NOTICE: Due to covid-19 we are
shipping orders Tuesdays & Thursdays
All eBook orders are available immediately after checkout.
2009: #01-1 | #01-2 | #01-3 | #01-4 | #01-5 | #01-6 | #01-7 | #01-8 | #01-9 | #01-10 |
2010: #02-1 | #02-2 | #02-3 | #02-4 | #02-5 | #02-6 | #02-7 | #02-8 | #02-9 | #02-10 | #02-11 | #02-12
2011: #03-1 | #03-2 | #03-3 | #03-4 | #03-5 | #03-6 | #03-7 | #03-8 | #03-9 | #03-10
2012: #04-1 | #04-2 | #04-3 | #04-4 | #04-5 | #04-6 | #04-7 | #04-8 | #04-9 | #04-10 | #04-11 | #04-12
2013: #05-1 | #05-2 | #05-3 | #05-4 | #05-5 | #05-6 | #05-7 | #05-8 | #05-9 | #05-10 | #05-11 | #05-12 | #05-13
2014: #06-1 | #06-2 | #06-3 | #06-4 | #06-5 | #06-6 | #06-7 | #06-8 | #06-9 | #06-10 | #06-11 | #06-12 | #06-13 |
2015: #07-1 | #07-2 | #07-3 | #07-4 | #07-5 | #07-6 | #07-7 | #07-8 | #07-9 |
2016: #08-1 | #08-2 | #08-3 | #08-4 | #08-5 | #08-6 | #08-7 | #08-8 |
2017: #09-1 | #09-2 | #09-3 | #09-4 | #09-5 | #09-6 | #09-7 | #09-8 | #09-9 |
2018: #10-1 | #10-2 | #10-3 | #10-4 | #10-5 | #10-6 | #10-7 |
2019: #11-1 | #11-2 | #11-3 | #11-4 | #11-5 | #11-6 | #11-7 | #11-8 | #11-9 | #11-10 |
2020: #12-1 | #12-2 | #12-3 | #12-4 | #12-5 | #12-6 | #12-7 | #12-8 | #12-9 |
2021: #13-1 | #13-2 | #13-3 | #13-4 | #13-5 | #13-6 | #13-7 | #13-8 | #13-9 | #13-10 | #13-11 |
2022: #14-1 |
The "News and Case Alert email" is FREE, signup!
Sign up now to start receiving issues on time. Expect 10-14 issues a year.
We will never spam or give out your address.

My e-mail address is:  

VISIT US ONLINE AT WWW.DEWEYPUB.COM
NEWS AND CASE ALERT
November 10th, 2021 | Issue #13-10
TABLE OF CONTENTS
RESPONSIBILITY OF MSPB INDEPENDENTLY TO EVALUATE A PENALTY FOR MITIGATION WHEN NOT ALL CHARGES ARE SUSTAINED AND THE AGENCY HAS NOT STATED THAT IT WOULD SUSTAIN A LESSER PENALTY FOR THE REMAINING CHARGES
A PERFORMANCE EVALUATION DOES NOT CONTROL, BUT IT SHOULD BE CONSIDERED WHEN IT COVERS CONDUCT OR PERFORMANCE THAT LATER SURFACES IN AN ADVERSE ACTION
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
Updated with cases through mid-2021, the Disability Deskbook is an extensive compilation of cases interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations and covers all disability related topics. Major topics include who is covered under the ADA, specific impairments, major life activities, "regarded as having a disability," "qualified individual with a disability," reasonable accommodation, undue hardship, direct threat defense, and disability related inquiries.
Written for federal supervisors and managers, a Guide to Ethics, Rules, and Responsibilities details and explains the primary rules governing ethics. Major topics include sources of ethics rules; gifts; financial conflicts; impartiality; seeking employment; misuse of position, property, time, vehicles, information; outside activities; reporting wrongdoing; social media postings; post-employment; supervisory liability; and enforcement.
RESPONSIBILITY OF MSPB INDEPENDENTLY TO EVALUATE A PENALTY FOR MITIGATION WHEN NOT ALL CHARGES ARE SUSTAINED AND THE AGENCY HAS NOT STATED THAT IT WOULD SUSTAIN A LESSER PENALTY FOR THE REMAINING CHARGES
Appellant was removed for excessive absences and AWOL resulting from a health condition. The MSPB AJ set aside the excessive absence charge, reasoning that it incorrectly depended in part on the AWOL. Removal was sustained for AWOL. On review, the Circuit noted, as it sustained the charge:
To the extent Ms. Moreno suggests that an agency cannot charge an employee with AWOL no matter the length of the absence and other factors so long as there is a medical reason for the absence, we disagree. We are aware of no such per se rule; nor does Ms. Moreno cite any case law or other support for such a contention.
But the Circuit then considered the impact of the agency’s failure to state whether it would have removed the appellant for only the AWOL charge, as the court remanded the appeal to MSPB to again consider the penalty:
We nonetheless vacate the penalty of removal and remand the case because the Board failed to provide a proper analysis of the Douglas factors. When the Board sustains fewer than all of the agency’s charges, it should determine the maximum reasonable penalty unless the agency has indicated that it desires that a lesser penalty be imposed on fewer charges. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). In this case, the agency did not indicate that it desired a lesser penalty than removal in the event the Board sustained only the AWOL charge. Thus, under Lachance, the Board was in the position to determine the maximum reasonable penalty. We have held that where, as here, the Board must independently determine the penalty, the Board is required to independently balance the relevant Douglas factors. See Tartaglia v. Dep’t of Veterans Affs., 858 F.3d 1405, 1408 (Fed. Cir. 2017) (explaining that the Board is required to independently balance the relevant Douglas factors when reviewing agency penalties upon fewer charges than those brought by the agency) (citing Lachance, 178 F.3d at 1257).

