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Dewey Publications Inc.
News and Case Alert
Issue #6-6
TABLE OF CONTENTS

EEOC v. Ford Motor Co.
No. 12-2484



Recent MSPB Decisions of Note


From the Desk of Peter Broida


Model Employer of Individuals with Disabilities


MSPB Releases a Report on Sexual Orientation

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A Guide to Federal Sector Equal Employment Law and Practice

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MSPB Case Summaries

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Broida on MSPB Practice

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MSPB Charges & Penalties

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Consolidated Federal Sector EEO Update 2004-2014

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A Guide to
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A Guide to
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A Guide to
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Dewey's FREE MONTHLY "News and Case Alert"  keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.

 

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EEOC v. Ford Motor Co., No. 12-2484 (April 22, 2014)

by Natania Davis

In a 2-1 split opinion, the Sixth Circuit recently held that a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability. In so finding, the court reversed a district court's grant of summary judgment in favor of Ford Motor Co., where Ford refused a request by the employee (Harris) to telecommute four days out of the work week to accommodate her irritable bowel syndrome. The district court determined, inter alia, that the failure to acommodate claim could not prevail because Harris is not a "qualified" individual given that she was excessively absent from work.

Addressing that holding, the Sixth Circuit grappled with the distinction between attendance at work and physical presence and noted:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the "workplace" is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether "attendance" was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a "highly fact specific" question. Hoskins, 227 F.3d at 726. Accordingly, we consider several factors to guide our inquiry, including written job descriptions, the business judgment of the employer, the amount of time spent performing the function, and the work experience of past and present employees in the same or similar positions. See 29 C.F.R. § 1630.2(n)(2).

The court rejected Ford's argument that the job's teamwork requirement rendered Harris' position inherently unsuitable to telecommuting:

The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. Indeed, Judge Posner presciently observed in Vande Zande that his conclusion that "team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance" would "no doubt change as communications technology advances." 44 F.3d at 544. Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.

As to Ford's business judgment argument, the court stated: "While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, id., neither should we allow employers to redefine the essential functions of an employee's position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer's business judgment is only one."

The court did limit its determination:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App'x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are "extraordinary" or "unusual."

Another interesting finding on the Sixth Circuit's part was its determination that Ford failed to engage in the interactive process to identify a reasonable accommodation for Harris. In the court's own words, Ford "suggested several alternative accommodations" to telecommuting. "Harris rejected each of these options." The court noted that the alternative accommodations wouldn't suit Harris, but missing from the fact pattern of the case is any suggestion that Harris suggested an alternate accommodation in response. Maybe it's just me, but a flat out rejection of an alternate accommodation suggestion doesn't scream "interactive" either.

For more on EEO related matters and procedures, see A Guide to Federal Sector Equal Employment Law and Practice by Hadley and Effective Summary Judgment Motions by Hadley and Laws.

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Recent MSPB Decisions of Note

by Natania Davis

Biggers v. Department of the Navy, 2014 WL 1099517 (Fed. Cir. March 21, 2014), affirmed the MSPB's decision sustaining Biggers indefinite suspension in connection with the suspension of his security clearance. Though the DONCAF restored Biggers' security clearance, he was not entitled to back pay in connection with his indefinite suspension.

Bennett v. DHHS, CH-0752-12-0193-I-1 (April 2, 2014 nonprecedential), reminds federal employees of the ban on the unauthorized disclosure of sensitive government information even where the employee's personal attorney is the recepient and the documents are produced to support the employee's grievance. Citing Niswander v. Cincinnati Insurance Co., 529 F.3d 714, 722 (6th Cir. 2008), among other precedent, the Board noted that "the courts employ a balancing test between the employer's 'legitimate need to maintain an orderly workplace and to protect confidential business and client information' and the employee's 'equally compelling need' to be properly safeguarded from retaliatory actions." The Board noted that a federal employee's "need to pursue a grievance to challenge a reduced rating in an element of her performance review does not justify an indiscriminate disclosure of documents containing highly sensitive information without utilizing any safeguards."

Special Counsel v. Lewis, 2014 MSPB 33 (May 15, 2014), affirmed the initial decision but modified the decision and the law relating to the analysis that the Board must conduct when considering the appropriate penalty for a federal employee's violation of the Hatch Act by holding that, pursuant to the Modernization Act of 2012, the Board must conduct an independent Douglas analysis rather than follow its past practice of applying the factors set forth in Special Counsel v. Purnell, 27 MSPR 184 (1988).

For more on MSPB related discussion, see A Guide to MSPB Law and Practice by Broida, MSPB Case Summaries by Broida and Davis and Broida on MSPB Practice, a component of Dewey's new Civil Service Advocacy Training Series.

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From Peter Broida

An April 2014 report, "A New Civil Service Framework" by the Partnership for Public Service, confirms what we know: the civil service system is disorganized, inefficient, and duplicative in its adjudication systems. A recommendation of interest is reconstitution of the MSPB to include adjudication of the EEO cases and streamlining of MSPB processes. I would expand upon the recommendation to include consolidation of MSPB, EEO, and FLRA cases in a single adjudication organization. The Partnership's report, containing many insights and recommendations, should be read by lawyers and HR professionals involved in administration of the civil service system and related litigation. The report can be found here (via ourpublicservice.org) 

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"Model Employer of Individuals with Disabilities"

by Natania Davis

The EEOC announced on May 15, 2014, its interest in receiving input on regulations requiring federal agencies to be "model employers of individuals with disabilities." The at issue regulations implement Section 501 of the Rehabilitation Act. The press release notes that while the regulations obligate federal agencies to be "model employers", they do not set forth rules or recommendations for compliance.

The Commission is proposing to revise its regulations to include a more detailed explanation of the model employer obligation. Before it publishes a proposed regulation, however, the Commission is issuing an Advance Notice of Proposed Rulemaking (ANPRM) that seeks comments from members of the public on what the amended regulations should say.

The EEOC welcomes input from federal agencies, individuals, employers, advocacy groups, agency stakeholders, and other interested parties. The Commission is specifically seeking answers to seven questions listed in the announcement, such as what barriers exist to the hiring, retention, and advancement of individuals with disabilities in the federal government, what regulatory requirements could eliminate these barriers, and whether numerical goals should be established for the employment of people with disabilities by the federal government.

The Federal Register announcement can be read at federalregister.gov 

For more on the Rehabilitation Act and disability discrimination, see Federal Sector Disability Discrimination Law Deskbook by Gilbert, A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley and Consolidated Federal Sector EEO Update 2004-2014 by Gilbert and Sumner.

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MSPB Releases a Report on Sexual Orientation

by Natania Davis

This month, the MSPB released a report entitled "Sexual Orientation and the Federal Workplace," examining "Federal employee perception of workplace treatment based on sexual orientation and review[ing] the evolution of the current state of the protections from sexual orientation discrimination in Federal employment." New MSPB Report Examines Sexual Orientation and the Federal Workplace (May 7, 2014 MSPB Press Release).

The report includes the MSPB's findings and recommendations and a historical timeline of the most salient events and cases leading OPM's proposed regulations to include sexual orientation as a nondiscriminatory factor in certain employment practices. The MSPB also published the results of a survey conducted to determine how well federal employees believe their agencies communicate the prohibition on sexual orientation discrimination. The report also discusses LGBT employee demographics and LGBT employee perceptions of the federal workplace.

Click here for the full press release. 

Click here for the full report. 

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