NOVA Legal Beat

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My federal agency demoted me. How much time do I have to decide whether I want to file an appeal with the Merit Systems Protection Board? Are there any legitimate excuses for missing this deadline?

A. Under Section 1201.22 of the Code of Federal Regulations (CFR), the deadline for filing an appeal with the Merit Systems Protection Board is either 30 calendar days after the effective date of the adverse action or 30 calendar days after the appellant receives the agency’s decision. In cases where the aggrieved employee and agency mutually agree to attempt to resolve the problem through mediation, the filing deadline can be extended to 60 calendar days. If an MSPB administrative judge delivers an unfavorable decision, the appellant generally has 35 calendar days after that decision is issued to file a petition for review (PFR) to the full MSPB under 5 CFR § 1201.114.

“To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case,” the Board said in John A. Stolarczyk v. Department of Homeland Security (2012). Factors that the Board said it will consider in a good-cause-for-an-untimely-filing analysis include: 1. the delay’s length; 2. the excuse’s reasonableness and evidence of due diligence; 3. pro se representation (i.e., legal representation on one’s own behalf); and 4. “the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition.”

In Stolarczyk the Board noted that attorney filing mistakes, whether due to miscommunications or confusion over or a misunderstanding about deadlines, do not qualify as good causes for late filings. And the fact that an appellant is not being represented by a lawyer does not mean the Board will automatically cut him or her a break. “We have consistently denied a waiver of our filing deadline if a good reason for the delay is not shown, even where the delay is brief and the appellant is pro se,” the Board said in Gary L. Jack v. Department of the Air Force (2012). However, good cause can be established if, for example, the appellant can show “he was unable to file his petition on time due to illness, or mental or physical incapacity,” the Board said in Grimaldi M. Gonzalez v. Department of Veterans Affairs (2009).

To avoid late MSPB filings, federal employees should always contact an experienced federal employment law attorney immediately after receiving notice of an adverse action. An attorney can ensure all filing deadlines are met.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My agency is accusing me of falsifying documents. Yes, I inputted some incorrect information, but that was a mistake. What can I do?

A. Falsification is a serious charge — one that could result in the removal of a federal employee. This offense “raises serious doubts regarding [an employee’s] honesty and fitness for employment,” a Merit Systems Protection Board (MSPB) administrative judge said in Steve Durfee v. Department of Defense (2010). While agencies will not tolerate falsification offenses, they should not be so strict as to not take into account the fact that mistakes can and do happen.

Falsification occurs when an employee “knowingly supplied incorrect information with the intention of defrauding or deceiving the agency,” the administrative judge noted in Durfee. He added that “[b]ecause there is seldom direct evidence on the issue, circumstantial evidence must generally be relied upon to establish the element of intent.”

An employee may have a reasonable explanation for why incorrect information was provided, but that may not always save him or her from discipline, at least initially. That’s what happened to the senior safety and heath specialist in Ralph A. Deskin v. U.S. Postal Service (1997). The agency proposed to remove the employee for allegedly falsifying information in a report and cover letter on a workplace safety program called “Supervisors’ Training Observation Program” (STOP).

Initially, the employee submitted a report indicating that 50 percent of customer service employees and 90 percent of processing and distribution employees had “STOP knowledge.” After being told to correct inaccuracies in the report, the employee revised it to indicate that only five percent of customer service employees and 10 percent of processing and distribution employees had “STOP understanding.”

These “glaring discrepancies” between the two report drafts and the untrue statements in the accompanying cover letter prompted the agency’s removal proposal, which a deciding official reduced to a demotion. The employee filed a petition for review with the MSPB, but an administrative judge sustained the agency’s action.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My federal agency has proposed my removal, but I know other people who got away with a 90-day suspension for the same misconduct. Can agencies do that?

