federal employment law

Q & A with a Merit Systems Protection Board Representative

Mike Ivancie, Esq.

Q & A with a MSPB Representative

Today we’re going to be doing a question and answer session with a former Merit Systems Protection Board, MSPB representative.

Q: So, for starters, what is the Merit Systems Protection Board or MSPB?

The Merit Systems Protection Board (wiki) is a little-known administrative judicial agency in the federal government that is responsible for primarily adjudicating the disciplinary cases of federal employees. The MSPB handles other issues as well, but the bulk of its work is related to disciplinary actions of federal employees, more commonly referred to as adverse actions. An adverse action is a reduction in payer grade, a suspension of more than 14 days, and furloughs of 30 days or less.

Q: Who can represent a federal employee at the MSPB?

Interestingly, there’s no limitation on who can represent a federal employee at the Merit Systems Protection Board. If a federal employee wanted, they could have their brother or sister, anyone, any non-attorney or attorney represent them. This doesn’t mean that an employee should necessarily have a union steward who’s not an attorney or someone not versed in MSPB and federal employment law represent them. Generally, an attorney that has experience litigating these kinds of cases is best situated to represent a federal employee before the MSPB.

Q: How do I file an MSPB appeal?

So, if you’re a federal employee and you think you want to file an MSPB appeal, it really depends on the kind of case that you have. As I mentioned earlier, typically a federal employee encounters the MSPB through challenging a disciplinary action that they’ve received on the job. Most commonly, what will happen is an employee will be served with a proposal letter notifying them of the discipline that the agency is seeking against them and the basis for that discipline. Following the proposal letter, the employee will have the opportunity to respond and give a written or oral reply to the responsible agency official, most often referred to as the deciding official, for that disciplinary action.  After submitting a reply, or not submitting a reply, typically within 30 to 60 days, the agency will then issue a final decision on the disciplinary action. Following that decision letter, it should include notification of appeal rights and typically within that, if your disciplinary action meets the level of adverse action qualification, which we talked about earlier; suspension of more than 14 days, or removal or reduction in grade or pay, then you can appeal your case to the MSPB. Generally, you only have 30 days to appeal the case to the MSPB and your appeal rights will generally be listed in that final decision letter that you receive from the agency.

You can also watch our video on completing the appeal form here:

 

Q: What other kind of cases are heard at the MSPB?

As mentioned earlier, disciplinary cases are the most common kind of case heard at the MSPB, but additionally, the MSPB can review Office of Personnel Management (OPM) decisions, adjudicate cases related to the re-employment rights of veterans and other employees, whistleblower appeals, and in rare or limited circumstances, adjudicate probationary terminations.

Q: Is it better for my case to go to the MSPB or the EEOC?

Well, again, unfortunately, it depends. It depends first on whether or not your case can properly be before the MSPB and the EEOC. Certainly, if you’re raising allegations of discrimination under Title VII or some other law that is in enforced by the Equal Employment Opportunity Commission, then you can take your case there, however, jurisdiction at the MSPB is very limited. You can’t bring a pure discrimination case to the MSPB, such as a hostile work environment claim. It has to have some sort of other jurisdictional hook to give the MSPB jurisdiction over your case. So, let’s say for example, you’re issued a 30 day suspension. Well, that would be properly before the MSPB. They would have jurisdiction over your case as an adverse action. Further, let’s say you believe that the 30 day suspension was a result of discrimination. Well, then you could raise that issue at the MSPB as well, but you could also raise it at the EEOC.

So, what are the advantages and disadvantages of the two venues? Well a large advantage of the MSPB is that cases are decided, generally very quickly. As discussed earlier, a case will usually be adjudicated within 120 to 220 days, whereas depending upon what region you’re in, an EEOC case can take years, multiple years, to decide. There’s not as hard or fast limitation for case processing at the EEOC, whereas the MSPB tries to honor the 120 day deadline as much as it can. The EEOC also has a much larger caseload, especially in some of the regional offices, like the Los Angeles regional office. So, if you’re seeking a quick redress, then the MSPB may be a better venue for you. However, a lot of federal employees think that the MSPB is not as favorable to them and maybe with some good reason, since the MSPB released statistics in 2014 suggesting that federal employees typically lose their cases more than 70% of the time. This may be a function of the board not being that favorable to employees or that federal employees are not hiring savvy federal employment law attorneys, or possibly fighting cases that lack merit all the way through decision. And generally, as we discussed earlier, only the most serious cases of misconduct really generally reach its way to the MSPB.

Q: How long does it take a typical MSPB case from start to finish?

Well, the MSPB has a general rule that cases should be adjudicated within 120 days of them being docketed with the local regional office. In practice, this rule is not hard and fast, so some cases go over the 120 days. Actually more often than not they do go over the 120 days. Additionally, complicated federal employment cases before the MSPB typically have an extension granted at least once or twice. A judge has the ability to grant up to two 30 day case suspensions to allow the parties more time to engage in discovery, settle the case, or just to accommodate various working schedules.

