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Dewey Publications Inc.
News and Case Alert
Issue #8-6
TABLE OF CONTENTS
New Releases

Federal Sector Telework

By: Davis
Price: $75.00
Sku: 16FST
Edition: 1st/2016
Availability: IN-STOCK
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The Complete Federal Supervisor's Guide to Human Resources Management

By: Corum
Price: $75.00
Sku: 16FSHR
Edition: 1st/2016
Availability: IN-STOCK
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Labor Arbitration Practice for the Federal Sector

By: Bosland
Price: $225.00
Sku: 16LAP
Edition: 2nd/2016
Availability: IN-STOCK
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Compensatory Damages and Other Remedies

By: Gilbert
Price: $250.00
Sku: 16CDOR
Edition: 8th/2016
Availability: IN-STOCK
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A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act

By: Fowler & Vitaro
Price: $225.00
Sku: 16WPA
Edition: 2nd/2016
Availability: IN-STOCK
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MSPB Charges & Penalties

By: Fowler & Vitaro
Price: $250.00
Sku: 16MSCP
Edition: 8th/2016
Availability: IN-STOCK
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Coming Soon

Due Process in Adverse and Performance-Based Actions

By: Fowler
Price: $225.00
Sku: 16DPAP
Edition: 2nd/2016
Availability: Fall 2016
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UnCivil Servant

By: Wiley
Price: $75.00
Sku: 16UCS
Edition: 4th/2016
Availability: Fall 2016
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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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Holy Moly

It's the Single Pile

Since 1979, when hardly a man still alive recalls the onset of Board decisions, one continuing effort of many Board members and many more Board lawyers has been to define a factor analysis that administrative judges can understand and apply in determining whether an appealed personnel action is the product of discrimination under the civil rights statutes. Now, after decades and hundreds of decisions, we reach decisional purity and maturity in Gardner v. VA, ___MSPR___¶¶ 28-29, 2016 MSPB 36 (2016), where the Board latches onto a Seventh Circuit decision, eschews the earlier analysis in Savage, departs from the "convincing mosaic" analysis, and helpfully tells its administrative judges (and parties, and counsel struggling to understand what the Board is talking about), that "all evidence belongs in a single pile and must be evaluated as a whole":

...In Savage, we stated that, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage, 122 M.S.P.R. 612, ¶ 51. We further stated that, in making her initial showing, an appellant may rely on direct evidence or any of the three types of circumstantial evidence described in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), i.e., pretext, comparator or "convincing mosaic," either alone or in combination. Savage, 122 M.S.P.R. 612, ¶ 51. Savage overruled prior Board decisions, however, to the extent that they erroneously held that, to establish such a claim using circumstantial evidence, an appellant must provide evidence showing a "convincing mosaic" of discrimination or retaliation against her. Id., ¶¶ 42-43, 51.

Recently, the U.S. Court of Appeals for the Seventh Circuit further clarified its explanation in Troupe that the phrase "convincing mosaic" was not meant to impose a new, separate legal requirement or to serve as a legal test, but was instead "designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence." Ortiz v. Werner Enterprises, Inc., No. 15-2574, 2016 WL 4411434, at *3 (7th Cir. Aug. 19, 2016). Noting that the phrase "convincing mosaic" continued to be misused as a governing legal standard in cases decided after Troupe, Ortiz again rejected the proposition that "evidence must be sorted into different piles, labeled 'direct' and 'indirect,' that are evaluated differently," instead holding that "all evidence belongs in a single pile and must be evaluated as a whole." Id. at *5.

To this, we say, AJs, parties, and lawyers are now relegated to the kitchen sink approach in EEO cases-listen to everything anyone offers and figure it out. And, perhaps, that is how it should be: most evidence involving EEO defenses and claims is circumstantial.

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A NEW MSPB REPORT

The Merit System Principles:

Guiding the Fair and Effective Management of the Federal Workforce

Another excellent report from the Board's Office of Policy and Evaluation, released in September, is this survey of merit system principles and related prohibited personnel practices, noting, significantly, that "some agencies are currently failing to provide employees with the training that they need to successfully fulfill their responsibilities to uphold the merit system principles." The Report encourages agencies to train employees, from the onset of their employment, and to train them at all levels-including executives-so that they can identify prohibited practices and report or correct those practices. The Report itself, which explains the nature of merit system principles and prohibited personnel practices, should by read by every agency employee as part of orientation and continuing internal agency training. The MSPB, which lags behind the Federal Labor Relations Authority, the Office of Special Counsel, and the EEOC in providing training to agencies and other "stakeholders," could itself set up a training program for agencies.

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2016 American Civil Service Law Series

A Guide to Merit Systems Protection Board Law and Practice
By: Broida
Price: $675.00
Sku: 16MSPB
Edition: 33rd/2016
Availability: In-Stock
More details at:
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A Guide to Federal Labor Relations Authority Law and Practice
By: Broida
Price: $575.00
Sku: 16FLRA
Edition: 29th/2016
Availability: In-Stock
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A Guide to Federal Sector Equal Employment Law and Practice
By: Hadley
Price: $675.00
Sku: 16EEO
Edition: 29th/2016
Availability: In-Stock
More details at:
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