Attig Law Firm - Federal Employee Attorney Blog

MSPB: Removals for “Excessive Use of Leave”

attig — Sat, 16 May 2009 15:22:12 +0000

We all know that an Agency can try to remove you for being Absent Without Leave (AWOL). What if an Agency tries to remove you for taking too much approved annual leave or approved sick leave? How about if an Agency tries to remove you for taking too much Leave Without Pay? Will the Merit Systems Protection Board (MSPB) uphold that decision?

Every case is unique, so the answers to those questions are things you should discuss with your/an attorney. However, generally, an Agency may not take disciplinary action against an employee who is on approved leave. There are two exceptions to this general rule, and they are referred to as the “Cook” Exceptions. Cook v. Dept. of the Army, 18 MSPR 1610 (1984).

The first “Cook” exception is that an Agency can remove you for approved leave if you failed to properly follow leave requesting procedures. In other words, even though your leave is approved, if you failed - after being put on notice - to follow the Agency’s leave requesting procedures, the MSPB could sustain disciplinary action against for failure to follow leave requesting procedures.

The second “Cook” exception is that an Agency can remove you for excessive unscheduled leave. In this scenario, an Agency would have to show:

1) That the employee’s absence was due to compelling reasons beyond his/her control such that approval or denial of the leave is immaterial to the employee’s presence on the job;

2) That the absence continued beyond a reasonable time, and the Agency warned the employee that adverse action could be taken if the employee continued to be unavailable.

3) That the employee’s position needed to be filled by an employee available for duty.

A recent decision in Edwards v. Dept. of Transportation, 109 MSPR 579 (August 6, 2008) clarified that the “Cook” exception only applies for unscheduled leave without pay - not approved annual leave, sick leave, etc.

Thus, there are several important factors in any MSPB case where the charge against the employee is removal for excessive leave - if the answer to any one of these questions is “yes”, then the Agency may have a more difficult time sustaining a charge of “excessive absence”:

A) Was the employee on approved annual or sick leave?

B) Did the employee have sufficient sick leave balance to cover the absence?

C) If the employee was on LWOP, was the LWOP scheduled, as that term is defined by the “Cook” cases.

D) Did the Agency fail to give clear notice of adverse consequences if the employee failed to report to work?

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 the MSPB, unscheduled or approved leave, removals for excessive use of leave, or any other question about disciplinary action by your Agency, please contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

MSPB: Appeals of Suitability Determinations

attig — Sun, 03 May 2009 12:13:25 +0000

Generally, an unsuccessful candidate for a federal government job has no right to appeal a non-selection - unless he or she feels that the basis for the non-selection was based on a discriminatory motive (age, sex, disability, race, national origin, etc.)

However, if an Agency makes a suitability determination - whether or not your character or conduct is such that employing or continuing to employ you would adversely affect the integrity or efficiency of the service, OPM has provided that the MSPB has jurisdiction. See, 5 C.F.R. § 731.101, 731.201, 731.501.This, of-course, applies to any suitability determination made during your civil service, but seems to most commonly occur in the early year/years, while your background and security are being checked and evaluated. In 2008, OPM removed the phrase “denial of appointment” from regulations defining what a suitability action is, and whether the MSPB has jurisdiction. Here are some factors that might be relied upon in rendering a negative suitability determination:

a) falsification, deception or fraud in the examination process

b) misconduct or negligence in employment;

c) conduct that reflects negatively on the efficiency of the service

An individual employee (or applicant who has accepted a position pending a suitability determination, may appeal a negative suitability determination to the MSPB.

Before taking any action discussed in this post, you should consult with your attorney - or an attorney - to determine if that course of action is appropriate for you. Every case is different, and what’s discussed in this post may not be right for you under the facts and law of your case.

