Federal Employees: You be the Judge

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.

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.

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.

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.

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.



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.

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!

Good luck!

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.

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.