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Dewey Publications Inc.
News and Case Alert
Issue #5-13
TABLE OF CONTENTS
NEW RELEASES!
Representing Agencies and Complainants Before the EEOC
Principles of Federal Sector
Arbitration Law
MSPB Charges and Penalties
Workers' Compensation Basics
Compensatory Damages
15% OFF CD-ROM VERSIONS OF
MSPB, FLRA & EEOC GUIDES
Clean Record Agreements
Giglio Impairment
Nguyen v. DHS, 2013-3024
(December 9, 2013)
Other MSPB Cases of Interest
EEO Decisions of Interest
Legislation Tracking
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NEW RELEASES!


Representing Agencies and Complainants Before the EEOC



By: Hadley & Sumner
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Principles of Federal Sector Arbitration Law



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MSPB Charges and Penalties



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Federal Sector Workers' Compensation Basics



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Compensatory Damages and Other Remedies



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MSPB Case Summaries



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Consolidated Federal Sector EEO Update 2004-2013



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



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A Guide to Federal Sector Equal Employment Law and Practice (2013)



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



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Clean Record Agreements

by Natania Davis

The MSPB recently released a study entitled "Clean Record Settlement Agreements and the Law." Access the study here

This topic has generated lots of litigation and plenty of federal sector decisions, we review a few here:

  • Forrester v. Postmaster General, 05890368 (1989), finding that an agency's agreement to "rescind" certain actions "constituted an obligation to remove all record of the actions from appellant's OPF and to severely restrain the use of such records."
  • Scott v. Postmaster General, 01976313 (1999), finding violation of a settlement provision to "expunge" certain actions where the agency failed to remove all documents that mentioned the actions from the employee's OPF. It was not enough that the agency removed the documents officially effecting the action.
  • Conant v. OPM, 255 F.3d 1371 (Fed. Cir. 2001), holding that an agreement to "rescind" is a promise "in effect to destroy it, erasing removal and all reasons for such a removal from [appellant's] professional record with the agency."
  • Kitt v. Dept. of Navy, 116 MSPR 680 (2011), holding that the word "change" means "to replace with another" and requires the removal of "any record" referencing the action. The word "expunge" does not necessarily have to appear in the agreement.

For more on clean paper agreements and related topics, see Crafting Durable Settlement Agreements by Sarah Tuck, Settling Disputes by Michael Corum and Settlement Forms for MSPB and EEOC by Peter Broida.

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Giglio Impairment:

Nguyen v. DHS, 2013-3024
(December 9, 2013)
 

by Natania Davis

Mr. Nguyen was a deportation officer in the Detention and Removal Operations Field Office when the agency proposed his removal for various charges, including lack of candor and conduct unbecoming (among others), related to his purchase of a refrigerator. The deciding official mitigated the penalty to a 14 day suspension. Two years later, when the US Attorney's office asked Mr. Nguyen to complete a form disclosing possible impeachment information, Mr. Nguyen reported the 14 day suspension along with the investigation report. The USAO advised Mr. Nguyen that the disciplinary action compromised his credibility, rendering him unable to testify or declare under oath in criminal prosecutions. A proposed removal followed for "inability to perform full range of duties", citing to Giglio. The deciding official sustained the charge, but mitigated the penalty to a demotion. The Board sustained the adverse action, and Mr. Nguyen appealed.

Before the Federal Circuit, Mr. Nguyen argued that the agency's demotion was a second adverse action for the same misconduct, i.e., the refrigerator incident. The agency argued that the USAO's finding that Mr. Nguyen was Giglio impaired was separate from the agency's decision to suspension him and an adequate basis for the agency's second adverse action. Noting that the agency has no authority over the USAO, the Federal Circuit wrote:

The agency thus had no obligation to pass judgment on the underlying merits of the USAO's finding. Rather, it was entitled to take action based on the undisputed effects of that finding--that Mr. Nguyen could no longer testify as a witness during prosecutions or make declarations under oath. The Board found this prohibition made Mr. Nguyen unable to perform the full range of his duties, and thus sustained the Agency's demotion. This finding is supported by substantial evidence. The Agency's position description for a Deportation Officer states that the officer, inter alia, "prepares documentation for Warrants of Arrest, Warrants of Deportation, Breaches of Bond, Demands of Surrender, Notices of Excludable Alien, etc.," and "[t]estifies on behalf of the [A]gency before Grand Juries." The USAO's Giglio determination prevents Mr. Nguyen from performing these duties.

