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News and Case Alert
Issue #4-2
In this issue...
Bynum and Its Progeny Overruled Regarding the Mullins-Howard Exception to Disability Retirement
Reasonable Accommodation Arguments in the Context of "Qualified Individual with a Disability" Determinations
Supreme Court to Hear MSPB Jurisdictional Issue

Dewey Classics:
The Litigation Editions

Dewey's Litigation Classics help practitioners navigate through every aspect of an appeal. Whether before the MSPB, EEOC, FLRA or an arbitrator, Dewey has litigation techniques covered with these timeless editions.

Motions Practice before the MSPB and the EEOC

Prehearing and post-hearing motions, as well as rules of motion practice are studied in this practical and helpful guidebook. The authors examine motions presented to the Board and the Commission separately, paying special consideration to how to most effectively use motions for the desired result. Major topics include federal rules of civil procedure and basic, pre- and post-hearing motion practice before the Merit Systems Protection Board and Equal Employment Opportunity Commission.

Litigating Federal Sector Employment and Labor Law Disputes

This comprehensive handbook provides advice and strategies for mastering administrative litigation before the MSPB, EEOC, FLRA, and in arbitration. Major topics include explanation of venues, initial investigation and planning, filing and answering appeals, formal and paper discovery, taking and defending depositions, motion practice, pretrial filings, hearings, statements and prehearing memos, direct and cross examination, objections and evidentiary matters, writing, remedies, settlement, arbitration, enforcement, and ethical considerations.

EEO Discovery Forms for Agency Representatives

Maximize discovery and fully develop the agencies defenses to underlying causes of action before the EEOC with the use of sample interrogatories, document requests, instructions, and definitions patterned after actual cases.

MSPB Discovery Forms for Agency Representatives

Drawing from actual cases, this quick reference offers discovery samples to guide agency representatives through litigation before the MSPB. Major topics include definitions, instructions, interrogatories, document requests, and request for admissions.

Representing Agencies and Complainants Before the EEOC

This Dewey classic provides comprehensive analysis of federal sector practice before the EEOC. Major topics include individual and class complaint processes, theories of discrimination, pre- and post-investigation evaluations, discovery, settlement, hearings, class actions, remedies, and post-hearing procedures.

Effective Summary Judgment Motions

Effective Summary Judgment Motions offers a comprehensive analysis of EEO summary judgment case law along with practice tips and sample motions. Major topics include rules, regulations, and guidance; summary judgment standards; written motion papers; intentional discrimination cases; harassment cases; disability cases; reprisal cases; and religious accommodation cases.

Now taking 2012 orders

A Guide to Merit Systems Protection Board Law and Practice (2012)

By: Broida
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A Guide to Federal Labor Relations Authority Law and Practice (2012)

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Price: $450.00
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A Guide to Federal Sector Equal Employment Law and Practice (2012)

By: Hadley
Price: $550.00
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Adverse Actions (2012)
A Guide for Federal Managers and Personnel Specialists
By: Corum
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Edition: 4th/2012
ISBN: 1-934651-57-5
Availability: February 2012
Format: Book, CD, or eBook

This thorough but concise handbook offers supervisors and personnel specialists a step-by-step, practical approach to taking adverse and performance-based actions. The governing statutes and regulations are also reproduced. Major topics include the legal framework of adverse actions, jurisdiction, adverse action causes, penalties, proving the case, adverse action procedures, performance based actions, and adverse action appeals. (more details)

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Bynum and Its Progeny Overruled Regarding the Mullins-Howard Exception to Disability Retirement

Last week, the MSPB in Henderson v. OPM, 2012 MSPB 11 (2012), overruled Bynum v. Office of Personnel Management, 89 MSPR 1 (2001), and "its progeny to the extent that they state that the Board's decision in Mullins-Howard reflects an 'exception' to a 'general rule' that medical evidence [in disability retirement cases] must unambiguously and without contradiction show how the medical condition affects specific job duties or indicate that the appellant cannot meet the requirements of her position." The Board reasoned that the Mullins-Howard decision did not create such an exception to the general rule for disability retirement determinations or suggest that medical evidence had to be unambiguous and without contradiction.

Noting that the burden of proof in disability retirement cases is preponderance of the evidence, the Board held that "[t]o require medical evidence that is unambiguous and without contradiction is to impose a much higher burden of proof, one that is not authorized by law or regulation." The Board continued: "[T]he proposition that an appellant is not entitled to disability retirement unless her medical provider explains specifically how her medical condition affects specific work requirements is unwarranted." Setting forth the proper considerations for disability retirement determinations, the Board wrote:

The Board has always stated that it will consider all pertinent evidence in determining an appellant's entitlement to disability retirement: objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and evidence relating to the effect of the applicant's condition on her ability to perform the duties of her position. ... However, nothing in the law mandates that a single provider tie all of this evidence together. For example, if the medical provider provides clinical findings, a diagnosis, and a description of how the medical condition affects the appellant's activities in general terms, the Board could consider that evidence, together with the appellant's subjective account of how the condition has affected her ability to do her job and her daily life, testimony or statements from supervisors, co-workers, family members, and friends, and the appellant's position description. From that, the Board could conclude that the medical condition caused deficiencies in the employee's performance, conduct, or attendance, or that the medical condition is incompatible with useful and efficient service in her position, either because the appellant is unable to perform critical elements of her position, or because she cannot work at any job, in a particular line of work, or in a particular type of work setting.

