The Dewey Publications Podcast

Several items of interest are discussed this week by Peter Broida:Sabio v. VA, 2017 MSPB 4 (Jan. 6, 2017) (use of administrative defense orders by AJs);Little v. USPS, 2017 MSPB 5 (Jan. 6, 2017) (timeliness of appeal; delayed receipt of final agency decision);Delorme v. Dept. of Interior, 2017 MSPB 2 (Jan. 4, 2017) (acceptance of settlements in appeals involving jurisdictional disputes).

Several items of interest are discussed this week by Peter Broida:Wilson v. Dept. of Navy (Fed. Cir. 2015-3225 Dec. 7, 2016) (USERRA challenge to employment action resulting from revocation of security clearance);DHS, C&BP v. AFGE Local 3725, 70 FLRA No. 16 (Dec. 2, 2016) (likelihood of a future request for public comment on the criteria for counsel fee awards in cases within the Authority's jurisdiction);Nielsen v. Hagel (4th Cir. 14-1646 Nov. 15, 2016) (lack of authority of a district court to remand an EEO case to an agency because of a processing error).

Several items of interest are discussed this week by Peter Broida:Morris v. Dept. of Army, 2016 MSPB 37 (Oct. 31, 2016) (format requirements for PFRs and related submissions);Hess v. USPS, 2016 MSPB 40 (Nov. 18, 2016) (reaffirming the availability of compensatory damages in MSPB cases);Hester S. v. Yang, Chair, EEOC (EEOC 0120121983) (Oct. 24, 2016) (revising the law concerning inclusion in settlements of OWBPA language).

Several items of interest are discussed this week by Peter Broida:Gardner v. VA, 2016 MSPB (Oct. 7, 2016) (discrimination and reprisal affirmative defense analytics);Tamara G. v. Yang, Chair, EEOC (EEOC 0120150734) (August 4, 2016) (limitations on the levels of compensatory damages awards);Hau v. DHS, 2016 MSPB 33 (Sept. 19, 2016) (collateral estoppel applied to jurisdictional issues);NAIL, Local 6 and Dept. of Defense, 69 FLRA 573 (Sept. 20, 2016) (counsel fee criteria applied to contract violations);AFGE Local 1815 and Dept. of Army, 69 FLRA 621 (Sept. 28, 2016) (differences in approaches to policy issues among the Authority members);AFGE Local 1992 and Dept. of Defense, 69 FLRA 567 (Sept. 20, 2106) (differences in approaches among the Authority members concerning use of arbitration and Authority processes to resolve complex EEO issues).

Several items of interest are discussed this week by Peter Broida:AFGE Local 2266 and DHS, CBP, 69 FLRA 525 (Aug. 24, 2016) (revisiting and reaffirming the law governing "flagrant misconduct" of union representatives; Scere v. DHS (NP 0752 14 157 I 1) (failure to meet condition of employment: mitigation of removal to reassignment); Walls v. VA (NP DE-0752-13-0278-I-1) (Sept. 7, 2016) (enforcement action: difficulties presented by reliance upon agency counsel's statements as evidence of compliance); Tyner v. Dept. of Agric. (NP DC-0752-16-0098-I-1) (Sept. 7, 2016) (comparison of charges of falsification/misrepresention and lack of candor);Illiana S. V. Yang, Chair, EEOC (EEOC 0120123242) (July 11, 2016) (performance appraisal lowered in reprisal for use of leave as a disability accommodation).

Several items of interest are discussed this week by Peter Broida:Emanuele v. Dept. of Transportation (NP PH-0752-15-0539-I-1) (Aug. 19, 2016) (elections of remedies: MSPB/grievance);Goeke and Bottini v. Dept. of Justice (CB-0752-15-0228-A-1) (Aug. 12, 2016) (counsel fees);Roxane C. V. Carter, Secretary of Defense (EEOC 0120142363) (July 19, 2016) (discrimination based on pregnancy);Rosario-Fabregas v. MSPB (2015-3102 Fed. Cir. Aug. 16, 2016) (enforced leave; constructive suspensions and conditions placed upon return to work);Osman v. Dept. of Army (NP PH-0752-15-0030-I-2) (Aug. 11, 2016) ("conduct unbecoming." sex harassment, and Title VII burdens of proof).

