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Dewey Publications Inc.
News and Case Alert
Issue #5-8
TABLE OF CONTENTS
NEW RELEASES!
A Guide to EEO, 2013
A Guide to FLRA, 2013
A Guide to MSPB, 2013
Compensatory Damages
Combating Sexual Harassment
MSPB Case Summaries
Federal Sector EEO Update 2004-2013
The First Four Weeks
Guide to the Whistleblower Protection Act
Mixed Motive Analysis Does
Apply to Cases Involving
Disability Discrimination
and Arising Under the Americans
with Disabilities Act
Amendments Act of 2008
Addressing the Retroactive Effect
of Section 101 of the WPEA
EEO Noteworthy Publications, Cases and Legislation Tracking
.
NEW RELEASES!
 
Compensatory Damages and Other Remedies (2013)



By: Gilbert
Price: $225.00
Sku: 13CDOR
Edition: 5th/2013
Format: Book, CD, or eBook
More details at:
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Combating Sexual Harassment (2013)



By: Corum
Price: $65.00
Sku: 13CSH
Edition: 5th/2013
Format: Book, CD, or eBook
More details at:
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MSPB Case Summaries (2013)



By: Broida & Davis
Price: $200.00
Sku: 13MSCS
Edition: 4th/2013
Format: Book, CD, or eBook
More details at:
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A Guide to Federal Sector Equal Employment Law and Practice (2013)



By: Hadley
Price: $595.00
Sku: 13EEO
Edition: 26th/2013
Format: Book or eBook on CD-ROM
More details at:
deweypub.com/eeoguide 

  


  

A Guide to Federal Labor Relations Authority Law and Practice (2013)



By: Broida
Price: $495.00
Sku: 13FLRA
Edition: 26th/2013
Format: Book or eBook on CD-ROM
More details at:
deweypub.com/flraguide 

  


  

A Guide to Merit Systems Protection Board Law and Practice (2013)



By: Broida
Price: $595.00
Sku: 13MSPB
Edition: 30th/2013
Format: Book or eBook on CD-ROM
More details at:
deweypub.com/mspbguide

 


  

Consolidated Federal Sector EEO Update 2004-2013



By: Vitaro, Goodfriend, & Gilbert
Price: $200.00
Sku: 13CEUP
Edition: 9th/2013
Format: Book, CD, or eBook
More details at:
deweypub.com/ceup

 


The First Four Weeks (2013)



By: Corum
Price: $65.00
Sku: 13FFW
Edition: 2nd/2013
Format: Book, CD, or eBook
More details at:
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A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012



By: Fowler & Vitaro
Price: $190.00
Sku: 13WPA
Edition: 1st/2013
Format: Book, CD, or eBook
More details at:
deweypub.com/wpa

 

 

.
Summer Sale!
Select Titles
30, 40 & 50% off

(Sale ends August 31, 2013)
 
 
50% off products

Senior Executive
Service Legal Guide

All Instructional Audio



40% off products

MSPB Discovery Forms
for Agency Representatives


EEO Discovery Forms
for Agency Representatives


Best of the Board

Best of the Commission

The Advocate's Practical Guide
to Using Mediation




30% off products

MSPB: The Movie

Collective Bargaining Law
for the Federal Sector


Discovery Practice
before the MSPB

A Guide to Federal Sector
Labor Arbitration


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.

Mixed Motive Analysis Does Apply to
Cases Involving Disability Discrimination and Arising Under the Americans with Disabilities Act Amendments Act of 2008

Southerland v. Dept. of Defense,
___MSPR___, 2013 MSPB 46 (2013)

(Member Robbins issuing a separate concurring opinion)

by Natania Davis

Southerland v. Dept. of Defense recently held that a mixed-motive analysis does apply to disability discrimination claims arising under the ADAAA. Noting that the Board generally defers to the EEOC on issues involving substantive discrimination law, the Board relied heavily on a 2012 Commission decision, Feder v. Holder, 0720110014 (2012), applying a mixed-motive analysis to a case involving a claim of reprisal for protected activity under the Rehabilitation Act. The Board explained:

