MSPB and Federal Employee Attorney Blog » MSPB – Adverse Action Appeals (Performance and Discipline)

MSPB Appeal: When will the Board mitigate a federal employee’s removal charge to a disciplinary suspension?

Chris Attig — Fri, 14 Oct 2011 13:52:27 +0000

An interesting decision from the Full Merit Systems Protection Board sheds a little light on how an Administrative Judge should review the Douglas Factors. The case I am going to discuss is Raco v. Social Security Administration, MSPB Docket #PH-0752-10-0543-I-1 (September 29, 2011), found at 2011 MSPB 87.

The Agency removed the federal employee for charges of conduct unbecoming – alleging that the employee falsified credit hour compensation forms by claiming credit hours for time she didn’t work. Most of the 22 discrepancies charged by the Agency were under 5 minutes – the total time at issue seems to be about 1 hour and 34 minutes.

The MSPB Administrative Judge initially found that the charges were not sustained because of the short periods of time involved – this was reversed by the full MSPB which found that the de minimis nature of any alleged misconduct should be considered in the penalty phase. The MSPB Administrative Judge mitigated the removal to thirty (30) days.

The Agency appealed to the full Merit Systems Protection Board (MSPB) and appears to have made voluminous arguments. The plan backfired on the Agency, as it seems they won the battle but lost the war. The full MSPB agreed with the Agency that they had proved the misconduct and that they had proved nexus – and reversed the MSPB Administrative Judge’s decision holding otherwise.

However, the full MSPB concluded that only a 14 day suspension was warranted. Some interesting points from the Board’s thoughts on the Douglas Factors in this case:

1) The Agency relied on an argument that 22 small time reporting discrepancies add up to one serious offense. This is a common Agency tactic. The full MSPB states that this tactic does not work - 19 ”de minimis” time reporting discrepancies did not convince the MSPB that disciplinary action was appropriate. In this case, no intent to do wrong was charged or proven by the Agency. If they did charge intentional falsification (and proved it), the result may well have been different.

2) The Appellant had 20 years of successful federal service, with no prior discipline. This is a big “no-no” for Agencies. Most MSPB Administrative Judges will not sustain an action for removal of a long-time federal employee, with no disciplinary or poor-performance record, for minor charges such as the ones in this case. This is not to say these employees won’t (or shouldn’t) be disciplined; however, Agencies that go straight for the jugular on “de minimis” charges like this are going to have a tough row to hoe at hearing. (Caveat: most MSPB Administrative Judges means exactly that – there are at least two (2) MSPB Administrative Judges that I am aware of who would likely have sustained discipline like this against a federal employee, even with facts like this.)

3) The Appellant produced evidence of a “disparate penalty” – evidence showing that others had committed similar discipline and received substantially lesser discipline.

Keep in mind, however, that this will not be the result in every case involving a long-term employee with a track record of good performance – there are some offenses which will outweigh even a good track record. Everything about this case, though (and it is a decision worth reading) suggests that the MSPB will not sustain an action where the Agency “jumps the gun” (or, in modern parlance, “jumps the shark”).

To be honest, I was a little surprised to read a decision like this – this seems like the type of MSPB appeal that most Federal Agencies would settle. However, in reading this case and some of the Agency attorney’s arguments on appeal, I was reminded of an old adage: the most dangerous snakes are young ones – the attack everything and don’t know how to regulate their venom.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have questions about an adverse action, an MSPB Appeal, or the MSPB in general, please contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

MSPB: Can an Agency remove me for medical inability to do my job?

Chris Attig — Thu, 09 Sep 2010 10:46:39 +0000

Generally, the answer is yes. An agency may remove a FERS or CSRS civil service employee if he or she is unable, because of a medical condition, to perform the duties of the position. But, to sustain the removal at the MSPB, the Agency will need to make a pretty convincing proof.

To sustain its charge, the Agency will need to prove: a) that the federal employee has a medical condition; b) that there is a nexus between the federal employee’s medical condition and either (1) observed deficiencies in his work performance or conduct or (2) the a recurrence of the disqualifying condition would pose a reasonable probability of substantial harm.

A charge of medical inability to perform is different from a charge of unsatisfactory performance – the former requires medical evidence showing that the employee is incapacitated for particular job duties due to a medical condition. Although non-medical evidence regarding performance deficiencies might corroborate medical evidence of incapacity, the non-medical evidence alone is insufficient to establish the charge of inability to perform job duties.

If the evidence supports a finding that the Federal Employee has recovered, by the time of the hearing – regardless of whether or not the employee was unable to perform his duties at the time the agency took the action, the Board will reverse the removal.

