Ask The Lawyer

By Debra Roth

Settlements and DSR eligibility

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If you read the recent Merit Systems Protection Board decision reversing the Office of Personnel Management’s denial of discontinued service retirement (DSR) to a Department of Interior employee, and you think you’ve got the green light to use a settlement agreement to create a circumstance by which an employee may become DSR eligible, I say beware of the yellow light. Proceed cautiously, as it appears OPM will be appealing this decision to the U.S. Court of Appeals for the Federal Circuit, and how the court of appeals decides this case is by no means certain.

This case involved an employee removed from his position for unacceptable performance. The employee appealed his removal to MSPB. Interior and the employee entered into a settlement agreement before an initial decision was reached. That settlement agreement provided that the employee would be “converted … to a four- (4) year term appointment … as a biologist (or other agreed upon position) beginning on Jan.12, 2005,” and ending on Jan.12, 2009.

The stated intent of this provision was to provide the employee adequate creditable service under current OPM regulations to receive a discontinued service annuity. At the expiration of the four-year term, the agency extended the employee’s job for one additional year. In February 2010, Interior cited the expiration of the employee’s term and separated the employee from service, who then filed with OPM his application for DSR. OPM denied the employee’s application, concluding that the settlement agreement “was an artifice designed to evade the statutory DSR requirements.” The employee appealed OPM’s decision to the MSPB, which reversed OPM.

At issue in this case are the eligibility requirements for DSR. By statute, an employee is DSR eligible when she or he is “separated from the service involuntarily, except by removal for cause on charges of misconduct” with 25 years of service or after becoming 50 years of age and completing 20 years of service. The employee lacked the years of service when first terminated for unsatisfactory performance. Thus, by settlement, the employee and the agency agreed to provide a term appointment to get the employee to the sufficient number of years of service, which when it ended, created an “involuntary” separation. OPM disagrees, vehemently.

OPM’s chief argument was that it has a statutory obligation to determine whether a separation from service is “involuntary,” as defined by statute, and that the employee’s entire term appointment (five years) should not be counted towards his DSR annuity eligibility because true “term” positions may only last four years. OPM also focused on its long-held view that if the board reversed OPM, “agencies and employees will have an incentive to enter into similar settlement arrangements in the future, thus impermissibly shifting employment and litigation costs to the retirement fund and inequitably rewarding employees whose who performance is alleged to be unacceptable.”

The board did not agree with OPM’s assertion that an employee’s resignation or retirement is deemed voluntary simply when effected pursuant to the terms of a settlement agreement and precludes the employee from re-litigating whether his separation was voluntary.

Prior MSPB case law holds that OPM is conclusively bound by the terms of a settlement agreement to which it was not a party as long as the agreement is not an artifice designed to evade the statutory requirements for an annuity.

OPM may seek review of this decision by the U.S. Court of Appeals for the Federal Circuit. If court of appeals review is obtained, the issue seems to be whether this term appointment, designed to settle an employment dispute, qualifies as an involuntary separation for purposes of DSR eligibility when the term comes to its natural conclusion. I think that’s a close call.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com. View her blog at blogs.federaltimes.com/federal-law.

Q & A Session: Losing an Annuity Due To Marijuana Use

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Q:

Can a CSRS retiree lose his or her annuity if they start using medical marijuana under the supervision of a neurologist in Colorado where medical marijuana is legal?

A:

No, a retired federal employee receiving an annuity cannot lose that annuity because of marijuana use.  You may be worried about the possibility of losing your annuity because although some marijuana use is legal in Colorado, the federal government views your medicinal use of marijuana to be unlawful.  However, there is no real risk to your previously earned annuity.  Use of marijuana is not codified in federal statute as a basis for terminating a federal retiree’s annuity, and even a federal criminal conviction relating to marijuana does not jeopardize a previously earned federal pension.  The list of crimes for which a conviction will result in termination of your annuity is codified at 5 U.S.C § 8312. Those charges almost all relate to criminal disloyalty to the United States: espionage, treason, sabotage, insurrection against the United States, improper sharing or intentional loss of certain highly classified documents, and so on.

However, because use of marijuana remains illegal under federal law, even where states have decriminalized or even legalized marijuana use, current federal employees must be aware that they could be terminated or lose their security clearances (which in turn often leads to termination of employment) for drug use and/or drug related criminal convictions.  As with any other kind of termination of employment, a termination relating to drug use could jeopardize an active employee’s annuity if he or she has not yet served long enough to receive an annuity.