After a case is docketed with a MSPB regional office, for example, San Francisco, the case will be assigned to a administrative judge (AJ). This AJ will then  issue what is called an acknowledgment order. This order basically acknowledges the beginning of this new case and notifies the parties, the federal employee, and the federal agency of their rights and obligations going forward related to this case. An acknowledgment order is probably the most important document in an MSPB case because it lays out deadlines for discovery. The judge’s expectations for the parties going forward and it provides notice to the appellant, the federal employee that they need to declare a representative, if they’d like to have one. As discussed above, a federal employee can designate any representative they want.

Q: Can am employee change their representative after starting a case at the MSPB?

The answer to that is yes, absolutely they can. A federal employee has the absolute right to select who represents them. It’s not compulsory that they have the same representative from the start to the finish of the case. Nor do they have to choose the union to represent them. Generally, it’s advisable and it’s a good idea to stick with the same representative, but there is no requirement or rule that you’re locked in once you hire someone. Indeed, I’ve taken over for other attorneys and non-attorney’s as the representative after a case has been docketed and the acknowledgment order has been issued.

Q: What is the purpose of the acknowledgment order?

Well, I address this question briefly above, but an acknowledgment order lays out the framework of the case and the expectations of the judge. Once you have an acknowledgment order, your case has been docketed and it’s time to take it very seriously. The deadlines that a judge gives you in the acknowledgment order are ironclad and you can expect that if you miss deadlines, you will not necessarily be punished, but there will be repercussions that can affect your case dramatically. One of those big deadlines is the deadline for discovery.

Q: What is discovery?

Discovery is the opportunity for the parties involved in  litigation, for example here at the MSPB to seek out relevant evidence, such as memos, letters, emails and other evidence the opposing party already has in their possession.

Discovery is very important because generally, disciplinary actions are required to follow a certain procedure and the action must comport with the Douglas factors. Accordingly, you can use discovery to gather information to find out if the agency’s disciplinary action was consistent with these required procedures. Additionally, you can find information in discovery about comparator employees, other employees that were potentially treated better than the employee-appellant at the MSPB and you can use discovery to find information about potential bias, discrimination, and other case-specific issues.

To give an example, let’s say an employee is terminated for AWOL, and let’s say there’s a dispute as to whether or not an employee was consistently tardy. Well, discovery allows you to gather information from the agency to find out whether or not that employee really was tardy, whether the agency documented that tardiness, whether there were access logs showing when that employee logged into their computer every day or swiped through security every day. These are very relevant documents and pieces of information that would help prove or disprove a theory in the case.

That turns me to what the idea of what discovery is all about: it’s really meant to find documents that are relevant to a specific case that tend to prove or disprove a specific fact that is relevant to that case. So, as an employee that’s representing himself, they need to keep in mind that discovery is not to be abused. It needs to be used to ask for information relevant to your case. So, discovery requests like, I want the tax returns of my former supervisor for the last decade, unless that has any connection to your disciplinary case, which it’s highly unlikely that it does have any connection, that would be an inappropriate discovery request . The judge would deny it and it’d be likely that the judge would warn an unrepresented appellant not to make requests of that nature. In some instances there could be sanctions or some sort of order from the judge that would affect the appellants case going forward if they really try to abuse the discovery process.

One more thing about discovery I’d like to add is that it really is a critical part in the case of a federal employee related to disciplinary action. Generally you only have 20 to 45 days to initiate discovery (depending on the AJ) and if you fail to initiate discovery within that time line, you waive your right entirely. If you cannot conduct discovery in a case, it’s kind of like fighting a case with one arm tied behind your back. It’s greatly limiting if you cannot engage in discovery. I’ve had clients come to me before where they’re seeking representation after discovery is closed or the window to initiate it has since lapsed and I tell them ‘discovery is an extremely important phase for the case and by not taking advantage of it, you have really hurt your case.’

Discovery typically begins shortly after an acknowledgment order is issued and finishes generally within 60-90 days of the case being docketed (depending on how complex the case is). If there are discovery disputes, parties can go to a judge and request that the judge issue an order requiring the party to produce the requested documentation. This typically is referred to as a motion to compel.  Generally, appellants will not have very much discoverable information in an MSPB disciplinary case since the agency is obligated to provide all the evidence to support the disciplinary action. Although, that’s not to say that sometimes appellants are not served with discovery requests. It’s just a question of whether or not the information the agency is requested is relevant or not.

Q: Shifting gears, what are the Douglas factors?

Well, you can look on our website and we have an extensive article discussing the Douglas Factors. But, in short, the Douglas Factors are 12 different factors that a deciding official must look to when they’re determining the appropriate level of discipline for a federal employee in a disciplinary case. These factors were created in a seminal decision by the Merit Systems Protection Board, where one of the parties’ names was Douglas, hence the name Douglas Factors. These factors include your length of service with the federal government, the severity of the misconduct and things like that. So, the purpose of these factors is to encourage these deciding officials to look at a case cohesively or review the totality of the circumstances and determine whether or not the proposed discipline is reasonable or not. Now, the Douglas Factors are also extremely relevant at the MSPB, because judges will also evaluate a case independently and make sure the deciding official properly applied the Douglas Factors. If a deciding official does not properly apply the Douglas Factors, that could be grounds to mitigate or overturn the disciplinary action.

Q: Is it hard to win a case at the MSPB?

It really depends on the case that you have personally and the individual merits of your case.

