Ask The Lawyer

By Debra Roth

Q & A Session – Appealing to MSPB after Discontinued Service Retirement

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I received a notice of proposed removal for poor performance after a PIP, however, I was informed that I meet basic eligibility for discontinued service retirement. If I elect to retire under discontinued service, do I give up my right to file an appeal with MSPB?

A:

An employee who is separated for poor performance after a PIP under the procedures on chapter 43 of Title 5 is entitled to an appeal at the MSPB. Such an employee who is also over 50 years old and who has 20 years of service or who is any age with 25 years of service is also eligible for discontinued service retirement. The retirement does not waive the appeal rights.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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.

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Q & A Session – Termination for Filing a Complaint

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I filed a discrimination complaint and am in the discovery process. Can I be fired for filing an EEOC complaint?

A:

It is illegal retaliation to fire someone solely because he or she has filed a discrimination complaint. The burden of proof is on the person claiming discrimination. In other words, you must be able to overcome or disprove the legitimate reason an agency will undoubtedly provide for a removal action.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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.

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Q & A Session – Court Order Allocating Retirement Benefit

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a CSRS employee and looking to retire next year. I am divorced and wanted to know how to find out if I have any court judgments filed against my federal retirement?

A:

A court order can allocate a retirement benefit from the Civil Service Retirement System (CSRS) or Federal Employees Retirement System (FERS) as a result of a divorce.  The court order must expressly direct the U. S. Office of Personnel Management (OPM) to pay a portion of the monthly CSRS or FERS benefits.

The OPM regulations covering garnishments can be found in Title 5 of the Code of Federal Regulations, Parts 581 and 582.

Inquiries about court order/garnishment of annuity for alimony or child support, apportionment of annuity awarded by a court, and court ordered survivor benefits should be made to OPM in writing at:

Office of Personnel Management
Court Order/Garnishment-Retirement
P.O. Box 17
Washington, DC 20044

Include your retirement claim number (if known), full name, date of birth and social security number.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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.

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Q & A Session – Compensatory Time Off

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Is an employee entitled to compensatory time for hours worked above the normal tour of duty of eight hours after arriving at a TDY site?

A:

An employee on a TDY is only entitled to compensatory time off “for time in a travel status away from the employee’s official duty station when the travel time is not otherwise compensable.”  5 C.F.R. § 55.1401 (emphasis added); see 5 C.F.R. § 550.1403 (“Compensable refers to periods of time that are credible as hours of work for the purpose of determining a specific pay entitlement, even when that work time may not actually generate additional compensation because of applicable pay limitations”).  Thus, if you are working more hours than regular tour of duty, as your question suggests, you will be entitled to compensatory time off for your travel to/from your work station.  Additionally, you will also be entitled to compensatory time off for any time beyond your normal 8-hour tour of duty spent working at the temporary duty station.  See 5 U.S.C. § 5542 and 5 C.F.R. § 550.113 (FLSA-exempt employees); 29 U.S.C. § 207(e)(7) and 5 C.F.R. § 551.531 (FLSA-nonexempt employees).

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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.

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Weigh Douglas Factors in disciplinary cases

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Managers dealing with problem employees and employees facing potential disciplinary actions should be aware of the Douglas Factors, 12 standards developed by the Merit Systems Protection Board to decide the appropriateness of a penalty for misconduct or other actions that are taken because of the “efficiency of the service.”

Most managers who have proposed or decided an adverse action have been briefed on the Douglas Factors. Others may not be aware of the Douglas Factors, but should be so they can more effectively determine how to use such managerial tools as progressive discipline.

The Douglas Factors get their name from a 1981 MSPB decision holding that the MSPB would review an agency’s penalty selection by applying factors that since have become known by the last name of the appellant, whose removal was upheld after the factors were applied. The factors are:

1. Nature and seriousness of the offense.

2. Employee’s job level and type of employment.

3. Employee’s past disciplinary record.

4. Employee’s past work record.

5. Effect of the offense on the employee’s ability to perform at a satisfactory level.

6. Consistency of the penalty with penalties imposed on others.

7. Consistency of the penalty with any table of penalties an agency may have developed to prescribe a range of penalties for certain offenses.

