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News and Case Alert
Issue #2-1
In this issue...
Featured Book!
Crumpler Revisited
Conducting Misconduct Inquiries
Federal Circuit Expands the Board's Interpretation of Reconstruction Remedies Under 5 USC 3330c
The Board Imposes Greater Scrutiny of Discovery Rulings in IRA Cases

Misconduct, poor performance, EEO complaints, oh my!

Hiring, evaluating performance, promoting, firing, all these actions and more, which are an integral part of managing employees, can result in EEO complaints. EEO and the Federal Supervisor by Michael Corum explains what constitutes illegal discrimination and offers prescriptive guidance for dealing with the most common EEO problems posed by the most common management decisions, including hiring, discipline, assigning duties, training and performance assessment. Managers and supervisors will enjoy and appreciate Mr. Corum's straightforward and "free of legalese" style of writing. This book is important reading for supervisors, managers, and those advising them.

About the Author: Michael Corum is a popular author and lecturer on dealing with problem employees in the federal civil service. He is a leading author of books for federal supervisors and personnel specialists, and he puts on highly acclaimed seminars for federal agencies on discipline, handling problem employees, EEO, and performance management.


EEO and the Federal Supervisor
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Conducting Misconduct Inquiries: A Guide for Federal Managers and Supervisors
An employee has alleged being sexually harassed by a coworker. Now what? How do you proceed? Can you investigate and, if so, how do you go about it? What are your obligations? What is the scope of your authority? All supervisors or managers are almost certain to face this scenario or some other alleged form of misconduct at some point in their career and for many it is not a one time occurrence.

Whether you are a supervisor or manager or you advise them, Conducting Misconduct Inquiries: A Guide for Federal Managers and Supervisors is an indispensable resource to navigating through the treacherous waters of conducting misconduct inquiries. The authors have written a comprehensive text on how to conduct fair and efficient inquiries including how to prepare for and conduct an inquiry, how to collect and analyze evidence and documentation, and how to report findings and make recommendations.

About the Authors:
Samuel Vitaro is labor arbitrator, mediator, fact-finder, and consultant in private practice specializing in MSPB and EEO matters.
Jeffery Goodfriend is an attorney specializing in federal employment law.
Gary Gilbert is an attorney, consultant, lecturer, author and mediator specializing in the area of employment discrimination law and a former Chief Administrative Judge for the EEOC.
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Consolidated Federal Sector EEO Update 2004-2009
Compensatory Damages, 2007
Administration of Leave and Medical Documentation Requests, 2009
Collective Bargaining Law for the Federal Sector
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Crumpler Revisited: Courtesy of the MSPB's New Chairman and Vice-Chairman
Crumpler v. Dept. of Defense, 2009 MSPB 233 (2009)

In the Ninth Edition of Dewey's News and Case Alert, we reported Crumpler v. Dept. of Defense, 2009 MSPB 224 (2009), wherein the Board, applying Dept. of Navy v. Egan, 484 U.S. 518 (1988), held that if an employee is determined by the agency, with due process protections, to be unable to fill a "sensitive" position even though a security clearance is not required, the agency's decision to fire the employee for that reason will not be reviewed by the Board. This decision extended Egan far beyond what any reviewing body has interpreted.

Things have changed at the Board since that decision. Former Chairman McPhie was replaced by Chairman Grundmann. Vice Chairman Wagner also joined the Board. The McPhie Crumpler decision must have been on the new members' radar because shortly after taking their seats on the Board Grundmann and Wagner reopened the case on the Board's own motion and vacated the Crumpler decision under McPhie. With only Chairman Grundmann and Vice Chairman Wagner participating in the decision, Crumpler v. Dept. of Defense, 2009 MSPB 233 (2009), noted that the McPhie decision

marked a momentous change in the law. In the previous 21 years the Board had never interpreted Egan as restricting Board review in an appeal brought by an employee who was not required to maintain a security clearance for access to classified information to hold his position. The Board's November 2, 2009 decision thus announced a major limitation on the "basic procedural rights" of untold numbers of employees in the Department of Defense, Department of Homeland Security, and elsewhere whose work does not involve access to classified information, but whose positions have been designated non-critical sensitive

....