One of the big questions is, have you been subject to discipline before? If you’re someone who has been subject to three or four prior disciplinary actions and then finally now you’re faced with a 30 day suspension or removal, your case is probably going to be difficult to win at the MSPB.

Now if you’re a model employee, who has worked for the government for 25 years and your agency’s trying to fire you for taking a pen home, or showing up five minutes late to work one time, that is a strong case.

Again, it really depends on the merit of your case but in all candor, MSPB cases are challenging and more often than not, appellants lose at the MSPB. Now that’s a function of multiple things. One, it’s a function of highly educated and sophisticated federal management and advisory structure. Management can consult labor and employment relation specialists, and attorneys, who know all the rules for disciplining federal employees and they make sure to follow them. This structure is in place because a common way for disciplinary actions to be overturned, is if something is procedurally unsound. Why procedure is so important, relates back to the Constitution and federal employment being a property right and the need of the government to uphold the rule of law and the Constitution. Now, because there are all these experts on the agency side, typically these procedural issues do not arise. Additionally, smaller or less serious matters are typically resolved more informally within management structures. A good manager, instead of going straight to a 15 day suspension of an employee, will counsel them and work with them informally to try and change their behavior.

So, generally the cases that actually end up making it to the MSPB are cases where the conduct is fairly serious or misconduct is really egregious; Employees assaulting other employees at work or stealing valuable property or destroying property or failing to follow orders consistently. Generally it’s a pattern of behavior over and over and over that will lead to the most trouble for federal employees and greater likelihood of a sustained removal or a long suspension at the MSPB.

Q: How long does a hearing last at the MSPB?

Speaker 1: Well, typically you can expect it to take around 120 days or more. Realistically an expectation is about a little less than a year. It really depends on your case specifically, how complicated it is, if it’s a multi-day hearing and how long it takes the judge to issue a decision in your case. MSPB has a rule, generally, that tries to get a case decided within 120 days, as we discussed earlier. That is not a hard and fast rule to the extent that if the judge takes more than 120 days, an employee automatically wins his case . It simply doesn’t work like that, but you can expect around 180 to 220 days. I’d say is a fair estimation of start to finish, given that there will likely be one or two case suspensions in your case, where the case is suspended or deadlines are continued for 30 days and just to account for the judge dealing with scheduling issues and the time to write a well thought out opinion for your case.

Q: Can I appeal if I lose my MSPB hearing?

So let’s say you go through a hearing, the judge issues a decision and he sides with the agency and sustains your discipline. What sort of redress do you have? Well, again, it depends to specifics of your case, but typically you have a right to request reconsideration by the full board. The Full Board are the three members that are appointed by the president and these three board members, will review your case and see if there is anything deficient by the judge, or make a decision about new evidence that was unavailable previously and decide whether or not you’re entitled to a new hearing or something that was so plainly wrong or a law that was clearly misapplied then they may overturn the prior decision. Also, sometimes you can take your appeal to the federal circuit, and in cases where there’s a discrimination component, commonly referred to as a EEOC or Equal Employment Opportunity Commission component, you can appeal that to federal district court.

Hopefully you found this discussion with a MSPB Representative helpful.

 

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Fast Legal Answers: Advice for federal employees dealing with workplace issues

Mike Ivancie, Esq.

In today’s Fast Legal Answers series I will talking about what to do if you are a federal employee that is facing removal, a suspension, or a demotion at work. Additionally, this article covers other topics such as discrimination and EEOC claims, the processes that need to be followed, and common mistakes federal employees make when handling these kind of cases.

Document everything – hard copies are your friend

Regardless of what issues you are facing in the federal workplace, it is generally safe to say that you should make sure you are documenting what is happening and keeping a paper record of significant events. You shouldn’t expect your agency to keep, or provide, backup copies of documents to you. In some instances, they may be unable or unwilling. Be vigilant about keeping personal copies of documents that you receive from the agency or that you anticipate may be important evidence in the future.

If you’re facing discipline the two most important documents you will receive are the proposal and decision letter. These letters outline your rights, the charges against you and provide very specific details on how to proceed, and important deadlines. You can read more specifics in our federal employee discipline guide.

If you are dealing with a potential discrimination/EEOC claim you should be independently documenting any discriminatory events. You should also be documenting who observed these events, your reaction to the events and any harm you suffered a result of these events. If you are facing discrimination in the workplace our federal EEOC guide is a must read.

Deadlines are short – stay on top of them

The deadlines in federal employment cases are significantly shorter than most deadlines in just about any other are of the law. The deadlines are so short that employment attorneys inexperienced in federal-sector employment law will likely be surprised by how little time they have to help a client file a case. For example, federal EEO claims must be initiated with 45 days of the alleged incident, whereas private-sector employees have 180 to 300 days to file a claim.

Similarly, MSPB appeals typically must be initiated within 30 days of receiving a notice of an adverse action (decision letter). Similarly, after filing an MSPB appeal you typically only have 30 days to initiate discovery, failing to do so may result in you waiving the right to engage in discovery entirely.

If you don’t stay on top of these deadlines they may prevent you from pursuing your case or greatly limiting the claims you can raise. You should always consult with an experienced attorney regarding deadlines and rights. Missing a deadline is such a simple mistake that can have devastating results.