We note that the EEOC framed Mr. Feder's claim as one of reprisal for engaging in the protected activity of requesting a reasonable accommodation for his disability, not a claim based on his disability, and the EEOC analyzed the mixed-motive issue in that context. In this matter, however, the applicability of a mixed-motive analysis arises in the context of the appellant's disability discrimination claim. These procedural differences do not require a separate analytical framework because the ADA and ADAAA contain a provision prohibiting retaliation for ADA or ADAAA-covered activity at 42 U.S.C. § 12203(a), and various circuit courts and the EEOC have concluded that a request for an accommodation constitutes such covered activity....Because Mr. Feder's request for a reasonable accommodation, like complaining of disability discrimination, is activity that is protected by the ADA, the ADAAA, and the Rehabilitation Act, coupled with the Board's prior finding that there was no meaningful distinction between the text of the ADA and the ADAAA with respect to the applicability of a mixed-motive analysis, see Southerland, 117 M.S.P.R. 56, ¶¶ 31-35, we find it appropriate to defer to the EEOC's analysis in Feder in this regard. Therefore, we overrule the Board's prior finding in Southerland that a mixed-motive analysis does not apply in disability discrimination cases arising under the ADAAA.

Overruling, in part, prior case law, the Board further held that an appellant's remedy, under a mixed-motive analysis, is limited if the agency can show by clear and convincing evidence that it would have taken the same action against him or her absent the discriminatory motive.

Under the Rehabilitation Act, the remedies that are available to a federal employee who proves disability discrimination are defined by Title VII of the Civil Rights Act of 1964. 29 U.S.C. § 794a. Accordingly, under a mixed motive analysis, an employee is entitled to some relief if he proves that his disability was "a motivating factor" in the decision, "even though other factors also motivated the practice." See 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(1). An agency, however, may limit the extent of the remedy if it demonstrates that it "would have taken the same action in the absence of the impermissible motivating factor." 42 U.S.C. § 2000e-5(g)(2)(B). If the agency meets this burden, an employee would not be entitled to reinstatement, hiring, promotion, back pay, or damages, but he may be awarded declaratory relief, injunctive relief, and attorney's fees and costs "demonstrated to be directly attributable only to the pursuit of a claim under [42 U.S.C. § 2000e-2(m)]." Id.

In Feder, the EEOC noted that the appellant's remedy would be so limited if the agency proved by clear and convincing evidence that it would have taken the same action absent the discriminatory motive. Feder, 2012 EEO PUB LEXIS 2115, at *50-51 (citations omitted); see also 29 C.F.R. § 1614.501(c) (explaining that an employee's remedies are limited upon a showing by clear and convincing evidence that the employer would have taken the personnel action absent discrimination). This standard is different than the preponderant evidence standard that the Board previously applied in mixed-motive cases involving disability discrimination. See Caronia v. Department of Justice, 78 M.S.P.R. 201, 212 (1998), overruled in part by Carter v. Department of Justice, 88 M.S.P.R. 641 (2001), and by Brott, 116 M.S.P.R. 410, ¶ 13 n.* (overruling Caronia when the Board determined that a mixed-motive analysis was improper in cases arising under the ADA).

Because application of a clear and convincing standard does not rest on civil service law and is not so unreasonable that it amounts to a violation of civil service law, we find it appropriate to defer to the EEOC's judgment on the issue of the applicability of the clear and convincing standard in mixed-motive cases. See Alvara, 116 M.S.P.R. 627, ¶ 8. To the extent that Caronia and other Board decisions are inconsistent with this Opinion and Order, they are hereby overruled.

Though concurring with the ultimate disposition of the case, Member Robbins wrote a separate opinion to express concern about the degree of deference the Board gave to a Commission decision. Member Robbins notes that the Feder decision cites little authority for its holding and "is contrary to persuading, if not controlling, application of U.S. Supreme Court and Court of Appeals analysis" previously utilized.

For more on the application of mixed-motive analysis, see Effective Summary Judgment Motions by Hadley and Laws, A Guide to Federal Sector Equal Employment Law and Practice by Hadley and Consolidated Federal Sector EEO Update 2004-2013 by Fowler, Goodfriend and Gilbert.

.

Addressing the Retroactive Effect
of Section 101 of the WPEA

Day v. DHS, ___MSPR___, 2013 MSPB 49 (2013)

(Member Robbins concurring in part and dissenting in part)

by Natania Davis

Day v. DHS recently concluded that Section 101 of the Whistleblower Protection Enhancement Act does not have an impermissible retroactive effect under Langraf v. USI Film Products, 511 U.S. 24 (1994).

