Attig Law Firm P.L.L.C

House subcommittee on Health, Education, Labor and Pension held a hearing on the Employment Non-Discrimination Act ( ENDA ) on Sept. 5, 2007.  ENDA would, among other things, prohibit discrimination based on sexual orientation. 

Currently, Federal employees who are also members of the GLBT community may not challenge sexual orientation discrimination unless it is connected to an action that is appealable to the Merit Systems Protection Board (MSPB).  This is more than private sector employees who are members of the GLBT community - who currently have no legal protection.

Click this link to read the long history of a group that has worked to secure basic protections, including an end to discrimination against the GLBT community.

The Attig Law Firm, PLLC, represents federal employees in their claims of discrimination against executive agencies of the federal government.  If you feel you have been the victim of a discriminatory act or practice in the federal government, contact an EEOC attorney today.

Once again, we read another story about a Federal employee who raised concerns about her Agency’s practices, and shortly thereafter finds herself without a job.  At some point, but probably not before there is a new presidential administration that respects civil service, we hope that Congress will take action and improve protections against Federal whistleblowers.   Click here to read the story.
This particular employee - a 29-year veteran of the Forest Service - was transferred just days after she raised objections about cuts in fire suppression spending in the San Bernardino National Forest.  San Bernardino National Forest has been called the “most threatened community in the nation” because of its population density and the fire danger.I confess I don’t know the details of this employee’s removal and whistleblower case.  However, the removal charge has all the hallmarks of trumped up charges meant to retaliate against an employee who has tried to do the right thing for the Federal government and the United States taxpayer.    Some of these hallmarks, from my experience, include:

• Long-time federal employee with recent evidence of reporting waste, fraud, abuse or mismanagement in a government agency

• Significant adverse action against employee without, it appears, any prior disciplinary issues

• Charges include multiple specifications of a small number of, comparatively speaking, minor disciplinary charges (violation of Agency’s limited internet use policy, for example) that would typically yield other employees only a letter of reprimand or small suspension

Friend of the Firm and Attorney William Brawner is representing this particular civil servant in her removal appeal to the  We wish them luck and look forward to a favorable outcome.

The Attig Law Firm, PLLC, represents Federal employees in their appeals to the Merit Systems Protection Board (MSPB) and their complaints to the Equal Employment Opportunity Commission (EEOC).

If you feel that you have wrongfully removed from your Agency or suffered an adverse action because of discrimination or protected whistleblowing activity, contact a federal employee lawyer at the Attig Law Firm today.

The U.S. House of Representatives is scheduled to vote soon on the Employment Non-discrimination Act (ENDA) . The current version of the bill, introduced in April 2007, will include gender and sexual orientation as distinct basis for protected group status.  We’ll keep you posted on the vote on our Blog as we learn more about it.

Currently, discrimination based on sexual orientation may be a prohibited personnel practice in the federal government employment context. The MSPB has found that it lacks jurisdiction, however, unless the discrimination is connected to an otherwise appealable action connected with the treatment alleged to be based on sexual orientation.  This new bill, if passed and signed by the President, would possibly provide Federal employees with another venue to pursue claims of discrimination based on sexual orientation.

In the meantime, read this great survey by the Harris group about American beleifs and perceptions of  the GLBT community in the workplace, etc.  Click here to view the survey.

When new Pirates owner Bob Nutting fired long-time Pirates GM David Littlefield, he made comments that he intended to create a culture of success in the Pirates organization.  Not a moment too soon, either.

Here’s a team that has squandered every penny it has received in revenue sharing - the former owner chose to line his own wallet rather than open his wallet to strengthen the team’s lineup.   If the Brewers are any indication, then the Pirates will reap great rewards by ditching the small-market, small-minded, parity-driven management teams.

I’ll be keeping a close eye on the Pirates this winter.  As long as they don’t choose Jon Daniels as their new GM, they might actually make some bold and aggressive moves to build a franchise that Bucs fans can be proud of.

An Agency may take action based on performance in two ways - as a performance issue under 5 CFR Part 432 or a conduct issue under 5 C.F.R. Part 752.  Before taking a performance action under 5 CFR Part 432, the Agency must allow the Federal employee a reasonable opportunity to improve his or her performance.  This period, commonly known as a “PIP”, is also known as an improvement period, opportunity period, or other similar names.

There are, generally, four stages of a PIP.  They are: 1) Notice of unsatisfactory performance; 2) Notice of Opportunity Period issued; 3) the formal PIP; and 4) the outcome of the PIP.

First, the Agency must inform a federal employee that there has been an observable and observed decline in performance to an unsatisfactory level.   This decline can be in one or more Critical Job Elements (CJE or CE).

