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Dewey readers,

As we enter a new year, we here at Dewey take this opportunity to thank our readership and to wish you all a great year.

DEWEY'S YEAR IN REVIEW

This year has marked some major developments at the Merit Systems Protection Board, the Equal Employment Opportunity Commission, the Federal Labor Relations Authority and beyond. We review some of the highlights below.

MSPB

Mixed Cases

Conforto v. MSPB, 713 F.3d 1111 (Fed. Cir. 2013), interpreted Kloeckner v. Solis, 133 S. Ct. 596 (2012), and the Federal Circuit held that it still retains jurisdiction over mixed case appeals in cases where the Board decides that it does not have jurisdiction over an appeal because the challenged agency action is not within the Board's statutory power to review.

Mills v. USPS, 119 MSPR 482 (2013), held that an appellant cannot "unmix" a mixed case appeal in order to create Board jurisdiction even if he or she does not wish to pursue the EEO defense.

Cunningham v. Dept. of Army, 119 MSPR 147 (2013), held that in light of Kloeckner, the Board will now provide notice of mixed-case appeals in all cases in which the appellant was affected by an action that he or she may appeal to the Board and alleges prohibited discrimination. This is true regardless of whether the Board decides the claim of discrimination.

Whistleblower Cases

Day v. DHS, 119 MSPR 589 (2013), held that Section 101 of the WPEA, broadening the definition of the term "disclosure", does not have an impermissible retroactive effect under Langraf v. USI Film Products, 511 US 24 (1994).

King v. Dept. of Air Force, 2013 MSPB 62 (2013), held that retroactive application of Section 107 (b) of the WPEA, adding compensatory damages to the relief available to whistleblowers, would be impermissible under Langraf v. USI Film Products, 511 US 24 (1994), because it would alter the parties respective liabilities.

Mixed Motive Analysis

Southerland v. Dept. of Defense, 2013 MSPB 46 (2013), held that a mixed motive analysis does not apply to disability discrimination claims arising under the ADAAA.

Security Clearances and Sensitive Positions

Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), held that the Supreme Court's decision in Egan v. Dept. of Navy, cannot be confined to security clearance determinations. Where national security is implicated, there is no meaningful distinction between positions requiring access to classified information and those that are designated "sensitive." According to the court, sensitive information can be as vital and detrimental to national security as classified information.

Gargiulo v. DHS, No. 2012-3157 (Fed. Cir. 2013), rejected the Board's constitutional due process approach to indefinite suspensions based on security clearance determinations, noting that the protections of 5 USC 7513 are statutory, not constitutional. "The Board's characterization of that right as a constitutional guarantee that the Board may delineate and enforce is contrary to this court's decisions in Hesse, Robinson, and Jones, in which we held that employees do not have constitutional due process rights in connection with security clearance determinations."

Clean Paper Settlements

In 2013, the MSPB released a study entitled "Clean Record Settlement Agreements and the Law."

For more on MSPB topics see Broida on Federal Sector Settlement by Broida, A Guide to Merit Systems Protection Board Law and Practice by Broida and MSPB Case Summaries by Broida & Davis. 

EEOC

Vicarious Liability

Vance v. Ball State University, 133 S. Ct. 2434 (2013), held that the term "supervisor", for purposes of vicarious liability under Title VII, is limited to those individuals who are empowered to take tangible employment actions against the victim.

Retaliation Claims

University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013), concluded that "but for" is the proper standard of causation for Title VII retaliation claims, requiring proof that the retaliation would not have occurred in absence of the alleged wrongful action or actions of the employer.

Transgender Status

Macy v. Holder, the Department of Justice issued its final decision, finding that Macy's transgender status played an impermissible role in the ATF's selection process.

Rescinding Job Offers

Cleckler v. Dept. of Defense, 0120091162 (2013), held that the agency's withdrawal of its job offer, which was contingent on successful completion of a medical examination, after complainant was determined not medically qualified for the job because he did not "possess emotional and medical stability", amounted to disability discrimination.

Telework and Reasonable Accommodations

Blocher v. VA, 0120111937 (2013), found that the agency discriminated against the complainant when it denied her request for telework as a reasonable accommodation.

Reassignments

Moore v. Department of Education, 0120111258 (2013), was a good reminder that agencies should never reassign an employee, who has alleged sexual harassment, unless the employee specifically requests it.

For more on EEO topics see Broida on Federal Sector Mediation by Broida, A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley, Representing Agencies and Complainants Before the EEOC by Hadley and Federal Sector Sexual Harassment Law by Hadley & Laws. 

FLRA

The FLRA spent the better portion of its year without quorum and unable to publish decisions. In November, the President appointed Pope, Dubester, and Pizzella and the FLRA is back in business. Of particular note were the concurring opinions in DHS, Customs & Border Protection and AFGE, Nat'l Border Patrol Council, Local 2913 (Dec. 18, 2013), wherein Chairman Pope and Members Dubester and Pizzella set out what they believe is their mission as members. Other opinions of note decided earlier in the year were:

Representation

VA Lovell Federal Health Care Center and NNU, 66 FLRA 870 (2012), found appropriate a unit resulting from a merger of a VA facility (including Title 38 medical personnel) with a Navy facility (including Title 5 personnel).

Negotiations and Negotiability

AFGE Local 1401 and Dept. of Air Force, Joint Base Andrews, 67 FLRA 34 (2012), found that an agency may only assert the bargaining defense when specific proposals are advanced. An agency may not preempt bargaining by refusing to entertain proposals concerning changes in working conditions that the agency contends are justified by a compelling need. DHS C&BP and AFGE Local 1929, 67 FLRA 46 (2012), found that withdrawing access to agency computers by an employee who is placed on administrative duties pending the outcome of a misconduct investigation is subject to impact negotiations, not decision bargaining.

Arbitration

Dept. of Treasury, IRS, St. Louis and NTEU Chapter 14, 67 FLRA 101 (2012), reiterated that employees, who did not actually work overtime, may nevertheless receive backpay where their failure to work overtime resulted because the agency violated the parties' agreement. "If an award sufficiently identifies the specific circumstances under which employees are entitled to backpay, there is no additional requirement that the Arbitrator identify specific employees entitled to the remedy. U.S. Dep't of the Treasury, U.S. Customs Serv., El Paso, Tex., 55 FLRA 553, 560 (1999)."

ULPs

Dept. of Agric., FSIS and Nat'l. Joint Council of Food Inspec. Locals, AFGE, 66 FLRA 720 (2012), found that an agency may implement a change to correct an unlawful practice without substantive bargaining, but the agency must provide the union with notice and an opportunity to bargain impact and implementation of the change.

For more on FLRA topics see Broida on Federal Sector Arbitration by Broida, Principles of Federal Sector Arbitration Law by Broida & Davis, and Collective Bargaining Law for the Federal Sector by Ferris.