Federal Employee Representation

As experienced federal employee lawyers, the attorneys at The Employment Law Group® law firm have represented federal employees in a wide variety of claims. 

 

What are the categories of federal employment? 

There are five general categories of federal employment:

• Competitive Service: The system under which applicants must compete with other applicants in open competition under the merit system administered by the Office of Personnel Management (OPM).  An employee with Competitive Status is eligible for noncompetitive assignment, such as a transfer or promotion, without having to compete with other applicants.   

• Excepted Service: Employment in a federal position or with an agency or organization that is outside the federal Competitive Service, either by statute, Executive Order of the President, or action by OPM.  Unlike an employee in Competitive Service, an Exceptive Service employee cannot move from one federal government agency to another without going through the OPM hiring process. 

Excepted organizations include the:

• Federal Reserve System,
• Federal Aviation Administration (FAA),
• Central Intelligence Agency (CIA),
• Defense Intelligence Agency (DIA),
• U.S. Department of State,
• Federal Bureau of Investigation (FBI),
• General Accounting Office (GAO),
• International Agency for Development,
• National Security Agency (NSA),
• Nuclear Regulatory Commission,
• Postal Rates Commission,
• Tennessee Valley Authority,
• U.S. Mission to the United Nations,
• Department of Veterans Affairs,
• U.S. Supreme Court,
• Administrative Office of the U.S. Courts,
• U.S. Claims Court,
• U.S. Senate,
• U.S. House of Representatives, and
• Library of Congress. 

• Senior Executive Service (SES): Non-presidential appointed, primarily managerial and supervisory positions.  Senate confirmation is not required.  SES positions correspond to flag officers (e.g., generals and admirals) in the military. 

• Political Appointments:  Appointed positions which have been excepted from the competitive service by reason of their confidential, policy-determining, policy-making, or policy-advocating character.

• Title 38 Employees: Medical professionals who work at federal agencies such as the Veterans Health Administration or National Institute of Health (NIH) are usually appointed under Title 38 of the United States Code Section 7401(1). As a Title 38 employee, your rights differ significantly from other federal employees.

 

Which federal employees have the right to appeal adverse actions to the Merit Systems Protection Board? 

            Certain federal employees have the right to appeal to the Merit Systems Protection Board (MSPB) in the case of a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less “for cause that will promote the efficiency of the service.” 

            These employees include:

• individuals in the competitive service who are not serving a probationary or trial period under an initial appointment or have completed one year of current continuous service under other than a temporary appointment limited to 1 year or less;

• preference employees eligible in the excepted service who have completed 1 year of current continuous service in the same or similar positions in an Executive agency or in the United States Postal Service or Postal Rate Commission; and

• individuals in the excepted service who are not serving a probationary or trial period under an initial appointment pending conversion to the competitive service or who have completed two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two years or less.

 

Under what circumstances does a probationary employee have appeals rights?

            A probationary employee has the right to appeal under circumstances, with the assistance of a federal employee attorney if he or she desires:

• A probationary employee may appeal an adverse action motivated by partisan political reasons, marital status, or past or present military service. 
• A probationary employee may have a right to appeal to the MSPB based on past service.   
• A probationary employee may have appeals rights through an Individual Right of Action, prohibited personnel practice complaint, or under various civil rights laws. 

 

For what reasons do agencies commonly discipline or remove employees? 

An agency may discipline an employee “only for such cause as will promote the efficiency of the service.”  Courts have stated that they will define “cause for a removal which would promote the efficiency of the service” by the nature of the particular service involved as well as by the competence of the employee. The agency has the burden of proof to establish that the employee's discipline will “promote the efficiency of the service.”  There is no requirement that an employee must violate a specific written policy before the agency can discipline him or her.  The agency must provide a rational basis for disciplining the employee and substantial evidence to support their purported rational basis.  A federal employee lawyer can assist an employee in defending his or her case. 