And keep in mind – a removal for medical inability to perform the essential functions of a position is evidence that the federal employee is presumed entitled to disability retirement through OPM under the Bruner presumption.

MSPB: Indefinite Suspensions and MSPB Appeal rights

Chris Attig — Mon, 06 Sep 2010 12:11:34 +0000

Indefinite suspensions seem to be getting increasingly popular with Federal Agencies. Generally speaking, an indefinite suspension can’t go on forever. Once an Agency suspension exceeds 14 days, the Federal employee should get an MSPB Appeal right, and the Agency has to prove that the suspension is justifiable, typically under the procedures outlined in Chapter 75 of Title 5 of the United States Code.

However, the MSPB has recognized, over the years, three separate situations where a Federal Agency might be able to use an “indefinite suspension”:

1. When the agency has reasonable cause to believe an employee has committed a crime for which a sentence of imprisonment could be imposed—pending the outcome of the criminal proceeding or any subsequent agency action following the conclusion of the criminal process;

2. When the agency has legitimate concerns that an employee’s medical condition makes his continued presence in the workplace dangerous or inappropriate—pending a determination that the employee is fit for duty;

3. When an employee’s access to classified information has been suspended and the employee must have such access to perform his job—pending a final determination on the employee’s access to classified information.

Each of these types of “indefinite suspensions” do have evidentiary rules and procedural requirements, so it is best to contact an MSPB attorney if your Agency has suspended you indefinitely in one of the above scenarios.

MSPB: Federal Employee’s removal mitigated to 30-day suspension

Chris Attig — Fri, 20 Aug 2010 12:52:18 +0000

The Full MSPB issued a decision reversing the removal of an employee of the Department of Veteran’s Affairs. Suggs v. VA, 2010 MSPB 99 (June 1, 2010).

Initially, the VA removed the employee for charges of disrespectful conduct, among other things. The employee had previously received a 3-day suspension for failing to follow instructions and inappropriate conduct. The Suggs decision is a good primer for explaining what the MSPB can – and should – consider in deciding “disrespectful conduct” cases. Here are a couple of those factors:

1) For cases where there is a single charge of disrespectful conduct, removal might be upheld when there are multiple specifications, and the conduct involves abusive or obscene language, or physical action.

2) Where there are numerous mitigating factors, including evidence that the supervisor contributed to the conflict by raising his/her voice, the employee had a medical condition impacting his or her actions, longevity of civil service, and recent positive evaluations, mitigation is a very possible outcome.

It is quite possible that Suggs will be a very important case for Federal employees. Over the past 8-10 years, Agencies have successfully established that disrespectful conduct means whatever the supervisor wants it to mean when he or she testifies before the MSPB. Suggs is a big first step in restoring some sort of objectivity and balance to the Federal Workplace, so that employees can speak their mind without fear of a supervisor over-reacting (or worse, using a discussion with an employee to get rid of a disabled worker, a Whistle-blower, or any other employees in protected groups).

You should consider contacting an attorney with experience in handling MSPB appeals to the MSPB or a lawyer with experience representing Federal employees in MSPB and EEOC complaints of violations of the ADA and Rehab Acts and/or the Whistleblower Protection Act (WPA).

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you believe that your Agency has improperly disciplined or removed you, contact an attorney familiar with MSPB appeals and federal employee EEOCcomplaints.

Federal and Postal Employee Disability Retirement: Can the MSPB order OPM to reimburse my attorney fees?

Chris Attig — Tue, 16 Mar 2010 12:10:44 +0000

If a Federal or Postal employee succeeds in their MSPB appeal challenging OPM’s denial of federal disability retirement benefits, can the Federal or Postal employee recover their attorney fees?

The short answer is generally yes,.

To recover attorney fees before the MSPB, a Federal or Postal employee must show the following elements:

1) There was an attorney-client relationship exists pursuant to which an attorney provided legal services on the appellant’s behalf in connection with an MSPB proceeding. Typically, the best evidence of this is the attorney client agreement. Typically, this will not be disputed, as it is often clear when an attorney client relationship exists. However, occasionally, OPM (or other Federal Agencies) will try to argue that no attorney-client relationship exists because there was no written attorney-client agreement. Agency attorneys and OPM attorneys often feel that they have to make this argument, but it’s just a silly one. I know of no state ethics law or rule which says that there is no attorney client relationship without a contract. Having said that, smart law firms and smart clients sign attorney-client agreements. But it’s not necessary to recover fees in an MSPB appeal. For example, if you had 3 consultations with attorneys prior to filing your disability retirement application, you should claim those fees if you prevail against OPM.

