EEOC Executive Leadership Conference. A Primer on Federal Personnel Law. Bill Bransford Shaw, Bransford & Roth, PC www.shawbransford.com. T E N D E N C Y. C O R R E C T. 5 U.S.C. § 7513. …an agency may take an action (suspension of more than 14 days, demotion or removal)
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In dealing with any problem employee, supervisors should focus on the question of why correcting the problem will make the agency more efficient and/or make it easier to accomplish the mission.
Nexus can be shown in eitheron duty misconductORoff-duty misconductIFthere is a link to the agency’s mission and/or efficiency.
Initiate Appeal at MSPB within 30 Days
Appeal to full Board (PFR)
Appeal to Court of Appeals for the Federal Circuit (PFR)
(except on affirmative defenses)
EEO Counselor contact within 45 Days
EEO Counseling for 30-90 days
Formal complaint filed if unresolved
Agency investigates within 180 days
çEmployee elects forum è
Appeal to Commission
Civil Action Filed
US Attorneys Answer
Trial by Jury
Appeal to higher court
Final Agency Decision
Employee has burden of proof
non-discriminatory basis for action complained of
Agency has burden of proof
Burden of proof depends on type of case.
Why use these tools?
The degree of evidence the administrative judge (or other fact finder) would accept as sufficient to find that a contested fact is morelikely true than untrue.
An employee can defend against a disciplinary or adverse action by disputing the agency’s evidence and by raising anaffirmativedefense.
Employee is entitled to DUE PROCESS, including:
To keep your misconduct action ironclad
* * *
Can be a leave/attendance issue if it is repeated and impacts the employee’s productivity
* * *
a lower penalty than an intent misconduct charge
Lack of Candor
Disrespectful Behavior/ Failure to Follow Instructions
Not a valid basis for an employee to refuse to do work assignment
* * *
Most PDs have a catch-all provision of “other duties as assigned.”
Can be alternative to charge of insubordination or threats in the workplace
If used correctly, process can assist the manager in either improving performance or getting rid of non-performers.
Process is of utmost importance!!
The degree of evidence that a reasonable person might accept as adequate to support a conclusion, even though other reasonable persons might disagree.
Written material is prepared [in accordance with] established stated objectives and is clearly written, succinct, and consistent with regulations and established policy. Little, if any, rewrite is required and necessary approval/concurrence of the finished product is easily obtained.
Inform the employee of specific work requirements through:
A management analyst with a surly disposition also produces marginal reports. You place him on a 60-day PIP, and in the PIP letter you require bi-weekly meetings to review report writing quality. The first meeting ends in an argument. You do not hold further meetings.
If agency follows procedures and employee’s performance doesn’t improve, removal will be upheld.
If agency does not follow procedures and employee’s performance does not improve removal will be reversed.
Agencies cannot use Chapter 75 adverse action process to deal with performance problems.
The Efficiency of the Service is
by bringing charges against employees who file EEO complaints or grievances or who blow the whistle
1. Opposing any act of employment discrimination or making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing on an employment discrimination claim. 42 U.S.C. § 2000e-3(a)
2. Disclosing information which the employee reasonably believes evidences:
3. Exercising any appeal, complaint , or grievance right granted by law, rule, or regulation. 5 U.S.C. § 2302(b)(9)(A)
4. Testifying for or assisting any individual in the exercise of a right referred to in Number 3. 5 U.S.C. § 2302(b)(9)(B)
5. Cooperating with or disclosing information to an IG or the Special Counsel. 5 U.S.C. § 2302(b)(9)(C)
6. Forming, joining, or assisting any labor organization, or refraining from any such activity. 5 U.S.C. § 7102
7. The right to individually or collectively petition Congress, or to furnish information to Congress, or to a committee member. 5 U.S.C. § 7211
a. Violation of law, rule or regulation;
b. Gross mismanagement;
c. Gross financial irregularity;
d. Abuse of authority; or
e. Specific threat to health or safety
The Notification and
Federal Employee Antidiscrimination and