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Blog Posts in November, 2009

  • Federal Disability Retirement: Bruner presumption is not a "guarantee".

    Often times, Agencies persuade employees to settle their removal appeal by agreeing to alter the removal grounds so that the employee is removed for medical inability to perform the functions of their job. Read more about this by clicking here. In other situations, federal employees are advised that such a removal is almost a guaranteed basis for securing disability retirement. Generally, it is ...
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  • MSPB: Leave Based Adverse Actions against the Federal Employee

    There are, generally, four major leave-based adverse actions that a Federal Employee can challenge to the Merit Systems Protection Board ( MSPB). 1) AWOL 2) Failure to Follow Leave Requesting Procedures 3) Excessive Use of Approved Leave/Abuse of Leave 4) Enforced Leave Click on the underlined text to read more about each charge and the elements. When challenging an adverse action based on ...
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  • MSPB: Elements of a Charge of Failure to Follow Leave Procedures

    Federal Agencies that take an adverse action against a Federal Employee based on “failure to follow leave procedures” will have to prove certain elements of that charge before the Merit Systems Protection Board (MSPB). An Agency may take adverse action against a Federal Employee for failure to follow leave procedures so long as the federal employee is clearly on notice of the leave procedure, the ...
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  • EEOC: Basic Elements of a Reprisal Claim for Federal Employees

    The Office of Federal Operations (OFO) recently reversed a USPS decision to dismiss a reprisal claim and ordered an investigation. The decision serves to illuminate the basic elements of a reprisal claim. The law protects Federal Employees that have participated in EEO activity against reprisal by their supervisors and Federal Employing Agency. When the Federal Employee alleges reprisal, the ...
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  • MSPB: Charges of AWOL (Absent Without Leave)

    An Agency can take disciplinary action or adverse action against a Federal Employee for being Absent Without Leave (AWOL). Rarely, however, is the Federal Employee both absent from work and absent without approved leave. Adverse actions involving AWOL before the MSPB often involve questions of doctors’ appointments, improper denials of annual and/or sick leave, etc. Therefore, if an Agency takes ...
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  • MSPB: Enforcement of Settlement Agreements made during an MSPB Appeal

    When a Federal Employee negotiates a settlement of an MSPB appeal, he or she is entitled to the benefit bargained for in the agreement. A recent MSPB case illustrates how the MSPB Administrative Judge and the MSPB Full Board review settlement agreements entered into by Parties. Felch v. Navy, 2009 MSPB 160 (August 24, 2009). First, the MSPB should look to the law of contracts in interpreting ...
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  • MSPB: Due Process in Adverse Action Appeals to the Merit Systems Protection Board

    Occasionally, we see a proposal letter that is so poorly or broadly worded that the Federal Employee is not fully informed of the charges that the Agency has brought against them. When removing a Federal Employee, Merit Systems Protection Board (MSPB) case law is clear that 5 U.S.C. § 7513(b)(1) requires that the Federal government Agency give the Federal employee advance written notice stating ...
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  • MSPB & EEOC: What are Requests for Production and how can the Federal Employee use them in MSPB or EEOC discovery?

    Both the MSPB and the EEOC afford Appellants (or Complainants) the opportunity to pursue discovery. While the timelines and the amounts of discovery allowed are quite different, the basic ideas of what discovery is and how it should be used are very similar. There are six (6) primary types of discovery in litigation in the United States (click on the links for the particular type of discovery you ...
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