Several items of interest are discussed this week by Peter Broida:Davis v. Dept. of Navy (NP DA-0752-14-0285-I-1) (July 5, 2106) (ex-parte communiations and post-reply interview by agency counsel);Mellick v. Dept. of Interior (NP SF-0752-16-01201-I-1) (July 8, 2016) (implications of agency breach of last chance agreement);Beg v. DHHS (NP DC-0432-13-3191-I-1) (July 5, 2016) (employee access to files and email to assist in the preparation of a reply to a proposed action);Morrison v. Dept. of Navy (NP PH-0752-14-0669-B-1) (June 28, 2016) (effect of incorrect information on retirement benefits from a supervisor in an involuntary retirement appeal);Nunnery v. Dept. of Agriculture (NP DA-0752-15-0378-I-1 (June 9, 2016) (ex parte communications: consideration by the deciding official of the appellant's lack of remorse);Rainey v. MSPB (2015-3234 Fed. Cir. June 7, 2016) (scope of "right to disobey" provisions of the 2012 WPEA);Geraldine G. v. Brennan (EEOC 0720140039) (June 3, 2016) (ADEA: effect of questions concerni

Several items of interest are discussed this week by Peter Broida:Gray v. MSPB (2015-3186 Fed. Cir. May 25, 2016) (NP) (WPEA protection for filing an EEO complaint);Turner v. VA (NP AT-4324-15-0675-I-1) (June 2, 2016) (USERRA shifting burden of proof);Vocke v. Dept. of Commerce (NP DC-1221-13-1266-W-1) (May 2, 2016) (whether a letter of counseling is a threatened personnel action under the WPA);Tartaglia v. VA (NP DC-0752-14-1108-I-1) (May 5, 2016) (permissible assistance by agency officials to individuals seeking agency employment);EEOC Issuance: "Employer-Provided Leave and the Americans with Disabilities Act" (May 9, 2016);Special Counsel ex rel. Klein v. VA (NP CB-1208-16-0023-U-1) (6/1/2016) (consideration of agency position during initial stay application).

Several items of interest are discussed this week by Peter Broida:Cahill v. MSPB (2015-3152 Fed. Cir. May 10, 2016) (IRA disclosures; specific notice of deficiencies required from MSPB or agencies in preliminary jurisdictional challenges);Lal v. MSPB & DHHS (2015-3140 Fed. Cir. May 11, 2016) (MSPB jurisdiction over appeals by employees appointed under specialized agency statutory authority permitting hiring without regard to civil service laws);Zygmunt v. Dept. of Navy (NP PH-0752-0292I-1) (5/13/2016) (knowledge of whistleblower disclosures gained by deciding official during an adverse action reply);O'Lague v. VA, 2016 MSPB 20 (May 11, 2016) (elements of material gain in a falsification charge; elements of a charge of lack of candor);Fargnoli v. Dept. of Commerce, 2016 MSPB 19 (May 6, 2016) (elements of a charge of lack of candor);Dept. of Defense, Scott AFB and ACT Chap 111, 69 FLRA 345 (May 3, 2016) (management rights defense to a grievance protesting failure of agency to follow its internal regulations

Several items of interest are discussed this week by Peter Broida:Bautz v. Dept. of Treasury (NP AT-1221-15-0577-W-1) (April 18, 2016)) (enforcement of a settlement release in an EEO case in a subsequent IRA appeal);Doe v. Dept. of Navy (AT-0752-15-0206-I-1) (April 21, 2106) (due process: incorporation by reference into a proposal of materials from an evidence file);Scarlet M., et al. V. Mabus, Secretary, Dept. of Navy, OFO 0120150940 (April 13, 2016) (lack of due care defense in a hostile environment case for harm already suffered by the complainants).

