The Dewey Publications Podcast

A podcast on federal civil service law hosted by Peter Broida. Each week Peter Broida will discuss several new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC. Mr. Broida writes A Guide to MSPB Law and Practice, A Guide to FLRA Law and Practice, and other titles available at deweypub.com/broida. Please send all comments to deweypublications(at)gmail.com. The podcast does not provide legal advice.

      

#99 - March 16th, 2021

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)

#98 - February 25th, 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)

#97 - January 18th, 2021

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 7 (2021) (bargaining obligations: conditions of employment and working conditions)

#96 - November 27th, 2020

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)

#95 - October 26th, 2020

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

#94 - September 9th, 2020

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)

#93 - August 6th, 2020

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

#92 - July 14th, 2020

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)

#91 - June 3rd, 2020

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)

#90 - April 13th, 2020

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)

#89 - February 21st, 2020

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)

#88 - January 15th, 2020

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)

#87 - December 11th, 2019

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)

#86 - November 25th, 2019

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)

#85 - October 16th, 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)

#84 - September 17th, 2019

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]

#83 - August 20th, 2019

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)

#82 - July 15th, 2019

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)

#81 - June 14th, 2019

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)

#80 - April 24th, 2019

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)

#79 - March 27th, 2019

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)

#78 - February 14th, 2019

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)

#77 - January 24th, 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)

#76 - October 16th, 2018

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)

#75 - September 7th, 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)

#74 - August 27th, 2018

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)

#73 - June 5th, 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

#72 - May 15th, 2018

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).

#71 - March 22nd, 2018

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)

#70 - February 13th, 2018

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)

#69 - January 9th, 2018

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).

#68 - November 21st, 2017

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

#67 - October 3rd, 2017

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)

#66 - July 17th, 2017

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

#65 - June 5th, 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.

#64 - April 11th, 2017

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

• Federal Labor Relations Authority 2017 Budget Justification (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 (opm.gov/policy-data-oversight/workforce-restructuring/reductions-in-force/workforce_reshaping.pdf);
• OPM Guidance for Administrative Furloughs (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);

#63 - February 21st, 2017

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).

#62 - January 16th, 2017

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).

#61 - December 27th, 2016

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).

#60 - December 7th, 2016

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).

#59 - October 17th, 2016

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).

#58 - September 12th, 2016

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

• AFGE Local 2266 and DHS, C&BP, 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).

#57 - August 22nd, 2016

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).

#56 - July 12th, 2016

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."

#55 - June 6th, 2016

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).

#54 - May 17th, 2016

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).

#53 - May 3rd, 2016

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).

#52 - April 14th, 2016

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)

#51 - April 1st, 2016

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)

#50 - March 14th, 2016

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)

#49 - February 8th, 2016

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)

#48 - January 26th, 2016

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

#47 - December 30th, 2015

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))

#46 - November 30th, 2015

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

#45 - November 2nd, 2015

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)

#44 - October 12th, 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)

#43 - September 28th, 2015

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)

#42 - September 4th, 2015

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)

#41 - August 25th, 2015

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)

#40 - August 19th, 2015

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)