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Dewey Publications Inc.
News and Case Alert
Issue #4-10
In this issue...
On the Whistleblower Front
EEO Decisions of Note
MSPB Decisions of Note


A Guide to the
Whistleblower Protection Act & Related Litigation

By: Fowler & Vitaro
Price: $190.00
Sku: 12WPA
Edition: 2nd/2012
Availability: December 2012
Format: Book, CD, or eBook

With insight and practice tips, this comprehensive and practical guide sorts the law and procedures related to whistleblower reprisal. The guide includes OSC and MSPB regulations, covers noteworthy cases, and discusses the Presidential Policy Directive on whistleblowers and the changes proposed by the Whistleblower Enhancement Protection Act. Major topics include legislative history and sources of law; MSPB basics; OSC operations; corrective and disciplinary actions; IRAs and otherwise appealable actions; grievances and whistleblower reprisal claims; stays; burdens of proof; qualifying disclosures; prima facie case and contributing factor; and remedies, damages and relief. (more details)




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Management of Problem Employees
$55 On Sale! $38.50

MSPB Basics: The Agency Edition
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MSPB Basics
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FMLA Basics
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Advocate's Practical Guide to Using Mediation
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Defending Your Case
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Federal Sector Sexual Harassment Law
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Settlement Forms for MSPB and EEOC
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MSPB Discovery Forms for Agency Representatives
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EEO Discovery Forms for Agency Representatives
$100 On Sale! $60

Representing Agencies and Complainants Before the EEOC
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Motions Practice Before the MSPB and the EEOC
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Instructional Audio (Topic: Agency Advocacy)
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Instructional Audio (Topics include: Mediation, Arbitration Advocacy, MSPB Litigation)
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Security Clearance Law and Procedure
$235 On Sale! $117.50

A Federal Sector Guide to the FMLA & Related Litigation
$190 On Sale! $95

Collective Bargaining Law for the Federal Sector
$110 On Sale! $55

Senior Executive Service Legal Guide
$100 On Sale! $50

Effective Summary Judgment Motions
$100 On Sale! $50


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Crafting Durable
Settlement Agreements

By: Tuck
Price: $160.00
Sku: 12CDSA
Edition: 2nd/2012
Availability: Released 11/01/12
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, pre-appeal agreements, common settlement terms, enforcement, and rescission. (more details)




By: Kitchens
Price: $190.00
Sku: 12UVD
Edition: 1st/2012
Availability: Released 10/20/12
Format: Book, CD, or eBook

USERRA/VEOA Deskbook is a comprehensive compilation of the statutes, regulations, and case law governing the Uniformed Services Employment and Reemployment Rights Act and Veterans Employment Opportunity Act. Major topics include legislative history; purpose; coverage; discrimination and retaliation; return to duty; rights, benefits, and obligations of covered individuals; the roles of the Department of Labor and Office of Special Counsel; appeals to the Merit Systems Protection Board and appealable actions; and judicial review. (more details)



EEO Counselors'
Investigators' Manual

By: Hadley & Sumner
Price: $190.00
Sku: 12ECIM
Edition: 2nd/2012
Availability: Released 7/25/12
Format: Book, CD, or eBook

A comprehensive, easy to follow, and insightful guide to counseling and investigating EEO complaints, this manual explores the essentials of the EEO complaint process. Major topics include the EEO statutes and process, theories of discrimination, remedies, EEO Counselor's role, initial interview, identifying, defining the claims, factfinding during counseling, resolution of complaints, MSPB appeals and grievances, EEO Counselor's report, EEO Investigator's role, investigative principles, evidentiary issues, scope of investigation, collecting evidence, investigative techniques, and report of investigation. (more details)









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On the Whistleblower Front

by Natania Davis


In addition to Dewey's upcoming release of the second edition of A Guide to the Whistleblower Protection Act and Related Litigation by Fowler and Vitaro, other recent news affecting whistleblowers includes:


Whistleblower Protection Bill: Yesterday, Congress sent the Whistleblower Protection Enhancement Act, S. 743, to the President for signature after the Senate unanimously passed the Act, which strengthens the Whistleblower Protection Act to ensure additional protections for federal whistleblowers. The House unanimously passed the same bill on September 28, 2012.


Key reforms include:

  • Extending whistleblower protection rights to certain employees not currently covered under the WPA;
  • Strengthening the Special Counsel's ability to seek accountability in the form of disciplinary actions against those who retaliate; and
  • Clarifying what constitutes a "disclosure" and overturning case law that narrowed protections to whistleblowers.


