The Dewey Publications Podcast: Recent Episodes
Peter Broida
A short weekly podcast on federal civil service law narrated by Peter Broida. Each week Peter discusses several new cases from the MSPB, FLRA, their reviewing courts, and occasionally EEOC. The podcast does not provide legal advice. www.deweypub.com
Topics discussed this week by Peter Broida:
- FLRA training availability;
- Pershing VAMC and AFGE Local 2338, 73 FLRA 904 (July 15, 2024) (failure to respond to FLRA show cause orders);
- Siefring v. DOJ, CH-0752-20-0509-I-1 (NP July 9, 2024) (burdens of proof for EEO and associated reprisal defenses);
- Cadena v. DHS, DE-0432-19-0321-I-1 (NP July 15, 2024) (post-Santos Chapter 43 requirements)
Topics discussed this week by Peter Broida:
- Rumination of Peter Broida on MSPB case processing
Topics discussed this week by Peter Broida:
- Nelson v. DHS, AT-1221-22-0186-W-1 (4/5/2024) (NP) (IRA treatment of EEO allegations made to OIG or internal agency investigative units)
- Gilewicz v. DHS, 2024 MSPB 7 (4/9/2024) (standards for assessing compensatory damages in whistleblower cases)
- Paulus v. Dept. of Labor, PH-0432-19-0432-I-2 (4/10/2024) (NP) (demonstrating pre-PIP unsatisfactory performance under Santos)
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Topics discussed this week by Peter Broida:
- Talley v. NRC, DC-3443-22-0447-I-1 (3/22/2024) (NP) (adverse action jurisdiction and locality pay)
- Cledera v. DOJ, DA-0752-21-0013-I-3 (3/25/2024) (NP) (due process; ex-parte information)
- Flannigan v. Dept. of Air Force, DC-0752-13-0367-I-4 (3/11/2024) (NP) (expert testimony; Daubert)
- Bureau of Prisons, FCC Victorville and AFGE Local 3369, 73 FLRA No. 164 (3/22/2024) (overtime and continuing violations)
Topics discussed this week by Peter Broida:
- New MSPB e-appeal system.
- Wriglesworth v. Dept. of Army, DC-0752-15-0860-1-2 (1/9/ 2024) (NP) (discovery and motions to compel)
- Luna v. DHS, 2024 MSPB 2 (1/10/2024) (misconduct investigations and immunity for criminally inculpatory information)
- Kelly v. TVA, 2024 MSPB 1 (1/5/2024) (adjustment of counsel fee hourly rates for delayed payment in mixed cases)
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Topics discussed this week by Peter Broida:
- New MSPB e-appeal system.
- Trial of ChatGPT in our little area of the law.
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Topics discussed this week by Peter Broida:
- Consumer Financial Protection Bureau and NTEU Chapter 335, 73 FLRA 670 (Sept. 26, 2023) (approach to use in applying excessive interference test when arbitration awards involving arrangements clauses are challenged as violating statutory management rights);
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Topics discussed this week by Peter Broida:
- Troy v. Dept. of Army, AT-0752-21-0259-I-1 (8/4/2023) (NP) (Individual Reliability Program certification);
- Godby v. VA, CH-1221-21-0147-W-1 (8/14/2023) (NP) (IRA burden of proof: nonselection);
- ABA Formal Opinion 508 (8/5/2023) ("The Ethics of Witness Preparation");
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Topics discussed this week by Peter Broida: McCray v. VA, CH-1221-16-0553-W-1 (7/27/2023) (NP) (hostile environment allegations in IRA appeal) * Allen v. Dept. of Navy*, DC-4324-16-0698-I-1 (7/20/2023) (NP) (counsel fees; prevailing party)
Topics discussed this week by Peter Broida:
- AFGE Local 547 and Haley VA Hospital, 73 FLRA 581 (6/15/2023) (elections of remedies)
- Hanuschik v. Dept. of Army, SF-1221-16-0236-W-1 (6/15/2023) (NP) (hostile environment in IRA appeals)
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Topics discussed this week by Peter Broida:
- Discussion of current events and operations at MSPB, FLRA, and OPM;
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Topics discussed this week by Peter Broida:
- Discussion of current events and operations at MSPB, FLRA, and OPM;
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Topics discussed this week by Peter Broida:
- FLRA decision on petition to amend rules on requests for policy and guidance. 73 FLRA 428 (2/9/2023)
- OPM memo of January 26, 2023, to agencies concerning bargaining unit exclusions
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Topic discussed this week by Peter Broida:
- Doe v. Dept. of State, 2022 MSPB 38 (Nov. 29, 2022) (counsel fees);
- Haas v. DHS, 2022 MSPB 36 (Nov. 7, 2022) (medical inability to perform);