This response is written by Michael S. Causey, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

Q & A Session: ADD Contributing to Tardiness

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Q:

I was recently 57 minutes late to work. I thought I was scheduled at a different time than I was. I got suspended because it was my 3rd write up. The other two were over 6 months ago. My doctor is willing to write a letter and fill out paperwork because I have ADD (Attention Deficit Disorder). I really want to keep this job and I know I messed up. Do you think this is a valid argument?

A:

If you are asking whether you can argue that you should be afforded on hour of leave per the Family Medical Leave Act (“FMLA”) instead of being disciplined and charged with AWOL, I do not think you have much of an argument.  By your own admission in your email, you were one hour late to work because you misremembered your assigned schedule.  It seems like a stretch, if not misleading, to claim that you were late due to a health condition, namely your attention deficit disorder (“ADD”).

Moreover, I do not think FMLA is applicable to your situation.  According to the U.S. Office of Personnel Management, under FMLA “most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:

-the birth of a son or daughter of the employee and the care of such son or daughter;

-the placement of a son or daughter with the employee for adoption or foster care;

-the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or

-a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.

-any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.”

See http://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/family-and-medical-leave/.  Thus, to qualify for leave under FMLA for your own health condition, it must be a serious health condition that makes you unable to perform the essential functions of your position.  It does not appear based upon the information provided in your question that your ADD renders you unable to perform the essential functions of your position.

However, if you and your physician believe that your ADD makes it difficult for you to timely arrive for work with differing or inconsistent start times, you could request a reasonable accommodation per the American Disabilities Act.  Specifically, you could request a reasonable accommodation of a schedule with the same starting time every day.

In the interim, I suggest that you pay closer attention to your schedule and set an alarm or reminder on your phone to ensure that you are not late again, as repeated and continued time tardiness could ultimately result in your removal.

This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

The new rules of enforced leave

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If you’re in an agency that places employees on forced leave, beware: The law has changed, and how the Merit Systems Protection Board will adjudicate an appeal of such actions has dramatically shifted.

A Postal Service supervisor for customer services submitted a request to work on light-duty assignment. The employee’s supervisor denied her request on the grounds that, within the employee’s medical restrictions, there was no work available. The USPS then proposed and issued a final decision effecting the enforced leave action. The employee appealed the decision to the board, but an MSPB administrative judge dismissed the appeal finding that the employee failed to establish that enforced leave for more than 14 days constituted a constructive suspension. The employee filed a petition for full board review, and the board reversed the administrative judge, finding that an enforced suspension was not a constructive suspension, but a directly appealable suspension.

In finding that an agency action forcing an employee to be placed on her paid leave is an adverse action directly appealable to the board, the board has altered the burdens of proof — from the employee onto the agency.

Per the board, an appealable “suspension” is the temporary placement of an employee in a nonpay, nonduty status for more than 14 days. This definition covers not just unpaid absences, but also an agency’s placement of an employee on sick or annual leave against her will. “For jurisdictional purposes,” the board stated, “whether the employee was able to perform her duties is immaterial. Rather, the only question is whether the employee’s placement in a leave status was voluntary or involuntary …” As the board noted, only involuntary placements in leave status are directly appealable.

The board recognized that certain use of leave may also be appealable as “constructive” suspensions, and usually are “employee-initiated absences in which the appellant alleges that: she lacked a meaningful choice, and the absence was caused by the agency’s improper actions.”

In these “constructive” suspensions where the suspension was employee-initiated, the employee must prove by preponderant evidence that the action was involuntary to establish board jurisdiction, and that if the employee cannot prove such, the appeal will be dismissed.

The board then held that as to the USPS employee who was placed on enforced leave, it “is not a case in which an appellant alleges that leave that appears to be voluntary is not. Rather, it concerns the agency’s placing the appellant on enforced leave.” The board noted the conflict between Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1987), which held that placement of an employee on enforced leave due to his medical condition, which prevented him from performing in any available position constituted an appealable suspension of more than 14 days, and subsequent cases like Childers v. Department of the Air Force, 36 M.S.P.R. 486 (1998), which “mischaracterized Pittman” as holding that such a placement constituted a “constructive” suspension.

Due to the confusion from the mischaracterization of Pittman in Childers, the board noted that it has adjudicated appeals involving agency placement of an employee on enforced leave as an alleged “constructive” suspension, rather than adjudicating it properly as a suspension. To clarify, the board ruled that “an agency’s placement of an employee on enforced leave for more than 14 days constitutes an appealable suspension within the board’s jurisdiction.” In so doing, the board overruled its previous case law that used a constructive suspension framework for enforced leave cases.

