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Dewey Publications Inc.
News and Case Alert
Issue #4-4
In this issue...
MSPB: Further Restrictions on Indefinite Suspensions and Sensitive Positions
EEOC: A Claim of Discrimination Based on Transgender Status is a Title VII Claim of Sex Discrimination
Ninth Circuit: Just how essential is showing up for work on a predictable basis?
EEOC Publishes a "Myths and Facts" Sheet About the Federal Sector EEO Process


A Guide to Merit Systems Protection Board Law and Practice (2012)
By: Broida
Price: $550.00
Sku: 12MSPB
Edition: 29th/2012
ISBN: 1-934651-58-3

New! Includes hundreds of nonprecedential MSPB decisions issued starting in late 2010.


In two volumes, updated annually, this encyclopedic guide to Board cases, laws, procedure, and litigation practice is the seminal text on this complex area of the law. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, PPPs, retirement, attorney fees, settlement, remedies, and judicial review. (more details)

Books for Supervisors and Managers

Dewey offers a library of books written especially for federal managers and supervisors. Arm and educate your management staff with these Dewey titles:


Adverse Actions and Performance-Based Actions (2011)
Process, Law and Cases, Guidance, and Pitfalls
By: Fowler & Vitaro
Price: $160.00
Sku: 11AAPA
Edition: 1st/2011
ISBN: 1-934651-50-8
Format: Book, CD, or eBook

This instructional text guides practitioners, HR specialists, and supervisors and managers through the complexities of adverse and performance-based actions with discussion of the governing statutes, regulations, and cases from the MSPB and Federal Circuit and practical advice, strategies, and best practices for navigating these disciplinary processes. Major topics include discussion of the Civil Service Reform Act, statutory and regulatory requirements of adverse actions, the agency's administrative process in taking adverse actions, substantive rights in performance-based actions, and the agency's administrative process in taking performance-based actions. (more details)


Surviving EEO Complaints
By: Tuck
Price: $55.00
Sku: 10SEEC
Edition: 3rd/2010
ISBN: 1-934651-39-7
Format: Book, CD, or eBook

This straightforward training manual educates federal supervisors and managers on complaints and theories of discrimination and the complaint process. Advice is liberally interspersed on how to prevent discrimination complaints and how to defend against a complaint. Major topics include a summary of the discrimination laws, covered employees, disparate treatment and impact, harassment, reasonable accommodation, retaliation, strategies for reducing complaints, the EEO complaint and hearing processes, use of government property and time, and coping with the litigation process. (more details)


Settling Disputes
By: Corum
Price: $55.00
Sku: 09SD
Edition: 1st/2009
ISBN: 1-934651-17-6
Format: Book, CD, or eBook

Settling Disputes provides instruction on how to resolve employee grievances, appeals, and complaints. Major topics include discussion of EEO settlements, defining settlement interests, creating settlement options, and finalizing the agreement. (more details)


Adverse Actions
By: Corum
Price: $55.00
Sku: 12AA
Edition: 4th/2012
ISBN: 1-934651-57-5
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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Consolidated Federal Sector EEO Update 2004-2012
By: Vitaro, Goodfriend & Gilbert
Price: $190.00
Sku: 12CEUP
Edition: 8th/2012
Availability: Summer 2012
Format: Book, CD, or eBook

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through 2011 and reviews EEO laws, regulations, guidance, and recent trends, arranged by subject matter areas of employment discrimination jurisprudence and further categorized alphabetically for ease of use. Major topics include recent trends in the law, age, disability, national origin, race, religious and sex discrimination, attorney fees, class actions, compensatory damages, appellate review, evidence, harassment, hearings, mixed cases, procedures, remedies, reprisal, settlement, and sexual harassment. (more details)



Crafting Durable Settlement Agreements
By: Tuck
Price: $160.00
Sku: 12CEUP
Edition: 2nd/2012
Availability: Summer 2012
Format: Book, CD, or eBook

Crafting Durable Settlement Agreements is a complete research tool for negotiating, drafting and enforcing settlement agreements with expert commentary and sample agreement provisions and terms. Analysis of relevant MSPB and EEO case law, regulations, OPM guidance, MD-110, and Federal Rules of Evidence is also included. Major topics include settlement principles and advice, guidelines for settlement, settlement authority, collateral use of and challenges to agreements and offers, preparation for settlement, alternative discipline agreements, last chance agreements, common settlement terms, enforcement, and rescission., settlement, and sexual harassment. (more details)



Dewey's FREE MONTHLY "News and Case Alert" Email keeps you 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.

