Ask The Lawyer

By Debra Roth

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.

Q & A Session : Becoming a Supervisor via Position Rewrite

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Q:

Can a non-supervisory employee, who is not a member of the bargaining unit, become a permanent supervisor via a position description rewrite?  Is there any recourse to such a change?

A:

Yes, your employing Agency is generally free to assign you duties, including supervisory duties, in a fashion which best fits the Government’s needs.  You probably have very minimal recourse to contest such a change.  Although your employing Agency might allow you to file a grievance regarding a change to your position description or supervisory status, if management has already decided to move to a supervisory position, you may not be successful in any such grievance.  Before filing any grievance, you should review your Agency grievance procedures to determine if the matter may be grieved, and as a practical matter, you should also consider whether resisting a change in supervisory status might cause your managers to view you as someone who avoids greater responsibility.

This response is written by Michael S. Causey, 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.

MSPB works through furlough appeals

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It’s been about one year from the furloughs of 2013, and the Merit Systems Protection Board is making progress processing the approximate 32,400 appeals it received. That’s right, 32,400 employee appeals challenging their furloughs. That number is jaw-dropping when you consider that the MSPB has been averaging about 8,500 appeals annually before furloughs. With a furlough docket of that size, it is worth acknowledging a furlough decision. In sum, no surprises.

This board decision, Dye v. Department of the Army, involved a U.S. Army Corps of Engineers (USACE) employee who was furloughed for six days from his cConstruction cControl position. He appealed to the MSPB, arguing that the agency should have excepted him from the furlough because the agency’s policy during the furlough was to exempt personnel whose labor costs were completely paid from Civil Works or Intelligence Community funding sources. The MSPB administrative judge consolidated the employee’s appeal with a number of other appeals, and based on the written record the administrative judge affirmed the furlough action, holding that the agency had demonstrated that the furlough promoted the efficiency of the service by showing that it was a reasonable management solution to the financial restrictions placed on it and had been applied in a fair and even manner.

The employee petitioned the full board for review of the administrative judge’s decision, separate from the rest of the consolidated appellants, and on May 23, 2014, the board vacated the administrative judge’s initial decision.

The board cited five U.S.C. sections 7512(5) and 7513(a) for the rule that an agency may furlough an employee for 30 days or less “only for such cause as will promote the efficiency of the service.” The board articulated that this standard is met when an agency can show that the furlough “was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a fair and even manner.” However, the board pointed out that before it can reach the issue of whether an action “promotes the efficiency of the service,” an agency must first establish that there is “cause.” The board cited the definition of “cause” under 5 U.S.C. § 7513(a) as generally connoting some specific act or omission on the part of the employee that warrants disciplinary action. Because furloughs are taken for nondisciplinary reasons, the board held that the definition of “cause” in furlough actions must be defined differently, in this case, as encompassing “whether the appellant met the criteria established by the agency for being subject to, and not excepted from, the furlough.”

On appeal, the employee did not contest the validity of the furlough in general. Rather, he asserted that he should have been excepted from the furlough because he met the criteria. Specifically, he asserted that although his Unit Identification Code found in his Standard Form 50 (SF-50) was a Military Functions code, from April 2008 to October 2012, he worked entirely on a Washington Aqueduct project that was a Civil Works project, and funded completely with non-Department of Defense funds. He also asserted that the labor costs of his current project had been funded completely by National Intelligence Program funds. The employee also provided decision notices indicating that the agency had rescinded the proposed furloughs of five other employees after it was determined that their labor costs of those employees who also were funded solely with National Intelligence Program resources.

The board pointed to evidence that one of the categorical exceptions to the furlough of DoD employees was any employee not paid by accounts in the DoD-Military budget. This exception, noted the board, derived in part from a USACE request to the Department of the Army headquarters, that all USACE Civil Works employees be excepted from the furloughs due to a more sufficient level of Civil Works funding outside of DoD-military appropriations.

Because the administrative judge did not address the employee’s argument that the furlough was improper because of the source of the funding of his work, the board addressed the issue on appeal. In so doing, the board found that the record was unclear as to whether the agency determined that the employee met the criteria established by the agency to be excepted from the furlough, and thus it was unclear whether the agency had demonstrated “cause.”

