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Federal Employees: You be the Judge


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Swabbie  
#1 Posted : Wednesday, May 14, 2008 1:45:00 PM(UTC)
Swabbie

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Receiving Direct Reass ltr, 14 days to concur or removed from Fed Service.(still in window) Filing EEO, discrimination based on Mental disability and age. I will get the option to appeal to MSPB and probably will. I paln to accept the reassignment to buy some time. However I want to apply for disability retirement. Im 52, 17 yrs service, and will not touch deferred or severence. I want to write and decline removal, request to keep my job until application for Disa. retirm. is processed. So do I accept the postion to keep from being removed at this time ? the EEO complaint is going in, but can I appeal to MSPB after accepting the reassignment, or do I decline and appeal to MSPB on the disability claim ??
daystar  
#2 Posted : Thursday, May 15, 2008 12:17:22 PM(UTC)
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What are the positive and negative aspects of the new job? Can you perform the new job with your disabilities? Did anybody else in your office receive a directed reassignment?
Inquire  
#3 Posted : Thursday, May 22, 2008 12:51:27 AM(UTC)
Inquire

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Why did you get a directed reassigned?

quote:
Originally posted by Swabbie:
Receiving Direct Reass ltr, 14 days to concur or removed from Fed Service.(still in window) Filing EEO, discrimination based on Mental disability and age. I will get the option to appeal to MSPB and probably will. I paln to accept the reassignment to buy some time. However I want to apply for disability retirement. Im 52, 17 yrs service, and will not touch deferred or severence. I want to write and decline removal, request to keep my job until application for Disa. retirm. is processed. So do I accept the postion to keep from being removed at this time ? the EEO complaint is going in, but can I appeal to MSPB after accepting the reassignment, or do I decline and appeal to MSPB on the disability claim ??
"Great danger lies in the notion that we can reason with evil."
Swabbie  
#4 Posted : Monday, August 03, 2009 2:35:01 PM(UTC)
Swabbie

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The reassignment came because of downsizing. I refuse to move, they terminated my engineering position, I did accept the severance pay. That was a year ago. It never felt better to get our of the ******* federal government....now i have my life back, its like getting our of prison. However, since i did have a confirmed disability, valid via the DOI b/c of the meds I have to take, I have an EEO complaint against them, still going on, about to go to EEOC. My new problem is now OPM wants my severance pay back. Yep they want me to pay back my year received severance pay, a year's salary. I am posting for help on that...............geeeeez Roll Eyes
nellie2  
#5 Posted : Tuesday, August 04, 2009 8:40:41 PM(UTC)
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If your agency is reorganizing and downsizing you may appeal your removal to MSPB, but your chances of prevailing are very slim. Are other employees affected by the reorganization and being reassigned? If so, I don't understand how it's discriminatory against you. Employees with disabilities are not exempt from the effects of reorganizations.
Oosik  
#6 Posted : Tuesday, August 04, 2009 9:39:50 PM(UTC)
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My guess is that this has already gone to MSPB as a mixed case complaint regarding the resignation/retirement. Whether it is only an appeal based on the actual termination of employment (along with a hefty check) or an EEO complaint about reassignment (when everyone else was likewise getting reassigned) the complainant is not likely to prevail.

The troubles with OPM seeking reimbursement are likely attributable to double dipping between the Dept. of Labor on disability and with the agency regarding the termination of employment. The employee is only going to get what they are entitled to by law and will generally not get a windfall when they failed to keep OWCP advised of major changes.
luvdata  
#7 Posted : Wednesday, August 05, 2009 1:16:45 AM(UTC)
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I think there are more questions than answers here. As far as whether EEO and MSPB cancel each other out, as it pertains to discriminatory discharge, your case can only be heard in one forum at a time. (If you don't claim discrimination as a factor in your MSPB appealable claim, other options apply) The other administrative court will retain certain review rights.