A. Generally, similarly situated employees should not receive disparate penalties for similar misconduct. The penalty previously imposed on similarly situated employees is one of the 12 so-called mitigating “Douglas factors” that deciding officials should weigh when deciding on discipline. However, not all employees – even those who hold the same title – are similar. Years of experience and prior misconduct could differentiate them. Further, not all types of misconduct – even when the charges go by the same name – are equal.

Traditionally, the Merit Systems Protection Board (MSPB) had held that employees were not deemed similarly situated if they did not share the same supervisor and work unit. Consequently, the Board considered these factors to be “outcome determinative,” it noted in Joe Lewis Jr. v. Department of Veterans Affairs (2010). However, prompted by a U.S. Court of Appeals for the Federal Circuit decision, the Board in Lewis adopted what it called a more “flexible approach” under which employees could be deemed similarly situated even though they did not share the same work unit or supervisor.

In fact, the Board in Rasheed Dennis v. Department of Housing and Urban Development (2013) identified factors that are “relevant considerations, but none of them is a threshold requirement or outcome determinative in a disparate penalty analysis.” These factors include: 1. “whether a comparative employee worked in the same organizational unit, had the same supervisor and/or deciding official”; 2. “whether the events occurred relatively closely in time;” 3. “whether the difference in treatment was knowing and intentional”; 4. “whether an agency began levying a more severe penalty for a certain offense without giving notice of a change in policy”; and 5. “whether an imposed penalty is appropriate for the sustained charge(s).”

If the employee, with the help of a federal employment law attorney, manages to establish himself or herself as similarly situated to comparators who received more lenient punishments, the agency then must provide a legitimate explanation for the penalty disparities.

Federal employees who are facing discipline for alleged misconduct should immediately contact a federal employment law attorney who can represent them in the agency’s misconduct investigation, reply to proposed discipline, and/or prepare and litigate their MSPB appeal. Depending on the circumstances, an attorney can show the agency failed to properly consider penalties meted out to similarly situated comparators, it treated similarly situated employees more leniently, or its explanation for the different penalties is not legitimate.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Can my federal agency remove me because I was arrested for drunk driving?

A. Agencies should not treat federal employees as though they are guilty until proven innocent. To do so would effectively deny employees of their due process rights. As a Merit Systems Protection Board (MSPB) administrative judge noted in John B. Richardson v. Department of the Interior (2006), “an agency cannot base a removal action upon a charge of arrest.”

However, it might be a different story if the agency based the removal action on a driving while intoxicated (DWI) conviction. The administrative judge in Richardson added that “charging an individual with being subjected to an arrest… without charging the underlying misconduct or conviction… cannot substantiate a charge of misconduct, because they are premised solely on accusations by the alleged victim and district attorney, rather than evidence showing that the charged conduct occurred.”

While an agency may not be able to remove an employee solely because he or she was arrested for DWI, it may try to indefinitely suspend him or her without pay while a criminal case is pending or if a conviction on whatever was charged could result in imprisonment. Depending on the circumstances, the agency may give the employee seven to 30 days advanced notice of an indefinite suspension.

Just because an agency cannot remove an employee on the grounds of a DWI arrest alone, does not mean he or she is immune to removal actions. Much depends on what the employee does or does not do after the arrest. In Donald W. Roby v. Department of Justice (1993), the Board said an agency could remove an employee who had been arrested for DWI for failing to follow a supervisor’s instructions and concealing facts pertaining to a DWI charge’s disposition, along with absence without leave (AWOL). The Board noted that these two offenses constitute “serious misconduct,” which is punishable by removal.

If an agency attempts to remove an employee who was convicted of DWI — and he or she is an alcoholic — this adverse action may not constitute unlawful discrimination. In Paul R. Overstreet v. Department of the Interior (2007), an MSPB administrative judge said, “disability discrimination based on alcoholism does not shield Federal employees from uniformly applied discipline for breaches of the public trust of sufficient severity and type to disqualify them from Federal public service or service in their position.”

