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Dewey Publications Inc.
News and Case Alert
Issue #1-2

In this issue...
New Book Annoucement!
Returns to Work Through OWCP May Violate ADA
Examining WPA's "Publicly Known" Exception

MSPB research and brief writing just got easier with Dewey's newest book MSPB Case Summaries by Broida and Davis!

This book is a must have for all representatives and researchers!

MSPB Case Summaries compiles brief descriptions of the salient and most useable Board and Federal Circuit decisions from 1999 through the end of 2008 arranged by subject matter areas of Board jurisprudence and further categorized alphabetically for ease of use. Quickly locate relevant decisions, use the hyperlinks to access the full text and cut and paste the summaries directly into your motions and briefs.

Alone, the compilation serves as a great point of reference for attorneys and researchers who understand the basic structure of Board caselaw and is a useful adjunct to the Guide to Merit Systems Protection Board Law and Practice.

About the authors: Peter Broida is a well respected and longtime practitioner of federal sector employment law and authors various comprehensive books on the subject. Ms. Davis' experience in federal sector employment law began in 2002 as an associate attorney with Broida and Associate, where she represented clients in proceedings before the EEOC and MSPB. Broida and Davis have also co-authored the newly released books Senior Executive Service Legal Guide and A Guide to Principles of Federal Sector Arbitration.

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Returns to Work Through OWCP May Violate ADA

McGee v. USPS, EEOC No. 0720060059 (Dec. 3, 2008).

Complainant, a letter carrier, returned to work to a position OWCP deemed "suitable" after she injured her shoulder at work. Though she had been a letter carrier and, because of this, previously worked the day shift, the Postal Service offered her a graveyard shift video coding technician (VCT) position at another facility. OWCP deemed the VCT position suitable because it complied with her medical restrictions. The Postal Service denied complainant's requests to keep her letter-carrier position and to use her specially-equipped car as a reasonable accommodation under the ADA. The agency defended this action, declaring its compliance with the Federal Employees' Compensation Act (FECA) by working through the OWCP process. The EEOC determined that compliance with the FECA is not an ADA defense and, in McGee, did not even constitute a good faith effort at accommodation.

Key point: Standards under ADA and FECA are different. With FECA, the position must merely be "suitable" in relation to medical restrictions. If the employee also meets the definition of a qualified individual with a disability under the ADA, however, the agency is obligated to accommodate the employee in his or her same position, if possible.

For more on Disability Discrimination titles, click here.

For more on OWCP topics, click here.

Examining WPA's "Publicly Known" Exception

Wadhwa v. VA, 2009 MSPB 33 (2009)

Appellant, a physician, submitted a letter to the VA's Inspector General alleging certain security deficiencies at the hospital following an incident during which a patient entered an examination room uninvited and threatened appellant. Among other things, appellant reported that the furniture arrangement, lack of panic buttons and second doors in the examination rooms, and failure to provide patient criminal background information to treating physicians all posed potential dangers.

The MSPB concluded that "the prospect of bodily injury to hospital staff" was sufficiently serious and appellant's disclosures were sufficiently specific to rise to the level of "a substantial and specific danger to public health or safety" within the meaning of 5 USC 2302(b)(8)(A).

Examining the "publicly known" exception to whistleblower reprisal, the MSPB drew the following conclusions:

1) The disclosure of information already known to management does not necessarily preclude the finding of a protected disclosure. Rejecting the AJ's reliance on Meuwissen v. Dept. of Interior, 234 F.3d 9 (Fed. Cir. 2000), to find that appellant's disclosures were not protected because the issues disclosed were already known and had previously been investigated by the agency, the MSPB opined that "[a]n employee's decision to go outside the chain of command to correct a problem that local management has failed to address is a form of protected disclosure under the WPA, notwithstanding that local employees and management were aware of the problem."

2) The "publicly known" exception can be overcome where, as here, an appellant reports "more than merely observable facts" and discloses information that a member of the public would not necessarily recognize or appreciate as a potential danger. The MSPB further rejected the AJ's conclusion that appellant's disclosures were publicly known as "many of the alleged devices or strategies, or lack thereof, would have been apparent to anyone who walked into the hospital." There was no evidence presented that members of the general public had access to the examination rooms, and, even if they did gain such access, without the benefit of appellant's disclosures, a member of the public would not have the additional information necessary to recognize the reported potential dangers.

Highlighting WPA's statutory purpose of remedying wrongs, the MSPB found that the AJ interpreted the publicly known exception too narrowly.

[T]he remedial purpose of the WPA is furthered by encouraging employees to bring to the attention of agency IGs alleged threats to safety that are ignored by local management, and based upon facts which, even if known to the public, do not necessarily indicate a safety threat without also considering additional information not publicly known.


It is also worth noting that the Board, in a footnote, rejected the AJ's conclusion that a finding of gross mismanagement required an "element of blatancy." The MSPB had little trouble finding an inference of causation where six months lapsed between the disclosure and the appellant's reassignment. Appellant realized no relief, however, as the MSPB found by clear and convincing evidence that the agency would have reassigned appellant notwithstanding his disclosures.

For more on Prohibited Personnel Practice topics, click here.

For more Whistleblower titles, click here.

Pre-Order The 2009
MSPB,
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A Guide to MSPB Law and Practice, 2009
This encyclopedic Guide to the MSPB, related litigation, laws, procedure, and practice is the seminal text on this complex area of the law. *NOW AVAILABLE*

A Guide to FLRA Law and Practice, 2009
The FLRA Guide analyzes the case law of the Federal Labor Relations Authority (established in 1978) and its reviewing courts, as well as the procedures and practice of the Authority.

A Guide to Federal Sector EEO Law and Practice, 2009
This Guide is the most comprehensive analysis of federal sector EEO decisions, regulations, policies, guidance, and practical advice available to practitioners.
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