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Dewey Publications Inc.
News and Case Alert
Issue #3-7
In this issue...
Recommended Reading
The Complexities of Disability Discrimination
Particularity in Pleadings before the Authority
A Twist on Involuntary Disability Retirements



The long-awaited third edition of A Guide to Federal Sector Disability Discrimination Law and Practice written by a leading authority on federal sector EEO law, Ernest C. Hadley, is now available. For more information, see the article in this News and Case Alert entitled, The Complexities of Disability Discrimination or go to deweypub.com/store/11FSDD.html




Whether you represent the agency or a complainant, knowing a case's worth is critical. A top Dewey seller, Compensatory Damages and Other Remedies is a comprehensive compilation of the significant developments and caselaw affecting compensatory damages awards, back pay, attorneys fees, interest, front pay, reinstatement and much more.

An especially helpful feature of the book is the chapter entitled "A Summary of Selected Commission Damages Awards" which reports amounts awarded in specific cases. Other chapters include "Proving Damages", "Mitigation and Offset" and "Considerations in Approaching Settlement."

deweypub.com/store/11CDOR.html




The law on security clearances is changing folks! Interpretation of Egan v. Department of Navy is once again up for debate. (See Ms. Newman's article in News Alert #3-6 and the Conyers article in News Alert #3-1) Educate yourself on the statutes, regulations and case law governing this area of the law.

Books dedicated entirely to security clearance issues in the federal employment context are hard to come by. It is essential for attorneys, agency representatives, personnel management specialists, and personnel security managers to understand the law of a field traditionally steeped in secrecy. Dewey author Elizabeth Newman's Security Law and Procedure is authoritative and comprehensive on the topic. Elizabeth Newman, an experienced federal employment lawyer who has served as Vice Chair of the ABA Defense and National Security Committee, writes from a wealth of knowledge and experience in handling security clearance matters.

deweypub.com/store/08SCLP.html







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  • 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. 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 link at the bottom of the email. Thank you.

    The Complexities of Disability Discrimination

    In its third edition, this is the most comprehensive book on one of the most complex areas of federal sector employment law. It contains even more information on the Rehabilitation Act, ADA and ADAAA as applied to federal sector employment by the EEOC, including the EEOC's final ADAAA regulations. This Guide also incorporates the new definition of individuals with disabilities, including extensive discussion of the new major life activities and major bodily functions, the standards for substantial limitation of a major life activity, the reversal of Supreme Court decisions on the effects of mitigating measures, devices and medications, and the new definition of regarded as disabilities. This law is complicated folks. Get your copy today. For more discussion, read an excerpt from the book below.

    Whatever can be said about disability discrimination law as it relates to employment, and much will be said in the pages that follow, it cannot be said that the subject matter is uncomplicated. Neither the Rehabilitation Act nor the ADA is a model of clarity. Who is entitled to reasonable accommodation? The answer is "a qualified individual with a disability." See 42 USC 12112(b)(5)(A) which, as noted above, retains the original ADA language. What is a qualified individual with a disability? The answer is "someone who has a physical or mental impairment that substantially limits a major life activity and can perform the essential functions of the position in question with or without reasonable accommodation." 42 USC 12102(1)(A), 12111(8). There is a circular nature to the statutory language that uses the term "reasonable accommodation" to define who is entitled to "reasonable accommodation." Moreover, the statute provides that a qualified individual with a disability is entitled to reasonable accommodation, unless it would "impose an undue hardship on the employer." How can it be that a "reasonable" accommodation would impose an "undue hardship"? Wouldn't an accommodation that imposes an undue hardship be unreasonable? The language of the Rehabilitation Act and the ADA places the courts and the EEOC in the position of attempting to make sense of the legislation not by interpreting the plain meaning of the statutory language but by attempting to glean congressional intent from that language.

    An additional layer of complexity is added by virtue of the fact that individuals with a disability are by no means a homogenous group. Different individuals have different disabilities. Even individuals with the same disabilities suffer from different symptoms in terms of the nature, severity, and duration of those symptoms. As a result, one individual with a hearing impairment may not be an individual with a disability because the impairment does not rise to the level of substantially limiting the major life activity of hearing. Another individual with the same hearing impairment may be substantially limited in the major life activity of hearing because the effect of the impairment produces a more profound loss of hearing. The only way to determine if a particular person is an individual with a disability is to conduct an "individualized inquiry." The analysis becomes even more complex at the next stage of the inquiry where it must be determined if the individual with a disability is "qualified." In order to make that determination, the essential functions of the specific job the individual holds or desires must be taken into account. This, too, requires an "individualized inquiry" because it is entirely possible, if not likely, that an individual with a disability could perform the essential functions of one job but not another.

    This book focuses on the Rehabilitation Act and the ADA as they apply to federal sector employment. It is not intended to champion the rights of individuals with disabilities, nor the rights of agencies as employers for that matter. It is intended, quite simply, as an in-depth explanation and exploration of federal sector employment disability discrimination law.

