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Federal Employees: You be the Judge


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freeageless  
#1 Posted : Tuesday, January 11, 2011 8:40:47 PM(UTC)
freeageless

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Another person has won their case in the court and before MSPB. See link.

http://www.washingtonpost.com/wp-dyn/content/article/2011/01/11/AR2011011106398.html?hpid=moreheadlines
JLW  
#2 Posted : Wednesday, January 12, 2011 3:30:14 AM(UTC)
JLW

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Another fed that has sued to keep his/her job. Victory I guess. I think not
Cancer  
#3 Posted : Wednesday, January 12, 2011 3:46:40 AM(UTC)
Cancer

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Haven't read it yet, but I doubt it. I have many veterans in my family, yet I have no faith whatsoever in the US government after dealing with IRS and MSPB. For one thing, MSPB now tells me that even their settlements are no good without an enforcement agreement in them. For another thing, I presented MSPB with the law and with all of OPM's written guidance to applicants backing up that law, and with the union's opinion that as a reinstated employee in the same job, I was not probationary and had full employee rights - there's even a court case showing that MSPB has the burden of telling me what more I needed to provide to prove that my prior probation (and career tenure) counted toward completion of probation. MSPB apparently feels they can deny a petition without any obligation (after I waited almost a year) of giving me their own interpretation of the law - apparently they don't agree with Congress or with OPM's guidance to applicants, yet even after the agency has screwed an employee in every possible way, they feel that they don't even have to explain their authority for denying them their due process rights. I have absolutely no faith anymore in the US government. In fact, others who work for the IRS (which was once a good agency just a few years ago) say the same thing. MSPB as well as OPM are a joke - they should both be eliminated, it would save so much in taxpayer dollars.    IRS is the worst, cronyism in hiring at its worst!   Having the MSPB just gives employees a false sense that there's some oversight over these abuses when there is NONE whatsover! I imagine it's like IRS - maybe with family connections, you can get a job and even get your case heard, but it's not the case with 99% of people. Cancer2011-01-12 12:38:07
CancerfromIRS
Cancer  
#4 Posted : Wednesday, January 12, 2011 7:39:12 AM(UTC)
Cancer

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CAUTION: ALL PEOPLE GOING BEFORE MSPB NEED TO KNOW NOT TO RELY ON WHAT THE JUDGE TELLS THEM AT A SETTLEMENT HEARING:

For those who are suddenly forced into a legal proceeding and have no experience with lawyers, you need to know this. I just talked to another lawyer (supposed to be one of the best for government employees in DC), and he says he would have litigated my case (he agrees I was nonprobationary and was illegally denied due process). I relied on the judge at the hearing who told me that I had no choice but to settle due to being classified (now I realize this was definitely a misclassification by OPM/IRS) as probationary - he said that even if I spent the tens or hundreds of thousands needed to go before MSPB, MSPB would not listen to my argument due to this probationary status (this new lawyer agrees with me that this was a misclassification - that I was not probationary, which both I and my lawyer stated from the very beginning). SO I SETTLED ON FALSE PRETENSES, BASED ON WHAT THE JUDGE TOLD ME (although my lawyer argued from the beginning that I was nonprobationary, he didn't tell me to disregard the judge when the judge said I had no choice but to settle due to the probationary status, a false assumption).    I was a career tenured employee with 18 1/2 years of nothing but excellent evaluations, who had done my probation and tenure and returned to the same job, same agency. My lawyer stated from the beginning that I was nonprobationary, and the other lawyer agrees. But when the judge at my hearing accepted OPM/IRS's (mis)classification of me as probationary (a mistake they often make), my lawyer didn't tell the judge he was wrong, meaning I was denied the chance to litigate, and the lawyer said nothing.   Now I am out of luck, since there's nothing I can do.   At the hearing, I had given them a copy of the USA JOBS page (one of OPM's many written sources backing up the law) stating that for a reinstatement applicant who has completed probation in the same job, same agency, their prior probation counts toward completion of probation (meaning they have full due process rights). This along with all other evidence was apparently just brushed aside. So now I'm finding out that I and I my husband were stupid to have listened to the judge and should have litigated (and would have won had I not settled - should have been reinstated with full back pay, etc...) instead of being made sick with cancer. Apparently anyone off the street with no experience with the law (even someone who is in shock and sick from what they've done) should be aware that you cannot rely on a judge at an MSPB settlement, and you are doomed if you do. Also, they promised me a "clean SF-50" at settlement so I could get a new job, but this was not enforced - although my lawyer claims that I still have career tenure, the new SF-50 no longer reflects it. So I paid over $ 30, 000 in legal fees for nothing.    IF YOU GO TO MSPB, GET A GOOD LAWYER!!!!!!!! Don't ask me how to find one, since I relied on the union to recommend one (mine was recommended by the union). And ask about an enforcement agreement, since the settlement is no good without one. MSPB says mine didn't have one, the other lawyer says they just didn't enforce it. Either way, the settlement is no good.    MOST OF ALL, YOU NEED TO KNOW YOU CAN'T RELY ON THE JUDGE BECAUSE PROBATIONARY STATUS IS CRITICAL TO HOW YOU ARE TREATED- IF YOU ARE PROBATIONARY, THEY ARE ALLOWED TO COMPLETELY FALSIFY YOUR FILES, AND COMPLETELY ABUSE all rules and regulations - IF THE JUDGE TELLS YOU YOU'RE PROBATIONARY (YET YOU believe you'r not), DON'T ACCEPT THIS DECISION SINCE IT IS FINAL - THEY WON'T HEAR YOUR PETITION OR YOUR APPEAL, according to this lawyer!!!!! So you should litigate even if you don't have the money - your life will depend on it. THIS OTHER LAWYER JUST TOLD ME I SHOULD HAVE GONE TO LITIGATION SINCE HE AGREES I WAS NOT ON PROBATION - THIS MEANS MY GRIEVANCE SHOULD HAVE BEEN HEARD, AND I SHOULD HAVE BEEN REINSTATED WITH BACK PAY RATHER THAN MADE SICK WITH CANCER. I WISH SOMEONE HAD WARNED ME not to rely on the judge's statement (were my husband and I both idiots to think we could rely on what the judge said at the hearing?), SO I'M WARNING EVERYONE - DO NOT RELY ON MSPB-!!!!Cancer2011-01-12 16:24:07
CancerfromIRS
freeageless  
#5 Posted : Wednesday, January 12, 2011 9:06:32 AM(UTC)
freeageless

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Cancer, I regret that you have cancer. I am curious as to why you seem so certain that job related actions caused the cancer. It is my understanding that cancer is primarily genetic and that there is a gene that causes cancer. However, I could be wrong.
Cancer  
#6 Posted : Wednesday, January 12, 2011 10:40:30 AM(UTC)
Cancer

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Yes, you are wrong. I have the non-genetic type, according to my doctors. I am absolutely sure they caused it by their total abuse of power, their bullying, threats, false accusations, etc...   3 of the 5 hires (all older) were targeted and 2 made sick. I lost 20 pounds in 2 weeks under the "mutiny manager" and my coworker also was very sick from what she called their "cruel and demeaning treatment" - you have to live it to understand! My sickness quickly became a huge tumor and stage 3A cancer (I was 45 with a great job and boss, and tumor-free when I applied back, I was checked).   Cancer has been linked in many studies to extreme stress in middle aged women - many cancer patients swear this is the cause, and there can be nothing more stressful than the bullying, threats, and false accusations and being forced into a court battle when you should have had full employee rights to a grievance.   My doctor at Dana Farber says my cancer will come right back if I ever go back to where I was (working for the "mutiny manager"), so he (a cancer expert) apparently believes there's a huge link between the cancer and the stress also.

A well known lawyer in Washington now tells me he agrees I was nonprobationary as I claimed from the beginning (I was career tenured and was reinstated to the same job, same agency).    So there was no need to experience this stress - had my grievance not been delayed for ages and then blocked, it would have saved me tons of money, time, and a huge amount of unnecessary stress. Instead I was forced to the MSPB hearing, where the judge told me I could spend tens if not hundreds of thousands to go forward, but MSPB would not hear my case all due to this probationary status (which I now know to be a farce since I was misclassified by OPM/IRS).   So IRS and OPM can win by misclassifying a reinstatement applicant as probationary - MSPB will not question it, even when it's dead wrong.   This misclassification has HUGE CONSEQUENCES since they can even falsify your files, abuse you in every way, if you are probationary. The lawyer from the beginning said I was nonprobationary, and I even gave them a page from the USAJOBS website at that hearing proving that my career tenure and prior probation counted toward completion, (meaning I was nonprobationary).     I just paid $ 500 to the expert in Washington, and he now tells me I should not have listened to the judge at MSPB (my lawyer should have known the judge was wrong and should have litigated).    So IRS/OPM wins by making this misclassification!   This question of my probationary status should have been settled long before any hearing with the judge - it is a "black and white" issue, and there should be a determination prior to the hearing - the settlement was all based on a false probationary assumption.   OPM and IRS do not follow the law which is repeated in all of OPM's written guidance to reinstatement applicants, and there is no one to make them abide by it - no employee should have to go through this agony!!!!!!!!.

