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Dewey Publications Inc.
News and Case Alert
Issue #3-4
In this issue...
Dewey's Most Popular Case Summary New Releases
Testing the Reach of
MSPB Remedial Actions
The Distinction Between Modified Job Offers and Reasonable Accommodation
EEOC Requests "Public Comment on Plan for Retrospective Analysis of Significant Regulations"

Don't Miss Dewey's Most Popular Case Summary New Releases

All representatives and personnelists need these research tools on the MSPB and EEOC.


by Peter Broida and Natania Davis



The newest edition of Broida and Davis' MSPB Case Summaries is now available. This Guide provides summarized MSPB and Federal Circuit decisions from 1999 to the end of 2010. Case Summaries is a researcher's dream! Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically for ease of use. With the CD version, users can quickly locate relevant decisions, use the hyperlink to access the full text and cut and paste the summaries directly into your motions and briefs. (click for more info)



By Vitaro, Goodfriend & Gilbert



This extensive yet practical Update allows practitioners to stay current with most recent EEO case law, trends and developments from the EEOC and federal courts. As with the MSPB Case Summaries, users can quickly locate relevant decisions. In the digital version readers can use hyperlinks to access the full text and cut and paste the summaries directly into motions and briefs. (click for more info)


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    Guide to FLRA Law and Practice
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    Testing the Reach of
    MSPB Remedial Actions
    Vaughan v. Dept. of Agric., ___MSPR___¶¶ 13-14, 2011 MSPB 48 (2011)
    (Member Rose concurring and dissenting in part)

    The Board recently required an agency to inform third parties of corrections in an appellant's employment status where a subsequently invalidated action is referred to in documents other than the official personnel file.

    In his initial appeal, Vaughan alleged that the agency proposed his removal and lowered his performance rating in reprisal for his protected activity. The AJ agreed and ordered the agency to cancel its Notice of Proposed Removal purging all references to it from Vaughan's personnel records and to change his rating to "Superior."

    Before the Board, Vaughan complained that the agency violated the AJ's order where it failed to correct references to the proposed removal in a statement made to OPM in connection with Vaughan's disability retirement application and in statements made in its defense of Vaughan's EEO complaint. Noting that when the Board finds a personnel action unwarranted the agency must return appellant to the status quo ante, the Board reasoned "the Board's authority in this realm is broad and far-reaching and extends to areas over which the Board would otherwise lack jurisdiction....Limiting the Board's authority in this regard would only serve to perpetuate the illegal retaliation to which the appellant has been subjected." The Board directed the agency to inform OPM and EEOC that the action taken was set aside and why it was set aside:

    In the context of enforcement of a settlement agreement providing for rescission of an adverse action, the Board has held that in communications with third parties the agency was prohibited from disclosing the circumstances of the settled action. Allen v. Department of Veterans Affairs, 112 M.S.P.R. 659, ¶¶ 14-16 (2009); Torres v. Department of Homeland Security, 110 M.S.P.R. 482, ¶ 12 (2009). We recognize that the circumstances of this case differ in that, at the time of the supervisor's statement to OPM and the appellant's EEO complaint, the administrative judge had not yet issued the March 31, 2009 initial decision ordering the agency to cancel the proposed removal and eliminate all references to it from the appellant's personnel records. However, once the Board ordered cancellation of the proposed removal, status quo ante relief required that the agency's communications with third parties not disclose the cancelled matter. Furthermore, status quo ante relief required that the agency take appropriate steps to correct official communications to third parties that contained information about the appellant that was contrary to the Board's decision.

    Thus, in this case, we find that to afford the appellant meaningful status quo ante relief, the agency must inform OPM that the supervisor's statement previously provided regarding the appellant's disability retirement application erroneously referred to a proposed removal that was found retaliatory by the Merit Systems Protection Board. The agency must seek to have references to the proposed removal deleted from the supervisor's statement or have a statement clearly explaining the circumstances surrounding the incorrect information in the supervisor's statement appended to the appellant's disability retirement application. Similarly, to the extent documents referencing the proposed removal were filed with the Equal Employment Opportunity Commission (EEOC), the agency must inform the EEOC that the proposed removal was found retaliatory by the Merit Systems Protection Board. The agency must seek to have references to the proposed removal deleted from the EEOC's records or have a statement clearly explaining the circumstances surrounding the incorrect information appended to the Commission's records. Regarding EEO material maintained by the agency, such as a report of investigation or final agency decision, the agency must either delete references to the proposed removal or append a statement to the files clearly explaining that the proposed removal was found retaliatory by the Merit Systems Protection Board.