He added that “where criminal or other serious misconduct relates directly to a fundamental requirement of his position, the employee is no longer otherwise qualified, and the discipline imposed cannot reasonably be regarded as [disability] discrimination.”

Federal employees who have been arrested for DWI and are facing removal or indefinite suspension should immediately contact a federal employment law attorney.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. A few years ago I lied to get into the military. If the military somehow uncovers my lie, could I get in trouble despite all the time between now and then?

A. The government tends to pick up on a service member’s false representations or deliberate concealments made during the enlistment process after he or she gets in trouble for an unrelated offense. As such, a service member’s ability to avoid a court-martial conviction on the charge of fraudulent enlistment in violation of Article 83 of the Uniform Code of Military Justice usually depends on how long he or she managed to stay out of trouble after enlisting.

Under Article 83, fraudulent enlistment, much like most other UCMJ offenses, cannot be tried at court martial if this charge came more than five years after the offense was committed. So, service members who enlisted (or re-enlisted) at least five years earlier usually do not have to worry about their enlistment lies resulting in an Article 83 conviction, which carries a maximum penalty of dishonorable discharge, total forfeitures and two years of confinement, according to the Manual for Courts-Martial. That does not mean enlistment lies cannot haunt them past this five-year statute of limitations. For example, lack of candor and dishonesty could raise personal conduct concerns that result in the denial or revocation of a security clearance, according to the Adjudicative Guidelines for Determining Eligibility for Access to Classified Information.

If a service member is charged with fraudulent enlistment during his or her fifth year of service, it is crucial to determine exactly when he or she enlisted. Article 83 applies to service members who manage to join the military by knowingly making false representations about or deliberately concealing their enlistment qualifications. Additionally, and perhaps most importantly, the lying service member must also have received pay and allowances. As the U.S. Air Force Court of Criminal Appeals said in U.S. v. Candice N. Cimball Sharpton (2013), “a person does not complete the crime of fraudulent enlistment until that person accepts pay or allowances after becoming subject to the UCMJ, or receives pay or allowances sufficient to cause him or her to become subject to the UCMJ.”

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My supervisor and I do not get along, and he’s warned me about my “insubordinate” and “discourteous” behavior. Is this just semantics or is there a difference between the insubordination and discourtesy?

A. Where there is insubordination, discourtesy towards a supervisor is often not far behind, but the two are actually separate charges. Employees can face removal for either charge, and the stakes are doubly high when they are charged together.

As a Merit Systems Protection Board (MSPB) administrative judge noted in David L. Walker Jr. v. Department of the Army (2006), “Insubordination and discourtesy involve different elements of proof and, thus, are separate charges.” Insubordination, the administrative judge noted, is “a willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed.” In contrast, discourtesy can occur when an employee, for example, speaks to a supervisor in a manner that is “loud, fraught, and inappropriate” or by being “loud, and interrupting continuously during their telephone conversation.” And keep in mind that an employee’s rude behavior can translate into another charge: disrespectful conduct toward a supervisor.

Although discourteous or disrespectful conduct may seem like something best left to Ms. Manners, it is something of great concern to supervisors, too. As the Board noted in Russell C. Jefferson v. Veterans Administration (1981), “To expect management to tolerate appellant’s repeated insolent behavior would make a mockery of management’s authority and supervisory responsibility; few other types of misconduct go so directly to the heart of maintaining the ‘efficiency of the service.’” Also, keep in mind that with the continuing focus on hostile environment sexual or discriminatory harassment, discourteous or disrespectful conduct takes on a whole new meaning for the employer, who most likely will be more concerned with ensuring that appropriate corrective action is taken to minimize liability than with cutting an employee a break.

Federal employees charged with insubordination or discourtesy should immediately contact an experienced federal employment law attorney. Depending on the circumstances, an attorney could show an order was not issued or authorized or it was actually carried out or that the employee’s conduct was actually courteous or respectful.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Can my agency give me an unsatisfactory performance rating because I messed up on one thing during the entire year?