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 Agency’s negative suitability determination, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

Federal Employees: Will the ADA Amendments Act affect OPM Disability Retirement claims?

attig — Sat, 21 Mar 2009 15:07:00 +0000

A thought occurred to me recently, and I thought I’d post my initial conclusion here - I’m sure I will post more on this topic as my thought and case law develops.Effective January 1, 2009, the Americans with Disabilities Amendment Act went into effect. The changes in the amendment are substantial - without going into too much detail here, the Act restores the original intent of the ADA: to remove the barriers that disabled employees face in the workplace.

The MSPB and the EEOC will be struggling and grappling with issues of retroactivity and development of new case law for years. In the short run, I expect to see more claims of disability discrimination and more settlement of these cases (to avoid generation of unfavorable case law).

I also expect, over time, to start seeing OPM reject more applications for disability retirement. Why? Because your employing Agency must attempt to accommodate you before you are eligible for disability retirement through OPM.

If the ADA Amendments Act will lead to the accommodation of more disabled employees - a large portion of whom simply took disability retirement because the Agency claimed they couldn’t be accommodated - doesn’t it stand to reason that OPM should lean harder on Federal Agencies to accommodate its disable workers?

This could put a lot of employees in a tough spot - they may get rejected for disability retirement by OPM because the Agency can - and should - accommodate their medical condition. However, the Agency is denying them accommodation and not allowing them to work. What is a Federal employee to do in this predicament?

If you are a disabled federal employee, and you are physically and mentally ready, willing and able to work, I recommend that you FIRST exhaust yourself in seeking accommodation from the Agency.

This is different advice then you will get elsewhere, who advise that you should just apply for disability retirement right out of the gate. Why is this different? Because I am assuming, that if you are reading this post, you are ready, willing and able to work with your medical condition, but your employing Agency is being obstreperous and refusing to accommodate you.

If your medical condition precludes you from working, even with an accommodation, then this blog entry may not have any relevance to your situation.

What, then, are some ways to exhaust yourself in seeking accommodation at the Agency:

1) First, identify and request an accommodation. The Attig Law Firm, PLLC, can help you to do this.

2) If your request is denied, file an EEO Complaint claiming disability discrimination through denial of reasonable accommodation.

3) If you have been placed on LWOP for 15 days or more, and if legally appropriate, consider filing an MSPB Appeal claiming that the Agency has constructively suspended you and committed disability discrimination in doing so. Since a claim like this is a “mixed-case”, you will need to evaluate whether you should first go to the EEOC or the MSPB with a claim like this.

If you are in that group of employees who wants to keep working, but feel that your employing agency has left you no choice but to seek disability retirement because they have failed to accommodate you, you might consider this approach:

At the same time you file an appeal for disability retirement, file an MSPB Appeal challenging your Employing Agency’s decision not to accommodate you. The grounds for this appeal would be “involuntary retirement:.

Normally, the MSPB Administrative Judge is going to adjudicate and issue a decision on this appeal before you complete the OPM Disability Retirement process. The MSPB AJ has 120-180 days to issue a decision. By the time OPM receives your application, rejects it, receives your request for reconsideration, declines to reconsider, and provides notice of your MSPB Appeal right, your involuntary retirement will most often be concluded or near conclusion. So, consider this appeal as a type of “legal insurance” in the event that OPM decides that your Agency could and should have accommodated you.

If an Agency could have accommodated you, and failed to do so, that deprives you of the ability to freely choose to apply for disability retirement, and your application may be rendered moot by an Order of an MSPB Judge that your application for disability retirement was involuntary.

If, on the other hand, the Agency cannot accommodate you, and the MSPB finds as much in a written decision on an involuntary retirement appeal, then OPM is going to have a hard time arguing that you should not get disability retirement (solely on the grounds that you could have been accommodated by the Agency).