Oh, and my doctor says my type of cancer is the NON- genetic type - again, I knew it. There's none of this type of cancer anywhere in my family.


Cancer2011-01-12 19:17:35
CancerfromIRS
freeageless  
#7 Posted : Wednesday, January 12, 2011 9:06:55 PM(UTC)
freeageless

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Cancer, thank you. I believe you.
Oosik  
#8 Posted : Wednesday, January 12, 2011 10:11:08 PM(UTC)
Oosik

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Cancer,
 
Sorry to hear of your cancer diagnosis but I am not aware of any studies that would show that stress is a causation factor for cancer.  If that were the case I think there would be significant cancer rates for military personnel who may have been in combat and who are forced to move often.  Also, you would have cancer clusters in areas like Haiti, Rwanda, etc. where there was significant natural or man-made disasters.  Certainly I would agree that management of stress can contribute to successful treatment and your doctors may have been trying to help you manage your stress by avoiding a workplace that you obviously did not like.
 
As to your issue of probationary status, I would be surprised if an MSPB administrative judge questioned jurisdiction without a good basis for doing so.  While I understand that you had 18+ years of service, was there any break in the service before you were hired by the agency that you had so many difficulties with?  
 
The following website might provide some insights on your status and whether you had proper jurisdiction before the MSPB.   http://www.fedsmith.com/article/1552/revisiting-probationary-period.html#   Jurisdiction is a very preliminary step and even if the AJ found that there was jurisdiction you still face a significant challenge in getting reinstated.  You are absolutely correct that the MSPB will issue an order on jurisdiction very early on in the process - apparently you agreed to a settlement before the AJ had to issue an order.  Finally, even if you did not have proper jurisdiction before the MSPB you still had the ability of raising a claim in the EEO forum. 
 
BTW, paragraph breaks are not your enemy.  It's very difficult to read your postings because they are such huge blocks of written material. 
Cancer  
#9 Posted : Wednesday, January 12, 2011 11:14:41 PM(UTC)
Cancer

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Oosik, I guess you're the authority on cancer, too. I think I know a little about it after going through chemo, radiation, many major surgeries, and all of the side effects. Again, I was a reinstated employee who had done my career tenure in the same job, same agency. As a reinstated employee, my prior probation should have counted toward completion of probation. They failed to count it.Cancer2011-01-13 08:46:51
CancerfromIRS
Cancer  
#10 Posted : Thursday, January 13, 2011 1:14:24 AM(UTC)
Cancer

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Thanks, Freeageless, for believing me, since it's all true - I told MSPB I was willing to take a lie detector, but I was never given an opportunity to present my case.   Again, thank you for believing since I have to admit, if I had not lived this, I don't know if I'd believe it myself. Incredibly, I had witnesses who could backup just about every detail of my story, but they never had an opportunity to testify.Cancer2011-01-13 10:10:55
CancerfromIRS
StellaMaris  
#11 Posted : Thursday, January 13, 2011 1:48:22 AM(UTC)
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After experiencing the MSPB and the alleged "judges", I concluded that these people are not really judges (as we all know) but rather arbitrators who think they are judges.  I experienced Judge Raphael Ben Ami who is one dispicable character - rude, ignorant, a bully, inconsistent, and definitely in bed with management.
 
We are "judged" before we even step foot into the courtroom.  I think the most dispicable experience I had with Ben Ami is when he would sustain the agency's objections and smile at me asserting his power.  Then when I objected, he would smile when he overruled.
 