Mr. Nguyen argues the USAO's Giglio determination "did not constitute a separate and distinct act of misconduct" and thus could not justify the Agency's adverse action. However, an adverse action need not be based on misconduct, but may be imposed "for such cause as will promote the efficiency of the service." 5 U.S.C. § 7513(a). The Board did not err in holding the USAO's Giglio determination made Mr. Nguyen unable to perform the duties of a Deportation Officer, and that demoting him to another position would "promote the efficiency of the service." See id.

The court also rejected Mr. Nguyen's argument that the two adverse actions impermissibly subjected him to double punishment for the same misconduct, reasoning that the suspension was based on the misconduct connected to the refrigerator incident and the demotion was based on the USAO's Giglio determination. Though the Giglio determination arose out of the refrigerator incident, the court explained, the distinction is meaningful enough. "[T]he USAO, not the Agency, made the Giglio determination forming the basis for the 2011 demotion. The Agency did not 'reexamine' its earlier finding, but rather responded to the new development that Mr. Nguyen could no longer testify in criminal prosecutions."

Mr. Nguyen also argued that he did not have an opportunity to respond to the USAO's Giglio impairment determination, depriving him of his right to due process. Rejecting that argument, the court noted that the agency afforded Mr. Nguyen will a full opportunity to respond to the proposed removal and again noted that the agency was not authorized to challenge the USAO's determination. The only question before the agency was whether the USAO's Giglio determination precluded Mr. Nguyen from fulfilling the requirements of his position. With that, the court affirmed the agency's demotion action.

Related titles include Disciplining Federal Employees and Adverse Actions by Michael Corum and UnCivil Servant by Bill Wiley.

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Other MSPB Cases of Interest

by Natania Davis

Ingram v. Dept. of Defense, 2013 MSPB 78 (September 30, 2013), upholding appellant's demotion to a non-sensitive position where she was denied access to classified information and to occupy a sensitive position; applying Kaplan v. Conyers, the Board assessed whether appellant received minimum due process in carrying out the demotion. Practice Tip: Kaplan v. Conyers may receive Supreme Court review, but until then, an employee's best opportunity to defend against an adverse action based on revocation of a security clearance or inability to occupy a sensitive position is during the review process of the underlying revocation or access denial. Related titles: A Guide to Merit Systems Protection Board Law and Practice by Peter Broida and MSPB Charges and Penalties by Renn Fowler and Sam Vitaro.

Mudd v. Dept. of VA, 2013 MSPB 90 (November 19, 2013), IRA case; to constitute a disclosure, appellant must show that a reasonable person in appellant's position would believe that the matter disclosed evidenced a violation of whistleblower laws; "Here, as stated above, the appellant has alleged that she disclosed that the agency violated various laws, rules, and regulations governing scheduling practices. We find that the appellant has raised a nonfrivolous allegation that a person in her position, i.e., a mental health associate without any special expertise in legal matters or other experience in interpreting agency regulations, could reasonably conclude that she disclosed evidence of a violation of a law, rule, or regulation to the agency compliance officer."; finding the knowledge timing test satisfied where the personnel actions were alleged to have begun within one year of the disclosures; also noting that "reprisal for exercising a grievance right is a prohibited personnel practice under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8)", and WPEA does not change that result; remanding appellant's IRA for further adjudication. Related titles: A Guide to Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Renn Fowler and Sam Vitaro.

