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Dewey Publications Inc.
News and Case Alert
Special EEO Edition
In this issue...
THE 2010 EEO GUIDE
THE 2010 EEO UPDATE
AGENCIES BEWARE:
Sanctions Imposed Against Agencies For Failure to Develop EEO Investigation and Hearing Records
Third Circuit Holds That Side Effects from Treatment May Constitute an Impairment
The Commission is Complete,
Back to Work

THE 2010 EEO GUIDE IS HERE AND READY FOR DELIVERY!

2010 EEO Guide

Since the EEO Guide's first edition in 1987, Ernie Hadley has provided readers with unmatched insight on the Commission and its caselaw. Now in its twenty-third edition, A Guide to Federal Sector Equal Employment Law and Practice is the most comprehensive analysis of federal sector EEO decisions, regulations, policies, guidance, and practical advice available to practitioners and EEO/civil rights specialists. Ernie describes his seminal text in the Preface of this year's edition:

Yes, the Guide is a legal book, but it's one that is based on the many stories of those who have and do work for the federal government. Sometimes, those stories tell us about how far we have come in the struggle for civil rights. Sometimes, they remind us of how far we still have to go.

The Guide includes a detailed table of contents, a case table, and index and covers topics such as jurisdiction, the pre- and formal complaint processes, investigations, settlement, hearings, final agency actions, appeals, representatives and official time, and, of course, the theories of discrimination (intentional discrimination, adverse impact and harassment) and the bases of discrimination under Title VII (race and color, sex, national origin, religion, disability, age and reprisal).

The EEO Guide is the standard reference used by advisers to management and unions, practitioners, and adjudicators who are involved in the litigation and analysis of federal sector EEO complaints.

THE 2010 EEO UPDATE IS HERE AND READY FOR DELIVERY!
(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)

THE 2010 FLRA GUIDE IS HERE AND READY FOR DELIVERY!

Guide to FLRA Law and Practice


To stay up-to-date on all things Authority-related, get your of Peter Broida's A Guide to FLRA Law and Practice today. The FLRA Guide is available now and offer comprehensive reportings of Authority and Federal Circuit cases. The FLRA Guide is unmatched in its commentary and extensive review of current FLRA case law, regulations and statutes. For each topic, it also provides a critical historical review that lends great perspective and understanding to the reader.

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THE 2010 MSPB GUIDE IS HERE AND READY FOR DELIVERY!

3 Guides


In its 27th edition, the Guide needs little introduction. This popular and encyclopedic book detailing MSPB related litigation, laws, procedure, and practice is the seminal text on this complex area of the law wherein author Peter Broida, a veteran practitioner before the Board, offers his thorough knowledge, seasoned experience, and nuanced understanding of the MSPB.

3 Guides


Case Summaries also reports cases from the MSPB and reviewing courts impacting Board law. Cases are reported in summary form making MSPB research and brief writing a simpler and more streamlined process. Alone, the Case Summaries compilation serves as a great point of reference for attorneys and researchers who understand the basic structure of Board caselaw and is a useful adjunct to A Guide to Merit Systems Protection Board Law and Practice by Broida.


To stay up-to-date on all things MSPB, get your copy of A Guide to MSPB Law and Practice and MSPB Case Summaries by Broida and Davis. Both are available now and offer comprehensive reportings of MSPB and Federal Circuit cases. The Guide is unmatched in its commentary and extensive review of current MSPB case law, regulations and statutes. For each topic, it also provides a critical historical review that lends great perspective and understanding to the reader.




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

AGENCIES BEWARE:
Sanctions Imposed Courtesy of the EEOC
Against Agencies For Failure to Develop
EEO Investigation and Hearing Records

In 2009 and, more recently, in April 2010, the Commission displayed some commitment to holding agencies accountable with regard to its obligation to develop evidence whether in the context of EEO investigations or during discovery before the EEOC, Koudry v. Dept. of Educ., 05201000196 (April 13, 2010), Royal v. VA, 0520080052 (September 25, 2009) and Cox v. SSA, 0720050055 (December 24, 2009); and, as always, Dewey authors Vitaro, Goodfriend, and Gilbert are committed to keeping you up to date on all EEO related topics. Enjoy below an excerpt from the newly released Federal Sector EEO Update 2010 reporting Royal and Cox with commentary.

Royal v. VA, 0520080052 (September 25, 2009).

Commission affirms AJ decision to grant default judgment to protect the "integrity of the process" where investigation was not timely.

In what we consider one of most significant decisions from the EEOC this year, the Commission upheld its prior decision sanctioning the agency for failing to timely investigate complainant's claim and sets forth clear standards for preserving the "integrity of the process." The decision, one of the few circulated to the Commissioners for approval, actually denied the agency's request for reconsideration, but modified the Commission's previous order and more importantly expands on the guidance for when sanctions are appropriate and sends a clear message to federal agencies that the failure to timely and thoroughly investigate complaints will have serious consequences. We urge the reader to consider this case with the Commission's subsequent decision in Cox v. SSA, 0720050055 (December 24, 2009) (discussed elsewhere in this section) for a full flavor of the Commission's guidance.

