The Dewey Publications Podcast

Several items of interest are discussed this week by Peter Broida: Southerland v. Dept. of Defense, 2014 MSPB 88 (Dec. 18, 2014) (the effect of a mixed-motive finding on entitlement to counsel fees if the appellant receives no affirmative relief from the Board); Rios v. Dept. of Commerce, NY-1221-10-0261-B-1 (NP Dec. 8, 2014) (IRA case: development of a neutral means of assessing a whistleblower for a noncompetitive promotion earlier denied through an retaliatory performance appraisal); Complainant v. Postmaster General, EEOC 0120132452 (Nov. 18, 2014) (coverage of Title VII for a complainant asserting discrimination on the basis of remarks directed against him by reason of his perceived sexual orientation)

Several items of interest are discussed this week by Peter Broida: Chief Executive Officer v. Dept. of Labor, EEOC 0120141656 (Oct. 16, 2014) (contractor's employees as legitimate complainant as to discrimination or reprisal from a government employee responsible for oversight of the contract); Talton v. VA, MSPB AT-0707-15-0094-J-1 (Nov. 19, 2014) (Initial Decision) (an example of a case involving removal of a VA SES member under the expedited procedures statutorily established in 2014 and applied only to the VA); Berlin, et al. v. Dept. of Labor, ___F.3d___ (Fed. Cir. Nov. 20, 2014) (upholding ALJ furlough: discussion of the statutory and regulatory basis for the furloughs; affirmation of agency discretion on furlough-induced financial adjustments among major operating components); Ramos v. DHS, AT-0752-13-0637-I-1 (NP Nov. 21, 2014) (dissent by Vice Chairman Wagner) (disagreement between majority and dissenting opinions concerning burdens of proof relative to comparators offered to demonstrate disparity in treatment of individuals charged with similar offenses)

Several items of interest are discussed this week by Peter Broida: Linder v. Dept. of Justice, 2014 MSPB 84 (Nov. 7, 2014) (IRA case: meaning of 5 USC 2302(b)(9), involving reprisal for the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation); Miller v. FDIC, 2014 MSPB 83 (Nov. 6, 2014) (non-retroactive effect of 5 USC 2302(b)(9) under the 2012 WPEA); Hardy v. USPS, PH-0752-14-0515-I-1 (NP Nov. 7, 2014) (issue of sexual orientation discrimination as an affirmative defense under the Civil Rights Act and prohibited personnel practice provisions of the Reform Act); Dept. of Agric., Forest Service and NFFE Local 5300, 68 FLRA 90 (Nov. 7, 2014) (importance of properly structured exceptions); Complainant v. Dept. of Interior (EEOC 0120131556 Oct. 9, 2014) (front pay liability; assignment of complainant to a new supervisor)

Several items of interest are discussed this week by Peter Broida: Complainant v. GPO (EEOC 0120132618 Oct. 6, 2014) - The EEO process is not the place to challenge wage rates set through collective bargaining; GSA and AFGE Council of GSA Locals, 68 FLRA No. 10 (Oct. 30, 2014) - Why it is important to carefully draft stipulated issues; Mangano v. VA, SF-1221-04-0234-B-9 (NP Oct. 31, 2014) Post hoc rationalizations in the context of agency clear and convincing evidence in whistleblower cases; Hawkes v. Dept. of Agric., SF-0752-13-0338-C-2 (NP Nov. 3, 2014) - Recision of Board settlements and the tender back doctrine; Johnson v. VA, 2014 MSPB 82 (Oct. 30, 2014) - Interplay of elections of remedies and res judicata or claim preclusion); and Yee v. Dept. of Navy, 2014 MSPB 81 (Oct. 30, 2014) - Organizational economics and the efficiency of the service standard applied to furloughs.

