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Dewey Publications Inc.
News and Case Alert
Issue #2-3
In this issue...
Featured Book!
Reports of Violent or Threatening Behavior During Mediation is Grounds for Fitness-for-Duty Exam
Standing, PPPs, and Agency Official's Knowledge of Protected Disclosures
FLRA Announces Federal Register Notice of Final Rulemaking Modifying Existing Regulations Regarding the Prevention of ULPs
The Board Disregards the New and Material Evidence Standard for Arguments Raised for the First Time on PFR?
Attention
Agency Attorneys,
HR and Labor Relations Specialists, Supervisors and Managers,
Union Representatives:

We Know You Have Questions!
Administration of Leave and Medical Document Requests
By Eleanor Laws

Has the Answers!

Whether you are an agency attorney involved in disputes over medical-leave-related issues, an employee involved in administering employee leave, or a union representative assisting employees with leave-related problems, this book is an indispensable resource. The administration of leave and medical document requests can be confusing and tedious. This text provides, for the first time, a multi-disciplinary and in-depth discussion of an agency's responsibilities and potential liabilities when administering medical-related employee leave. Administration of leave is a comprehensive review of the laws and regulations governing this type of leave.

Administration of Leave and Medical Documentation Requests

Chapters include:
Rehabilitation Act and Americans with Disabilities Act; Federal Employees' Compensation Act; Family & Medical Leave Act; OPM Medical Leave & Documentation Regulations; ADA Medical Exams and Inquiries; Storage and Confidentiality of Medical Records; Determining and Implementing the Appropriate Leave; Returns to Work (Click to view PDF Table of Contents)

About the Author: Eleanor Laws is an Administrative Law Judge with the Social Security Administration. Prior to that, she served as the Director of the Equal Opportunity Office at The University of Montana, and as an Administrative Judge with the EEOC. She has also been in private practice, with both the Law Offices of Gary M. Gilbert and Associates and the Law Offices of Ernest C. Hadley where her practice included representing clients in proceedings before the EEOC, MSPB, and OWCP.
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  • A review of the steps of the Board appellate process and seminal Board and Federal Circuit cases from 1978 to the present, Best of the Board is a must have basic reference for agency and employee representatives alike. (more details)
    Easily access rules of law and commentary on seminal collective bargaining decisions. Written for negotiators, attorneys alike. (more details)

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    A Guide to MSPB
    Law and Practice

    By: Broida

    Price: ($525)
    Edition/Year: 27th/2010
    Expected Availability: April 2010

    This encyclopedic Guide to the MSPB, related litigation, laws, procedure, and practice is the seminal text on this complex area of the law. Author Peter Broida, a veteran practitioner before the Board, offers his thorough knowledge, seasoned experience, and nuanced understanding of the MSPB in this treatise. (more info)



    A Guide to FLRA
    Law and Practice

    By: Broida
    Price: ($430)
    Edition/Year: 23rd/2010
    Expected Availability: May 2010

    The FLRA Guide analyzes the case law of the Federal Labor Relations Authority (established in 1978) and its reviewing courts, as well as the procedures and practice of the Authority. The Authority's unique role in labor relations requires an understanding of the considerable complexities of issues of negotiability, jurisdiction over federal-sector arbitration awards, the intricacies of bargaining orders and unfair labor practice theory and remedies, as well as unit recognition, and the limitations of judicial review. (more info)



    A Guide to Federal Sector EEO Law
    and Practice

    By: Hadley
    Price: ($525)
    Edition/Year: 23rd/2010
    Expected Availability: June 2010

    This Guide is the most comprehensive analysis of federal sector EEO decisions, regulations, policies, guidance, and practical advice available to practitioners. (more info)
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    Welcome to Dewey's News and Case Alert. As always, Dewey aims to cover the topics you want to read about, and our objective is to tailor the information contained herein to our customers needs. E-mail your topic or case suggestions and comments.

