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Dewey Publications Inc.
News and Case Alert
Issue #1-4
In this issue...
New Book Annoucement!
Commission Approves Regulatory Revisions to Conform to ADA Amendments Act
A Good Reminder of an MSPB Judge's Authority
The Necessity of Jurisdictional Findings in MSPB Cases Even Where Cases are Settled
EEO UPDATE Including The 2008 ADA Amendments With Commentary
UnCivil Servant
NOW AVAILABLE!
All agency and complainant representatives, EEO staff, HR staff, managers and supervisors - you need this book!

The Consolidated Federal Sector EEO Update 2004-2009 summarizes the notable and most recent cases, laws and guidance over a five-year period. Stay abreast of the latest developments in the employment discrimination laws, with an emphasis on federal sector employment. The Update provides an easy reference for recent cases in particular areas of employment discrimination law including the 2008 ADA Amendments.

Book excerpt:
...the ADAAA responds to several controversial decisions from the Supreme Court and provides for a substantial relaxation of the very high standard to show a substantial limitation to major life activities imposed on plaintiffs by the Court. Other highlights of the ADAAA include: clarification that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; an expansion of "major life activities" including the explicit inclusion of the operation of a major bodily function as a major life activity; and a dramatic modification to the way cases are analyzed under the "regarded as" third prong of the definition of a disability. In fact, we believe the most significant aspect of the ADAAA is the new broad application of the "regarded as" analysis - - under the new law an employer regards an individual as having a disability if it acts on the basis of an impairment regardless of whether the employer believed the impairment to be substantially limiting.

About the Authors

Gary Gilbert: Gary is an attorney, consultant, and mediator specializing in the area of employment discrimination law. He has lectured and written extensively on various aspects of employment law and is a former Chief Administrative Judge with the U.S. Equal Employment Opportunity Commission.

Samuel Vitaro: Mr. Vitaro is a labor arbitrator, mediator, fact-finder, and consultant in private practice. He teaches mediation, Merit Systems Protection Board and EEO practice and procedure, and other employment related matters.

Jeffrey Goodfriend: Mr. Goodfriend is an instructor, arbitrator, mediator and a former Administrative Judge for the EEOC and the MSPB.
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Send us your comments and topics of interest.

Dear _________,

Welcome to the fourth edition of Dewey's News and Case Alert. As always, Dewey aims to cover the topics you want to read about, and our objective is to tailor the information contained herein to our customers needs. E-mail your topic or case suggestions and comments.

-Dewey Publications Inc.

Commission Approves Regulatory
Revisions to Conform to
ADA Amendments Act

On July 17, 2009, the Commission voted, 2 to 1, to approve the latest version of proposed regulatory changes to conform to the ADA Amendments Act of 2008.

This is the first in a multi-step process before a Final Rule is developed for a final Commission vote and OMB review, but is a significant leap forward for the proposed rules. The Notice of Proposed Rulemaking ("NPRM") will now be forwarded to certain federal agencies and the Office of Management and Budget for review. The proposed rules will then make their way into the Federal Register for notice and comment. It is upon completion of that process that a Final Rule will be developed for further review by OMB and Commission vote.

Among the proposed regulatory changes are:
1) To add reaching, sitting, and interacting with others to the non-exhaustive list of major life activities contained in the Amendments and to add functions of the hemic, lymphatic, and musculoskeletal systems to the non-exhaustive list of major bodily functions.

2) To explicitly state that "in order to be 'substantially limiting,' an impairment need not severely restrict or significantly restrict performance of a major life activity," which, at least at first blush, does not appear to be particularly useful in clarifying a meaningful standard for assessing whether a medical condition "substantially limits" a major life activity. One can only hope for a rule that contains an actual standard rather than a comment as to what the standard is not.
Other changes relate to the ameliorative effects of mitigating measures, the application of the "transitory and minor" exception to the "regarded as" definition of disability, impairments that are episodic or in remission, and provide examples of impairments that substantially limit a major life activity and those that may substantially limit a major life activity.

For a more fulsome description of the contents of the NPRM, see Christopher J. Kuczynski's statement to the Commission at eeoc.gov/abouteeoc/meetings/6-17-09/kuczynski.html

The transcript of the Commission's meeting will also available at eeoc.gov/abouteeoc/meetings/6-17-09/index.html

Learn more about the amendments with these titles: A Guide to Federal Sector EEO Law and Practice by Hadley and Compensatory Damages and Other Remedies, 2009 Supplement by Gilbert and A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley.
A Good Reminder of an
MSPB Judge's Authority

Simon v. Dept. of Commerce,
2009 MSPB 95 (June 5, 2009)

Appellant failed to comply with three AJ orders including one wherein the AJ advised Appellant of her burden and elements of proof regarding her affirmative defenses and ordered her to submit evidence or identify information applicable to her alleged EEO issues and all other affirmative defenses. Appellant's failure to comply lead the AJ to "waive" Appellant's affirmative defenses (the Board notes that this "waiver" was essentially a sanction). Finding the sanction "problematic" because the Appellant clearly asserted her affirmative defenses and did not express an intent to withdraw same, the Board noted that the AJ could have barred Appellant from presenting any evidence in support of her affirmative defenses or drawn an inference in favor of the agency. Either option may have achieved the desired result. Nevertheless, citing to Redd v. USPS, 101 MSPR 182 (2006), the Board held:

[B]ecause the appellant never presented any factual allegations which, if taken as true, support the affirmative defenses that she alleged, despite multiple opportunities to do so, we find that the AJ was not required to permit the appellant to attempt to prove her allegations at the hearing.

While not the first of its kind, Simon is a good reminder of an MSPB judge's authority and confirms their ability to direct an appellant to set out the elements of an affirmative defense in the nature of discrimination as a condition to carrying the defense forward to hearing. This case is interesting because, by its analysis, the Board is essentially advocating judge-directed summary judgment proceedings.

Learn more about MSPB AJ's authority with these titles: MSPB Basics: A Brief Guide for the Distressed and Perplexed by Broida and MSPB Basics: The Agency Edition by Broida.
The Necessity of Jurisdictional Findings
in MSPB Cases Even Where Cases are Settled
Potter v. VA, 2009 MSPB 92 (2009)

When the agency threatened to remove Potter, he responded with an e-mail asking the agency, "Could you please terminate my employment with the [agency] today so that I do not have to go through a long and drawn out process." The agency treated Potter's e-mail as a resignation. Potter appealed. Prior to a hearing, the parties reached a settlement. At the parties' request and according to an express term of the settlement agreement, the AJ accepted the settlement into the record for enforcement purposes. The appeal was dismissed without the AJ having made a jurisdictional finding. In his petition for review, Potter challenged the validity of the agreement alleging coercion, duress and emotional distress.

The Board concluded that Potter failed to show that the settlement agreement was involuntary, but reopened the appeal holding that the agreement was invalid based on a mutual mistake by the parties. The Board noted that the settlement specifically called for its entry into the record for enforcement purposes, which could not properly be accomplished without first an affirmative finding of jurisdiction over Potter's alleged involuntary resignation. The appeal was remanded for a jurisdictional hearing. This case is interesting in its forceful reiteration of the need for a jurisdictional analysis prior to the dismissal of an appeal based on a settlement agreement that the parties seek to be entered into the record for enforcement purposes.

Learn more about MSPB jurisdiction with these titles: Merit Systems Protection Board Case Summaries by Broida and Davis and A Guide to MSPB Law and Practice by Broida.
The 2009
MSPB,
FLRA
and
EEO
Guides
are Available!
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.

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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