RETIRE OR BE REMOVED! MAKE YOUR DECISION NOW.
More than a few employees have faced that choice. Some managers have even issued the proposed removal letter, heard the reply, and shown the employee the signed decision letter to force them to officially leave “voluntarily.” In the early days of the Civil Service Reform Act if an employee retired under threat of removal he could not get back pay or even reinstatement even if he won his appeal. That is not so anymore, which gives the targeted employee some options.
A recent MSPB decision is a good reminder of how union reps should handle these situations. The MSPB rules go like this.
1. If management merely threatens to start removal procedures and the employee retirees to avoid the stress and stigma, the employee can appeal. However, he/she will have to prove that the resignation was involuntary. That is a hard case to win before MSPB or an arbitrator. Merely showing that he/she faced an unpleasant choice is not good enough. The employee has the burden to prove that the retirement was the result of the agency’s misinformation, deception, coercion or discrimination.
2. If management issues a formal letter of proposed removal and the employee resigns before giving a reply, the same rules will likely apply. MSPB insists on a degree of certainty about a final agency decision to remove.
3. However, if the employee takes the proposed removal letter, gives a reply, and gets a clear indication that the decision has been made to fire him/her, the employee does not have to prove the resignation was involuntary. Instead, the Board lets the employee challenge the removal as if the agency had actually removed him/her. The advantage is that the burden shifts to the agency to prove it had a strong enough case to sustain a removal. If it can’t prove that, then the employee is entitled to be reinstated with back pay even if he/she is already cashing retirement checks.
Relying on a case known as Mays v. Dept. of Transportation, 27 F.3d 1577, (Fed. Cir. 1994), the MSPB stated the rules this way in the Paula decision:
Where . . . an employee decides to retire because his employing agency has issued a decision to remove him, and the employee retires on the date the removal was to become effective, the employee does not lose the right to file a Board appeal contesting the removal. . . . Whether the appellant’s retirement was involuntary . . . need not be addressed. If the agency is unable to support its removal decision, then the appellant is entitled to all the relief he could receive if he could show that his retirement was coerced, and his involuntary retirement claim would thereby be mooted. Conversely, if the agency is able to show that it properly decided to remove the appellant . . . then he could not establish that his retirement was involuntary. Therefore, the appeal, which is properly before the Board as an appeal from an express decision of removal, can be adjudicated without regard to “constructive removal” (involuntary resignation or retirement) doctrine. Paula v. SSA, 2013 MSPB 6 (2013)
So, if an employee comes to a union rep panicking over a threatened and unjust removal while also talking about retiring so that he/she gets at least some income, the rep should calm him/her down and explain the options. While the employee risks having a termination on his/her record if the agency meets its burden, the agency risks having to reinstate the employee with back pay, interest, compensatory damages if discrimination is involved, and attorney fees. If this situation does arise, check your facts with a qualified attorney. FEDSMILL postings should not be taken as official legal advice.