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Mars  
#1 Posted : Monday, March 12, 2018 2:22:52 PM(UTC)
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My wife has been working for the IRS for exactly 20 years to the day they told her to leave. We are lost as to what she can do, seek disability or MSPB or give up!

Some background, she started working with the irs in 1998, in 2015,16 she was written up for AWOL (after the death of her sister led her to depression and severe anxiety) and in 2017 just 2 days after she filed RA she was given a letter of proposed termination for various reasons involving AWOL tied to leave restriction letter and a break in her FMLA, her operations manager was outraged with her RA and told her "you pushed my hand" the woman was screaming at my wife, i would also like to add this also came just a few days after she was offered a job in the IRS in another city.


She was even given AWOL for days the building was closed due to a blizzard. Even tho my wife has pages and pages of medical documents laying out her disability and her difficulties it did not matter. Even tho my wife never received less than perfect on her reviews over the past 20 years it did not mater. She even received a perfect evaluation during the time she was AWOL! Then the OPM told her the RA is denied because she is better and working and her new manager said she was the best employee in the department. (Also the manager who would write her up for not following the exact wording of the leave restriction notice retired weeks after the proposed action letter was first handed to my wife)

The union has been semi-useless. She did her oral reply and the woman who was her operations manager was there at the oral reply and said "I'm also the decider" As she was promoted to some new capacity.

one week ago on the exact day of my wifes 20 years of service a man came to her desk and said "I don't know what you were thinking" and told her to sign a paper and he walked her out of the building. THEY DID NOT EVEN GIVE HER A PAPER. NO information or anything at all.

The union called and said they were outraged and would file a grievance and an appeal to the MSPB. A week has gone by and today we received a copy of the removal letter via email from the union. But no calls or anything else.

Im leaving a lot out and im rambling here but what are her options? Disability retirement? Re apply to the fed? Do nothing? We a so lost. Please forgive my grammar and spelling mistakes. Im so shook up. Any help and or advice would be great. Again im a leaving a lot out. I can post more when i relax.. Lost as to what to do next
SD Analyst  
#2 Posted : Monday, March 12, 2018 3:20:13 PM(UTC)
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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.
thanks 1 user thanked S D Analyst for this useful post.
Mars on 3/12/2018(UTC)
Mars  
#3 Posted : Monday, March 12, 2018 3:50:32 PM(UTC)
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We spoke to the Bell Law firm (he is local to us) and they agreed to take her disability case for $5500 and would refund it if he did not win. But is this the right plan of action. And right now because of this situation and other outrageous hardships is a tough call to lay out $5500 in cash. Its just so shocking
CCADer  
#4 Posted : Tuesday, March 13, 2018 11:29:06 AM(UTC)
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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.
Mars  
#5 Posted : Tuesday, March 13, 2018 12:46:19 PM(UTC)
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Another question is, if she does not go for the disability retirement can she ever work again for the fed after this?
cboro_guy  
#6 Posted : Tuesday, March 13, 2018 12:52:58 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
We spoke to the Bell Law firm (he is local to us) and they agreed to take her disability case for $5500 and would refund it if he did not win. But is this the right plan of action. And right now because of this situation and other outrageous hardships is a tough call to lay out $5500 in cash. Its just so shocking


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.
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S D Analyst on 3/13/2018(UTC)
Mars  
#7 Posted : Tuesday, March 13, 2018 1:20:09 PM(UTC)
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the separation letter the emailed to her said she can only do MSPB or EEO not both
SD Analyst  
#8 Posted : Tuesday, March 13, 2018 1:44:37 PM(UTC)
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Originally Posted by: Mars Go to Quoted Post
the separation letter the emailed to her said she can only do MSPB or EEO not both

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

cboro_guy  
#9 Posted : Tuesday, March 13, 2018 1:56:57 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
the separation letter the emailed to her said she can only do MSPB or EEO not both


You have four options: EEOC; MSPB; grievance (contract); and OSC (whistleblowing) (you can actually go EEOC and OSC at the same time).
It's considered a mixed case complaint when there's an MSPB appealable action associated with an EEO discrimination complaint. If you go to EEO first, the agency will investigate the claim, issue a report of investigation (ROI) and then a Final Agency Decision (FAD), likely finding no discrimination. You will then be given the option to appeal to that determination to the MSPB (and get a hearing before an AJ). You do not have a right to a hearing before an EEOC AJ for a mixed case complaint. Once at the MSPB, the AJ will hear the removal with the EEO (and possibly other) affirmative defenses (e.g., disability discrimination). Once you go EEO, you can't change your mind and instead go MSPB unless you wait for the agency to issue the FAD or 120 days after you file your formal complaint, whichever is sooner.

