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Federal Employees: You be the Judge


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DroneBee  
#21 Posted : Sunday, March 18, 2018 1:31:57 AM(UTC)

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Originally Posted by: Mars Go to Quoted Post
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.


Yes, you can do the MSPB yourself - it's not a complicated process and the MSPB website is easy to use (upload pleadings, etc.). From your writing, you may want someone to look over your pleadings before submission - grammar is important! All the best and God Bless.
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Mars on 3/19/2018(UTC)
Mars  
#22 Posted : Monday, March 19, 2018 9:36:06 PM(UTC)
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I found some errors not brought up by the union, things that were not even addressed in the oral reply. My question is, are these things i can now bring up in my case with the MSPB? I found things the OM and the union overlooked, flat out mistakes from the removal letter on up.
DroneBee  
#23 Posted : Monday, March 19, 2018 10:20:22 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
I found some errors not brought up by the union, things that were not even addressed in the oral reply. My question is, are these things i can now bring up in my case with the MSPB? I found things the OM and the union overlooked, flat out mistakes from the removal letter on up.


Yes - you can bring up anything in the MSPB, but it must be relevant to the case. Anything that is missing, overlooked, misinformation, etc., are good to point out. My advice is to go through the proposed removal and point out EVERYTHING that is an issue, and do the same with the removal notice. Line-by-line, word-by-word. Know the proposed removal and removal front and back. If the errors are egregious, then the AJ may find for you. Also, within the MSPB online system, you can add as many additional documents as you need - so include all your attachments. If you don't put everything you need into the system, and write all the problems you found in the replies, you cannot bring these things up later in the hearing, etc.

Good luck and God Bless.
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Mars on 3/21/2018(UTC)
Mars  
#24 Posted : Wednesday, March 21, 2018 12:49:08 AM(UTC)
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what about statements regarding a conversation between management and my wife? Leading up to the events of AWOL and when a very specific leave restriction was put in place in direct conflict to a medical condition with supportive medical documentation, and angry verbal statements when the letter of proposed termination was presented indicating the retaliatory nature of the action just days after the RA request.
DroneBee  
#25 Posted : Wednesday, March 21, 2018 12:43:40 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
what about statements regarding a conversation between management and my wife? Leading up to the events of AWOL and when a very specific leave restriction was put in place in direct conflict to a medical condition with supportive medical documentation, and angry verbal statements when the letter of proposed termination was presented indicating the retaliatory nature of the action just days after the RA request.


Yes - have your wife write a memorandum for record with the events, including any witnesses, and sign and date it. Put this into the record. Everything that would help you should be put in the record.
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Mars on 3/21/2018(UTC)
cboro_guy  
#26 Posted : Thursday, March 22, 2018 12:08:56 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
I found some errors not brought up by the union, things that were not even addressed in the oral reply. My question is, are these things i can now bring up in my case with the MSPB? I found things the OM and the union overlooked, flat out mistakes from the removal letter on up.


As DroneBee indicated, the MSPB AJ reviews the charges de novo (anew). So, both you and the agency can introduce new evidence to attack/support the charge at the MSPB. If the agency proves its charges, the MSPB will defer to the penalty chosen (here, removal) so long it was "within the tolerable limits of reasonableness." That's a tough standard for an appellant to overcome in most cases. If the agency only proves some of its charges, the AJ will impose the "maximum reasonable penalty" unless the agency indicated a lower penalty would have been selected absent the unsubstantiated charges.
Mars  
#27 Posted : Thursday, March 22, 2018 12:48:57 PM(UTC)
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OFF TOPIC: Please forgive any spelling or grammar mistakes.

The situation is the have the charges arranged in away that "not following a leave restriction letter caused the awol", that she made no attempt to contact them. BUT i have copies of faxes sent by her doctors to the agency and phone records showing she called.

There are unfortunately some days i have no prof of correspondence to the agency.

I also have according to her pay stub and other items that she received AWOL when the building was close and even on veterans day! BUT these days are not part of the agencies charges. They pick and choose so as not to show she was given AWOL on holidays. But the day before and after EVEN THOUGH her pay stub and leave usage record says she was. Its as if they were giving her AWOL every chance they could regardless of what was going on.

My real question should i submit these documents right away?

Also as part of the acknowledgement it includes an order from the AJ urging the agency to attempt to settle. Is that normal?

OFF TOPIC: Please forgive any spelling or grammar mistakes.
Mars  
#28 Posted : Thursday, March 22, 2018 12:54:52 PM(UTC)
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And one thing that i think that matters but might not is, it was 7 days after her RA request that her manager called her in her office and started to scream at her asking her "who do you think you are with this RA request" and saying my wife "pushed her hand in this" and handed my wife the removal proposal
cboro_guy  
#29 Posted : Thursday, March 22, 2018 1:10:36 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
The situation is the have the charges arranged in away that "not following a leave restriction letter caused the awol", that she made no attempt to contact them. BUT i have copies of faxes sent by her doctors to the agency and phone records showing she called.

There are unfortunately some days i have no prof of correspondence to the agency.