Several items of interest are discussed this week by Peter Broida: GAO Report on Federal Paid Administrative Leave (Oct. 2014); Wrocklage v. DHS, Fed. Cir. 2013-3159 (Oct. 21, 2014) (When is a disclosure of protected information really not a disclosure for purposes of a disciplinary action?); Koletar v. USPS, SF-0752-12-0543 (NP Oct. 17, 2014) (penalty determinations for indefinite suspensions based on medical inability to perform full job functions); MSPB Final Regulations: removals and transfers of SES members of the Department of Veterans Affairs (Fed. Reg. Oct. 22, 2014)

Several items of interest are discussed this week by Peter Broida: Colbert v. VA, 2014 MSPB 80 (Oct. 16, 2014) (IRA whistleblower reprisal: liberal pleading standard applied as to the knowledge requirement and clarification of whether a constructive adverse action will be treated as an IRA case when it is initiated with OSC and then appealed to the Board). SPORT and Dept. of Air Force, Edwards AFB, 68 FLRA No. 2 (Oct. 14, 2014) (furloughs: the "necessary functioning" exception excused an agency from delaying a furlough pending the outcome of impact bargaining). New OPM Publication: Fostering Fair Employment Opportunities for Applicants Who are Unemployed or Facing Financial Difficulty Through No Fault of Their Own: What hiring officials need to know.

Several items of interest are discussed this week by Peter Broida: Complainant v. Berrien, EEOC 0120092463 (Aug. 28, 2014) (nonselection reprisal claim based on prior resort to private sector EEO complaint processes); Jones v. MSPB, 2014-3072 (Fed. Cir. Oct. 8, 2014) (grievance/MSPB elections of remedies under 5 USC 7121); McNab v. Dept. of Army, 2014 MSPB 79 (Oct. 7, 2014) (burden of proof as to comparability of penalties defense); Gant v. DHS, DA-0731-13-1251-I-1 (Nonprecedential Oct. 8, 2014) (unwise use of suitability language in a nonselection justification); Gaddy v. Dept. of Labor, AT-0432-12-0550-I-1 (Nonprecedential Oct. 8, 2014) (cautionary words as to need to avoid prospective waivers of EEO rights in last chance or other settlements)

Several items of interest are discussed this week by Peter Broida: Alvara v. DHS, 2014 MSPB 77 (Sept. 29, 2014) (the Special Panel's decision affirming the EEOC's position on accommodation of work schedule assignments); AFGE Local 44 and Dept. of Agriculture, FSIS, 67 FLRA721 (Sept. 30, 2014) (the doctrine of functus officio and arbitrators' responsibilities to entertain counsel fee petitions); NASA, Goddard Space Flight Center and Robert Walsh and AFGE, 67 FLRA No. 150 (Sept. 19,. 2014) (the contract bar rule and the timing of decertification petitions); Dissents and concurrences of FLRA Member Patrick Pizzella; Appointment of Jenny Yang as EEOC Chair.

Several items of interest are discussed this week by Peter Broida: Teufel v. Dept. of Army, DE-1221-12-0151-W-3 (Nonprecedential 9/19/2014): intersection of whistleblower reprisal allegations and fitness for duty exams leading to clearance revocation and discharge from federal service. Dale v. Dept. of Treasury, CH-0752-10-0300-I-8 (Nonprecedential 9/18/2014): discussing the nexus necessary to remove an employee for off-duty conduct predating his agency employment. DHS, C&BP and NTEU Chapter 160, 67 FLRA 688 (9/19/2014): overtime distribution clauses, the Back Pay Act, and mitigation of damages.