MSPB: Further Restrictions on Indefinite Suspensions and Sensitive Positions

Williams v. Dept. of Defense, 2012 MSPB 46
(March 30, 2012)

by Natania Davis


The agency indefinitely suspended Williams after she was found no longer qualified for her non-critical sensitive position based on a decision to deny her access to sensitive information (such access was a requirement of her position). Further extending Conyers v. Dept. of Defense, 115 MSPR 572 (2010), the Board held that, under the facts of this case, the agency failed to prove by preponderant evidence that it properly placed the appellant on an indefinite suspension. (Because the Conyers case was before the Board on interlocutory appeal, the Board did not reach the merits of the indefinite suspension presented in that case.)


Citing Gonzalez v. DHS, 114 MSPR 318 (2010), the Board noted that indefinite suspensions are appropriate only (1) where the agency invokes the crime provision; (2) when the agency has legitimate concerns that an employee's medical condition makes his continued presence in the workplace dangerous or inappropriate-pending a determination that the employee is fit for duty; and (3) when an employee's access to classified information has been suspended and the employee must have such access to perform his job-pending a final determination on the employee's access to classified information. Finding none of the foregoing preconditions present in this case and noting that the facts did not present a basis for expanding the list of circumstances that allow for indefinite suspensions, the Board reversed the agency's action. The import, here, is the Board's continued position that a decision to deny access to non-critical sensitive information is not the same as a denial of access to classified information.


The Board was careful to note that "[i]n resolving this appeal, we hold only that an agency may not indefinitely suspend an employee based on the circumstances and facts as described herein." As indefinite suspensions and denials of access to sensitive information go, the "circumstances" and "facts" of this case were fairly straightforward. Despite the Board's limiting language, the opinion should be readily applicable to most cases involving indefinite suspensions due to denial of access to sensitive information. The Board also noted that in issuing this decision it expressed no opinion on whether the agency could remove or otherwise impose some other adverse action against appellant.


For more discussion of Conyers, adverse actions and indefinite suspensions, order your copy of the seminal text on Board law, A Guide to Merit Systems Protection Board Law and Practice (2012) by Broida. Also available on topic are MSPB Case Summaries by Broida and Davis, and Adverse Actions: A Guide for Federal Manager and Personnel Specialists by Corum.

EEOC: A Claim of Discrimination Based
on Transgender Status
is a Title VII Claim of Sex Discrimination

Macy v. DoJ, (Bureau of Alcohol, Tobacco, Firearms and Explosives), Appeal No. 0120120821 (April 20, 2012)

by Natania Davis

The Commission recently held that a complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII and, regardless of how they are characterized, such complaints should be processed through the EEOC's federal sector complaints process.

While still presenting as a man, complainant interviewed telephonically for a position with the ATF and was assured on two separate occasions by the selecting official that the job was his pending a background check. Sometime thereafter, as evidence of the impending hire, complainant was contacted by the contractor responsible for filling the position and an investigator was assigned to do complaint's background check. On March 29, 2011, complainant informed the contractor that he was transitioning from a male to a female and asked the contractor to convey same to the ATF. Five days after receiving confirmation that the agency was aware of the name and gender change, complainant received an e-mail from the contractor stating that the agency eliminated the position due to "federal budget reductions." Complainant contacted an EEO counselor and learned that the agency had filled the position with someone else.

According to the EEO counselor's report, complainant "alleged that she had been discriminated against based on sex, and had specifically described her claim of discrimination as 'change in gender (from male to female).'" On her formal complaint, complaint checked the "sex" and "female" boxes as bases for discrimination and noted "gender identity" and "sex stereotyping" in her complaint.

