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Dewey Publications Inc.
News and Case Alert
Issue #6-13
TABLE OF CONTENTS

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2014 Report on Best Small Agencies to Work For: FLRA Gains, Not So MSPB and OSC


Reminder to Agencies of Responsibilities to Whistleblowers


EEOC Says That Derogatory Terms Concerning Sexual Orientation May Constitute a Hostile Environment in Violation of Title VII


MSPB Determines That an Appellant is Not a Prevailing Party for Purposes of Counsel Fee Entitlement With a Mixed-Motive Finding But With No Board Order Directing Relief


The Dewey Publications Podcast

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A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012

By: Fowler & Vitaro
Price: $190.00
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Sku: 13WPA
Edition: 1st/2013
Format: Book
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Compensatory Damages and Other Remedies

By: Gilbert
Price: $225.00
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Edition: 6th/2014
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Combating Sexual Harassment

By: Corum
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Best of the Board

By: Broida
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Sku: 09BOTB
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MSPB Charges & Penalties

By: Fowler & Vitaro
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Consolidated Federal Sector EEO Update 2004-2014

By: Gilbert & Sumner
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Representing Agencies and Complainants Before the EEOC

By: Hadley & Sumner
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Coming Soon

A Federal Sector Guide to the FMLA & Related Litigation

By: Bosland
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Edition: 3rd/2014
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2014 Report on Best Small Agencies to Work For

FLRA Gains, Not So MSPB and OSC

The 2014 report The Best Places to Work in the Federal Government ranks small agencies, and the ranks for MSPB and OSC were not so good. The Board, ranking 16 of 30 small agencies showed declines in scores for leadership and diversity, but gains for pay and training. OSC, at number 18 in the rankings showed similar declines for leadership, but better marks for pay. FLRA finished up number 5 of the 30 agencies, with positive marks all around, including leadership. No doubt FLRA is reinvigorated after the return of its Chair, Ms. Pope, after about a year while she awaited Senate confirmation. The Board and OSC, both well into the terms of their presidentially-appointed leaders, may reflect more of a recognition of the status quo for the organizations than any decline in executive or managerial capacities. Want to read more? Check the report out at bestplacestowork.org/BPTW/rankings/overall/small

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Reminder to Agencies of Responsibilities to Whistleblowers

In congressional testimony in September of this year, Special Counsel Lerner summarized some obligations that agencies may still not be following. She mentioned:

"Federal agencies now have a statutory obligation to inform their workforces about the rights and remedies available to them under the WPA, the WPEA, and related civil service laws. OSC's 2302(c) Certification Program helps agencies meet this obligation through the following simple steps: agencies must place informational posters at agency facilities; provide information to new and existing employees and train supervisors about PPPs, the WPA, and the WPEA; and display a link to OSC's website on the agency's website or intranet."

What's 5 USC 2302? That's part of the Whistleblower Protection Enhancement Act. The law says:

(c) The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management, and for ensuring (in consultation with the Office of Special Counsel) that agency employees are informed of the rights and remedies available to them under this chapter and chapter 12 of this title, including how to make a lawful disclosure of information that is specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive such disclosures. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.

Need to know more about agency obligations and the OSC certification program? Check it out at osc.gov/Pages/Outreach-2302Cert.aspx. Or call OSC at 202-254-3600. Tell them Dewey sent you.

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EEOC Says That Derogatory Terms Concerning Sexual Orientation May Constitute a Hostile Environment in Violation of Title VII

In Complainant v. Donahoe, Postmaster General, EEOC 0120132452 (Nov. 18, 2014), the employee asserted he was the victim of coworkers' and a supervisor's negative comments about his sexual orientation. He brought his concerns to supervisors. The Commission determined that although Title VII does not include sexual orientation as a basis for protection, the law's prohibition of discrimination on the basis of sex offers coverage to lesbian, gay, and bisexual individuals if the individual fails to conform to gender-based expectations, stereotypical or otherwise. The case was sent back to the agency to conduct an investigation. Agencies: the Commission's guidance through this caselaw should be part of your Title VII training programs for supervisors and employees.

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MSPB Determines That an Appellant is Not a Prevailing Party for Purposes of Counsel Fee Entitlement With a Mixed-Motive Finding But With No Board Order Directing Relief

The result might well be different with EEOC, but under the Back Pay Act, a determination of discriminatory motive alone will not establish prevailing party status supporting a counsel fee request if there is no Board order directing a change in the positions of the parties. No material alteration of the parties' status occurs if an agency overcomes direct evidence of disability discrimination with proof by clear and convincing evidence that it would have removed the appellant absent consideration of his medical condition. Without a Board order changing the status of the parties by imposing some obligation on the agency that it did not otherwise have, the appellant has not prevailed for purposes of a fee request. Southerland v. Dept. of Defense, 2014 MSPB 88 (Dec. 18, 2014).

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Can't Fall Asleep?
Night Time Listening

If you have trouble drifting off after an exciting day of civil service law, tune in or (for insomniacs) subscribe to more-or-less weekly audio podcasts of Peter Broida summarizing cases and events of interest to federal sector employment practitioners. Humor Peter. Share in his hobby. Be better informed without much work.

The Dewey Publications Podcast
Subscribe via iTunes or RSS. View a detailed list of all past episodes here.


December 2nd, 2014
Several items of interest are discussed this week.
left click to listen/right click save to download

  • Chief Executive Officer v. Dept. of Labor, EEOC 0120141656 (Oct. 16, 2014) (contractor's employees as legitimate complainant as to discrimination or reprisal from a government employee responsible for oversight of the contract)
  • Talton v. VA, MSPB AT-0707-15-0094-J-1 (Nov. 19, 2014) (Initial Decision) (an example of a case involving removal of a VA SES member under the expedited procedures statutorily established in 2014 and applied only to the VA)
  • Berlin, et al. v. Dept. of Labor, ___F.3d___ (Fed. Cir. Nov. 20, 2014) (upholding ALJ furlough: discussion of the statutory and regulatory basis for the furloughs; affirmation of agency discretion on furlough-induced financial adjustments among major operating components)
  • Ramos v. DHS, AT-0752-13-0637-I-1 (NP Nov. 21, 2014) (dissent by Vice Chairman Wagner) (disagreement between majority and dissenting opinions concerning burdens of proof relative to comparators offered to demonstrate disparity in treatment of individuals charged with similar offenses)

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