A recent decision of the Merit Systems Protection Board (MSPB) reinforced a 2009 ruling that a Federal employee’s allegations are adequate to justify a hearing when she alleges she was forced to resign because the agency refused to accommodate her disability by allowing her to telecommute.

Generally, a federal employee’s resignation is voluntary. However, a Federal employee appealing to the  MSPB can allege that a resignation (or retirement) was involuntary. There are many basis for asserting involuntariness (misrepresentation, [...]

The  MSPB, with new Board members, issued three (3) decisions earlier this month.  Those three decisions had three things in common:

1) The employing Agency was the USPS in each of the  MSPB appeals

2) Each of the  MSPB Judges reversed was from the San Francisco Regional Office

3) Each of the 3 cases dealt with “restoration rights” for Federal employees who had recovered from an on-the-job injury.

4) Each of the 3 cases reinforced the incorporation of the Americans with Disabilities Act and [...]

When a Federal employee is removed for failing to maintain a security clearance, the  MSPB may only review that decision to determine whether the Agency met its burden of proof that:

1) the employee’s position required a security clearance;

(2) the employee’s security clearance was denied or revoked;

(3) transfer to a non-sensitive position was not feasible; and

(4) the agency followed the procedural requirements of 5 U.S.C. § 7513 in processing the removal action

In a recent case decided by the MSPB, the full Board applied the Egan [...]

There are, generally, four major leave-based adverse actions that a Federal Employee can challenge to the Merit Systems Protection Board (MSPB).

1) AWOL

2) Failure to Follow Leave Requesting Procedures

3) Excessive Use of Approved Leave/Abuse of Leave

4) Enforced Leave

Click on the underlined text to read more about each charge and the elements.  When challenging an adverse action based on approval, disapproval, use or abuse of annual or sick leave before the  MSPB, the following statutes should always be considered as a defense or [...]

The Office of Federal Operations (OFO) recently reversed a USPS decision to dismiss a  reprisal claim and ordered an investigation. The decision serves to illuminate the basic elements of a  reprisal claim.

The law protects Federal Employees that have participated in  EEO activity against  reprisal by their supervisors and Federal Employing Agency. When the Federal Employee alleges  reprisal, the adverse action they allege as retaliatory need not be on that materially alter the terms and conditions of employment (i.e., [...]

Federal Agencies that take an adverse action against a Federal Employee based on “failure to  follow leave procedures” will have to prove certain elements of that charge before the Merit Systems Protection Board (MSPB).

An Agency may take adverse action against a Federal Employee for failure to follow leave procedures so long as the federal employee is clearly on notice of the leave procedure, the leave procedure is legitimate, and the federal employee has been informed of the likelihood of discipline [...]

An Agency can take disciplinary action or adverse action against a Federal Employee for being Absent Without Leave (AWOL).  Rarely, however, is the Federal Employee both absent from work and absent without approved leave.  Adverse actions involving AWOL before the  MSPB often involve questions of doctors’ appointments, improper denials of annual and/or sick leave, etc.

Therefore, if an Agency takes an adverse action against a Federal Employee for AWOL, it must prove its charges before the  MSPB.  In order to prove [...]

In October, a Senate Panel vetted two of President Obama’s nominees for the Merit Systems Protection Board.  The nominees are Susan Tsui Grundmann  (nominated as chair of the MSPB) and Anne Marie Wagner (nominated to be her vice chairman).   The panel was chaired by Senatory Daniel Akaka (D-Hawaii), who has in the past introduced legislation for reform of the Federal Whistleblower Protection Act.

In his opening statement, chairman Akaka  focused on what he [...]

When a Federal Employee negotiates a settlement of an MSPB appeal, he or she is entitled to the benefit  bargained for in the agreement.  A recent MSPB case illustrates how the MSPB Administrative Judge and the MSPB Full Board review settlement agreements entered into by Parties. Felch v. Navy, 2009 MSPB 160 (August 24, 2009).

First, the MSPB should look to the law of contracts in interpreting settlement agreements.  (N.B. – Contract law interprets contracts by first looking to the contract [...]

Occasionally, we see a proposal letter that is so poorly or broadly worded that the Federal Employee is not fully informed of the charges that the Agency has brought against them.

When removing a Federal Employee, Merit Systems Protection Board (MSPB) case law is clear that 5 U.S.C. § 7513(b)(1) requires that the Federal government Agency give the Federal employee advance writtten notice stating the specific reasons for the proposed adverse action. The MSPB has consistently held that a Federal employee [...]