- AMC Redstone Arsenal and NFFE Local 1332, 73 FLRA 356 (Dec. 8, 2022) (interlocutory exceptions);
- Marine Corps, Twentynine Palms, and AFGE Local 2018, 73 FLRA 379 (Dec. 9, 2022) (temporary promotions);
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Topic discussed this week by Peter Broida:
- Doyle T. v. Air Force, EEOC 2022004281 (9/30/2022) (disability discrimination);
- Thomas v. Dept. of Army, 2022 MSPB 35 (10/20/2022) (inappropriate workplace conduct);
- Chin v. DOD, 2022 MSPB 34 (10/7/2022) (mitigation: dissent by Member Leavitt)
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Topic discussed this week by Peter Broida:
- Oram v. Dept. of Navy, 2022 MSPB 30 (Aug. 31, 2022) (VEOA);
- Johnson v. Dept. of Air Force, Fed. Cir. 2021-1579 (Sept. 26, 2022) (due process);
- Kotsis v. Dept. of Transportation, MSPB AT-0432-16-0006-I-1 (Aug. 9, 2022) (ADA)
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Topic discussed this week by Peter Broida:
- NTEU v. FLRA (D.C. Cir. 20-1400 August 2, 2022) (reviewing FLRA Guidance);
- Bishop v. Dept. of Agric., 2022 MSPB 28 (August 18, 2022) (scope of IRA/EEO allegations)
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Topic discussed this week by Peter Broida:
- AFGE Local 13 and Dept. of Army, Rock Island, Illinois, 73 FLRA 125 (July 21, 2022)
- Martin v. USPS, 2022 MSPB 22 (July 20, 2022)
- Collazo v. USPS, PH 3443-21-0263-I-1 (July 29, 2022)
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Topic discussed this week by Peter Broida:
- Comparators: Where are we going?
- Singh v. USPS, 2022 MSPB 15 (May 31, 2022)
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Topic discussed this week by Peter Broida:
- Lee v. VA, 2022 MSPB 11 (5/12/2022)
- Edwards v. Dept. of Labor, 2022 MSPB 9 (5/5/2022)
- Newly-confirmed Member at FLRA
Topic discussed this week by Peter Broida:
- State of the Board
- Rossbach v. Dept. of Interior, DC-315I-14-0066-B-1 (3/30/22)
- Shibuya v. Dept. of Agriculture, DE-1221-09-0295-B-1 (3/31/22)
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Topic discussed this week by Peter Broida:
- Permissive Bargaining and President Biden’s Executive Order
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Topics discussed this week by Peter Broida:
- AFGE Local 3369 and SSA, 72 FLRA 619 (Jan. 14, 2022) (exceptions jurisdiction: matters collateral to removals)
- DOJ Executive Office for Immigration Review and Nat'l. Ass'n. of Immigration Judges, IFPTE, 72 FLRA 622 (Jan 21, 2022) (management/unit status of Immigration Judges)
- Smolinski v. MSPB (Fed. Cir. 2021-1751 Jan. 19, 2022) (whistleblower hostile environment allegations; remedial exhaustion)
- Gessel v. MSPB (Fed. Cir. 2021-1815 Jan. 19, 2022 NP) (whistleblower hostile environment allegations; co-worker interaction)
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Topics discussed this week by Peter Broida:
- Executive Order 14025 (April 26, 2021) and OPM Guidance ("Worker Organizing and Empowerment") Restrictions on bargaining: zipper clauses, the "covered by" doctrine, and waivers during negotiations* Buy Dewey books at deweypub.com
Topics discussed this week by Peter Broida:
- Knapp v. MSPB (Fed. Cir. 2020-2122 Nov. 17, 2021 NP) (IRA jurisdiction on matters related to clearance suspension)
- Alvarez v. Azar (D.MD. CA CCB-20-2626 Sept. 23, 2021) (attempt to prevent HHS from lodging objections to authority of MSPB AJs to adjudicate appeals)
- Davis v. MSPB (ED Ill. No. 20-cv-2139 Nov. 9, 2020) (attempt to prevent MSPB AJs from granting HHS motions to DWOP appeals pending resolution of authority of MSPB AJs to adjudicate appeals)
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Topics discussed this week by Peter Broida:
- Potter v. VA (Fed. Cir. 2021-1460) (October 25, 2021) (IRA factual and contributing factor (Cat's Paw) analysis).
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Topics discussed this week by Peter Broida:
- DHUD and AFGE Local 3972, 72 FLRA 450 (August 27, 2021) (jurisdictional defect in arbitration: union's failure to provide management a contractually-required notice of intent to invoke arbitration);
- Marine Corps Air Ground Combat Center and AFGE Local 2018, 72 FLRA 473 (September 15, 2021) (jurisdictional defect in arbitration: untimely grievance and arbitration request);
- DHS, C&BP and AFGE Local 3307, 72 FLRA 463 (September 8, 2021) (arbitration: counsel fee award set aside as contrary to law under several Allen factors).
