The Dewey Publications Podcast

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)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 PizzellaAppointment 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 contrac

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 suspe

This week Peter Broida discusses five cases and MSPB Rulemaking: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 accomm

This week Peter Broida discusses five 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 approv

This week Peter Broida discusses four cases:Arnold v. MSPB, 2014-3073 (Fed. Cir. July 24, 2014 NP): timing of petitions to enforce settlements: use of notice of compliance to set a definite time limit for the petition.Gajdos v. Dept. of Army, 2014 MSPB 55 (July 22, 2014): furloughs: agency policy limitations on the exercise of discretion by agency deciding officials in furlough cases do not violate constitutional due process if the policies enforced and the discretion exercised is fair and serves financial goals to be achieved by the furlough.Weathers v. Dept. of Navy, 2014 MSPB 57 (July 24, 2014): furloughs: distinctions in the treatment of furloughed employees can be justified by legitimate organizational and geographical distinctions.Kelly v. Dept. of Army, 2014 MSPB 58 (July 24, 2014): furloughs: agencies may decide to furlough some employees and schedules others for overtime if the management decision was a resolution approach to its financial restrictions and if the agency applies its determination as t

This week Peter Broida discusses five cases from the MSPB:Gallegos v. Dept. of Air Force, 2014 MSPB 53 (Precedential July 17, 2014) - The Board defines the conditions under which employees can be removed when they do not accept reassignments based on mobility agreements constituting conditions of employment.Stockton v. Dept. of Interior, SF-0752-13-0434-I-1 (NP July 18, 2014): some considerations about practitioners' informal adjustment of deadlines for discovery responses.Richard v. USPS, DE-0752-12-0398-I-1 (NP July 14, 2014): the Board applies a novel application of past discipline.Gomez v. Dept. of Agriculture, DE-1221-13-0021-W-1 (NP July 14, 2014): a personnel action, for purposes of whistleblower jurisdiction in an IRA case, does not include negative statements about an appellant without some impact on the appellant's continuing employment or employability.Erickson v. USPS, ___F.3d___ (Fed. Cir. 2014 Precedential): on review of an application for counsel fees, the court decides that the Back Pay Act d

This week Peter Broida discusses five cases: MSPBPrato-Easterling v. OPM, AT-844E-13-0352-I-1 (Nonprecedential July 7, 2014): settlements implying retirement eligibility do not control if medical evidence does not demonstrate the required degree of disability.Garay v. Dept. of Air Force, DA-0351-13-0043-I-1 (Nonprecedential July 11, 2014): a substantive error in the application of RIF procedures will result in reversal of the RIF; the harmful error rule is inapplicable.Archerda v. Dept. of Defense, 2014 MSPB 49 (Precedential July 11, 2014): describes the ability of an agency to require an employee to provide medical information pertaining to his fitness to occupy a position with medical standards.FLRADHS, ICE & AFGE Council 118, 67 FLRA 501 (2014): considers, in the context of review of an arbitrator's award, the degree of bargaining discretion as to agency IT determinations made under the Federal Information Security Management Act.Dept. of Air Force, Sheppard AFB and AFGE Local 779, 67 FLRA 509 (2014):

This week Peter Broida discusses three cases:Donahoe v. Postmaster General, EEOC 0720130009 (May 14, 2014): nonselection for management position: effect of retirement on back pay, limitations on use of front pay; compensatory damages.Brooks-Hughes v. Dept. of Justice, MSPB DC-0752-12-0803-I-1 (Nonprecedential July 2, 2014): removal: nexus–application of agency rule establishing prohibited relationships.Clegar v. USPS, MSPB DA-0752-12-0107-A-1 (Nonprecedential July 2, 2014): timeliness of PFR: problem with delay between Board receipt of PFR and date of metered mail; degree of specificity of description required to establish timely mailing.

This week Peter Broida discusses several cases from the MSPB and EEOC:MSPBMann v. Dept. of Navy, SF-0752-11-0736-C-1 (June 24, 2014): need for evidence, not just representatives' statements, to form the basis for initial decisions in compliance cases reviewing allegations of violations of settlement agreements.Abbott v. US Postal Service, 2014 MSPB 47 (June 23, 2014): the Board establishes a clear statement of what constitutes enforced leave as an adverse action indisputably within the Board's jurisdiction, distinguished from constructive suspensions, where proof jurisdiction must be established by the appellant's preponderant evidence.EEOCComplainant v. Hagel, 0120084008 (June 6, 2014): EEOC makes clear that agency representatives are not be involved in or interfere, intentionally or otherwise, in the development of evidence by an investigator prior to the case going to a hearing. Sanctions were imposed based on the conduct of counsel.

This week Peter Broida discusses several cases from the MSPB and FLRA:Buelna v. DHS, 2014 MSPB 45 (June 19, 2014): constitutional due process: indefinite suspensions based on suspension of security clearance.Flores v. Dept. of Defense, 2014 MSPB 46 (June 19, 2014): extent of Board review as to removals based on loss of the ability to hold a sensitive position.Modeste v. VA, 2014 MSPB 44 (June 19, 2014): scope of competition under VEOA; contractual limitations; meaning of "vacant" positionKing v. VA, CH-0752-12-0039-C-1 (June 16, 2014): electronic filing–untimely filing of PFR by waiting to start until before the deadline and then completing the PFR 81 minutes after the filing deadline.Dept. Of Justice, Bureau of Prisons, MCC New York and AFGE Local 3148, 67 FLRA 442 (June 19, 2014): ULP/contract election of remedies and dissent within the Authority.

Three cases are discussed:Morales v. Gotbaum, U.S. District Court, District of Columbia, #10-0221 (May 19, 2014)Complainant v. Holder, EEOC 0720120032 (May 1, 2014)Complainant v. McHugh, EEOC 0720130033 (April 24, 2014)

Two cases are discussed:Brown v. Dept. of Interior, 2014 MSPB 40 (2014)Dept. of Homeland Security v. FLRA, No. 12-1457 (D.C.Cir. June 3, 2014)