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Dewey Publications Inc.
News and Case Alert
Issue #1-6
In this issue...
New Book Annoucements!
When Title VII's Disparate Impact and Disparate Treatment Provisions Collide
Salary Comparisons May Not Be Dispositive in Determining Whether Positions are in the "Same Line of ...
Board Questions Scope of Agency Authority With Respect To Excepted Service Hiring Authorities and ...
Where Back Pay Would Otherwise Be Unavailable Under the Back Pay Act MSPB Makes Award Under the Reha...

MSPB Nominations:

On July 31, President Obama nominated Susan Grundmann to be Chairman of the MSPB and Anne Wagner to be a member of the MSPB. They have not yet been confirmed. Ms. Grundmann is the general counsel for the National Federation of Federal Employees, and Ms. Wagner is the General Counsel of the Personnel Appeals Board of the GAO and had previously served as Assistant General Counsel of AFGE.

FLRA Confirmations:

Last month's news alert reported President Obama's nominations to the FLRA. Since then, on August 7, 2009, the Senate confirmed the nominations of Julia Clark as the FLRA General Counsel and Ernest Dubester as the third member of the FLRA.

Collective Bargaining Law for the Federal Sector
by Frank Ferris

Did you happen to notice that nearly all of last month's news alert was dedicated to FLRA topics including cases, news of the newly nominated General Counsel and published website guidance? Collective Bargaining is where it all begins and this book is a must read to understanding the subtleties of collective bargaining for negotiators on both sides of the table and the attorneys that support them.

The FLRA and courts have established over 300 legal precedents for negotiators to follow. Each chapter of Collective Bargaining Law provides short excerpts from these key cases and states the rule of law followed by commentary on how to comply with that law. Negotiators will use this book to quickly settle disputes over what the law requires, attorneys will use the text to write briefs, and the parties will find the book useful in planning their overall bargaining strategies. About the author: Associated with the National Treasury Employees Union (NTEU) for over 31 years, Frank Ferris is an authority on collective bargaining topics. He is the second highest elected official of the NTEU and has supervised union negotiations, training and cooperative efforts programs.
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Welcome to the sixth 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.

When Title VII's Disparate Impact and
Disparate Treatment Provisions Collide
557 U. S. ____ (2009)

When the city of New Haven, CT, refused to certify and eventually threw out the results of an examination, used to identify those firefighters who were the best qualified for promotion, because white candidates outperformed minority candidates on the test, white and Hispanic firefighters (who passed the test) sued the City alleging that discarding the test results deprived them of their chance at promotion and amounted to race discrimination. The City countered that had it certified test results with such racial disparities, it would have faced a racial disparate impact claim by minority firefighters.

The Court began its decision with the usual letter of the law discussion reciting Title VII prohibitions, prima facie showing requirements, employers' available "business necessity" defense, and the employee's burden in responding to such a defense.

Concluding at the outset that the City's actions were race based, the Court noted:
[The City's defense] turn[s] upon the City's objective-avoiding disparate-impact liability-while ignoring the City's conduct in the name of reaching that objective. Whatever the City's ultimate aim-however well intentioned or benevolent it might have seemed-the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race based action.
The issue, then, was "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination." Rejecting the City's "darned if we do and darned if we don't" defense, the Court noted that to allow employers to use a defense of a "good faith fear of disparate impact liability" to excuse disparate treatment would "encourage race-based action at the slightest hint of disparate impact." Instead, the Court adopted the "strong-basis-in-evidence" standard set forth in Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 290 (1986), to resolve issues that arise when the disparate treatment and disparate impact provisions of Title VII collide.
We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.
Acknowledging the statistical racial disparity of the test results, the Court concluded that while this evidence may have established a prima facie case of disparate impact liability, it was hardly enough to draw a "strong basis in evidence" that the City would have ultimately been liable to the minority test takers. After weighing the evidence, the Court concluded,
there is no evidence -let alone the required strong basis in evidence-that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
This decision is particularly instructive for agencies and highlights the need for the careful and thoughtful construction of hiring and promotion tests that are job related and consistent with business necessity, which could very well provide a successful defense the results of any such test favors a protected class.
Salary Comparisons May Not Be Dispositive in Determining Whether Positions are in the "Same Line of Work" for Purposes of Tacking
Davis v. MSPB and Dept. of Navy, 2009-3092
(Fed. Cir. 2009 nonprecedential)

The court in Davis v. MSPB and Dept. of Navy, 2009-3092 (Fed. Cir. 2009 nonprecedential), found that a significant salary difference between two comparison jobs was immaterial to the analysis of whether the jobs were the same or similar for purposes of calculating appellant's probationary service time. At issue in Davis was the tacking of time spent in a temporary job preceding appellant's probationary appointment to the time spent in the probationary job to determine whether the employee could properly be credited with one full year of service entitling her to Board appeal rights.

