Southworth PCSouthworth PC2026-06-04T13:16:04Zhttps://www.attorneysforfederalemployees.com/feed/atom/WordPress/wp-content/uploads/sites/1203595/2023/06/cropped-favicon-32x32.pngby Southworth PC<![CDATA[Schedule Policy/Career: Tips for Federal Employees Impacted by the June 3, 2026 Executive Order]]>https://www.attorneysforfederalemployees.com/?p=510302026-06-04T13:16:04Z2026-06-04T11:46:12ZQuick read: On June 3, 2026, the President signed an executive order placing approximately 8,000 federal positions into a new excepted-service category called Schedule Policy/Career — the renamed Schedule F. For positions covered by the order, the Chapter 75 adverse action procedures that ordinarily apply to career federal employees no longer apply. No advance notice. No reply right. No appeal to the Merit Systems Protection Board (MSPB) on a removal. Positions can be removed at will. The order is being challenged in federal court. If you may be on the list, the next two weeks matter.
This post lays out, in plain English, what the order does, what it does not do, and the practical steps you should take now.
Check out the order and the appendix yourself at Implementing Schedule Policy/Career in the Excepted Service – The White House and 2026SchedulePolicyCareer.eo_.APPENDIX.pdf
What the Order Does
The June 3, 2026 executive order — titled Implementing Schedule Policy/Career in the Excepted Service — does four things:
First, it places the specific positions identified in the order's appendix into Schedule Policy/Career of the excepted service. The appendix runs more than 200 pages and lists positions by agency and by position description (PD) number.
Second, it amends the Civil Service Rules and Regulations (5 C.F.R. Parts 1, 3, 6, 11, and 550) so that an employee in a Schedule Policy/Career position can be separated for "unacceptable performance or misconduct" on the agency's written notice — without the procedural protections of 5 U.S.C. Chapter 75.
Third, it directs each affected agency to notify the encumbering officer or employee of the placement within 7 days and to conform agency records to reflect the change.
Fourth, it tells OPM to continue the broader transfer process — meaning more positions may follow.
The administration estimates that about 97 percent of the positions covered by this round are at or above the GS-15 level.
What the Order Does Not Do — At Least On Its Face
OPM Director Scott Kupor stated publicly that whistleblower protections are preserved. We note that the practical access to the Office of Special Counsel and the Individual Right of Action (IRA) framework for Schedule Policy/Career employees is still being litigated; treat that as an open question, not a settled one. OPM might be wrong on this one.
The order does not by itself extinguish EEO statutes. Title VII, the Rehabilitation Act, the ADEA, and the EPA continue to apply, and EEOC's 29 C.F.R. Part 1614 process for federal-sector complaints remains available.
The order does not retroactively change the procedural rights attached to any adverse action already initiated against you before your position was placed in Schedule Policy/Career.
What is Being Challenged in Court
A coalition of federal employee unions and good-government organizations — including the American Federation of Government Employees (AFGE), AFSCME, the AFL-CIO, Public Employees for Environmental Responsibility (PEER), and Democracy Forward — has active litigation challenging the underlying OPM rulemaking and the Schedule Policy/Career framework. The legal theories include exceeding the President's authority under the Civil Service Reform Act of 1978, violating the Administrative Procedure Act, and depriving covered employees of constitutionally protected property and due-process interests in their positions. Courts have not yet ruled on the merits of the June 3, 2026 order.
We do not know how the litigation will come out. We do know that the procedural protections Congress codified in Title 5 do not vanish because an executive order says they do. The courts will weigh in. Until they do, treat your situation as legally contested, not legally settled.
What To Do Right Now — Practical Checklist
1. Confirm whether your position is actually on the list.
Pull up the appendix to the executive order. Find your agency. Find your position description (PD) number — it is on your SF-50 in box 22 ("Position Title and Number"). If your PD number appears in the appendix under your agency, your position is covered. If your PD number is not listed, your position is not covered by this round — but a subsequent round could include it.