I'm of the belief that MSPB mixed case appeals (Cases heard at MSPB that involve EEO) are really not so bad, if one plans to continue on to District Court. However, getting your case accepted as a mixed case can be difficult; each court tries to push the other for jurisdiction, and sometimes the appellant ends up without any appeal rights.

As far as whether it was discriminatory, that's for the court to say, not any of us here, not me, not other readers, and not Oosick. One hopes you have good evidence. And as a last point, one of the benefits of MSPB is that your case will be heard not only on the EEO aspects, but on CSRA (civil service) aspects too. If it ends up in District Court, you will also retain the same appeal aspects.

I think your case is complex enough that you ought to consider getting legal help (and from someone who specializes in federal employee cases). The value of the claim is also fairly high, one year's worth of salary. Just my two cents.

P.S. For anyone following Obama appointments, last week he nominated two new Board members to MSPB. This should significantly change the timbre of the court, but it may take time.
Oosik  
#8 Posted : Wednesday, August 05, 2009 3:23:06 AM(UTC)
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Formerfed, I don't disagree that it's a lot of money but before they go off to high priced legal help they should make a bee line for a personnel office or get some detailed guidance from OPM ASAP as to the rationale and appeal process. This will ultimately make it much easier should they wish to challenge the determination when they do speak with an attorney.

As to jurisdictional issues between EEOC and MSPB, there can be turf battles but a mixed case complaint is pretty basic -- an appealable action coupled with a claim of discrimination. The employee gets a hearing before the MSPB and then can request EEOC OFO to review the decision.

The next step has greater potential for confusion as some individuals appeal to the Court of Appeals for the Federal Circuit and want to continue pursuing their discrimination claims which is not permitted. If the judicial complaint is clear that they are abandoning their discrimination claims it is handled by CAFC otherwise it goes to the district court. Most cases bounced out go from CAFC to the district courts in my reading of case law. A district court judge will review the CSRA aspects of a case by reviewing the MSPB decision and administrative record to see if the MSPB decision was arbitrary or not supported by substantial evidence. Since the district court judge reviews the EEO aspects de novo, and by a preponderence of the evidence standard, an employee rarely seems to give up their discrimination claims although it can happen.

As to changes in the MSPB board, certainly the very union oriented selections has the potential of reorienting the board, but the MSPB is much more legalistic in its approach than the touchy-feely EEOC. MSPB is clearly bound by tons of well established precedent from prior MSPB decisions and the Court of Appeals for the Federal Circuit. While the new board may not give the agency as much deference as in the past they still should not be substituting their judgment as to how an employee was disciplined if the supervisor's actions were otherwise supported by the record and within their level of discretion.
luvdata  
#9 Posted : Wednesday, August 05, 2009 4:50:16 AM(UTC)
luvdata

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Oosick,

There are a couple of details that I disagree with you on, but perhaps on the most important, you are correct. That is:

quote:

The next step has greater potential for confusion as some individuals appeal to the Court of Appeals for the Federal Circuit and want to continue pursuing their discrimination claims which is not permitted. If the judicial complaint is clear that they are abandoning their discrimination claims it is handled by CAFC otherwise it goes to the district court. Most cases bounced out go from CAFC to the district courts in my reading of case law.



As far as where a case first is heard, EEOC or MSPB, much of it depends upon how the complainant/appellant chooses to handle the matter. This is tricky. So tricky, I try not to offer anyone any advice, other than to say they should do their research carefully and hire a professional if needed.
Oosik  
#10 Posted : Wednesday, August 05, 2009 6:38:00 AM(UTC)
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A mixed case complaint is handled pursuant to 29 CFR 1614.302 - 310. A complainant has two options (1) processing through the agency, or (2) directly with the MSPB. If they elect to file for an agency fact finding conference their next step is to file with the MSPB or district court if a final agency decision (FAD) isn't issued within 120 days or if they are dissatisfied with the FAD they have 30 days to appeal to MSPB (not EEOC) or to file a civil complaint in district court.

EEOC plays NO role in a mixed case complaint until MSPB has had their say.
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