Several items of interest are discussed this week by Peter Broida:Miller v. FDIC (2014-3137 Fed. Cir. April 8, 2016) (VEOA: cancelation of vacancy announcement);Miller v. FDIC (2014-3146 Fed. Cir. April 8, 2916) (VEOA: consideration of applicant's education, skill, and experience);McCauley v. VA (NP CH-1221-14-0721-W-1) (Feb. 18, 2016) (whistleblower protection under 2302(b)(9): assisting others with complaints);DHUD and AFGE Council of HUD Locals 222, 69 FLRA 213 (Feb. 25, 2016) (dissent by Member Pizzella concerning lengthy arbitration and review processes)

Several items of interest are discussed this week by Peter Broida:Pirkkala v. Dept. of Justice, 2016 MSPB 16 (March 31, 2016) (election of remedies: untimely union contract grievance vs. timely Board appeal)Jenna P. v, Kerry, Secretary of State, 0120152941 (Jan. 28, 2016) (election of remedies: EEO complaint v. union contract grievance)Littlefield v. Dept. of Navy (NP AT-0752-15-0408-I-1) (Feb. 17, 2016) (settlement agreement zipper clauses; statements made during mediation)Batara v. Dept. of Navy, 2016 MSPB 15 (March 7, 2016) (marijuana use; mitigating factors)SSA v. Boini (CB-7521-13-0192-T-1) (March 22, 2016) (ALJ disciplinary complaint; general discussion of application of adverse action principles to ALJ cases)

Several items of interest are discussed this week by Peter Broida:Diaz v. Dept. of Treasury, (NP AT-0752-15-0471-I-1) (March 11, 2016) (spoliation of evidence; adverse inference)Big Crow v. DHHS, (NP -0752-15-0368-I-1) (March 10, 2016) (due process; ex parte communications; advice from HR specialists, counsel)Pauli v. DHS, (NP DC-0752-13-6815-I-1) (March 10, 2016) (due process: reliance on documents in the evidence file not referenced in the proposal; consideration of alternate provisions of a penalty table)Special Counsel ex rel. Rector v. NCUA, (NP CB-1208-16-0012-U-2) (March 7, 2016) (clarification of OSC stay requests; changes in an employee's during a stay)

Several items of interest are discussed this week by Peter Broida:Montgomery v. DHHS, 2016 MSPB 8 (Feb. 5, 2016) (VEOA right to compete: transfers);SSA and IFPTE, Ass'n. ALJs, 69 FLRA 208 (Feb. 4, 2016) (contract provisions governing timeliness of arbitrators' awards)Zenia M. V. DHHS, EEOC 0120121845 (Dec. 18, 2015) (reprisal liability for improper disclosure by agency EEO officials of materials in the complainant's ROI)

Several items of interest are discussed this week by Peter Broida:Runstrom v. VA, 2016 MSPB 3 (Jan 14, 2016) (agency burden of proof in defending an IRA claim) Jackson v. Dept. of Army, 2016 MSPB 4 (Jan. 19, 2016) (need for care in deciding when to use an OWBPA revocation clause in a settlement agreement)Brown v. DHS (NP SF-0752-14-0816-I-1) (Jan. 19, 2016) (care needed in presentation of testimony from a deciding official as to whether a penalty would be the same when not all specifications of a charge are sustained)McCarthy v. MSPB (2015-3072 Fed. Cir. Jan 14, 2016) (treatment as judicially review decision a pro forma letter from the MSPB Clerk rejecting a petition to reopen a Board decision)Muller v. GPO (2015-3032 Fed. Cir. Jan. 15, 2016) (effect of housekeeping provision concerning timeliness of an arbitration hearing on arbitrability of the grievance; Federal Circuit approach to interpretation of labor contracts)MSPB Rulemaking notice seeking amicus briefs on whether disclosures by contractors secure pr

