The Dewey Publications Podcast

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 concerning selection for a supervisory position).

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 protected status under the WPA or WPEA
• Dewey correction on statement concerning pay recovery by furloughed employees

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