The Dewey Publications Podcast

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 treatment of individuals charged with similar offenses)

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 Pizzella
• Appointment 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)