Several items of interest are discussed this week by Peter Broida:Congressional testimony of MSPB's Susan Grundmann and OSC's Carolyn Lerner concerning legislative changes desired as components of reauthorization legislation;Mosley v. Dept. of Transp., AT-0752-14-0666-I-1 (NP 12/3/2015) (prospective nature of reasonable accommodation requirements);Layton v. Dept. of Air Force, SF-121-14-0805-W-1 (NP 12/9/2015) (necessity for judge's approval of informal discovery deadline adjustments; interpretation of 5 USC 2302(b)(9))

Several items of interest are discussed this week by Peter Broida:Summit 6, LLC v. Samsung Electronics (Fed. Cir. Sept. 21, 2015) (expert opinion under the Federal Rules of Evidence and the Daubert case);King v. Dept. of Army (11th Cir. 2014) (standards for review outside the Federal Circuit of an IRA whistleblowing case under the 2012 WPEA);DHS, ICE and AFGE Local 1917, 69 FLRA 72 (Nov. 13, 2015) (ULP involving refusal to arbitrate local grievances until similar national grievances were resolved);Practice tip: Federal Circuit arguments

Several items of interest are discussed this week by Peter Broida:Boo v. DHS, SF-0752-13-3302-A-1 (NP 10/29/2015) (counsel fees: a mitigated penalty warrants a reduced fee)Complainant v. Postmaster General, EEOC 0120133350 (9/11/2015) (counsel fees: the availability of counsel in the geographical area of the employment dispute results in reduction of the hourly rate of out-of-town counsel)Aviles v. MSPB, 799 F.3d 457 (5th Cir. 8/24/2015) (protected disclosures do not include matters that do not directly impact governmental interests)MSPB Rulemaking Notice (new rules for discovery in enforcement proceedings) (10/30/2015)

Several items of interest are discussed this week by Peter Broida:EEOC Announces Use "Randomly Generated Names" to identify casesEinboden v. Dept. of Navy, ___F.3d___ (Fed. Cir. 10/1/2015) (furloughs: deference to agency financial decisions)Independent Union of Pension Employees and PBGC, 68 FLRA No. 155 (9/29/2015) (contract grievance and arbitration procedures survive expiration of negotiated agreement)Rebstock Consol. And DHS, 2015 MSPB 53 (9/29/2015) (threshold of a "threat" for purposes of IRA analysis)DHS, C&BP and NTEU, 68 FLRA No. 156 (9/29/2015) (Dissent of Member Pizzella concerning collateral estoppel effect of arbitration awards)

Several items of interest are discussed this week by Peter Broida:Savage v. Dept. of Army, 2015 MSPB 51 (9/3/2015) (IRA hostile environment claims; demise of summary judgment for Title VII EEO affirmative defenses)Washington v. Dept. of Army, AT-0432-15-0138-I-1 (NP 9/21/2015) (falsification charge: required element of personal gain)Sherman v. DHS, 2015 MSPB 52 (9/11/2015) (IRA/grievance election of remedy)Wilkes v. VA, DA-0432-11-0466-C-1 (NP 9/22/2015) (compliance: TSP complexities)Dept. Of Justice, Bureau of Prisons and AFGE Local 4052, 68 FLRA No. 150 (9/21/2015) (sovereign immunity bars equitable remedy in the form of monetary payments)Dept. Of Commerce, NOAA and NWSEO, 68 FLRA No. 152 (9/24/2015) (reliance on opinion of Comptroller General to overturn arbitrator's monetary award for a prohibited purpose)Complainant v. Postal Service, EEOC 0120122166 (7/30/2015) (a finding by OWCP that a job is suitable for an employee does not relieve an agency from the responsibility for providing reasonable accommodat