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Dewey Publications Inc.
News and Case Alert
Issue #2-10
In this issue...
The Essential Federal Sector EEO, Labor Relations, and MSPB Research
2010 & 2011 American Civil Service Law Series
MSPB on EEOC Matters
EEOC on MSPB Matters?
EEOC Issues Final Regulations on GINA

FOR THE FIRST TIME EVER - DEWEY BEST SELLERS OFFERED TOGETHER, ON CD AND AT A DISCOUNT!!!

Dewey is pleased to announce a new CD package, "The Essential Federal Sector EEO, Labor Relations, and MSPB Research Library." Labor law? MSPB law? EEO law? Damages? This is all you need folks!

The 40% off bundle of CDs includes


MSPB Law and Practice is written by Peter Broida, a long time practitioner before the MSPB, and is the essential guide to all things MSPB-related.


FLRA Law and Practice, also written by Peter Broida, 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. Lots happening at the Authority. Stay updated with this seminal guide.


EEO Law and Practice is written by Ernest Hadley, a long time practioner before the EEOC, and is the most important EEO resource for your desk.


MSPB Case Summaries, written by Peter Broida and Natania Davis, provides succinct summaries of MSPB and Federal Circuit law from 1999 to the present covering all MSPB topics.


Principles of Arbitration by Peter Broida and Natania Davis digests federal sector arbitration awards by topic. Entries are keyed to arbitrators, and the book includes a table cross-referencing arbitrators to the awards they have issued.


Compensatory Damages by Gary Gilbert teaches all advocates to better understand how to support and defend against claims for compensatory damages and other remedial claims.


EEO Update Consolidated 2005-2009 and EEO Update (2010), written by Samuel Vitaro, Jeffrey Goodfriend and Gary Gilbert, is an indispensible resource designed to catch you up on the latest trends and developments in federal sector EEO law.


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2010 AMERICAN CIVIL SERVICE LAW SERIES

A Guide to MSPB Law and Practice
By: Broida
Price: $525
Sku: 10MSPB
Edition: 27th/2010

A Guide to FLRA Law and Practice
By: Broida
Price: $430.00
Sku: 10FLRA
Edition: 23rd/2010

A Guide to EEO Law and Practice
By: Hadley
Price: $525
Sku: 10EEO
Edition: 23rd/2010



PREORDER THE 2011 EDITIONS!
(ships spring 2011)

A Guide to MSPB Law and Practice
By: Broida
Price: $530.00
Sku: 11MSPB
Edition: 28th/2011
Expected Availability: April 2011

A Guide to FLRA Law and Practice
By: Broida
Price: $430.00
Sku: 11EEO
Edition: 24th/2011
Expected Availability: May 2011

A Guide to EEO Law and Practice
By: Hadley
Price: $530.00
Sku: 11EEO
Edition: 24th/2011
Expected Availability: June 2011




Dewey Publications Inc.
THE Source For All Your Civil Service Law Needs!

MSPB on EEOC Matters
Wynn v. USPS, _MSPR_¶¶ 9-10,
2010 MSPB 214 (2010)

In Wynn v. USPS, ___MSPR___¶¶ 9-10, 2010 MSPB 214 (2010), the Board recently announced that where an appellant raises an EEO or other affirmative defense at some point earlier in the appeal, a judge may not imply abandonment or waiver of such affirmative defenses even if not listed in the prehearing submission. The judge must resolve the claims (and presumably list them in the prehearing order) unless the appellant affirmatively withdraws or waives same.


Appellant appealed his removal and indicated his belief that the agency discriminated against him on the bases of his marital status or political affiliation, and his race by checking the boxes on his appeal form. The AJ did not give appellant notice of the burdens and elements of proof for any affirmative defenses. "In her prehearing conference summary, the administrative judge set forth the appellant's defenses to the merits of the agency's charges, which could include the factual basis for the appellant's affirmative defenses, if read broadly, but she omitted any specific mention of the affirmative defenses." For the first time on PFR, the appellant specifically claimed that his supervisor made a racial slur about him. Announcing the proper procedure for adjudicating affirmative defenses, the Board held:


Generally, the Board has held that an appellant is deemed to have abandoned a discrimination claim if it is not included in the list of issues in a prehearing conference summary, and the party was afforded an opportunity to object to the conference summary. See Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶ 10 (2009); Yovan v. Department of the Treasury, 86 M.S.P.R. 264, ¶ 7 (2000); cf. Mata v. Department of the Army, 114 M.S.P.R. 6, ¶ 10 (2010) (the appellant preserved his claim by raising it in a supplemental submission when the administrative judge failed to include it in the prehearing summary). The present case, however, is similar to Erkins v. U.S. Postal Service, 108 M.S.P.R. 367, ¶ 7 (2008), in that the record below does not establish that the appellant withdrew or abandoned his affirmative defenses.