In Royal, the Commission somberly stated that, "The agency's delay in completing the investigation within the 180-day regulatory period is no small non-compliance matter. Such a delay warrants a sanction." The agency did not begin the investigation until 192 days after the complaint was filed. The AJ ordered the agency to show cause why it should not be sanctioned. In response, the agency asserted that because it completed the investigation and because there was no adverse effect to complainant, default judgment was an inappropriate sanction. And in classic "blame the victim" fashion, the agency claimed that complainant had a history of abusing the EEO process, an argument the Commission rejected finding there was no evidence to support the assertion. (We note that the argument holds no water as the agency could have dismissed the complaint for abuse of process if it really believed that to be the case). And in a second line of defense, the agency tried to throw its civil rights function under the bus, stating that a decision in favor of complainant would harm the VA Medical Center, as opposed to the agency entity that is responsible for conducting EEO investigations. In a final effort to fend off the default judgment, the agency argued it did not have adequate funding for its EEO investigative responsibilities. The Commission brutally dismissed this effort..."As complainant has persuasively argued, it is the agency's decision as to how it allocates its funding; the agency cannot expect to evade the consequences of its funding decisions."...

Cox v. SSA, 0720050055 (December 24, 2009).

Default judgment upheld where agency failed to develop the record and properly respond to discovery.

Indicating its intent to send a message to federal agencies to "effectively emphasize to the agency the need to comply with AJ Orders in a timely manner, as well as ensuring that any ROI produced by the agency, either on its own or through a contractor, is adequately developed from which to make a decision on the merits of complainant's complaint," the Commission affirmed the decision of an AJ entering a default judgment against the agency for its failure to develop the record and its failure to timely proceed with discovery. Complainant, an Attorney-Advisor GS-12, at the agency's hearing office in Manchester, New Hampshire, alleged she was discriminated against on the bases of sex (female), and age (51) when she was not selected for two details to a Senior Attorney, GS-13, position and was twice passed over for promotion to a Senior Attorney, GS-13, position and a Supervisory Attorney-Advisor, GS-13, position. The complainant filed a variety of motions for sanctions because of the agency's woefully inadequate investigation and failure to properly respond to discovery. At one point, the AJ issued an order directing the agency to pay the attorney fees and costs associated with depositions which were canceled by the agency. The AJ also ordered the agency to show cause why a default judgment should not be entered against the agency for its failure to develop the record and its failure to timely proceed with discovery. In its response to the Show Cause Order, the agency did not contest the fact that the ROI was inadequate to fully evaluate the merits of complainant's case but instead argued that it was not responsible for the results of the investigation because it had contracted with an outside company to investigate the complaint and "does not control these investigations."

In affirming the AJ's decision to impose sanctions, the Commission noted the deficiencies in the investigation, commenting that "At a minimum, a record for a nonselection case such as this should include the applications for those who made the best qualified list, statements from all recommending and selecting officials, and interview panel notes." The Commission went on to pontificate that

...

The regulations found at 29 C.F.R. § 1614.108(b) squarely place the responsibility for an accurate, complete investigation, completed within 180 days, upon the agency. Even if an agency contracts with a company to produce the investigation, it retains control of the outcome of that investigation, and is well within its rights to review the result and require the contractor to complete it in a satisfactory manner. Contracting out the investigation does not relieve an agency of its responsibility to ensure that a complete and timely investigation has occurred.

The Commission went even further in the decision, elaborating on guidance provided in a decision just months earlier, Royal v. Department of Veterans Affairs, 0520080052 (September 25, 2009), signaling its intention to hold agencies accountable to preserve the "integrity of the process." The Commission explained:

We conclude that AJ-1's decision to issue a default judgment in favor of complainant was appropriate under the circumstances of this case, and does not constitute an abuse of discretion. Although the agency has argued that it had good cause with regard to its non-production of witnesses for deposition, we find that its abandonment of any effort to even partially comply with AJ-1's Order to produce the deponents undermines any legitimate arguments it may have had as to the relevancy of some of the requested witnesses. Further, the agency did not show good cause with respect to the delay in appointing a representative until the discovery process only had 30 of the 90 days remaining, or for its failure to respond to complainant's requests for admissions or her other discovery requests.

...

Our decision to affirm AJ-1's issuance of a default judgment will effectively emphasize to the agency the need to comply with AJ Orders in a timely manner, as well as ensuring that any ROI produced by the agency, either on its own or through a contractor, is adequately developed from which to make a decision on the merits of complainant's complaint.

Another case possibly signaling the EEOC's increased emphasis on the timeliness and quality of agency investigations is Koudry v. Dept. of Educ., 05201000196 (April 13, 2010), wherein the Commission denied the agency's request for reconsideration where it found in favor of the complainant based on the inadequacy of the investigative record and the failure of the agency to introduce evidence of a legitimate, nondiscriminatory reason nonselection of the complainant.

For more on these topics and more, order your copy of the Federal Sector EEO Update 2010 today! The Update is an indispensable resource designed to catch you up on the latest trends and developments in federal sector EEO law.

