MSPB Affirms Administrative Judge's Determination that Agency Failed to Prove Appellant's Performance Was Unacceptable

In a recent decision, Muff v. Dept. of Commerce, MSPB Docket No. DC-0432-11-0095-I-1, the Merit Systems Protection Board (MSPB) found that the agency failed to prove by substantial evidence that the appellant’s performance was unacceptable. The appellant was a GS-4 field representative for the Department of Commerce who was removed under 5 USC § 4303 (Chapter 43) for failure to perform in a critical element of her position. The appellant had successfully completed a Performance Improvement Plan (PIP) for a critical element from July to October of 2009. The agency later based its decision to remove the Appellant upon her performance of that same critical element in May 2010.

The appellant appealed her removal to the MSPB where the Administrative Judge found that while the agency did establish that the appellant’s performance of the critical element was unacceptable for May 2010, the appellant’s performance for only one month was an insufficient basis upon which to remove the appellant under Chapter 43. The Administrative Judge also found overwhelming evidence in the record showed that the appellant’s cumulative performance for the year prior to her removal was at the acceptable level.

Under Chapter 43, an agency may remove an employee for unacceptable performance after a successful completion of a PIP if the instances of unacceptable performance are in the same critical element(s) as those involved in the PIP and the agency’s reliance for its action is limited to those instances of performance that occur within 1 year of the advance notice of the PIP. In Brown v. Veterans Administration, 44 MSPR 635, (1990), the MSPB held that if the Administrative Judge determines that the appellant performance the critical element acceptably during the PIP, s/he should then determine whether the appellant continued to acceptably perform. If the Administrative Judge finds that the appellant had performance failures, s/he is then to determine whether those failures, in light of the appellant’s performance during the year prior to the notice of proposed removal, amounted to unacceptable performance. Id., at 644. The Board reiterated its previous statement in Sullivan v. Dept. of the Navy, 44 MSPR 646, 656 (1990), that rather than imposing a blanket rule, the MSPB will have to determine on a case-by-case basis whether an agency’s evidence of post-PIP performance constitutes substantial evidence of truly unacceptable performance.

For federal employees who have successfully completed a PIP, this decision provides a good reminder that subsequent poor performance can be considered by the agency in a later decision to remove the employee. However, this decision also provides guidance to agencies regarding the very careful consideration necessary when proposing the termination of a federal employee under Chapter 43.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this
information should not be relied upon without first consulting with an attorney regarding your specific situation. To arrange a consultation with the Law Offices of Lynette A. Whitfield, LLC, please call 301.869.8774, or click here to make your request for a consultation via my webpage.

EEOC Finds OPM Not Required to Reasonably Accommodate Applicant After Vacancy Announcement Closing Date

In Toland v. Office of Personnel Management, Appeal No. 0120081214 (June 9, 2011), the U.S. Equal Employment Opportunity Commission, Office of Federal Operations, held that an Agency is not required to reasonably accommodate an applicant when the applicant requests a reasonable accommodation after the vacancy announcement closing date.

The Appellant was an applicant for an administrative law judge position with the U.S. Office of Personnel Management. The vacancy announcement, posted on USAJOBS, closed on May 9, 2007. On May 10, 2007, the Appellant emailed the Agency stating that she was a "Schedule A handicapped applicant" and requesting a reasonable accommodation. On June 1, 2007, the Appellant received a response advising her that the vacancy announcement had closed prior to her request for reasonable accommodation and that any such request had to be made while the announcement was open. The Appellant then filed a complaint that the Agency had discriminated against her on the basis of her disability when it denied her request for reasonable accommodation in the application process.

The Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities. Under the EEOC's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of qualified individuals with a disability unless the Agency can show that accommodation would impose an undue hardship. For applicants for employment, the Commission's policy states that an employer must provide a reasonable accommodation to a qualified individual with a disability that will enable that individual to equally participate in the application process.