Presidential Policy Directive Protecting Employees With Access to Classified Information (PPD-19): On October 10, 2012, President Obama issued PPD-19, expanding the scope of whistleblower protections to intelligence agency employees. Noting its primary purpose, the Directive reads:


This Presidential Policy Directive ensures that employees (1) serving in the Intelligence Community or (2) who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse.




A. Prohibition on Retaliation in the Intelligence Community


Any officer or employee of a Covered Agency who has authority to take, direct others to take, recommend, or approve any Personnel Action, shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, a Personnel Action with respect to any employee serving in an Intelligence Community Element as a reprisal for a Protected Disclosure.




B. Prohibition on Retaliation by Affecting Eligibility for Access to Classified Information



Any officer or employee of an executive branch agency who has authority to take, direct others to take, recommend, or approve any action affecting an employee's Eligibility for Access to Classified Information shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, any action affecting an employee's Eligibility for Access to Classified Information as a reprisal for a Protected Disclosure.


Id. at 1-3.


Other key points of the Directive include:


  • "An employee alleging a reprisal who has exhausted the applicable review process required by Section A or B of this directive may request an external review by a three-member Inspector General panel (External Review Panel) chaired by the Inspector General of the Intelligence Community...." Section C. at 4.
  • A directive to establish policies and procedures for providing notice to covered employees of the "protections and review processses available to individuals who make Protected Disclosures." Section D. at 5.
  • The Attorney General is charged with reviewing the regulations implementing 5 USC 2303 and, within 180 days of the directive's date, delivering "a report to the President that assesses the efficacy of the provisions" of those regulations. Section E. at 5.
  • Section F of the directives provides definitions of key terms such as "covered agency," "eligibility for access to classified information," "personnel action" and "protected disclosure."



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For more on whistleblower reprisal protections for:


Supervisors, see Disciplining Federal Employees by Corum, Uncivil Servant by Wiley, Supervising Federal Employees by Corum and Adverse Actions and Performance-Based Actions by Fowler and Vitaro.


Representatives, see A Guide to the Whistleblower Protection Act and Related Litigation by Fowler and Vitaro (coming soon), MSPB Case Summaries by Broida and Davis, and A Guide to MSPB Law and Practice by Broida.



Representatives and Litigation Techniques, see Effective Summary Judgment Motions by Hadley and Laws and Motions Practice before the MSPB and the EEOC by Hadley and Tuck.



EEO Decisions of Note

by Natania Davis


Talley v. NRC, Appeal No. 0120110737 (September 26, 2012): OFO reversed the agency's dismissal of the complaint for failing to state a claim and for being preliminary to a future personnel action where complainant alleged reprisal for prior protected EEO activity when, during a mid-year performance review, complainant's supervisor "expressed concerns about questions she was asked by an EEO invesigator" concerning complainant's EEO complaint and made comments suggesting that complainant may not receive a fully successful rating which could adversely affect her upward mobility.


Accepting these allegations as true, as we must in the context of a dismissal for failure to state a claim, we conclude that S1's comments could have a chilling effect upon a reasonable employee's exercise of rights conferred by the EEO statutes. This is particularly so given that the comments were made in the course of a midyear review when an employee would reasonably be particularly attuned to any displeasure that might be voiced by a supervisor. We find that the Agency's dismissal of the complaint was improper. The Agency offers as an alternative ground for dismissing the complaint, arguing that claims based on actions taken in connection with a midyear review are dismissable as preliminary to a personnel action. Commission regulation 29 C.F.R. § 1614.107(a)(5) provides, in part, that an agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. However, a recent revision to § 1614.107(a)(5) makes clear that this provision does not apply where, as in this case, it is alleged that a discriminatory proposed personnel action is made in retaliation for prior protected EEO activity. 77 Fed. Reg. 43498, 43500 (July 25, 2012); 29 C.F.R. § 1614.107(a)(5) (Sept. 25, 2012). For that reason, it was error to dismiss the complaint on that basis."


Velazquez v. USPS, Appeal No. 0120111905 (September 21, 2012): OFO reversed the agency's final decision dismissing the complaint for failing to state a claim and as moot where complainant alleged religious discrimination when his new supervisor refused to honor an alleged directive by complainant's former supervisor that employees could not watch the Jerry Springer show in the break room. The agency alleged that complainant never had a religious accommodation and denied complainant's subsequent request for same. The agency did agree to change complainant's break time to after the Jerry Springer show ended. Complainant requested written confirmation of the agency's accommodation to prove to "future supervsiors that he has a religious accommodation."