So Cancer, I too believe you.  I had first hand experience with this broken system that fails.  I was lucky.  I found another job just before my six months unemployment ran out.  I know the former agency was set to destroy me in every way they could.  First they tried to block my unemployment and lost.  The state did not buy into their accusations to cause me to lose my job.  Then they tried to block my obtaining a new job and it didn't work.  Then they tried to have me lose my retirement and benefits and lost with that too.  Then they tried to block my HSPD badge.  And more recently, they tried to bring criminal charges against me and that didn't work either.
 
There are many dispicable human beings that we encounter.  Day in and day out we fall victim to the corruption.  MSPB tops the list.  OSC comes in second - or maybe it's the other way around?  First OSC and second MSPB.
 
BTW, Scott Bloch is due for senting this month, January 20th.  He'll most likely get a slap on the hand.  Would you believe that his website requested donations to deal with his legal fees?  Where was he when so many of us needed his help and intervention?
Great Spirit, let me not judge another until I have walked in his moccasins a moon or two.
Oosik  
#12 Posted : Thursday, January 13, 2011 2:05:41 AM(UTC)
Oosik

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Cancer,
 
I never claimed to be an authority on cancer - I only stated that I was unaware of such stress induced cancer.  Your claim that the IRS gave you cancer because you had a difficult work environment is frankly absurd but if you have medical studies that show such causation, please share it with us. As a teenager I had a horrible case of acne - didn't make me an authority on acne and despite my having acne only when I began to attend high school, I don't think high school caused my condition. 
 
This is one more thread that you have essentially hijacked with your lengthy stream of conciousness postings.  But, you still failed to respond to my question as to your break in service.  You would also have to address the appointing authority that put you back into your position. 
 
Even a former employee who had decades of experience will generally still be treated as a probationary employee under 5 CFR 315.802a if there is a break in service for more than 30 days.   My guess (I know, more wild speculation) is that you had a break in service that was considerably longer than 30 days and that your new job was not given to you based on a Reemployment Priority List (5 CFR 315.801.c.) that would provide another exception for requirement of a probationary period.
 
You also seem to think it is a foregone conclusion that if you somehow establish MSPB jurisdiction that you would ultimately prevail on the merits of your case.  You have not, however, stated what the basis was for your termination from your position.  Obviously if you were just hired it's not likely that you were then immediately fired for a protected EEO status.
 
Free, glad to see that you are so positive about a senior level management official regaining her position.  I would have thought that you would have found fault in reinstatement of an SES employee.  Given her former high level in the Park Service, she has undoubtedly had a number of EEO complaints directed against her.  Interestingly, the Court of Appeals for the Federal Circuit did sustain 3 significant charges of misconduct against her.
Cancer  
#13 Posted : Thursday, January 13, 2011 2:24:51 AM(UTC)
Cancer

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Again, Oosik, you don't know what you're talking about. The 30 day rule applies only to those who have not completed their career tenure in the same job, same agency. The words "contained or is followed by" were specifically put in the law by Congress to include 2 types of employees as having rights - both career tenured employees who return to the same job, same agency, and career conditional employees (As the career conditional employee who has not yet earned their tenure, another requirement is that they must have current continuous service without a 30 day break toward the 3 year continuous service requirement for career tenure).   OPM's guidance to job applicants repeats this law, yet they misclassify people (a horrific mistake since they are illegally stealing their due process rights).   A well-known lawyer in Washington who has years of experience has confirmed the fact that I was reinstated and nonprobationary. In fact, even the MSPB has ruled in favor of a reinstated employee - this guy was even gone for longer than 3 years, yet he still won at MSPB - again, they discriminate.     Everyone else I know who was reinstated within 3 years at IRS was treated as nonprobationary - even the on-the-job instructor told me I was not on probation, and the union agreed. A ruling at the point when I filed the grievance (my first grievance ever, with 18 1/ years of nothing but excellent reviews) would have prevented a lot of stress and grief when they terminated me and another excellent coworker at the very end without cause or warning (the real cause, I found out after settlement, was to get their own unqualified families hired).   They even admitted in an email that the reason was not performance as they tried to claim at the very last minute.   Had there been someone to correct OPM's misclassification at that time, it would have prevented a lot of stress and grief. An independent party should have forced OPM to abide by the laws of Congress and their own written guidance to reinstatement applicants - instead, there was no one to make them accountable. Many people have this question, and OPM won't answer it - for example, it their spouse is relocated, will they lose their career tenure by leaving for a short time and applying back? OPM needs to be held accountable for following their own guidance to employees and reinstatement applicants.Cancer2011-01-13 10:48:24
CancerfromIRS
Cancer  
#14 Posted : Thursday, January 13, 2011 2:30:55 AM(UTC)
Cancer