Topics discussed this week by Peter Broida:
- The "clear and convincing" evidentiary standard and judicial interpretation: Insurance Co. v. Nelson, 103 U.S. 544 (1880); Helvering v. Fitch, 309 U.S. 149 (1940); Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 (1998); Addington v. Texas, 441 U.S. 418, 425 (1979); California ex rel. Cooper v. Mitchell Brothers Santa Ana Theater, 454 U.S. 90, 93 (1981); Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983); Colorado v. New Mexico, 467 U.S. 310 (1984).
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Topics discussed this week by Peter Broida:
- Smith v. McDonough(Fed. Cir. 20-1354) (April 24, 2021) (valuation of counsel fee requests for case reviews)
- OPM Guidance on labor-management partnerships and pre-decisional involvement (May 18, 2021)
One topic discussed this week by Peter Broida:
- United States v. Arthrex, Inc. (Supreme Court No. 19-1434) ( June 21, 2021);
Topics discussed this week by Peter Broida:
- Beck v. Dept. of Navy (Fed. Cir. 2019-1205) (May 14, 2021) (USERRA; preselection);
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The hundredth podcast: Tribute to Ernie Hadley and Reflections on the State of Civil Service Law
Several items of interest are discussed this week by Peter Broida:
- NLRB and NLRBU, 72 FLRA 133 (March 14, 2021) (jurisdiction of arbitrator to review agency decision on debt collection);
- Santos v. NASA (Fed. Cir. 2019-2345) (proof of unacceptable performance before institution of a PIP);
- OPM Guidance to Agency Heads for Implementation of Executive Order 14,003 (March 5, 2021)
Several items of interest are discussed this week by Peter Broida:
- Executive Order 14003 (Jan. 22, 2021), revoking Trump Executive Orders and Schedule F;
- Holmes v. USPS (Fed. Cir. 2019-1973 Feb. 8, 2021) (significance of arbitration awards in MSPB analysis of disparate penalties);
- Huang v. DHS (9th Cir. 20-70242 Jan. 15, 2021 NP) (lack of whistleblower protection for inappropriate comments to supervisor)
Several items of interest are discussed this week by Peter Broida:
- POPA and PTO, 71 FLRA 1223 (Dec. 23, 2020) (Effect of EO 13837 on negotiability of official time and allowances, subjects of bargaining);
- DOJ Bureau of Prisons and AFGE Local 3690, 71 FLRA 1247 (Dec. 29, 2020) (official time and the "carve out" doctrine);
- DHS C&BP and AFGE Local 1929, 72 FLRA 3 (2021) (bargaining obligations: conditions of employment and working conditions)
Several items of interest are discussed this week by Peter Broida:
- DOJ, Executive Office of Immigration Review and Nat’l. Ass’n. of Immigration Judges, 71 FLRA 1046 (2020) (Nov. 2, 2020) (unit [management] status of judges)
- Hessami v. MSPB (Fed. Cir. 2019-2291 Nov. 9, 2020) (analysis required by MSPB for nonfrivolous IRA allegations)
Several items of interest are discussed this week by Peter Broida:
- Dept. of Agriculture, OGC (Statement of Policy & Guidance, 71 FLRA 986 (Sept. 30, 2020) (effect of rollover, renegotiation, or continuation of contracts on government-wide or agency regulations blocked by existing contract)
- Dept. of Education, (Statement of Policy and Guidance, 71 FLRA 968 (Sept. 30, 2020) (threshold level of changes in employment conditions required to trigger bargaining obligation);
- OPM regulations of October 16, 2020 (adverse and performance-based actions and settlements)
- Executive Order of October 21, 2020, creating Schedule F in the Excepted Service
Several items of interest are discussed this week by Peter Broida:
- Jenkins v. DOT (Fed. Cir. 2019-2075 August 6, 2020 NP) (off-duty speech and nexus);
- National Right to Work Legal Defense Foundation, Inc., 71 FLRA 923 (August 19, 2020) (official time of union officials for lobbying);
- Dept. Of Agric., OGC and AFGE Local 1106, 71 FLRA 910 (August 12, 2020) (stays of FSIP orders);
- Aviles-Wynkoop v. DOD (Fed. Cir. 2019-1908 Sept. 2, 2020 NP) (adverse action due process; evidence admissible before MSPB)
Several items of interest are discussed this week by Peter Broida:
- Kent v. MSPB (Fed. Cir. August 5, 2020 NP) (probationary appointments; reappointment authority);
- Jenkins v. DOT (Fed. Cir. August 6, 2020) (nexus and off-duty conduct impacting the workplace);
- NWSEO v. FLRA(D.C. Cir. July 31, 2020) (scope of FLRA review of arbitrator’s contract interpretation);
- MSPB virtual hearing procedures
Several items of interest are discussed this week by Peter Broida:
- AFGE Local 3430 and DHHS, NIOSH, 71 FLRA 881 (July 13, 2020) (proper support for positions taken in negotiability appeal);