Several items of interest are discussed this week by Peter Broida: Report of the EEOC Office of Federal Operations (September 2014) (the most common errors agencies make when they review and reject EEO complaints); Brown v. Dept. of Defense, ___MSPR___, 2014 MSPB 74 (2014) (more guidance, or lack of it, on penalty review in clearance-based removals and indefinite suspensions); Avent v. Dept. of Labor, CB-7121-14-0008-V-1 (Nonprecedential 9/10/2014) (the importance of supplying a proper record to the Board in arbitration review proceedings)

Several items of interest are discussed this week by Peter Broida: Eller v. OPM, 2014 MSPB 72 (Sept. 5, 2014): reflections on attempting to establish retirement benefit entitlements through MSPB settlements. Reflections on the Board's Mediation Appeals Program: assessment of practitioners' evaluations of the Program over the past few years. Reflections on constitutional law from a Board perspective: Is the First Amendment a law implementing or concerning merit system principles in a Special Counsel prohibited personnel practice corrective action case? The interesting separate opinions of Chairman Grundmann and Member Robbins. Special Counsel ex rel. Cefalu v. Dept. of Justice, CB-1214-13-0187-T-1 (NP Sept. 8, 2014).

This week Peter Broida discusses six cases: Rassenfoss v. Dept. of Treasury, 2014 MSPB 68 (Aug. 22, 2014): USERRA: escalator clause applies to benefits that would have been earned to a reasonable certainty, overruling prior law precluding application of the escalator clause to discretionary benefits. Putnam v. DHS, 2014 MSPB 70 (Aug. 27, 2014): (a retirement does not become involuntary because it follows on the heels of an indefinite suspension caused by a clearance suspension. Camacho v. Dept. of Army, SF-0752-10-0967-I-4 (NP Aug. 25, 2014): reaffirming the law that an appropriate accommodation for a disability will rarely if ever include a switch in supervisors. AFGE Local 2571 and VA Waco Regional Office, 67 FLRA 593 (Aug. 28, 2014): an employer's negligence constitutes the lack of good faith necessary to require liquidated damages as a component of an FLSA overtime pay award. SSA, ODAR and AFGE Local 3506, 67 FLRA 597 (Aug. 28, 2014): arbitrator's direction of a retroactive promotion in part based on a contractual procedural violation: to overcome the award on a management rights theory, the agency must show not only that the contract provision relied upon by the arbitrator constitutes a violation of management rights, but that the provision was not negotiated as an exception to management rights as either a procedure or an arrangement (impact bargaining). NTEU v. FLRA, ___F.3d___ (D.C. Cir. June 17, 2014): for employees in the competitive service, the union does not have the right to have a representative present at an OPM suitability investigation of an employee, even if the OPM inquiry is delegated to agency management to conduct.

This week Peter Broida discusses seven cases: Munoz v. DHS, 2014 MSPB 66 (Aug. 20, 2014): the Board determines it will not consider disparate treatment or penalty comparability issues in defense to an indefinite suspension based on suspension of a required security clearance. -- Ryan v. DHS, 2014 MSPB 64 (Aug. 18, 2014): the Board decides that, unless there is an agency regulation requiring it, the Board will not consider issues of mitigation of a penalty relative to an indefinite suspension based on suspension of a required security clearance. -- Davis v. SSA, CB-7121-14-0015-V-1 (Aug. 21, 2014): the Board reaffirms that time-served suspensions are not appropriate in arbitration cases reviewing adverse actions, but the Board allows for the possibility that an arbitrator can properly justify a time-served suspension. The Board reviewed the existing caselaw from both the Board and the Federal Circuit, but the Board did not supply a factor analysis that arbitrators could follow when they decide when a time-served suspension is appropriate. -- Welhouse v. Dept. of Agric., CH-0752-12-0387-I-1 (NP Aug. 19, 2014): the Board, considering an involuntary retirement based on refusal to accept a geographical reassignment, applies the burden of proof, requiring a showing of a legitimate management justification of the reassignment, developed under Miller v. Dept. of Interior, 120 MSPR 426 (2013). -- Howerton v. Dept. of Defense, PH-0752-13-0292-I-1 (Aug. 21, 2014): considering a defense of disparate treatment of comparator employees, the Board acknowledges that the agency is not responsible for information on offenses unknown to the deciding official and not recorded in agency personnel files; but the Board evaluates information developed during the Board hearing and considers the assessment of the deciding official as to whether, with knowledge of the comparators' situation, the discipline of the appellant was still deemed appropriate. - Butler v. Dept. of Treasury, AT-0752-11-0530-C-1 (NP Aug. 19, 2014): when the agency breached a settlement by disclosing an underlying past personnel action to appellant's prospective employer, and the appellant breached the agreement by not following the agreed-upon procedure for referring prospective employers to a designated phone number to obtain information, the Board applied what it styled as the doctrine of "unclean hands" to deny the appellant any relief. -- Solomon v. Dept. of Agric., ___F.3d___ (D.C. Cir. Aug. 15, 2014): reversing a grant of summary judgment to the government, the court determined that OPM policies require agencies to considering scheduling changes sought by employee to accommodate disabilities.

