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NEWS AND CASE ALERT
July 14th, 2023 | Issue #15-05
TABLE OF CONTENTS
SUPREME COURT REFINES BURDEN OF PROOF IN RELIGIOUS ACCOMMODATION CASE
FEDERAL CIRCUIT AFFIRMS MSPB’S POSITION THAT WHETHER PROTESTS OF EEO VIOLATIONS BE THROUGH THE EEO COMPLAINT PROCESS OR THROUGH DISCLOSURE TO MANAGEMENT, REPRISAL IS REMEDIED THROUGH THE EEO PROCESS, NOT THROUGH A WHISTLEBLOWER INDIVIDUAL RIGHT OF ACTION
INTERESTING READING
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. A small business for over 39 years.
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NEW RELEASES
Using Board and Federal Circuit cases as examples, Charges & Penalties offers comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. (more details)
Updated annually, 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)
In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details)
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2022. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. (more details)
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. (more details)
Prehearing and post-hearing motions, as well as rules of motion practice are studied in this newly updated practical and helpful guidebook. The authors examine motions presented to the Board and the Commission separately, paying special consideration to how to most effectively use motions for the desired result. (more details)
SUPREME COURT REFINES BURDEN OF PROOF
IN RELIGIOUS ACCOMMODATION CASE
Based on his religious beliefs, a postal worker declined Sunday work. He resigned, following progressive discipline, when the Postal Service declined to accommodate that request—asserting that the accommodation was an undue hardship—citing its operational needs and the impact on other employees and their schedules. The case made its way to the Supreme Court through the employee’s Title VII suit in federal court.
The question was how much disruption must an employer establish to demonstrate undue hardship? Reviewing decisions interpreting the Establishment Cause and Title VII, the Court rejected a test that set the employer’s burden as showing a de minimis (very small or trifling) burden and instead adopted a test requiring the employer to prove substantial costs or disruption in the overall context of the employer’s business. To be considered are all relevant factors, including the accommodations requested and their practical impact in light of the nature, size and operating costs of the employer.
As to the circumstances of the Postal Service worker whose case was before the Court:
Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.
The case was remanded for further proceedings.
How does this square with EEO practice in federal administrative cases? Decisions discussed in the Davis/Hadley Guide to Federal Sector Equal Employment Law and Practice suggest that although the “de minimis” test is cited, it is applied to require employers to show relatively substantial disruptions or costs to avoid providing religious accommodations.
Groff v. DeJoy, Postmaster General, Sp. Ct. 22-147 (June 29, 2023)
2023 PRE-ORDERS
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. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, prohibited personnel practices, retirement, attorney fees, settlement, remedies, and judicial review.(more details)
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. (more details)
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2023 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)
Updated with cases through mid-2023, the Disability Deskbook is an extensive compilation of decisions interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations, and covers all disability related topics. (more details)
A comprehensive, easy to follow, and insightful guide to counseling and investigating EEO complaints, this manual explores the essentials of the EEO complaint process. (more details)
Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2023 and reviews EEO laws, regulations, and guidance. (more details)
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-2023 and a chart of significant awards. (more details)
Written by the late Ernie Hadley and updated by Natania Davis, author of A Guide to Federal Sector Equal Employment Law and Practice, the Guide to Federal Sector Disability Discrimination Law and Practice is a seminal text on disability discrimination case law, statutes, and regulations interpreting and implementing the ADA, ADAAA, Rehabilitation Act, GINA, and Drug Abuse Act. (more details)
First produced in 2005–2006, this course was reviewed and revised in 2023 to add discussion of the Board’s e-filing system, mediation programs, and video hearings, and to delete references to some procedures no longer used by the Board. The basics of the course remain the same—covering the process from filing of the appeal through issuance of the initial decision. (more details)
Format: downloadable .zip containing .mp4 video and .pdf table of contents
FEDERAL CIRCUIT AFFIRMS MSPB’S POSITION THAT WHETHER PROTESTS OF EEO VIOLATIONS BE THROUGH THE EEO COMPLAINT PROCESS OR THROUGH DISCLOSURE TO MANAGEMENT, REPRISAL IS REMEDIED THROUGH THE EEO PROCESS, NOT THROUGH A WHISTLEBLOWER INDIVIDUAL RIGHT OF ACTION
The appellant, John Edwards, a Labor Department manager, protested to higher-level management racially discriminatory workplace practices. Edwards alleged that for his trouble, he was reassigned, his duties diminished. He invoked the EEO complaint process, sought assistance from the Special Counsel, and then filed an MSPB IRA appeal.

Seeking to reconcile (overrule) some of its precedent, MSPB dismissed the IRA case for lack of jurisdiction, relying principally on the Federal Circuit’s decision, some decades ago, in Spruill v. MSPB, 978 F.2d 679 (Fed. Cir. 1992), determining that reprisal for a formal EEO complaint is addressed through the EEO process and not as a whistleblower matter. Spruill distinguished the right to complain, 5 USC 2302(b)(9), and other, traditional whistleblower disclosures, 5 USC 2302(b)(8). The internal complaints of Mr. Edwards, held the Board, were in essence EEO complaints (though characterized as abuse of authority), to be addressed through the EEO process.

The Federal Circuit noted that Mr. Edwards had filed an EEO complaint, in addition to his IRA appeal. Although it was argued to the Circuit that the remedies differed for EEO and IRA cases, whatever additional benefits (higher damages, the availability of a stay, the possibility of an OSC corrective action complaint) attended the latter, the former was the exclusive remedy. Dismissal of the Edwards IRA appeal was affirmed.

Edwards v. MSPB, Fed. Cir. 2022-1967 (NP) (July 7, 2023)
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INTERESTING READING
Oversight of Inspectors General: The CIGIE Integrity Committee
Congressional Research Service (May 24, 2023)