An employee who retires after the agency issues its decision to remove him, but before the effective date of the removal, may still appeal his removal to the Board. Mays v. Department of Transportation, 27 F.3d 1577, 1578-81 (Fed. Cir. 1994). See Howard Sipe, Appellant, v. Dep’t. of Veteran Affairs, Agency. Doc. No. DE-0752-15-0513-I-1 (August 24, 2022) Whether the employee can appeal to arbitration will be determined by the contract language.
You will be surprised to see what can be included and it all depends on how you draft the grievance. Continue reading
An agency removed a supervisory employee based on the charge of conduct unbecoming a supervisor, supported by two specifications. But MSPB upheld his removal based on specifications that were never listed in the proposed removal letter. That is a great win for HR Specialists who no longer need do the hard work of formally notifying the employee why it is removing him. All they need write in the future is a description of one or two incidents and then throw in the phrase, “and lots of other times you screwed up.” Here are the details of how MSPB is ignoring employee due process rights just to make HR’s job easier. Continue reading
The Federal Circuit Court of Appeals just reminded us that while it is possible to challenge, appeal or arbitrate a dispute over whether a last chance agreement permitted the agency to terminate an employee without any opportunity to appeal, the employee must be able to show one of three things, i.e., that
For details, check out Ross v. MSPB, No. 2021-2262 (Fed. Cir. Feb. 10, 2022) for an IRS Agent who failed to show any of those.
We have a lot of respect for the top leaders at the DOD Education Activity (DoDEA), but based on a new EEOC decision it looks like they have a lot of work to do with changing organizational values at the lower levels. From where we and EEOC sit, they not only had a school principal who let a co-worker torment women, but the agency’s national ER and counsel staffs jumped in to defend the blatant misogynistic behavior. But we will let you judge for yourself. Here is what the EEOC found to be the facts. Continue reading
A supervisory Customs and Border Protection employee was not at work for more than half of the fiscal year due to cancer treatment and surgery. Nonetheless, he felt he was entitled to an annual performance award like his peers. When the agency did not grant it, he filed an EEOC disability discrimination charge. Surprisingly, agency officials confirmed that the absence for surgery and cancer treatment was the reason that Complainant was denied a cash award. EEOC decided that CBP violated the Rehabilitation Act because there was direct evidence linking Complainant’s disability and related accommodations to the cash award denial. Consequently, the employee got his $2,500 award, another $1,00 in damages, and almost $10,000 in attorney fees. He also got an EEOC order that CBP consider disciplining the Post Director. See Darrin F., v. Alejandro N. Mayorkas, Secretary, DHS, CBP, EEOC Appeal No. 2021000554 (2022)
An Immigration and Customs Enforcement employee, the only African-American in her office, found that a co-worker had come into her office and drawn a monkey face on her whiteboard. When she asked management to do something about the harassment, it did. It transferred her to another location that wound up costing her relocation costs. She also lost her private office in the move. When she filed an EEO complaint, EEOC stepped in to order her reassigned back to her old office and the person who drew the cartoon moved elsewhere. Continue reading
The vast majority of negotiations in the federal sector involve an agency-proposed mid-term change, and in the overwhelming majority of those cases the union representatives are not full-time national staff, but local leaders. Unfortunately, those local leaders are lucky to get between 4 and 8 hours of formal classroom training on bargaining from their union. Consequently, it breaks our heart when we see that time wasted with a poorly constructed training program. There seem to be two types of negotiation training programs out there. One is designed by big picture folks as more of a survey course and the other by those who know from extensive table experience the nitty gritty skills that actually determine success or failure at the bargaining table. So, having come out of the former group, we want to share our thoughts about what a local or mid-term bargaining training program should include. Continue reading
Although MSPB said they were just drawing on prior court of appeals decisions, it sure looks like a new defense to us. At a minimum, they added enormous clarity to an idea that was only between the lines in those court decisions. The employee, a DoD GS-14 Security Specialist, paid for his food at the agency cafeteria and then circled back into the buffet area where he added a couple of things to his lunch. Unfortunately, in a rush to adhere to his diabetic eating schedule, he failed to pay for the $5.00 worth of extras, and even more unfortunately for him the agency security cameras caught this heist in detail. When a manager spotted him making his way to his table to eat, the agency fuzz was called in, surrounded him, and forced a confession out of him. A few weeks later he was removed despite his 30-year unblemished career and the reality that the agency was tossing all that training, experience, and skill out the door over a one-time $5.00 debatable theft. It surprised us how he won his MSPB appeal given that the Board may be the last place on earth, under any White House administration, where common sense and compassion rule the day. Continue reading