To establish the elements of a performance-based removal action, the Agency again has the Burden of Proof. That is, the Agency must prove the elements of the removal – however, the burden is much lower than in misconduct cases.

In a performance case, the Agency must only prove their case by “substantial evidence”. This is the lowest burden of proof in the legal system. Essentially, it means that amount of evidence that a reasonable person would find necessary [...]

In MSPB Appeals, the Appellant (employee) can assert “harmful error” as a defense to an Agency adverse action. Harmful error can be a difficult concept, even for many attorneys. Here is what it is, in layman’s terms.

First – a little background. Because Federal Employees are employed by the United States Government, they typically have a “property interest”, protected by the U.S. Constitution, in their continued employment. Thus, while private sector employees can often be fired for [...]

For attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of your appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board.

Proposal Letter: This is the most crucial document in the entire process – it proposes the action that the Agency wants to take. The letter should indicate that you may issue an oral/written reply, that you have a right to representation, and that [...]

A question folks frequently ask when contacting my Firm is an explanation of the difference between a “disciplinary action” or an “adverse action”.

A “Disciplinary Action” is a suspension of 14 days or less, written letter of reprimand, or oral counseling. Aside from truly egregious misconduct, an Ageny will usually propose a disciplinary action before taking more serious steps. Disciplinary actions lay the groundwork for Agencies to successfully take an adverse action. In most Agencies, bargaining [...]

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.