Attig Law Firm P.L.L.C

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.

Over the next couple days, I want to briefly discuss the 3 major orders you will receive from your Judge in an MSPB Hearing.  They are: 1) the Acknowledgment Order; 2) the Scheduling Order; and 3) the Pre-Hearing Summary.  There are a few other orders, butI will only talk about the big ones right now.

1) Acknowledgment Order  -You will receive this order within 3-14 days after filing your MSPB appeal.  The Order contains the Judge’s initial instructions to both sides about how to file Motions, when to initiate discovery, when the Agency’s File is due (and what should be in it), and some other instructions and guidance.  Read this order very carefully, and highlight any mention of dates in it.  While these orders are fairly similar from Judge to Judge, I have noticed some differences.

2) Scheduling Order - When you receive this Order depends on the particular MSPB Judge in your case.  Some Judges send them out immediately after the Acknowledgment Order; others wait until the Parties have had a chance to do some discovery or discuss settlement.   Regardless of when you receive it, this  Order will contain a lot of important dates about your MSPB hearing.  It will set times for status conferences, the pre-hearing conference, deadlines for pre-hearing submissions and will set the time and date for the hearing.

3) Pre-hearing Conference Summary.  This is probably the single most important document in your MSPB Appeal.  It tells you what issues you will need to prove, who you can call as witnesses, and what documents (outside of the Agency File) you can offer in evidence.  Though an MSPB Judge may not allow all of your witnesses or documents, you have a great deal of control over this document by investing the time to properly prepare your Pre-Hearing Submissions.  How this order turns out could have a dramatic effect on your MSPB Appeal.

If you have questions about your MSPB appeal or an order you receive from an MSPB Judge, it may be helpful to consult with an attorney who practices before the MSPB.  If you ever realize you are in over your head, contact an MSPB lawyer to see if he or she can help you with your appeal.

From time to time, I will review a selection of MSPB Initial Decisions.  This weekend, I reviewed 52 cases in which an Initial Decision of the MSPB was issued between June 29, 2007 and July 6, 2007.

The first noteworthy point is that the MSPB issued 52 Initial Decisions in one week.   That is a lot of decisions, but it’s probably about average - maybe even a little on the low side (based purely on my periodic observations).   It helps to explain, though, why the MSPB doesn’t have much patience for untimely appeals and appeals over which they have no jurisdiction.

Here are some interesting numbers to consider:

• The Agency’s action was upheld 15% of the time. (8 out of 52 appeals)
• The Appellant prevailed only 2% of the time (1 out of 52 appeals)
• 44% of the cases settled.  (23 out of 52 appeals)
• 39% of the cases were dismissed (20 out of 52 appeals).

Of the 20 cases dismissed, 9 were dismissed because the MSPB lacked jurisdiction.  6 were dismissed without prejudice towards refiling.  4 were withdrawn by the Appellant, and 1 was dismissed as untimely filed.

What these statistics suggest, even though they are a small sample, is that the employee’s best chance for a favorable outcome is usually in settlement.  This is one reason our Firm tells its clients that ignoring a reasonable settlement offer from an Agency is a sure-fire way to lose your appeal. Read our Blog entry on the topic by clicking here.

In far too many of the cases, the Appellant went unrepresented by an attorney.  A lawyer familiar with the MSPB practices and procedures can improve your ability to negotiate a favorable settlement, can improve your ability to present a persuasive legal argument to an Administrative Judge, and may spot legal issues in your case that you didn’t know existed.  Contact an MSPB lawyer today to discuss your MSPB appeal.

Even after you appeal to the Merit Systems Protection Board (MSPB), your case may be dismissed for “lack of jurisdiction”.  This simply means that the MSPB does not have the authority to hear your appeal.