- AFGE Local 1929 v. FLRA (D.C. Cir. 19-1069 June 9, 2020) (conditions of employment and working conditions)
- Young v. MSPB (Fed. Cir. 2019-2269 June 11, 2020) (IRA does not include EEO reprisal)
- Cerulli v. DOD (Fed. Cir. 2019-2022 June 9, 2020) (IRA does include a fitness exam)
Several items of interest are discussed this week by Peter Broida:
- Wine v. MSPB (Fed. Cir. May 21, 2020 NP) (Special Counsel as IRA respondent)
- Air Force, Warner Robins AFB and AFGE Local 987, 71 FLRA 758 (2020) (election of remedies: EEO/grievance)
- VA Gulf Coast Healthcare System and AFGE Local 1045, 71 FLRA 752 (2020) (whether an arbitrator’s email is an award subject to exceptions to FLRA)
Several items of interest are discussed this week by Peter Broida:
- Sayers v. VA (Fed. Cir. 2018-2915) (March 31, 2020) (retroactivity of 2017 statute governing evaluation by MSPB of VA misconduct adverse actions);
- Noffke v. Dept. Defense (Fed. Cir. 2019-2193 NP) (April 8, 2020) (use of swipe records in AWOL cases; hearsay value of OIG reports);
- SBA v. AFGE Local 288, 71 FLRA 655 (April 2, 2020) (application of Bolling standards to grievances challenging disciplinary actions);
- SSA v. Ass’n. ALJs, IFPTE, 71 FLRA 652 (March 31, 2020) (jurisdiction of FLRA to stay FSIP proceeding);
- Sistek v. VA (Fed. Cir. 2019-1168) (April 8, 2020) (retaliatory investigation claimed as covered IRA personnel action);
- Babb v. Wilkie (Supreme Court No. 18-882) (April 6, 2020) (burden of proof in federal sector age discrimination cases)
Several items of interest are discussed this week by Peter Broida:
- Dept. of Justice, Bureau of Prisons and AFGE Local 614, 71 FLRA 538 (1/3/2020) (interference: barring union counsel from worksite)
- Sanchez v. VA (Fed. Cir. 2018-2171) (2/10/2020) (duration of condition of settlement when no time limitation is stated)
- VA and AFGE Local 2338, 71 FLRA 533 (1/29/2020) (exceptions jurisdiction: claimed coerced retirement)
Several items of interest are discussed this week by Peter Broida:
- FLRA determinations on Requests for Statements of Policy and Guidance
- Holland v. MSPB (Fed. Cir. 2019-1388 NP) (Jan. 6, 2020) (constructive suitability appeals)
- Arthrex, Inc. V. Smith & Nephew, Inc. (Fed. Cir. 2018-2140) (Oct. 31, 2019) (validity of appointments of Administrative Patent Judges)
Several items of interest are discussed this week by Peter Broida:
- Army Corps of Engineers, Little Rock and IBEW Local 2219, 71 FLRA 451 (Dec. 4, 2019) (unit definitions; reorganizations);
- Annalee D. v. Murphy (GSA), EEOC Recon. 0120170991 (Nov. 27, 2019) (involvement of agency counsel in EEO counseling and investigative processes)
Several items of interest are discussed this week by Peter Broida:
- McGuffin v. SSA (Fed. Cir. 2017-2433) (Nov. 7, 2019) (USERRA discrimination: trial period termination)
- AFGE Local 3310 and Dept. Of Army, Corps of Engineers, 71 FLRA 395 (Nov. 7, 2019) (FLSA; good faith; liquidated damages)
- Dept. of Treasury, IRS and NTEU, 71 FLRA 400 (Nov. 13, 2019) (arbitration: counsel fees)
- Dept. of Treasury, IRS and NTEU Local 299, 71 FLRA 387 (Nov. 4, 2019) (arbitration: remedial authority concerning performance ratings)
- Presidential Memo: Delegation of Removal Authority Over FSIP (Nov. 12, 2019)
Several items of interest are discussed this week by Peter Broida:
- Dept. of Army Medical Activity Ft. Meade and AFGE Local 1923, 71 FLRA 368 (Oct. 10, 2019) (accretion of duties)
- Presidential Memorandum of October 11, 2019, on Executive Orders
- OPM Proposed Rules Involving Executive Orders
- SSA and AFGE Local 3627, 71 FLRA 355 (Sept. 30, 2019) (remedial authority of arbitrators)
Several items of interest are discussed this week by Peter Broida:
- Feuer v. NLRB (Fed. Cir. 2019-1390) (Sept. 13, 2019)
- Mount v. DHS (1st Cir. 18-1762) (Aug. 29, 2019)
- Tang v. MSPB (Fed. Cir. 18-2188) (Sept. 13, 2019) (oral argument) [search on 2018-2188.mp3]
Several items of interest are discussed this week by Peter Broida:
- Export-Import Bank and AFGE, 71 FLRA 248 (2019) (definition of professional employee; election requirements when through unit clarification proceeding employees entering the unit exceed 50% of the total unit)
- Smith v. GSA, (Fed. Cir. 2018-1604) (July 19, 2019) (remand: application of clear and convincing evidentiary standard and Carr factors)
Several items of interest are discussed this week by Peter Broida:
- AFGE Local 1633 and VA DeBakey Medical Center, 71 FLRA 211 (July 10, 2019) (attorney fee standards for grievances resulting in payment of benefits, e.g., environmental differential pay)