Complainant claims that supervisors are rotated every so often which will make the stated local agreement with his present supervisor void. Complainant states the Agency has no written policy to grant him this requested religious accommodation and the Agency does not dispute this assertion. Based on the foregoing, we find that it cannot be said with assurance that there is no reasonable expectation that the alleged violation will recur. The Agency's final decision is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the Order herein.


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For more EEO related topics:


For Supervisors, see Surviving EEO Complaints: A Handbook for Federal Managers by Tuck and EEO and the Federal Supervisor by Corum.


For Representatives on Procedure, see Representing Agencies and Complainant's Before the EEOC by Hadley, EEO Discovery Forms for Agency Representatives by Hadley and Fowler, Effective Summary Judgment Motions by Hadley and Laws and A Guide to EEO Law and Practice by Hadley.



For Representatives and HR Specialists on Disability Discrimination, see A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley and Federal Sector Disability Discrimination Law Deskbook by Gilbert



MSPB Decisions of Note

by Natania Davis


Martinez v. VA, 2012 MSPB 212 (November 1, 2012): In a removal case, the Board vacated the initial decision and remanded the case for further adjudication where the AJ found that the agency denied appellant a meaningful opportunity to respond to a proposed removal because the deciding official concurred in an OIG draft investigative report, that formed the basis of the charges against the appellant (a due process violation, according to the AJ). The Board noted that


a deciding official's familiarity with the facts of the case and expressed predisposition contrary to the appellant's interests does not constitute a due process violation or harmful error. Deskin, 76 M.S.P.R. at 517-18; Baldwin, 26 M.S.P.R. at 387; Jackson, 22 M.S.P.R. at 353; Facciponti, 15 M.S.P.R. at 185-86; Svejda, 7 M.S.P.R. at 111; see McGhee v. Johnson, 420 F.2d 445, 448 (10th Cir. 1969) (the fact that the same official decided an employee's removal in an earlier, procedurally flawed removal action did not invalidate the official's second determination to remove the employee). This is so even if the deciding official had gone so far as to concur previously in the desirability of taking the adverse action against the employee. Baldwin, 26 M.S.P.R. at 387; Beatty, 20 M.S.P.R. at 438. Furthermore, both the Board and our reviewing court have found that it is permissible for an individual to be both the proposing and deciding official in an action. E.g., DeSarno v. Department of Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985) ("The law does not presume that a supervisor who proposes to remove an employee is incapable of changing his mind upon hearing the employee's side of the case."); Teichmann v. Department of the Army, 34 M.S.P.R. 447, 449-52 (1987) (a deciding official's initial predisposition to decide against an employee is insufficient to vitiate the agency proceeding when the deciding official is willing to change his mind and fully considers all evidence of record, including the appellant's oral and written replies, before reaching his decision), aff'd, 854 F.2d 1327 (Fed. Cir. 1988) (Table).


Wingate v. USPS, 2012 MSPB 113 (September 27, 2012): Overruling Bowman v. Department of Agriculture, 113 MSPR 214 (2010), wherein the Board relied on Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2010), a decision in which the Supreme Court found that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action." The Board noted that age discrimination claims in the federal sector are prohibited by 29 USC 633a(a), not section 29 USC 623(a)-the section relied on by the Gross court-and the language contained in those parts is decidedly different. "Whereas 29 U.S.C. § 623(a)(1) prohibits discrimination 'because of' age, 29 U.S.C. § 633a(a), the ADEA provision applicable to employees in the federal sector, requires that personnel actions in federal employment 'shall be made free from any discrimination based on age.' 29 U.S.C. §§ 623(a)(1), 633a(a)." Relying on the EEOC's decision in Alotta v. Department of Transportation, EEOC Appeal No. 0120093865, 2011 WL 2515244, at *2 (June 17, 2011), in which the EEOC found that, the "free from any" language must be construed as being broader than the "because of" language, the Board held "that a federal employee may prove age discrimination by establishing that age was a factor in the challenged personnel action, even if it was not the 'but-for' cause of that action."


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For more on MSPB related topics:


For Supervisors and HR Specialists and Representatives who advise them, see Adverse Actions: A Guide for Federal Managers and Personnel Specialists by Corum, MSPB Charges and Penalties by Fowler and Vitaro, Uncivil Servant by Wiley, and Adverse Actions and Performance-Based Actions: Process, Law and Cases, Guidance, and Pitfalls by Fowler and Vitaro.


For Representatives on MSPB Procedure, see Motions Practice Before the MSPB and the EEOC by Hadley and Tuck, MSPB Discovery Forms by Broida and Discovery Practice Before the MSPB: Forms, Samples and Guidance by Tuck.



For Representatives on MSPB Law, see A Guide to MSPB Law and Practice by Broida and MSPB Case Summaries by Broida and Davis

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