Next, the Agency must give the Federal employee notice of the opportunity period. The notice must inform the Fed employee of the specific CJE or CE he/she is failing, specifically what must be done to improve the performance to a satisfactory level, how that improvement will be measured and observed, what assistance management will provide, and the consequences if the Federal employee does not improve his/her performance during a PIP.

The third step is that PIP itself.   Though the length and scope of the PIP varies from job to job, and depends in large part on how many CJE’s or CE’s the Federal employee allegedly failed. The rule of thumb is that the PIP must afford the employee a “reasonable opportunity to improve”.  This is an objective standard, and what is reasonable for one employee or job may not be reasonable for another employee or job.

Finally, if the Federal Employee successfully navigates the PIP, they will be issued some sort of clearance letter or written indication at the conclusion of the PIP.  If the Fed employee does not bring his/her performance to a satisfactory level, then the Agency may  remove or demote the employee.

Going through a PIP can be a stressful process. The Attig Law Firm, PLLC, offers Federal employees a one-on-one consultation to provide tips and pointers on how to successfully navigate a PIP.

Contact the Attig Law Firm if you would like a PIP review. If your Agency is taking action against you because of an alleged decline in your performance, be sure to contact an MSPB lawyer today.

In EEO Complaints stemming from an employee’s lowered appraisal, government attorneys often try to argue that when an appraisal is lowered, but still satisfactory, there is no adverse action.  The case of Maurya Green may have put a dent in that argument. Green v. National Science Foundation, EEOC No. 01A33221 (February 16, 2006).

In early 2002, Ms. Green received  an annual appraisal. This year, a temporary supervisor lowered the overall rating recommended by her regular supervisor from “Very Good-High” to “Fully Satisfactory”. The Agency, in its FAD (Final Agency Decision) found that the lowering of the appraisal was not discriminatory.

Nearly four years later, on appeal to the Office of Federal Operations (OFO), the EEOC found that the Agency’s action was discriminatory.  They found that even though the Agency articulated a legitimate non-discriminatory reason for lowering the federal employee’s appraisal, that reason was a pretext for discrimination.

The OFO found that when management had a meeting about “how to deal with the staffing shortage caused by [Complainant’s] part-time status”, the meeting sounded suspiciously like a meeting to “deal with” the federal employee’s disability.   They cited notes from this meeting - a rare “smoking gun” - that suggested that the managers had a meeting to discuss issues related to the complainant’s disability, including: “stoking the pot to get [complainant] to take [voluntary] disability.”

There does not appear to be any mention that the lowering of the appraisal from a very high rating to a lower, but still successful, rating is not an adverse action.

Two noteworthy points about this case.  First, there was no ruling by an Administrative Judge - the federal employee appealed to OFO directly from the Final Agency Decision (FAD).  Second, it took this federal employee nearly 5 years to get only a small part of the vindication she sought.

We got another call today from a federal retiree on an issue that is appearing more and more frequently.   The issue is the effect on a retiree’s retirement annuity if they don’t “buy-in” their post-1956 military service credits into their CSRS/FERS retirement.

Here’s how it works.   A federal employee who retires after September 7, 1982 is entitled to receive credit, under both the CSRS and Social Security, for any active duty military service performed after 1956.  The employee only gets this credit if he deposits an amount equal to 7 percent of his total post-1956 military pay with OPM.  If the employee retires after September 30, 1993, the employee has to make this deposit before he retires. 

If the employee does not make the deposit before he retires, when he becomes eligible for Social Security benefits, OPM is required to recompute the retiree’s annuity payments, to exclude the credit for his post-1956 military service.  This reduction can be quite significant. 

Depending on how many years of post-1956 military service the employee has, the reduction can range from hundreds to thousands of dollars per month.  And the reduction hits at the worst possible time - after the retiree has become used to the higher stream of income and at the age of 62, when it is hardest to rebuild the loss of income into your pre-planned retirement nest-egg.

There is a limited opportunity under which OPM can waive the “deposit by retirement” deadline - but it is a very limited opportunity.  Essentially, you have to show that you were mislead or confused by OPM as to the amount/effect of the reduction, and that that confusion or deception kept you from making the deposit.  Out of the dozens of initial decisions of the MSPB that I’ve recently reviewed on this question, only a very small number of retirees can thread that needle.

Assuming you have the facts to make that limited proof, you’re still likely to have to file an appeal in the MSPB to get the waiver - and that could mean you’ll need to hire a lawyer (preferably one who has practiced before the MSPB) to ensure you can get the decision you need.   Even when a retiree prevailed, they didn’t always recover their attorney fees.

Do yourself a favor - make sure you buy in your military service credits before you retire.  And  if you decide not to, make sure you understand exactly what the consequences will be.

