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Agency Breach of a Last Chance Agreement

Every year the Board considers cases involving the appellant appealing removal based on his violation of a last chance or abeyance agreement, and most appellants do not fare so well because the triggering conditions for establishing a violation are so broadly stated. Mliick v. Dept. of Interior, SF-0752-16-0121-I-1 (July 8, 2016), remanded to the AJ an appeal by an appellant fired after allegedly committing misconduct violating the LCA. The AJ found there was no jurisdiction because the Agency properly invoked the terms of the LCA against the appellant. But the appellant claimed that the Agency breached the confidentiality a settlement agreement into which the LCA was incorporated by revealing some of its terms to his coworkers. The Board sent the case back for the AJ to adjudicate the appellant's allegation of breach. In remanding the case, the Board noted that reinstatement of the terms of the LCA would not be an effective remedy when the Agency established the appellant's breach of the agreement. The proper remedy, if the appellant established the breach, would be recision of the LCA and reinstatement of the underlying removal appeal.

Access of Employee to Agency Files to Assist in Preparation of an Adverse Action Reply

When agencies place employees on administrative leave pending disposition of the reply process in adverse actions, employees are often also barred from access to agency information systems and their own work product. That becomes a problem in a performance-related action, since the employee needs access to workproduct or underlying data to defend the allegations of substandard performance. OPM regulations require the agency to supply or make available to the employee an evidence file; the regulations make no mention of required access for the employee to other materials. Upon request from the employee, or the employee's counsel, most agencies will find a way to allow employee access to files, and allow an extension of the reply period, for the employee to provide a comprehensive reply. It is best for the agency to obtain a well-supported reply from the employee to ensure a well-informed decision. Although there is law that generally states a reply process should be structured to allow the employee a fair response, decisions do not delve into access to agency files-until Beg v. DHHS, DC-0432-13-3919-I-1 (July 5, 2016), unfortunately nonprecedential. Beg's was a performance case. He'd been placed on administrative leave and request several days to access data on his computer. The agency allowed him four hours to access his emails. Dismissive of his argument that he was denied a fair opportunity to respond, the Board considered the issue under a harmful error (rather than constitutional) analysis, placing the burden on Mr. Beg to prove the harmful effect of the agency's ways. He did not surmount that burden because he did not establish how additional access time would have caused the agency to reach a different result. The Board did not address what law, rule, or regulation would require an agency to provide access at all to agency files during the reply.

Effect of Bad Retirement Advice from a Supervisor

Not uncommon is an offer to an employee to provide a clean record, coupled with retirement or resignation, for the employee to avoid a removal action. Discussion with the employee may be initiated by a supervisor, who is likely not a retirement benefits expert. If the discussion leads to consideration of the availability of or benefits from retirement, the supervisor is best advised to give no advice and refer the employee to a retirement specialist. That was the course not followed in Morrison v. Dept. of Navy, PH-0752-14-0669-I-1 (June 28, 2016), where the supervisor failed to correct the appellant's misunderstanding that he would lose his retirement benefits if he was issued a removal decision. The Board reversed the retirement as involuntary, based on misinformation or failure to provide proper information. The Board dismissed the agency argument that the supervisor was not a benefits counselor and that the supervisor's remarks were no more than a courtesy. Lesson learned: resolution discussions should include an informed HR representative who can field or refer questions on matters pertaining to the impact on retirement or benefits of decisions to fight an adverse action or retire or resign.

Retirement-Related Questions During Selection Interviews

The vacancy has been posted, applications received. Interviews are underway. In walks an applicant of less than tender years. The interviewer wonders, then asks, "how long do you plan to work before retiring?" Not the best question, according to Geraldine G v. Postmaster General, EEOC OFO 0720140039 (June 3, 2016). The question, coupled with a determination that Geraldine G. was the "plainly superior candidate," resulting in a finding of age discrimination, with direction to the Postal Service to provide a job offer and back pay to the complainant.

What are Nonfrivolous Jurisdictional Allegations, Anyway?

Good question. Easier asked than answered. But in Clark v. USPS, 2016 MSPB 26 (July 12, 2016) (What ho! A useful precedential decision.), the Board provided a succinct catalogue of the components of nonfrivolous allegations in restoration, constructive adverse action, probationary termination, and whistleblowing appeals.

Summer Reading

If you haven't seen these issuances, check them out:

• EEOC: Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016)
• https://www.eeoc.gov/eeoc/publications/ada-leave.cfm


• GAO: Federal Workforce: Distribution of Performance Ratings Across the Federal Government, 2013 (May 9, 2016)
• http://www.gao.gov/assets/680/676998.pdf