A. A federal agency’s one-strike-you’re-out policy, when applied to a performance appraisal system, is generally known as an “absolute performance standard.” The Merit Systems Protection Board (MSPB), as it stated in Juanita M. Blain v. Department of Veterans Affairs (1988), has traditionally viewed absolute performance standards as providing that “only one incident of poor performance would result in an unsatisfactory rating on a job element.”

Up until about a decade ago, the Board had believed statute prohibited absolute performance standards, except in cases “where death, injury, breach of security, or great monetary loss could result from a single failure to meet the performance standard measuring performance of a single critical element.” That changed when its appellate court, the U.S. Court of Appeals for the Federal Circuit, in Cynthia A. Guillebeau v. Department of the Navy (2004) ruled that statute does not actually prohibit the adoption of such high standards.

Federal law calls for performance appraisal systems that “to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria… related to the job in question for each employee or position under the system.”

Even though the law does not ban absolute performance standards, the Federal Circuit pointed out that such standards must be “must be reasonable, based on objective criteria, and communicated to the employee in advance.” An example of an unreasonable performance standard identified by the court was a standard “permitting so few errors in pulling medical records from files that, based upon the number of records the employee is required to pull, the employee must be at least 99.91% accurate.”

Federal employees who believe their agency’s performance appraisal system includes unreasonable performance standards should immediately contact a federal employment law attorney who can help them file a grievance or complaint challenging the validity of their performance ratings and standards.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. Is my supervisor at a federal agency allowed to subject me to harsh treatment because I got pregnant?

A. A pregnancy undoubtedly will bring change to a woman’s life and where she works. Some changes are more welcome than others, and when a pregnant federal employee encounters resistance or opposition to such change in the office, she needs to remember that Title VII of the Civil Rights Act protects her against sex and pregnancy discrimination.

Title VII prohibits employers – including federal agencies – from refusing to hire people, discharging them and changing the compensation, terms, conditions, and privileges of their employment because of their sex, among other characteristics. Covered under this prohibition against sex discrimination are pregnancy, childbirth and related medical conditions. The law states that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-­related purposes… as other persons not so affected but similar in their ability or inability to work.”

If a supervisor is giving you a hard time because you are pregnant, the first question is whether he or she is harassing you because of your sex/pregnancy and creating a hostile work environment for you. Harsh comments about an employee’s pregnancy could have this effect, “[e]ven if [the] harassing conduct produces no tangible effects,” the Equal Employment Opportunity Commission (EEOC) said in Priscilla Niedzwiedz v. Department of Homeland Security (2010).

This case involved a Border Patrol agent whose supervisor had told her, “I understand you became pregnant during your probationary period. So while your classmates were out there working the field, you were working inside, pregnant. They were working out there, earning their reputation while you were pregnant and your job was handed to you.” A day later the supervisor warned the agent that she needed to maintain adequate fitness after having children. The supervisor threatened to focus harsh treatment on the agent and another female agent until they were physically competent because they were women.

These comments, among others, prompted the agent to file an Equal Employment Opportunity (EEO) complaint, which the agency dismissed. On appeal however, the EEOC reversed the agency’s decision and remanded the case for an investigation and possible EEOC hearing. It noted that the supervisor’s remarks, despite being made over only two days, were “sufficiently severe to state a claim of discriminatory harassment.” The remarks were “explicitly directed at” the two female agents and “indicated that the negative treatment would be ongoing as the Supervisory Border Patrol Agent [kept focusing on] them because they were women.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I have a hunch that I did not get a promotion because my supervisor is upset that I reported some misspending to the inspector general. How can I prove I am the victim of whistleblower retaliation?

A. First, you need to make sure your disclosure to the office of the inspector general (OIG) was protected by the Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act (WPEA). The OIG is an appropriate venue for whistleblower disclosures, as is the Office of Special Counsel (OSC).

