The Dewey Publications Podcast

Several items of interest are discussed this week by Peter Broida:Heimer v. VA, DE-0432-14-0347-I-1 (NP March 24, 2015) (due process and ex-parte considerations in Chapter 43 performance cases);Viscardi v. Dept. of Defense, NY-0752-13-0938-I-1 (NP March 24, 2015) (furloughs: age discrimination and a disparate impact defense);NFFE Local 2189 and Jarman, 68 FLRA 374 (2015) (ULP against union based on denial of membership under 5 USC 7116(c));And the big quiz (name the top ten MSPB cases of all time).

Several items of interest are discussed this week by Peter Broida:EEOC Request for Comment: New Federal Sector Regulations or InitiativesCaros v. DHS, 2015 MSPB 16 (Feb. 23, 2015) (Laffey-rate awards; structured retainer agreements)AFGE Local 2595 and DHS, C&BP, 68 FLRA 293 (Feb. 25, 2015) (Member Pizzella, dissenting) (determinants of flagrant misconduct)Thome v. DHS, 2015 MSPB 27 (Feb. 27, 2015) (Pregnancy Discrimination Act analysis)Complainant v. Jewell, 0120142623 (Jan. 25, 2015) (analysis of agency liability for EEO violations towards contractor employees)Castro v. Dept. of Army, DA-0752-14-0660-I-1 (NP March 9, 2015) (importance of comprehensive election of remedies notices in adverse action decisions)

Several items of interest are discussed this week by Peter Broida:Herring v. MSPB (Fed. Cir. 2015) (factors to be considered by the Board in deciding whether to waive a late appeal filed by counsel involving a retirement benefit)Sanders v. DHS, 2015 MSPB 7 (Jan. 15, 2015) (evaluation of evidence presented first to the Board concerning the appellant's recovery from a medical condition leading to a removal for inability to perform the essential functions of the position)Ridenour v. Dept. of Agriculture, SF-0752-14-0228-I-1 (NP Feb. 19, 2015) (balancing the duty of loyalty within an agency vis-a-vis agency clients)Petitioner v. McDonald, EEOC 0320140027 (OFO Jan. 22, 2015) (determining that an agency need not create a permanent light duty position to accommodate an employee whose disability precludes him or her from performing the essential functions of the position)

Several items of interest are discussed this week by Peter Broida:Ortolano v. SSA, (MSPB NP NY-0752-13-1055-I-1 Feb. 4, 2015) (reassignment not a mitigation alternative in a Chapter 75 case)Payton v. VA (MSPB NP AT-0752-14-0055-I-1 Jan. 29, 2015) (importance of avoiding overstatement of potential harm of an appellant's actions in the Douglas Factor worksheet by the deciding official)Rosario-Fabregas v. Dept. of Army, 2015 MSPB 13 (Feb. 13, 2015) (proper approach of an agency in securing documentation from appellant to determine fitness to return to duty and to evaluate accommodative requirements as to a modified assignment following return from a period of leave initiated by the appellant)

Several items of interest are discussed this week by Peter Broida:Dept. of Homeland Security v. MacLean, (Supreme Court Jan 21, 2015) (whistleblower disclosures that are prohibited by law (or not))MSPB Regulatory Changes (Jan. 28, 2015)VA Medical Center and AFGE Local 2145, (68 FLRA No. 26 (Jan. 26, 2015) (the new application of equitable tolling applied to the time limit for filing exceptions to arbitration awards);

Several items of interest are discussed this week by Peter Broida:Young v. USPS, AT-0752-09-0177-C-2 (NP Jan. 9, 2015) (getting advisory opinions on the application of disputed settlement provisions through enforcement proceedings)Carrion v. VA, SF-0432-13-1460-I-1 (NP Dec. 29, 2014) (getting the PIP wrong in a Chapter 43 case: the importance of the opportunity period and the agency's promise of assistance)Bowles v. GPO, AT-0752-14-0169-I-1 (NP Jan. 16, 2015) (counsel fees and the nonprevailing party: why counsel have a hard time recovering fees when agencies cancel actions while Board appeals are pending before judges)Lane v. OPM, DA-0731-13-0504-I-1 (NP Jan. 16, 2015) (what you need to know about OPM-initiated suitability removal cases)Holder v. VA, DA-0752-14-0388-I-1 (NP Jan. 16, 2015) (the importance of action by agency personnel as a contributing factor to constructive adverse actions)Higbie v. United States, Fed. Cir. 2014-5042 (Jan. 14. 2015) (although money damages may be available for breach of conf

Several items of interest are discussed this week by Peter Broida:Complainant v. Tennessee Valley Authority, EEOC 0120121877 (factors permitting a compulsory fitness for duty exam without violating the ADA and Rehabilitation Act)Carrion v. VA, SF-0432-13-1460-I-1 (NP Dec. 29, 2014) (the conflict between the opportunity period represented by a PIP and near absolute performance standards)Ahuruonye v. Dept. of Interior, DC-531D-14-0587-I-1 (NP Dec. 29, 2014) (avoiding problems when denying a WIGI and a subsequent Board appeal)Prouty & Weller v. GSA, 2014 MSPB 90 (Dec. 24, 2014) (avoiding problems when considering adverse actions prompted under the pressure of nationally-publicized events)

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 treatm

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)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