Imagine that you are a federal manager considering possible discipline against a subordinate employee. Have you provided advance written notice of proposed discipline to the employee? Check. Have you provided the employee with the documents on which the disciplinary action is based? Check. But have you alerted the employee to all factors you are taking into account for purposes of determining the disciplinary penalty? And have you given the employee an opportunity to address all those factors? If the answer is no, then the MSPB might conclude that you violated the employee’s right to due process, and reverse the disciplinary…
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Experienced federal managers are very familiar with the mitigating factors that must be considered when determining employee discipline. What you may not know is that an employee’s medical condition is entitled to “considerable weight as a mitigating factor.” That’s how the MSPB described it in a recent case, Bowman v. Small Bus. Admin., MSPB No. AT-0752-13-0538-I-1 (2015). In this blog we will describe the Bowman case, along with other recent legal rulings on this issue. In Bowman, the agency removed a Supervisory Construction Analyst for excessive unauthorized leave and failure to follow proper leave requesting procedures. The MSPB agreed that…
A years-long legal battle waged by the Office of Personnel Management (OPM) to rob federal employees of their right to appeal to the Merit Systems Protection Board (MSPB) removal actions directed by the agency has finally been dealt a fatal blow. The U.S. Court of Appeals for the Federal Circuit recently ruled in OPM v. Hopper (2014) that OPM-directed removals are in fact appealable adverse actions and not suitability actions immune from MSPB intervention. This decision came five years after the Board, while I was serving as its chairman, dealt OPM an initial one-two punch. The Hopper decision will have…
With New Year’s Day around the corner, many federal employees are readying resolutions for 2015. Many of their promises, whether they are to lose weight or get a new job, will likely not be kept. In fact, a 2014 survey found that 11 percent of Americans had broken at least one New Year’s resolution a mere six days into January and 22 percent copped to cheating a few times but still staying the course. Federal agencies also do not have stellar track records when it comes to keeping promises. Sometimes the Merit Systems Protection Board (MSPB) will even allow agencies…
It has been called the “uh-oh” e-mail: the e-mail that was sent to the wrong person or that contained an attachment not intended to be reviewed by the recipient. A 2010 survey of 250 business leaders found that 78 percent of them admitted to mistakenly e-mailing the wrong message to someone or unintentionally copying someone on a message. Most times, uh-oh emails will fill the sender with fleeting regret and embarrassment. But when a federal employee sends an uh-oh email that contains sensitive personnel or classified information, the consequences are more severe and could include termination. In the wake of…
When the Office of Personnel Management (OPM) in October released the results of the 2014 Federal Employee Viewpoint Survey, there was one very significant statistic the agency failed to highlight: 20.4 percent of federal employees reported they did not believe they could disclose a suspected violation of any law, rule or regulation without fear of reprisal. That marked the highest percentage of respondents (in the weighted results) who said they could not blow the whistle without fear of retaliation since the first such survey, originally known as the Federal Human Capital Survey, in 2002. It is ironic that less than…
No one likes having to make unpleasant choices. People facing such choices often find themselves in a lose-lose situation. But recent years have seen the Merit System Protection Board (MSPB) make great strides in ensuring certain federal employees, particularly those who have had to choose between taking leave or working outside of their medical restrictions, do not have to choose between such unpleasant options. While I was MSPB chairman, the Board heard Johnson v. U.S. Postal Service (2009). The appellant in this case was a mail handler with back and knee problems to whom the agency initially granted light-duty within…
A recently released report by the Equal Employment Opportunity (EEOC) on common errors federal agencies make when dismissing discrimination complaints on procedural grounds reminded me of the story of the blind men and the elephant. Each blind man, as the story goes, believed the elephant he touched was something else, depending on the part of the animal’s body with which he came in contact. This parable illustrates fragmented understanding, which is something the EEOC in the report blamed for many improperly dismissed Equal Employment Opportunity (EEO) complaints. And my years as chairman of the Merit Systems Protection Board (MSPB) showed…
Historical revisionism can be dangerous. Revisers often gloss over or skew facts to create a narrative that justifies their agenda. And lately, the Merit Systems Protection Board (MSPB) has been catching federal agencies engaging in historical revisionism when attempting to justify different penalties imposed on similarly situated employees. Take, for example, the recently decided case of Ellis v. U.S. Postal Service (2014). In this case the MSPB blocked the agency’s attempt to justify the removal of the appellant, a customer service supervisor, by exaggerating the differences between the appellant’s misconduct and the similar misconduct of another employee. In Ellis, the…
With the U.S. Patent and Trademark Office (PTO) coming under fire for the questionable practices of its patent examiners who worked from home, as detailed in an internal administrative inquiry report, I imagine agencies throughout the federal government may feel some pressure to keep teleworkers on shorter leashes. Agencies may even try to cut some of those leashes and cancel telework arrangements. Agencies’ attempts to rescind or modify telework privileges are often received by federal employees as constituting direct personal affronts. A 2011 Merit Systems Protection Board (MSPB) study found that 87 percent of federal employees surveyed claimed telework had a…