    In regard to AJ's order to upgrade appellant's performance rating to "Superior," appellant complained that his new performance rating was signed by the then management staff rather than the original supervisors in place on the date of the original rating. The Board found that the agency was in compliance as to the identity of the official who signed the revised appraisal.

    For more discussion relating to the MSPB's remedial authority, see MSPB Case Summaries (2011 edition now available) by Broida and Davis, A Guide to MSPB Law and Practice, Best of the Board, and MSPB Basics by Broida.

    The Distinction Between Modified Job Offers and Reasonable Accommodation
    Huddleson v. Postmaster General, EEOC Appeal No. 0720090005 (April 4, 2011)

    The EEOC recently noted that an Office of Workers' Compensation Program finding that a modified job offer is suitable under the circumstances does not translate into a reasonable accommodation.

    Huddleson, a Mail Processing Clerk, was injured at work and was out of work for a year. When he returned, he was limited to working four hours a day, and upon resuming fulltime work, the agency accommodated his physical limitations. After several years of this arrangement, Huddleson's position was abolished, and he was given a new job offer. He complained that the new assignment conflicted with his medical restrictions, but was required to perform the duties anyway. Huddleson filed an EEO complaint alleging, inter alia, that the agency failed to accommodate him.

    The agency defended by pointing to OWCP's approval of the job offer as evidence that it reasonably accommodated Huddleson. The Commission rejected this argument:

    Regarding the Agency's assertion that it provided Complainant with a reasonable accommodation because DOL approved of the job offer in question, the AJ properly noted that OWCP's approval of a job offer does not bar a denial of a reasonable accommodation claim under the Rehabilitation Act. In addition, the AJ properly found that Complainant's claim is not a collateral attack on the OWCP process. The AJ noted that Complainant did not ask DOL to change its decision with respect to an OWCP claim. Rather, Complainant is alleging that the Agency failed to provide him with a reasonable accommodation under the Rehabilitation Act.

    The record reflects that Complainant informed the Agency's Injury Compensation Specialist (IC) that he could not perform many duties of the job offer in question. IC testified that she did not speak with Complainant and did not speak with anyone in management regarding the situation. The record reflects that IC wrote a letter to Complainant informing him that since DOL had found the job suitable, no changes would be made to the job offer. Complainant and a coworker also testified that Complainant informed management that he was unable to perform some of the duties of the job assignment in question due to his medical limitations. However, the record is devoid of evidence that the Agency engaged in the interactive process with Complainant. Rather, the record reflects that while Complainant was accommodated with various job offers for several years, in October 2005, Complainant's job assignment was changed to include duties outside of his medical restrictions. The Agency has failed to show that it would have been an undue hardship to continue to accommodate Complainant by providing him work within his restrictions.

    An OWCP determination concerning an employee's disability is not the same as a finding that the employee is a qualified individual with a disability under the Rehabilitation Act - the standards are different. Agencies are cautioned against relying on OWCP findings as proof that they have fulfilled their obligations to an employee under the Rehabilitation Act.

    Dewey titles relating to EEO topics include Consolidated Federal Sector EEO Update by Vitaro, Goodfriend and Gilbert, Surviving EEO Complaints by Tuck and EEO and the Federal Supervisor by Corum.

    EEOC Requests "Public Comment on Plan for Retrospective Analysis of Significant Regulations"
    by Natania Davis

    In an effort to streamline its significant regulations, the EEOC is implementing a "new, periodic retrospective review of its existing significant regulations" and is seeking public comment on the process they will employ and the regulations of focus.

    For more information, visit http://www.eeoc.gov/laws/regulations/ comment_retrospective.cfm.

    Dewey titles discussing EEO regulations include A Guide to EEO Law and Practice by Hadley and Consolidated Federal Sector EEO Update by Vitaro, Goodfriend and Gilbert.
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