Federal Employment Law is a Unique Practice Area

As the deadlines above demonstrate, federal employment issues are governed by a unique and different set of rules than most other employment cases. This means that you, or your attorney, need to have a complete and full understanding of these unique rules. In short, not all employment lawyers are created equal. Just because someone is an employment attorney, that does not mean they are equipped to handle your federal employment case. You should ask pointed questions related to your representative’s experience before the MSPB, EEOC and negotiating settlements with various federal agencies. If your representative doesn’t have experience handling cases in the federal-sector you should reevaluate your decision to hire them.

Challenging managers and other employees will likely lead to trouble

As jaded as this may sound, what follows is the truth: employees that challenge other employees or their managers are more likely to get into trouble at work. This is not to say you should be dissuaded from reporting fraud, waste, and abuse, or challenging co-workers on issues of great importance–but just know that once you do that you may become persona non grata. If you look at the people that typically become managers in the federal sector, generally they are the kind of people that don’t ask questions, do not challenge authority, and do what they are told.

Trouble leads to more trouble

Once you’ve been subject to a disciplinary action, any subsequent action is likely to be more significant in severity. This is due to the progressive nature of discipline in the federal workplace. Additionally, as a matter of common sense if you have done something to draw the ire of management in the past you should expect to receive greater scrutiny in the future. Therefore it is important that you operate within the rules and policies provided to you by your agency and that if you are unclear you seek clarification through your chain of command.

There are laws to protect you

Federal employees are granted much more protection than your typical private-sector employee. For example, most private-sector employees can be summarily terminated whereas federal employees are assured notice an opportunity to respond and can typically invoke the right to a hearing to challenge their termination. However, if you are not versed in these laws, or do not hire a competent representative to assist you, you mail fail to invoke the full protection of laws which you are entitled. If you don’t work to protect your rights no one will. In many instances you need to be your own advocate.

 

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How Hard is it to Fire a Federal Employee: Statistics from the MSPB

Mike Ivancie, Esq.

My practice focuses on the representation of federal employees, specifically, I help federal employees appeal adverse actions which include removals (terminations) and long suspensions (15-days or more). Most commonly, these cases are litigated before the Merit Systems Protection Board (MSPB). Formerly, I worked as federal agency counsel, where my job was to try and uphold the removals and adverse actions against federal employees before the MSPB. Now, as mentioned, I represent employees at the MSPB. Since I have perspective from both sides of the aisle, I have insight that many practitioners lack. This article will address two main topics: 1) Just how hard is it to fire a federal employee? and; 2) If I am a federal employee facing removal/termination what are my chances of prevailing at the MSPB? 

Each case is obviously different so the chances of you prevailing will depend on the specific facts of your case. However, there are some common themes you can look at related to your case to give you a better idea of the chances of winning on appeal. I’ll address some of the more common facts that lead to removal and other facts that generally help shield employees from removal. I will also review some of the more recent statistics from the MSPB related to case processing to give you a general idea of just how often employees prevail when they challenge adverse actions.

Is it really impossible to fire a federal employee?

I hear it all the time “It’s impossible to fire a federal employee.” In my experience, having participated in discipline cases from both the agency’s and employee’s perspective I can say that this statement is not accurate. Firing a federal employee may be challenging, but it is not impossible.

Certainly, federal employees have more protection than most private-sector employees who generally serve “at-will” and can be fired with little or no notice. However, federal employees can be terminated, it just requires more diligence and effort by management. While the framework for firing a federal employee is certainly more restrictive than private sector employees, if management gets good advice and handles the case properly, it is not that difficult to fire a federal employee.

Background — It is all about (due) process

So why is firing a federal employee difficult? Well, it all goes back to the Constitution. In simple terms, the government cannot take any property or “property interest” from a citizen without due process of law.

For federal employee’s, their continued employment is considered a property interest and because of that, the government cannot summarily fire them. Instead, the Fifth Amendment of The Constitution requires they receive due process prior to their termination. In this context, that means notice and a hearing or other opportunity to challenge their termination. See, e.g, Block v. Hirsh, 256 U.S. 135, 159 (1921) (explaining that, “[t]he national government by the Fifth Amendment to the Constitution, and the states by the Fourteenth Amendment, are forbidden to deprive any person of ‘life, liberty, or property, without due process of law’”). This right was further explained in Cleveland Bd. of Ed. v. Loudermill, 470 US 532 (1985) and refined as it relates to a deciding official’s role in discipline cases and specific procedural requirements by both Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011); and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999).

The takeaway is that: by virtue of your employer being a governmental institution you have more rights than your counterparts that are employed by private sector entities. Nonetheless, if you are federal employee you shouldn’t think this shields you from termination or is a blank-check to engage in bad behavior, as I stated above, firing a federal employee is not impossible.

For more information about the specifics of MSPB case processing read our in-depth article, where we cover the appeal process from start to finish.

