By Bill Bransford
Q & A Session – SES Position Vacancy Violation
July 7th, 2011 | Uncategorized
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 applied for an SES position. No hiring decision has been made, but someone has been hired on detail to “act” in the position and the position has been re-advertised to reflect specific credentials of the detailee. I complained to the MSPB but they said they don’t have jurisdiction. Did this violate any rule?
A:
The rule that governs this situation is contained at 5 U.S.C. § 2302 (b)(6). It prohibits granting or denying any preference or advantage not authorized by law, including defining the scope or manner of competition or the requirements of the job, for the purpose of helping or hurting an applicant. You have not provided enough information to tell if (b)(6) has been violated, but you have raised the issue.
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.
Tags: MSPB, Senior Executive Service, SES
Q & A Session – Answering Employment Questions After Clean Record Settlement
May 27th, 2011 | Uncategorized
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 individual was removed from federal service, appealed the action to the MSPB and accepted a “clean record” settlement agreement in exchange for voluntary resignation, how does that individual legally and honestly answer some of the questions found on legal documents? For example, some of the questions ask if anything has happened in the last five or seven years and lists such things as: “left my job by mutual agreement following allegations of misconduct or unsatisfactory performance” or “quit a job after being told you’d be fired.” Do I have to respond yes to these?
A:
The answer to all of these questions on the cited federal forms is yes, with an explanation. Failure to disclose the prior removal, even though it has been settled, could be viewed as a false statement and could be the subject of a criminal prosecution.
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 – NSPS Conversion to GS Misclassification
May 23rd, 2011 | Uncategorized
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:
To took a promotion to the GS system out of the NSPS system. I was assigned step 1, which is not where I would have been if I had remained GS throughout my career. This affects my CSRS “high three” computation, as well as my final years of federal service. The Merit Systems Protection Board said they had no jurisdiction in 2008 and the Office of Special Counsel concurred. What are my options?
A:
Because your case has been fully litigated, I doubt you could relitigate it as class action. Generally speaking, there is not remedy beyond an agency or OPM classification appeal for an equal pay claim based upon a misclassification or an argument that is based on a misclassification. The obvious exception is an EEO claim. Generally speaking, merit system principles are not self-executing. Instead, one has to challenge a law or rule that implements a merit system principle. Even then, that’s not all you have. Most likely, you are at the mercy of the prosecutorial discretion of the U.S. Office of Special Counsel.
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.
Tags: misclassification, MSPB, NSPS, NSPS conversion, OSC
Q & A Session –Performance Rating Appeal
May 12th, 2011 | Uncategorized
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 appeal for an agency’s failure to rate my performance for the year 2010. I was initially rated but later the agency came back with a recalculated performance rating by adding an additional element. I refused to sign and the agency declared the original rating was null and void. I filed an appeal but MSPB claims it has no jurisdiction. Which agency enforces regulations and code?
A:
Your situation is not appealable to the MSPB. You are at the mercy of OPM as it exercises its limited oversight or the U.S. Office of Special Counsel. OSC may very well have jurisdiction because the facts you describe could be construed as a prohibited personnel practice. OSC action is at its discretion and there is no appeal if that office decides not to take 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.
Tags: MSPB, OSC, performance rating
Q & A Session – Rights After MSPB Settlement
April 7th, 2011 | Uncategorized
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:
Once an MSPB complaint has been settled, what rights does the complainant have to pursue a grievance on the same matter?
A:
The settlement agreement should have required you to waive your rights to continue to litigate the matter. So,you probably cannot also file a grievance.
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.
Tags: grievance, MSPB, settlement
Q & A Session – MSPB Representation
February 28th, 2011 | Uncategorized
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:
Who can represent a person at the MSPB?
A:
A paralegal, a non-lawyer union steward or your colleague down the hall can be your representation at the MSPB, so long as your representative does not hold him or herself out to be a lawyer. If you prevail with a non-lawyer representative, you are not entitled to attorneys’ fees.
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.
Tags: MSPB, representation
Q & A Session – Performance Objectives and Termination
February 10th, 2011 | Uncategorized
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 reported to my command and received a closeout assessment. The appraisal was completed appropriately. I reported to my new command and I wasn’t provided new performance objectives for 90 days. When my final appraisal was completed, it was done under an appraisal that was set for less than 90 days. After a formal grievance process, the command determined that the period satisfied the time period requirement. Can an appraisal be backdated to be considered for the final appraisal since objectives were not set for 90 days? Do I have grounds to file an MSPB appeal?
A:
The MSPB does not have jurisdiction for the concern you raise. If your command tried to fire you for poor performance based on the fact that you were on standards for less than 90 days, then the MSPB might have jurisdiction and look favorably on your claim. But those are not the facts you allege. You may be able to file a grievance on this issue. If you are in a bargaining unit, check with your union. If you’re not in a bargaining unit, find the procedures for an administrative grievance, but your complaint will probably be heard only in your command.
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.
Tags: MSPB, Performance Appraisal, poor performance, Termination
Q & A Session – Denial of Career Ladder Promotion
February 8th, 2011 | Uncategorized
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 working for the government for over 15 years and was looking to be promoted this year. I was told I qualify for a GS-11 position and have had all good performance ratings, with no documentation of any issues. However, I was told I would not get a promotion, since I did not work on a project. Can this be a reason to deny my promotion?
A:
Career ladder promotions have the reputation and expectation by many employees that they are automatic. The actual truth is that a career ladder promotion occurs when the employee demonstrates the ability to perform at the next higher level. If denial of a career ladder promotion is for an illegal reason, such as discrimination or whistleblower reprisal, there are processes that can be used to challenge the denial, but the unpromoted employee has the burden of proving the illegal motivation.
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.
Tags: administrative grievance, MSPB, promotion
Q&A Session: Filing with MSPB v. EEOC
May 3rd, 2010 | Uncategorized
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 case with Merit Systems Protection Board (MSPB), but I believe it will be dismissed for lack of jurisdiction. If the MSPB dismisses my case, can I appeal the discrimination claims to the Equal Employment Opportunity Commission (EEOC)?
A:
You have described a mixed case. So long as you raised your discrimination claim as a part of your MSPB appeal, you may continue with EEO processing if the MSPB appeal is dismissed for lack of jurisdiction. Mixed cases are complicated, so make sure you coordinate with your agency’s EEO office.
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.
Tags: EEO, EEOC, mixed case, MSPB
Q&A Posts
March 15th, 2010 | Uncategorized
Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.
Q: In an appeal to the MSPB (Merit Systems Protection Board), can the employee ask for money damages? That is, if the board decides the employee’s argument(s) prevail, can they award him money in lieu of getting his job back?
A: Remedies Available at the MSPB
If an employee prevails in an MSPB appeal, the MSPB administrative judge has the authority to award a range of remedies designed to make the employee “whole,” that is, to place the employee in the situation he or she would be in if the adverse action had not taken place. Remedies an administrative judge may award include reinstatement, back pay with interest, reversal of a demotion or an increase in previously reduced pay, restoration of lost benefits, a purging of records of the adverse action, and if the appellant prevails in an EEO claim, compensatory damages of as much as $300,000.
The MSPB judge’s discretion is related to the job and while the judge can order reinstatement, back pay, lost benefits and attorney’s fees, the judge may not order money compensation in lieu of a return to the job. Such a result, however, can be obtained through settlement if both the appellant and the agency agree.
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.
Tags: MSPB, MSPB appeal