- AFGE Local 2076 and DHS, CIS, 71 FLRA 221 (July 10, 2019) (attorney fee standards for grievances resulting in mitigation of minor disciplinary suspensions)
- DL et al. v. District of Columbia, 924 F.3d 585 (2019) (application of Laffey Matrix)
Several items of interest are discussed this week by Peter Broida:
- Borza v. Dept. Commerce, (Fed. Cir. 2018-1873) (nonprecedential) (May 29, 2019) (arbitration: time-served suspensions)
- SSA OHA and IFPTE AALJs, 71 FLRA 123 (May 16, 2019) (election of remedies: EEO grievance)
- DHS C&BP and AFGE Border Patrol Council, 71 FLRA 119 (May 15, 2019) (arbitration: official time justification)
Several items of interest are discussed this week by Peter Broida:
- Lucia v. SEC (Supreme Court June 2018), and its application to the MSPB
- Hiller v. DHS, (Fed. Cir. 2018-1244) (nonprecedential) (April 22, 2019) (MSPB prehearing submissions and witness statements)
- DHS, C&BP and National Border Patrol Council, 71 FLRA 106 (April 10, 2019) (application of "essence" review authority to substantive determination of arbitrator on grievance concerning approval for outside employment)
Several items of interest are discussed this week by Peter Broida:
- Hickey v. DHS, (Fed. Cir. 2018-1585) (nonprecedential) (March 22, 2019) (whistleblower reprisal: counsel fees [Laffey rate]; compensatory and consequential damages)
Several items of interest are discussed this week by Peter Broida:
- VAMC Orlando and AFGE Local 2779, 71 FLRA 13 (Feb. 8, 2019)
- Ryan v. DOD (Fed. Cir. 2018-1524) (nonprecedential) (Feb. 13, 2019)
- Dobyns v. United States (Fed. Cir. 2015-5020) (precedential) (Feb. 6, 2019)
Several items of interest are discussed this week by Peter Broida:
- Koester v. US Park Police (Fed. Cir. 2017-2613) (nonprecedential) (Jan. 3, 2019) (evaluation by arbitrator of new evidence concerning mitigation))
- Do v. HUD (Fed. Cir. 2018-1147) (precedential) (Jan. 14, 2019) (due process errors resulting when MSPB sustains adverse action on a charge not noticed))
- EPA and AFGE Council 238, 70 FLRA No. 199 (Dec. 21, 2018) (standards for analysis of motivation in EEO challenge to nonselection)
Several items of interest are discussed this week by Peter Broida:
- SBA and AFGE Local 3841, 70 FLRA 729 (July 19, 2018) (factors required to establish entitlement to a temporary promotion under a labor contract)
- VA Medical Center Richmond and AFGE Local 2145, 70 FLRA 900 (October 12, 2018) (discretion of arbitrator in determining issues and remedies in the absence of a stipulated issue)
- OPM Interpretive Guide on Section 5 Ensuing Integrity of Personnel Files Contained in Executive Order 13839: (October 10, 2018)
Several items of interest are discussed this week by Peter Broida:
- Dept. of Justice, Bureau of Prisons and AFGE Local 3978, 70 FLRA No. 140 (July 13, 2018) (arbitration: FLSA overtime analysis: "principal activities")
- Dept. of Navy, Puget Sound and Bremerton MTC, 70 FLRA No. 152 (Aug. 13, 2018) (arbitration: past practice and missing contract language)
- Dept. of Treasury, IRS and NTEU, 70 FLRA 806 (Aug. 31, 2018) (arbitration exceptions: a new basis for interlocutory appeals)
Several items of interest are discussed this week by Peter Broida:
- Federal District Court Decision in AFGE v. Trump (enjoining enforcement of portions of May 25, 2018 executive orders affecting union representation, official time, and scope of grievance procedures)
- Villareal v. Bureau of Prisons (Fed. Cir. 2017-2275 Aug. 24, 2018) (timeliness of adverse action decisions; switch in deciding officials)
- GAO Report: Federal Employee Misconduct-Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct (July 2018)
Several items of interest are discussed this week by Peter Broida:
- 13,836: Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining;
- 13,837: Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use;
- 13,839: Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles
Several items of interest are discussed this week by Peter Broida:
- EPA and NTEU, 70 FLRA 533 (May 3, 2018) (unit clarification: location of employees on telework);
- DHS C&BP and AFGE NBPC Local 1929, 70 FLRA 501 (April 30, 2018) (working conditions and conditions of employment distinguished);
- Dept. of Navy, Norfolk and IBPO Local 800, 70 FLRA 512 (May 2, 2018) (ULP/grievance elections for changes in conditions of employment);
- SBA and AFGE Local 3841, 70 FLRA 525 (May 2, 2018) (procedural arbitrability: essence challenges; application of past practice to override clear contract language).