Management’s knowledge and experience matter

Given that federal employees are entitled to certain protections that other employees are not, it is important that management is familiar with these rules and that they ensure they meet the minimum due process requirements when they initiate an adverse action against a federal employee. Failing to do so can lead to the discipline being reversed on procedural grounds even if the employee had engaged in the misconduct as alleged. This can be costly for the agency because they have to bring the employee back, give them back pay, and then re-initiate the discipline process. Ultimately, the framework management has to follow is not exceedingly complicated, and competent labor and employee relations staff and agency counsel should be able to guide management towards a Constitutionally sound disciplinary action.

Douglas Factors – The 12 things management must consider

I’ve written about the Douglas Factors at great length here. For the purposes of this article, the Douglas Factors are another important element to any adverse action and management must properly consider these factors when issuing a decision on a discipline case. A manager that fails to consider the Douglas Factors when issuing an adverse action does so at their own peril. The Douglas Factors are:

  1. 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;
  2. the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
  3. the employee’s past disciplinary record;
  4. the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
  5. 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 work ability to perform assigned duties;
  6. consistency of the penalty with those imposed upon other employees for the same or similar offenses;
  7. consistency of the penalty with any applicable agency table of penalties;
  8. the notoriety of the offense or its impact upon the reputation of the agency;
  9. the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
  10. the potential for the employee’s rehabilitation;
  11. 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;
  12. the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Additionally, the Douglas Factors can provide a good indication of the strength of an adverse action early on. For example, if you have a long history of discipline, say you received a three day suspension two years prior, a ten-day suspension 18 months prior, a 30-day suspension 12 months prior and now you are facing removal, all things equal it is very likely that your removal will be sustained on appeal. This is because factor #3 and #10 and #12 strongly point towards sustaining the removal. However, if you have 25 years of federal service with a clean record and your employer proposes removal for your first offense, which is relatively minor in nature, you likely have a very strong case when applying the same Douglas Factors.

Ultimately, the likelihood of successfully challenging an adverse action is dependent on many factors. Generally it is best to consult with an attorney about the facts of your specific case, we offer free consultations with all potential clients.

Merit Systems Protection Board Statistics: What the numbers say about winning your case

Each year the MSPB releases statistics on the number of cases it processed, the types of cases, and the outcome of those various cases, including, whether they were dismissed for jurisdictional or other procedural reasons, or if a decision on the merits was issued. You can find the annual reports here.

What types of cases does the Merit Systems Protection Board handle

Looking at the pie charts below you can see the broad range of cases the MSPB handles on a yearly basis. You’ll note that on average the MSPB processes about 5,000 cases and nearly half of those cases are adverse actions. Adverse actions include removals, suspensions in excess of 14 days,reductions in grade or pay, and furloughs of 30 days or less.

2013 MSPB CASE STATISTICS:

MSPB 2013 Case Statistics

2014 MSPB CASE STATISTICS:

MSPB 2014 Case Statistics

In 2014, the actual number of MSPB cases processed was around 16,000 but this was due to a large number of appeals related to the government shutdown and the furlough of numerous federal workers. The 2014 numbers above reflect the statistics with furlough appeals removed.

Disposition of appeals, a simple overview

Below is the 2013 chart that lays out the disposition of all appeals by case type. These statistics are released in the fall for the preceding year, so the 2013 statistics are the most recent available. You’ll note that nearly 50% of the adverse actions filed were dismissed. Of the cases that made it past dismissal, nearly two thirds settled and the remaining were adjudicated on the merits.

2013 MSPB Adjudication Statistics

Getting in the door: Jurisdiction and Timeliness are killers at the MSPB

As mentioned above, nearly half of all adverse actions were dismissed in 2013. Why is that? Well, there are many jurisdictional and procedural hurdles to getting a case before the MSPB. Probably the most significant hurdle being timeliness. When an employee is served with an adverse action (decision letter) they generally only have 30 days to file their appeal. Being fired is an emotionally difficult process, and the 30 days can go by quickly. However, the MSPB is generally not very forgiving of appellant’s who file late–an untimely case is one less case the MSPB has to process. Therefore, generally, late filings are not looked upon favorably. Absent extraordinary circumstance, a late filing results in you losing your right to challenge the adverse action entirely. See, e.g.,  Dow v. Office of Personnel Management, 66 M.S.P.R. 21, 24-25 (1994).

This theory is consistent with the numbers below. You’ll note that in both 2012 and 2013 more initial appeals were dismissed, 60% and 62% respectively, than were actually accepted for adjudication. Turning to the merits of the cases, of the 5,881 filings in 2012, only 895 (15.2%) were decided on the merits. 2013 had similar figures, with decisions issued in only 919 of the 5,767 initial appeals (15.9%).

Turning to the ultimate decision in the case, we’ll assume that a ruling of “affirmed” was bad for the appellant (which may not always be true) and we will only count a decision of reversed, mitigated, or other as a victory. For 2012 that means of the 5,881 filings, 238 (4%) “won” their case. In 2013, of the 5,767, only 233 (4%) “won” their case.

2012 MSPB initial appeal statistics
2012 Initial Appeal Statistics

 

2013 MSPB initial appeal statistics
2013 MSPB Initial Appeal Statistics

These numbers can only tell us so much. What they do say is that most initial appeals are dismissed for some jurisdictional or procedural failure. My guess is that a large chunk of these cases are dismissed because they are not timely, or other administrative remedies were sought that barred MSPB jurisdiction. The numbers about appellant’s winning their cases are somewhat misleading, as you can see a large majority of appeals settle and since those case were settled by mutual agreement is reasonable to assume the resolution was desirable to the appellant.

