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Dewey Publications Inc.
News and Case Alert
Issue #3-3
In this issue...
New Releases
EEOC Publishes ADAAA Implementing Regulations
Office of Special Counsel Gets Some Much Needed Attention
Supreme Court Rules on Cat's Paw Case in USERRA Case

New Releases

by Peter Broida

In its 28th edition, the much anticipated best seller A Guide to MSPB Law and Practice is now available for purchase. This book is the seminal text on Board law, regulations, and caselaw, extending through the end of 2010. Written by Peter Broida who has practiced before the Board since its inception and whose nuanced understanding of Board law is unmatched. (click for more info)

Other Dewey titles by Mr. Broida include A Guide to FLRA Law and Practice, Best of the Board, and MSPB Basics. Mr. Broida also co-authors the following texts with Natania Davis: MSPB Case Summaries, Principles of Federal Sector Arbitration Law and Senior Executive Service Legal Guide.

by Carl Bosland

This soon to be best seller is a must have for all union and management advocates. It is an easy-to-understand, yet comprehensive handbook on the labor arbitration process which provides advocates, both union and management, with practical guidance and best practices to effectively prepare and present their case to a labor arbitrator. Written by Carl Bosland who is an attorney and arbitrator with more than 17 years of labor and employment law experience in the federal and private sectors. (click for more info)

Other Dewey titles by Mr. Bosland include A Guide to the FMLA & Related Litigation and FMLA Basics.

Click for a list of our
Newest Releases

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Dewey Category and SubCategory Links...

  • All Products
  • American Civil Service Law Series
  • MSPB
  • EEOC
  • Personnel Management
  • Labor Relations
  • Litigation Techniques
  • Discipline
  • Damages & Remedies
  • Disability & FMLA
  • Prohibited Personnel Practice
  • Workers Compensation
  • Security Clearance

  • Coming in 2011

    Guide to FLRA Law and Practice
    By: Broida
    Price: $430
    Sku: 11FLRA
    Edition: 24th /2011
    ISBN: 1-934651-45-1
    Expected: Spring 2011

    Guide to EEO Law and Practice
    By: Hadley
    Price: $530
    Sku: 11EEO
    Edition: 24th /2011
    ISBN: 1-934651-46-X
    Expected: Spring 2011

    MSPB Case Summaries
    By: Broida & Davis
    Price: $200
    Sku: 10MSCS
    Edition: 2nd /2011
    ISBN: 1-934651-47-8
    Expected: Spring 2011

    Consolidated Federal Sector EEO Update 2004-2011
    By: Vitaro & Goodfriend & Gilbert
    Price: $160
    Sku: 11CEUP
    Edition: 7th /2011
    ISBN: 1-934651-
    Expected: Spring 2011

    Click for a complete list of
    products coming soon

    Dewey's FREE MONTHLY "News and Case Alert" Email is our way of keeping our customers up-to-date with the latest federal sector employment and labor laws, cases and news. Articles cover topics from discrimination, merit systems principles, labor and arbitration, and everything in between. Also included are new book announcements, notification of sales, special coupon codes, and book recommendations based on the issue's articles. We will never spam or give out your email address. Unsubscribe at any time by clicking the SafeUnsubscribe link at the bottom of every email. If you know someone who this information will be valuable to, please use the forward email link at the bottom of the email. Thank you.

    EEOC Publishes ADAAA Implementing Regulations, Finally!
    by Natania Davis

    On March 24, 2011, the EEOC announced via press release the "Final Bipartisan Regulations for the ADA Amendments Act." The primary objective of the law and implementing regulations is to simplify the definition of disability favoring broader coverage of individuals under the ADA and making it easier for employees to establish that they have a disability within the meaning of the ADA.

    It's been a long time in coming, but the EEOC notes that since it issued the Notice of Proposed Rulemaking seeking comment on the proposed regulations on September 23, 2009, it received well over 600 public comments in response. "The final regulations reflect the feedback the EEOC received from a broad spectrum of stakeholders."

    The EEOC notes the following highlights of the regulations:

    Based on the statutory requirements, the regulations set forth a list of principles to guide the determination of whether a person has a disability. For example, the principles provide that an impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability. Additionally, whether an impairment is a disability should be construed broadly, to the maximum extent allowable under the law. The principles also provide that, with one exception (ordinary eyeglasses or contact lenses), "mitigating measures," such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability. Furthermore, impairments that are episodic (such as epilepsy) or in remission (such as cancer) are disabilities if they would be substantially limiting when active.