If you want to talk with an MSPB attorney about any of the information you’ve read in this post, don’t hesitate to contact the Attig Law Firm, PLLC, today.

Click here to read OPM’s convoluted and un-helpful rules on the post-1956 military service credits. 

Click here to read an explanation that actually makes sense.

In an August 22, 2007, decision, the Office of Federal Operations (OFO) of the Equal Employment Opportunity Commission (EEOC) found the USPS liable for failure to reasonably accommodate.  Bratsch v. U.S.P.S., EEOC Appeal No. 0120071942 (August 22, 2007).  The OFO ordered the Agency to pay $8,000.00 in non-compensatory pecuniary damages.   (The OFO adjudicates appeals of Federal Agency decisions on discrimination complaints, and also ensures Agency compliance with decisions based on those appeals.)  

The decision came after the Complainant’s appeal of the Agency’s final decision awarding him only $2,500.oo in non-pecuniary compensatory damages.  (Complainant did not claim any actual pecuniary damages).  According to the Agency’s decision, the Complainant did not show that there was any ongoing discrimination and that he was only entitled to $2,500.00 in non-pecuniary damages.

In the underlying case, the Agency was found to have discriminated against the Complainant when it failed to reasonably accommodate complainant’s hearing impairment by not providing him with a sign language interpreter or other means of participation in the Agency’s employee meetings.  According to the commission, there was evidence of at least five incidents over a one year period where the agency failed to accommodate complainant’s hearing impairment.

The EEOC found that $8,000.00 was an appropriate sum for damages based on three major factors.  First, case precedent illustrated that damages in similar cases ranged from $7,500.00 to $10,000.00.  Second, the EEOC said that the purpose of non-compensatory pecuniary damages is to remedy the harm to the Complainant and not punish the Agency.  Third, there was evidence in the record that the Agency’s conduct caused the Complainant feelings of frustration; the evidence  also showed that the Agency’s deliberate conduct showed total disregard for the disabled employee.

What is interesting about the decision is that it illustrates an ongoing problem in Federal government management circles.  Managers fail to realize how little is often required to accommodate disabled employees - in this case all that was required was a sign-language interpreter to be made available at sporadic meetings.  Instead of choosing to allow a hearing impaired  employee this small accommodation, the Agency expended substantial time and money - not only to lose its case, but also an additional $8,000.00.

If you have questions about your complaint of discrimination against a Federal Agency, or want to speak with an attorney that practices before the EEOC, contact the Attig Law Firm today.

Hear what the Son of George Bush’s V.P. said about the Iraq War in 1994:

http://www.youtube.com/watch?v=YENbElb5-xY

Absolutely amazing - what changed his opinion? Could it possibly have been the substantial financial interest he held (holds?) in Halliburton?

On August 30, 2007, the Federal Circuit Court of Appeals issued a ruling that reiterates the standard of review the MSPB must utilize when reviewing the revocation of a security clearance in connection with an appealable action.  You can read the decision by clicking here.

The standard, in a nutshell, is that the MSPB may only review the decision to revoke the security clearance to ensure that the employee received minimum due process (this isn’t much at all).  The logic is that Federal employees do not have a liberty or property interest in their security clearances, and the Federal Government has a compelling interest in ensuring that national security clearances are consistently maintained.

The revocation of a security clearance is not to be confused with the revocation of some other certification that is similar to a security clearance.  As recently as February 2007, the MSPB clarified, that so long as a certification similar to a security clearance does not invoke the “national security” concerns of a security clearance, the Board has the authority to review the merits of the withdrawal or revocation of other kinds of certifications.  Adams v. Department of Army, 105 M.S.P.R. 50, 55 (M.S.P.B. Feb 23, 2007) (MSPB Docket No. CH-0752-06-0251-I-1)

Here are some other certifications that the MSPB does have the authority to review (when coupled with an appealable action):

* Removal of Quality Assurance personnel, trained in the handling of nuclear ammunition, when employee lost his status in the Department of the Army’s Personnel Reliability Program.

* Removal of security personnel for failure to maintain positive status in Department of the Army’s Chemical Personnel Reliability Program (CPRP was designed to ensure the safety, security and reliability of chemical agents and weapons in the custody of the United States Army).

* Removal of helicopter pilot due to loss of his medical certification

* Removal of medical officer for failure to maintain medical credentials

* Removal of air traffic control specialist due to his decertification under agency medical standards

If your Federal Agency has removed your status in a program that looks and feels like a security clearance - but isn’t a national security clearance - and then proceeds to take action against you (Suspension for 15 days or more,  demotion, or removal), contact an MSPB lawyer today.  Your Agency may be trying to lead (or mislead) you into believing you don’t have an MSPB appeal right.