Department of Justice policy is to process complaints of sexual orientation and gender identity discrimination in a system separate from claims of sex discrimination under Title VII. This separate process does not afford complainants as favorable rights and remedies as those offered Title VII complainants, e.g., no right to request a hearing before the EEOC. In its letter of acceptance, the agency informed complainant that "since identity stereotyping cannot be adjudicated before the [EEOC], your claims will be processed according to Department of Justice policy." Complainant's attorney sent the agency a letter disputing its interpretation of the claim, asserting that the correct bases were "sex, sex stereotyping, sex due to gender transition/change of sex, and sex due to gender identity." The letter further disputed the agency's conclusion that the complaint could not be processed as a Title VII claim. The agency agreed to process the claim of "sex discrimination" through the usual complaint process, but noted that the "gender identity stereotyping" claim would remain in the alternate complaint processing system.

Complainant's Notice of Appeal to the EEOC asked that her complaint be adjudicated as a claim of ""sex stereotyping, sex discrimination based gender transition/change of sex, and sex discrimination based gender identity" discrimination.

In the interest of uniformity, the Commission clarified that "claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition, and may therefore be processed under Part 1614 of EEOC's federal sector EEO complaints process." The Commission further found that the various phrases used by complainant to describe the alleged discrimination were "simply different ways of stating the same claim of discrimination 'based on . . . sex,' a claim cognizable under Title VII." The Commission reasoned, in part:

That Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute's protections sweep far broader than that, in part because the term "gender" encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.

The Commission went on to discuss how a transgender person may establish a prima facie claim of sex discrimination:

Thus, a transgender person who has experienced discrimination based on his or her gender identity may establish a prima facie case of sex discrimination through any number of different formulations. These different formulations are not, however, different claims of discrimination that can be separated out and investigated within different systems. Rather, they are simply different ways of describing sex discrimination. For example, Complainant could establish a case of sex discrimination under a theory of gender stereotyping by showing that she did not get the job as an NIBIN ballistics technician at Walnut Creek because the employer believed that biological men should consistently present as men and wear male clothing.

Alternatively, if Complainant can prove that the reason that she did not get the job at Walnut Creek is that the Director was willing to hire her when he thought she was a man, but was not willing to hire her once he found out that she was now a woman she will have proven that the Director discriminated on the basis of sex. Under this theory, there would actually be no need, for purposes of establishing coverage under Title VII, for Complainant to compile any evidence that the Director was engaging in gender stereotyping.

The Commission was careful to note that "[a]pplying Title VII in this manner does not create a new "class" of people covered under Title VII...." With that, the case was remanded for further agency processing through the federal sector EEO complaints process.

For more discussion on sex discrimination, see Consolidated Federal Sector EEO Update by Vitaro, Goodfriend & Gilbert and EEO and the Federal Supervisor by Corum.

Ninth Circuit:

Just how essential is showing up

for work on a predictable basis?

Testing the Limits Of An Employer's Attendance Policy

Samper v. Providence St. Vincent Medical Center, No. 10-35811, Ninth Circuit Court of Appeals (April 11, 2012)

by Natania Davis

In a case that "tests the limits of an employer's attendance policy," the Ninth Circuit recently affirmed dismissal of an ADA lawsuit brought by a NICU nurse who requested a waiver from her employer's five-unplanned-absence limit as a reasonable accommodation.


Samper, a neo-natal intensive care unit nurse, regularly exceeded the employer's allowed five unplanned absences. A diagnosis of fibromyalgia prompted Samper to request an exemption from the hospital's attendance policy. When her attendance problems continued, she was fired. Samper filed suit alleging, among other claims, a violation of the Americans with Disabilities Act due to failure to accommodate. The trial judge granted summary judgment in favor of the employer. Samper appealed this decision to the Ninth Circuit Court of Appeals. 