[c]onsidering that government-wide rules promulgated by OPM lie at the heart of this case, specifically, 5 C.F.R. Part 732, orderly administration of the federal civil service system demands that OPM's views on the proper interpretation of those rules be solicited before a groundbreaking decision is issued. We therefore find that this case presents unusual or extraordinary circumstances, and that the desirability of finality is outweighed by the public interest in reaching the right result, which is to permit OPM and other amici, if any, the opportunity to express their views before the Board issues a decision with potentially far-reaching implications across the federal civil service.

Stay tuned...

For Dewey titles dealing with security clearances, see Security Clearance Law and Procedure by Elizabeth Newman, A Guide to MSPB Law and Practice by Peter Broida, and A Guide to Federal Sector EEO Law and Practice by Ernest Hadley.

Conducting Misconduct Inquiries:
A Brief Review of Cases Involving Management Inquiries

Whether you are a supervisor or a manager or you advise them, you've likely been faced with allegations of misconduct committed by an employee. You may have even been tasked with conducting an investigation of your own into the allegations. Certainly, how to proceed was foremost on your mind. Below are three cases, briefly summarized, analyzing management inquiries and lessons to be learned. For more comprehensive and step-by-step guidance on how to conduct inquiries into alleged misconduct, see Conducting Misconduct Inquiries: A Guide for Federal Managers and Supervisors by Dewey authors Vitaro, Goodfriend and Gilbert.

Lesson 1: Familiarize yourself with agency internal policies and procedures and follow them. Preserve notes taken during witness interviews and memorialize witness statements.

Kamahele v. DHS, 109 LRP 73474 (Dist. Ct. HA Nov. 13, 2009). Homeland Security removed appellant for, among other things, lack of candor during a management inquiry. On appeal, the AJ sustained some charges while denying others and mitigated the removal to a 90 day suspension. The AJ also concluded that although the agency committed several procedural errors in conducting its management inquiry, those errors were not "harmful." The agency appealed to the Board, and the appellant filed a cross-PFR. The Board affirmed the AJ's findings of fact but reversed the mitigated penalty back to a removal. Appellant appealed to the District Court.

Contrary to the AJ findings, the court concluded that the agency's errors relating to the management inquiry were significant and harmful. Specifically, the "failure of the investigators to preserve notes taken during witness interviews and to properly memorialize or ratify witness statements" and that "[i]nvestigators, in contravention of internal policies, did not have witnesses read, correct, and sign their final statements" left appellant with no access to the witnesses' original statements and unable to "impeach their credibility or even know if they had materially changed their version of the facts."

Lesson 2: Follow agency procedures regarding when management inquiries are appropriate and/or required and document the results of such inquiries.

Neuman v. USPS, 108 MSPR 200 (2008). The Board sustained appellant's removal for, among other things, failing to conduct a management inquiry into a subordinate's allegations of sexual harassment in contravention of district policy. The Board further noted that appellant's failure to conduct an inquiry into the employee's allegations and to document the results put the agency in a position of potentially increased liability.

Lesson 3: Copious documentation of witness statements during a management inquiry may assist in bolstering witness testimony.

Tudor v. Treasury, MSPB Dallas Reg office, DA-072-08-0172- I - 1, 108 LRP 63949 (Sept 19, 2008). AJ sustained charges of failure to obtain proper approval authority for certain actions largely on the basis of a Hillen credibility ruling, where another witness' testimony was found more credible than the appellant's primarily because the witness' testimony was consistent with statements he made during a management inquiry.

Dewey titles for Supervisors include EEO and the Federal Supervisor by Michael Corum and UnCivil Servant: Holding Government Employees Accountable for Performance and Conduct by William Wiley.