Several items of interest are discussed this week by Peter Broida:
- Dept. of Justice, Bureau of Prisons and AFGE Local 817, 70 FLRA 398 (Feb. 22, 2018) (arbitration awards and the excessive interference standard of review);
- Dept. of Navy and IFPTE Local 4, 70 FLRA 429 (March 20, 2018) (timeliness of exceptions to arbitrator's award);
- Bonny R. v. Dept. of Agriculture, EEOC OFO 0120160799 (Jan 25, 2018) (challenge to oral settlement of an EEO case)
Several items of interest are discussed this week by Peter Broida:
- Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (agency training requirements);
- Delgado v. MSPB (7th Cir. No. 16-1313 Jan. 29, 2018) (whistleblowing: adequacy of pleading to OSC and MSPB);
- Dept. of Justice v. FLRA (D.C. Cir. 16-1301 Nov. 17, 2017) ("covered by" doctrine);
- Dept. of Treasury, BEP and NTEU, 70 FLRA 359 (Jan 16, 2018) (definition of professional employee);
- Dept. of Defense, DCMA and AFGE Local 2433, 70 FLRA 370 (Jan. 23, 2018) (period for filing exceptions following email issuance of arbitration award)
Several items of interest are discussed this week by Peter Broida:
- U.S. Capitol Police v. Office of Compliance, ___F.3d___ (Fed. Cir. 2018) (Letterkenny analysis in unfair labor practice case);
- Dept. of Labor, OSHA and Greenlaw, 70 FLRA 353 (2/2/2018) (unit clarification process to determine bargaining unit status for person seeking to file a grievance to challenge an adverse action);
- Henderson v. VA, ___F.3d___ (Fed. Cir.12/26/2017) (shortened notice periods).
Several items of interest are discussed this week by Peter Broida:
- Certiorari Petition: Vocke v. MSPB (equitable tolling of Federal Circuit deadline for filing judicial petitions for review of MSPB decisions)
- Parkinson v. DOJ, ___F.3d___ (Fed. Cir. 2017) (FBI agents lack whistleblowing affirmative defense in MSPB adverse action appeals)
- Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (agencies are required to provide training on whistleblowing; agencies must discipline supervisors who are found to have engaged in whistleblower reprisal)
- Tables of Penalties: a congressional study in the context of sexual harassment cases. News and Case Alert Issue #9-9
Several items of interest are discussed this week by Peter Broida:
- Piccolo v. MSPB (Fed. Cir. 2016-2374 Sept. 7, 2017) (the essence of nonfrivolous allegations in an IRA case);
- Craine v. National Science Foundation (10th Cir. 16-9536 April 26, 2017) (whistleblower protections for employees of federal contractors);
- Miskill & AFGE Local 1923 v. SSA (Fed. Cir. 2016-1598 July 20, 2017) (arbitration: consideration of post-termination comparator employees)
Several items of interest are discussed this week by Peter Broida:
- Perry v. MSPB (Supreme Court June 23, 2017) (district court jurisdiction to review MSPB mixed-case jurisdictional dismissals);
- Follow the Rules Act;
- Act Authorizing Single MSPB Member to Extend OSC Stays in the Absence of a Board Quorum;
- Department of Veteran Affairs Accountability and Whistleblower Protection Act of 2017
Several items of interest are discussed this week by Peter Broida:
- Presidential Executive Order of April 27, 2017, directing establishment of Department of Veterans Affairs office for whistleblower and disciplinary oversight.
- AFGE Local 1482 and Dept. of Navy, Marine Corps, 70 FLRA 214 (May 9, 2017) (arbitrator's treatment of counsel fee application).
- Peter Broida's May 11, 2017, wish list to MSPB Acting Chair Mark Robbins.
