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Dewey Publications Inc.
News and Case Alert
Issue #2-8
In this issue...
Selected Dewey Titles On Sale
Surviving EEO Complaints
Federal Circuit Takes the Board to Task for Incomplete Analyses in IRA Cases
OPM and DOL Issue Clarifications on the Definition of "Son or Daughter" under the FMLA
Whistleblowing Cases Meet Defamation Suits
MSPB Clarifies Proper Use of Indefinite Suspensions

Select Dewey Titles
On Sale
(Sale ends 9/30/10)
($50 off the following titles)

Best of the Board
by Broida
Price: $100 On Sale! $50
Ever feel overwhelmed by the breadth of MSPB law? Just need the black letter and seminal cases to get you through? New to the practice? Best of the Board is the book for you. This short read reviews the steps of the Board appellate process and seminal Board and Federal Circuit cases from 1978 to the present and is a must have basic reference for agency and employee representatives alike.


Best of the Commission
by Hadley
Price: $100 On Sale! $50
The EEO equivalent to Best of the Board, this book is an indispensable guide for any EEO representative, attorney, or specialist. The text explores the development of federal sector EEO law through landmark decisions of the Commission and the Supreme Court.


EEO Discovery Forms
by Hadley and Fowler
OR
MSPB Discovery Forms
by Broida
Price: $100 On Sale! $50
Fully develop the agency's defenses to EEO claims and MSPB appeals by maximizing discovery with the use of sample interrogatories, document requests, instructions, and definitions patterned after actual cases.


Settlement Forms for MSPB and EEOC
by Broida
Price: $100 On Sale! $50
This handbook offers suggestions, strategies, explanations, and templates for those drafting settlement agreements. Topics include back pay, training, suspensions, waivers, future employment, promotions, leave of all types, zipper clauses and more.

($20 off the following titles)

The Advocate's Practical Guide to Using Mediation
by Settle
Price: $40 On Sale! $20
A "how-to" approach to mediation covering analysis of the viability of mediation in a given case to writing the agreement and all topics in between.


Discovery Practice
before the MSPB

by Tuck
Price: $40 On Sale! $20
This is the ultimate guide to discovery before the MSPB, and includes samples of discovery materials, a detailed examination of discovery procedure, relevant case citations, MSPB regulations, and more, to help maximize discovery and better prepare for litigation.

($40 off the following titles)

Motions Practice
by Hadley and Tuck
Price: $80 On Sale! $40
Prehearing and post-hearing motions, as well as rules of motion practice are studied in this practical and helpful guidebook.

($67 off the following titles)

Federal Sector Disability Discrimination Law Deskbook
by Gilbert
OR
A Guide to Federal Sector Disability Discrimination Law and Practice
by Hadley
Price: $135 On Sale! $67
Both books are easy reads and excellent resources for anyone dealing with federal disability discrimination law.

NEW RELEASE
Surviving EEO Complaints
by Sarah Tuck

For Federal Manager and Supervisors and those that advise them. Sarah Tuck has updated this popular handbook with discussion of topics including the Americans with Disabilities Act Amendment Act of 2008, the Lilly Ledbetter Fair Pay Act, and the Genetic Information Nondiscrimination Act. In its Third Edition, Surviving EEO Complaints expands on harassment law with scenarios on each protected basis, provides more tips on how to communicate better to reduce complaints, and provides additional information on what expect during the hearing process. Remaining true to its title, this edition helps managers and supervisors navigate the tricky waters of EEO complaints and counsels managers on how to constructively deal with the process.

(2010) Surviving EEO Complaints

Since a manager's success or failure may depend on his or her understanding of the EEO process and how to best avoid findings of discrimination, this invaluable handbook should be on every manager's desk.

Sarah Tuck is a Supervisory Litigation Consultant with a federal agency and a long-time and popular Dewey author. Other titles by Ms. Tuck include Crafting Durable Settlement Agreements, Motions Practice Before the MSPB and EEOC and Discovery Practice Before the MSPB.

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"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

Federal Circuit Takes the Board to Task for Incomplete Analyses in IRA Cases
Kahn v. Dept. of Justice, 2009-3125
(Fed. Cir. Sept. 7, 2010)
by Natania Davis

In a fairly lengthy decision, the facts and underlying legal analysis of which are not particularly important for this article, the Federal Circuit directed that where the Board has jurisdiction over an IRA case, the Board must resolve all components of the IRA rather than finding against the appellant on one factor. Kahn v. Dept. of Justice, 2009-3125 (Fed. Cir. Sept. 7, 2010). The court noted that the Board's past approach of relying upon a narrow basis to find against an appellant leaves open the possibility of serial remands as the Federal Circuit finds fault with each discrete finding of the Board.

