When you’re a federal employee facing removal, it’s hard to think about anything else. The stress can feel constant—fear of retaliation, worry about your reputation, and the very real possibility that your career could be derailed overnight.
That pressure can get even heavier when your situation becomes part of a larger agency controversy. You may feel isolated—like decisions are being made about you based on headlines, assumptions, or “what someone thinks you must have known.”
Sometimes you’re not even the person who planned the event. Sometimes you’re senior enough that people assume you knew. And sometimes you find yourself defending against a charge that relies more on your title than on what you actually did or knew.
A December 24, 2014 decision from the Merit Systems Protection Board (MSPB) is a reminder of a basic principle: when an agency takes a career-ending action, it still has to prove its case using the grounds it actually charged. Southworth PC did not represent any party in this matter.
Case Snapshot
Agency: General Services Administration (GSA), Public Buildings Service (PBS)
Employees: Two Senior Executive Service regional commissioners (Regions 7 and 8)
Action challenged: Removal for alleged misconduct under 5 U.S.C. § 7543
Charge: “Conduct Unbecoming a Federal Employee,” based on four specifications
Context: A widely reported 2010 conference in Las Vegas described in the decision as extravagant and costing $823,000
Outcome: MSPB reversed both removals and ordered restoration with back pay and benefits
What Happened
According to the decision, in 2010 GSA hosted the PBS Western Regional Conference in Las Vegas. After concerns were raised about possible excessive spending and misconduct, GSA’s Deputy Administrator contacted the Office of Inspector General (OIG). The OIG later issued a report describing waste and irregularities and concluding that the agency violated federal limits on conference spending.
The two employees in this MSPB decision were not the officials in the host region that planned the conference. They were the regional commissioners for PBS Regions 7 and 8. Still, the agency proposed removing them in April 2012. The agency’s theory was that they knew or should have known about a range of improprieties and failed to act.
The four specifications alleged that the employees knew or should have known about:
- Excessive and improper planning meetings and participation
- Excessive or impermissible food and beverage spending
- Impermissible spending on clothing and “conference mementos”
- Wasteful spending tied to a “team-building” bicycle exercise, including an improper donation of agency property
After separate hearings, two administrative judges reversed the removals, finding the agency had not proven the specifications. The agency then petitioned the MSPB for review.
What the MSPB Decided—and Why
The MSPB affirmed the reversals (with modifications), concluding the agency did not meet its burden to prove the charge as written.
Here are several key points from the Board’s reasoning, stated in plain English:
The MSPB reviews the case based on the agency’s stated grounds—no substitutions. The Board emphasized it cannot uphold an adverse action on a theory the agency did not actually charge in the proposal notice.
The agency argued the executives had a heightened duty to investigate—but the notices didn’t charge that. The agency asked the Board to require a “heightened duty to investigate and inquire” because the employees were SES. The Board noted that neither proposed removal notice alleged misconduct based on a failure to carry out that heightened-duty theory.
Knowledge and control mattered. The decision discusses Board precedent recognizing that supervisors can be held accountable for subordinate misconduct when there is direction, knowledge, or acquiescence—and where circumstances trigger an affirmative duty to investigate. In this case, the administrative judges found (and the Board agreed) that the record did not show these employees had the direct control or the kind of knowledge that would trigger that duty in the way the agency charged the case.
Evidence gaps were a problem. The Board pointed to multiple areas where the agency did not put enough evidence into the record—such as evidence of actual costs for certain attendance, evidence showing specific numbers were excessive, and evidence tying the employees to procurement decisions.
The Board’s conclusion was straightforward: despite the undeniable controversy over the conference, the agency did not prove that these two employees knew or should have known of the improper decisions in time for their actions to have prevented them.
Why This Matters for Federal Employees
Most federal employees will never be connected to a national news story—but many will face a familiar dynamic: a problem happens, leadership wants accountability, and the agency moves fast.
This decision matters because it highlights realities federal employees see every day:
- A removal is not supposed to run on assumptions. Agencies can’t rely on “you were senior, so you must have known” if the record does not support that claim under the charged theory.
- The exact wording of the charge matters. The Board stressed that it can only evaluate an adverse action on the grounds the agency invoked. That’s why the proposal notice and decision letter are so important—and why careful responses matter.
- Control and information flow aren’t the same as responsibility. Many federal workplaces have complex chains of command. The MSPB’s analysis focused on what the agency actually proved about knowledge, control, and what the employees reasonably should have known.
If you’re dealing with a removal, suspension, demotion, or other discipline, it can help to understand how decision-makers evaluate evidence—not just the emotion and pressure around an incident.