By handling forced leave appeals as regular suspension cases and not as “constructive,”the board has shifted the burden of proof to the agency to establish the merits of forcing an employee to use his or her leave. A tougher place to be for the agency.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com. View her blog at blogs.federaltimes.com/federal-law.

 

Q & A Session: Refunding Accidental Additional Money from an Agency

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Q:

I received additional money in my paycheck. In my previous positions, it was not uncommon to receive awards without notification, so I assumed the additional money was a performance award. I have since been informed that it was an error and I need to repay the money. Am I responsible for someone else’s mistake?

A:

Yes, you must repay that money, regardless of whether or not you have already spent it.  It is not your money to keep.  You are only entitled to money or benefits from the government which are entitled to you by law.  You are not entitled to money or benefits from the government simply because the government, or someone acting on behalf of the government, erroneously gave it to you.

This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Fighting Non-discrimination Based Unfair Treatment

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Q:

How can you fight unfair treatment when it is not discrimination based?

A:

You could raise the issue with your supervisor. If your supervisor’s actions are what you find to be unfair, your agency’s grievance process may cover a grievance of unfair treatment. You would need to review your agency’s grievance procedures to see if your specific matter is covered.

Also, depending on the unfair treatment, you could file a complaint with the Office of Special Counsel (OSC) if it involves a violation of the Civil Service Reform Act (prohibited personnel practices), the Whistleblower Protection Act, the Hatch Act, or the Uniformed Services Employment & Reemployment Rights Act (USERRA). For instance, OSC reviews prohibited personnel practices, including allegations that an agency official: (1) discriminated against an employee or applicant based on race, color, religion, sex, national origin, age, disability (or handicapping condition), marital status, or political affiliation; (2) requested or considered a recommendation based on political connections or influence; (3) coerced political activity; (4) obstructed anyone from competing for employment; (5) influenced anyone to withdraw from competition in order to improve or injure the employment prospects of any person; (6) gave an unauthorized advantage in order to improve or injure the employment prospects of any person; (7) engaged in nepotism; (8) retaliated against an employee for whistleblowing; (9) took, failed to take, or threatened to take a personnel action because an employee engaged in any of the four protected activity (filed a complaint, grievance or appeal; testified for or helped someone else with one of these activities; cooperated with or disclosed information to the Special Counsel or an Inspector General; or,  refused to obey an order that would require the employee to violate a law); (10) discriminated due to conduct that does not adversely affect job performance (sexual orientation and gender identity discrimination); (11) took or failed to take, recommended, or approved a personnel action if the official knows that doing so would violate a veterans’ preference requirement; (12) took or failed to take a personnel action if doing so would violate a law, rule or regulation implementing or directly concerning the merit system principles; and (13) imposed a nondisclosure agreement that doesn’t allow whistleblowing. Visit osc.gov. for more information on filing a complaint.

This response is written by Maria N. Coleman, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session: Rights When Suspect Favoritism

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Q:

What are my rights if I suspect favoritism in the hiring process?

A:

You could file a complaint with either the agency’s inspector general or the Office of Special Counsel (OSC) if it involves prohibited personnel practices. For instance, OSC investigates prohibited personnel practices, including allegations that an agency official: requested or considered a recommendation based on political connections or influence; obstructed anyone from competing for employment; influenced anyone to withdraw from competition in order to improve or injure the employment prospects of any person; gave an unauthorized advantage in order to improve or injure the employment prospects of any person; engaged in nepotism. Visit osc.gov for more information on filing a complaint.

This response is written by Maria N. Coleman, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session : Factors Considered for Proposed Disciplinary Action

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Q:

I am a federal supervisor, who recently proposed a disciplinary action for an employee. My supervisor is the deciding official.

Is the deciding official required to complete their own separate analysis?

A:

The Federal regulations outlining the procedures for taking disciplinary actions (defined as suspensions of 14 calendar days or less) and/or adverse actions (defined as suspensions of greater than 14 calendar days, removals, or reduction in pay or grade) against a Federal employee require that an agency, in arriving at its decision, “will consider only the reasons specified in the notice of the proposed action and any answer of the employee, or his or her designated representative, or both, made to a designated official.”  See 5 C.F.R. §§ 752.203(e) and 752.404(g).  Thus, when determining whether to sustain a proposed disciplinary action or adverse action, a deciding official must consider both what is asserted in the notice by the proposing official and what is asserted in response to the proposal by the employee.