To avoid such inefficiency in the future, the Board should resolve all contested issues on the merits after a petitioner in a whistleblowing case has established jurisdiction and is entitled to a hearing on the merits. Cf. Simmons Fastener Corp. v. Ill. Tool Works, Inc., 739 F.2d 1573, 1576 (Fed. Cir. 1984) (directing district courts to decide both infringement and validity before final judg-ment). Accordingly, in a hearing on the merits, the Board should make findings on whether (1) the acting official had the authority to take, recommend, or approve any personnel action; (2) the aggrieved employee made a disclosure protected under § 2302(b)(8)(A); (3) the acting official used his authority to take, or refuse to take, a personnel action against the aggrieved employee; (4) the protected disclosure was a contributing factor in the agency's personnel action; and (5) the agency would have taken the same personnel action in the absence of the protected disclosure. See Chambers, 602 F.3d at 1376; Fellhoelter, 568 F.3d at 970-71. If the Board finds one of those contested issues dispositive, it should nevertheless resolve the remaining issues to expedite resolution of a case on appeal.

Dewey titles dealing with whistleblower and Board procedure topics include MSPB Summaries by Peter Broida and Natania Davis and Best of the Board and MSPB Basics by Peter Broida.

OPM and DOL Issue Clarifications on the Definition of "Son or Daughter" under the FMLA
by Natania Davis

In case you missed it, on June 22, the Department of Labor issued a news release to clarify the definition of "son and daughter" under the Family and Medical Leave Act as it applies to an employee standing "in loco parentis" to a child "to ensure that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship." The FMLA allows workers to take up to 12 weeks of unpaid leave during any 12 month period for a myriad of reasons to include for the adoption or birth of a child or to care for a "son or daughter" with a "serious health condition."

On August 31, the Office of Personnel Management issued its own memorandum on the subject adopting DOL's interpretation for Title II of the FMLA, which covers most federal employees. The memo notes:

In summary, existing FMLA regulations define in loco parentis situations to include employees with day-to-day responsibilities to care for and provide financial support for a child. The new interpretation includes employees with day-to-day responsibilities to care for or provide financial support for a child. The interpretation asserts that employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave, and that in all cases, whether an employee stands "in loco parentis" to a child will depend on the particular facts of the situation.

...

Requirements under In Loco Parentis. Consistent with DOL's interpretation, it is OPM's interpretation that our regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child.

...

Multiple Parents and Other Relationships. OPM agrees with DOL that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the "son or daughter" of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. Neither the law nor OPM regulations restrict the number of parents a child may have under the FMLA.

This new interpretative guidance expands in loco parentis coverage under the FMLA to federal employees with no biological or legal relationship with a child making them eligible for FMLA-protected leave. OPM's guidance specifically states that an employee in a same-sex relationship will now qualify for leave to care for his or her partner's child, even if the employee has not legally adopted the child. In addition, an employee who will share child-raising responsibilities with the child's biological or adopted parent would be entitled to leave for the child's birth to bond with the child within the first 12 months following birth.

To review the full text of OPM's memorandum, click here. For more FMLA discussion, see Dewey author Carl Bosland's titles A Federal Sector Guide to the Family and Medical Leave Act and Related Litigation and FMLA Basics and Administration of Leave and Medical Document Requests by Eleanor Laws.

Whistleblowing Cases
Meet Defamation Suits

Anderson v. United States, 364 Fed. Appx. 920 (5th Cir. 2010)
by Natania Davis

In Anderson v. United States, 364 Fed. Appx. 920 (5th Cir. 2010), the Fifth Circuit found that a supervisor's (Anderson) defamation lawsuit could proceed under Texas law against her subordinate employee. What makes this case interesting in the federal context is that Anderson's defamation suit was entirely based on statements made by her subordinate in a whistleblowing complaint, implicating Anderson to the Office of Special Counsel, wherein Anderson's subordinate claimed that certain actions taken by Anderson constituted "gross mismanagement and abuse of authority." After OSC concluded its investigation against Anderson and took no action against her and the MSPB found no whistleblower reprisal against her subordinate, Anderson filed a defamation lawsuit against her subordinate which was allowed to proceed.

In contrast, however, last year the Fifth Circuit found that the remedial scheme of the Civil Service Reform Act preempted a lawsuit based on state law claims by a manager against union officials that the manager believed were making unfounded complaints about his actions as a manager. Schwartz v. IFPTE, 306 Fed. Appx. 168 (5th Cir. 2009).

For more on whistleblower topics, see Peter Broida's A Guide to MSPB Law and Practice and Uncivil Servant by Bill Wiley.

OSC Issues FAQs Regarding Social Media and the Hatch Act
by Natania Davis

The Office of Special Counsel recently issued a new Hatch Act Advisory Opinion entitled "Frequently Asked Questions Regarding Social Media and the Hatch Act." Are you on Facebook or Linkedin? Do you "tweet"? Have you considered whether your "tweeting" about political topics could be a Hatch Act violation? OSC's advisory opinion seeks to provide guidance regarding the intersection of these social media and the constraints of the Hatch Act answering questions including:

1. May a federal employee write a blog on which he or she expresses support or opposition to partisan political candidates and political parties? Short answer: Yes, with limitations.

2. If a federal employee has listed his official title on his Facebook profile page, may be fill in the field provided for "political views" on his Facebook profile? Short answer: Yes.

3. May federal employees advocate for or against a political party, partisan political group, or candidate for partisan public office on their Facebook pages or on the pages of others? Short answer: Yes, with limitations.

For OSC's "long" answers and additional FAQs, click here. If nothing else, the opinion is an interesting read.

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