August 20th, 2014

This week Peter Broida discusses five cases and MSPB Rulemaking: Carney v. VA, 2014 MSPB 62 (Aug. 8, 2014): the Board defines IRA coverage for reprisal cases based on participation in the grievance process, defined at 5 USC 2302(b)(9). Davis v. Dept. of Interior, AT-0752-09-0860-E-1 (NP Aug. 15, 2014): EEOC remand clarifying the "convincing mosaic" approach to proof of discrimination through circumstantial evidence. Alvara v. DHS, 2014 MSPB 63 (Aug. 13, 2014): EEOC remand and referral to Special Panel for consideration of the implications under civil rights and civil service law of whether agencies are required to accommodate disabled employees through modification of work rotation schedules that are ordinarily considered a basic element of a job (law enforcement officer subject to assignment to work on the night shift). Alvara v. DHS, EEOC 0320110053 (July 10, 2014) (referred to as Johnson v. DHS in the podcast): EEOC decision modifying the law to state that work schedules and job rotations are subject to accommodative requirements. MSPB Rulemaking: Procedures for Implementing the provisions allowing for expedited removal or "transfer" of SES members of the Department of Veterans Affairs: in accordance with the statutory mandate, the Board establishes a short period for appeal, a short period for a decision by an administrative judge, and eliminates the ability of review of the judge's decision by the MSPB. Dept. of Navy, Marine Corps and AFGE Local 1786, 67 FLRA 542 (2014) (over the dissent of Member Pizzella, the Authority reaffirms the ability of a single matter, e.g., a change in working conditions, to be protested through the ULP process as a statutory violation and through the contract grievance process as a contract violation.