And for that reason, the board vacated the initial decision and remanded the appeal to the administrative judge to allow for the presentation of evidence and argument on whether the employee met the criteria established by the agency to be excepted from the furlough.

That’s a lot of litigating for an employee contesting six days of furlough pay, and a lot work by the MSPB. However, what’s most notable is the ability of the board to deal so diligently with a caseload quadruple its norm and the consistent application of legal precedent governing furloughs.We’ll continue to watch the board process its furlough docket and let you know of any surprises. None as of yet.

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: Being Overlooked for a Pay Raise/ Promotion

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Q:

I feel I’m being overlooked for a pay raise/promotion. What are my rights?

A:

A Federal employee does not have a right or guarantee of being promoted.  Likewise, management has the right to assign work, which includes the right to select employees for promotion and to fill vacancies.  In doing so, management must comply with the Federal merit system principals, and management may not act with the intent to not hire or promote an individual because of his or her race, sex, age, religion, national origin, disability, participation in the EEO process, and/or whistleblowing activity.

In the situation you describe, it appears management acted within its rights in determining the promotion criteria.  It may seem unfair to you that management is changing the criteria for promotion to your detriment, but so long as management is in compliance with the Federal merit system principals, and not acting with discriminatory or retaliatory intent, management is within its right to establish and/or change promotion criteria.

However, it would be improper for management to change the promotion criteria if management is acting solely for the purposes of either (1) giving an employee an unfair advantage in the promotion/hiring process in violation of merit system principals, or (2) preventing you and others in particular from being promoted because of your race, sex, age, religion, national origin, disability, participation in the EEO process, and/or whistleblowing activity.  Absent any evidence that management violated merit system principals, or any evidence of discriminatory or retaliatory animus against you, management has not acted improperly.

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.

MSPB works through furlough appeals

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It’s been about one year from the furloughs of 2013, and the Merit Systems Protection Board is making progress processing the approximate 32,400 appeals it received. That’s right, 32,400 employee appeals challenging their furloughs. That number is jaw-dropping when you consider that the MSPB has been averaging about 8,500 appeals annually before furloughs. With a furlough docket of that size, it is worth acknowledging a furlough decision. In sum, no surprises.

This board decision, Dye v. Department of the Army, involved a U.S. Army Corps of Engineers employee who was furloughed for six days from his construction control position. He appealed to the MSPB, arguing that the agency should have excepted him from the furlough because the agency’s policy during the furlough was to exempt personnel whose labor costs were completely paid from Civil Works or Intelligence Community funding sources. The MSPB administrative judge consolidated the employee’s appeal with a number of other appeals, and based on the written record the administrative judge affirmed the furlough action, holding that the agency had demonstrated that the furlough promoted the efficiency of the service by showing that it was a reasonable management solution to the financial restrictions placed on it and had been applied in a fair and even manner.

The employee petitioned the full board for review of the administrative judge’s decision, separate from the rest of the consolidated appellants, and on May 23,  the board vacated the administrative judge’s initial decision.

The board cited five U.S.C. sections 7512(5) and 7513(a) for the rule that an agency may furlough an employee for 30 days or less “only for such cause as will promote the efficiency of the service.” The board articulated that this standard is met when an agency can show that the furlough “was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a fair and even manner.” However, the board pointed out that before it can reach the issue of whether an action “promotes the efficiency of the service,” an agency must first establish that there is “cause.” The board cited the definition of “cause” under 5 U.S.C. § 7513(a) as generally connoting some specific act or omission on the part of the employee that warrants disciplinary action. Because furloughs are taken for nondisciplinary reasons, the board held that the definition of “cause” in furlough actions must be defined differently, in this case, as encompassing “whether the appellant met the criteria established by the agency for being subject to, and not excepted from, the furlough.”

