The Dewey Publications Podcast

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 contractual procedural violation: to overcome the award on a management rights theory, the agency must show not only that the contract provision relied upon by the arbitrator constitutes a violation of management rights, but that the provision was not negotiated as an exception to management rights as either a procedure or an arrangement (impact bargaining).
• NTEU v. FLRA, ___F.3d___ (D.C. Cir. June 17, 2014): for employees in the competitive service, the union does not have the right to have a representative present at an OPM suitability investigation of an employee, even if the OPM inquiry is delegated to agency management to conduct.

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 suspension is appropriate.
• Welhouse v. Dept. of Agric., CH-0752-12-0387-I-1 (NP Aug. 19, 2014): the Board, considering an involuntary retirement based on refusal to accept a geographical reassignment, applies the burden of proof, requiring a showing of a legitimate management justification of the reassignment, developed under Miller v. Dept. of Interior, 120 MSPR 426 (2013).
• Howerton v. Dept. of Defense, PH-0752-13-0292-I-1 (Aug. 21, 2014): considering a defense of disparate treatment of comparator employees, the Board acknowledges that the agency is not responsible for information on offenses unknown to the deciding official and not recorded in agency personnel files; but the Board evaluates information developed during the Board hearing and considers the assessment of the deciding official as to whether, with knowledge of the comparators' situation, the discipline of the appellant was still deemed appropriate.
• Butler v. Dept. of Treasury, AT-0752-11-0530-C-1 (NP Aug. 19, 2014): when the agency breached a settlement by disclosing an underlying past personnel action to appellant's prospective employer, and the appellant breached the agreement by not following the agreed-upon procedure for referring prospective employers to a designated phone number to obtain information, the Board applied what it styled as the doctrine of "unclean hands" to deny the appellant any relief.
• Solomon v. Dept. of Agric., ___F.3d___ (D.C. Cir. Aug. 15, 2014): reversing a grant of summary judgment to the government, the court determined that OPM policies require agencies to considering scheduling changes sought by employee to accommodate disabilities.

This week Peter Broida discusses five cases and MSPB Rulemaking:

• Carney v. VA, 2014 MSPB 62 (Aug. 8, 2014): the Board defines IRA coverage for reprisal cases based on participation in the grievance process, defined at 5 USC 2302(b)(9).
• Davis v. Dept. of Interior, AT-0752-09-0860-E-1 (NP Aug. 15, 2014): EEOC remand clarifying the "convincing mosaic" approach to proof of discrimination through circumstantial evidence.
• Alvara v. DHS, 2014 MSPB 63 (Aug. 13, 2014): EEOC remand and referral to Special Panel for consideration of the implications under civil rights and civil service law of whether agencies are required to accommodate disabled employees through modification of work rotation schedules that are ordinarily considered a basic element of a job (law enforcement officer subject to assignment to work on the night shift).
• Alvara v. DHS, EEOC 0320110053 (July 10, 2014) (referred to as Johnson v. DHS in the podcast): EEOC decision modifying the law to state that work schedules and job rotations are subject to accommodative requirements.
• MSPB Rulemaking: Procedures for Implementing the provisions allowing for expedited removal or "transfer" of SES members of the Department of Veterans Affairs: in accordance with the statutory mandate, the Board establishes a short period for appeal, a short period for a decision by an administrative judge, and eliminates the ability of review of the judge's decision by the MSPB.
• Dept. of Navy, Marine Corps and AFGE Local 1786, 67 FLRA 542 (2014) (over the dissent of Member Pizzella, the Authority reaffirms the ability of a single matter, e.g., a change in working conditions, to be protested through the ULP process as a statutory violation and through the contract grievance process as a contract violation.

This week Peter Broida discusses five cases:

• Gingery v. Dept. of Defense, 2014 MSPB 59 (7/28/2014): VEOA reconstructed positions—the agency is within its rights, if after it reconstructs a selection process first run some years ago, and when it then makes a tentative job offer to the employee, to require the employee to qualify for a security clearance on the same (present, not past) terms of any current employee.
• Benton-Flores v. Dept. of Defense, 2014 MSPB 60 (July 31, 2014): whistleblowing in the normal course of duties—the Board recognized that disclosures are now protected under WPEA, but the Board held that the statutory provision, 5 USC 2302(b )(8), prohibits as to those disclosures "reprisal for the disclosure," rather than reprisal "because of" disclosures made in circumstances other than the normal course of duties. The Board implies but did not explain that there must be established unlawful motivation.
• Tanner v. Dept. of Defense, DC-0752-12-0209-A-1 (Nonprecedential 8/1/2014): considering an approving structured counsel fee agreements setting one rate for the client and permitting recovery at a higher rate from the agency when the appellant prevails.
• Thompson v. Dept. of Navy, DC-0752-10-0110-X-1 (Nonprecedential July 29, 2014): noting the consequences of a clean paper agreement precluding any agency employee from providing unfavorable information about the appellant.
• SSA and AFGE Local 1923, 67 FLRA 129 (July 30, 2014): determining that under the particularized need test, agencies may reject without themselves narrowing overbroad information requests.