Third Circuit Holds That Side Effects from Treatment May Constitute an Impairment
Sulima v. Tobyhanna Army Depot; Dept. of Army and Defense Support Serv., No. 08-4684
(3rd Cir. April 12, 2010)
By Natania Davis

In Sulima v. Tobyhanna, et al., the Third Circuit recently considered "whether the meaning of 'disability' under the ADA can encompass an impairment resulting solely from the side effects of medication, whether or not the underlying health problems are disabling."

After taking part of a voluntary layoff, Sulima brought suit under the ADA and Rehabilitation Act, alleging that he was forced into the layoff because, inter alia, he was disabled. Sulima's disability claim was grounded in the side effects of the medications he was taking for morbid obesity and sleep apnea. A new regimen of weight loss medications required Sulima to take frequent and lengthy restroom breaks. After explaining his need for these breaks, Sulima's supervisor asked for a doctor's note. Sulima submitted a doctor's note, which stated that because of a "gastrointestinal disorder," Sulmia would need to use the restroom more than usual. Sulima's supervisors asked for more information including how long he would need the medication. Sulima subsequently learned of his supervisor's request to have Sulmia transferred to a different work area, and, at that time, he submitted a doctor's note stating that his medication was changed and he would no longer require frequent restroom breaks. The agency, nonetheless, decided to transfer Sulima but because there was no other work area available at the time, Sulmia accepted a layoff.

Focusing on Sulima's gastrointestinal difficulties as the nature of his alleged disability, the district court granted summary judgment in favor of the employers, finding, in pertinent part, that Sulima "had not presented any evidence to show that either his obesity or sleep apnea directly substantially limited a major life activity." Noting that Sulima did not allege that the gastrointestinal problems were caused by anything other than the medication he was taking, the district court found that Sulima based his "substantially impaired" argument solely on the side effects from his medications.

Noting the Seventh Circuit's decision Christian v. St. Anthony Med. Ctr., 117 F.3d 1051 (7th Cir. 1997), addressing the "side effects" issue, as well as opinions from the Seventh, Eleventh and Eighth Circuit, all finding in favor of the proposition that the "'treatment of a condition that is not itself disabling'" may be a disability within the meaning of the ADA," the Third Circuit held:

We agree with the Seventh Circuit that side effects from medical treatment may themselves constitute an impairment under the ADA. However, as the Seventh Circuit noted, this category of disability claims is subject to limitation. For a treatment's side effects to constitute an impairment under the ADA, it is not enough to show just that the potentially disabling medication or course of treatment was prescribed or recommended by a licensed medical professional. Instead, following the Christian test, the medication or course of treatment must be required in the "prudent judgment of the medical profession," and there must not be an available alternative that is equally efficacious that lacks similarly disabling side effects. Christian, 117 F.3d at 1052. The concept of "disability" connotes an involuntary condition, and if one can alter or remove the "impairment" through an equally efficacious course of treatment, it should not be considered "disabling."

The court's conclusion, while legally significant, was little comfort to Sulima.

We agree with the District Court's holding that Sulima's gastrointestinal problems did not meet this standard, because he did not demonstrate that his prescribed medication was required in the prudent judgment of the medical profession. After being confronted by his employer regarding his frequent long breaks, Sulima contacted his doctor, Dr. Fasciana, who recommended that Sulima stop taking the medication that was causing the side effects. In his deposition, Dr. Fasciana testified that if a patient reported problems with the medications that Sulima was taking, "[w]e would have stopped" prescribing those medications. App. 964. There is nothing in the record to contradict this assessment. Additionally, there is no evidence in the record to show that the specific medications causing the side effects were, in the judgment of the medical profession, the only efficacious medications for Sulima. There is also no evidence in the record to demonstrate that all other equally efficacious courses of treatment would have caused similarly disabling side effects. See Christian, 117 F.3d at 1052 (stating that "the disabling treatment [must] be truly necessary, and not merely an attractive option"); see also Hill, 181 F.3d at 894 (finding no evidence in the record that the plaintiff's "physical condition compelled her to take a combination of medications [that caused the side effects]" (emphasis in original)). Therefore, because Sulima did not demonstrate that the medications that were causing his problems were medically necessary, their side effects cannot be considered as impairments within the meaning of the ADA.

The take away from this case, it seems, is that the side effects of a medication can qualify a person as "disabled" even where the underlying condition for which the medication is prescribed does not so qualify the person. However, the medication must be medically necessary for the side effects to be considered impairments.

The Commission is Complete,
Back to Work

On April 7, 2010, Jacqueline Berrien became the new Chair of the EEOC. Joining her are two new Commissioners, Chai Feldblum and Victoria Lipnic. Without Commission quorum since July 2009, the much anticipated proposed regulations relative to the ADA Amendments Act of 2008 and the Genetic Information Nondiscrimination Act (passed on 2008 and effective November 2009) are in a holding pattern waiting to be finalized.

The Commission met for the first time this year on June 16, 2010. Sadly, neither the ADA Amendments regulations nor those related to GINA are on the agenda. We here at Dewey are hopeful that the Commission will act quickly to coordinate with other federal agencies and issue final regulations. While we wait, the proposed regulations can and should be used as non-binding "guidance."
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