Beyond the obvious reasons making the attendance of a NICU nurse essential, such as the specialized training, making finding replacements difficult and that understaffing compromises patient care, the court also looked to the standards of performance for the employee's position, which listed attendance and punctuality as essential. The court further distinguished jobs such as dockworker positions where "the workers were basically fungible with one another" and a medical transcriptionist, whose work could primarily be done at home.


Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as "part of a team."... Other jobs require face-to-face interaction with clients and other employees.... Yet other jobs require the employee to work with items and equipment that are on site.... As a NICU nurse, Samper's job unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment.

As to Samper's accommodation request that her employer exempt her from its five unplanned absences policy due to her disability, the court concluded:


Samper's request so far exceeds the realm of reasonableness that her argument leads to a breakdown in well-established ADA analysis. In most cases, the essential function and reasonable accommodation analyses are separate: first, a court inquires as to the job's essential functions, after which the plaintiff must establish that she can perform those functions with or without reasonable accommodations. See Bates, 511 F.3d at 994. Samper essentially asks for a reasonable accommodation that exempts her from an essential function, causing the essential functions and reasonable accommodation analyses to run together. Samper's approach would eviscerate any attendance policy, leaving the hospital with the potential for unlimited absences. 

Samper's performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality-to require a hospital to do so could, quite literally, be fatal.

Given the importance of regular attendance for a NICU nurse, the Ninth Circuit found the employer hospital established that compliance with its attendance policy was an essential job function and that employers need not grant accommodations that would exempt an employee from an essential job function.  


For more on disability discrimination, see A Guide to Federal Sector Disability Law and Practice and Best of the Commission by Hadley, and Federal Sector Disability Discrimination Law Deskbook by Gilbert.

EEOC Publishes a "Myths and Facts" Sheet About the Federal Sector EEO Process

by Natania Davis


In an effort to address "recent commentary and conjecture" pertaining to the federal sector EEO complaint process, the Commission recently published "What You Should Know: Myths and Facts about the Federal Sector EEO process.". Highlights from the fact sheet are below:


1) "MYTH: Discrimination is found in less than 2 percent of EEO complaints. FACT: Discrimination may occur in up to 33 percent of EEO cases." The Commission notes that 29 percent of the complaints closed in 2010 were resolved through settlements. Of those settlements, many contained "favorable" outcomes for the complainant.


Author's note: Perhaps it's just in the writing, but how often the Commission finds discrimination and how often it actually happens are two different things. As for the settlement statistics, for a settlement to occur in the first place, there must be something "favorable" to each party. This author is not convinced of the usefulness of these particular statistics.


2) "MYTH: Complaints are increasing because more employees are 'harassed' at work. FACT: Two-thirds of complaints filed contain no harassment allegation." The Commission notes that 60 percent of complaints filed in 2010 did not include claims of harassment.


3) "MYTH: Agencies devote too many resources to processing frivolous discrimination complaints. FACT: Most complaints are not frivolous and EEO resources pay dividends." Here, the Commission notes regulations allowing for dismissal of frivolous claims, but reminds federal supervisors that accusing complainants of filing frivolous claims by calling them "whiners", "poor performers", and the like can lead to reprisal claims. "It is a fallacy to infer that federal agencies are flooded with EEO complaints. The federal workforce is comprised of nearly three million employees, yet individuals who file EEO complaints are a minute fraction of that number. Less than half of one percent of the federal workforce filed an EEO complaint in FY 2010."


4) "MYTH: Agencies are hamstrung when complainants refuse to cooperate. FACT: EEOC regulations allow for dismissal of such complaints." The Commission goes on to note that "[a]gencies can avoid the EEO process altogether by working closely with the EEOC to ensure equality, diversity and inclusion for all employees. Like a doctor treating a patient, proactive prevention is still the best medicine to ensure a healthy, discrimination-free workplace."


Click here for the full text of the fact sheet.


For more discussion of the EEO complaint process, get your copy of A Guide to Federal Sector Equal Employment Law and Practice and EEO Basics for Complainants by Hadley and Surviving EEO Complaints by Tuck.