This week Peter Broida discusses four cases:

• Arnold v. MSPB, 2014-3073 (Fed. Cir. July 24, 2014 NP): timing of petitions to enforce settlements: use of notice of compliance to set a definite time limit for the petition.
• Gajdos v. Dept. of Army, 2014 MSPB 55 (July 22, 2014): furloughs: agency policy limitations on the exercise of discretion by agency deciding officials in furlough cases do not violate constitutional due process if the policies enforced and the discretion exercised is fair and serves financial goals to be achieved by the furlough.
• Weathers v. Dept. of Navy, 2014 MSPB 57 (July 24, 2014): furloughs: distinctions in the treatment of furloughed employees can be justified by legitimate organizational and geographical distinctions.
• Kelly v. Dept. of Army, 2014 MSPB 58 (July 24, 2014): furloughs: agencies may decide to furlough some employees and schedules others for overtime if the management decision was a resolution approach to its financial restrictions and if the agency applies its determination as to which employees to furlough in a fair and even manner.

This week Peter Broida discusses five cases from the MSPB:

• Gallegos v. Dept. of Air Force, 2014 MSPB 53 (Precedential July 17, 2014) - The Board defines the conditions under which employees can be removed when they do not accept reassignments based on mobility agreements constituting conditions of employment.
• Stockton v. Dept. of Interior, SF-0752-13-0434-I-1 (NP July 18, 2014): some considerations about practitioners' informal adjustment of deadlines for discovery responses.
• Richard v. USPS, DE-0752-12-0398-I-1 (NP July 14, 2014): the Board applies a novel application of past discipline.
• Gomez v. Dept. of Agriculture, DE-1221-13-0021-W-1 (NP July 14, 2014): a personnel action, for purposes of whistleblower jurisdiction in an IRA case, does not include negative statements about an appellant without some impact on the appellant's continuing employment or employability.
• Erickson v. USPS, ___F.3d___ (Fed. Cir. 2014 Precedential): on review of an application for counsel fees, the court decides that the Back Pay Act does not apply to Postal Service employees, with implications on Postal Service employees' appeals that will have to be decided in the future by the MSPB.

This week Peter Broida discusses five cases:

MSPB

• Prato-Easterling v. OPM, AT-844E-13-0352-I-1 (Nonprecedential July 7, 2014): settlements implying retirement eligibility do not control if medical evidence does not demonstrate the required degree of disability.
• Garay v. Dept. of Air Force, DA-0351-13-0043-I-1 (Nonprecedential July 11, 2014): a substantive error in the application of RIF procedures will result in reversal of the RIF; the harmful error rule is inapplicable.
• Archerda v. Dept. of Defense, 2014 MSPB 49 (Precedential July 11, 2014): describes the ability of an agency to require an employee to provide medical information pertaining to his fitness to occupy a position with medical standards.

FLRA

• DHS, ICE & AFGE Council 118, 67 FLRA 501 (2014): considers, in the context of review of an arbitrator's award, the degree of bargaining discretion as to agency IT determinations made under the Federal Information Security Management Act.
• Dept. of Air Force, Sheppard AFB and AFGE Local 779, 67 FLRA 509 (2014): evaluating the proper and improper procedures for effecting a post-complaint settlement of a ULP case.

This week Peter Broida discusses three cases:

• Donahoe v. Postmaster General, EEOC 0720130009 (May 14, 2014): nonselection for management position: effect of retirement on back pay, limitations on use of front pay; compensatory damages.
• Brooks-Hughes v. Dept. of Justice, MSPB DC-0752-12-0803-I-1 (Nonprecedential July 2, 2014): removal: nexus–application of agency rule establishing prohibited relationships.
• Clegar v. USPS, MSPB DA-0752-12-0107-A-1 (Nonprecedential July 2, 2014): timeliness of PFR: problem with delay between Board receipt of PFR and date of metered mail; degree of specificity of description required to establish timely mailing.

This week Peter Broida discusses several cases from the MSPB and EEOC:

MSPB

• Mann v. Dept. of Navy, SF-0752-11-0736-C-1 (June 24, 2014): need for evidence, not just representatives' statements, to form the basis for initial decisions in compliance cases reviewing allegations of violations of settlement agreements.
• Abbott v. US Postal Service, 2014 MSPB 47 (June 23, 2014): the Board establishes a clear statement of what constitutes enforced leave as an adverse action indisputably within the Board's jurisdiction, distinguished from constructive suspensions, where proof jurisdiction must be established by the appellant's preponderant evidence.

EEOC

• Complainant v. Hagel, 0120084008 (June 6, 2014): EEOC makes clear that agency representatives are not be involved in or interfere, intentionally or otherwise, in the development of evidence by an investigator prior to the case going to a hearing. Sanctions were imposed based on the conduct of counsel.