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Dewey Publications Inc.
News and Case Alert
Issue #2-6
In this issue...
Woebcke Continued: Board Notes the Importance of Medical Conditions in Penalty Analysis
Supreme Court Reaffirms Availability of Quality Enhancements in Civil Rights Fee Litigation
Other Cases of Interest from the MSPB and FLRA
MSPB Releases Report Entitled "Prohibited Personnel Practices - A Study Retrospective"

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Dewey Category and SubCategory Links...

2009 Conducting Misconduct Inquiries
(2009) Conducting Misconduct Inquiries

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.

(2010) Federal Sector EEO Update

An indispensable resource designed to catch you up on the latest trends and developments in federal sector EEO law. Includes summaries of important recent case law from January 1, 2009 through January 1, 2010 and discussion of EEO regulations and governing laws. (more details)

Michael Corum has updated and expanded his 2003 classic, Taking Disciplinary Actions with this new handbook. As Michael Corum notes in Disciplining Federal Employees, "[w]hen disciplining employees with appeal rights, you not only have to do the right thing, you have to do things right." The book is written especially for federal supervisors who are charged with establishing and enforcing the written and unwritten rules of the workplace. Michael Corum explains to federal supervisors and managers the philosophy, structure, and detail of administering discipline in the federal service. Disciplining Federal Employees begins by leading supervisors through the four sequential decisions they must make in any disciplinary action. The book then describes how to apply these decisions to the most common disciplinary situations encountered by supervisors and managers, including insubordination and contentious conduct, alcohol and drug situations, off-duty conduct, workplace violence, and protected activity.

(2010) Disciplining Federal Employees

"We at Dewey, with the benefit of a quarter century and more of reporting events and changes in these agencies' [MSPB, FLRA, and EEOC] behaviors and decisions, remain your faithful and cheerful reporter of developments. Stay with us, gentle readers."

- Peter Broida
Quoted from
MSPB Guide 2010

Woebcke Continued: Board Notes the Importance of Medical Conditions in Penalty Analysis
Woebcke v. DHS, 2010 MSPB 85 (May 6, 2010)
By Natania Davis

News and Case Alert #2-6 reported Woebcke v. DHS, ___MSPR___, 2010 MSPB 85 (2010), wherein the Board held that an agency must justify an apparent disparity in penalties despite a distinction in chain of command. The new Board's decision did not end there however. Stressing the importance a medical condition can play in a penalty determination, the Board upheld the AJ's decision to mitigate Woebcke's removal to a 14-day suspension, finding the removal overly harsh because, among other things, the deciding official failed to consider Woebcke's medical condition and his potential for rehabilitation.

The agency removed Woebcke, a Federal Air Marshall, for conduct unbecoming (arrest for solicitation of prostitution) and a missed mission. On appeal, the AJ found that the deciding official did not give sufficient weight to Woebcke's documented depression over a number of life events recently preceding the misconduct that contributed to it. Noting that, with respect to penalty determinations, evidence of a mental impairment should be given considerable weight as a mitigating factor, the Board assessed the evidence before it:
Here, the appellant not only provided medical reports to support the fact that at the time of the misconduct he was suffering from depression, but Brenda Shelley-McIntyre, Ph.D., gave unrefuted testimony indicating that the appellant's depression was a contributing factor to the misconduct in question. She testified that she began treating the appellant shortly after the incident in question and has been treating him for approximately 2 years at intervals of once a week. She testified that the appellant was depressed before the incident took place and based her opinion on the course of events in the appellant's life over several years preceding the misconduct. Among these were: the death of the appellant's mother; the death of his wife's mother and father; and his wife's miscarriage after a difficult pregnancy.

...She testified that the confluence of all of these events, the deaths, the compounded losses, the difficult pregnancy, and the couple falling apart, all caused the appellant to fall apart and created a situation where he made an error in judgment. She testified that, nonetheless, the appellant accepted full responsibility for his actions. Id. She testified that the likelihood of recurrence of the appellant's misconduct was "nil to nonexistent."

The administrative judge found Dr. Shelley-McIntyre's testimony extremely credible, and we find no reason not to defer to this finding, see Haebe, 288 F.3d at 1301. We also find that Dr. Shelley-McIntyre's testimony has probative value because she provided a reasoned explanation for her medical opinions.
For titles discussing medical conditions and penalty determinations, see MSPB Charges and Penalties by Fowler and Vitaro, EEO Law and Practice by Hadley, and Disciplining Federal Employees by Corum.