In the Toland case, the announcement provided instructions for requesting a reasonable accommodation while the announcement was open. The Commission held that the application process and the Agency's obligation to accommodate the applicant during that process, terminated on May 9, 2007, the date the announcement was closed.

For qualified individuals who are applying to federal sector employment, this decision presents a good reminder to carefully examine the language in the vacancy announcement regarding requesting a reasonable accommodation.

Ms. Whitfield represents federal sector employees nationwide. If you would like to discuss your employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.


This blog is not intended to provide legal advice or representation but rather to provide very general information regarding a variety of subject areas. The viewing of this information does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Reverses Removal of Federal Employee for off-duty criminal misconduct

On June 17, 2011, the U.S. Merit Systems Protection Board (MSPB) issued a decision reversing the removal of Kevin Gray for off-duty criminal misconduct, finding that the Agency violated Mr. Gray's constitutional right to due process of law. Gray v. U.S. Dept. of Defense, 2011 MSPB 64.

Mr. Gray, an Internal Review Auditor with the Defense Finance and Accounting Service, was indicted and later convicted of two felony counts of receiving stolen property arising out of his alleged participation in a mortgage fraud scheme. The Agency proposed to remove Mr. Gray based upon his felony convictions. The deciding official issued a decision sustaining the charge and finding that a nexus existed between Mr. Gray's off-duty criminal conduct and his ability to perform his duties, and that the penalty of removal was appropriate.

Mr. Gray filed an appeal of the Agency's decision to terminate his employment on the basis that, among other things, the deciding official considered information concerning his eligibility as a convicted felon to hold a sensitive position, without first providing advanced notice of this matter. The Administrative Judge upheld Mr. Gray's removal and Mr. Gray appealed the Administrative Judge's decision to the Board.

Federal employees have a constitutional right to a minimum due process of law, which requires prior notice of the charges against him, an explanation of the Agency's evidence againt him, and an opportunity to respond. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985). If an employee is not provided with this minimum due process, the adverse action will be reversed.

The Board held that the Agency neither revoked Mr. Gray's eligibility to occupy a sensitive position nor removed him for ineligibility to hold a sensitive position. Further, the Board held that while the Agency considered information regarding Mr. Gray's ability to hold a sensitive position, the Agency failed to include this information in the proposal notice and as such violated Mr. Gray's due process guarantee to notice.

For Federal employees this decision reaffirms the constitutional right of all Federal employees to notice and an opportunity to respond to the charges against them.

If you would like to discuss your employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained in this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

EEOC Releases Annual Report on the Federal Work Force

The U.S. Equal Employment Opportunity Commission (EEOC) has released Part 1 of its Annual Report on the Federal Work Force. One interesting statistic contained in this report is the top 3 bases in complaint allegations. According to this report, in the 17,583 complaints filed in FY 2010, the top alleged basis was reprisal/retaliation.


Current Federal sector employees and those seeking employment with the Federal Government will find the government-wide profile, and the individual profiles for selected Federal Agencies interesting.


This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained in this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

EEOC Issues New Q&A Aimed At Increasing Federal Employment Opportunities for People With Disabilities

On August 28, 2008, the EEOC issued a new question and answer document aimed at increasing the federal employment opportunities for people with disabilities. This new publication answers frequently asked questions about what the law both allows and requires federal agencies to do with respect to the hiring and employment of individuals with disabilities.

As per Section 501 of the Rehabilitation Act of 1973 (Section 501), federal agencies are charged with promoting the hiring and retention of individuals with disabilities by becoming a model employer of individuals with disabilities and ensuring employment non-discrimination and reasonable accommodation.

Section 501 requires all agencies, regardless of their size, to have an affirmative action program plan for individuals with disabilities. Under Section 501, a “disability” means: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of a substantially limiting impairment; or (3) being regarded (i.e. treated) as having a substantially limiting impairment.

In January 2008, the EEOC issued a report detailing its assessment of federal agencies’ efforts in this area, and specifically suggesting improvements agencies could undertake to increase the number of federal employees with certain targeted disabilities.

