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Dewey Publications Inc.
News and Case Alert
Issue #1-8
In this issue...
This book is an indispensible resource for agency employees involved in administering employee leave, union representatives assisting employees with leave-related problems, and attorneys involved in disputes over medical-leave-related issues. The text provides, for the first time, a multi-disciplinary and in-depth discussion of an agency's responsibilities and potential liabilities when administering medical-related employee leave. Administration of leave is a comprehensive review of the laws and regulations governing this type of leave.

About the Author: Eleanor Laws is an Administrative Law Judge with the Social Security Administration. Prior to that, she served as the Director of the Equal Opportunity Office at The University of Montana, and as an Administrative Judge with the EEOC. She has also been in private practice, with both the Law Offices of Gary M. Gilbert and Associates and the Law Offices of Ernest C. Hadley. Her practice included representing clients in proceedings before the EEOC, MSPB, and OWCP.

Agency Practitioners: Wondering what kind of compensatory damages exposure your agency faces with the newest EEO complaint?

Complainants and their Representatives: Wondering what your case is worth?

Great deference is afforded to the discretion and judgment of the trier of fact with regard to damages, making practitioner's knowledge of this topic critical. In its third edition, this book is the resource you need to influence those discretionary judgments as they bear upon awards of compensatory damages by analyzing recent developments, cases and trends. The 2009 Supplement updates the main text and ensures practitioners a comprehensive grasp of developments in the law on damages.

Cut your research time on compensatory damages to mere minutes with this clear and concise review of the most up to date case law regarding damages in federal sector employment discrimination cases. Compensatory Damages details awards, proof, mitigation and offsets and related relief topics including back pay, injunctive relief, front pay, reinstatement, settlements and attorney fees.

About the author: Gary Gilbert 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.
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Welcome to the eighth 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.

Benfield v. Dept. of Army, ___ Fed. Appx. ___
(Fed. Cir. 2009 nonprecedential)

Settlement agreements often include provisions regarding rescission or destruction of records from the OPF or other agency files, but the agreements include a provision allowing the agency to keep a copy or the originals of those documents in the litigation file maintained by its counsel. In Benfield v. Dept. of Army, ___Fed. Appx.___ (Fed. Cir. 2009 nonprecedential), a case that may be of particular interest to agency attorneys, the court implied such document retention authority even where the settlement agreement did not explicitly provide for it:

Benfield relies on King v. Department of Navy, to argue that the Army's obligations to purge files of any reference to Benfield's removal extended to all existing files of the Army, not just Benfield's personnel file. In King we interpreted a settlement agreement containing the phrase "remove all reference to the removal action from her Official Personnel File" as requiring the Navy to purge documents from any official Government personnel files that may affect future employment, including those held in personnel files by agencies other than the Navy. 130 F.3d at 1033-34. King does not apply here. The documents Benfield cites as a breach of the Settlement Agreement are located in litigation files in Fort Belvoir's legal office, not in any official personnel file. They are maintained for internal use by the Army's legal staff and their availability is limited. Unlike the documents in King, none of the documents cited by Benfield would affect his future employment in the Government or elsewhere because they would not be available to prospective employers. Thus, there is no reason to interpret the clear language of the Settlement Agreement to include the removal of documents from files other than the Army's physical and online personnel files for Benfield, which the Army has already properly purged.

For Dewey titles discussing MSPB law on settlement agreements, see MSPB Basics: The Agency Edition by Broida and Settlement Forms for MSPB and EEOC by Broida.

The Commission voted, 2-1, on September 16, 2009, to approve the Notice of Proposed Rulemaking to conform its ADA regulations to the Americans with Disability Act Amendments Act. The NPRM has now proceeded into the public comment period and is published at 75 Federal Register 48431-48450 (September 23, 2009). The EEOC awaits your comments prior to adoption of the final rule. Comments must be received within 60 days of the publishing date after which the EEOC will review all comments received and make appropriate revisions. A proposed final regulation will then be sent to the Office of Management and Budget where it will be coordinated with certain federal agencies prior to publication in the Federal Register. Click here for the full text of the proposed regulations.

The Commission has also published a question and answer page addressing common questions about the proposed regulations. Visit the EEOC's Q&A section by clicking here.

