Kator, Parks, Weiser & Harris, PLLC

A Washington, D.C. based law firm with a civil practice in employment law

Category: MSPB (page 1 of 2)

KPWH Partner Cathy Harris Nominated to be Chair of MSPB

KPWH Partner Cathy Harris has been nominated by President Joe Biden to serve as the Chair of the Merit Systems Protection Board. The nomination was announced by the White House on April 28, 2021. You can see the White House press release by clicking here.

Whistleblower Protection Beyond OSC

In recent years, federal employees have become more familiar with their rights under the Whistleblower Protection Act and their ability to file complaints with the U.S. Office of Special Counsel.   Despite this heightened awareness of federal whistleblower protections, many federal employees are unfamiliar with whistleblower protections under other laws.  These other provisions, like those under the Occupational Safety & Health Act and Consumer Financial Protection Act (Dodd-Frank), provide for additional protections, procedures, and remedies for federal employees that they may not have elsewhere.

The Occupational Safety and Health Administration (OSHA) has been given the authority to receive complaints under 22 different whistleblower retaliation provisions.  Some of these statutes prohibit retaliation against federal employees who make disclosures under a given act.  They also provide for administrative remedies that may be different than which can be obtained from the Office of Special Counsel.

The additional protections may duplicate administrative procedures and remedies for federal whistleblowers.  Because of this, federal employees often have to choose whether to file a complaint under the Whistleblower Protection Act with the Office of Special Counsel, seek protection under one of the alternatives, or both. In addition, different deadlines apply to the different statutes, and can be quite confusing.  For this reason, we encourage federal employees who may have whistleblower claims to consult with an experienced attorney as soon as possible.  The following websites have additional information about whistleblower protection laws and applicable deadlines:

Consumer Financial Protection Bureau
Department of Labor

To discuss your possible whistleblower retaliation case, contact Kator, Parks, Weiser & Harris.

IRS Employees Have Rights

Every so often, scandals at federal agencies whip through the news cycle. Frequently, long time federal employees can be improperly targeted in the subsequent attempts to correct perceived problems and clean house.  And, to be sure, there may be instances where disciplinary action is appropriate. But due process rights must be followed and any penalty imposed should be fair and equitable. If you are a federal employee facing a proposed disciplinary action, or think you might be facing a proposed disciplinary action in the near future, please contact KPW at (202) 898-4800 for a free initial consultation.  Our Washington, DC based firm has been representing federal employees for more than 20 years in proposed disciplinary actions and in appeals of imposed disciplinary actions to the U.S. Merit Systems Protection Board. Jessica Parks serves as the Chair of KPW’s MSPB practice section.  Ms. Parks served as an Administrative Judge with the MSPB’s Atlanta Regional Office.  President George H.W. Bush appointed Ms. Parks to serve as one of the three Board Members of the MSPB, and her appointment was confirmed by the U.S. Senate.  President Bill Clinton elevated Ms. Parks to the position of Vice Chair of the MSPB.  While at the MSPB, Ms. Parks decided hundreds of cases, establishing important principles related to protecting employees’ due process rights, guaranteeing fair consideration of adverse actions, and enforcing reasonable and just levels of penalties. Read more about our firm’s MSPB practice here.

KPW Talks Furlough Legal Rights with Washington Post

KPW Co-Manager Jessica Parks was contacted by The Washington Post to provide expert perspective on possible federal employee furloughs.  In an article published February 27, 2013, The Washington Post quoted Ms. Parks regarding possible legal issues that could arise if federal employees are furloughed due to sequestration.  In the article, “Sequester a nightmare for appeals agency,” The Washington Post wrote, “In terms of precedent, furlough cases are ‘largely unexplored territory,’ said Jessica Parks, a former MSPB vice chairman who is now with Kator, Parks & Weiser. She said that many earlier cases involved special rules applying to one small group of employees, administrative law judges.”

Ms. Parks discussed possible legal challenges that may be available to federal employees subject to a furlough order: “‘It comes down to: Are there going to be fairness issues? And that depends on how each agency handles it,’ Parks said. …. ‘While that may sound simple, we see in our practice that agencies often don’t follow procedures correctly,’ Parks said. ‘Sometimes they make mistakes. If that happened in a particular case, it could result in the reversal of an action and then back pay and other relief.'”

If you have questions about your possible legal rights related to a furlough order, contact KPW now (at 202-898-4800) to discuss your legal options.

