Ask The Lawyer

By Debra Roth

Q & A Session – Denying FMLA without Medical Documentation

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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:

If an employee requests FMLA and has enough paid time off, but will not tell his or her supervisor the medical reason, can the supervisor deny FMLA?

A:

Yes. OPM regulations permit agencies to request medical evidence to support an FMLA absence that is based on the employee’s serious health condition. Please read my previous Ask the Lawyer column regarding FMLA at http://blogs.federaltimes.com/federal-law/2010/07/25/must-i-grant-this-fmla-request/ for more information.

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 – Higher Grade for Supervisor

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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:

Are there any rules or regulations that stipulate that a supervisor’s grade be higher than the people he or she supervises?

A:

No, although a general practice is to have supervisors be at least at the same if not at a higher grade level.

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 – Promotion While Under an EEO Investigation

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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:

Can a person be promoted while under an EEO investigation? I was under the impression that an individual named in a formal complaint cannot be promoted until the final decision is released.

A:

There is a presumption of innocence that applies in law and has become a part of our general culture. Just because an EEO complaint has been filed, that does not mean  discrimination has occurred. Also, in any given year only about 3 percent of filed EEO complaints result in a finding of discrimination. This is another good reason why there should not be a rule banning promotions of the accused of discrimination just because an EEO complaint has been field. On the other hand, an agency has discretion to look behind the allegations in an EEO complaint and to bring appropriate disciplinary or performance action against an offending supervisor.

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 – Discontinued Service Retirement in a Settlement Agreement

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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 over 50 years old and have over 28 years of federal service. I filed an age discrimination complaint and a second complaint due to a hostile work environment. I settled with the agency and among the terms, I was to present paperwork to end my career within two days of signing the agreement and the separation would be via CSRS Discontinued Service Retirement. After signing the agreement, the agency informed me that OPM may not accept the paperwork for the discontinued service retirement and management does not want me to return to work. Now the agency is presenting a new settlement agreement with different terms. Can the agency not process the retirement if it was included in an EEO settlement? Can the agreement be rescinded by the agency if it was signed?

A:

Without specifically reviewing the settlement agreement and the strength of any underlying evidence against you, I cannot comment on the validity of what has happened. I do know that your agency does not offer discontinued service retirement. That comes from OPM. Usually, OPM will not grant a discontinued service retirement if a separation is pursuant to a settlement agreement. These are all complex issues and you should consult with an attorney so that you can decide what is best for you.

 

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 – Repayment of Funds Received in Error

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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:

A few years ago OPM erroneously disbursed a refund to me for retirement contributions in the 1980s when I transferred from CSRS to FERS. After an audit, I set up a payment plan via withholding from my FERS retirement annuity. From the forms I received, it appears almost 75 percent of the payback funds are repaying interest from the “taxable amount” portion of my annuity. I believe that the interest portion should not be subject to income taxes and should not be included in the “taxable amount” box on the form. Is this accurate? Can you return untaxed funds with untaxed money?

A:

I do not know how or why you did not pay tax on the interest. Based on my understanding of the Internal Revenue Code, you should have. I recommend that you consult a tax professional for the more specific answer you are seeking. If you choose not to consult an attorney, be careful of what you tell the IRS. You could end up with a big penalty and interest payments for not earlier paying tax on the interest.

 

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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Be calm, have perspective concerning EEO complaint

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No manager wants to receive a phone call from an equal employment opportunity counselor.

The call means a subordinate has accused the manager of illegal discrimination, a serious allegation that could, if proved, result in disciplinary action.

Most managers will respond to news that the EEO process has started against them with a strong sense of indignation, outrage, denial, or perhaps all of these. These reactions are normal, but acting on them is the wrong thing to do. Whatever you say, except to your lawyer, can and might be repeated and used against you. A comment such as, “That ingrate, after all I’ve done for him, how could he do this to me?” could later come out in testimony at an Equal Employment Opportunity Commission or Merit Systems Protections Board hearing and could be considered evidence to support a retaliatory motive.

Some perspective is in order. According to EEOC’s annual reports from the last several years, the 20,000 or so complaints result in only about 600 findings of discrimination. That’s about 3 percent. Another 20 percent are settled.