For titles discussing the ADA Amendments, see Hadley's A Guide to EEO Law and Practice and Consolidated Federal Sector EEO Update 2004-2009 by Vitaro, Goodfriend, & Gilbert. Also from Dewey, expected in early 2010, the new edition of A Guide to Federal Sector Disability Law and Practice by Hadley with extensive treatment of the ADA Amendments and final regulations.
AFGE Local 446 v. VA, 64 FLRA No. 4 (August 28, 2009)
Treasury, IRS and NTEU Chap. 72, 64 FLRA No. 6 (Aug. 31, 2009)

The FLRA has a new Chairman, a new website, and declares that it is "Back in Business." now boasts a message from the Chairman, a fully searchable FLRA Decisions database, which can be searched by current or archived decisions dating back to 1979, training materials from the General Counsel's office, and a more user friendly layout. On October 5, the FLRA announced that during FY2009 it has "made significant progress addressing its case backlog and re-engaging with its customers -- federal employees, the unions that represent them, and federal agencies. ... In furtherance of its commitment to improving agency performance, the Authority issued 215 merits decisions -- nearly double the number of decisions issued in the last two years combined and more than the Authority has issued in any year since FY2003."

One decision of interest is AFGE Local 446 v. VA, 64 FLRA No. 4 (August 28, 2009), in which the Authority, following MSPB precedent, held that the union is not a "prevailing party" under the Back Pay Act and not entitled to recover counsel fees where, during an arbitration hearing, the agency cancels the grieved suspension. Rejecting the union's argument that the agency's rescission of the suspension was enforceable as a ruling, the Authority noted that the agency's actions did not constitute an enforceable arbitration award, consent decree, or settlement agreement.

Another decision of interest and important reading for anyone who has or may have an arbitration case involving an EEO claim is Treasury, IRS and NTEU Chap. 72, 64 FLRA No. 6 (Aug. 31, 2009), an extensive discussion of the law governing disability discrimination, reprisal, and compensatory damages.

For the full text of the above Authority decisions, Click here.

For Dewey titles discussing topics related to this article, see A Guide to Principles of Federal Sector Arbitration by Broida and Davis, Collective Bargaining Law for the Federal Sector by Ferris and Compensatory Damages: In Federal Sector Employment Discrimination Cases by Gilbert and coming soon Federal Labor Arbitration Practice: An Advocate's Guide by Bosland.
Aguzie v. OPM, ___MSPR___, 2009 MSPB 177 (2009)

The Board changed the law regarding the its jurisdiction over employment actions taken based on suitability determinations in Aguzie v. OPM, ___MSPR___, 2009 MSPB 177 (2009), suggesting the possibility of an adverse action appeal (with possible mitigation of the removal penalty) if an agency acts against an employee based on an OPM suitability determination after the first year of the competitive service employee's appointment. The Board reasoned:

The distinction is not merely academic. Our jurisdiction over adverse actions under 5 U.S.C. chapter 75, subchapter II includes the authority to mitigate penalties. In addition, the respondent in an adverse action appeal would not be OPM, but rather USCCR, as it was the latter agency that effected the removal action, even if it did so at OPM's direction. We note that under OPM's current regulations governing suitability determinations and actions, a removal action may not be taken under both 5 C.F.R. part 731 and part 752. An action under 5 U.S.C. chapter 75, subchapter II, is ipso facto an action under 5 C.F.R. part 752, which incorporates that subchapter in its entirety. Thus, if the appellant's removal was an action under 5 U.S.C. chapter 75, subchapter II, OPM's own regulations preclude it from being construed as a suitability action under 5 C.F.R. part 731, even though USCCR acted in compliance with an OPM directive issued under the purported authority of 5 C.F.R. § 731.304. To the extent § 731.204(f) may purport to carve out an exception to the Board's statutory jurisdiction under 5 U.S.C. § 7513(d), the validity of the regulation is in doubt.

(Citations omitted).

For more discussion on similar topics, see A Guide to MSPB Law and Practice by Broida.
SILVA V. DHS, ___MSPR___, 2009 MSPB 189 (2009)

Civil service appeals are ordinarily lodged by civil servants or applicants for civil service positions. But in Silva v. DHS, 2009 MSPB 189 (2009), the Board held that, under USERRA, if a federal agency exercises sufficient control over a contractor and blocks USERRA reemployment rights of an individual to a position with the contractor, the federal agency may bear liability under USERRA.

For Dewey titles discussing the USERRA and MSPB Procedure, see Kitchens' Guide to USERRA and VEOA and MSPB Case Summaries by Broida and Davis.