Carney v. VA, 2014 MSPB 62 (Aug. 8, 2014): the Board defines IRA coverage for reprisal cases based on participation in the grievance process, defined at 5 USC 2302(b)(9). Davis v. Dept. of Interior, AT-0752-09-0860-E-1 (NP Aug. 15, 2014): EEOC remand clarifying the "convincing mosaic" approach to proof of discrimination through circumstantial evidence. Alvara v. DHS, 2014 MSPB 63 (Aug. 13, 2014): EEOC remand and referral to Special Panel for consideration of the implications under civil rights and civil service law of whether agencies are required to accommodate disabled employees through modification of work rotation schedules that are ordinarily considered a basic element of a job (law enforcement officer subject to assignment to work on the night shift). Alvara v. DHS, EEOC 0320110053 (July 10, 2014) (referred to as Johnson v. DHS in the podcast): EEOC decision modifying the law to state that work schedules and job rotations are subject to accommodative requirements. MSPB Rulemaking: Procedures for Implementing the provisions allowing for expedited removal or "transfer" of SES members of the Department of Veterans Affairs: in accordance with the statutory mandate, the Board establishes a short period for appeal, a short period for a decision by an administrative judge, and eliminates the ability of review of the judge's decision by the MSPB. Dept. of Navy, Marine Corps and AFGE Local 1786, 67 FLRA 542 (2014) (over the dissent of Member Pizzella, the Authority reaffirms the ability of a single matter, e.g., a change in working conditions, to be protested through the ULP process as a statutory violation and through the contract grievance process as a contract violation.

This week Peter Broida discusses four cases: Gingery v. Dept. of Defense, 2014 MSPB 59 (7/28/2014): VEOA reconstructed positions—the agency is within its rights, if after it reconstructs a selection process first run some years ago, and when it then makes a tentative job offer to the employee, to require the employee to qualify for a security clearance on the same (present, not past) terms of any current employee. Benton-Flores v. Dept. of Defense, 2014 MSPB 60 (July 31, 2014): whistleblowing in the normal course of duties—the Board recognized that disclosures are now protected under WPEA, but the Board held that the statutory provision, 5 USC 2302(b )(8), prohibits as to those disclosures "reprisal for the disclosure," rather than reprisal "because of" disclosures made in circumstances other than the normal course of duties. The Board implies but did not explain that there must be established unlawful motivation. Tanner v. Dept. of Defense, DC-0752-12-0209-A-1 (Nonprecedential 8/1/2014): considering an approving structured counsel fee agreements setting one rate for the client and permitting recovery at a higher rate from the agency when the appellant prevails. Thompson v. Dept. of Navy, DC-0752-10-0110-X-1 (Nonprecedential July 29, 2014): noting the consequences of a clean paper agreement precluding any agency employee from providing unfavorable information about the appellant. SSA and AFGE Local 1923, 67 FLRA 129 (July 30, 2014): determining that under the particularized need test, agencies may reject without themselves narrowing overbroad information requests.