News from the Supreme Court: On June 23, 2017, the Supreme Court issued its decision in Perry v. Merit Systems Protection Board, 582 U.S. ____. The Court clarified the appeals process for "mixed case" appeals before the Merit Systems Protection Board (MSPB) that involve claims of discrimination.
Developments at the MSPB: On November 18, 2016, the Merit Systems Protection Board issued its decision in Hess v. U.S. Postal Service, 2016 MSPB 40. The Board affirmed its authority to award compensatory damages in mixed cases where discrimination is alleged.
Developments at the MSPB: On September 27, 2016, the Merit Systems Protection Board (Board) issued a precedential decision in Thomas v. Dept. of the Navy, 2016 MSPB 34. The Board reinstated Appellant Stephanie Thomas' dismissed constructive suspension appeal. Ms. Thomas claimed that the Agency compelled her to take 3 days/week of leave without pay (LWOP) because it had denied her reasonable accommodation request for telework, and reporting to her workplace would violate her doctor's orders. The Board found that Ms. Thomas had made a nonfrivolous allegation of constructive suspension. This decision expands the circumstances recognized in Board precedent for constructive suspension claims.
Developments at the MSPB: In a recent decision, Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), the Merit Systems Protection Board (MSPB) revised how it analyzes discrimination claims in federal sector mixed cases.
Developments at the MSPB: On December 18, 2014, the Merit Systems Protection Board issued its decision in Southerland v. Dept. of Defense, 2014 MSPB 88, the third trip to the MSPB for this case. In rejecting Mr. Southerland's petition for attorneys' fees, the MSPB potentially raised a new dispute with the Equal Employment Opportunity Commission (EEOC) concerning mixed cases.
Developments at the MSPB: On September 29, 2014, a split Special Panel issued its decision in Alvara v. Dept. of Homeland Security, 2014 MSPB 77. As previously analyzed in this blog, the Alvara case involved a dispute between the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC) over whether Mr. Alvara's removal for medical inability to perform should be overturned due to the agency's failure to reasonably accommodate Mr. Alvara with a modified schedule. The Special Panel found in favor of the EEOC, with the case remanded to an administrative judge to order Mr. Alvara's reinstatement and to award compensatory damages and other relief.
Developments at the MSPB: On August 19, 2014, the Merit Systems Protection Board (MSPB) issued an Interim Final Rule implementing procedures for handling adverse actions against Senior Executive Service (SES) employees at the Department of Veterans Affairs (79 Fed.Reg. 48,941-48, 946, as corrected 79 Fed.Reg. 49,423). The MSPB had to rush to draft these regulations in order to meet a 14-day deadline specified in Section 707 of Pub.L. 113-146--the statute creating this new adverse action procedure--which was previously analyzed in this blog. As an interim final rule, the regulations came into immediate effect, but the MSPB will be accepting comments on the regulations through September 18, 2014.
Developments at the MSPB: A recent case has placed the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC) into conflict over reasonable accommodations involving modified work schedules to disabled employees.
News from the Whitehouse: On August 7, 2014, President Obama signed the Veterans' Access to Care through Choice, Accountability, and Transparency Act of 2014, Pub. L. 113-146. While most of the statute concerned veterans' care issues, Section 707 of the statute has profound effects on the adverse action protections for Senior Executive Service (SES) employees working at the Department of Veterans Affairs (DVA).
News from the Courts: On December 9, 2013, a panel of the U.S. Court of Appeals for the 9th Circuit issued its decision in Kerr v. Salazar, No. 12-35084. The 9th Circuit took a strong position in opposition to the Federal Circuit's pre-2012 decisions restricting the definition of protected whistleblowing.