The ultimate question, based on all relevant evidence, is: Do the employee's medical impairments preclude her from rendering useful and efficient service in her position? And this question must be answered in the affirmative if the totality of the evidence makes that conclusion more likely to be true than not true.

For more discussion on disability retirement, see A Guide to MSPB Law & Practice by Broida and MSPB Case Summaries by Broida and Davis.

Reasonable Accommodation Arguments in the Context of "Qualified Individual with a Disability" Determinations

Johnson, a teacher, lost her job when she allowed her teaching certification to lapse. Johnson petitioned the school board to sign off on her application for provisional status until she could obtain the credits necessary to renew her certification. The school board denied her request. During a school board hearing, Johnson testified that her history of mental illness and a depressive episode during the summer leading to the expiration to her certification prevented her from completing the course work for certification renewal. She was nevertheless terminated for her failure to maintain her certification.

On appeal from her termination, the district court found that Johnson was not a qualified individual with a disability. Before the Ninth Circuit, the school board did not assert that Johnson was incapable of performing her duties at the time it denied her request for provisional authorization. Rather, the school board contended that Johnson's failure to maintain the required certification for the job rendered her unqualified to hold the position. Johnson argued that because of her mental disability, the board was obligated to grant her request for provisional status as a reasonable accommodation.

The court disagreed with Johnson first noting that the initial inquiry in such cases is whether the employee is a "qualified individual with a disability", namely "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."

Initially, we note that [this] first step of the qualification inquiry, unlike the second step, contains no reference to reasonable accommodation. If the EEO had intended to require employers to provide reasonable accommodation to ensure that disabled individuals can satisfy the job prerequisites, in addition to the essential job functions, it presumably could have said so in the regulation. That the EEOC declined to include any reference to reasonable accommodation in the first step suggests that such omission was deliberate.


....[U]nless a disabled individual independently satisfies the job prerequisites, she is not 'otherwise qualified,' and the employer is not obligated to furnish any reasonable accommodation that would enable her to perform the essential job functions.

In sum, reasonable accommodation assessments can only be made after an employee is determined to be an individual with a disability. The EEOC, as amicus curiae on behalf of Johnson, noted that

Guidance provides that "selection criteria that are related to an essential function of the job may not be used to exclude an individual with a disability if that individual could satisfy the criteria with the provision of a reasonable accommodation." ... Thus, the EEOC asserts that reasonable accommodation must be considered under the first step of the qualification inquiry.

The court distinguished the Guidance from the present case noting that the Guidance cited by the EEOC "pertains to challenges to 'qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities.'" Johnson claimed a failure to accommodate, not that the certification process created a disparate impact under the ADA.

This case brings to mind federal sector employment situations where an employee fails to maintain a condition of employment, such as a bar card, security clearance, license, or certification. According to the Ninth Circuit, courts need not consider whether an employee "could" with reasonable accommodation have maintained their licensing, security clearance or certification in a given position. Employees must already hold the "requisite" job related requirements of the job without accommodation.

It was a nice try...

For more on the complexities of disability discrimination, see A Guide to Federal Sector Disability Discrimination Law and Practice and EEO Basics by Ernie Hadley, Federal Sector Disability Discrimination Law Deskbook by Gary Gilbert.

Supreme Court to Hear MSPB Jurisdictional Issue

On January 13, 2012, the U.S. Supreme Court granted certiorari to hear Kloeckner v. Solis. The issue to be decided, as framed by the Court, is:

If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?

Case Background:

Kloeckner involved a mixed case appeal from Kloeckner's removal, which the MSPB dismissed as untimely. Kloeckner appealed that decision in district court, alleging her appeal was timely, and that she was a victim of discrimination. The district court dismissed for lack of subject matter jurisdiction.

The Eighth Circuit agreed that the district court lacked jurisdiction to review the decision because the MSPB did not reach the merits of Kloeckner's discrimination claims. Kloeckner v. Solis, 639 F.3d 834 (8th Cir. 2011). Citing to the Federal Circuit's decision in Ballentine v. MSPB, 738 F.2d 1244 (Fed. Cir. 1984), the Eighth Circuit held that the Federal Circuit has exclusive jurisdiction over such appeals.

Issue Background:

Since Ballentine, circuit courts had uniformly followed the Federal Circuit's reasoning, until the Second Circuit traversed a different path in Downey v. Runyon, 160 F.3d 139 (2d Cir. 1998). The Downey court found that an employee, who sought district court review of a mixed case dismissed as untimely by the Board, need not proceed first to the Federal Circuit on the timeliness issue. A few years later, the Tenth Circuit followed suit holding that review of a mixed case, including the issue of timeliness, may properly be initiated before a district court. Harms v. IRS, 321 F.3d 1001 (10th Cir. 2003).

Now it's the Supreme Court's turn to weigh in on the issue. Stayed tuned.

To better understand MSPB jurisdiction, see MSPB: The Movie, MSPB Basics, and MSPSB Basics for Agencies by Broida and Motions Practice Before the MSPB and EEOC by Hadley and Tuck.


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