The Board failed to do so here. Under Lachance and Tartaglia, the Board should have independently considered all of the Douglas factors, including Ms. Moreno’s potential for rehabilitation given that she had returned to work part-time, whether Ms. Moreno’s medical conditions were a mitigating factor, and whether lesser sanctions than removal would have been adequate in Ms. Moreno’s case. See Purifoy v. Dep’t of Veterans Affs., 838 F.3d 1367, 1372 (Fed. Cir. 2016). Instead, the Board merely listed the factors the deciding official considered aggravating and those he considered mitigating. Rather than an independent analysis, the Board then summarily concluded that it “f[ound] nothing unreasonable in the deciding official’s weighing of the factors pertinent to the penalty” and that “the absences pertinent to [the AWOL charge] suffice to render the agency’s removal penalty within the bound of reasonableness.” The Board’s remarkably short and deferential analysis falls far short of what is required under our precedent.
Moreno v. Dept. of Interior (Fed. Cir. 2020-1507 Nov. 2, 2021 NP)
By: Natania Davis and Founding Author Ernest C. Hadley
Edition: 34th/2021
ISBN: 978-1-941825-86-0; 1-941825-86-9
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)
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.
RESPONSIBILITY OF MSPB INDEPENDENTLY TO EVALUATE A PENALTY FOR MITIGATION WHEN NOT ALL CHARGES ARE SUSTAINED AND THE AGENCY HAS NOT STATED THAT IT WOULD SUSTAIN A LESSER PENALTY FOR THE REMAINING CHARGES
A passport specialist received a fully satisfactory rating for his work, but the agency removed him for conduct that was included in but was not limited to the evaluation period. The charges embraced failure to follow instructions, failure to properly protected personally identifiable information, and failure to follow agency policies governing passport processing. Another charge involved conduct rather than performance. On appeal, the appellant argued that MSPB erred by disregarding the fully successful evaluation because that evaluation rebutted the first charge (failure to follow instructions). Although the court agreed that the rating was of significance and should have been evaluated by the MSPB AJ, any error was cured by the deciding official’s consideration of the appraisal. As to the significance of the appraisal, the court explained:
In this case, the agency’s employee appraisal form itself demonstrates that following instructions can fall within this area of overlap . . . Mr. Valles is correct that his fully successful rating is relevant to the seriousness of the offenses insofar as the offenses occurred during the evaluation period. The Board did not discuss the evaluation in relation to the penalty, though it did cite the agency’s decision letter which “took into account [Mr. Valles’] seven years of federal service and job performance.” . . . [E]ven if the Board did not consider the evaluation, the deciding official did consider it. In a thorough analysis of the Douglas factors, the deciding official expressly weighed Mr. Valles’ evaluation and past work record among other mitigating factors.
Valles v. Dept. of State, ___F.3d___ (Fed. Cir. Oct. 29, 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
Fred Rodell, Goodbye to Law Review—Revisited, 48 Va. L. Rev. 279 (1962)

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.
The Dewey Publications Podcast
Free to subscribe via iTunes or RSS
Hosted By Peter Broida

View a detailed list of all past episodes at deweypub.com/podcast
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.

MORE BEST SELLERS:





Thank You
Readers, Dewey thanks you for your support during the pandemic. Your continuing commitment to our products pays the rent, pays the staff, and keeps this small enterprise afloat. Our authors remain committed to producing quality texts year after year. We welcome your suggestions for improvements, or comments you may wish to pass along to orders@deweypub.com


Legal reference books and audiovisual training on
federal civil service, equal employment, and labor law,
for attorneys, unions, arbitrators, managers,
and agency personnel offices.

A small business for over 35 years.

      SecurityMetrics Credit Card Safe