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 reasonable accommodation, involuntary retirement appeals, or denial of disability retirement by OPM, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

MSPB: Finding of Disability Discrimination and a Return to work for our client, a DHS employee.

attig — Sat, 14 Mar 2009 13:55:01 +0000

We received word yesterday that another client, an employee of the Dept. of Homeland Security, prevailed in her MSPB Appeal.Our client was injured on the job in the early 2000’s. She recovered from that injury and asked the Agency to accommodate some of her remaining limitations. Because the limitations did not affect her performance of her essential job functions, the Agency accommodated her for nearly 2 years.In February 2005, however, the Agency arbitrarily decided to place our client on LWOP, claiming (without evidence and without any interaction with their employee) that her medical condition and its limitations rendered her unable to perform the essential functions of her job. The Agency has kept her on LWOP at all times since February 2005.Our client appealed to the MSPB, claiming that she was constructively suspended, denied her restoration rights after recovery from an on the job injury, that the Agency committed disability discrimination in wrongfully discontinuing its reasonable accommodation, and that the Agency committed harmful error by not providing her any of the statutory protections that the law requires.Yesterday, an Administrative Judge of the Merit Systems Protection Board (MSPB) issued his Initial Decision, holding that the Agency’s placement of our client on LWOP in February 2005 constituted a “constructive suspension”, and that the Agency’s abrupt and unsubstantiated discontinuation of a reasonable accommodation that worked constituted disability discrimination.Once the Initial Decision becomes final, the Agency will be required to restore our client to the paid and active rolls of the Agency effective February 2005, restore all of her benefits (sick leave, annual leave, pension and TSP contributions, health benefits, etc.). The Agency is also liable for compensatory damages - actual and non-pecuniary - due to the finding of disability discrimination.Given the severity of the harm that has continued for over 4 years, the Appellant’s compensatory damages are substantial. The Agency will also be liable for the Appellant’s attorneys’ fees and costs.One of the best phone calls I get to make is the call to a client letting them know they got their job back, and that financial relief is on the way. This is particularly true in this case - our client stayed patient, calm and collected, and stayed the course for over 4 years, fighting an Agency that can - generously - be described as “cavalier” in its concern for its own employees (particularly disabled employees).Almost every DHS attorney or manager I have worked with has been (or has a reputation in their local bar of being) some combination of arrogant, rude, petty, uncivil, unnecessarily aggressive and unnecessarily confrontational. Perhaps its the result of a ”We’re-The-Most-Important-Government-Agency-So-Don’t-Disagree-With-Us” mentality or culture at this Agency, perhaps it’s a lack of professional socialization, perhaps its the result of hiring too many young attorneys without sufficient mentorship or leadership, I don’t know. But it’s a problem at this Agency. If history is any indicator, it is a problem I suspect will cause significant angst for DHS in the next decade.NOTE: As of May 2009, this case has been appealed by the Agency to the Full Merit Systems Protection Board, where the “appealable issues” have been briefed and are awaiting a decision.

Another Attig Law Firm client successful in Catch-62 appeal

attig — Fri, 13 Mar 2009 13:01:23 +0000

Another Attig Law Firm client has been successful in his Catch 62 appeal to the MSPB! Earlier this month, the Office of Personnel Management (OPM) withdrew its decision reducing our client’s civil service annuity. OPM had previously reduced the annuity because it claimed that our clientfailed to make the military service credit deposit prior to his retirement.

Our client retired as a federal employee and began collecting a civil service annuity in the early 1990’s. When he reached age 62 years of age, OPM reduced his annuity pursuant to provisions known in civil service circles as the “Catch 62 provisions”.

“Catch 62 provisions” allow certain federal employees with post-1956 military service to buy their military service into their civil service annuity. Employees who do this before retirement receive a larger monthly annuity throughout their entire retirement. Employees who do not make this deposit before retirement will have their annuity reduced at age 62.

After OPM reduced his annuity, our client appealed to the Merit Systems Protection Board (MSPB) and retained the Attig Law Firm to represent him.

The MSPB is an independent, bipartisan, Federal Executive Agency that reviews actions of OPM to assess how those actions affect the Merit Systems of Federal employees and retirees. OPM is a Federal Executive Agency tasked with, among other things, administering benefits of Federal civil servants and their survivors.