Due Process and Adverse Actions Taken Against Federal Employees

When a federal agency takes an adverse action against a non-probationary federal employee, it must follow basic due process requirements.  The ultimate adverse action is subject to being reversed by the Merit Systems Protection Board (MSPB) if due process is not followed.  The basic requirements are that non-probationary employees must be provided at least 30 days’ advance written notice of the adverse action as a proposed adverse action unless the “crime provision” exception applies.  Adverse actions are generally defined as a suspension for more than 14 days, a demotion or a removal from federal service.

When such an adverse action is proposed, the agency must state the specific reasons for the adverse action in the notice, and the employee must be given an opportunity to review any and all materials relied on in proposing the action.  During the advance notice period, the employee must be given an opportunity to respond, both orally and in writing to the proposal notice, and present additional information, including affidavits.

The agency’s deciding official must consider only the reasons stated in the proposal notice, and the employee’s reply.  If the agency considers any additional information in reaching the adverse action decision, there is a likely due process violation and the action may be reversed in an appeal filed with the MSPB.  Additional new information that relates either to the charged misconduct or to aggravating factors supporting an enhanced penalty could be determined by the MSPB to be constitutionally impermissible if the employee did not have a chance to respond to that information.

If the MSPB concludes that due process was not followed, the Board can reverse the action, and the employee would be entitled to a new and constitutionally correct proceeding.

What Evidence Do You Need to Support a Whistleblower Retaliation Claim?

Federal employees are protected from retaliation for protected whistleblowing activity.  But what evidence do you need to support a whistleblower retaliation case?  A recent decision by the Federal Circuit helps clarify what evidence should be reviewed.

What is Whistleblowing?

Whistleblowing means disclosing information that an employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Whistleblower Protection Act

In 1989, Congress enacted the Whistleblower Protection Act, which, among other provisions, prohibits retaliation for whistleblowing.  See 5 U.S.C. § 2302(b)(8).  In order for an employee or applicant to prove retaliation for whistleblowing, the courts have employed a burden-shifting scheme, where the employee or applicant must prove by a preponderance of the evidence that he or she made a protected disclosure that was a contributing factor in the personnel action threatened, taken, or not taken against the employee or applicant.  If the employee or applicant is able to establish that the protected disclosure was a contributing factor, the Merit Systems Protection Board (“MSPB”) will order corrective action unless the agency can demonstrate by clear and convincing evidence that it would have taken “the same personnel action in the absence of such disclosure.”  5 U.S.C. § 1221(e).  The clear and convincing standard of proof is higher than the preponderance of the evidence standard.

Under Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the MSPB must weigh three factors in making a determination whether an agency has met the clear and convincing standard of proof: (1) the strength of the agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers.

Whitmore Decision

In a recent case, the United States Court of Appeals for the Federal Circuit, the court stated that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.”  Whitmore v. Department of Labor, No. 2011-2084 (Fed. Cir. May 30, 2012).

In Whitmore, the Federal Circuit reviewed an appeal from a former employee who challenged the Department of Labor’s decision to remove him for his allegedly disruptive and insubordinate behavior.  The MSPB affirmed the agency’s removal decision, and held that the employee did not prove his affirmative defense that the removal constituted unlawful retaliation for making protected disclosures.  The Federal Circuit reversed the MSPB decision, and remanded the case for further fact finding.

The court stated that the MSPB excluded or ignored evidence offered by the employee that was necessary to adjudicate his claim of whistleblower retaliation.  Specifically, the MSPB failed to evaluate all the relevant evidence in the aggregate, as the MSPB focused solely on the evidence that supported the agency’s removal decision.  The court also found that the MSPB erred when it excluded witnesses from the hearing who could have supported the employee’s claim of whistleblower reprisal.  And the court found the MSPB’s interpretation of “similarly situated” employees who were not whistleblowers to be unduly restrictive, as the required degree of similarity between employees cannot be read so strictly that the only evidence helpful to the inquiry is completely disregarded.

The court reaffirmed the vital role that whistleblowers play in society and the critical need to protect them:

“Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate.  Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation.”

The attorneys at Kator, Parks & Weiser have extensive expertise in representing federal employees who allege retaliation for making protected whistleblowing disclosures.  Contact us today for a free consultation.

Coerced Political Activity of Federal Employees Is Prohibited

Congress specifically focused on eliminating coerced political activity in structuring the federal civil service system. United States Code, Title 5, Section 2302(b) says that federal employees are protected against “coercion for partisan political purposes.” This protection extends to most employees and applicants for employment in Executive Branch agencies.

There are two procedural circumstances in which the prohibited personnel practice (“PPP”) of coerced political activity can be asserted by an employee: as an affirmative claim or as a defense to an adverse action.

Affirmative Claim to OSC

If a federal employee or applicant believes that a PPP has occurred, the employee may file a complaint with the U.S. Office of Special Counsel (“OSC”). OSC may investigate and prosecute coerced political activity under both the PPP provision of Title 5 and the Hatch Act.

