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Dewey Publications Inc.
News and Case Alert
Issue #6-7
TABLE OF CONTENTS

Harding v. US Naval Academy


Archerda v. Dept. of Defense


The Dewey Publications Podcast


Recent Developments in Federal Sector Employment Law

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New Releases

Settlement Forms for MSPB and EEOC Federal Personnel Litigation

By: Broida
Price: $160.00
Sku: 14SFME
Edition: 2nd/2014
Format: Book (+ optional CD)
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Broida on Negotiability

By: Broida
Price: $125.00
Sku: 14BON
Edition: 1st/2014
Format: 2hr 51min .mp4 video on DVD-ROM; workbook
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MSPB Charges & Penalties

By: Fowler & Vitaro
Price: $235.00
Sku: 14MSCP
Edition: 6th/2014
Format: Book (+ optional CD)
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Consolidated Federal Sector EEO Update 2004-2014

By: Gilbert & Sumner
Price: $200.00
Sku: 14CEUP
Edition: 5th/2014
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MSPB Case Summaries

By: Broida & Davis
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Coming Soon

Compensatory Damages and Other Remedies

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Security Clearance Law and Procedure

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A Guide to
Merit Systems Protection Board Law and Practice


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Edition: 31th/2014
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The 2014
EEO Guide
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A Guide to
Federal Sector Equal Employment Law and Practice


By: Hadley
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Edition: 27th/2014
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A Guide to
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Harding v. US Naval Academy, 2013-3092 (Fed. Cir. June 26, 2014 nonprecedential)

by Natania Davis

Harding involved a cook at the USNA, who drove her personal vehicle, while off duty, onto the Naval Support Activity facility in order to obtain a key for a banquet room that she was planning to use that night. She was stopped and charged with, and later pled guilty to, the offense of driving or attempting to drive while impaired by drugs or alcohol. USNA proposed her removal "for being under the influence of illegal drugs and alcohol while off-duty on Government property." The deciding officials upheld both the charge and the penalty. Harding elevated the decision to arbitration where the charge and penalty were sustained. Harding appealed the arbitrator's decision to the Federal Circuit, largely on due process claims.

As to Harding's argument that she was not put on notice that the deciding official would rely on the police report, the court noted that Harding was invited to review the material relied up to support the proposal, which included the police report. The court held that "providing access to the materials the agency relied upon to support the removal action was sufficient to satisfy any possible due process concerns." It is incumbent upon the employee to avail him or herself to that "offer of access." The court also noted that conclusions or inferences drawn by a deciding official, rather than new factual information relied upon that official, do not warrant setting aside discipline for due process reasons.

Turning to the penalty and relying on USNA work rules and Executive Order No. 12564 (prohibiting off-duty drug use), the court found nexus between Harding's conduct and her job responsibilities and declined to overturn the removal. The Federal Circuit reiterated its reluctance to interfere with a penalty determination:

The various formulations of our reviewing authority over agency penalty determinations bristle with words of limitation. We have stated that we will not disturb an agency's choice of penalty within statutory or regulatory limits "unless the severity of the agency's action appears totally unwarranted in light of all the factors," Mings v. Dep't of Justice, 813 F.2d 384, 390 (Fed. Cir. 1987), unless it is "grossly disproportionate to the offense," Miguel v. Dep't of the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984), unless it is "so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion," Gonzales v. Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985), or unless it is "outrageously disproportionate" to the offense, Bryant v. Nat'l Sci. Found., 105 F.3d 1414, 1418 (Fed. Cir. 1997). "Whether [this court] would have chosen a different penalty is irrelevant." Hunt v. Dep't of Health & Human Servs., 758 F.2d 608, 611 (Fed. Cir. 1985).

In this case, the penalty of removal was among the permissible penalties set forth in the USNA's table of penalties for unlawful use of illegal drugs on or off duty. Moreover, the conduct in question involved not only the use of drugs, but also driving under the influence of alcohol or drugs in a residential Naval facility, conduct that the deciding official considered to have potentially endangered residents in the area. Although the arbitrator concluded that the penalty of removal was "at the outer extreme of the range of penalties," he concluded that it was "within the tolerable bounds of reasonableness." Applying the restrictive standard applicable to our review of the arbitrator's decision, we hold that the penalty is not outrageously disproportionate to the offense or totally unwarranted, and we therefore uphold the penalty selected by the deciding official.