Federal Circuit Expands the Board's Interpretation of Reconstruction Remedies Under 5 USC 3330c
Marshall v. DHHS, 2009-3086 (Fed. Cir. 2009)

Marshall v. DHHS, 2009-3086 (Fed. Cir. 2009), involved the agency's selection of a non-veteran over appellant, with veteran's preference rights, without obtaining OPM approval - a VEOA violation conceded by the agency. The agency, AJ, and the Board disagreed as to the remedy. The court took the Board to task for unnecessarily complicating a relatively straightforward case by ordering HHS to reconstruct the selection process and, on appellant's petition for enforcement, concluding that HHS had properly remedied the VEOA violation by canceling the selectee's appointment and ultimately not hiring anyone for the position.

The MSPB rejected the agency's argument that it satisfied § 3330c, which sets forth remedies for veteran's preference violations, by offering appellant an alternative position. It likewise rejected the AJ's determination that § 3330c required retroactive reinstatement with the payment of compensation and lost wages and benefits. In keeping with its previous decision in Dean v. Dept. of Agric., 99 M.S.P.R. 533 (2005), wherein the Board interpreted the statutory mandate that it "shall order the agency to comply with such provisions" to require only reconstruction of the selection process, the MSPB concluded that the appropriate remedy was reconstruction of the selection process-not necessarily reinstatement. Appellant argued that because HHS conceded that its actions violated his veterans' preference rights and that it would have selected appellant for the position in the absence of this violation, he was entitled to compensation for any loss of wages or benefits suffered. The court agreed and noted that

reconstruction may be an appropriate way to comply in situations where it is unknown whether a veteran would have been selected for a position, the record here is clear regarding what would have occurred absent the violation. HHS would have selected Mr. Marshall for the Budget Analyst position. Thus, there is no need for a manufactured reconstruction process

....

We conclude that the MSPB abused its discretion in dismissing Mr. Marshall's petition for enforcement because the MSPB's decision was based on an erroneous interpretation of 5 U.S.C. § 3330c. When an agency violates a veteran's preference rights during selection in the competitive service and when it is undisputed that the agency would have selected the veteran for the position sought but for the violation, § 3330c requires the agency to offer the same-or, as near as possible, a substantially equivalent-position to the veteran. Under § 3330c, the veteran is also entitled to receive compensation for any loss of wages or benefits suffered by reason of the veterans' preference rights violation involved.

For Dewey titles addressing the VEOA and related remedies, see A Guide to USERRA and VEOA by Joyce Kitchens and A Guide to MSPB Law and Practice by Peter Broida.
The Board Imposes Greater Scrutiny of Discovery Rulings in IRA Cases
Ryan v. Dept. of Air Force, 2009 MSPB 235 (2009)

In Ryan v. Dept. of Air Force, 2009 MSPB 235 (2009), the Board remanded an IRA case for the judge to reevaluate discovery claims and objections. The judge sustained the agency's broad assertions that appellant's requests for documents and admissions were too broad or sought material that was immaterial or irrelevant.
The agency objected to each of the appellant's 21 requests for admission and 22 requests for the production of documents. It appears the administrative judge denied the appellant's motions to compel in their entirety. However, at least some of the appellant's discovery requests clearly meet the standard of seeking "information that appears reasonably calculated to lead to the discovery of admissible evidence." See 5 C.F.R. § 1201.72(a). For example, the appellant's first document request seeks "all e-mails or any other correspondence related to or referring to [the] appellant (directly or indirectly) or related to one of the appellant's disclosures from 01 August 2002 to current date." The agency might argue that this request is overly broad, but that would not excuse the agency from providing documents that are clearly relevant to the matters at issue in this appeal.

In its opposition to the appellant's first motion to compel, the agency argued that the appellant had served essentially the same discovery requests in a prior Board appeal, and produced a document indicating the administrative judge in that appeal denied the appellant's motion to compel in part, and granted it in part. However, information that was not relevant in another appeal might be relevant in the present appeal. The denial of the appellant's motion to compel in a prior Board appeal therefore has very little relevance to the present appeal.

The Board held that, although the judge would again consider the requests and objections, at least the agency should produce the material that it determined was not too broad, instead of making the objection and producing nothing.

For titles relating to the MSPB discovery process, see MSPB Discovery Forms Book for Agency Representatives, MSPB Basics: A Brief Guide for the Distressed and Perplexed, and MSPB Basics: The Agency Edition by Peter Broida.
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