In the course of the MSPB litigation, the Firm learned that our client had been part of a massive early retirement effort by his Agency about 15-20 years ago. In that effort, the Retirement Benefits Specialist told our client, essentially, that the only thing the military service credit deposit did was increase his years of creditable service (as well as other false statements about the impact of not making the military service credit deposit).

The Attig Law Firm argued that this statement alone was “administrative error“, requiring reversal of the OPM decision. Additionally, there was some indication in the retirement paperwork that our client had attempted to make the deposit prior to the retirement, but was stopped from doing so by the poor advice of the retirement benefits specialist.

Based on these facts, attorney Chris Attig filed pre-hearing submissions in the case, and shortly after a hearing was set and confirmed by the Administrative Judge, OPM withdrew its decision reducing our client’s annuity. Our client will be permitted to make a late deposit of the military service credit and will shortly begin to receive his entire monthly annuity payment from OPM.

Had this case proceeded to hearing, I feel confident that the Administrative Judge would have found administrative error. The client’s story was consistent with the retirement paperwork, and OPM was unable to produce any witnesses or evidence to challenge his version of the event. What’s disturbing is that our client retired in the mid 1990’s. It took about 10 years for the Agency’s administrative error to catch up with the retiree.

The Attig Law Firm, PLLC, is a Dallas, Texas, law firm that provides nationwide legal representation for Federal Employees, annuitants, and the Survivors of annuitants before the MSPB.

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 Catch-62 issues, or OPM’s reduction of your retirement annuity at age 62, contact an MSPB attorney at the Attig Law Firm, PLLC, to schedule a telephone consultation.

EEOC: AJ Issues Notice of Intent to Find Disability Discrimination

attig — Mon, 09 Mar 2009 14:05:43 +0000

A client of the Attig Law Firm learned yesterday that the Administrative Judge in his EEOC Hearing intended to issue a finding of disability discrimination against the Agency.

Because the case is still pending, and because a beneficial settlement agreement may still be possible for our client, the names of the Agency and other non-material facts have been withheld, removed or altered to protect confidentiality and privacy.

Our client was an aircraft electrician who had applied for a quasi-supervisory Work Leader position in 2007. He was denied selection, and was concerned that his disabling medical condition was a factor in the non-selection.

A few years earlier, our client had been injured on the job, and had permanent limitations to his ability to kneel and squat. For a good period of time, the Agency accommodated their employee, and while there may have been some question whether it was an “over-accommodation”, the accommodation worked for the employee and caused no undue hardship to the Agency.

Just prior to the posting of the vacancy announcement, the employee’s supervisor discontinued her predecessor’s accommodation of our client, and sent him to work in an area of the shop that employees and supervisors alike called the “sick, lame and lazy” area.

The supervisor’s explanation of why she non-selected our client was suspicious, and the AJ seemed to have concerns with the pretextual nature of her so-called legitimate reason for not selecting our client for the Work Leader position.

In any event, the Administrative Judge has sent notice informing the Parties that he intended to find that the non-selection was motivated by disability discrimination, among other potential finding(s) of disability discrimination.

Though our client may still wish to settle his complaints with the Agency, the normal complainant in this scenario would be entitled to attorney fees and costs, as well as compensatory damages (actual and non-pecuniary) that resulted from the discrimination.

If you believe that you have been the victim of disability discrimination, and would like to speak with an attorney about your EEO and legal rights, or if you would like to discuss legal representation with a lawyer before the Equal Employment Opportunity Commission (EEOC), contact the Attig Law Firm, PLLC.

EEOC: AJ Issues Finding of Discrimination as Sanction Against Agency.

attig — Wed, 04 Mar 2009 14:18:43 +0000

A client of the Attig Law Firm recently learned that an Administrative Judge of the EEOC was issuing a “Default Judgment” and finding of sexual harassment discriminaation against a Federal Agency.

