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Dewey Publications Inc.
News and Case Alert
Issue #4-11
In this issue...
Disability Discrimination:
The Undue Hardship Defense
MSPB Cases
Whistleblower UPDATE



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)




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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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, and you can unsubscribe at any time.



Disability Discrimination:
The Undue Hardship Defense

An Excerpt from Federal Sector Disability

Discrimination Law Deskbook (3rd Ed. 2011)

by Gary Gilbert


This month Dewey is discounting our Deskbook and Summary texts, including Federal Sector Disability Disability Discrimination Law Deskbook. Enjoy an excerpt from the Deskbook, discussing the undue hardship defense.


An employer is required to reasonably accommodate the known limitations of a qualified individual with a disability. However, an employer may argue as a defense that the accommodation would pose an undue hardship on the employer's operations to provide. See 29 CFR 1630.2(p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (revised October 17, 2002). [Reference Materials I of this Deskbook.]




An employer need not remove essential job functions as a means of reasonable accommodation, but it may exceed its obligation to provide reasonable accommodation by doing so if it so chooses. See Polen v. Cohen, Sec'y, Dept. of Defense, DLA, EEOC No. 01970984 (January 16, 2001). Well-intentioned employers often do just that as they seek other positions that the employee can perform or while they explore methods of accommodation so the employee can perform the essential function temporarily being excused. Employers are often concerned that removing duties or otherwise excusing an employee from performing particular job-related tasks may create an obligation to continue to do so.


Clearly, the fact that certain duties are excused suggests that those duties may be marginal functions of the job. However, where an employer chooses to remove an essential functions of the job, explicitly states it is doing so, and clearly indicates that it may (or will) re-impose the job tasks in the future, it will likely avoid liability. On the other hand, at some point, the passage of time itself suggests that the job duties were merely marginal functions of the job. Consider Hernandez v. Potter, Postmaster Gen., USPS, EEOC No. 07A30005 (July 16, 2004), a case discussed in more detail below, where the Commission found that an employee who had been excused from performing certain tasks that exceeded his medical restrictions for some 10 years was the victim of disability discrimination when a new supervisor reassigned the job tasks. The Commission reasoned that because the agency had provided reasonable accommodation for so many years, the agency could have continued to do so without any undue hardship.


Other Dewey Deskbook and Summary texts ON SALE are MSPB Summaries by Broida & Davis, EEO Update by Vitaro, Goodfriend & Gilbert, and Principles of Federal Sector Arbitration Law by Broida & Davis. Each of these comprehensive texts offer concise, useable summaries of the law, digesting decisions of signficance.



MSPB Cases

by Natania Davis


Mattil v. Dept. of State, 2012 MSPB 127 (November 21, 2012) (finding the circumstances of the case required adjudication of both the merits of appellant's prima facie case as well as the agency's affirmative defense where "the substance of appellant's first disclosure [was] intertwined with his claim that his immediate supervisor was concerned with the effect of that disclosure on his own career", but the AJ failed to address this claim in assessing the agency's defense; "The initial decision also omits discussion or meaningful analysis of the appellant's claims that his supervisor expressed a motive to retaliate against the appellant for his whistleblowing because the supervisor feared that the appellant's action would hamper the supervisor's career, and that the appellant was the only OAT employee denied an extension and whose position was threatened with elimination."; noting that appellant's PfR is "replete with allegations identifying specific evidence...weighing against finding that the agency proved by clear and convincing evidence that it would have taken the action at issue absent the appellant's whistleblowing" that the AJ did not consider)


Boucher v. USPS, 2012 MSPB 126 (November 15, 2012) (affirming mitigation of removal to a 90 day suspension without pay where AJ reassessed her penalty determination based on new comparator employee evidence; rejecting agency argument that the law of the case doctrine precluded an AJ from reconsidering the reasonableness of a penalty where new and substantially different evidence regarding a comparator employee became available on remand and "a manifest injustice would result if the reasonableness of the penalty were not reexamined in light of this new information"; regarding comparator employee analysis, the Board noted that "while the fact that two employees are supervised by different individuals may sometimes justify different penalties, an agency must explain why differing chains of command would justify different penalties...the agency's burden to prove a legitimate reason for the difference in treatment between employees is triggered by the appellant's initial showing that there is enough similarity between both the nature of the misconduct and the other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently...Nothing in Villada, Woebcke or Lewis forecloses an agency from proffering evidence that a difference in treatment of employees was attributable to local or organizational differences, or that a penalty for a certain offence was too lenient in the past. In this regard, we note that Lewis recognizes as a relevant consideration "whether the agency began levying a more severe penalty for a certain offense without giving notice of a change in policy." Because nothing in Lewis bars an agency from providing its employees with notice of a change in policy imposing a more severe penalty for a certain offense, nothing in Lewis forces an agency to go easy on employees who commit that offense in the future.")


For more on these and other MSPB topics for:


Representatives, see MSPB Charges and Penalties by Fowler & Vitaro; and A Guide to MSPB Law & Practice and Best of the Board by Broida.


Supervisors, see Disciplining Federal Employees and Management of Problem Employees by Corum and Conducting Misconduct Inquiries by Vitaro, Goodfriend & Gilbert.


Litigation and Settlement before the MSPB, see Crafting Durable Settlement Agreements by Tuck and The Art of Advocacy by Fowler & Vitaro.



Whistleblower UPDATE

by Natania Davis


WPEA is Law


Last week, President Obama signed the Whistleblower Protection and Enhancement Act into law. The bill passed the Senate two weeks earlier. The law expands whistleblower protection rights to certain employees not currently covered under WPA (i.e., TSA employees), strengthens the Special Counsel's ability to seek disciplinary actions against those who retaliate, provides for compensatory damages, clarifies what constitutes a "disclosure", and overturns MSPB and Federal Circuit case law that narrowed whistleblower protections. WPEA provisions take effect 30 days from the signing of the law (November 27, 2012). For the full text of WPEA, click here.


Updating Whistleblower Resource


In an effort to incorporate all the changes to Whistleblower law effecting federal employees, publication of A Guide to Whistleblower Protection Act & Related Litigation will be slightly delayed. The authors are adding new text to address the Whistleblower Protection and Enhancement Act, the Presidential Policy Directive Protecting Employee With Access to Classified Information (PPD-19) and the MSPB's revisions to its whistleblower regulations (i.e., 1209.2-MSPB Jurisdiction Over IRAs and Otherwise Appealable Actions; 1209.4-redefining "whistleblowing"; and 1209.5-Time of Filing). Dewey expects to have the book available for delivery in early 2013.








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