    The regulations clarify that the term "major life activities" includes "major bodily functions," such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions. The regulations also make clear that, as under the old ADA, not every impairment will constitute a disability. The regulations include examples of impairments that should easily be concluded to be disabilities, such as HIV infection, diabetes, epilepsy, and bipolar disorder.

    Following the dictates of the ADAAA, the regulations also make it easier for individuals to establish coverage under the "regarded as" part of the definition of "disability." Establishing such coverage used to pose significant hurdles, but under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person's impairment.

    Click here to review the EEOC's recently published two Question-and-Answer documents about the regulations.

    For more on the ADA, Rehabilitation Act, the ADAAA, and its implementing regulations watch for the following Dewey titles, Consolidated Federal Sector EEO Update 2004-2011 by Vitaro, Goodfriend and Gilbert, A Guide to EEO Law and Practice and A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley, and Federal Sector Disability Discrimination Law Deskbook by Gilbert.

    Office of Special Counsel Gets Some Much Needed Attention
    by Natania Davis

    The Office of Special Counsel is well on its way to having its first permanent Special Counsel since 2008. The Senate confirmed Carolyn Lerner, President Obama's nominee to head the OSC which is charged with investigating federal employment whistleblower claims among other things, to the position of Special Counsel on April 14, 2011. Ms. Lerner is a founding partner of Heller, Chertkof, Lerner, Simon & Salzman, a D.C. employment law firm.

    To improve the office's reputation and functioning, Ms. Lerner has her work cut out for her. Her appointment follows the resignation of Scott Bloch, who last month was sentenced to one month of jail time for withholding information from Congress - relating to allegations that he used an IT firm to "scrub" files on his work computer after. At the time of the alleged act, the Inspector General was investigating Bloch on allegations of engaging in harsh retaliation against whistleblowers on his own staff, violations of the very laws Bloch was appointed to enforce.

    For more on the laws related to and enforced by the Office of Special Counsel, see MSPB Case Summaries by Broida and Davis and A Guide to MSPB Law and Practice by Broida.

    Supreme Court Rules on Cat's Paw
    in USERRA Case
    Staub v. Proctor Hospital, No. 09-400 (March 1, 2011)
    by Natania Davis

    In Staub v. Proctor Hospital, the Supreme Court specifically rejected the argument that an employer cannot be held liable for discrimination unless the "de facto" decisionmaker in an adverse employment action is motivated by such animus. In other words, employers may be held liable for decisions, influenced by managers or supervisors who had unlawful motives, but made by individuals with no such discriminatory intent.

    Staub alleged that while Proctor's vice president of human resources (Buck) made the ultimate decision to fire him, his immediate and second line supervisors were hostile to his military obligations and their actions influenced Buck's decision. Staub did not allege discriminatory animus by Buck. Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994, which protects persons in the uniformed services from adverse employment actions made based on their membership in the military. The Court noted the similarity in language between the USERRA and Title VII, both establishing that an employer has engaged in a prohibited employment action where the employee's membership in a protected status is a motivating factor in the employment action.

    The central difficulty in this case is construing the phrase "motivating factor in the employer's action." When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee's membership in or obligation to a uniformed service, a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.


    Proctor, on the other hand, contends that the employer is not liable unless the de facto decisionmaker (the technical decisionmaker or the agent for whom he is the "cat's paw") is motivated by discriminatory animus. This avoids the aggregation of animus and adverse action, but it seems to us not the only application of general tort law that can do so. Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub's supervisors) if the adverse action is the intended consequence of that agent's discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent's action (and hence the earlier agent's discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only "some direct relation between the injury asserted and the injurious conduct alleged," and excludes only those "link[s] that are too remote, purely contingent or indirect." ... We do not think that the ultimate decisionmaker's exercise of judgment automatically renders the link to the supervisor's bias "remote" or "purely contingent." The decisionmaker's exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes.... Nor can the ultimate decisionmaker's judgment be deemed a superseding cause of the harm. A cause can be thought "superseding" only if it is a "cause of independent origin that was not foreseeable."

    Moreover, the approach urged upon us by Proctor gives an unlikely meaning to a provision designed to prevent employer discrimination. An employer's authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors. Proctor's view would have the improbable consequence that if an employer isolates a personnel official from an employee's supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee's personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words.


    We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.

    The Court's decision is significant, and arguably applies to discrimination cases under Title VII as well as USERRA claims

    For more discussion on the cat's paw theory, USERRA, and Title VII, see Hadley's A Guide to EEO Law and Practice, the Consolidated Federal Sector EEO Update 2004-2011 by Vitaro, Goodfriend and Gilbert and A Guide to USERRA and VEOA by Kitchens.