In almost every adverse action case before the MSPB, the issue of the “Douglas Factors” is likely to come up. In short, the Douglas Factors are a tool that the Deciding Official should use in choosing the property penalty to take when a Federal Employee commits misconduct.

Later, at hearing, the MSPB will either take testimony regarding the consideration of the Douglas Factors (if the penalty is challenged as too severe) or may consider the Douglas Factors itself (if the [...]

When a Federal Agency charges you with misconduct, it has the burden of proving its case against you. What does the Agency have to prove?

The first thing the Agency has to prove is that the misconduct occurred. This is usually broken into two parts:

The conduct charged actually occurred;
The conduct charged is misconduct;

Many times, one or the other is not disputed. For example: an employee and the Agency may agree that the employee was AWOL (Absent Without Leave). However, [...]

An appellant before the MSPB can recover attorney fees. Many cases settle before getting to an MSPB hearing. In settlement agreements, it is common for the parties to agree on a sum that includes attorney fees, costs and expenses.

When a case doesn’t settle and goes to hearing, the appellant must be a prevailing party in order to recoup attorney fees.

After your attorney shows that you are a prevailing party, (s)he will have to show that attorney fees [...]

Does this story from Sunday’s Dallas Morning News sound familiar:

“Bill Hollis was a caseworker at a state juvenile prison in West Texas, and he had suspicions. He believed the prison’s No. 2 official spent far too much time behind closed doors, late at night, with young male inmates.

“It just didn’t feel right,” he said.

So Mr. Hollis wrote a letter of complaint to the executive director of the Texas Youth Commission in Austin, the state agency that runs the West Texas [...]

A 2006 case out of the 7th Circuit (Illinois) dealt with a woman who was fired, essentially, because she filed an EEO claim for reasonable accommodation of her cancer (among other things). The Court stated, in its decision on the reprisal matter:

“Poor personnel management receives its come-uppance in the market rather than the courts.”

Statements like this are the mantra of the employment-defense bar. I can’t blame them, really – it really is easier (albeit cowardly) to ignore [...]

The EEOC recently released its survey of discrimination claims filed in 2006. The report detailed some interesting trends in 2006:

A record number of Pregnancy Discrimination claims were filed (4,901).
A record 22% of employees victimized by discrimination prevailed.
Sexual harassment charges filed by men continues to rise – in 2006, a record 15% of sex harassment charges were filed by men.
The EEOC recovered nearly $274 million in monetary relief for victims of discrimination.

The MSPB’s January 2007 Newsletter reports that favoritism in the Federal workplace may be a big problem.

Favoritism is when a supervisor gives an edge, a financial or personnel benefit, or special treatment to some employees but not others. The MSPB Newsletter suggests that over one-third of federal employees have witnessed favoritism in career advancement opportunities, awards, training, disciplinary actions, pay, job assignments, and performance appraisals.

I see touches of favoritism in nearly every [...]

In May 2006, the Supreme Court’s Garcetti v. Ceballos decision effectively denied constitutional free speech protection to government employees who disclosed waste, fraud or abuse while carrying out their job duties.

Unfortunately for government employees and those interested in an efficient and lawful federal government, Garcetti was only another decision in a long of cases that chipped away at legal protection for whistleblowers. In a recently published article, the Federal Circuit Court of Appeals (which [...]

Imagine this scenario – you have a disability, and your management chain has just agreed to provide you a modified work schedule or modified work duties in order to accommodate that disability.

Your co-workers start to become curious why you’re not at work when they are, or you’re not doing the same tasks that they are. They approach your manager to ask why you are getting preferential treatment. Can your manager tell them you have a disability?

According to the [...]

Increasingly, Federal agencies are charging employees with misconduct based on “lack of candor”. This charge is what Agencies use when they can’t prove “falsification”.

Falsification is an intentional misrepresentation of some fact. It often arises in filling out some government form, or in the course of an official (or unofficial) investigation – the employee is accused of knowingly providing an incorrect answer to a question, or knowingly trying to deceive or mislead the [...]