The Default Judgment is a sanction for the Agency’s repeated failure, over approximately 2.5 months, to respond to the Administrative Judge’s Order to provide a copy of the Investigative File.Because the case is still ongoing, the details will not be provided here.

The Administrative Judge has indicated that she will hold a damages hearing to determine the financial extent of the Agency’s liability for discrimination. The AJ held that, as further sanction, the Agency has lost any right to conduct discovery. 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.

If you believe that you have been the victim of discrimination, and would like to speak with an attorney about your EEO and legal rights, or if you would like to discuss legal representation with a lawyer before the Equal Employment Opportunity Commission (EEOC), contact the Attig Law Firm, PLLC.

MSPB: What is the VEOA (Veterans Employment Opportunity Act)?

attig — Mon, 12 Jan 2009 11:08:18 +0000

The full Merit Systems Protection Board has been issuing a lot of decisions about the VEOA. Over the coming days, we will discuss what the VEOA is and how you properly assert an appeal right before the MSPB.

First, what is the VEOA? The Veterans Employment Opportunities Act of 1998 provides that agencies must allow eligible veterans to apply for positions announced under merit promotion procedures when the agency is recruiting from outside its own workforce.

What does that mean? There are, generally speaking, two types of Vacancy Announcements within the Federal Civil Service – Competitive and Merit Promotion.

In a Competitive announcement, the announcement is open to all applicants that qualify, regardless of whether or not they currently work for the federal government or the federal agency posting the announcement.

In a Merit Promotion process, the Agency generally only seeks qualified internal candidates for a particular position. However, in certain situations the Agency reaches outside its own workforce for applicants in a Merit Promotion process. When this happens, the Agency MUST accept applications from preference eligible veterans outside the Agency’s workforce.

The VEOA does not guarantee selection, in fact, the VEOA does not guarantee anything other than the right to apply and the right to compete. In many situations, the Agency will post two announcements – a competitive and a merit promotion. The preference eligible veteran, under VEOA, must be given the opportunity to apply and be considered for both postings.

The VEOA is not a selection guarantee for a preference eligible veteran. It is, however, a way for preference eligible vets to get their foot in the door to Agencies that are posting only Merit Promotion announcements.

In the next few posts, I will discuss more about VEOA, including:

· The Administrative Process before DOL-VETS
· How to assert jurisdiction under VEOA, before the MSPB
· What if the Agency cancels the vacancy announcement.

If you believe that your VEOA rights have been violated, and would like to speak with an attorney about your VEOA rights, or if you would like to discuss legal representation with a lawyer before the Merit Systems Protection Board (MSPB),contact the Attig Law Firm, PLLC.

MSPB: FERS/CSRS Disability Retirement Attorney Fee Survey

attig — Sun, 04 Jan 2009 14:45:26 +0000

The Attig Law Firm has posted a survey on its new website, www.FERSDisability.com. The goal of the survey is to help the Firm keep quality legal representation at an affordable rate to Federal Employees and Postal Workers applying for disability retirement.

The survey can be found by clicking on the following link:

ATTORNEY FEE SURVEY – FERS/CSRS Disability Retirement.

Since the results are tabulated by a company we have hired, the survey is completely anonymous, and we have no way of knowing where or from who the answers came – so feel free to be completely honest.

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 are a Federal employee and have questions about disability retirement under FERS or CSRS, your MSPB appeal or your EEOC complaint, contact the Attig Law Firm, PLLC, to schedule a telephone consultation.

Attig Law Firm to represent applicants for Social Security Disability

attig — Sat, 03 Jan 2009 14:53:31 +0000

The Attig Law Firm continues in its goal to provide quality legal representation to disabled workers.

In keeping with that goal, the Firm has begun offering its services in the representation of applicants for Social Security Disability benefits.

More information will follow in the weeks and months to come. In the meantime, if you would like to discuss your Social Security Disability application with an attorney at the Attig Law Firm, PLLC, please contact us to arrange a consultation.