Contrarily, a deciding official may not consider any information that was not previously made available to the employee in the notice of proposed action, or provided by the employee in response to the proposal. Indeed, when a deciding official considers new and material information that was not made available to the employee when sustaining a proposed disciplinary or proposed adverse action, the resulting disciplinary action or adverse action must be set aside for lack of due process.  See Stone v. FDIC, 179 F.3d 168 (Fed. Cir. 1999).

However, this does not mean that a deciding official is precluded from obtaining and considering new, material information after an employee responds to a proposed action.  Rather, it merely requires that when a deciding official obtains new, material information after an employee responds to a proposed action that the deciding official is relying upon to make the decision, the employee must be afforded notice of and the opportunity to respond to that information.

This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Q & A Session : On Reasonable Accommodation

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Q:

I have a couple questions about reasonable accommodation. Can an agency create a position to accommodate? Also, can an agency accommodate by reassigning an employee to a detail (a position that does not exist)? From the research I have done it states that reassigning an employee must be to a “vacant funded position.”

A:

Your research is accurate. Agencies are given significant flexibility in providing reasonable accommodations to their employees. It is within an agency’s discretion whether to create a position for which to reassign an employee or to place an employee on detail (essentially a temporary reassignment to a new position), if such reassignment would reasonably accommodate the employee’s medical needs. But, an agency is not obligated to exercise that discretion. An agency is only obligated to reassign an employee if there is a vacant, funded position available, and if reassignment to that position will reasonably accommodate the employee’s medication needs.

This response is written by James P. Garay Heelan, associate attorney of Shaw Bransford & Roth P.C., a federal employment law firm.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

Speaking Publicly, Take Two

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A few months ago, I wrote on the topic of how most federal employees who are disciplined for publicly speaking out are found not to have a First Amendment protection on their speech. I also noted that a case was pending before the U.S. Supreme Court that might be a game changer. I’m back to report on the result.

First, a refresher on the state of the law as it stood before the Supreme Court ruled last month.

Thirty years ago, the Supreme Court recognized that public employees, like all citizens, enjoy a constitutionally protected interest in freedom of speech. However, according to the Court, public employee free speech rights must be balanced against the need of government agencies to exercise “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”

In sum, speech by a federal employee (in a blog, on your Twitter account, on your Facebook page, in an op-ed), is protected by the First Amendment, and thus cannot be the subject of discipline, if you were speaking as a private citizen (not in your official capacity) and on a matter of public concern. When you speak out with the indicia of your official capacity on a matter of public concern, your speech can be regulated by your federal employer, including discipline. The rationale is found in the Supreme Court case, Garcetti v. Ceballos, 547 U.S. 410 (2006).

Lane v. Franks, the case just decided by the Supreme Court, was thought to be about whether some official capacity speech is protected. A Central Alabama Community College employee who became the director of Community Intensive Training for Youth, a program for at-risk youth, discovered that an Alabama state representative was on the program’s payroll, despite never having provided any work or services. When the employee notified the CACC president about his concerns, the president and CACC’s attorney warned him that ending the state representative’s “employment” would not be wise for either CACC or for the employee.

The employee ignored this warning and terminated the Alabama state representative when she refused to report to work. The employee, while still employed, was later subpoenaed for his testimony in two federal criminal trials for mail fraud and fraud involving a program receiving public funds. The employee testified that the state representative had not reported to work, had not submitted time sheets, and had refused to report to work. Subsequently, the CACC president fired the employee who terminated the state representative.

The employee then filed suit in federal district court, claiming that his firing was retaliation for his testimony, which was protected by the First Amendment. The court of appeals ruled for the employer, finding that an employee does not enjoy First Amendment protection when the speech was made pursuant to his official duties.

Surprisingly, the Supreme Court held that truthful testimony under oath by the public employee was made outside the scope of his ordinary job duties and thus was speech as a private citizen for First Amendment purposes. The Court cited the Garcetti case (“Exposing governmental inefficiency and misconduct is a matter of considerable significance”) to support its holding that the testimony was a matter of “significant” public concern. Finally, the court considered “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”

In a 1983 decision, the Supreme Court recognized that government employers often have legitimate interests in promoting efficiency and integrity in the discharge of employees’ official duties and maintaining discipline in the public service. However, the court stated that here the public employer had not, and could not, assert any government interest that tips the balance in its favor. The employee’s testimony was not false or erroneous, and he had not disclosed any sensitive, confidential or privileged information in his testimony. The court concluded that the employee’s speech was entitled to First Amendment protection, marking it a good day for public employees.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com. View her blog at blogs.federaltimes.com/federal-law.