Here are some examples of situations where the MSPB lacks jurisdiction:

• The MSPB does not have jurisdiction over employees whose positions have been specifically excluded.  You can see a list of 12 government “positions” that do not have the authority to appeal adverse actions to the MSPB at 5 C.F.R. § 752.401(d)(12).
• The MSPB lacks jurisdiction over voluntary resignations.  The MSPB may hear cases alleging involuntary resignation.  A resignation may be involuntary if it  is the equivalent of a discharge or if the individual lacked the mental capacity to make a rational decision.
• The MSPB lacks jurisdiction if the Agency’s action is “moot”.  When the Agency completely rescinds its action and restores you to the status quo ante - which it may do anytime up until the decision of the Administrative Judge - there is no more appealable adverse action.
• The MSPB lacks jurisdiction when an employee fails to allege an appealable action. For example, a lateral transfer or reassignment that does not result in a loss of grade or pay is not appealable to the Board
• The MSPB lacks jurisdiction when an employee fails to allege a necessary element  of a claim. For example, if you file a “restoration rights” appeal, but do not allege that you have an on-the-job injury compensable through OWCP funds, your appeal may well be dismissed.
• The MSPB lacks jurisdiction when an employee fails to make a non-frivolous allegation of reprisal under the Whistleblower Protection Act, or failure to exhaust administrative remedies under that act.

These are not the only circumstances under which an appeal can be dismissed for lack of jurisdiction, however, they are some of the more common reasons.

If you have any questions whether the MSPB has jurisdiction over your appeal, it is best to contact a lawyer familiar with MSPB practice and procedure.

Office of Personnel Management (OPM) has proposed rules to authorize the Agency to process retirement and health and life insurance applications, notices, elections, and records under the agency’s Retirement Systems Modernization (RSM) project.

The rules would affect how benefits are managed under the Civil Service Retirement System (CSRS), the Federal Employees’ Retirement System (FERS), Federal Employees’ Group Life Insurance (FEGLI), Federal Employees Health Benefits (FEHB) and Retired Federal Employees Health Benefits (RFEHB) programs.Under the new rules, GSA employees would be the first of several waves of conversions to the system, beginning in February 2008. It appears OPM would like the system to be available to all Federal employees by February 2009.

One substantive change identified in the rules: employees (or survivors) would have 35 days from the date of their notice of retirement to change any survivor benefit elections. Current regulations set the deadline for changing survivor elections to the date of the first regular monthly payment or final adjudication.

You can read the new rules by clicking on this link. If you care to comment on the new rules, you must do so by September 17, 2007.

There is no greater feeling than being able to call a client and tell him he has been exonerated by a Judge. I had the opportunity to experience that feeling again on Friday. After a hearing before the MSPB, our client’s 30 day suspension for alleged misconduct was completely reversed by an initial decision of the MSPB.

Our client, a long time supervisor with the Department of Energy (NNSA), had been accused of being involved in the release of interview questions to an interviewee in a selection decision for a vacancy announcement that occurred over two years earlier. After a cursory internal “investigation” by management, the Agency hired a third party investigator, (GenQuest, Inc.) to conduct a “fact-finding” investigation.

After the GenQuest investigation, Agency management concluded that our client was involved in the release of interview question, and charged him with failure to follow instructions, conduct unbecoming a supervisor and lack of candor. It is still unclear what evidence formed the basis of that conclusion. The MSPB agreed, and on one occasion, cited some significant procedural and substantive flaws in both the management and the GenQuest, Inc., “investigations”.

The Board held that the Agency did not sustain a single one of the 8 specifications in the 3 charges, completely exonerating our client. Because the Agency did not sustain a single charge or specification, there was no need for the Judge to consider the Douglas Factors. The Agency has been directed to cancel the suspension, reinstate our client to his supervisory position, and pay him the appropriate back-pay and interest.  (As of December 2007, the client has received his back-pay, has not received the interest on the back-pay, and is contesting the Agency’s argument that they do not have to restore him to a supervisory position).

The  decision is just an initial decision and will not be final for approximately 30 days.  (In September 2007, the Initial Decision became a final decision of the Board when the Agency chose not to appeal the findings of the Administrative Judge).  We congratulate our client on his victory and exoneration!

If either of these cases sounds like you, please contact the Attig Law Firm, PLLC:

1) On behalf of a spouse who was a federal employee, you utilized your Power of Attorney, Durable Power of Attorney or Statutory Power of Attorney to elect your spouse’s right to an Alternative Form of Annuity (AFA).

2) On behalf of a spouse who was a federal employee,  you utilized your Power of Attorney, Durable Power of Attorney or Statutory Power of Attorney to file an optional or immediate CSRS or FERS retirement on behalf of your spouse.

If either situation applies to you, and OPM denied your right to elect an AFA or your right to retire your spouse, the Attig Law Firm, PLLC, would like to hear from you.

Please send us an email or give us a call today at (214) 891-5960.