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    Reports of Violent or Threatening Behavior During Mediation is Grounds for
    Fitness-for-Duty Exam

    McMurtrey v. Postmaster General, 0120073957 (December 17, 2009)
    By Eleanor Laws

    The Commission held that the agency did not discriminate or retaliate against rural carrier Jerry McMurtrey when it placed him on emergency suspension status and required him to undergo a psychiatric fitness-for-duty exam based on his conduct during an EEO mediation involving a prior complaint.

    Mr. McMurtrey participated in a voluntary mediation of his EEO complaint. The agency's representative, a Labor Relations Specialist, responded to Mr. McMurtrey's opening statement by stating, "That was asinine." Mr. McMurtrey became angry, started yelling, and walked out of the mediation. The agency's contract mediator commented that this behavior was out of proportion to the situation. The mediator further expressed to the Manager of Human Resources his concerns that Mr. McMurtrey could become violent.

    The agency placed Mr. McMurtrey on emergency non-duty status with pay and sent him for a fitness-for-duty exam. The psychiatrist concluded that Mr. McMurtrey was fit for duty and recommended psychotherapy with anger management. Mr. McMurtery was returned to duty.

    The administrative judge found the agency's action in sending Mr. McMurtery for an exam was justified because the agency had a reasonable belief that Mr. McMurtrey posed a threat to himself or others. Specifically, the mediator testified that he had done more than 100 mediations with the agency, and he had never before reported concern about potential violence.

    The McMurtrey decision represents an expansive interpretation of the direct threat standard. In past decisions, the Commission has upheld the propriety of fitness-for-duty exams where specific threats of violence were made. See Hightower v. Postmaster General 0120070560 (2008) (complainant stated he "might do the ultimate to somebody" directed at a supervisor); Munford v. Postmaster General, 0120071416 (2009) (threatening conduct included statement to coworker "It's just too bad that I'm not allowed to have any sharp objects or I would use it on you.") The McMurtrey decision takes this prior caselaw a step further by allowing a fitness-for-duty exam in the face of conduct deemed by a third party to be threatening, rather than in the context of a more explicit facial threat.

    Administration of Leave and Medical Requests provides a full discussion of the Commission's determinations of when fitness-for-duty exams are permissible, including when it is lawful to order one in response to a request for reasonable accommodation. The book also explains tensions between the Commission's caselaw on fitness-for-duty exams under the ADA and OPM's regulations at 5 CFR § 339.301(a), which permit such exams only for specific types of employees.

    For more information and titles on Administrative Leave and Medical Leave Requests, see FMLA Basics by Bosland and Managing Employees' Time by Corum.
    Standing, PPPs, and Agency Official's Knowledge of Protected Disclosures
    Weed v. SSA, 2010 MSPB 23 (January 28, 2010)

    Weed involved an IRA filed by appellant, an Air Force employee, wherein he alleged that the SSA improperly used the FCIP (Federal Career Intern Program) to non-competitively fill vacancies so as to exclude him from consideration. The SSA's actions, according to Weed, were in reprisal for his disclosure to OSC that the SSA had, in previous appointments, used the OSP (Outstanding Scholar Program) to fill certain other positions. This kind of "appointment manipulation", Weed argued, was a prohibited personnel practice because there was no statutory or regulatory authority for the program and because the "agency violated the implementation instructions issued by OPM when it used the program to fill the positions". The Weed decision held the following:

    1) Although not employed by the SSA, Weed has standing as an "employee" to bring a whistleblower reprisal case against the SSA. "We find that Congress's intent in drafting [5 USC 2302 (a)(2)(A)] was to protect whistleblowers from a broad range of possible retaliatory actions from government agencies. In particular, the pertinent language here, i.e., a personnel action means an appointment taken 'with respect to an employee in...a covered position in an agency,' does not impose a limitation or use exclusionary language stating that a protected employee must work for the agency taking the alleged retaliatory personnel action. Indeed, although many of the 'personnel actions' listed above are ones that can be taken only by the employing agency of a whistleblower, there are several listed actions, such as a transfer, a detail, a restoration, and a reemployment, where another federal agency could be the authority taking the personnel action."

    2) "[A]n agency could engage in a prohibited retaliatory personnel action by intentionally using a particular selection process as part of a scheme that would deny a whistleblower an opportunity to seek the appointment." The Board rejected the agency's argument that the Board lacked jurisdiction over Weed's IRA appeal because the allegation that SSA improperly used the FCIP to fill vacancies was not a "personnel action" for WPA purposes.

