The Dewey Publications Podcast

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 cases
• Einboden 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 accommodation)

Several items of interest are discussed this week by Peter Broida:

• FLRA Guidance on Meetings (9/1/2015) (what you need to know about formal discussions and investigatory interviews);
• VAMC Pershing and AFGE Local 2338, 68 FLRA No. 137 (8/27/2015) (arbitrator's flexibility in interpreting contract provisions involving the time for filing grievances);
• NTEU and DHS, C&BP, 68 FLRA No. 141 (8/31/2015) (overtime pay: comments by Member Pizzella in his concurring opinion concerning the efficiency of the federal LR program);
• Shapiro v. SSA, ___F.3d___ (Fed. Cir. 9/1/2015) (removals of administrative law judges based on productivity or case management concerns);
• Cobert v. Miller & MSPB, ___F.3d___ (Fed. Cir. 9/2/2015) (restoring the Ketterer burden shifting approach to appeals involving removals for failure to accept geographical reassignments)

Several items of interest are discussed this week by Peter Broida:

• Alarid v. Dept. of Army, 2015 MSPB 50 (8/21/2015) (prohibited personnel practice protections for individuals who file or participate or testify in appeals or grievances)
• Rose v. Dept. of Defense, AT-0752-12-0063-B-2 (NP 8/10/2015) (military bar orders; AWOL and due process considerations of alternatives to removal penalties)
• Barnes v. MSPB (Fed. Cir. NP 2015-3018 (8/19/2015)) (excused delay in filing PFR; MSPB e-filing problems)

Several items of interest are discussed this week by Peter Broida:

• Rainey v. Dept. of State, 2015 MSPB 49 (Aug. 6, 2015) (prohibited personnel practice: personnel action taken because an individual refuses an order requiring violation of a law)
• Wilson v. Dept. of Navy, 2015 MSPB 48 (Aug. 5, 2015) (USERRA violation cannot be asserted an affirmative defense to a clearance-based removal)
• EEOC MD-110 Revisions (August 2015) (clarification on conflicts of interest for agency counsel, agency heads, and EEO directors; conduct of legal sufficiency reviews; firewalls between agency litigation counsel and EEO officials responsible for counseling, acceptance of complaints, and investigations of complaints)

Several items of interest are discussed this week by Peter Broida:

• Ryan v. DHS, ___F.3d___ (Fed. Cir. 7/13/2015) (clearance-based indefinite suspensions; due process implications; choices of alternatives to suspension);
• Dept. of Labor and AFGE Local 12, 68 FLRA 779 (7/23/2015) (arbitration: reasonable accommodation through structuring of interaction between an employee and a supervisor);
• Complainant v. Dept. of Transp., EEOC 0120133080 (7/15/2015) (discrimination on the basis of sexual orientation to be adjudicated through Title VII procedures);
• Nichols v. MSPB (Fed. Cir. NP 7/13/2015) (importance of compliance with MSPB regulation calling for agencies to file complete administrative records, including EEO ROI, with the Board)

Two items of interest are discussed this week by Peter Broida:

• Appleberry v. DHS, ___F.3d___ ( Fed. Cir. 7/8/2015) (arbitrator's application of contract limitations upon review of a Chapter 43 case)
• Dept. of Interior, Geological Survey and AFGE Local 723, 68 FLRA 734 (6/30/2015) (limitations of the Back Pay Act as to reimbursement of per diem-type payments)

Several items of interest are discussed this week by Peter Broida:

• Melton v. Dept. of Army, CH-0752-09-0448-C-1 (NP 6/18/2015) (broad scope settlement agreements)
• AFGE Local 1336 and SSA, 68 FLRA 704 (6/17/2015) (Privacy Act implications for misconduct investigations; application of the "discourtesy" provision of statutory adverse action provision)
• Complainant v. Postmaster General, EEOC OFO 0120133300 (5/12/2015) (violations based on public disclosure of a complainant's EEO activity)
• Complainant v. Air Force, EEOC OFO 0720090009 (6/5/2015) (permissive strict application of sanctions for untimely agency filing of ROI; inappropriate imposition of punitive damages)

Several items of interest are discussed this week by Peter Broida:

• Report: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment (OPM, EEOC, OSC & MSPB)
• Report: Administrative Leave Usage (OPM)
• Report: Adherence to Federal Laws Regarding Marijuana Use (OPM and the Director of National Intelligence)
• SSA and AFGE Local 1395, 68 FLRA 693 (6/15/2015) (past practice)
• DHS, C&BP v. FLRA, ___F.3d___ (D.C. Cir. 5/5/2015) (judicial review of FLRA decisions resolving exceptions to arbitration awards; sovereign immunity arguments)
• Bernard v. Dept. of Agric., ___F.3d___ (Fed. Cir. 6/11/2015) (use of discovery in MSPB enforcement proceedings)