 The below substantive offenses are common reasons agencies discipline federal service employees:

• Unapproved Absenteeism or Tardiness: Chronic absenteeism and tardiness account for the largest number of adverse actions in federal government.  E.g., Davis v. Veterans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986) (“An essential element of employment is to be on the job when one is expected to be there.”)

• Refusal to Accept Reassignment: The government has broad discretion to resassign employees to different locations and duties.  E.g., Leefer v. Adm'r, Nat. Aeronautics & Space Admin., 543 F.2d 209 (D.C. Cir. 1976) (agency may assign employee to a dissimilar position in a new geographic location without characterizing the reassignment as a demotion). 

• Conflict of Interest: Federal employees must avoid situations that compromise, or even give the appearance of compromising, their duties as agents of the government. E.g., Smith v. Dep't of Interior, 6 M.S.P.R. 84, 87-88 (M.S.P.B. May 6, 1981). (“[R]emoval of federal employees who have engaged in outside activities or accepted any gratuities which might call into question their undivided loyalty to the Government regarding the performance of their duties promotes the efficiency of the service.”)

• Failure to Maintain a Condition of Employment:  For example, a professional license, credentials or a security clearance (See the Security Clearance Representation Practice Page). E.g., Thompson v. Dep't of Air Force, 289 F. App'x 406, 406 (Fed. Cir. 2008) (Air Force may remove an air traffic control specialist for failure to maintain proper certifications). 

• Performance Reasons:  An agency may remove an employee for unsatisfactory job performance.  E.g., Perez v. R.R. Ret. Bd., 1994 WL 663960 (M.S.P.B. Nov. 21, 1994) (agency bears the burden of proving that an employee did not complete his assigned work). 

 

How do the MSPB and federal courts determine the appropriateness of the discipline?

The MSPB looks to the list of Douglas factors, which it established in the 1981 case, Douglas v. Veterans Administration.  These factors, along with an example of each, are:

• The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated:  E.g., Hough v. U.S. Postal Serv., 8 M.S.P.R. 464 (M.S.P.B. Oct. 15, 1981) (employee’s nine instances of being absent without leave was serious and frequent enough to warrant removal). 
• the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position: E.g., Special Counsel v. Hoban, 24 M.S.P.R. 154 (M.S.P.B. Nov. 5, 1984) (employee, as a police chief with frequent public contact and holding a prominent supervisory role, is held to a high standard of conduct). 
• the employee's past disciplinary record: E.g., Special Counsel v. Ferro, 2002 WL 104211 (M.S.P.B. Jan. 11, 2002)(suspension rather than demotion was appropriate due to employee’s lack of prior disciplinary record). 
• the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability: E.g., Williams v. Dep't of Army, 2006 WL 1627840 (M.S.P.B. June 9, 2006) (several coworkers lodged complaints regarding employee’s failure to perform his share of the work). 
• the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties: E.g., Walker v. Dep't of Navy, 1993 WL 440599 (M.S.P.B. Oct. 26, 1993) (following employee’s sexual harassment of a female coworker, supervisor was not confident that other female subordinates were safe working with employee). 
• consistency of the penalty with those imposed upon other employees for the same or similar offenses: E.g., Villada v. U.S. Postal Serv., 2010 WL 4909470 (M.S.P.B. Dec. 2, 2010) (four employees with similar positions who participated in similar misconduct should receive similar penalties). 
• consistency of the penalty with any applicable agency table of penalties;  E.g., Cole v. Dep't of Army, 1998 WL 162174 (M.S.P.B. Mar. 20, 1998) (table of penalties allowed for enhanced penalty in light of prolonged absence without leave). 
• the notoriety of the offense or its impact upon the reputation of the agency: E.g., Special Counsel v. Purnell, 1988 WL 70043 (M.S.P.B. June 24, 1988) (employees’ Hatch Act violations were “well publicized and adversely affected the reputation” of the agency). 
• the clarity with which the employee was on notice of any rules that where violated in committing the offense, or had been warned about the conduct in question: E.g., Tanner v. Dep't of Transp., 1994 WL 615310 (M.S.P.B. Nov. 1, 1994) (employee charged with falsifying travel documents had been previously counseled on correct procedures for completing travel documents)
• potential for the employee's rehabilitation: E.g., Singletary v. Dep't of Air Force, 2003 WL 22296565 (M.S.P.B. Sept. 30, 2003) (employee’s sincere apology during hearing demonstrated “good rehabilitative potential”). 
• mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter: Woebcke v. Dep't of Homeland Sec., 2010 WL 1889080 (M.S.P.B. May 6, 2010) (employee’s physician testified that appellant’s depression was a contributing factor to misconduct). 
• the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others: E.g., Special Counsel v. Zimmerman, 1988 WL 24035 (M.S.P.B. Mar. 16, 1988) (demotion was the only appropriate penalty for a supervisor who participated in religious harassment of subordinate). 