Petitions For Review: Appeals of Appeals, numbers and results

Petitions for review (PFRs) are petitions to the full Board for reconsideration of a decision made by an administrative judge. As you can see, there are not that many petitions every year, and most are denied and not reopened. Interestingly, when a PFR is granted, it is more likely to result in a reversal than the prior decision being appealed. This, of course, is a function of the purpose of a PFR which allows review only when the initial decision contained “erroneous findings of material fact…erroneous interpretation of statute or regulation…involved an abuse of discretion…[or that] new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed.” See 5 C.F.R. 1201.115.

2012 MSPB statistics PFRs
2012 MSPB Petition For Review Statistics

 

2013 MSPB statistics PFRs
2013 MSPB Petition For Review Statistics

So few PFRs are granted likely because the parties requesting review don’t follow the mandates of 5 C.F.R. 1201.115 and seek review on other issues outside of the scope of the regulations, or trying to provide new evidence that was previously available.

What these numbers tell us – and what they don’t

If you’re a federal employee facing an adverse action, reading these statistics is probably fairly disheartening. It certainly looks like a long road ahead if you want to get a long suspension or a removal overturned. Certainly, that will be the case if the agency administered the adverse action properly and you engaged in the misconduct as charged. However, these statistics can only tell us so much. There are many other factors that can change the outcome of a case. Also, keep in mind that only about half of the cases reflected in these statistics are appeals from adverse actions, the remaining half make up a diverse group of other actions that are appealable to the MSPB. Another significant factor that can skew these numbers, is that many of the appellant’s that appear before the board do so by themselves, they are unrepresented, or in lawyer speak “pro se.” Litigating a case before the MSPB is difficult, there are pages of regulations you need to follow and missing deadlines can foreclose you from filing your case, getting discovery, or seeking review if the judge made an error in the initial decision. That is why it is helpful to hire someone who has experience litigating cases before the MSPB. That that does not just mean hiring any attorney. Unfortunately, I met quite a few potential clients who come to me only after a state-law-focused employment law attorney has done irreparable harm to their case. Federal employment law is a unique and distinct area and generally you should only hire federal employment lawyers to represent you before the Merit Systems Protection Board.

Conclusion

I hope this article was helpful and informative. Federal employment law is a very niche practice and there seems to be quite a bit of misunderstanding on this topic.

Turning back to the introductory questions from this article:

1) Just how hard is it to fire a federal employee?

Firing a federal employee is not that difficult, making that termination stick is the harder part. It is important that if an agency wants to remove an employee from the federal service that they provide minimum due process to the employee in question and make sure that their practices are in keeping with new developments in the case-law surrounding federal employee terminations.

2) If I am a federal employee facing removal/termination what are my chances of prevailing at the MSPB? 

It depends. Really, it does. The facts of every case are unique and how those facts fit in to the framework of the various laws will determine the outcome. In all honesty, the MSPB certainly is not the most favorable place for employees. But, many cases resolve through settlement and hiring an experienced federal attorney can help you get the best outcome possible.

 

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How much is my discrimination case worth?

Mike Ivancie, Esq.

Introduction – Recovering Damages in a Discrimination Case

This article will explain the common forms of damages that an employee can recover when they prevail in their discrimination case. At the outset it is important to note that damages are extremely fact and case dependent, so what a complainant was awarded in one case is rarely predictive of what a complainant will recover in another case. Nonetheless, there are some common types of damages and fact patterns that we can discuss to give you a better understanding of the type of damages you may be able to recover. Finally, we note that the topic of damages and relief is extremely complex, changes often, and that many practicing attorneys regularly have to research the law related to damages. Therefore, it is generally best to get professional advice from a lawyer that specializes in discrimination law.

You can use the Table of Contents to navigate to the section you like, or you can read the article in full.

So you timely filed a formal EEO complaint, went through the investigation process, and to a hearing or trial and received a ruling in your favor. Now, the question is, what can you recover?

Purpose of Discrimination Laws – Appropriate Remedies

The purpose of discrimination laws in general, including Title VII, the Rehabilitation Act, and the ADEA, are to put the person who was subject to discrimination in a position they would have been had no discrimination occurred. Another common way this is phrased is to “make the complainant whole” by providing them remedies and covering costs and other damages they incurred as a result of discrimination. This means that the bulk of the remedies available to someone who has been subject to discrimination focus on putting them in a position they would be had the discrimination never occurred.  For example, if a complainant was wrongfully terminated due to a discriminatory firing, they would be reinstated to their position and provided back pay for the time they were out of work.

Proving Damages in a discrimination case

Damages must be proven in discrimination cases. Generally, with all damages, the more proof the better. Providing conclusory statements about how you have been harmed or the economic losses you have suffered is typically not sufficient. You need to provide evidence in support of your claims when possible. Also note that failing to provide evidence of damages, in some instances, can waive or prevent you from recovering those damages later.

