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NEWS AND CASE ALERT
September 2nd, 2021 | Issue #13-08
TABLE OF CONTENTS
VERBAL EEO SETTLEMENTS ARE VALID (REALLY?)
WATCH THOSE DISCOVERY OBLIGATIONS
SUGGESTED READING
Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email.

By: Natania Davis and Founding Author Ernest C. Hadley
Edition: 34th/2021
ISBN: 978-1-941825-86-0; 1-941825-86-9
Availability: IN-STOCK (released 8/25/2021)
Newly updated this valuable text provides comprehensive coverage of harassment law based on sex, race and color, religion, disability, national origin, age and reprisal. The history of harassment law is rooted in sexual harassment law and cases. Each chapter begins with that history and then explains what the law is today and how/if it differs for the various bases. (more details)
VERBAL EEO SETTLEMENTS ARE VALID (REALLY?)
Everybody knows: EEO settlements are enforceable only if they are written and signed, right? [29 CFR 1614.603: “Each agency shall make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in, and throughout, the administrative processing of complaints, including the pre-complaint counseling stage. Any settlement reached shall be in writing and signed by both parties and shall identify the claims resolved.”]

Smart lawyers sued in the Claims Court for money claimed under a verbal settlement agreement between Ms. Bullock and the Army. The Claims Court said that the EEOC regulation (and a parallel Army regulation) barred the collection effort. Not so said the Federal Circuit on review. A verbal settlement (assuming proof of the agreement) for payment of money is enforceable in a Tucker Act suit. This decision is one in a short series of opinions from the Federal Circuit allowing suits in the Claims Court to obtain monetary benefits (or possibly contract damages) for settlements of personnel cases that the government unsuccessfully argued could only be pursued through administrative channels (EEOC or MSPB enforcement procedures).

Bullock v. United States (Fed. Cir. 2020-1248 Aug. 26, 2021)
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2020. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. Major topics include the nature of arbitration, the collective bargaining agreement, arbitrability, grievances, hearings, management rights, contract interpretation, common substantive arbitration topics, settlement, remedies, counsel fee and damages.

By: Broida & Davis
Edition: 12th/2021
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA.
WATCH THOSE DISCOVERY OBLIGATIONS
It happens in personnel litigation that one party, or both of them, are not especially attentive to discovery responses. Documents or information are not provided in reply to document requests or interrogatories. Or responses to requests are not supplemented when new information is found during the litigation and before hearing. These omissions, perhaps intentional, more often the result of neglect, can have unintended, unfavorable consequences. If during a hearing a document is produced or testimony offered that should have been (and was not) provided or identified in discovery, the judge, on objection, may exclude the documents or testimony, with significantly adverse effect on the party making the offer. Considering and respecting evidentiary exclusions by a district court in a commercial lawsuit, the Federal Circuit noted:

Answers to contention interrogatories . . . serve to narrow and sharpen the issues thereby confining discovery and simplifying trial preparation.” . . . We have recognized that answers to contention interrogatories evolve over time as theories of liability, defense, and relief begin to take shape and that answers to those interrogatories may not come into focus until the end of discovery. . . . But Rule 26(e) expressly requires that as theories mature and as the relevance of various items of evidence changes, responses to interrogatories, and particularly contention interrogatories, must be corrected or supplemented to reflect those changes.

Lesson: properly respond to discovery; use motions in limine (or carefully tailored and comprehensible objections [not boilerplate rubbish]) to avoid burdensome discovery; timely supplement discovery responses.

MLC Intellectual Property, LLC v. Micron Technology (Fed. Cir. 2020-1413 Aug. 26, 2021)
A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2020 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney.
Using Board and Federal Circuit cases as examples, Charges & Penalties offers the most comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. Major topics include the basics of adverse actions and charges; causation; charge classification; specific, generic, and narrative charges; power charging; lesser-included offenses; charge interpretation; notice and due process; the conjunctive charge; indefinite suspensions and security-related charges; merging, selecting and drafting the charge; advice for proposing and deciding officials; the penalty; and charges and proof requirements.
SUGGESTED READING
Scott Dodson, Lee Rosenthal and Christopher L. Dodson: The Zooming of Federal Civil Litigation
Newly updated, this guide provides practice notes and examples of provisions that are grouped by settlement topics. Major settlement provision topics include access to and return of agency property and access to facilities, actions upon and consequences of breach, cancellation or rescission of action, conditions of ongoing employment, construction of agreement, disclosure and maintenance of information, enforcement, financial considerations for the appellant, future employment, introductory clauses, leave status, performance, promotion, substituted employment actions, termination of appeal, waiver of rights, and miscellaneous settlement terms.
A comprehensive examination of the arbitration process and advocacy. With discussion of strategies and practice tips, this how-to guide assists union and management advocates. Major topics include advocate selection, case investigation and evaluation, arbitrator selection, case preparation, prehearing practice, witness selection and preparation, hearing specifics: opening statements, creating a record, witness testimony, direction examination, cross-examination, exhibits, and closing arguments, and post-award practice.
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This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2021 and reviews EEO laws, regulations, guidance, and recent trends. Major topics include recent trends in the law; bases of discrimination; attorney fees; class actions; compensatory damages; appellate review; evidence; harassment; hearings; mixed cases; procedures; remedies; reprisal; settlement; and sexual harassment.
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. Major topics include a review of FMLA legislation, applicability of the FMLA in the federal government, coverage of employees and family members, eligibility, covered conditions, notice requirements, documentation, leave amount and scheduling, paid leave, maintenance of benefits, return to work, record-keeping, prohibited acts, enforcement and remedies, COVID-19, Families First Coronavirus Response Act, and Emergency Paid Sick Leave Act, and the interaction of FMLA with other laws.
View All of the American Civil Service Law Series online at: deweypub.com/acsls

The EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.

The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.

The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law.

This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2021 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.

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