Several items of interest are discussed this week by Peter Broida:
- Federal Labor Relations Authority 2017 Budget Justification (www.flra.gov/system/files/webfm/FLRA%20Agency-wide/Public%20Affairs/CBJ/FY17%20CBJ%20FINAL%20(2.9.16%20submission).pdf);
- OPM Workforce Reshaping Operations Handbook: A Guide for Agency Management and Human Resource Offices (www.opm.gov/policy-data-oversight/workforce-restructuring/reductions-in-force/workforce_reshaping.pdf);
- OPM Guidance for Administrative Furloughs (www.opm.gov/policy-data-oversight/pay-leave/furlough-guidance/guidance-for-administrative-furloughs.pdf);
- Dept. of Justice, Bureau of Prisons and AFGE COPL 1034, 70 FLRA 195 (April 3, 2017) (counsel fee awards);
Several items of interest are discussed this week by Peter Broida:
- Abe K. v. Vilsack, Dept. of Agric. (EEOC 0120141252) (sanctions denied for late FAD);
- Alfred S. v. Colvin, SSA (EEOC 0120140900) (Jan 6, 2017) (sanctions imposed for failure to comply with discovery orders);
- Dept. of Air Force, Luke AFB v. FLRA (D.C. Cir. 15-1208 Oct. 14, 2016) (nonnegotiability of matters statutorily entrusted to unreviewable agency discretion).
Several items of interest are discussed this week by Peter Broida:
- Sabio v. VA, 2017 MSPB 4 (Jan. 6, 2017) (use of administrative defense orders by AJs);
- Little v. USPS, 2017 MSPB 5 (Jan. 6, 2017) (timeliness of appeal; delayed receipt of final agency decision);
- Delorme v. Dept. of Interior, 2017 MSPB 2 (Jan. 4, 2017) (acceptance of settlements in appeals involving jurisdictional disputes).
Several items of interest are discussed this week by Peter Broida:
- Wilson v. Dept. of Navy (Fed. Cir. 2015-3225 Dec. 7, 2016) (USERRA challenge to employment action resulting from revocation of security clearance);
- DHS, C&BP v. AFGE Local 3725, 70 FLRA No. 16 (Dec. 2, 2016) (likelihood of a future request for public comment on the criteria for counsel fee awards in cases within the Authority's jurisdiction);
- Nielsen v. Hagel (4th Cir. 14-1646 Nov. 15, 2016) (lack of authority of a district court to remand an EEO case to an agency because of a processing error).
Several items of interest are discussed this week by Peter Broida:
- Morris v. Dept. of Army, 2016 MSPB 37 (Oct. 31, 2016) (format requirements for PFRs and related submissions);
- Hess v. USPS, 2016 MSPB 40 (Nov. 18, 2016) (reaffirming the availability of compensatory damages in MSPB cases);
- Hester S. v. Yang, Chair, EEOC (EEOC 0120121983) (Oct. 24, 2016) (revising the law concerning inclusion in settlements of OWBPA language).
Several items of interest are discussed this week by Peter Broida:
- Gardner v. VA, 2016 MSPB (Oct. 7, 2016) (discrimination and reprisal affirmative defense analytics);
- Tamara G. v. Yang, Chair, EEOC (EEOC 0120150734) (August 4, 2016) (limitations on the levels of compensatory damages awards);
- Hau v. DHS, 2016 MSPB 33 (Sept. 19, 2016) (collateral estoppel applied to jurisdictional issues);
- NAIL, Local 6 and Dept. of Defense, 69 FLRA 573 (Sept. 20, 2016) (counsel fee criteria applied to contract violations);
- AFGE Local 1815 and Dept. of Army, 69 FLRA 621 (Sept. 28, 2016) (differences in approaches to policy issues among the Authority members);
- AFGE Local 1992 and Dept. of Defense, 69 FLRA 567 (Sept. 20, 2106) (differences in approaches among the Authority members concerning use of arbitration and Authority processes to resolve complex EEO issues).
Several items of interest are discussed this week by Peter Broida:
- AFGE Local 2266 and DHS, CBP, 69 FLRA 525 (Aug. 24, 2016) (revisiting and reaffirming the law governing "flagrant misconduct" of union representatives;
- Scere v. DHS (NP 0752 14 157 I 1) (failure to meet condition of employment: mitigation of removal to reassignment);
- Walls v. VA (NP DE-0752-13-0278-I-1) (Sept. 7, 2016) (enforcement action: difficulties presented by reliance upon agency counsel's statements as evidence of compliance);
- Tyner v. Dept. of Agric. (NP DC-0752-16-0098-I-1) (Sept. 7, 2016) (comparison of charges of falsification/misrepresention and lack of candor);
- Illiana S. V. Yang, Chair, EEOC (EEOC 0120123242) (July 11, 2016) (performance appraisal lowered in reprisal for use of leave as a disability accommodation).
Several items of interest are discussed this week by Peter Broida:
- Emanuele v. Dept. of Transportation (NP PH-0752-15-0539-I-1) (Aug. 19, 2016) (elections of remedies: MSPB/grievance);
- Goeke and Bottini v. Dept. of Justice (CB-0752-15-0228-A-1) (Aug. 12, 2016) (counsel fees);
- Roxane C. V. Carter, Secretary of Defense (EEOC 0120142363) (July 19, 2016) (discrimination based on pregnancy);
- Rosario-Fabregas v. MSPB (2015-3102 Fed. Cir. Aug. 16, 2016) (enforced leave; constructive suspensions and conditions placed upon return to work);
- Osman v. Dept. of Army (NP PH-0752-15-0030-I-2) (Aug. 11, 2016) ("conduct unbecoming." sex harassment, and Title VII burdens of proof).