For example, lets say you were subject to a hostile work environment and because of it you started seeing a psychologist. You should provide all the billing statements from your psychologist demonstrating how much you had to pay to receive counseling. If you provide this evidence, you are much more likely to recover damages from the agency for those expenditures in the form of past-pecuniary (economic) damages.

As to the specific burden of proof, complainants must show with reasonable certainty that the employer’s discrimination was the cause of the injury/loss.

Limitations on Damages

There are certain limitations on the type and amount of damages that can be recoved in a discrimination case. The recovery will depend on the size of the employer, and its legal status (government vs. private-sector employer).

42 U.S. Code § 1981a(b) provides for damages and limitations to recovery of certain damages for cases of intentional discrimination cases.

(b) Compensatory and punitive damages

(1) Determination of punitive damages
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.
(2) Exclusions from compensatory damages
Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e–5 (g)].
(3) Limitations
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party—

(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.

(emphasis mine)

No punitive damages against federal government

As you can see above, the federal government is exempt from punitive damages. Therefore if you are a federal employee suing an agency you cannot from seek punitive damages.

Damage caps

As highlighted above, generally there is a cap of $300,000 on compensatory damages for any federal employee seeking redress of discrimination claims.

Types of Damages Explained

There are various types of damages available to complainants in a discrimination case. Below we cover the more common types of damages and provide examples of the types of recovery that fit into each category.

Compensatory Damages

Compensatory damages are awarded to complainants to compensate them for the more intangible types of injuries one can suffer as a result of unlawful discrimination. Compensatory damages are awarded in addition to other remedies under Title VII. As noted above, compensatory damages are subject to caps. Typically, for large and governmental employers, compensatory damages are capped at $300,000. Sometimes compensatory damages are referred to as non-pecuniary damages.

Common examples of compensatory damages

These are just some of the types of compensatory examples that may be subject to recovery. The title of the harm itself does not control, the relevant inquiry is into the harm the complainant suffered and its relation to the misconduct engaged in by the employer.

  • emotional anguish
  • pain and suffering
  • inconvenience
  • loss of enjoyment of life
  • injury to professional standing
  • injury to character and reputation
  • injury to credit standing
  • loss of health

Proving Compensatory Damages

As discussed above, you must not only show that you have suffered a harm but that the harm was the result of the unlawful discrimination. See Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977). Proof of compensatory damages is more difficult than economic/pecuniary damages because it is much harder to quantify emotional anguish than it is to quantify moving expenses or medical bills. “Emotional harm may manifest itself, for example, as sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous breakdown. Physical manifestations of emotional harm may consist of ulcers, gastrointestinal disorders, hair loss, or headaches.” See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991. Every case is different, but detailed testimony related to your compensatory damages and the harm you suffered is critical to providing these damages and getting a ruling in your favor. In some instances, the testimony of a doctor may be necessary to help prove damages. Further, when compensatory damages are in issue in the case, employers can sometimes require a complainant to receive a medical examination to aid them in the determination of potential damages. See EEOC Management Directive
MD-110 Chapter 7.

Pecuniary Damages (Also called economic damages)

Pecuniary is legal speak for monetary or economic loss. The definition of pecuniary is “of, relating to, or consisting of money.” Accordingly, you can think of pecuniary damages as economic or monetary damages. These are damages that relate to concrete expenses incurred, or that will be incurred as a result of the discrimination.

Pecuniary losses include, moving expenses, job search expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket
expenses that are incurred as a result of the discriminatory conduct. To recover damages, the complaining party must prove that the employer’s discriminatory act or conduct was the cause
of his loss. The critical question is whether the complaining party incurred the pecuniary losses as a result of the employer’s discriminatory action or conduct. Also, the costs should be reasonable. It would be unreasonable for a person to seek reimbursement of shopping expenses because “retail therapy” was the only way they could feel better about the discrimination they had to face.

Past vs. Future Pecuniary/economic damages

Past economic (pecuniary) damages are generally concrete and can be proven easily. Examples include medical or counseling bills. Future economic damages are more difficult to quantify and are inherently speculative as they seek to cover future and semi-foreseeable economic harms.

Lets say a complainant was subject to a hostile work environment, and during the hearing her treating psychologist testified that she thought the complainant would need counseling for additional year to recover from the discriminatory acts. The cost of that additional year of counseling is an example of a future pecuniary, or economic, damages award.

Regarding the cap on compensatory damages discussed above, future-pecuniary damage awards are subject to that $300,000 damages cap, whereas past-pecuniary damages are not. See EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991.

Attorney’s Fees

When there is a finding of discrimination the complainant can be awarded reasonable attorney’s fees. Typically, these fees go directly to the attorney but in some instances they can be used to offset any payment the complainant made to their attorney, making the representation effectively free. Your eligibility for an award of attorney’s fees will depend on the theories you advanced. Also, only attorney’s can receive attorney’s fees, so if you represent yourself, you will not be awarded attorney’s fees.

Punitive damages

In some instances, punitive damages are awarded if the misconduct in question was particuarly egregious. Punitive damages are awarded to the complainant but are used to punish the offender and deter future misconduct. Punitive damages are available only if the complaining party demonstrates that the respondent engaged in discrimination “with malice or reckless indifference to the federally protected rights of an aggrieved individual.”

