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Dewey Publications Inc.
News and Case Alert
Issue #3-5
In this issue...
The GUIDES are here!
Dewey Category and SubCategory Links
Applying Stone Ex Parte Analysis to Penalty Determinations
ADAAA Regulations: An excerpt from Ernie Hadley's bestselling book A Guide to Federal Sector EEO Law
Sorting Out Excessive Use of Leave Charges
OPM Guidance on the Employment of Transgender Individuals


The GUIDES are here!

Dewey's bestselling American Civil Service Law Series Guides are updated and available for purchase in hardcopy and/or CD.




In its 28th edition, this much anticipated best seller 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.

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.



In its 24th edition, the EEO Guide is the most comprehensive analysis of federal sector EEO decisions, regulations, policies, guidance, and practical advice available to practitioners. Written by Ernie Hadley who has practiced before the EEOC and MSPB for more than 25 years and whose commentary on federal sector EEO matters is highly sought after.

Other Dewey titles by Mr. Hadley include Sexual Harassment: Federal Law (co-author Eleanor Laws); Motions Practice before the Merit Systems Protection Board and Equal Employment Opportunity Commission (co-author Sarah Tuck); Representing Agencies and Complainants before the EEOC (co-author Eleanor Laws); A Guide to Federal Sector Disability Discrimination Law and Practice; The EEO Counselors' and Investigators' Manual; and Effective Summary Judgment Motions (co-author Eleanor Laws).



In its 24th edition, the FLRA Guide 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.

Other arbitration-related Dewey titles include Principles of Federal Sector Arbitration Law by Broida and Davis; Collective Bargaining Law for the Federal Sector by Frank Ferris, Labor Relations for Supervisors and Managers by Michael Corum and Labor Arbitration Practice for the Federal Sector by Carl Bosland.


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    Applying Stone Ex Parte Analysis to Penalty Determinations

    Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011)

    During the hearing of Ward's removal appeal, the deciding official testified that before making his decision he reviewed and considered the investigative documents regarding the incident giving rise to the proposed removal and spoke with four additional individuals who discussed prior incidents of misconduct. The AJ found that the deciding official's contacts with these additional individuals were not improper ex parte communications but rather were "precisely the types of non-disciplinary counselings a deciding official may use to enhance a penalty." The Board disagreed, finding that consideration of the alleged prior incidents as aggravating factors favoring an enhanced penalty was improper because the incidents were not noticed in the proposed removal letter. The Board also found that the deciding official's contact with the additional individuals constituted improper ex parte communications. "The Board reasoned that '[w]here an ex parte communication does not relate to the charge itself, but relates instead to the penalty, the Board has not considered such error to be [a] denial of due process of law ....' The Board explained that, in these circumstances, it would 'remedy the error by doing its own analysis of the penalty factors' to determine whether 'removal is within the bounds of reasonableness, considering the pertinent factors other than [Ward's] past work record.'"

    The Federal Circuit found the Board's analysis deficient in that it did not address the due process concerns and violation of agency procedure present in the case. Further, the court concluded that the Board improperly performed its own penalty analysis. Citing Stone v. FDIC, the court rejected as "arbitrary and unsupportable" the Board's distinction between ex parte communications relating to the charge itself and ex parte communications relating to the penalty.

    If ex parte communications influence a deciding official's penalty determination, contributing to the enhancement of the penalty to removal, the communications impact the employee's property interest in continued employment no less than if they relate to the underlying charge. ...Stone thus makes clear that ex parte communications introducing information material to the penalty run astray of the due process requirements of notice and an opportunity to be heard. Ex parte communications that introduce "new and material information," whether material to the merits of the underlying charge or material to the penalty to be imposed, violate due process. There is no constitutionally relevant distinction between ex parte communications relating to the underlying charge and those relating to the penalty.

    Pickett v. Dept. of Agric., ___MSPR___¶¶ 2--12, 2011 MSPB 58 (2011)

    In this case, the Board rejected the agency's argument that Stone applies "only to cases involving ex parte information that a deciding official receives in relation to the underlying charges of misconduct." Noting the Federal Circuit's Ward decision above, the Board noted its oligation to consider ex parte communications related to the charge itself and those related to the penalty analysis as due process violations under Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999).

    Dewey titles discussing Stone and its progeny include MSPB Summaries by Peter Broida and Natania Davis and Best of the Board and A Guide to MSPB Law and Practice by Peter Broida.