Miller v. Dept. of Interior, 2013 MSPB 94 (December 6, 2013), on OPM's petition for reconsideration; revisiting and clarifying its recent decision wherein the Board adopted a simpler burden shifting analysis for an employee's refusal to accept a directed reassignment--"The agency must establish by a preponderance of the evidence that the reassignment was properly ordered due to bona fide management considerations in the interest of promoting the efficiency of the service and in accordance with agency discretion under 5 C.F.R. part 335."; noting that an agency need not prove that its geographic reassignment was "necessary"; modifying Miller I as follows: "...to the extent that some of the language in Miller may have suggested that the Board was departing from the statutory standard and the existing jurisprudential principles involved in proving an adverse action based on a refusal to accept a geographic reassignment, we hereby clarify that an agency need not prove that a geographic reassignment is 'necessary.' Thus, we modify our decision in Miller by finding that the agency in this case failed to provide a 'rational basis' for requiring the appellant to accept the geographic reassignment because, for example, it did not show that the Superintendent position had been eliminated or that the agency had no need for her continued performance in that position, there was no indication that the appellant had performance problems in the Superintendent position, and the agency did not proffer any evidence of a RIF or reorganization." Related titles: MSPB Case Summaries by Peter Broida and Natania Davis and Adverse Actions and Performance-Based Actions by Fowler and Vitaro.

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EEO Decisions of Interest

by Natania Davis

Complainant v. Dept. of Defense, 0120132212 (November 8, 2013), finding that complainant was subjected to unlawful discrimination where her supervisor made disparaging comments about the EEO process to a group of employees at a conference; one of the comments made was: "EEO's are crap. Here's what happens. They won't win because there's nothing to support it. They'll drop it because they don't have evidence and don't want to spend money for a lawyer. Senior citizens are afraid to retire, economically afraid. EEO people are crazy people. Don't be afraid of EEO's. They'll go away."; "Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law....When a supervisor's behavior has a potentially chilling effect on use of the EEO complaint process -- the ultimate tool that employees have to enforce equal employment opportunity -- the behavior is a per se violation. In the instant case, we find that DS's statements were reasonably likely to either deter Complainant or any of the other managers who were present from either personally engaging in the EEO process or to keep them from carrying out their obligations to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity. The Agency is strongly reminded that there is no place for this type of behavior from any manager of the federal government."; that the comments were made to a group of people rather than directed at complainant was inconsequential to the analysis. Related titles: EEO and the Federal Supervisor, Supervising Federal Employees and The First Four Weeks by Michael Corum.

Complainant v. SSA, 0120131573 (October 24, 2013), affirming agency's decision to hold complainant's disability discrimination complaint in abeyance as part of a class complaint where her complaint was filed after a class complaint on the same claim; rejecting complainant's argument that the disability discrimination component to her complaint should not be subsumed because the agency had moved for decertification of the class complaint; noting that if the class complaint is dismissed at the certification stage, then complainant's individual complaint may proceed. Related titles: A Guide to Equal Employment Opportunity Law and Practice by Ernie Hadley and Representing Agencies and Complainants Before the EEOC by Ernie Hadley and Deryn Sumner.

Meachum and Abbott v. SSA, 0720120003 (September 9, 2013), upholding AJ's findings that the agency subjected complainants to discrimination and harassment on the bases of their sex and age; affirming a $200,000 and $175,000 compensatory damages award based on complainants' testimony that the supervisor's treatment was "horrible" and that they felt "berated" and "bashed", the testimony of colleagues with first hand knowledge of and experience with the supervisor, the testimony of family, and the duration of the harm (one complainant still experienced anxiety attacks); rejecting agency argument that because compensatory damages are not available in age discrimination cases, the award should be reduced; "the record evidence supports that either claim -- under the ADEA or Title VII -- can stand independently. As compensatory damages and attorney's fees are remedies fully available under Title VII, the AJ's decision appropriately provided these remedies. While the Agency seems to argue that Complainant's damages should somehow be reduced because she also prevailed under the ADEA, it presents no legal support for this."

Complainant v. USPS, 0120122855 (October 24, 2013), affirming AJ's finding that the agency provided a legitimate, nondiscriminatory reason for refusal to allow complainant's return to work where, after 11 months of absence, complainant psychologist cleared him for work with no explanation as to how complainant was able to return to work with no restrictions; in a letter, complainant's wife attested that he was not mentally stable and complainant refused management's request for additional medical documentation.

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Legislation Tracking

Pregnant Workers Fairness Act

by Natania Davis

Congress is considering the Pregnant Workers Fairness Act (S. 942), which would require employers to make temporary, reasonable workplace accommodations to employees whose ability to perform their jobs is affected by pregnancy, childbirth, or a related medical condition.

Read the full text of the bill here.

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