This new question & answer document covers frequently asked questions ranging from Schedule A appointment authority for individuals with targeted disabilities, to the processing of employee requests for reasonable accommodations. This document is an especially helpful reference for federal employees with disabilities as it clearly outlines the obligations of federal agencies as it relates to the employment and reasonable accommodation of employees with disabilities. For more information, the question & answer document can be found at http://www.eeoc.gov/federal/qanda-employment-with-disabilities.html

If you would like to discuss your federal employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Reverses Removal of Federal Employee

In September 2006, the Department of Homeland Security proposed Gilberto M. Rodriguez’s removal from his position as a senior criminal investigator for Immigration and Customs Enforcement on the charge that Mr. Rodriguez had falsified official government documents and made false statements. After a hearing at the Merit Systems Protection Board, the Administrative Judge sustained the Agency’s charges. Mr. Rodriguez requested reconsideration and on April 10, 2008, the Board found that the Agency did not prove its charges and did not sustain Mr. Rodriguez’s removal.

The Agency’s first charge alleged that while processing an undocumented alien in the Agency’s custody, Mr. Rodriguez falsified agency form I-213 by indicating a specific Assistant United States Attorney (AUSA) had declined the alien’s prosecution. Mr. Rodriguez testified that he used the duty roster to determine which AUSA he had spoken to about the prosecution of the alien. The Agency did not find Mr. Rodriguez’s response to the charges to be credible, and inferred that this lack of credibility coupled with the incorrect information, constituted circumstantial evidence that Mr. Rodriguez had knowingly supplied incorrect information.

A falsification charge contains an element of intent which must be proven by preponderance of the evidence and in consideration of the totality of the circumstances involved. To sustain a falsification charge, an agency must prove that the employee knowingly supplied incorrect information with the intent of defrauding the agency. Thus, establishing that the employee supplied incorrect information is not, by itself, enough to sustain the falsification charge.

Charges such as “improper conduct” or “failure to obey orders,” do not contain a specific intent element and the Board’s decision indicated that Mr. Rodriguez’s actions might support a charge for this type of conduct. However, the Board is unable to substitute the charge that it deems more appropriate, but is instead limited to a review of the Agency’s decision and the charges put forth by the Agency. Therefore, the Board held that the Agency had not proven the “intent” element of the charge and therefore the falsification charge could not be sustained. The Agency was ordered to cancel the removal action and to retroactively restore Mr. Rodriguez’s employment.

Federal employees who are subjected to an adverse action based upon a charge that requires intent should be aware that the agency bringing these charges against the employee will need to establish that the employee actions were intentional, not simply negligent or unintentional.

Case discussed: Rodriguez v. Dept. of Homeland Security, Docket No. DA-0752-07-0177-I-1, 2008 MSPB 85 (April 10, 2008).

If you would like to discuss your federal employment issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

EEOC Issues Report on Federal Employment of Individuals With Targeted (Severe) Disabilities

The federal government is supposed to be a “model employer” when it comes to employment practices, including the hiring of individuals with disabilities. However, the federal government has not lived up to that standard as the number of federal employees with targeted or severe disabilities has been steadily declining. In 2006, the number of federal employees with targeted disabilities was at .94%, the lowest rate in over 20 years. On January 15, 2008, the U.S. Equal Employment Opportunity Commission (EEOC) issued a report regarding strategies that federal agencies can utiliize to improve the hiring of individuals with targeted disabilities. Targeted disabilities include deafness, blindness, missing extremities, paralysis, seizure disorders, distortion or limbs or spine, mental illness and severe intellectual impairments.

In recognition of the declining number of federal employees with targeted disabilities, EEOC Commissioner Christine M. Griffin is heading the EEOC’s new Leadership for the Employment of Americans with Disabilities (LEAD) Initiative. The LEAD Initiative seeks to educate federal agencies about their obligations regarding the hiring and advancement of individuals with targeted disabilities, and to provide guidance regarding how to increase the number of federal employees with targeted disabilities.