I also have according to her pay stub and other items that she received AWOL when the building was close and even on veterans day! BUT these days are not part of the agencies charges. They pick and choose so as not to show she was given AWOL on holidays. But the day before and after EVEN THOUGH her pay stub and leave usage record says she was. Its as if they were giving her AWOL every chance they could regardless of what was going on.

My real question should i submit these documents right away?


The agency can mark someone as AWOL (e.g., in WebTA) but not use those days in support of its adverse action. The AJ won't consider any charges that could have been brought but weren't. It sounds like the agency charged your wife with both AWOL and failure to follow a leave restriction letter. This is common. A charge of AWOL can be defeated if the employee was incapacitated on the day in question and had leave to cover the day. The failure to follow a leave restriction letter is just like any failure to follow instruction charge, it won't be defeated by her being sick: she still should have following the terms of the letter. Documents showing she did follow the letter are very important. Because (I presume) the MSPB has jurisdiction over your wife's case, the burden is on the agency to prove its charges and the reasonableness of the penalty. The only burden you have is to prove your affirmative defenses. Generally, one must submit documents they want in the record pursuant to the deadlines set forth in the hearing (or close of record) order. Usually, that deadline will be a few days before the prehearing conference (or a few days after the close of record conference). If you're asserting an affirmative defense of disability discrimination, you can also submit supporting documentation in response to the affirmative defenses order.

Originally Posted by: Mars Go to Quoted Post
Also as part of the acknowledgement it includes an order from the AJ urging the agency to attempt to settle. Is that normal?


Yes, the acknowledgment order has that boilerplate language included in almost every type of appeal. The AJ will still encourage settlement, but it takes two to tango. You can request the Mediation Appeals Program (MAP) and, if the agency agrees, that could be a good way for the mediation AJ to see if there are holes in the agency's case and encourage settlement.

cboro_guy  
#30 Posted : Thursday, March 22, 2018 1:16:37 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
And one thing that i think that matters but might not is, it was 7 days after her RA request that her manager called her in her office and started to scream at her asking her "who do you think you are with this RA request" and saying my wife "pushed her hand in this" and handed my wife the removal proposal


I presume only your wife heard this. The timing is suspicious and, if the AJ finds her testimony credible, the AJ could find that, although the agency proved its charges, it committed a prohibited personnel practice by retaliating against her for her protected EEO activity (requesting a RA). Note, however, the MSBP generally does not rule in an employee's favor on an affirmative defense. It's difficult to prove them.
Mars  
#31 Posted : Wednesday, April 11, 2018 8:04:52 AM(UTC)
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i would like to post an update, last Wednesday the agency posted a file with all the evidence they have, then last Friday the agency posted a pleading laying out their case, by Monday i had mine in along with all my supportive documentation and our evidence that clearly points out many faults the agency's position.

Today the judge sent out an initial settlement position order to be conducted via confrere call.

Is this something that typically happens?
Mars  
#32 Posted : Wednesday, April 11, 2018 8:13:04 AM(UTC)
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Sorry, i re-read a reply and see this is normal.
DroneBee  
#33 Posted : Wednesday, April 11, 2018 12:19:51 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
i would like to post an update, last Wednesday the agency posted a file with all the evidence they have, then last Friday the agency posted a pleading laying out their case, by Monday i had mine in along with all my supportive documentation and our evidence that clearly points out many faults the agency's position.

Today the judge sent out an initial settlement position order to be conducted via confrere call.

Is this something that typically happens?


Good job! The AJ will have a meeting with you and try to get you to settle - that is the AJ's main focus - to get this off his docket. So think about what you want - and think big because the agency will try to lower this substantially. Good luck and God Bless!
Mars  
#34 Posted : Wednesday, April 11, 2018 9:40:25 PM(UTC)
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Originally Posted by: DroneBee Go to Quoted Post
Originally Posted by: Mars Go to Quoted Post
i would like to post an update, last Wednesday the agency posted a file with all the evidence they have, then last Friday the agency posted a pleading laying out their case, by Monday i had mine in along with all my supportive documentation and our evidence that clearly points out many faults the agency's position.

Today the judge sent out an initial settlement position order to be conducted via confrere call.

Is this something that typically happens?


Good job! The AJ will have a meeting with you and try to get you to settle - that is the AJ's main focus - to get this off his docket. So think about what you want - and think big because the agency will try to lower this substantially. Good luck and God Bless!


Thanks, i hope for some kind of positive outcome.

When the agency submitted everything and saying my wife had no case and did nothing to reach out to her manager and or did not follow the leave restriction notice, I realized then the agency lawyer had never seen any of the actual documentation i had, such as DR notes i had that were copies of the actual faxes received by her manager and that were never accepted. Our phone records proving she called in and even times she came to work with notes and was given half days of AWOL, errors in the AWOL charges, such as my wife have approved leave or the building was closed for a snow day or a liberal leave policy was in effect any many other errors i found, discrepancies in the between the AWOL charges and the leave usage records. They stated she made NO attempt at calling or submitting medical documents, thats 100% false. I have proof. The oral reply the union came up with is GARBAGE. And thats all the agency had known up until the point i did my document dump and submitted my response.