Several items of interest are discussed this week by Peter Broida:
- Davis v. Dept. of Navy (NP DA-0752-14-0285-I-1) (July 5, 2106) (ex-parte communiations and post-reply interview by agency counsel);
- Mellick v. Dept. of Interior (NP SF-0752-16-01201-I-1) (July 8, 2016) (implications of agency breach of last chance agreement);
- Beg v. DHHS (NP DC-0432-13-3191-I-1) (July 5, 2016) (employee access to files and email to assist in the preparation of a reply to a proposed action);
- Morrison v. Dept. of Navy (NP PH-0752-14-0669-B-1) (June 28, 2016) (effect of incorrect information on retirement benefits from a supervisor in an involuntary retirement appeal);
- Nunnery v. Dept. of Agriculture (NP DA-0752-15-0378-I-1 (June 9, 2016) (ex parte communications: consideration by the deciding official of the appellant's lack of remorse);
- Rainey v. MSPB (2015-3234 Fed. Cir. June 7, 2016) (scope of "right to disobey" provisions of the 2012 WPEA);
- Geraldine G. v. Brennan (EEOC 0720140039) (June 3, 2016) (ADEA: effect of questions concerning retirement intentions during selection interview);
- GAO Issuance (May 9, 2016): "Federal Workforce: Distribution of Performance Ratings Across the Federal Government, 2013."
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
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)
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 whose decisions are reviewed through exceptions);
- Complainant v. Lew, Dept. of Treasury, EEOC OFO 0120122603 (5/8/2015) (agency violated Title VII by disciplining an employee for internal protests of EEO complaints within the agency chain of command rather than exclusively through the EEOC process).
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 time
- Plus 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 Initiatives
- Caros 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 confidentiality provisions of settlements reached in MSPB cases, damages are not available for breach of a confidential provision in an EEO mediation agreement (Dissent by Judge Taranto)
- Board of Veterans Appeals and AFGE Local 17, 68 FLRA 170 (Jan. 8, 2015) (comments by Member Pizzella concerning the Authority's misconstruction or misapplication of the "nonfact" exception)
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 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)
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.
This week Peter Broida discusses several cases from the MSPB and FLRA: Buelna v. DHS, 2014 MSPB 45 (June 19, 2014): constitutional due process: indefinite suspensions based on suspension of security clearance. * Flores v. Dept. of Defense, 2014 MSPB 46 (June 19, 2014): extent of Board review as to removals based on loss of the ability to hold a sensitive position. * Modeste v. VA, 2014 MSPB 44 (June 19, 2014): scope of competition under VEOA; contractual limitations; meaning of "vacant" position * King v. VA, CH-0752-12-0039-C-1 (June 16, 2014): electronic filing–untimely filing of PFR by waiting to start until before the deadline and then completing the PFR 81 minutes after the filing deadline. * Dept. Of Justice, Bureau of Prisons, MCC New York and AFGE Local 3148*, 67 FLRA 442 (June 19, 2014): ULP/contract election of remedies and dissent within the Authority.
Three cases are discussed: Morales v. Gotbaum, U.S. District Court, District of Columbia, #10-0221 (May 19, 2014) * Complainant v. Holder, EEOC 0720120032 (May 1, 2014) * Complainant v. McHugh*, EEOC 0720130033 (April 24, 2014)
Two cases are discussed: Brown v. Dept. of Interior, 2014 MSPB 40 (2014) * Dept. of Homeland Security v. FLRA*, No. 12-1457 (D.C.Cir. June 3, 2014)
Four cases are discussed: Caban v. Dept. of Justice, AT-0752-13-0002-I-1 (Nonprecedential 5/27/2014) * Chavez v. SBA, ___MSPR___¶ 17, 2014 MSPB 37 (2014) * FDIC and NTEU, 67 FLRA 430 (2014) * AFGE Local 1945 and Dept. of Army, Anniston Army Depot*, 67 FLRA 436 (2014)
Five cases are discussed: Ray v. SBA, DC-0752-13-0424-I-1 (Nonprecedential 5/19/2014) * Walker v. VA, DC-0731-13-0698-I-1 (Nonprecedential 5/19/2014) * Woodworth v. VA, NY-1221-13-0037-W-1 (Nonprecedential 5/2o/2014) * Wyrick v. Dept. of Transp., SF-0752-12-0524-I-3 (Nonprecedential 5/20/2014) * Davis v. Corp. for National & Community Service*, DA-1221-13-0040-W-1 (Nonprecedential 5/22/2014)