After receiving a complaint of coerced political activity, OSC will conduct an investigation into the allegation. The investigation may include a review of records and interviews of the complaining employee and witnesses. Based on OSC’s investigation, OSC can seek corrective action, disciplinary action, or both. If an agency refuses to take action recommended by OSC, the matter can be brought before the MSPB.

With an affirmative claim of PPP coerced political activity (where the MSPB would not otherwise have jurisdiction over the claim), individual employees or applicants cannot bring a legal claim on their own behalf. The claim can only be brought before the MSPB by OSC.

As Defense to Personnel Action

An employee subject to an adverse action over which the MSPB has jurisdiction may claim that coerced political activity was a motivating factor in the agency’s action. For example, employees have claimed that termination actions were motivated by the employees’ refusal to engage in coerced political activity. OSC has the authority to delay an agency’s proposed personnel action if the action resulted from coerced political activity. If coerced political activity is raised as an affirmative defense in an MSPB appeal of an adverse action, the employee must produce evidence to support the claim.

If you have been subjected to coerced partisan political activity, contact KPW today to discuss your legal options.

Cases Considered by the MSPB

The Merit Systems Protection Board (MSPB) hears certain appeals and complaints filed by federal government employees.  The attorneys of Kator, Parks & Weiser have extensive experience handling cases before the MSPB.  Contact KPW today for a free consultation regarding your claims.

The MSPB hears appeals of certain disciplinary actions.  An employee who qualifies for civil service protection may appeal any termination, demotion, furlough for less than 30 days, or suspension of more than 14 days, to the MSPB for adjudication before an independent Administrative Judge.  The adverse action notice from the agency must set forth the applicable deadline, and will provide information about filing the appeal with the MSPB.

An important component of civil service protection is that management may not impose an unduly harsh punishment.  The MSPB has developed a list of factors that management and MSPB judges must consider in determining the appropriateness of a given punishment in a particular case.  Because the MSPB has authority to reduce a serious disciplinary action, an employee may want to pursue an MSPB appeal to fight for a reduced punishment, even if the employee admits to misconduct.

KPW’s MSPB practice group is chaired by Jessica Parks.  Ms. Parks served as an MSPB Administrative Judge, and was later appointed by the President as a Member and then Vice Chair of the MSPB.  Contact KPW today for a free consultation.

The MSPB also hears cases filed under the Whistleblower Protection Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Veterans Employment Opportunities Act (VEOA).

Whistleblowing means disclosing information that you reasonably believe is evidence of a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.  In most cases, a federal employee who believes he/she was subjected to retaliation for any such disclosure, must first go to the Office of Special Counsel (OSC), before filing an appeal with the MSPB.

An employee alleging a violation of his/her rights under USERRA, following service in a uniformed service may file an appeal with the MSPB.  USERRA protects the rights of veterans of the uniformed services to return to their work assignments, and protects from discrimination based on being a member or veteran of the uniformed services.

VEOA guarantees veterans’ preference in applications for certain federal civil service positions.  Procedural steps must be taken, including a timely filing with the Department of Labor, before a claim may be filed with the MSPB.

We strongly encourage anyone presented with notice of a proposed adverse action, or anyone considering a claim of whistleblower retaliation, violation of USERRA or violation of VEOA, to seek guidance and assistance immediately from an attorney experienced in handling federal employee adverse actions.  Contact KPW today to discuss your legal options.

I’m a Federal Employee who has just been handed a proposed disciplinary action: What Should I Do?

As a federal employee, you hope to avoid ever receiving the dreaded “proposed disciplinary action.” But you should be prepared to know what to do in the event that you face such a situation.

Contact Kator, Parks & Weiser today for a free consultation if you are a federal employee facing a proposed disciplinary action.

Federal employees may face proposed disciplinary action for a slew of reasons. Some of the most common accusations are:

• Leave and attendance policy violations, such as time card fraud or misrepresentation, absence without leave (AWOL), unavailability to work for medical or other reasons, or misrepresentation of working hours;
• Sexual misconduct, such as inappropriate sexually-based behavior in the workplace, sexual harassment, perpetuating a hostile work environment on the basis of sex, inappropriate sexual comments, or unwanted sexual touching;
• The ever-vague “conduct unbecoming a federal employee;” which agencies use to cover virtually any kind of behavior that your supervisor finds annoying, inappropriate, or irritating;
• Insubordination, disrespectful conduct toward a supervisor, failure to carry out supervisory instructions, or other charges relating to not listening to a supervisor;
• Charges relating to off-duty conduct, such as arrests, convictions, or outside employment;
• Failure to maintain a requirement for a position, such as a license, security clearance, privilege, credentials, or training;
• Ethics violations, such as conflicts of interest, use of government office for private gain, or inappropriate transactions with government contractors;
• Lack of candor or false statements in a government investigation or to a supervisor;
• Falsification or misrepresentation charges, such as resume fraud, misrepresentations on a security clearance questionnaire, or any other government form;
• Misuse of government property, including vehicles (GOVs), computers, cell phones, telephones, pagers, copiers, or mail;
• Drug and alcohol related offenses, such as failing to pass a drug test, substitution of a sample during a drug test, intoxication at work, or illegal drug sales, possession or distribution.

The above list is not exhaustive– Human Resource specialists and government lawyers who draft these charges can be quite creative in their phrasing. The proposed disciplinary action can range from a reprimand to a removal from the federal service. In between are suspensions, demotions, and reassignments.

If you receive a proposed disciplinary action, you should take it very seriously. Even a proposed reprimand could be the first step in management’s plan to eventually fire you. What you choose to include in your reply to the proposed disciplinary action involves many complicated considerations, including:

• Whether the deciding official will be receptive to your defenses, or whether you want to save some or all of your defenses for an appeal;
• Whether your statements in the replies could be used against you;
• Whether you want to admit or deny the proposed charges;
• Whether you want to raise any affirmative defenses, such as discrimination on the basis of sex, race, color, national origin, disability, sexual orientation, veteran status, marital status, or retaliation for EEO activity or whistleblowing;
• Whether you want to include witness statements that help your case;
• What arguments you might want to present in favor of mitigation of the penalty.

We strongly suggest that you seek guidance and assistance from an attorney experienced in representing federal employees in disciplinary matters.

The attorneys at Kator, Parks & Weiser have been successful in representing federal employees at every level of the disciplinary process. In representing federal employees at their oral and written replies to proposed discipline, we have succeeded in getting proposed disciplinary actions completely dismissed or mitigated to a lesser penalty. For example, in a recent matter, the attorneys at KPW got a proposed demotion reduced to a written reprimand. In other instances, we have successfully represented federal employees in appeals of disciplinary actions to the Merit Systems Protection Board (MSPB). In one recent case, an employee represented by KPW was terminated for misconduct relating to a random drug test, but was reinstated after the MSPB reversed the removal. In another recent case, the attorneys at KPW won a victory for a terminated employee at the Court of Appeals for the Federal Circuit.

Kator, Parks & Weiser’s MSPB practice group is led by former MSPB Vice Chair and Administrative Judge Jessica Parks. Contact Kator, Parks & Weiser today for a free consultation if you are a federal employee facing a proposed disciplinary action.

Recent Decision Strengthens Due Process for Federal Employees

The Merit Systems Protection Board (MSPB) has again strengthened due process protections for federal employees, when it cancelled the removal of a federal employee because the agency considered aggravating penalty factors which had not been  disclosed to the employee.  The employee was a criminal investigator who had been terminated from federal service by the Department of Justice on charges of “Conduct Unbecoming a DEA Special Agent” and “Making False Statements.”   Solis v. Department of Justice, 2012 MSPB 21, issued February 28, 2012.

After considering the employee’s reply, the agency decision sustained the penalty of removal. The deciding official found that the charges could be considered  criminal in nature and affect the investigator’s credibility if he testified in criminal prosecutions, raising Giglio issues.  As the MSPB noted, the Supreme Court case of Giglio v. United States, 405 U.S. 150 (1972), requires investigative agencies to turn over to prosecutors any potential impeachment evidence that might affect the credibility of agents involved in that case.   As a result, the investigator’s testimony might have marginal value and the government’s prosecution could be adversely affected in criminal cases.

In the employee’s appeal to the MSPB, it was determined that the Giglio issue, on which the deciding official relied, had never been raised with the employee.  Therefore, the employee was denied his constitutional due process right to respond to that penalty issue.  The MSPB found that the agency’s failure to inform the employee was substantial.  The Solis case notes the factors that the MSPB considers when deciding whether an ex parte communication is constitutionally impermissible: “(1) whether the ex parte communication merely introduces ‘cumulative’ information or new information;  (2) whether the employee knew of the information and had a chance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner.”

In Solis, the MSPB found that the deciding official made it clear in his decision that he relied on the Giglio factor when he set the removal penalty.  The MSPB found that the agency’s failure to inform the employee of this information and allow him to respond was a due process violation,  reversing the removal and ordering payment of  back pay.  The Board noted that the employee would be “entitled to a new constitutionally correct removal proceeding.”

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