One of the ways in which federal agencies are able to hire individuals with severe disabilities is through the Schedule A hiring authority. Using the Schedule A hiring authority, Agencies are able to hire individuals with severe disabilities noncompetitively. Eligibility for Schedule A employment is establish by the submission of proof of disability and certification of job readiness. Individuals with severe disabilities who live in Maryland can obtain this certification through the Maryland State Department of Education, Division of Rehabilitation Services (DORS). Individuals with severe disabilities can obtain more information about opportunities within the federal government by visiting the Office of Personnel Management’s (OPM) website.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

Federal Workers Compensation

Last week I was in Chicago for the 2nd Annual Workers Compensation in the Federal Workplace conference. Attending conferences like this one is just one way in which I keep up with new developments in the areas that I practice. Because many people may not understand the distinction between state and federal workers compensation programs, the following is a very brief overview.

Under the Maryland Workers’ Compensation Act, when an employee is injured at the workplace, the employee can file a claim for compensation with the Maryland Workers’ Compensation Commission. As with most other aspects of employment, Federal employees have an entirely different workers compensation process that is governed by a different statute, the Federal Employees’ Compensation Act (FECA). FECA claims are administered by the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). Under FECA, federal employees are able to receive compensation not only for physical injuries and occupational diseases, but also for mental health conditions that were incurred at work.

One of the most important things to remember is that there is a deadline for filing workers compensation claims. Federal employees generally have three years from the date of a traumatic injury to file a claim for workers compensation. For occupational illness or disease, the employee has three days from the date that the employee first became aware of the illness, or from when the employee became exposed to the occupational hazard. In cases involving the death of the employee, the employee’s beneficiary has three years from the date of death, or three years from the date that the beneficiary first became aware of the connection between the employee’s death and the workplace. It should be noted that these deadlines are different for injured workers in the private sector.

If you are a Federal employee who has suffered a workplace injury, the first thing that you should do is make your employer aware of your injury. Each Agency’s human resource office maintains information regarding FECA claims. In addition, the Office of Workers’ Compensation Programs maintains a website that has useful information for claimants, including a frequently asked questions document for employees. OWCP’s website also contains Employee Compensation Appeals Board (ECAB) decisions from 1998 to the present.

If you would like to discuss your workers compensation issue, please contact Ms. Whitfield for a consultation at 301.869.8774, or via the online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

All About Timing – Federal Sector EEO Complaint Processing

When it comes to filing an EEO complaint, for federal employees it is all about timing. In the federal sector EEO process, there are deadlines for both the employee, as well as the Agency. The following is a brief overview of the federal sector EEO process. Please remember that the process for private sector employees is very different than that of the federal sector employee.

Federal employees have 45 days from the date of the discriminatory action to contact an EEO counselor. This 45-day deadline for federal employees is much shorter than the time period that private sector employees are given to complain about discriminatory actions. While 45 days may sound like a long time, to avoid accidentally missing this deadline, federal employees should contact their EEO counselor as soon as possible after the discriminatory act occurs.

Once the initial contact with the EEO counselor has been made, the employee can chose to engage in Alternative Dispute Resolution, or in traditional EEO counseling. If the employee chooses the traditional counseling route, the Agency has 30 days to complete counseling. If the employee chooses the ADR route, then the Agency has 90 days to complete ADR. After counseling or ADR has been completed, the agency should issue a notice that includes information regarding the employee’s right to file a formal EEO complaint. It is important to remember that the employee has only 15 days from the date this notice is received to file a formal complaint. If the Agency fails to issue this notice within the time period allowed, the employee can ask, in writing, for a notice of right to file a formal complaint.