For more on due process, see A Guide to MSPB Law & Practice by Broida, MSPB Case Summaries by Broida and Davis and Best of the Board by Broida.

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Archerda v. Dept. of Defense, 2014 MSPB 49 (July 11, 2014)

by Natania Davis

Archerda involved a firefighter's termination for failure to follow instructions; the instructions were for the appellant to provide additional medical information so the agency could assess his fitness for duty. As a firefighter, the appellant encumbered a position that had medical standards and physical requirements. The Board noted that "because the agency's request for additional medical documentation was job-related and necessary to make an informed management decision, the agency was authorized to require the appellant to produce medical information relating to a psychiatric condition, and to discipline the appellant for refusal to do so."

Finding that the "charge of failure to follow instructions related directly to the efficiency of the appellant's service," the Board concluded that removal was within the bounds of reasonableness. As to appellant's disability discrimination claim, the Board noted that the proper analysis is "whether the agency's medical inquiry was 'job related and consistent with business necessity,'" not a disparate treatment analysis.

For more on this topic, see MSPB Charges and Penalties by Fowler and Vitaro, Adverse Actions and Performance Based Actions: Process, Law and Cases, Guidance, and Pitfalls by Fowler and Vitaro, Uncivil Servant by Wiley, and Adverse Actions: A Guide for Federal Managers and Personnel Specialists by Corum.

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The Dewey Publications Podcast

Dewey now offers a weekly podcast, hosted by Peter Broida, on federal civil service law. Each week Mr. Broida selects for discussion a few new decisions from the MSPB, FLRA, their reviewing courts, and occasionally the EEOC. Tips for practitioners are also included.

Listen to the episodes on our podcast page deweypub.com/podcast or subscribe for free via iTunes or RSS feed to get episodes as soon as they are published.

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Recent Developments in Federal Sector Employment Law

by Natania Davis

EEOC: Updated Enforcement Guidance on Pregnancy Discrimination

This week, the EEOC issued its first comprehensive update of Commission guidance on pregnancy discrimination since 1983. The Guidance begins with a historical overview of the Pregnancy Discrimination Act and then delves into issues concerning coverage, evaluations of PDA-covered employment decisions, and equal access to benefits.

The intersection of the PDA and the Americans with Disabilities Act is discussed with emphasis on "disability status" and reasonable accommodation. Examples and analysis of those examples helps the reader to idenitify potential issues and discusses the applicable law. Other requirements that may affect pregnant workers are covered, including the FMLA and Executive Order 13152 prohibiting discrimination on the basis of status as a parent. Best practices concerning hiring and promotions, leave, terms and conditions of employment and reasonable accommodation are also provided.

Read the text of the new Enforcement Guidance at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm#reqwor

For more on pregnancy discrimination, see A Guide to Federal Sector Equal Employment Law and Practice by Hadley, Consolidated Federal Sector EEO Update by Gilbert and Sumner and Compensatory Damages by Gilbert.

Intelligence Authorization Act of 2014

On July 7, President Obama signed the Intelligence Authorization Act, extending whistleblower protections to agencies containing an "intelligence community element," including the CIA, Defense Intelligence Agency, National Geospatial-Intelligence Agency, Office of the Director of National Intelligence, the National Reconnaissance Office and "any executive agency or unit the president determines...to have the principal function of conducting foreign intelligence or counterintelligence activities." The FBI is specifically excluded.

All Circuit Review Extension Act (H.R. 4197)

On Tuesday, the House of Representatives passed the All Circuit Review Extension Act to extend for three years the pilot program under the Whistleblower Protection Enhancement Act, allowing federal employees, who appeal from decisions of the MSPB, to file their appeals in any US Court of Appeals with jurisdiction. Without the extension, federal whistleblowers would be limited, at the conclusion of the initial pilot program, to filing appeals with the US Court of Appeals for the Federal Circuit.

The full bill can be viewed at: http://1.usa.gov/1iF1M1c

For more on whistleblower protections, see A Guide to Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Fowler and Vitaro, How to Defend and Federal Employee by Wiley and Winning at the MSPB by Ashner.

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