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MSPB: Employees fired for suitability reasons can appeal

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The Merit Systems Protection Board on Jan. 26 ruled that federal employees who were fired on suitability grounds can appeal their removal to the MSPB.

In Aguzie and Barnes v. Office of Personnel Management, MSPB said that employees’ rights to appeal adverse actions still apply when OPM finds someone is unsuitable for employment and tells an agency to remove him. OPM had argued that those appeals should not be appealed under the usual adverse action procedures.

Federal unions applauded MSPB’s ruling.

“This ruling allows employees, who are highly valued by their agency and who may have worked there for many years, to defend themselves if OPM directs their agency to remove them based on some alleged misstatement in their employment application or in a reinvestigation,” said Colleen Kelley, president of the National Treasury Employees Union. “Until this decision, employees removed as a result of suitability actions had only limited appeal rights.”

Andres Grajales, assistant general counsel at the American Federation of Government Employees said the union was glad to see the decision.

“The MSPB rightly closed a loophole that allowed the federal government to circumvent Title 5, Chapter 75 due process rights when using suitability determinations to remove an employee for alleged misconduct,” Grajales said. “This decision ensures that employees will be able to  exercise the full range of appeal rights guaranteed to them by statute, regardless of whether a proposed removal comes from their employing agency or from OPM.”

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  1. IRS agent Says:
    January 29th, 2011 at 5:28 pm

    Employee due process rights should also be enforceable when OPM and IRS misclassify a career tenured employee in the competitive service who returns within 3 years to the same job, same agency and is reinstated to the same exact job. For some reinstatement applicants, OPM counts their prior probations and treats them as nonprobationary, while for others in their exact same position, they are misclassified as probationary and denied all of their due process rights. OPM discriminates in applying the laws to some, not others. If OPM fails to count their prior probations toward completion of probation, even a 20 year employee with nothing but excellent appraisals for their entire career can be illegally treated as probationary and terminated without true cause at the very end of this false 2nd probation, For example, this could affect someone whose spouse is transferred and who leaves for a short time and reapplies to a new location. At IRS, 50% of probationers are terminated in certain POD’s with rogue managers, often at the very end of very successful probation periods. Often it is without cause (1/3 of all Treasury hires are gone within 2 years, the highest attrition rate of any agency). Often in this economy the reason is to make room for their own unqualified cronies who are being brought in in record numbers (same patronism that’s been all over the Boston Globe lately at the state level is going on at the federal level, but there’s no investigation at the federal level). MSPB should not be allowed to “rubber stamp” these misclassifications by OPM which force people to spend tens if not hundreds of thousands on lawyers with no job, only to be told that MSPB will not listen to their cases – due to this false “probationary status” when they are actually nonprobationary with full employee rights.

  2. IRS agent Says:
    January 29th, 2011 at 5:57 pm

    By the way, an employee cannot unknowingly waive their due process rights and career tenure, but this is just what OPM, IRS, and MSPB is doing to career tenured employees.