    ADAAA Regulations: An excerpt from Ernie Hadley's bestselling book A Guide to Federal Sector EEO Law - Now Available

    There's no definition of substantially limited in the final regulations. Instead the Commission has set down nine rules of construction to assist in interpreting and applying the term. In the appendix that accompanies the regulations, the EEOC says it specifically rejected a definition out of concern that litigation would focus on interpreting that definition contrary to a main purpose of the ADAAA. In the end, the EEOC chose the same path as Congress when it comes to telling us what it means to be substantially limited. It may be, though, that the definition of a disability is much like what Justice Potter Stewart said of the definition of pornography, which was "I don't know if I can define it, but I know when I see it." Certainly that was not the approach under Sutton and its progeny where lower courts were left wondering whether a five-year-old who was HIV-positive was substantially limited in a major life activity. Anyone with half an ounce of sense could figure out that someone who is HIV-positive has a disability and those same folks would likely have figured out that someone with monocular vision has a disability.

    The new regulations also clarify that in most situations where reasonable accommodation is not the issue, cases should be analyzed using the regarded as or third prong of disability criteria. In other words, if the complainant has a medical condition that is not transitory and minor, i.e ., an impairment that has an actual or expected duration of six month or more, you don't need to consider if the impairment substantially limits a major life activity. The emphasis will be on whether complainant can prove a discriminatory act and not whether the complainant is an individual with a disability. That regulatory clarification standing alone means that far more people will have standing to challenge employment actions under the ADA and will shift the focus to the validity of the medical judgments being made in taking those actions.

    The EEOC's proposed regulations included a nonexhaustive laundry list of impairments that would "consistently meet" the definition of substantially limiting a major life activity. The "consistently meets" language caused some confusion because it was unclear whether the Commission was setting up a category of per se disabilities or whether "consistently meets" simply meant in most cases. The Commission has abandoned the "consistently meets" language in its final regulations. Instead, the final regulations adopt a "predictable assessments" standard-certain types of impairments will, "in virtually all cases," result in a finding of substantial limitation.

    The Commission also abandoned the approach of the proposed rulemaking that eliminated the appendix to Part 1630 and placed the regulatory guidance and examples previously in the appendix directly into the regulations. The final regulations go back to the original format of Part 1630 with the appendix providing additional explanation of the regulations and examples of how the Commission sees the regulations as applying to certain situations.

    For more discussion and cases related to the ADAAA and its implementing regulations, see A Guide to Federal Sector Equal Employment Law and Practice by Ernie Hadley and A Guide to FMLA & Related Litigation by Carl Bosland, both available now and these titles coming soon: Federal Sector Disability Discrimination Law Deskbook by Gilbert and A Guide to Federal Sector Disability Discrimination by Ernie Hadley.

    Sorting Out Excessive Use of Leave Charges
    McCauley v. Dept. of Interior, ___MSPR___, 2011 MSPB 59 (2011)
    by Natania Davis

    McCauley v. Dept. of Interior, ___MSPR___, 2011 MSPB 59 (2011), involved an appeal from appellant's removal for excessive leave usage and AWOL. Noting the inconsistencies in Board precedent as it relates to the type of leave that can be used to support an excessive leave use adverse action, the Board held:

    Because the efficiency of the service may suffer in the absence of an employee's services, regardless of the type of leave used, we hold that whether the leave is sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences. To the extent that the Board has held or implied otherwise in cases such as Curtis, 111 M.S.P.R. 626, Ryan v. Department of the Air Force, 107 M.S.P.R. 71 (2007), Scorcia v. U.S. Postal Service, 78 M.S.P.R. 588 (1998), Holderness v. Defense Commissary Agency, 75 M.S.P.R. 401 (1997), Clark v. Department of the Navy, 12 M.S.P.R. 428 (1982), and Webb, 10 M.S.P.R. 536, those cases are expressly overruled.

    The Board excepted from this analysis leave taken under the FMLA, concluding that "it is improper to consider FMLA absences as a part of the equation when evaluating if an employee has taken excessive leave." The Board reiterated the Cook leave usage requirement that to prove a charge of excessive leave, "the agency must show, inter alia, that "the employee was absent for compelling reasons beyond his or her control so that agency approval or disapproval was immaterial because the employee could not be on the job." Cook v. Department of the Army, 18 MSPR 610, 611-12 (1984).

    For more on MSPB charges see the following Dewey titles: MSPB Charges and Penalties by Fowler and Vitaro, and Disciplining Federal Employees and Adverse Actions by Michael Corum.

    OPM Guidance on the Employment of Transgender Individuals

    OPM recently issued guidance answering the commonly asked questions raised by agencies concerning the employment of transgender employees. OPM first notes that "[i]t is the policy of the Federal Government to treat all of its employees with dignity and respect and to provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors." In addition to defining the core concepts related to the topic, OPM also provides guidance on issues that may arise while the transgender employee is in "transition" (transitioning from living and working as one gender to another).

    For the full memo click here.

    For more discussion of transgender and other forms of discrimination, see A Guide to Federal Sector Equal Employment Law and Practice by Ernie Hadley, EEO and the Federal Supervisor by Michael Corum and Consolidated Federal Sector EEO Update by Vitaro, Goodfriend and Gilbert.
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