Ask The Lawyer

By Debra Roth

Q & A Session – Hostile Workplace Incident

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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 an African American female who works for a government agency. Approximately two weeks ago, two white individuals hung a banana from the ceiling over another African American’s desk. I have been extremely upset and stressed since the incident. I have filed an EEO complaint and so has the other victim of this incident.

Our Section Chief, who is white, has told one of the white individuals that “everything will be okay, they shouldn’t worry.”

I cannot understand why the two white individuals are allowed to continue to work in the area where the incident occurred while the matter is being investigated. It is extremely hard on me and the other African Americans. Shouldn’t they either be reassigned to another work area (the option exists) or suspended pending the outcome of the investigation?

A:

Your claim should be investigated by the EEO office and human resources as a hostile work complaint. I am aware of similar situations where disciplinary action has resulted, but every case (and agency) is different).

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.

Q & A Session – Eligibility for DSR after Failing a PIP

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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 Department of Defense employee with almost 30 years of federal service stationed overseas with return rights to my stateside position.

Despite outstanding ratings at my stateside position, and a fully acceptable rating in my first year overseas, the new supervisor has decided that I am a failure, has put me on a soon-to-end PIP and is likely to find unsatisfactory performance. Her boss, the deciding official, will likely confirm, and I face separation.

The CSRS handbook makes it clear that involuntary separation for poor performance makes me eligible for Discontinued Service Retirement (DSR). The Army Benefits Center says they need a Form 1510 issued by my agency to process the DSR, while my current agency is implying that they are not obligated to issue Form 1510. Is this correct? Isn’t the 1510 simply a statement of fact by the agency that they have not offered me an alternate position and MUST be issued?

Also, my preference is not to retire but to exercise my Return Rights to my stateside job/agency. However, to do so, I need to submit a curtailment request to my current agency. Can they deny such a request and issue a Notice of Separation instead (assuming the PIP outcome is negative)?

A:

If you are separated for poor performance after failing a PIP, you are eligible for Discontinued Service Retirement if you meet the age and service requirements. Your agency can propose your separation if it decides your performance is unsatisfactory after a PIP.

You do have MSPB appeal rights, but the agency has a fairly low burden of proof in performance cases. If you choose to request return rights, your agency may view that as an acceptable way out 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.

Q & A Session – Error on SF-50 that Agency Refuses to Correct

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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 100% service-connected disabled veteran. For the past 11 years, I have worked as a civilian in the Air Force.

I found an opening in the Department of Transportation that I was interested in applying for. While reading over the announcement, I saw that it said, “please ensure you submit all documents including your most recent SF-50 as we use that for verification of federal employment and veterans status.” Consequently, I immediately checked my latest SF-50 and found that Block 23 noted I was a disabled veteran less than 30% disabled.

I began calling personnel at my base and finally got in touch with a personnel specialist with my command. She told me that the Air Force would not allow updates to Block 23 for appointment purposes. This is not the first mistake the Air Force has made in my record.

If I do not receive any consideration as a status candidate yet again when I submit my application to the DOT, do you think I will have grounds for filing a claim?

Do you think this refusal to correct the SF-50 is a legitimate policy? I have not found any authority supporting their claim that they will not make a correction.

A:

I cannot comment on the merits of your specific claim. If you do file a claim for denial of a promotion, you should use the EEO system and you may be able to make out a case of perceived disability discrimination or discrimination based on your gender or some other protected category. If your records are inaccurate, you have a right under the Privacy Act (5 U.S.C. §552(a)) to have them corrected.

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.

Q & A Session – EEO Hearing v. Civil Action

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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 have been told by friends who are EEO counselors that most EEO cases settle before a hearing. Do you have a sense of how EEO cases fare when a civil action is filed? Are most settled? Are the settlement amounts higher? When the agency doesn’t settle, do they usually win? Why would a complainant choose to file a civil action over an EEO hearing?

A:

Most EEO cases settle. Whether the amounts in settlement are higher than litigation cannot be determined. Sometimes, in a settlement, a complainant can get something the judge is powerless to award in exchange for compromising elsewhere. Someone might choose a civil action in federal court versus an EEO hearing at the EEOC to have the case heard by a jury. But federal court is demanding and complicated, and it is difficult to succeed there without a lawyer. The same might be said of an EEOC hearing, but the procedures are somewhat less complicated.

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.

Q & A Session – Temporary Team Leader Position

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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 who is a SK-13 (non-supervisory) is put on a detail as a team leader SK-14 position (non-supervisory), is that employee entitled to a 6% pay increase during the detail period?

A:

No.

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.

Q & A Session – Maximum Timeframe for Lateral Reassignment

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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 have ten years of service with the federal government. Five months ago, I accepted a position in another division, which was a lateral reassignment. Management has not provided me with an effective date for the reassignment. Is there federal law on the maximum time an agency has to effectuate a lateral reassignment?

A:

Sometimes agencies are slow processing SF-50s. Follow up with your personnel office. There are best practices, but no legal Statute of Limitations.

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.

Q & A Session – Statute of Limitations for Reported Government Deficiencies

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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 federal employee with more than 35 years of service. From 2000 to 2004, I was a program manager for an agency. During that time, I discovered many past questionable activities within the program before my time there.

In 2005, I submitted a report of my findings of the many alleged program deficiencies to my supervisors and requested program audit/review for this agency’s program. The deficiencies were for negligence, violations of federal statutes, sexual discrimination, program mismanagement, etc. I emphasized concerns for taxpayers. Upper management refused to take action and failed to acknowledge my request.

