VA Cannot Use 2017 Accountability Law to Terminate “Hybrid” Employees
A GS-5 Nursing Assistant occupying a “hybrid” Title 38/Title 5 position was terminated from the Department of Veterans Affairs pursuant to the relatively recent expedited removal authorities of 38 U.S.C. § 714 (2017).
FMLA & OWCP Claims Aren't Protected Activity, MSPB Rules
A Department of Veterans Affairs employee was terminated for threatening agency employees after HR called the hospital to confirm the employee’s claim that he had not been released.
Agencies Can Reissue Disciplinary Actions While Pursuing Appeal of Procedural Loss
The U.S. Court of Appeals for the Federal Circuit found lawful an agency’s decision to propose a new termination action while still pursuing its appeal of its first termination action.
MSPB Finds Veterans Employment Violations Require Reconstructed Selection Process
The Merit Systems Protection Board (MSPB) ruled that an agency’s mere reannouncement of the original vacancy doesn’t constitute a proper reconstruction under veterans’ preference laws.
What Kind of “Significant Change” in Working Conditions Protects Whistleblowers?
The law recognizes managers retaliate against whistleblowers via personnel action. Though common, one of the hardest to quantify is “significant change in duties, responsibilities, or working conditions.”
MSPB Adopts New Element of Proof in Performance Removal Cases
In Lee v. Department of Veterans Affairs, the Merit Systems Protection Board (MSPB) added a new element of proof to sustain a performance-based adverse action with an appeal: accountablity prior to the PIP.
OSC Made “Preliminary Determination” Closing Your Case? No Response Needed Says MSPB
When an employee exhausts administrative remedies through the Office of Special Counsel (OSC), they gain the right to appeal directly to the Merit Systems Protection Board (MSPB).
MSPB Imposes Issue Exhaustion Requirement in Appointments Clause Case
The Merit Systems Protection Board (MSPB) has broken from the U.S. Supreme Court’s recent decision in Carr v. Saul, holding its adversarial nature of proceedings requires issue exhaustion.
Federal Circuit Rejects Perceived Whistleblowing Claim
The Merit Systems Protection Board (MSPB) has long recognized claims where the employee has not made a protected disclosure, where supervisors perceive the employee to be a whistleblower.
Federal Circuit Clarifies Definition of “Abuse of Authority”
In an internal investigation, an Army doctor working testified that the commanding officer of the Army hospital harassed his wife and intimidated him after his wife filed a complaint.
McCray v. Biden: Federal Judge Denies Request to Enjoin the Vaccine Mandate
On December 7, 2021, a federal judge of the U.S. District Court for the District of Columbia denied a federal employee’s motion for a temporary restraining order. The employee sought to enjoin enforcement of the President’s executive orders directing federal agencies to require COVID-19 vaccination for federal employees and contractors, and requested the court declare that the President’s orders were unlawful.
Fourth Circuit: No Disparate Impact Claims Under ADEA for Feds
A former Bureau of Prisons employee claimed that BOP’s fitness test disparately impacts those older than 40. On November 17, 2021, the United States Court of Appeals for the Fourth Circuit held that sovereign immunity protected the government from such a suit as the Age Discrimination in Employment Act’s (ADEA) federal sector provision did not provide for a disparate impact cause of action.
The Performance Evaluations' Stake in Certain Misconduct Allegations
A passport specialist at the Department of State (DOS) was terminated based on four charges, and eighteen specifications, of misconduct. Eleven of those specifications came in a charge of failure to follow instructions. He argued that his fully successful performance evaluation should be considered as evidence that he consistently followed instructions.
Federal Circuit: Yes, You Can Be Terminated for One Bad Email
On October 8, 2021, the Federal Circuit Court of Appeals affirmed that federal employees can be fired for one e-mail, if the e-mail is sufficiently disrespectful. The employee appealed his removal to the Merit Systems Protection Board (MSPB).
OPM Issues Vaccine Requirement Enforcement Guidelines for Federal Agencies
The deadline for full vaccination set by the Executive Order is November 22, 2021. According to the OPM guidance, OPM recommends that agencies begin the disciplinary process as soon as November 9, 2021, rather than waiting for the deadline.
President Biden Mandates COVID-19 Vaccination for Federal Employees
On September 9, 2021, President Biden issued an “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” an executive order “requir[ing] COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”
Federal Circuit Disputes VA’s Interpretation of 2017 “Accountability” Law
In two opinions issued on August 12, 2021, the United States Court of Appeals for the Federal Circuit found that the Department of Veterans Affairs erroneously interpreted the provisions of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 when disciplining its employees. The purpose of the 2017 law, codified at 38 U.S.C. § 714, was to provide for expedited discipline of VA employees, strip MSPB of its authority to mitigate the VA’s chosen penalty, and to impose a less rigorous burden of proof on the agency at the appellate level than a traditional MSPB appeal.
Santos v. NASA: DOJ Declines to Petition the Court for Rehearing
We previously reported on the Federal Circuit’s panel decision in Santos v. NASA, issued on March 11, 2021. That decision held that pursuant to 5 U.S.C. § 4302(c)(6), when employees challenge their PIP-based performance terminations at MSPB, federal agencies must prove that employees deserved to be put on a PIP in the first place. The case turned on the meaning of the words “continue to,” used in Section 4302(c)(6), and whether that statutory language imposed a requirement on the agency to prove pre-PIP unacceptable performance. The panel opinion said yes.