Although the salary for the permanent position was almost twice that of appellant's temporary appointment, the court instead stressed the importance of analyzing "the fundamental character of the work":
The Board's regulation states that the "same line of work" is "determined by the employee's actual duties and responsibilities." 5 C.F.R. § 315.802(b). We have explained that "the same line of work" language is akin to "similar positions." Mathis, 865 F.2d at 234. Such an analysis requires a comparison of "the nature of the work [Davis] actually performed" in each job. Id. (quotation marks omitted). Thus, for "determining completion of a probationary period, positions are in the same line of work if experience in a position demonstrates the knowledge[ ], skills, and abilities required to perform the work of the other job." Id. (quotation marks omitted).
Rejecting the Board's position that the widely divergent salaries, at least in part, supported its determination that the jobs were not in the same line of work, the court noted that "salary is based on numerous factors, including whether a job is temporary or permanent," and further concluded that salary is not indicative of an employee's "line of work." This case is interesting because, normally, such a disparity in salaries would necessarily result from significant differences in the level of responsibilities and duties of a job.
Board Questions Scope of Agency Authority With Respect To Excepted Service Hiring Authorities and the Potential for Abuse
Weed v. SSA, 2009 MSPB 159 (August 10, 2009)

In Weed v. SSA, 2009 MSPB 159 (August 10, 2009), the Board allowed the appellant to bring a USERRA or VEOA action even thought he did not apply for the job in question where the agency allegedly used the FCIP (Federal Career Internship Program) in order to circumvent public notice requirements for certain vacancies thereby ensuring that appellant never learned of the vacancies. Such obstruction by the agency, if true, the Board hinted, may be a separate violation of what amounts to the anti-reprisal provisions of USERRA. The Board further questioned the authority of agencies (rather than OPM) to decide when and how to use excepted service hiring authorities, such as the much-litigated FCIP, with the effect of diminishing the advertising of jobs and other protections that come with competitive service positions. The Board noted:
[On remand] the parties should also address, as appropriate, the question of whether the statutory scheme permits the exclusion of particular positions from the competitive service by individual agencies, rather than solely by the President or OPM.... As set forth above, 5 U.S.C. § 3302 provides that "the President" may prescribe rules that shall provide, as nearly as conditions of good administration warrant, for necessary exceptions of positions from the competitive service. Moreover, section 3302 provides that "[e]ach officer and individual employed in an agency to which the rules apply shall aid in carrying out the rules." This statement could be regarded as indicating that the rules identifying particular positions as necessary exceptions from the competitive service are to be issued by the President and/or OPM and carried out by officers and individuals in agencies, not issued by those officers and individuals.
Where Back Pay Would Otherwise Be Unavailable Under the Back Pay Act MSPB Makes Award Under the Rehabilitation Act
Edwards v. Department of Transportation, 2009 MSPB 148 (August 3, 2009)
In a lengthy and complicated factual scenario, the details of which we will not reproduce here, the Board in Edwards v. Department of Transportation, 2009 MSPB 148 (August 3, 2009), acknowledged that it has the authority under the Civil Rights Act to award back pay even where the appellant, as an FAA employee, was not eligible for back pay under the Back Pay Act. In so finding, the Board noted:
The Board does not typically award back pay under the Rehabilitation Act; rather, it typically relies on the Back Pay Act as the appropriate authority under which to award back pay because it is a more specific statute that applies to cases arising in the federal employment context and because it is often the more generous of the two statutes. See, e.g., Schultz v. U.S. Postal Service, 89 M.S.P.R. 123, ¶ 8 & n.5 (2001). In relying on the Back Pay Act to award back pay, however, the Board has never suggested that it is without the authority to award back pay under the Rehabilitation Act where awarding such pay under the Back Pay Act would be inappropriate. See id., ¶¶ 7-8; see also Caronia v. Department of Justice, 78 M.S.P.R. 201, 214-15 (1998) (considering whether, under the circumstances, the appellant was entitled to a remedy under the Rehabilitation Act), overruled on other grounds by Carter v. Department of Justice, 88 M.S.P.R. 641, ¶ 25 n.5 (2001). In the present case, back pay may not be awarded under the Back Pay Act. Accordingly, and in light of the agency's discrimination on the basis of the appellant's disability in effecting her removal, we find that the appellant is entitled to back pay pursuant to 42 U.S.C. § 2000e-5(g)(1).