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November 7th, 2022 | Issue #14-10
We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices.
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This handbook provides detailed, up-to-date information on the federal government’s legal response to the COVID-19 pandemic and how it relates to the federal workforce. Major topics include Executive Order, guidance, regulations, and statues; remote work; leave; vaccinations and testing requirements and exceptions; reopening and return to work; workplace safety requirements; labor relations; COVID-19’s relationship to other laws; and caselaw developments.
The First Four Weeks guides new managers on how to effectively transition into their new supervisory role and manage federal employees while still achieving their goals during the crucial first few weeks of tenure. (more details at
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. (more details at
This comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2022 and reviews EEO laws, regulations, and guidance. (more details at
The new seventh edition offers the most comprehensive reporting and commentary on all aspects of workers’ compensation issues in the federal sector. (more details at
By: Broida & Davis
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2022 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. (more details at
?This newly updated handbook on managing federal employees covers, from a supervisor's perspective, every important aspect of human resources management from hiring to firing. (more details at
Some federal workplaces have strict codes that specifically prohibit offensive speech, imagery, or gestures. Other agencies prohibit harassment, with broad definitions of the prohibited conduct. The Supreme Court says that Title VII is not a civility code. People make all sorts of crude, rude, gross, and offensive comments in the workplace. The EEOC finds that sexually or racially derogatory comments, as well as those directed to disabilities, create agency liability when they are severe or pervasive, with an effect upon a complainant, and go without correction by management once management is on constructive or actual knowledge of the comments.

Enters the Seventh Circuit. Elaine Scaife, a female African-American HR specialist worked on job classification matters, earning outstanding reviews,

A unit supervisor, apparently unhappy with Scaife’s refusal to regrade the position of a unit employee, referred to Scaife in racially disparaging terms. Scaife learned of the comments from a co-worker, and Scaife reported the derogatory statement to higher management.

Affirming summary judgment entered by a district court, although the Seventh Circuit roundly condemned the derogatory comment by a facility manager, the comment did not rise to the level of severe or pervasive because:
  1. Remarks stated directly to a plaintiff “weigh heavier” than when a plaintiff hears them secondhand. Though relevant, “second-hand harassment” is not as great as the impact of the harassment directed at the plaintiff herself.
  2. The history of racial insensitivity of the supervisor who made the comment did “very little to bolster the race-based hostile work environment claim Scaife raised.
  3. The supervisor who made the comment was not a direct supervisor of Scaife and had no direct supervisory control over her.
There were other elements of the case—gender-based hostile environment; reprisal; constructive discharge; and combinations of claims—but none survived the summary judgment entered by the district court. Of particular interest for our review was the court’s assessment of what it styled “second-hand harassment.” EEOC might well come to a different result based on its case law.

Scaife v. VA, No. 21-1152 (7th Cir. Sept. 27, 2022)
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. (more details at
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. (more details at deweypub,com/mscp)
The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details at
The EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details at
The Commission has waxed and waned in its guidance to agency counsel concerning the degree to which they may be involved in the EEO investigative process without interfering with an impartial investigation. The Commission allows a reasonable degree of involvement, but leaves specific determinations to individual cases.
Sanctionable was the conduct of counsel, as described in the Commission decision:
In late May 2016, B1 learned of Complainant's pending EEO case. B1 [agency counsel] later contacted A1 [a manager and a witness] and according to A1 stated that she would "kill him" if he did not "tow the management line" during the investigation. A1 stated that B1 used that expression "no less than 4 times" during the discussion. B1 denied ever threatening A1 with bodily harm. A1 stated that B1 did "not know [him] well enough to 'kid me' in this way." A1 did not share his responses to the investigator with B1, and he reported the conversation to Complainant.

In a subsequent June 22, 2016, email, B1 asked A1 to:
Please get busy drafting your responses which I'll be happy to review and provide red-line comments as appropriate. Remember our end state goal is to get a robust, comprehensive investigative report that fully tells our side of the story through the witnesses' sworn declarations. My advice is that you emphasize in your responses the fact that [Complainant] was by no means the only person reassigned during this .... realignment.
. . .
Citing precedent finding that the Commission has treated such conduct not as an independently actionable claim by a complainant, but as sanctionable conduct for interfering with the EEO process, the AJ found that B1's conduct during the EEO investigation warranted a sanction. Specifically, the AJ found that B1's actions:
[c]onstituted improper interference in the EEO process. [B1's] communications to [A1] were wholly improper, directing him to emphasize certain parts of his testimony over others, being dismissive of some of Complainant's complaints, and otherwise attempting to manufacture testimony. Further, there is no dispute [B1] attempted to speak with [A1] repeatedly concerning his affidavit and to get him to make changes which he did not agree with. Finally, as noted above, a review of the Agency's privilege log indicates [B1] spoke with relevant management officials both prior to and during their interactions with the EEO investigator.
As a sanction, the AJ ordered training for the Agency's Office of General Counsel, Labor and Employment Law Division, focusing on the appropriate manner and methods that Agency representatives may use in assisting Agency managers during an EEO complaint's investigative stage, and on the issue of sanctions for improper interference during the EEO investigative process.
EEOC directed training as a remedy.

Where does this leave us? We hearken to Annalee D. v. GSA, 2019000778 (2019): “MD-110 permits agency defense counsel to participate in the pre-complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office.” Counsel there assisted managers with investigative statements or interview. In Kylee C. v. Secretary of Army, 2020001154 (2021), agency counsel permissibly participated in a fact-finding conference by naming possible witnesses, submitting documents, asking and objecting to questions, and commenting on testimony. The key seems to be restraint by counsel: assist, but do not direct, witnesses and the investigative process.

Wade K. V. DHS, EEOC 2021002290 (Sept. 6, 2022)
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