2) The Appellant was a “prevailing party”. This seems like an easy element, but it can get tricky. Generally, to be a prevailing party for the purpose of an attorney-fee petition, the Appellant has to show that there was a material change in his or her position that came about as a direct result of the legal proceedings. So, for example, if OPM withdraws its decision denying you disability retirement benefits on the eve of a hearing at the MSPB, are you a prevailing party? In reality, yes – you won. Will you recover attorney fees? No. Generally, you need an MSPB Administrative Judge’s decision reversing OPM’s denial of benefits to be a prevailing party.

3) The award of attorney fees is “warranted in the interest of justice”. In employee-initiated disability retirement appeals, an award of attorney fees is warranted in the interest of justice in two scenarios: a) when OPM knew or should have known that it would not prevail on the merits at the time it issued its final decision, or b) when OPM’s decision is clearly without merit. The first scenario, that an award is warranted under the “knew or should have known” category focuses on the nature and weight of the evidence available to OPM at the time it issued its final decision

4) The fees requested are “reasonable.” The Federal employee or Postal worker who is seeking attorney fees for a successful MSPB appeal on their disability retirement issue can prove this element by proving that the hourly rate the attorney charged was fair and reasonable, and that the hours expended were not excessive, repetitive and were for compensable services. There are too many variables to lay out how to prove whether an attorneys’ hourly rate is fair and reasonable, and whether the hours expended were not excessive, etc. However, when our Firm submits attorney fee petitions, we spend considerable time reviewing the work provided to ensure that we meet – or exceed – the MSPB standards.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee or postal worker, with some power. This information is not widely or easily accessible to Federal Employees or postal workers.

The Attig Law Firm represents Federal employees under FERS or CSRS in their applications for federal disability retirement to OPM. If an application for federal disability retirement is denied, the Firm represents Federal employees under both FERS and CSRS in their MSPB appeals of denials of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and federal disability retirement appeals to discuss the facts and law of your particular case. If you are an employee of the USPS, or a Federal employee under FERS or CSRS, and are considering applying for federal disability retirement to OPM, or would like to discuss your application for federal disability retirement, under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney or a Federal Disability Retirement Lawyer at the Attig Law Firm to schedule a telephone consultation.

MSPB and Disability Discrimination: Agency’s failure to accommodate a federal employee can be sufficient to establish potential involuntary resignation

Chris Attig — Thu, 14 Jan 2010 11:37:45 +0000

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, misinformation, coercion, discrimination, etc). To establish involuntariness on the basis of coercion, the appellant must establish: 1) that the agency imposed the terms of the resignation; 2) the appellant had no realistic alternative but to resign, and 3) the resignation was the result of improper actions by the agency.

In the recent MSPB decision, when a doctor sends a Federal employee back to work with a letter saying that if the employee is able to perform the essential functions of her job if she is allowed to telecommute, and if the Agency rejects that accommodation request without meeting the requirements of the law and attempts to terminate the employee for excessive leave, then that Federal employee has stated sufficient facts to entitle her to an MSPB hearing.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. The law surrounding involuntary and/or coerced resignations and retirements is very complex, and requires a legal analysis on a case-by-case basis. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you think that your Agency may have constructively discharged you, or discriminated against you on the basis of a disability or failure to accommodate, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.

Federal Disability Retirement: Can I get disability retirement with a mental health condition?

Chris Attig — Tue, 22 Dec 2009 12:11:08 +0000

Before discussing this question, I want to say that no federal disability retirement lawyer can tell you if any one condition will get you accepted for disability retirement. The key element of a disability retirement case is its connection to your ability to perform the essential functions of your current position.

Having said that, mental health conditions can (and do) form the basis for successful disability retirement applications. There are some hurdles to overcome, but here are just a few examples of how mental health conditions have been tied to successful applications for disability retirement:

1) Bipolar Disorder. This particular federal employee suffered for bipolar disorder for several years. The condition resisted treatment and therapy over those years. The applicant’s doctor stated that the condition manifests itself by extreme outbursts of rage and anger as well as an inability to get along with co-workers or supervisors on any sustained basis. An MSPB Administrative Judge found this sufficient for showing that the appellant’s medical condition prevented her from accomplishing the essential functions of her job.