When the formal complaint has been filed, the Agency has 180 days to complete its investigation of the complaint. At the end of the investigation, the Agency then has to send the employee a copy of the Report of Investigation, as well as a notice of the employee’s right to file a formal EEO complaint. Employees have 30 days from the date that they received the Report of Investigation to request a hearing. If it has been more than 180 days since the formal complaint was filed, the employee can request a hearing before an Administrative Judge, even without first receiving the ROI.

For more information about the processing of EEO complaints for federal employees, a good starting place is your own Agency’s website. In addition, the EEOC’s website has a section specifically for federal sector employees, and on this page you can find detailed information regarding the processing of EEO complaints. To schedule a consultation to discuss your federal sector EEO complaint, please contact Ms. Whitfield at 301.869.8774, or use our online consultation form.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation.

MSPB Waives Deadline for Mentally Incompetent Employee’s Disability Retirement Application

In a recent decision, Creasy v. Office of Personnel Management, MSPB Docket No. DC-831-07-0074-I-1 (September 21, 2007), the Merit Systems Protection Board (MSPB) found that Mr. Creasy was mentally incompetent and therefore waived the deadline for filing and remanded the case to the Office of Personnel Management (OPM).

Mr. Creasy was a Crane Operator Supervisor with the Department of the Navy who resigned in January 2002. In October 2004, Mr. Creasy was admitted to a hospital after an episode of strange behavior, and in April 2005, was readmitted when he stopped taking medication and began to show signs of paranoia, lethargy, auditory hallucinations and erratic behavior. In August 2005, Mr. Creasy, with the assistance of his sister, filed an application for disability retirement benefits under the Civil Service Retirement System (CSRS), citing medical, as well as mental health problems. Mr. Creasy’s application was denied on the grounds that he did not apply within a year of his separation from service.

Federal employees who wish to apply for disability retirement must do so within one year after the date of the employee’s separation from federal service. The deadline for applying for disability retirement is waived only if the employee was mentally incompetent to file within the time frame for filing.

In French v. Office of Personnel Management, 810 F2d 1118 (Fed. Cir. 1987), the MSPB explained to meet the standard for mental incompetence an employee must show that s/he was unable to handle her/his personal affairs because of mental disease or injury. While it is not necessary that the employee is committed to a mental institution to meet the mental incompetence standard, this standard is still not easily met. To determine whether an employee met the standard for mental incompetence, the Board requires the submission of medical evidence to support the employee's assertion that s/he is mentally incompetent.

In support of his case, Mr. Creasy presented not only medical evidence of his mental health condition, but also statements by family members and friends who had witnessed his mental and physical decline. The Board found that the Administrative Judge (AJ) had not give sufficient weight to the testimony of Mr. Creasy’s doctor, and discounted the doctor’s conclusions based upon the AJ’s own reading of the DSM-IV-TR. The Board determined that the AJ, not being a medical doctor, could not override the doctor’s professional conclusion with her own interpretation of the DSM-IV-TR. The Board remanded Mr. Creasy’s case to OPM for a determination on the merits of Mr. Creasy’s application for disability retirement.

For Federal employees who are interested in more information regarding disability retirement, the Office of Personnel Management is a very good place to start. Employees who are qualified under CSRS can find information on this website, and employees who are qualified under FERS can find information on this website. The regulations regarding the application deadline for disability retirement can be found at 5 U.S.C. 8337(b) for employees under the Civil Service Retirement System (CSRS) and 5 U.S.C. 8453 for employees under the Federal Employees’ Retirement System (FERS). To schedule a consultation to discuss disability retirement issues, please contact Ms. Whitfield at 301-869-8774, or use the online consultation request.

This blog is not intended to provide legal advice or representation, but rather to provide very general information regarding a variety of subject areas. The viewing of the information contained on this blog does not create or establish an attorney-client relationship. Further, this information should not be relied upon without first consulting with an attorney regarding your specific situation. To arrange a consultation with the Law Offices of Lynette A. Whitfield, LLC, please call 301.869.8774, or click here to make your request for a consultation via my webpage.