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

EEOC Amends MD-110 to Address Role of Agency Counsel and EEO Complaints Against Agency Heads and EEO


From the MSPB
Whistleblower Reprisal
Personnel Action Based on Refusal to Violate a Law



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Principles of Federal Sector Arbitration Law

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Compensatory Damages and Other Remedies

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MSPB Charges & Penalties

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EEOC Amends MD-110 to Address Role of Agency Counsel and EEO Complaints Against Agency Heads and EEO Directors

On August 5, 2015, EEOC revised the first chapter of MD-110, providing management guidance on the operation of the federal sector EEO program. The Commission stated that if a responsible management official is the agency head, or the immediate staff of the agency head, or if RMO occupies a high-level position of influence in the agency, a conflict of interest may arise because of the level of control of the RMO over the agency EEO office. When that occurs, the agency head should recuse himself or herself from the decision making process and engage an official outside the chain of command to issue a final action on the case. When the RMO is the EEO Director or a supervisor in the EEO office, the EEO director must recuse and retain a third-party to conduct the counseling, investigation, and draft the final agency decision for the agency to issue. Also, in all cases, legal sufficiency reviews must be conducted by attorneys in the agency EEO office or outside the EEO office by individuals who are not part of the agency's legal defense function.

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From the MSPB

Whistleblower Reprisal

Personnel Action Based on Refusal to Violate a Law

A provision of the 2012 Whistleblower Protection Enhancement Act amendments establishes as a prohibited personnel practice under 5 USC 2302(b)(9) a personnel action based upon an individual's refusal to comply with an order that violates a law. Rainey v. Dept. of State, 2015 MSPB 49 (2015), determined that the statutory protection does not extend to the assertion that an individual was disciplined because he refused to violate a regulation-in Rainey, a regulation governing procurement. The Board based its decision on reasoning in the Supreme Court's interpretation of a section of the law defining protected disclosures to exclude disclosures prohibited by law, in which the Court determined that the exclusion did not extend to disclosures prohibited by regulation, DHS v. MacLean, 135 S.Ct. 913 (2015).

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Peter Broida & Dewey Publications are Pleased to Announce the Arrival of Darshan Sheth, Esq.

Earlier in July, Darshan Sheth, previously a managing attorney at the Office of Special Counsel, joined Peter Broida in his law practice to assist in all manner of civil service, whistleblower, EEO, and labor law cases, to provide some specialized instructional materials for Dewey Publications, and to provide training for federal personnel specialists and lawyers, particularly in the management and litigation of whistleblower reprisal cases.

www.BroidaLaw.com

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Coming Soon

Discovery Practice Before the MSPB
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Federal Sector Workers' Compensation
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Edition: 5th/2015
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