    For more discussion on disability discrimination and related topics, see A Guide to Federal Sector Equal Employment Law and Practice by Ernie Hadley, A Guide to the FMLA & Related Litigation by Carl Bosland, and Administration of Leave and Medical Documentation Requests by Eleanor Laws. Also coming soon: Federal Sector Disability Discrimination Law Deskbook (2011) by Gary Gilbert.

    Particularity in Pleadings before the Authority
    AFGE Local 1738 v. VA, 65 FLRA No. 204 (June 30, 2011)

    In a rather concise decision, the FLRA recently suggested that particularity is required in pleading exceptions to arbitration awards.

    The Authority's Regulations specifically enumerate the grounds that the Authority currently recognizes for reviewing awards. See 5 C.F.R. Ǡ2425.6(a)-(b). In addition, the Regulations provide that if exceptions argue that an arbitration award is deficient based on private-sector grounds not currently recognized by the Authority, then the excepting party "must provide sufficient citation to legal authority that establishes the grounds upon which the party filed its exceptions." 5 C.F.R. Ǡ2425.6(c).

    Further Ǡ2425.6(e)(I) of the Regulations provides that an exception "may be subject to dismissal or denial if: "...[t]he excepting party fails to raise and support" the grounds listed in Ǡ2425.6(a)-(c), "or otherwise fails to demonstrate a legally recognized basis for setting aside the award[.]" 5 C.F.R. Ǡ2425.6(e)(1). Thus, an exception that does not raise a recognized ground is subject to dismissal under the Regulations. AFGE, Local 738, 65 FLRA 931, 932 (2011) (Local 738); AFGE, Local 3955, Council of Prison Locals 33, 65 FLRA 887, 889 (2011) (Member Beck dissenting in part) (Local 3955).

    The Union's contention that the award is "contrary to the plain language of the negotiated agreement[,] Exception at 5, does not constitute a ground currently recognized by the Authority for reviewing awards. See 5 C.F.R. Ǡ2425.6(a)-(b). As the Union does not raise a recognized ground or cite legal authority to support a ground not currently recognized by the Authority, we dismiss the exception.

    For more discussion on arbitration and practice before the Authority, see A Guide to FLRA Law and Practice by Peter Broida, Labor Arbitration Practice For the Federal Sector by Carl Bosland and Principles of Federal Sector Arbitration Law by Peter Broida and Natania Davis.

    A Twist on Involuntary Disability Retirements
    Vaughan v. Dept. of Agric., ___MSPR___, 2011 MSPB 61 (2011)

    In Vaughan v. Dept. of Agric., ___MSPR___, 2011 MSPB 61 (2011), the Board modified the Nordhoff v. Dept. of Army, 78 MSPR 88 (1998), aff'd, 185 F.3d 886 (Fed. Cir. 1999) (table), analysis for appellants asserting that a disability retirement was involuntary. The Board noted its holding in Nordhoff that in order to invoke the Board's jurisdiction in an alleged involuntary disability retirement case, "the appellant must raise nonfrivolous allegation that, if proven, would show that an accommodation was available between the time the appellant's medical condition arose and the date of his separation that would have allowed him to continue his employment; the appellant communicated to the agency his desire to continue working but that his medical limitations required a modification of his working conditions or duties; and the agency failed to provide the appellant that accommodation."

    The Board went on to acknowledge that the above standard governs most involuntary disability retirement appeals, but noted that unusual circumstances sometime necessitate the application of the Board's regular principles governing non-disability related involuntary retirement appeals. The unusual circumstance in this case, according to the Board, was appellant's claim of a forced disability retirement by asserting that the agency's discriminatory treatment of him caused the disability leading to the retirement-an approach to an allegedly forced disability retirement akin to a claim of intolerable working conditions.

    [I]n this case we find that the appellant has alleged a type of involuntary disability retirement that should be considered under the general jurisdictional test for an involuntary retirement. Specifically, the appellant has alleged that the agency created a discriminatory, hostile environment, which not only led to intolerable working conditions, but which caused or exacerbated the medical conditions underlying his disability retirement. In effect, he has alleged that he was coerced into retirement because the agency's discriminatory conduct caused him to become disabled. Under these limited circumstances, and because we find that the appellant has made nonfrivolous allegations casting doubt on the presumption of voluntariness, we also find that the appellant is entitled to an opportunity to prove that his retirement was involuntary under the general principles for finding a constructive discharge. He is entitled to a jurisdictional hearing.

    Dewey titles discussing constructive adverse actions and governing case law, see A Guide to MSPB Law and Practice by Peter Broida, MSPB Case Summaries by Peter Broida and Natania Davis, and Adverse Actions and Performance Based Actions by Fowler and Vitaro.
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