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Posts: 317

Thank you, Stella Maris, I'm glad you found a job. I don't even have the clean sf-50 they promised me at settlement - apparently it would cost more major $$$$$$ to enforce it.   I would never have believed this kind of corruption exists had I not lived it - but it's a sign of the times - Madoff, Wall St, the Catholic Church, the US government etc.. etc.. Just about every institution in society has proven to be corrupt in the past few years, so I've lost faith in institutions, but my illness has taught me there is still good in people. Cancer2011-01-13 10:39:04
CancerfromIRS
freeageless  
#15 Posted : Thursday, January 13, 2011 3:11:07 AM(UTC)
freeageless

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Oosik, I believe in fair play no matter what grade level they are. Unfortunately, MSPB and OSC have basically been puppets for the agency. They by and large rubber stamp whatever the agency wants with a few exceptions. I do note that you used to be a strong supporter of affirmative action. I see that you have now changed your mind and (as shown below) you now appear to oppose affirmative action. It looks like a leopard sometimes changes its spots. Perhaps one day, you may even find out that there is such a thing as stress induced cancer.

Quote from Oosik

"Affirmative action programs, whether created by Congress or the courts, have the potential if not the likelihood of putting people who are not the best qualified into positions that others are better able to perform."

freeageless2011-01-13 11:40:28
Oosik  
#16 Posted : Thursday, January 13, 2011 3:54:06 AM(UTC)
Oosik

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Free,
 
I have not changed my opinion on affirmative action.  I have always thought that it creates an inference that people are at certain positions because of their protected status even though I think most could have gotten to where they are at by pure merit.  If you have ever thought that I was in favor of reverse discrimination I can only imagine that you misunderstood my sarcasm directed at BIG - since anything involving BIG seems to get you all excited.
 
Cancer, the CFR provisions seem to be pretty clear to me.  Apparently they were clear to the MSPB as well.  You're the one that appears to be disconnected.  From a logical standpoint, I can understand why an agency (perhaps in the face of a RIF) creates a Reemployment Priority List so they can hire back experienced employees without going through the agony of hiring someone off the street.  While, as I understand the rules, only former employees of that agency can be on the list, you believe that just being formerly employed by that agency is sufficient as if you were on such a list and that is not the case. 
 
Consider if an employee from Agency ABC gets fired/departs for the private sector after working there for 5 years.  5 years later he reapplies to the same agency under an open announcement and is hired.  My position is that the employee has to perform another probationary period while you believe they don't have to complete anything.  You may all think that the MSPB is a bunch of crooks but they do know their jurisdictional boundaries pretty well.  Also, if you can't get a favorable decision from this new MSPB board with labor loving board members then you really, really don't have a case.
 
Stella - welcome back to the forum.  Apparently you are as feisty (and as wrong) as ever. 
Cancer  
#17 Posted : Thursday, January 13, 2011 4:11:57 AM(UTC)
Cancer

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Again, Oosik, you're missing the point. I was on the list, and I was in fact reinstated to the same job, same agency. If OPM doesn't follow their own written guidance to reinstatement applicants, guidance which follows the laws of Congress, what rules do they follow?    OPM and MSPB do not abide by the laws of Congress, and there's no accountability for these violations.   No one can even get an answer out of these 2 agencies - they are completely useless - it would save so much money to eliminate both agencies - both are totally useless - and start again. Cancer2011-01-13 12:17:27
CancerfromIRS
freeageless  
#18 Posted : Thursday, January 13, 2011 4:18:38 AM(UTC)
freeageless

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Oosik wrote:
Free,
 

I have not changed my opinion on affirmative action.  I have always thought that it creates an inference that people are at certain positions because of their protected status even though I think most could have gotten to where they are at by pure merit.  If you have ever thought that I was in favor of reverse discrimination I can only imagine that you misunderstood my sarcasm directed at BIG - since anything involving BIG seems to get you all excited.