We now make clear that when an appellant raises an affirmative defense in an appeal either by checking the appropriate box in an appeal form, identifying an affirmative defense by name such as "race discrimination," "harmful procedural error," etc., or by alleging facts that reasonably raise such an affirmative defense, the administrative judge must address the affirmative defense(s) in any close of record order or prehearing conference summary and order. If an appellant expresses the intention to withdraw such an affirmative defense, in the close of record order or prehearing conference order the administrative judge must, at a minimum, identify the affirmative defense, explain that the Board will no longer consider it when deciding the appeal, and give an appellant an opportunity to object to withdrawal of the affirmative defense. The record in this appeal simply does not establish that the appellant abandoned or withdrew the affirmative defenses he had raised in his appeal. As explained below, in the absence of evidence establishing the appellant had withdrawn or abandoned his affirmative defenses, it was incumbent on the administrative judge to advise the appellant of applicable burdens of proving a particular affirmative defense, as well as the kind of evidence the appellant is required to produce to meet his burden.


...


Accordingly, we VACATE the initial decision and REMAND the appeal for adjudication of the appellant's affirmative defenses. On remand, the administrative judge shall apprise the appellant of the applicable burdens and elements of proof on his discrimination claims. Further, the administrative judge shall afford the appellant an opportunity for discovery on his affirmative defenses, and a supplemental hearing on these affirmative defenses if he requests one. The administrative judge shall then issue a new initial decision making appropriate findings regarding the charge, nexus and penalty, and also specifically addressing the appellant's affirmative defenses.


For more titles discussing EEO and other affirmative defenses before the MSPB, see Guide to MSPB Law and Practice and Best of the Board by Broida, Guide to EEO Law and Practice and Best of the Commission by Hadley and MSPB Case Summaries by Broida and Davis.


EEOC on MSPB Matters?
Pleasant v. Secretary of Housing and Urban Development, EEOC Appeal No. 0120080672
(October 22, 2010)


In Pleasant v. Secretary of Housing and Urban Development, EEOC Appeal No. 0120080672 (October 22, 2010), the Commission utilized the familiar MSPB term "nexus" in connection with a failure to accommodate claim, noting that it is incumbent upon the employee/complainant to establish a nexus between his or her medical condition and any requested accommodation. Assuming complainant was a qualified individual with a disability, the Commission explained:


As an initial matter, we note that there is no evidence that Complainant's need for the requested conditions was apparent or obvious. As such, we find that Complainant's submitted medical documentation does not establish a nexus between her asserted medical conditions and the various requested accommodations. The very brief two-paragraph March 18, 2004 statement from Complainant's physician does not establish the expected duration of her medical conditions or how her medical conditions are related to her request for a 21-inch monitor and zoom software, ergonomic chairs, new laptop computer, footstools, a transfer, training, and computer speakers. Moreover, although the physician generally stated that Complainant should work at home three days a week so that she could take prescribed medication, the statement does not indicate how the medication affected Complainant or otherwise revealed why taking the prescribed medication made it necessary for Complainant to work at home for three days per week.

For more titles on "nexus" in the MSPB context see MSPB Basics and MSPB Basics: The Agency Edition by Broida and Charges and Penalties by Fowler and Vitaro. For more titles discussing failure to accommodate, see Federal Sector EEO Update by Vitaro, Goodfriend, & Gilbert, Disability Discrimination Law Deskbook by Gilbert, and A Guide to Disability Discrimination Law and Practice by Hadley.


EEOC Issues Final Regulations on GINA

On November 9, 2010, the EEOC issued final regulations implementing the Genetic Information Nondiscrimination Act of 2008 (GINA), the law that prohibits using genetic information to make employment decisions, "restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs - referred to as "covered entities") from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information." Genetic Information Discrimination, EEOC, http://www.eeoc.gov/laws/types/genetic.cfm.

Links to the regulations and to published questions-and-answers are on EEOC's website, at http://www.eeoc.gov/laws/types/genetic.cfm

One can only hope that the Commission will now turn its attention to issuing final regulations on the Americans with Disabilities Act Amendments Act of 2008. With passage of those regulations, watch for coming soon Dewey titles, Guide to Federal Sector Disability Discrimination Law and Practice by Hadley and Federal Sector Disability Discrimination Law Deskbook.
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