2) Major Depressive Disorder/Depression. These are more difficult cases because, by their very nature, the symptoms tend to ebb and flow. Moreover, of all the mental health conditions, there is significant institutional discrimination against those with depression or MDD. I heard one fairly educated manager with a DoD Agency testify about accommodating an employee with MDD, that his own sister pulled herself up by her bootstraps, fixed her depression, and doggone it, so could this employee. Moreover, a person with MDD can be fully functional one day, and the next be unable to leave the house. Care must be taken to show the whole impact of this condition, and to drive OPM and MSPB focus away from isolated periods of time and look at the duration and treatment of the whole condition. OPM denials and reconsideration decisions tend to refer to Major Depressive Disorder as “in remission”. MSPB Administrative Judges frequently gloss over evidence that the condition can be recurrent, and frequently find that the Appellant has “treatment or medication options” still available, or that a Major Depressive “condition” has not lasted a year.

3) Anxiety disorders. In a case where a Federal employee, responsible for dispensing medicine to patients, showed that her “generalized anxiety disorder” led to an inability to concentrate and deal with others in the workplace, she was granted disability retirement when the MSPB concluded that the condition could lead to an inability to perform the functions of her position (for example, potential for errors in providing medication to patients.)

4) Borderline Personality Disorder. BPD, a particularly debilitating condition that is characterized by instability of relationships, mood and identity; impulsivity; anger; frantic efforts to avoid abandonment; and alternation between idealization and denigration of others, can form the basis of a disability retirement application.

5) Post-Traumatic Stress Disorder (PTSD): PTSD is gaining ground in terms of overcoming the general social prejudice against mental health conditions. Over the past few years, I have seen reactions by management to PTSD conditions to become less and less stereotyped, narrow-minded, and juvenile. My concern is that this is a byproduct of the war in Iraq, and the sheer number of veterans returning with the condition and the attention it is getting in the media. If so, then PTSD acceptance in mainstream society as a “real” medical condition will for some time be connected with the need for a socially acceptable traumatic triggering event. I fear that soldiers with PTSD in civil service will be more widely accepted than child-rape victims in the civil service workplace, who will be more widely accepted than victims of discrimination who suffer from PTSD. Nevertheless, a Federal Employee’s job-related PTSD, coupled with symptoms that severely impaired an ability to concentrate or engage in critical thinking and planning, can frequently lead to a grant of benefits for federal disability retirement.

There are many, many more examples of how mental health conditions can – and have – led to a grant of Federal disability retirement benefits. There are some significant prejudices involved with mental health conditions that you will have to overcome, (both before the MSPB and at OPM) which will be discussed in later posts.

Of course, there are many more rules that may apply to your unique set of facts. No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) and disability retirement appeals to discuss the facts and law of your particular case. If you have questions about federal disability retirement under FERS or CSRS, or OPM’s denial of your applications for federal disability retirement benefits under FERS or CSRS, contact an MSPB attorney at the Attig Law Firm to schedule a telephone consultation.

MSPB: 3 decisions from the new Board remand “restoration rights” cases

Chris Attig — Thu, 17 Dec 2009 15:43:16 +0000

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 the Rehabilitation Act into the restoration rights regulations, which, in this author’s opinion, has been glossed over by the MSPB for years.

In the first case, Smith v. USPS (MSPB Docket No. SF-0353-09-0202-I-1), the Board vacated the MSPB Administrative Judge decision denying the appellant’s request for restoration, and remanded it to the Administrative Judge for additional evidence. The MSPB Administrative Judge found that the appellant failed to show by preponderant evidence that the agency acted arbitrarily and capriciously in denying his request for restoration. The full MSPB found that the Administrative Judge erred because the Agency failed to apply the same legal standards to a request for restoration as would be applied to an individual with a disability under the Americans with Disabilities Act and the Rehabilitation Act. The ADA requires that the agency must make reasonable accommodation of an employee’s disability through means such as modifying or adjusting the duties of the position at issue, or reassigning the employee to a vacant position whose duties the employee can perform. Under the Americans with Disabilities Act and the Rehabilitation Act, an agency is required to afford reasonable accommodation to the known limitations of a qualified individual with a disability unless it can demonstrate that the accommodation would impose an undue hardship on the operation of its program. Because the USPS failed to demonstrate that an accommodation of the employee, in the facts of this case, worked an undue hardship on the Agency, the full Board found that the Administrative Judge erred in concluding that the Agency’s failure to restore was not “arbitrary and capricious”. The case was remanded only for evidence as to whether the Appellant was qualified for a particular position; if so, he is entitled to be placed in that position.