 

Cancer, the CFR provisions seem to be pretty clear to me.  Apparently they were clear to the MSPB as well.  You're the one that appears to be disconnected.  From a logical standpoint, I can understand why an agency (perhaps in the face of a RIF) creates a Reemployment Priority List so they can hire back experienced employees without going through the agony of hiring someone off the street.  While, as I understand the rules, only former employees of that agency can be on the list, you believe that just being formerly employed by that agency is sufficient as if you were on such a list and that is not the case. 

 

Consider if an employee from Agency ABC gets fired/departs for the private sector after working there for 5 years.  5 years later he reapplies to the same agency under an open announcement and is hired.  My position is that the employee has to perform another probationary period while you believe they don't have to complete anything.  You may all think that the MSPB is a bunch of crooks but they do know their jurisdictional boundaries pretty well.  Also, if you can't get a favorable decision from this new MSPB board with labor loving board members then you really, really don't have a case.

 

Stella - welcome back to the forum.  Apparently you are as feisty (and as wrong) as ever. 


Oosik, if most of those affirmative action babies could get where they are at without affirmative action programs, (your words) why does the government have affirmative action ie., preferential treatment programs?? I must admit that I do get upset about BIG things, but isn't that a whole lot healthier than getting upset about small things. I would rather sweat the BIG stuff than the small stuff.freeageless2011-01-13 12:28:42
StellaMaris  
#19 Posted : Thursday, January 13, 2011 8:31:13 AM(UTC)
StellaMaris

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Oosik, in all the time we've been on this blog, you have yet to prove me wrong and prove yourself right.  Speculation.  Since you are sensitive to where I've been....check out my postings.  I've been here.  OMG, did I just prove you wrong?  Wow!

Cancer, I agree with you about stress.  Much cancer is caused by hormone levels, particularly in women and possibly with men also.  Oosik before you disagree, check the facts. 

I had cancer in 2001.  It was hormone driven cancer. I know it was driven by stress, remarkably, not because of Federal employment.

My agency was not gracious with me.  My SF 50 clearly says that I was removed.  However, things worked out and I landed another job.  Been there three years now.

I'm not sure what Oosik is stating I was wrong about - Ben Ami?  Corruption?

Cancer - the Catholic church has their problems.  So do other churches and organizations.  The Catholic church consists of members like me.  The members are not all corrupt.  There are individuals who should have never been priests.  They are the ones and those who covered up for them are the evildoers.  It's not every Catholic.  I would have never had the wonderful parochial education that I had if it wasn't for those unselfish women who became nuns and received nothing in return - no salaries specifically.  There are protestant minister's wives who killed their husbands;
There are corrupt rabbis; there are corrupt ministers who thrive on donations and buy several homes, cars and wardrobes. 

n 2008 there were 1.166 billion baptized Catholics worldwide, an
increase of 19 million (up 1.7%). Taking into account the increase in
the world’s population to 6.7 billion, there is a slight growth in the
percentage of Catholics who make up the global population (from 17.33% to 17.40%).   We're not all corrupt.

StellaMaris2011-01-13 16:37:43
Great Spirit, let me not judge another until I have walked in his moccasins a moon or two.
Cancer  
#20 Posted : Thursday, January 13, 2011 8:45:49 AM(UTC)
Cancer

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Posts: 317

Stella Maris, I also grew up in a Catholic home, went to Catholic school, and have attended Mass every week for all of my life. I realize that there are many good priests, and I feel very bad for those who are unfairly labelled - the majority are very good people, so it's very sad for them, taking abuse for crimes they have not committed.   I've always supported the nuns - I think no one stands up for the good work they do (Although I did have a couple of doozers in Catholic school, most were very good people and not rewarded for their good work). Unfortunately there's been bad leadership higher up in the Church -like at IRS, they were just moving the bad ones (rather than removing them), with many innocent victims- children especially - this is the worst of it!. The mutiny manager (at IRS) was also removed from his position for 5 years back when management was good, but current (incompetent and corrupt) management just moved him back to management, and back to a new location, with new victims. In fact, his entire group mutinied against him, forcing him out, but current management just moved him back after 5 years.   He can't even keep his employees straight - I suspect drugs, but I don't have proof - I only raised the issues I could prove, and there were many, but I never got to present my case.   I see many parallels to the management in the Catholic church. Both are a tragedy.Cancer2011-01-13 17:02:14
CancerfromIRS
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