Section 101 of the WPEA amended Section 2302 of title 5, USC, broadening the definition of "disclosure" and overruling a significant body of case law developed over the years. In pertinent part, the WPEA added the following text to Section 2302(b)(8):

(f)(1)  A disclosure shall not be excluded from subsection (b)(8) because-

(A)  the disclosure was made to a supervisor or to a person who participated in an activity that the employee or applicant reasonably believed to be covered by subsection (b)(8)(A)(i) and (ii);

(B)  the disclosure revealed information that had been previously disclosed;

(C)  of the employee's or applicant's motive for making the disclosure;

(D)  the disclosure was not made in writing;

(E)  the disclosure was made while the employee was off duty; or

(F)  of the amount of time which has passed since the occurrence of the events described in the disclosure.

(2)  If a disclosure is made during the normal course of duties of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct others to take, recommend, or approve any personnel action with respect to the employee making the disclosure, took, failed to take, or threatened to take or fail to take a personnel action with respect to that employee in reprisal for the disclosure.

Section 101, the Board explained relying on Landgraf, clarifies rather than effecting substantive changes to the Whistleblower Protection Act. This allows the amendments to properly be applied to cases pending prior the WPEA's enactment. The Board went on in Day to find that although the Whistleblower Protection Act is ambiguous as to the definition of a "disclosure," the WPEA resolves that ambiguity, and the resolution is consistent with the text of the WPA. The Board concluded, "section 101 does not have an impermissible retroactive effect under Landgraf because it does not alter the parties' respective liabilities as Congress initially contemplated in enacting the WPA."

It is notable that in applying this "clarification" theory of statutory construction, the Board declined to follow Federal Circuit precedent specifically rejecting that doctrine. Member Robbins' separate opinion, concurring and dissenting in part, addresses the Board's departure.

For more on whistleblower laws, see A Guide to Whistleblower Protection Act & Whistleblower Protection Enhancement Act of 2012 by Fowler and Vitaro, A Guide to MSPB Law and Practice by Broida and MSPB Case Summaries by Broida and Davis.

.

EEO NOTEWORTHY PUBLICATIONS, CASES AND LEGISLATION TRACKING

by Natania Davis

The Commission recently released a new fact sheet entitled "The Mental Health Provider's Role in a Client's Request for a Reasonable Accommodation at Work." The publication is geared to helping mental health care providers navigate the world of EEO law as it relates to reasonable accommodations and answers questions such as: "How Can I Help My Client Get a Reasonable Accommodation?; Could an Employer Discriminate Against My Client Because of the Information I Provide?; and What Kind of Documentation Would Be Helpful?"

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


Transgender Status

Last year, the Commission 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. Macy v. Holder, 0120120821 (2012). While presenting as a man, Macy applied and was selected for a position with the ATF, pending a background check. After accepting the offer, Macy informed an agency official that she was trasitioning from a male to a female. Shortly thereafter, the agency rescinded its offer. The Commission did not decide the merits of the Macy case. Instead, it remanded Macy's complaint to the agency for further processing.

Earlier this month, the Department of Justice issued its final decision, finding that Macy's transgender status played an impermissble role in the ATF's selection process. The agency defended its decision to rescind the offer by citing to budget concerns and noting that the selectee was further along in the background investigation process, but the agency could provide no evidence to substantiate its claims. The Department of Justice found that Macy's qualifications exceeded that of the selectee's. Citing to the timing of Macy's disclosure relative to the agency's rescinded offer of employment (a matter of 5 or 6 days), the Department of Justice wrote: "The timing of complainant's submission of information indicating her gender change and Read's decision [to not hire complainant] establishes the necessary nexus to show that complainant's transgener status was a factor in Read's, and thus the ATF's, actions."

The Department of Justice ordered the ATF to offer Macy the position, pay her back pay, determine compensatory damages, and pay attorney's fees.

Books that Macy's new supervisor's could have used are Surviving EEO Complaints by Tuck and EEO and the Federal Supervisor by Corum.


.

Legislation Tracking Employment
Non-Discrimination Act

by Natania Davis

Speaking of transgender rights, the Senate Committee on Health, Education, Labor and Pensions committee recently advanced the Employment Non-Discrimination Act of 2013 (S. 815), a bill that would ban workplace discrimination based on sexual orientation and gender identify, in a 15 to 7 vote.

A companion bill, H.R. 1755, is pending in the House of Representatives.

For more information on sex based discrimination and related topics, see Combating Sexual Harassment by Corum, Compensatory Damages and Other Remedies by Gilbert, and Best of the Commission by Hadley.

  
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