If you choose to go to the MSPB first, the Board will hear your appeal and any EEO (or other) affirmative defenses. Some recommend going the EEO process first because then you get free discovery and an ROI. If you go MSPB first, you have to engage in all the discovery you think you need and pay for it (if you notice depositions).

If I had to choose: I'd go MSPB because it's a MUCH faster (and respected) process.
cboro_guy  
#10 Posted : Tuesday, March 13, 2018 1:58:36 PM(UTC)

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Originally Posted by: Mars Go to Quoted Post
the separation letter the emailed to her said she can only do MSPB or EEO not both


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.
DroneBee  
#11 Posted : Wednesday, March 14, 2018 1:38:11 AM(UTC)

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Originally Posted by: SD Analyst Go to Quoted Post
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.


I agree - do not go the EEO route; the EEO is not fair. The MSPB route is not fair also, but at least it's a visible system - you can look up other cases, etc. https://www.mspb.gov/decisions/precdec.htm And all pleadings will be visible to you at all times.

Note that while you will be assigned an Administrative Judge (AJ) (who is just a government employee, not a "real" judge), if you need to appeal (if you don't win), there is no MSBP board quorum, which means your case will not be heard at the next level. That said, the MSPB is your best bet, as SD stated.

You must abide by the time limits - so get an attorney and start fighting. Good luck and God Bless.
nightchop  
#12 Posted : Wednesday, March 14, 2018 4:55:01 AM(UTC)

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Originally Posted by: DroneBee Go to Quoted Post
Note that while you will be assigned an Administrative Judge (AJ) (who is just a government employee, not a "real" judge), if you need to appeal (if you don't win), there is no MSBP board quorum, which means your case will not be heard at the next level.



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
frankgonzalez  
#13 Posted : Wednesday, March 14, 2018 5:50:36 AM(UTC)
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Originally Posted by: nightchop Go to Quoted Post
Originally Posted by: DroneBee Go to Quoted Post
Note that while you will be assigned an Administrative Judge (AJ) (who is just a government employee, not a "real" judge), if you need to appeal (if you don't win), there is no MSBP board quorum, which means your case will not be heard at the next level.



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
Actually it didn't (great article on this here by William Wiley) as the person nominated was nominated to the position currently occupied which expires the beginning of March. There is a second nomination as well, but this means (once both are confirmed), they both need to wade through the whole backlog and vote on each, vs adding just one person who needs to wade through the backlog and add their vote to the current member's vote. So....guess the backog will continue to grow for a while....

You should have voted Cthulu...the greatest of all Evils
nightchop  
#14 Posted : Wednesday, March 14, 2018 5:55:03 AM(UTC)

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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

frankgonzalez  
#15 Posted : Wednesday, March 14, 2018 7:54:10 AM(UTC)
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Originally Posted by: nightchop Go to Quoted Post
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.
Which article? William Wiley is more that some person with minimal knowledge of the facts. https://feltg.com/instructors/william-wiley/ He is very knowledgeable about the inner workings of the MSPB having worked there as Chief Counsel to the Chairman.
You should have voted Cthulu...the greatest of all Evils
nightchop  
#16 Posted : Wednesday, March 14, 2018 7:59:25 AM(UTC)

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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.
frankgonzalez  
#17 Posted : Wednesday, March 14, 2018 8:46:35 AM(UTC)
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Originally Posted by: nightchop Go to Quoted Post
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.
I do not try to discourage anyone form pursuing their rights. But if a claim is made (there is now a quorum at the MSPB) and it isn't accurate, I'd prefer people have all the info to make their own choices.

And, as you said this administration is unpredictable...and the people nominated may not last the nomination period, let alone the whole term!

You should have voted Cthulu...the greatest of all Evils
Mars  
#18 Posted : Wednesday, March 14, 2018 1:39:53 PM(UTC)
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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.
Hawaiiannative  
#19 Posted : Thursday, March 15, 2018 8:11:55 PM(UTC)
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Appeal the UI, place burden on employer, continue to file each week, if she followed FMLA to the letter, and was able and available for work, the burden of proof is on the employer as to why they did not keep an employee.

But, she can't file for disability. Unemployment qualifications require able and available for work, and actively looking for work.
Mars  
#20 Posted : Thursday, March 15, 2018 8:38:34 PM(UTC)
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Originally Posted by: Hawaiiannative Go to Quoted Post
Appeal the UI, place burden on employer, continue to file each week, if she followed FMLA to the letter, and was able and available for work, the burden of proof is on the employer as to why they did not keep an employee.

But, she can't file for disability. Unemployment qualifications require able and available for work, and actively looking for work.


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

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