Summary: This week Peter Broida discusses seven cases: Munoz v. DHS, 2014 MSPB 66 (Aug. 20, 2014): the Board determines it will not consider disparate treatment or penalty comparability issues in defense to an indefinite suspension based on suspension of a required security clearance. -- Ryan v. DHS, 2014 MSPB 64 (Aug. 18, 2014): the Board decides that, unless there is an agency regulation requiring it, the Board will not consider issues of mitigation of a penalty relative to an indefinite suspension based on suspension of a required security clearance. -- Davis v. SSA, CB-7121-14-0015-V-1 (Aug. 21, 2014): the Board reaffirms that time-served suspensions are not appropriate in arbitration cases reviewing adverse actions, but the Board allows for the possibility that an arbitrator can properly justify a time-served suspension. The Board reviewed the existing caselaw from both the Board and the Federal Circuit, but the Board did not supply a factor analysis that arbitrators could follow when they decide when a time-served suspension is appropriate. -- Welhouse v. Dept. of Agric., CH-0752-12-0387-I-1 (NP Aug. 19, 2014): the Board, considering an involuntary retirement based on refusal to accept a geographical reassignment, applies the burden of proof, requiring a showing of a legitimate management justification of the reassignment, developed under Miller v. Dept. of Interior, 120 MSPR 426 (2013). -- Howerton v. Dept. of Defense, PH-0752-13-0292-I-1 (Aug. 21, 2014): considering a defense of disparate treatment of comparator employees, the Board acknowledges that the agency is not responsible for information on offenses unknown to the deciding official and not recorded in agency personnel files; but the Board evaluates information developed during the Board hearing and considers the assessment of the deciding official as to whether, with knowledge of the comparators' situation, the discipline of the appellant was still deemed appropriate. - Butler v. Dept. of Treasury, AT-0752-11-0530-C-1 (NP Aug. 19, 2014): when the agency breached a settlement by disclosing an underlying past personnel action to appellant's prospective employer, and the appellant breached the agreement by not following the agreed-upon procedure for referring prospective employers to a designated phone number to obtain information, the Board applied what it styled as the doctrine of "unclean hands" to deny the appellant any relief. -- Solomon v. Dept. of Agric., ___F.3d___ (D.C. Cir. Aug. 15, 2014): reversing a grant of summary judgment to the government, the court determined that OPM policies require agencies to considering scheduling changes sought by employee to accommodate disabilities.