Is the Statute of Limitations applicable for the federal government’s refusal to take action in this situation? Many of these violations occurred decades ago. What is the Statute of Limitations, if any, for the government’s refusal to take action on its reported negligence?

A:

It seems to me that you have done about as much as you can. Keep a record of your disclosures, so that no one blames you. You might also consider making the disclosures to your IG or the Office of Special Counsel disclosure unit. If you experience reprisal, you can file a reprisal complaint at the Office of Special Counsel (www.osc.gov).

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.

Q & A Session – Retirement and the Buyout

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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 have 35 years of service with the U.S. Postal Service. I am under CSRS, 63 years old, and looking to retire soon. If I submit my paperwork now and then a buyout is offered before my retirement date, will I be able to take advantage of the buyout, or should I wait until the buyout is offered before I submit my paperwork?

A:

You should wait until the buyout is offered. If you announce early, your agency can simply deny the buyout.

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.

With election near, know Hatch Act limits

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As the November elections approach, federal employees need to be reminded about the Hatch Act, which imposes significant restrictions on their allowable political activity.

These restrictions are important because the intent is to protect federal employees from undue political influence and to assure the public that career civil servants are not motivated by political concerns as they carry out their day-to-day responsibilities.

Enforcement of the Hatch Act falls to the Office of Special Counsel (OSC) through cases it prosecutes at the Merit Systems Protection Board (MSPB). Pay attention to Hatch Act training and rules because a violation of the Hatch Act carries a mandatory removal from public service unless the members of the MSPB unanimously agree that a lesser penalty is appropriate.

Hatch Act restrictions differ depending on the type of position you hold or the agency where you work. We do not have room here to go through all the ways an employee can get in trouble with the Hatch Act. The “frequently asked questions” page on the OSC website — www.osc.gov — explains restrictions, such as whether you can put a political bumper sticker on your car or wear a candidate’s T-shirt to work.

The focus here is on emails, the downfall of many federal employees, whether or not the Hatch Act is at issue. Emails provide a permanent record. Emails generated on a work computer have no expectation of privacy. And OSC will find them if it decides to investigate you.

If you are a supervisor, manager or executive or can be viewed as being in a position of authority, do not use your office email to express your political opinion. Especially, do not use email to express that opinion to subordinates or to others in the office who would consider you to be in a position of authority.

In fact, if you are a supervisor, do not even use your home email to communicate with a subordinate about your views of a partisan candidate. Supervisors, managers and executives should leave their politics at the door when they come to work or engage in work-related activities outside the office.

Sometimes you’ll get an unsolicited email at work that has political comment or information advocating a particular candidate or denigrating his opponent. OSC states that you may forward the email to your nongovernmental email address. However, you may not forward it to anyone else on a government computer. Also, you may not log in to your home email on your government computer and forward the email to others. The basic rule is no political activity on government time with the use of government computers.

If you forward a particularly interesting political email to your home email address, thinking that you will send it to others using your personal computer when you are at home, remember not to include subordinates — even if they are lifelong personal friends and you know their politics — when forwarding the email. Considering some of the cartoons, animated videos and jokes about the campaign that make the email circuit closer to the election, this can be hard to do. Just remember the serious and severe consequences of Hatch Act violations as you engage in political activities.

One specific: Do not forward an email regarding a fundraiser to a subordinate. The supervisor should not invite the subordinate to a fundraiser under any circumstances. Doing it by email just provides clear-cut evidence for the Hatch Act violation prosecution.

If in doubt about any aspect of the Hatch Act, call OSC before you act and you will receive a written opinion that is binding. Just remember to tell them everything you plan to do.

Nothing in the Hatch Act prohibits you from voting or from having a political opinion. Just be careful how you express your political views at work and on your government computer.

Q & A Session – Penalties for Misuse of a Government Credit Card

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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 have been the penalties imposed by government agencies for a first offense of misuse of government credit card (i.e. cash withdrawals while not in TDY status)? Have imposed penalties been consistent across Department of Defense agencies?

A:

Federal agencies, including all Department of Defense components, have similar disciplinary policies for misuse of government charge cards, which frequently fall under umbrella policies regarding unauthorized use of government property. Across the federal government, each case of misuse is viewed in light of its particular circumstances in deciding a penalty. Agencies will consider whether a misuse was intentional, however, intent is not required to substantiate a violation.

In reviewing decisions from the Merit Systems Protection Board, it is very clear that misuse of government charge cards is taken very seriously. In 2000, the Department of the Navy instituted a 3-day suspension for a first offense. In a frequently cited case from 2004, the Department of Veterans Affairs instituted a 30-day suspension for a supervisor with 17 years of federal service and an unrelated prior 14-day suspension who inadvertently used his government charge card for a personal expense and paid off the charge with no financial loss to the agency. And, in 2010, when the U.S. Postal Service wanted to demote an employee for using his government charge card for personal expenses, the Merit Systems Protection Board mitigated the penalty to a 60-day suspension because it was the employee’s first offense in his eight years of federal service, he timely paid the bill and had no outstanding balance, and the employee had never been instructed on the acceptable use of government charge cards.

Within Department of Defense components, contingent upon the particular circumstances of the violation, a first offense for misuse of a government charge card can range from a written reprimand to removal. Because circumstances vary, as demonstrated above, it is difficult to determine from readily available public records whether DoD components impose consistent penalties for first offenses involving misuse of government charge cards.

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.