Edited by user Wednesday, April 11, 2018 9:41:50 PM(UTC)  | Reason: Not specified

JDSIII  
#35 Posted : Thursday, April 12, 2018 3:31:21 AM(UTC)
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Good luck!
cboro_guy  
#36 Posted : Thursday, April 12, 2018 4:29:51 AM(UTC)

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Originally Posted by: Mars Go to Quoted Post
I have proof. The oral reply the union came up with is GARBAGE. And thats all the agency had known up until the point i did my document dump and submitted my response.


Why did your wife not provide this documentation to the deciding official? This was her career. She had the opportunity to provide a written and oral reply and it is usually at the decision phase where penalties are mitigated or charges not sustained: not at the MSPB. I understand she had a union rep, but (hindsight is 20/20, right? and this is for others reading this post more than for your wife) it was her case and her job on the line.
cboro_guy  
#37 Posted : Thursday, April 12, 2018 4:43:17 AM(UTC)

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Originally Posted by: DroneBee Go to Quoted Post
So think about what you want - and think big because the agency will try to lower this substantially. Good luck and God Bless!


I disagree with this advice: don't think big, think reasonably. Asking for $300k for comp damages is a common starting offer for appellants: the MSPB does not make such awards and such an offer wastes time and is not taken seriously. If you have numbers for comp damages, have something to back it up (medical documentation supporting permanent damage caused by (or exacerbated by) the action), otherwise the amount you get (even IF you prove a Title VII affirmative defense, which is hard) will be VERY small (i.e., less than $5k).

Remember, if your offer is more than the AJ could award if you win, the agency will just go to hearing. No incentive to settle. If the agency proves at least some of those AWOL specifications, the AJ could still sustain your removal, even if the agency fails to prove all of the specifications. The MSPB has upheld removals for as little as 5 days of AWOL.

If your wife wants her job back, that's the most important thing. For example, if I thought the agency could prove some of the charges, I would consider a reinstatement with less or no backpay and mitigation to a suspension. Be creative and good luck!

One thing in your wife's favor: AWOL and failure to follow instructions charges are technical, so the agency can be tripped up.
Mars  
#38 Posted : Thursday, April 12, 2018 9:21:20 AM(UTC)
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Originally Posted by: cboro_guy Go to Quoted Post
. If your wife wants her job back, that's the most important thing. For example, if I thought the agency could prove some of the charges, I would consider a reinstatement with less or no backpay and mitigation to a suspension. Be creative and good luck!

One thing in your wife's favor: AWOL and failure to follow instructions charges are technical, so the agency can be tripped up.


This is exactly what im shooting for.

Originally Posted by: cboro_guy Go to Quoted Post
Why did your wife not provide this documentation to the deciding official? This was her career. She had the opportunity to provide a written and oral reply and it is usually at the decision phase where penalties are mitigated or charges not sustained: not at the MSPB. I understand she had a union rep, but (hindsight is 20/20, right? and this is for others reading this post more than for your wife) it was her case and her job on the line.


My wife did and the union rep told her not to bring it up and said she should not try to shift responsibility to the agency and she should "fall on the sward" so to speak


cboro_guy  
#39 Posted : Thursday, April 12, 2018 4:27:37 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post


Originally Posted by: cboro_guy Go to Quoted Post
Why did your wife not provide this documentation to the deciding official? This was her career. She had the opportunity to provide a written and oral reply and it is usually at the decision phase where penalties are mitigated or charges not sustained: not at the MSPB. I understand she had a union rep, but (hindsight is 20/20, right? and this is for others reading this post more than for your wife) it was her case and her job on the line.


My wife did and the union rep told her not to bring it up and said she should not try to shift responsibility to the agency and she should "fall on the sward" so to speak




Ahhh. I understand. That is a strategy that is sometimes successful for misconduct the employee clearly committed. Here, if I were the rep, I would have been a bit hesitant to rely on that. Nevertheless, as discussed, charges are reviewed de novo (anew) by the administrative judge and they regularly do not sustain charges like these if the technicalities aren't met. But, again, an overall charge can be sustained if at least one of the underlying specifications is sustained.

I know you mentioned the judge sent out something about settlement recently. The Mediation Appeals Program (MAP) is regularly successful, too. You should have gotten some information about that in the Acknowledgment Order. You can always request that, too, by filling out your portion of the agreement to mediate form and uploading it the e-appeal site or contacting the agency rep to see if they'd be interested, too. They usually are. It does delay the case for about 2 months, though, because a mediator is assigned.
Hawaiiannative  
#40 Posted : Thursday, April 12, 2018 7:47:39 PM(UTC)
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I have found the union reps, a mixed bag. And after my experience, find most of them to be management sycophants.

Determine the goal, back to work, settlement, in these situations, going back to work is not a good choice because nothing will change, and it won't get better. Go for allowance of unemployment, and settlement, small. If any.
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