A federal employee attorney can assist an employee in ensuring that these factors are applied in a fair and even-handed manner. 

What law protects Federal Employee Whistleblowers?

The Whistleblower Protection Act (WPA) prohibits federal agencies from taking adverse personnel actions against federal employees who engage in whistleblowing activities. Under the WPA, employees who believe they have been subjected to reprisal because of their protected disclosures may:

(1) state a claim with the Office of Special Counsel (OSC);

(2) pursue an individual right of action before the Merit Systems Protection Board (MSPB);

(3) appeal to the MSPB regarding an agency's adverse action against the employee; or

(4) initiate a grievance proceeding pursuant to negotiated grievance procedures.

If a federal employee chooses to make a claim for whistleblower retaliation with the OSC, the OSC is obligated to investigate the allegations and make a decision within 240 days of receipt of a complaint as to whether there are reasonable grounds to believe that a prohibited personnel practice took place.

If the OSC renders an unfavorable decision, an employee can still seek relief by submitting his whistleblower reprisal case to the MSPB 60 days after the OSC closes their investigation or 120 days after filing a complaint with the OSC.

What activities are protected under the WPA?

An employee participates in protected activity by disclosing information that evidences: fraud; gross mismanagement; gross waste of funds; an abuse of authority; a violation of a law, rule or regulation conducted by the government; or a substantial and specific danger to public health or safety. Specific examples include:

• Cooperating with or disclosing information to an Inspector General or Special Counsel;
• Refusing to obey an order that would violate law;
• Testifying or lawfully assisting others exercise an appeal, complaint or grievance right; and
• Exercising any appeal, complaint, or grievance right granted by any law, rule or regulation.

To be protected under the WPA, an employee must meet a reasonable belief standard.  Recently, The Employment Law Group® law firm obtained a landmark decision on the meaning of reasonable belief in Drake v. Agency for International Development where the Federal Circuit held that a whistleblower does not need to prove that he disclosed an actual violation of the law, but instead that he had a reasonable belief that there was a violation of a law, rule, or regulation.

What must a plaintiff prove to prevail under the WPA?

Under the WPA, an employee must show by a preponderance of the evidence that:

(1) the employee made a protected whistleblowing disclosure; and

(2) a protected disclosure was a contributing factor in the agency's adverse action.

If an employee meets this burden, the agency must establish by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected whistleblowing disclosure.

What retaliatory acts are prohibited under the WPA?

The WPA prohibits any action taken by an employer that has a negative or adverse impact on an employee's terms, conditions, or privileges of employment. This includes blacklisting, demotion, denial of benefits, denial of overtime or promotion, failure to hire or to promote, termination, intimidation, and reduction in pay.

What can a prevailing plaintiff recover under the WPA?

Under the WPA, a prevailing employee will be made whole, i.e., will be returned to the same position he or she would have been absent the retaliation. In particular, the WPA authorizes reinstatement, back pay for lost wages, compensatory damages, and litigation costs, including reasonable attorney fees.

 

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