While this data indicates that the government needs an EEO system for its employees, it also means the manager’s odds are pretty good at surviving the EEO process.

Another factor to consider is the motivation of a large number of EEO complainants. An honest EEO professional will acknowledge that many EEO complaints are filed without evidence or a belief that illegal discrimination has occurred. The complaints are filed in the EEO system because the employee is concerned his grievance will not be heard anywhere else.

A real danger for the manager is the lengthy and sometimes mysteriously silent EEO process as is it winds its way from counseling to mediation to investigation to discovery and deposition and then finally to a hearing and a decision.

During this time, the subordinate’s EEO complaint is hanging over the manager’s head, creating negative vibes directed at the manager. The longer it goes on, the worse it can be.

With this perspective, what should a manager do? After a period of calm reflection to overcome those initial negative reflexes, think about three activities to at least survive, and usually thrive, in response to a subordinate’s complaint:

Prepare. When the counselor calls, find out as much as you can about the complaint. Then gather your thoughts and evidence. Think who can support your justified rationale for how the employee was treated. Coordinate with employee relations or any other office that may provide knowledge or support for your side.

Tell your higher-ups about the informal EEO complaint. Higher management does not like surprises and would rather hear about the complaint from you than from another source. Think strategically and carefully about what you tell the EEO counselor, but most important, do not lie, exaggerate, obfuscate or withhold information.

Document. If you do not already have documentation related to the complaint, the call from the counselor should make documentation a priority. Any form of documentation will do. Think about the simple task of writing yourself an e-mail recording the relevant facts. The relatively short, 45-day limit for the initiation of the EEO process is an opportunity for the manager. It is also important to document fully any meeting or phone conversation with the counselor.

Listen. Try to figure out what is bothering the employee. Assess your vulnerability. You may want to settle early. Listening to your unhappy employee can also help you prepare and document. And it may go a long way toward producing a better workplace.

The call from the EEO counselor is not the end of the world. It is a bump in the road. Slowing down to assess and navigate that bump is the best response.

Q & A Session – Findings from an Informal EEO Investigation

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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 an EEO complaint against my supervisor. An informal investigation was completed after 6 months and the agency did not give me access to its findings, after I expected to receive this. A formal investigation followed. However, I was moved from my workplace to a separate location for allegations made against me by my supervisor. Can I obtain the findings from my informal investigation? Can I sue other federal employees for defamation of character?

A:

Generally speaking, your rights are defined by and are limited to the EEO process. A separate civil action about the EEO process and a defamation or claim against your coworkers are most likely to be thrown out of court for lack of jurisdiction. Popular culture notwithstanding, the reality is that federal employees cannot sue for every perceived injustice and are limited in their recourse to narrowly defined 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 – Loss of Security Clearance During Renewal

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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:

Does someone qualify for discontinued service retirement under FERS if they lose their security clearance and have over 20 years of experience, and are over 50 years old under FERS?

A:

Yes. A loss of a security clearance alone, that is unaccompanied by job-related misconduct, can be a basis for discontinued service retirement if the loss of a security clearance also results in the loss of a federal job.

 

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 – Mandatory Retirement and Survivor Benefits

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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 two years from mandatory retirement and have been going through a divorce for over six years. Survivor benefits have not been discussed. However, what happens if the divorce is not finalized in two years and my ex refuses to waive survivor benefits?

A:

If you do nothing, I think she gets survivor benefits and a portion of your annuity. You need to talk to an attorney and make sure that your lawyer is aware of OPM’s rules of annuities, survivor annuities and divorce decrees found at 5 CFR Parts 831 through 847.

 

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 – Early Retirement and Security Clearance Renewal

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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 55 years old and have worked in the government under FERS for 25 years. I would like to end my government service. My security clearance is due and if I don’t submit it, would I be fired voluntarily or involuntarily. How would this affect my retirement?

A:

No. You would most likely be fired for failing to meet an expectation of your job, i.e., filing the update forms for your clearance. That is a very different posture than being fired for loss of a clearance, which could, in the absence of accompanying misconduct, justify an early retirement under discontinued service retirement rules.

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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