that the supervisor can remember what happened and a third party (such as a judge) can get a sense of the supervisor's thinking at the time of the action. Third, the supervisor should make full use of resources available, such as the labor or employee relations office. A supervisor who uses these resources and relies on the advice of others after a full disclosure of all relevant facts is far less likely to experience negative consequences.

Finally, as discussed last week, all supervisors should purchase professional liability insurance. That protection will help to provide a comfort level to a supervisor to act early in addressing workplace problems so that they don't fester.

Most importantly, and as a general matter, a supervisor should know and remember the merit system principles and should treat all employees fairly and with dignity.

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As we celebrate Black History Month this February, it's important to note how the young government leaders of today are more diverse than ever. This diversity also extends beyond traditional racial categories, across the spectrum of factors affecting the workforce: gender, race/ethnicity, lifestyle, generational, federal hire vs. contractor, etc.

According to the Office of Personnel Management's 2008 annual Federal Equal Opportunity Employment Program report, the Federal Government employs minorities at a higher rate than in the Civilian Labor Force (CLF). Minorities make up 33.4 percent of the 1,756,733 permanent federal workers. Additionally, the representation of minorities and women at senior pay levels continues its incremental upward trend, now at 17 percent. Blacks represented 17.9 percent of government workers versus 10 percent of the CLF.

Magnifying these trends is the fact that the younger X, Y, and Millennial generations are much more diverse than the senior ranks of government managers. In a broader example, according to Census Bureau 2010 population estimates, almost 80 percent of the U.S. population aged 70 to 74 is white alone, not Hispanic, while of the group aged 20 to 24, it is only 60 percent.

As the federal workforce continues to evolve in the face of the much talked about impending retirement wave, a more diverse generation of leaders will be tackling the challenges to come. These leaders are changing the way government business is conducted. Often bringing a more private-sector style of work to the table, these new fresh feds are pushing the government to get more relevant and responsive. For example, this fresh crop of leaders is encouraging the use of new social media outlets like Facebook and Twitter to connect with customers and stakeholders.

Young government leaders are also pushing for newer ways to efficiently get the job done. Programs like telework, flexible scheduling, etc., are common sense solutions for a dynamic workforce. The flexibility to offer these programs is also a great incentive to retain younger workers.

In addition to ongoing workforce development programs and events, Young Government Leaders chapters across the U.S. will spotlight diversity themes throughout Black History month. This is the perfect time to join a YGL chapter and explore all the personal and professional development opportunities available. Join Now!

YGL is a grassroots organization founded in 2003 by a group of young people interested in meeting other energized Federal government employees. Today, YGL has more than 1,800 supporters in the Washington Metropolitan Area, with local chapters in cities across the United States. As the only 501(c)(3) not for profit professional organization founded and led by young federal personnel, YGL's mission is to educate, inspire, and transform the next generation of government leaders, offering professional development, networking, and leadership opportunities for its members. For more information about YGL, go to its website by clicking on www.younggovernmentleaders.org.

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Members of the newly formed Federal Workers Alliance will join the attorneys of Shaw, Bransford & Roth to discuss the group and the federal workforce issues they will focus on in the coming year.

The radio show airs this Friday, February 5, 2010, at 11:00 a.m. Eastern time. Click here Friday to listen - www.federalnewsradio.com - or tune in to 1500 AM in the Washington, D.C. area.

Join the conversation! Email your questions to fedtalk@federalnewsradio.com, or call in during the show by dialing 1-877-936-9333 (toll free).

FEDtalk® is a live radio talk show produced by Shaw, Bransford & Roth, PC. Bringing you the insider's perspective from leaders in the federal community since 1993.