The Dewey Publications Podcast

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)

Several items of interest are discussed this week by Peter Broida:Knuckles v. Dept. or Army, CB7121140025V1 (NP 5/27/2015) (whether a 3rd level grievance decision constitutes a final grievance determination for purposes of Board review);Grant v. Dept. of Treasury, DC0752140237I1 (NP 5/27/2015) (use of unofficially-prepared hearing transcripts on petitions for review);Dept. of Army, Corps of Engineers and AFGE, 68 FLRA No. 104 (5/27/2015) (the impact of agency factual misstatements to employees during a union election campaign);Fraternal Order of Police, Lodge 12 and Dept. of Navy, 68 FLRA No. 98 (5/19/2015) (review of physical agility testing program for civilian police and guards under the Rehabilitation Act);Strickland v. Dept. of Navy, AT0752137164I1 (NP 5/20/2015) (due process in the availability of reply rights to an adverse action proposal);DHUD and AFGE Local 222, 68 FLRA No. 100 (5/22/2015) (comments in dissent by Member Pizzella concerning FLRA practice of remanding cases to the same arbitrators whos

Several items of interest are discussed this week by Peter Broida:Complainant v. Donahoe, Postmaster General, EEOC 0720120041 (burdens of proof in reprisal cases; last chance agreements); Dyson v. Dept. of Defense, DC0752131235I1 (NP 12/8/2014) (permissible limitations on the scope of a hearing in an adverse action appeal);AFGE Local 1156 and Dept. of Navy, Naval Supply Business Systems Center, Mechanicsburg, 68 FLRA 531 (4/30/2015) (precondition of back pay for counsel fee award in arbitration);Dept. of Justice, Bureau of Prisons, FCI Ray Brook and AFGE Local 3802, 68 FLRA 492 (4/22/2015) (information requests, particularized need, and FOIA exemptions).

Several items of interest are discussed this week by Peter Broida:Johnson v. Dept. of Air Force, DE­0752­14­0091­I­2 (NP 4/2/2015) (adverse action resulting from unintended off­duty consumption of a marijuana laced brownie at a birthday party);Parker v. VA, 2015 MSPB 30 (4/6/2015) (adverse action based on false EEO complaint);AFGE Local 3961 and Dept. of Air Force, Ft. Sam Houston, 68 FLRA No. 75 (4/10/2015) (consequences of brief electronic filing system delay on exceptions to an arbitration award);Dept. of Air Force, Hill AFB and AFGE Local 1592, 68 FLRA No. 80 (4/16/2015) (effect of exclusions from the FLMRS under 5 USC 7103(b)(1) and E.O. 12,171 upon union representation rights at agency investigatory interviews).The answers to last podcast's surprise quiz on the top 10 Board cases of all timePlus a special question for exceptionally Board­centric practitioners.

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)