Supreme Court Reaffirms Availability
of Quality Enhancements in
Civil Rights Fee Litigation

Perdue v. Kenny A., U.S. No. 08-970
(April 21, 2010)

By Natania Davis

The US Supreme Court recently reaffirmed the availability of quality enhancements in civil rights fee litigation, enumerating factors for the analysis and commenting on what not to do. Noting the "strong presumption" that a fee calculated according to the "lodestar method" is reasonable, the Court rejected the argument that such a fee determination can never be enhanced. Where extraordinary circumstances are present, an attorney's fees may be increased due to superior performance, and enhancements may be appropriate in the following circumstances, as delineated by the Court
  • First, an enhancement may be appropriate where the method used to determine the hourly rate does not adequately measure the attorney's true market value, as demonstrated in part during the litigation.
  • Second, an enhancement may be appropriate if the attorney's performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted.
  • Third, an enhancement may be appropriate where an attorney's performance involves exceptional delay in the payment of fees.
Enhancements should not be awarded:
  • without specific evidence that the lodestar fee would not have been "adequate to attract competent counsel";
  • on the ground that departures from hourly billing are becoming more common; or
  • based on a flawed analogy to the increasingly popular practice of paying attorneys a reduced hourly rate with a bonus for obtaining specified results.
For titles discussing attorney fee awards see EEO Update by Vitaro, Goodfriend and Gilbert, MSPB Law and Practice by Broida and MSPB Case Summaries by Broida and Davis.

Other Cases of Interest from
the MSPB and FLRA

By Natania Davis

Bradshaw v. VA, 2010 MSPB 97 (May 28, 2010) (representing a change in law for calculating MSPB appeal times when the appellant fails to advise the agency of a change in address prior to the issuance of an appealable decision; applying Saddler v. Dept. of Army, 68 F.3d 1357, a mixed case appeal, wherein the Federal Circuit held that appellant had no obligation to notify the agency of a change of address and could not be charged with the delay entailed in securing the agency EEO decision triggering the time limit for the Board appeal).

For titles related to the timeliness of appeals, see MSPB Basics the Agency Edition by Broida, MSPB Basics: A Brief Guide for the Distressed and Perplexed by Broida, and MSPB Case Summaries by Broida and Davis.

Lewis v. VA, 2010 MSPB 98 (May 28, 2010) (dealing with comparator employees in disparate discipline defenses; where appellant was charged with same violation of agency policy as comparator employee and deciding official reviewed both cases, Board found appellant and comparator employee similarly situated for disparate penalty analysis despite the deciding official's failure to specifically "sustain" the charge in the letter of reprimand to the comparator employee and that the proposing officials were different; noting the Federal Circuit's more relaxed approach to disparate penalty analyses in Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009), the Board announced: "Consistent with the court's rationale in Williams, we hold that there must be enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently, but we will not have hard and fast rules regarding the "outcome determinative" nature of these factors.")

For titles related to penalty analysis, see Charges and Penalties by Fowler and Vitaro and Adverse Actions and Disciplining Federal Employees by Corum.

AFGE 3911 v. EPA Region 2, 64 FLRA 905 (June 23, 2010) (a reminder that back pay awards under 5 USC 5596 carries interest, which cannot be deducted as a penalty for slow prosecution of a grievance).

For titles related to FLRA topics, see A Guide to Principles of Federal Sector Arbitration by Broida and Davis and Collective Bargaining Law for the Federal Sector by Ferris.

MSPB Releases Report Entitled "Prohibited Personnel Practices - A Study Retrospective"
By Natania Davis

The MSPB recently released a report to the President and Congress entitled "Prohibited Personnel Practices - A Study Retrospective," wherein the Board announced that it will reexamine the rate of occurrence of prohibited personnel practices within the federal sector with a particular emphasis on whistleblower retaliation. In an effort to provide context to this reexamination, this publication details selected previous Board reports to provide readers with "a foundation of past MSPB research that explored these issues." In its cover letter, the Board notes:

[T]he Federal Government still has work to do to ensure a workplace free of prohibited personnel practices. For example, although a decreasing percentage of employees believe that they have experienced prohibited discrimination, many employees believe that personnel decisions are often based on factors other than merit, such as favoritism. There is also a continuing gap between minority and nonminority employees' perceptions of the prevalence of discrimination and other prohibited personnel practices.

Topics to be examined in the upcoming studies are: the legal requirements to a finding that an employee is a whistleblower, the whistleblower process, barriers to reporting wrongdoing, and a review of recent cases brought to the Board to evaluate how whistleblowers fare in the adjudication of their complaints.

For titles discussing Prohibited Personnel Practices, see MSPB Law and Practice by Broida, EEO and the Federal Supervisor by Corum and Best of the Board by Broida.