The next question is did the misspending you reported involve an actual or reasonably believed violation of law, rule, or regulation, gross mismanagement, or gross waste of funds, an abuse of authority, or a substantial and specific threat to public health or safety? If not, and you simply disagreed over how funds were being spent, the disclosure may not be protected as whistleblowing.

Next, you need to establish a nexus between the protected disclosure and the retaliatory failure to promote (or other personnel action). One way of achieving this nexus is showing that the deciding official was aware of your protected disclosure and his or her retaliatory act came within a reasonable amount of time after you made that disclosure.

In Inman v. Department of Veterans Affairs (2007), the Merit Systems Protection Board (MSPB) found this reasonable timeframe for this so-called “knowledge-timing test” to be within one year of when the deciding official became aware of a protected disclosure and when the retaliatory act occurred. It is also helpful if the employee can prove that the management official who took or failed to take, or threatened to take or fail to take, the personnel action had an actual motivation to retaliate against the whistleblower because the employee’s disclosure placed that management official at professional risk with his or her agency.

Federal employees who believe they are victims of whistleblower retaliation should immediately contact a federal employment law attorney who can help them prepare a complaint to the OSC. If the OSC declines to pursue the matter, or does not respond to the complaint within 120 days, the attorney can help the employee file and individual right of action (IRA) appeal to the MSPB.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I work for a federal agency. If I’m told to do something that I believe would result in a violation of law, can I refuse to comply with that order?

A. The federal government places a premium on obedience, so orders are meant to be followed, regardless of whether they will result in a violation of law. Employees who refuse to carry out orders believing they will result in such a violation usually will not be praised by an agency for their righteousness. Instead, they will be branded as being insubordinate.

Employees caught in this ordered-to-do-wrong bind should adhere to what the Merit Systems Protection Board (MSPB) has dubbed the “obey now, grieve later” rule. Under this rule, employees should carry out whatever they were ordered to do, and then blow the whistle on the wrongdoing. They could, for example, disclose information about the violation to the Office of Special Counsel (OSC) or Office of the Inspector General (OIG).

An exception to this rule applies to “certain limited circumstances where obedience would place the employee in a clearly dangerous situation, or when complying with the order would cause him irreparable harm,” the MSPB noted in Metz v. Department of the Army (2011). Federal employees concerned that they’ve been told to do something criminally illegal or who have been subjected to retaliation for blowing the whistle on wrongdoing should immediately contact a federal employment law attorney.

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. I work for a federal agency, and my supervisor made an inappropriate pass to me when no one was around. I rejected him, and now he is trying to have me transferred. What can I do? It’s his word against mine.

A. Complaints over sexual harassment usually boil down to he said/she said debates. If a supervisor is lying about his or her conduct or motives for subjecting an employee to an adverse employment action, the subordinate needs to remember that the agency official’s lack of credibility can be exposed during a hearing before an Equal Employment Opportunity Commission (EEOC) administrative judge.

Under the EEOC’s regulations and management directive, Commission administrative judges are given much leeway in determining the credibility of witnesses. In fact, during subsequent appeals of administrative judge decisions, the EEOC will tend not to disturb a judges’ credibility determinations “based on the demeanor or tone of voice of a witness… unless documents or other objective evidence so contradicts the testimony of the witness or the testimony of the witness otherwise so lacks in credibility that a reasonable fact finder would not credit it.”

An administrative judge may find a supervisor’s testimony to be not credible if the supervisor and other agency officials provide conflicting reasons for the adverse employment action, as was the case in Johnson v. National Credit Union Administration (2005). A supervisor’s lack of a reputation for veracity, coupled with his or her self-serving and unbelievable testimony, could also lead an administrative judge to afford the official less credibility, as was the case in Millard v. U.S. Postal Service (2001). An experienced federal employment law attorney can help federal employees who have been subjected to sexual harassment flush out the truth and show that the explanations provided by management are mere pretext for discrimination.

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