Federal Employees: You be the Judge

You need a good Federal employment law attorney. It's good the union is going to help, but you only have a short time to reply to the Termination letter. Not sure where you are, but these guys are good and have offices all over the country: https://www.tullylegal.com/

If you check a few of the threads in this forum, you will see info on other legal firms, also.

Concur with Federal Employment Lawyer as appropriate next step. Unions are not going to get the results you expect (I would NEVER let the union represent me for anything). Keep in mind these are employees too at the union. They are not well versed in employment laws and the longer you wait to contact a lawyer the harder it will be. Remember the other "support agencies" are also there to protect the organization, so best to leave them alone and do it on your own.

That said, based on what has been said, it might be an uphill battle (minus the performance evaluations). You mentioned a leave restriction letter....that was the "wake up call" from the manager about the use of unscheduled leave (I assume as most leave control letters are for that reason). If you violated the terms of that letter, that was the organizations way of giving you another chance then and termination usually follows. But I don't know all the facts to be able to justify my response either aside from, if I were you, I'd have that lawyer on the phone already and see what they advise.

Disability retirement because of depression and anxiety related to the death of her sister? That sounds like an uphill battle for OPM to grant disability retirement. I presume she has substantial medical documentation supporting she cannot perform the essential functions of her position with or without an accommodation (not just documentation showing she has a disability). The agency will disclose to OPM they removed your wife due to her AWOL or failure to follow procedures when requesting leave. If the agency removed your wife for reasons unrelated to her disability, she will not be entitled to the Bruner presumption.

If it were I, I would file an appeal with the MSPB and allege disability discrimination (failure to accommodate) and EEO retaliation (due to the RA comments). She can also contest the charges (especially AWOL related to when the building was closed, unless she was off and ordered to call in regardless, and whether they correctly provided FMLA). Why was OPM involved in your wife's RA request: doesn't make sense. Also, she is required to follow the "exact wording of the leave restriction notice": that's why it's in writing. If she can't follow instructions, that's a reason to remove someone. This is especially the case for an employee who's been written up before for AWOL and placed on a leave restriction letter (there must have been a reason for that in the first place).

She can also apply for disability retirement at the same time (one has up to one year to file for disability retirement after separation from the agency). If your wife thinks she has a good shot at disability retirement, the MSPB AJ can DWOP the removal appeal pending OPM's decision (but I would definitely appeal the removal, too).

Regardless, as everyone else suggested, I would hire an attorney with experience in MSPB litigation. Tully Rinckey is just one such firm (and expensive). Even if I decided not to hire an attorney, I would still appeal to the MSPB and see what I can get in settlement (e.g., clean record settlement, some cash, last-chance settlement agreement).

Finally, being removed for misconduct does not preclude an individual from getting a Federal job in the future. She must disclose it when asked on her application (even if given a clean record settlement). Agency's are now supposed to check an employee's OPF before they come on board to ensure they haven't just been removed, but I'm not sure if any are actually doing that yet.

Do not waste your time with EEO. It takes many years and the Agency wins nearly all times. MSPB is your best bet. Make certain your attorney has experience with Federal MSPB Appeals. Most do not. Check with other firms. She can always file for Disability Retirement while she is appealing the removal to MSPB. Also, have her file for Unemployment immediately. Even if you are fired, as long as it wasn't for misconduct (like assaulting someone), you can still drawn Unemployment. That will be some income at least. Don't say anything to them about filing for Disability Retirement or they may deny you.

Edited by user Tuesday, March 13, 2018 1:50:02 PM(UTC)  | Reason: Not specified

Again, if you're serious, you should have an attorney. You'll make mistakes and, while MSPB AJs are usually pro se helpful, some are very unforgiving of failing to follow regulations. You won't know how to engage in discovery and you won't know how to examine a witness at hearing. You don't know what you don't know.

Don't know whether this is good news, bad news or no news: fedsmith.com/2018/03/07/quorum-returns-mspb-nomination-new-vice-chairman

Well, there's always district court for those appellants who feel they have a strong enough case, especially if there's clear evidence the MSPB AJ is breaking with board precedent.

ETA

I just read the article. Seems like a lot of overthinking from people who are no more "in the know" than any other person with minimal knowledge of the facts. A lot of speculation. At the end of the day, we'll have to see what happens, but a nominee is at least a step in the right direction and more than we've seen over the past year.

Edited by user Wednesday, March 14, 2018 6:16:46 AM(UTC)  | Reason: Not specified

As far as I'm concerned, it doesn't matter. This administration is anything but predictable. Nobody knows how anything is going to shake out. Your posts could discourage someone from pursuing their rights. The agency will always "win" when you don't pursue your rights. Most law is made through common law, i.e. people pursuing their rights through the court system. Unless your case is heard by the Supreme Court, nothing is final. Don't let the agency get away with violating your rights. They're banking on your giving up and not pursing them so they can continue to break the law.

Today, she was denied unemployment, the union called her and said they will not help her and "They dont help with the MSPB" The lawyer wants more money then we have to take the MSPB. IT would seem nothing can be done. We will attempt to do the MSPB our self. It might be pointless but its all we have. Time is running out. This on top of losing our home because of a completely separate situation has us hopeless.

She is going to appeal the unemployment, we are just working on the wording. Since may 2017 she has been working with out any issues at all. I guess we should explain to how we are appealing the removal on a few fronts. And she is ready to work right now and has been. Its sad because the was doing so well, and the remove action letter came several months after she was last "AWOL" But just 4 days after her RA request.

Edited by user Thursday, March 15, 2018 8:43:00 PM(UTC)  | Reason: Not specified