As noted above, punitive damages are not available in discrimination cases against the government or federal agencies.

Duty to Mitigate Damages

Complainants have a duty to mitigate damages in discrimination cases. Accordingly, you cannot recover for any harm that you could have avoided or minimized with reasonable effort on your part.

Say an employee is wrongfully terminated for discriminatory reasons. They promptly file a case but it takes a few years to litigate and resolve. If the employee never tries to get another job their eventual backpay award may be offset by a reasonable salary they could have earned had they looked for work. The defendant in the discrimination case will have the burden of proving a complainant failed to mitigate damages. Nonetheless, it is important that complainants be aware of this duty to mitigate and take steps to do so when appropriate. Fleming v. County of Kane, State of Ill., 898 F.2d 553, 560 (7th Cir. 1990) (the burden is on the employer to prove, as an affirmative defense, that the employee failed to mitigate damages when seeking lost wages). However, in federal sector cases their is no duty to mitigate during the administrative process.

Additional Resources

Conclusion

Hopefully this article gave you a better idea of the types of damages available in a discrimination case and the kind of evidence that you need to prove those damages. As stated in the introduction, damages depend greatly on the facts of your case and you need to be mindful that outcomes in other cases may not be predictive of the likely award in your case. Additionally, because the law related to damages is evolving and complex it is best to have an experienced attorney to advise you on what types of damages may be available in your case and what evidence you need to gather to help prove your damages.

 

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Fast Legal Answers: Failure to maintain a condition of employment

Mike Ivancie, Esq.

For my fourth post in the Fast Legal Answers series, I will discuss a common federal disciplinary charge: failure to maintain a condition of employment. This charge is unique in that it typically results in removal of the federal employee. Indeed, this means removal can stem from something fairly benign such as losing computer or building access. Accordingly, some agencies may try to use the failure to maintain a condition of employment charge to remove a trouble employee that has not engaged in other, more substantive, misconduct.

What are conditions of employment?

Conditions of employment include professional certifications, such as bar membership for attorneys, a commercial driver’s license for positions where driving is a requirement, medical credentials for medical professionals, or the ability to carry a firearm for law enforcement officers. Essentially, a condition of employment is any license, qualification, training, or certification that is necessary to perform a specific job.

A security clearance (S, TS, TS-SCI, etc.) for national security positions is special condition of employment. As discussed further below, firings related to loss of a security clearances are harder to challenge and have limited appeal rights.

Other, less commonly cited conditions of employment include access to computer systems and government buildings.

What is an example of a failure to maintain a condition of employment?

Attorney’s that work for federal agencies are required to maintain active bar membership in at least one state. Let us assume our example attorney, John Smith, fails to pay his bar membership fees and fails to complete his required continuing legal education courses. As a result, the state bar rescinds his membership. Shortly thereafter, Mr. Smith’s agency finds out that he is no longer licensed by a state bar to practice law. The employing agency then initiates removal proceedings for failure to maintain a condition of employment. Absent procedural errors or other substantive misconduct, Mr. Smith’s removal for failure to maintain a condition of employment would likely be sustained by the MSPB.

What can I do if I am removed for failure to maintain a condition of employment?

If you a removed for failing to maintain a condition of employment, in some cases you can challenge your removal before the MSPB. You can read more about the process an MSPB case takes in our MSPB legal guide. This entails filing an appeal of the adverse action and potentially attending a hearing where the agency presents the evidence against you and a judge makes a determination as to whether the agency has met its burden of proof. See Adams v. Department of the Army, 105 M.S.P.R. 50, ¶ 10 (2007).  Note that the filing deadlines for an MSPB case are very short (30 days) and you should consult with an attorney as soon as you receive a notice of adverse action.

What rights do you have if you a fired because you lost a security clearance?

If you are removed from the federal service because you lost a security clearance, typically your rights are much more limited. That is because there are essentially two-tracks for reviewing adverse actions against government employees. Actions that are “for cause” are entitled to review, actions that are based on “national security concerns” such as the revocation of security clearance are not. The Supreme Court addressed this issue in Department Of Navy V. Egan, 484 U.S. 518 (1988), where it concluded the MSPB does not have authority to review the substance of an underlying security-clearance determination in the course of reviewing an adverse action.

Two track system illustrated:

Two track system, for cause firings vs. national security concerns federal adverse actions

 

Note that some agencies have special regulations related to removal of clearances and those administrative processes may control in your case. In all likelihood, however, you will not have the right to MSPB review of your removal. Instead, you will have to rely on whatever internal review has been established by your agency.

Conclusion

This is a complicated topic because there are many different ‘conditions of employment’ that can result in an adverse action if they are not maintained. Further, certain conditions of employment are treated differently than others with varying appeal rights. The most common example being security clearance determinations. It is important for employees to understand what, if any, conditions of employment exists related to their position and to be apprised of their rights and obligations related to those conditions. Finally, it is critical that if you are removed for failing to maintain a condition of employment that you contact and consult with an experienced federal employment law practitioner to get expert advice on this very unique area of law.

Hopefully you found this guide helpful. At this time we are not taking on any new clients. All information provided above is for reference purposes and should not be construed as legal advice. You should consult with a licensed attorney before taking any action in your case.

 

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