In the second case, Urena v. USPS (MSPB Docket No. SF-0353-09-0650-I-1), the MSPB Administrative Judge dismissed a Federal employee’s restoration rights appeal for lack of jurisdiction. The MSPB Administrative Judge held that the appellant failed to provide any facts in support of her assertion that the agency did not conduct a search for restoration for her within the local commuting area. The full MSPB disagreed, finding that the Agency itself had submitted evidence that the Agency did not conduct a search for restoration within the local commuting area. Instead, the Agency provided evidence that it only searched the Appellant’s facility for a position. The case was remanded to the MSPB Administrative Judge for a hearing on the substantive question of whether the Appellant’ restoration rights were violated.

In the third case, Barachina v. USPS (MSPB Docket No. SF-0353-09-0554-I-1), the full MSPB denied the Appellant’s Petition for Review, but reopened on their own motion, reversed the MSPB Administrative Judge’s decision and remanded the case to the MSPB Administrative Judge. The decision in this case reinforced the Urena decision: the documentary evidence submitted by both parties showed that the USPS searched only the Pasadena facility for available work, and did not look elsewhere within the appellant’s commuting area, as required under 5 C.F.R. § 353.301(d). The agency’s failure to comply with that regulation is sufficient to render non-frivolous her allegation that the agency acted arbitrarily and capriciously in denying the Appellant’s request for restoration.

What is important to note about these cases?

Each of the cases stressed that Agencies, in deciding whether or not to restore a federal employee who was previously injured on the job, are bound by the minimum standards outlined in the Americans with Disabilities Act and the Rehabilitation Act. The restoration regulations at 5 C.F.R. § 353.301(d) require that agencies “make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty.” Agencies are required to treat partially recovered employees substantially the same as an individual with a disability under the Americans with Disabilities Act and the Rehabilitation Act, which require that the agency must make reasonable accommodation of an employee’s disability through means such as modifying or adjusting the duties of the position at issue, or reassigning the employee to a vacant position whose duties the employee can perform. The only way that the Agency can escape this duty is to prove that the accommodation works an “undue hardship” on the Agency.

In recent years, the MSPB has long upheld Administrative Judge’s decisions refusing jurisdiction in restoration rights cases, and glossing over the requirements of the ADA that are incorporated into the restoration rights statutes. Many injured workers are without jobs and paychecks, though they have fully or partially recovered from their on the job injuries.

If you have been injured on the job at a Federal Executive Agency, if you have partially or fully recovered from that injury, and your Agency (or the MSPB) has denied your request to restoration, it may be time to try again. You should consider contacting an attorney with experience in handling restoration rights appeals to the MSPB or a lawyer with experience representing Federal employees in MSPB and EEOC complaints of violations of the ADA and Rehab Acts.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you have recovered from an on the job injury while working for a Federal executive Agency, and you believe that your Agency has not honored your restoration rights, contact an attorney familiar with MSPB appeals and federal employee EEOC complaints.

MSPB: Loss of Security Clearance

Chris Attig — Mon, 23 Nov 2009 13:12:31 +0000

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 analysis applies to positions that the agency has designated as sensitive. Crumpler v. Dept. of Defense, 2009 MSPB 224 (November 2, 2009).

MSPB: Leave Based Adverse Actions against the Federal Employee

Chris Attig — Thu, 19 Nov 2009 12:30:36 +0000

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 affirmative defense:

1) Family and Medical Leave Act (FMLA). This law allows for up to 12 weeks (at once or sporadically) to treat your serious medical condition or assist in the care of a family member with a serious medical condition. When requested properly, an Agency denies FMLA at its own peril.

2) Americans with Disabilities Amendments Act (ADAA). If you have a medical condition requiring accommodation under the Rehabiliation Act, the ADA, or the ADAA, granting of intermittent, sporadic, or other leave is considering by the MSPB and the EEOC to be one of the most basic and easily granted accommodations.

3) OPM Regulations on Leave and Absence (Found at 5 C.F.R. Part 630, et seq). Many times Agencies try to apply their own interpretation of the Federal Leave requesting and approval requirements; one Agency tried to defend, before the MSPB, the denial of annual leave because the employee didn’t provide a doctor’s note. Another Agency tried to defend its denial of sick leave at the MSPB using the argument that the manager didn’t think that Major Depressive Disorder was really an illness.

4) Agency’s Collective Bargaining Agreement rules on leave and absence

5) Agency’s own internal policies and regulations.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If your Agency has taken an adverse action against you using leave-related charges such as AWOL, Failure to Follow Leave Requesting Procedures, Enforced Leave, or Excessive Use of Approved Leave/Abuse of Leave, or based on an improper denial of leave under the FMLA or the denial of a reasonable accommodation under the ADA, contact an attorney familiar with MSPB appeals.