8. Notoriety of the offense.

9. Clarity of notice or prior warnings.

10. Employee’s potential for rehabilitation.

11. Mitigating circumstances surrounding the offense.

12. Adequacy and effectiveness of alternative sanctions.

Anyone dealing with an adverse action should review the entire text of the Douglas Factors and not rely on this summary. For example, Douglas Factor No. 1 includes additional considerations, such as whether the offense was repeated, intentional or for personal gain. The presence of any of these circumstances would enhance the seriousness of the offense, whereas a one-time unintentional offense might cry out for leniency.

Employees who are in trouble should know that if their misconduct is reported in the newspapers or on the nightly news, Douglas Factor No. 8 might cause a relatively minor offense to receive consideration for a more serious penalty because of embarrassment to the agency.

MSPB’s standard for reviewing a penalty is to determine if the agency considered all relevant factors and exercised management discretion within tolerable limits of reasonableness. The board will reduce or mitigate a penalty only where it finds the agency failed to weigh the relevant factors or when the penalty clearly exceeds the bounds of reasonableness.

In deciding an adverse action, a manager should consider all applicable Douglas Factors and discuss that consideration in the decision letter. As long as the deciding official articulates the weighing and balancing of the Douglas Factors, the MSPB judge will not do his or her own evaluation of the Douglas Factors.

A careful Douglas Factor analysis just leaves the question of whether the penalty is within the tolerable limits of reasonableness. For example, a deciding official who fires a 15-year employee with no prior record and outstanding performance ratings for being 15 minutes tardy one morning will probably have that penalty mitigated no matter how thoroughly the Douglas Factor analysis has been crafted by the deciding official.

Conversely, employees who have been found to intentionally lie, cheat or steal in connection with their federal job might, in some agencies, be given a second chance. But most often, a removal for such an offense would be upheld by MSPB because of its seriousness. MSPB will not ordinarily second-guess the deciding official’s judgment on penalty selection or decide what the best penalty is in a particular case. An agency choice of penalty is only modified when it is unreasonably severe.

Employees who have an adverse action have a right to respond before an agency decision is final. In responding, the employee should offer all favorable evidence on the Douglas Factors. Particularly helpful is evidence that the employee was under some personal stress or had a health condition that contributed to the offense. The deciding official should then consider and evaluate the employee’s Douglas Factor evidence in making a final decision on the penalty.

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Q & A Session – Failure to Follow Instructions

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

What constitutes a “failure to follow instructions?” If someone missed a marking on a container, could that be a “failure to follow instructions?”

A:

It depends on whether noting the marking on a container was a part of the instructions. In the federal civil service, a charge such as “failure to follow instructions” may be proved by evidence of what the instructions stated along with evidence that the employee failed to do what was required. It requires no proof of intent. A more serious charge, such as insubordination, does require proof that the employee willfully failed to follow orders.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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.

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Q & A Session – Family Separation Allowance Entitlement

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a civilian employee and am required to attend mandatory training for three months at a location far away from my home. My meals, lodging and travel expenses are covered. Am I entitled to Family Separation Allowance or any other compensation for TDY?

A:

No.  Family Separation Allowance is not available for civilian employees; rather, Family Separation Allowance is only payable to active-duty service members with dependents away from their permanent duty station for more than 30 consecutive days.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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.

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Q & A Session – Qualifying for a Per Diem Rate

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

How can a federal employee qualify for a per diem?

A:

For a federal employee to qualify for a per diem, he/she must be on official travel away from their official duty station.  The “official duty station” means the geographic area surrounding an employee’s regular work site that is the same as the area designated by the employing agency for the purpose of determining whether travel time is compensable for the purpose of determining overtime pay.”  5 C.F.R. § 550.1403.  When designating the geographic area surrounding an employee’s regular work site that shall constitute an employee’s the “official duty station,” the agency “may prescribe a mileage radius of not greater than 50 miles to determine whether an employee’s travel is within or outside the limits of the employee’s official duty station for determining entitlement to overtime pay for travel.”  5 C.F.R. § 550.112(j).  As such, the Agency is authorized to determine, in its discretion, the geographic region that shall consist of an employee’s official duty station, so long as that geographic region does not exceed a 50 mile radius of the location of the employee’s permanent duty station.  Therefore, you need to inquire with your agency to learn the geographical region that constitutes your “official duty station,” and you will then be able to determine whether your official travel qualifies you for a per diem.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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.

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