    3) Agency officials may gain constructive knowledge of a protected disclosure through communications with their representative regarding other litigation the agency has with an alleged whistleblower. By the time Mr. Weed filed his IRA, he and the SSA had been engaged in litigation against each other for several years relating to various SSA vacancies and appointments. In this case, Mr. Weed did not specifically allege that the selecting officials involved in the appointments knew of his protected activity. He did allege that the agency's representative advising management on his other appeals had "actual knowledge of his disclosures and that she was advising the management officials who filled the positions at issue." The Federal Circuit remanded the case for Weed to present evidence and argument establishing that the selecting official for the positions at issue had either actual or constructive knowledge of his disclosures, and that those disclosures were a contributing factor in the agency's decision to structure the hiring process using the FCIP.

    For more information and titles on this topic, see the upcoming MSPB Guide by Brodia.
    FLRA Announces Federal Register Notice of Final Rulemaking Modifying Existing Regulations Regarding the Prevention of ULPs

    In last month's News and Case Alert, #2-2 Dewey reported the FLRA's proposal to revise regulations governing ULP proceedings. As reported, "[o]ne proposed change is that, in appropriate cases, OGC may make staff available to help facilitate dispute resolution at the precomplaint stage, before complaints ripen into ULP charges. Section 2423.2 is further revised to restore the ADR services provision that was in effect prior to February 18, 2008."

    On March 22, 2010, FLRA General Counsel, Julia Akins Clark, announced a Federal Register Notice of Final Rulemaking at 75 Fed. Reg. 13429 (March 22, 2010), implementing the modifications proposed on February 1, 2010. The final rules are the same as those proposed. By Press Release, the FLRA noted:

    "The amended rules restore the Office of General Counsel's leadership role in providing alternative dispute resolution, training and education services to our parties," stated General Counsel Clark. "Staff will be made available once again to assist parties in working collaboratively to resolve labor-management relations disputes." To this end, General Counsel Clark also noted that trained mediators/facilitators are currently engaged in providing training to regional office staff on alternative dispute resolution techniques that staff may use in working with parties to resolve disputes.

    Historically, the General Counsel's office has been successful in resolving labor-management conflicts in ADR settings. 75 Fed. Reg. 13429 is not available electronically, but the full text of the Notice of Proposed Rulemaking may be reviewed at http://edocket.access.gpo.gov/2010/pdf/2010-2047.pdf.

    The Board Disregards the New and Material Evidence Standard for Arguments Raised for the First Time on PFR?
    Smith v. Dept. of Navy, 2010 MSPB 55 (2010)

    The Navy appealed an Initial Decision granting appellant's motion for attorney fees and deposition transcription costs, citing 5 USC 7701(g)(1) as authority for the reimbursement. While the agency disputed the applicable billing rate for attorney's fees below, it did not object to appellant's request for deposition transcription costs. Noting that the Board will not ordinarily entertain an argument raised for the first time on petition for review absent new and material evidence, the Board nevertheless did just that:

    Ordinarily, the Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party's due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). However, the Board has noted that Banks did not involve a Board order directing the payment of public funds in contravention of any federal statute. See Pagum v. Office of Personnel Management, 55 M.S.P.R. 648, 650 n.2 (1992). Because we find that the administrative judge's order would erroneously require the agency to pay funds that are not authorized under 5 U.S.C. § 7701(g)(1), we will address the agency's argument. See Pagum, 55 M.S.P.R. at 650-51.

    Despite the lack of new and material evidence and without declaring a new standard for such a review where the payment of public funds is at issue, the Board reduced the award by the amount of deposition transcript costs, agreeing with the AJ that appellant's fee entitlement was proper under 5 USC 7701(g)(1) and noting that (g)(1) does not authorize an award for deposition costs.

    For more information and titles relating to awards of attorney fees and costs and other remedies, see Compensatory Damages and Other Remedies by Gilbert and Motions Practice Before the MSPB and EEOC by Hadley and Tuck.
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