On appeal, the employee did not contest the validity of the furlough in general. Rather, he asserted that he should have been excepted from the furlough because he met the criteria. Specifically, he asserted that although his Unit Identification Code found in his Standard Form 50 (SF-50) was a Military Functions code, from April 2008 to October 2012, he worked entirely on a Washington Aqueduct project that was a Civil Works project, and funded completely with non-Department of Defense funds. He also asserted that the labor costs of his current project had been funded completely by National Intelligence Program funds. The employee also provided decision notices indicating that the agency had rescinded the proposed furloughs of five other employees after it was determined that their labor costs of those employees who also were funded solely with National Intelligence Program resources.

The board pointed to evidence that one of the categorical exceptions to the furlough of DoD employees was any employee not paid by accounts in the DoD-Military budget. This exception, noted the board, derived in part from a USACE request to the Department of the Army headquarters, that all USACE Civil Works employees be excepted from the furloughs due to a more sufficient level of Civil Works funding outside of DoD-military appropriations.

Because the administrative judge did not address the employee’s argument that the furlough was improper because of the source of the funding of his work, the board addressed the issue on appeal. In so doing, the board found that the record was unclear as to whether the agency determined that the employee met the criteria established by the agency to be excepted from the furlough, and thus it was unclear whether the agency had demonstrated “cause.”

And for that reason, the board vacated the initial decision and remanded the appeal to the administrative judge to allow for the presentation of evidence and argument on whether the employee met the criteria established by the agency to be excepted from the furlough.

That’s a lot of litigating for an employee contesting six days of furlough pay, and a lot work by the MSPB. However, what’s most notable is the ability of the board to deal so diligently with a caseload quadruple its norm and the consistent application of legal precedent governing furloughs.

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.

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Q & A Session: Performance Ratings and Retirement

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Q:

Can a federal employee retire having had an unacceptable performance rating at the time of retirement?

A:

Yes, so long as a federal employee meet requirements of whichever retirement mechanism applies to him or her, the employee can retire having an unacceptable performance rating at the time of retirement.

Keep in mind, if you receive an unacceptable rating at the end of your performance improvement plan (PIP) and you subsequently receive a proposed personnel action (i.e. proposed removal or proposed demotion) because of any alleged poor performance, you can resign but the SF-50 memorializing your separation from the federal service will be coded to indicate you separated in lieu of an involuntary action.

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.

Q & A Session: Duty Not In Job Description

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Q:

Can you advise what should be done if a critical and permanent duty is measured and rated but is not listed in a job description?

A:

The Office of Personnel Management (“OPM”) says in its position classification regulations that you should open a conversation with management about amending your position description. If you are unhappy with the results from that conversation, you can have the issue determined by filing a grievance under either the administrative or the negotiated grievance procedure applicable to you and your agency. This may or may not result in a change to the position description.

Alternatively, you may ask for a desk audit, which may change your position description, and it could re-determine your grade level, which might go up or down. Because your agency is measuring and rating you for the critical duty, a desk audit could well result in a change of your position description.

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.

Q & A Session: Delay in Classification Audit

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Q:  I submitted a classification audit based on accretion of duties.  There was a long delay in interviewing me until I asked the Union President for help on this matter.  Then, I finally was interviewed for the audit five months ago.  The interviewer told me that her boss had said I deserved a grade increase based on my work.  I have heard nothing since.  I am afraid my Agency is retaliating against me for contacting the union about this matter.  Do they have a deadline to respond?  Can I file a Freedom of Information Act request to learn more about what is going on?

A: It sounds as though you have pursued a desk audit performed by your Agency.  Your internal agency processes and deadlines for processing your audit are unclear to me, but you could request the written guidelines from your human resources office.

You may be able to learn more about what is going on behind the scenes with a Freedom of Information Act/Privacy Act request.  Agencies are sometimes slow to respond to such requests, but it can be a useful means to learn more.  You could also continue to request union assistance, since it appears that they were able to aid you in speeding the process along before.

Please know that you can always seek a classification appeal with the Office of Personnel Management. You can find the appeal procedures at 5 CFR § 511.601-511.616.  However, be aware that OPM can and does find that that people requesting audits are actually graded too highly, leading to a reduction, rather than an increase, in grade.

This response is written by Michael S. Causey, 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.