Key Takeaways
- Read the proposal notice closely and identify what the agency must prove. Track what is alleged versus what is assumed.
- Document what you knew, when you knew it, and how information moved (or didn’t) through the chain of command. Preserve emails, calendars, meeting invites, travel documents, and written directives.
- Challenge vague accusations that rely on status instead of proof. Prepare for credibility issues—hearing testimony can matter.
- Stay professional in writing, even when the process feels unfair.
Practical Next Steps
If you’re in (or approaching) an adverse action situation, these steps can help you protect yourself and reduce preventable mistakes:
- Preserve evidence immediately. Save emails, chat messages, calendar invites, draft documents, and attachments. Keep copies of proposal notices, decision letters, and any investigative summaries you receive.
- Build a clean timeline. Write a date-by-date timeline of what happened, who attended key meetings, and what you were told. Note when you first learned key facts and what authority you did (and did not) have.
- Identify witnesses and decision points. List who had first-hand knowledge of planning, procurement, approvals, and budgets. Distinguish between “I heard” and “I saw” facts.
- Keep communications professional. Assume messages may be reviewed later. Stick to facts, not frustration.
- Consider forum and issue overlap. Some disputes go through the MSPB; some go through the Equal Employment Opportunity Commission (EEOC); and some can involve multiple issues. If retaliation is a concern, understanding EEOC retaliation concepts can be important in the right situation. If whistleblowing concerns are involved, you may also hear about the Office of Special Counsel for whistleblower protection.
- Get guidance early. Deadlines can be short, and your strategy often depends on details in your paperwork and your timeline. If leave or medical issues are part of the background, keep track of requests and responses related to FMLA and disability discrimination.
A Word From Southworth PC Leadership
“When your job is on the line, clarity matters—what the agency alleges, what the evidence shows, and what the process requires. You don’t have to navigate that alone.” — Shaun Southworth, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
In high-stakes discipline cases, the right help is often about organization and process—turning a stressful situation into a clear record.
Depending on the situation, federal employee attorneys may help by reviewing proposal and decision documents, evaluating evidence, preparing hearing strategy, and presenting facts in a coherent timeline. Federal employment lawyers can also help you understand how agencies are expected to prove charges and what the record needs to show.
When the dispute is in the MSPB lane—like removals and many other adverse actions—MSPB lawyers often focus on whether the agency met its burden and whether the penalty is supportable under the charged reasons. Some matters may also involve concepts people describe as MSPB wrongful termination, depending on the personnel action and the claims asserted.
And when a situation involves discrimination or reprisal, a federal employee EEO attorney or federal employee retaliation attorney can help explain the process and options in general terms, including how the federal-sector rules (such as eCFR 29 CFR Part 1614) fit into the bigger picture.
Working with attorneys for federal employees can be especially valuable when the situation involves multiple moving parts: complex chains of command, proof disputes, and potential parallel processes.
Talk With Our Team
If you’re facing a proposed removal, an MSPB appeal, or another serious personnel action, talking with practitioners can help you get oriented and make informed decisions.
Southworth PC is serving federal employees nationwide and abroad.
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FAQ
What does the MSPB look for in a removal case?
In general, the MSPB evaluates whether the agency proved its charged reasons with sufficient evidence and whether the action follows required procedures. The details depend on the charge and the record created in the case.
Can an agency remove someone based only on “you should have known”?
Agencies can allege a “knew or should have known” theory, but they still must prove it with evidence tied to the specific charge. This decision illustrates that status alone is not automatically enough; the record matters.
When should someone talk to MSPB Attorneys or MSPB Lawyers?
If you receive a proposal notice, decision letter, or you are considering an MSPB filing, it can be helpful to consult MSPB Attorneys early so you can understand the process, organize evidence, and avoid preventable mistakes. This is general information—not a recommendation for any specific case.
What’s the difference between the MSPB and the Equal Employment Opportunity Commission (EEOC)?
The Merit Systems Protection Board (MSPB) generally addresses certain federal personnel actions (often called “adverse actions”), while the Equal Employment Opportunity Commission (EEOC) addresses discrimination-related complaints in the federal sector. Some situations can involve overlapping issues, and choosing a path can depend on the facts and procedural posture.
Where can I find official information about these processes?
For general background, you can review the MSPB official site and the OSC official site. For federal-sector EEO procedures, the regulations are commonly referenced under eCFR 29 CFR Part 1614.
Disclaimer
This post is for informational purposes only and is not legal advice. Reading this post does not create an attorney-client relationship. Outcomes depend on the specific facts and procedural history of each matter. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.