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Disclosure of a Mistaken Statement, Even a Lie, May Be Unprotected Under the WPA

Notwithstanding performance standards, PIPs, training, and the best laid plans, federal employees can make mistaken representations about all sorts of things, including, in Roll v. VA, AT-1221-14-0613-W-1 (NP April 15, 2016), an incorrect statement, upon which Mr. Roll relied, of the expected level of retirement benefits. But the complaints of Mr. Roll to agency managers about the mistaken information, and even the assertion that the mistake was intentional, did not qualify as a protected disclosure of any violation of law, rule, or regulation under the WPA or WPEA. Mr. Roll asserted that retaliation for the disclosure resulted in the failure of the VA to reinstate Mr. Roll. The Board may have overlooked the regulation of the Office of Government Ethics, 5 CFR 2635.101(b)(5), stating that "[e]mployees shall put forth honest effort in the performance of their duties."

Election of Remedies

MSPB, EEO, and Grievance

So many problems. So many procedural challenges: EEO, MSPB, agency grievance procedures, contract grievance procedures, IRA, and on and on. The system supports plenty of lawyers and our favorite three agencies: FLRA, MSPB, and EEOC's federal sector program, and, lest we forget, more than a few federal sector arbitrators and mediators. But the CSRA does impose some limitations on remedies. 5 USC 7121 states that for several of the more significant remedies-OSC/IRA, EEO and contract grievance procedures, and MSPB appeals, the selection of one procedure generally precludes another process subsequently selected. It is a complex statute and deserves some study. Pirkkala v. Dept. of Justice, 2016 MSPB 16 (March 31, 2016), illustrates the statutory election scheme as to Board appeals and contract grievance-arbitration procedures. The Appellant was removed and filed a grievance under the labor contract a month after the deadline. The Agency rejected the grievance as untimely. The union rejoined by stating it would invoke arbitration. But the grievance was not pursued to arbitration. Six years later, the Appellant filed a Board appeal. The Board had jurisdiction over the appeal because 5 USC 7121(e)(1) creates an election based on a timely filed grievance. Since the grievance was untimely, no election occurred. But, although the Board appeal was not blocked, the period for filing that appeal was 30 days. Although the Board excused delay by the Appellant pending notice that the union would not arbitrate his case, there was still unexcused a delay of more than five years before the Board appeal. Medical issues raised by the Appellant were insufficient to excuse the delay.

Then take the matter of Jenna P. v. Kerry, Secretary, Department of State, OFO 0120152941 (Jan. 28, 2016). Complainant asserted discrimination and reprisal for placement on a PIP, issuance of a reprimand, and a hostile environment consisting of offensive supervisory behavior. Jenna P. asked for a hearing after she received the ROI. Two months later Jenna was terminated for failing the PIP, and a month after that she filed a contract grievance protesting the removal, the PIP, and the underlying hostile environment. The EEOC AJ dismissed the EEO complaint without prejudice pending the outcome of the grievance. An arbitrator found the removal proper, and denied the grievance. Jenna reinstated her EEO complaint, but the AJ dismissed it as precluded by the election of the grievance process. On appeal, the Commission determined that, even though the EEO complaint was first filed, the factual issues involved in the complaint were considered in the grievance process and "adjudication of the case in another forum is tantamount to an election of remedies." It was an interesting result, seemingly at odds with the statutory scheme. Perhaps Jenna will challenge the analysis and result in district court.

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The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts.

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The EEO Guide is the standard reference on federal sector EEO law and its appellate organization, the Office of Federal Operations. This treatise provides practice guidance and analyses of federal sector EEOC and court decisions, statutes regulations, policies, guidance, and practical advice.

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This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2016 into concise, useable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.