The order itself states that subsequent renumbering or organizational realignment of a listed PD does not remove it from Schedule Policy/Career. If your PD is on the list and your agency later renumbers or moves it, the coverage follows the position.
2. Get the notice in writing.
Your agency is directed to notify you within 7 days of placement in Schedule Policy/Career. Get the notice in writing — email is fine. Save it. Save the date and time it arrived. Save who sent it. Do not rely on a verbal conversation with a supervisor.
3. Do not sign anything reclassifying you without learning more.
If your agency asks you to sign a document acknowledging placement in Schedule Policy/Career, or any document waiving rights, do not sign it without first speaking with your union, your representative, or counsel if you want. Acknowledging receipt of a notice is one thing; signing a waiver is something else. Read what you are being asked to sign. If you are unsure which it is, ask for time to review and consider getting advice. Although we will provide information, we do not plan to offer a paid consultation for this advice. Our free consultations would be focused on whether you want us to pursue EEO claims, whistleblowing claims, or defend against proposed or actual discipline. A few other firms, however, provide for paid consultations which my be useful.
4. Document everything now — before anything happens.
Build a file. Include:
Your current SF-50 and the SF-50 you receive reflecting placement in Schedule Policy/Career.
Your most recent performance appraisals and any awards or commendations.
Emails reflecting praise for your work, successful projects, or favorable feedback.
Any complaint, EEO contact, whistleblower disclosure, or protected activity you have engaged in — with dates.
Your position description as currently written.
The goal is to be able to demonstrate, if needed, the actual character of your position and the actual quality of your service. Do this now, while you have access to your systems and email.
5. Engage your union or representative.
If you are in a bargaining unit, talk to your steward and your local. Even if your position itself is unclassified or excepted, your union may still have a role in negotiating the agency's implementation. If you have a personal representative, loop them in.
6. Keep doing your job — and keep records of it.
Continue to perform. Continue to follow lawful directives. The order does not change the bar on adverse actions for protected reasons — race, sex, national origin, age, disability, religion, sexual orientation, gender identity, prior EEO activity, whistleblower disclosures, union activity, and political affiliation. If you are removed, the reason matters. Keep your work product, your communications, and your performance record clean and well-documented.
7. Watch the litigation.
The federal court challenge is the single most important variable for the next several months. We will post updates as they come. If you are not on our daily newsletter, you might want to join at fedlegalhelp.com/newsletter.
8. Know your timelines if something happens.
If you are removed and you believe the removal is based on a protected reason — discrimination, retaliation, whistleblower reprisal, USERRA, political affiliation — there are deadlines, and they are short. EEO contact for discrimination or retaliation is 45 days from the action. Whistleblower disclosures and IRA framework filings with OSC have their own timelines. Do not let a deadline run. Consider contacting counsel for a consultation.
Who Can the Firm Help
Southworth PC focuses on federal employment law. We represent federal employees nationwide and worldwide. The cases this order tends to generate adverse actions where the procedural shield is gone but the substantive prohibitions remain — retaliation for protected EEO activity, whistleblower reprisal under 5 U.S.C. § 2302(b)(8), prohibited personnel practices, USERRA, mixed cases at the intersection of MSPB and EEO — are core firm work.
We do free consultations to see if you have a litigation case we can help your pursue. If you are facing discipline, harassment or discrimination, or if you have already received a separation notice, you might consider reaching out.
This post is general information about a developing legal situation. It is not legal advice and does not create an attorney-client relationship. Federal employment matters are fact-specific. If you believe you are affected by the executive order, the right next step is a consultation with an attorney who can evaluate your specific situation against the actual record.]]>by Southworth PC<![CDATA[What I See in the New Federal Employee NDA — Five Concerns]]>https://www.attorneysforfederalemployees.com/?p=510282026-05-27T13:33:47Z2026-05-27T12:35:01Zdraft. The public comment period closes thirty days after publication in the Federal Register, and OPM may change the form before it's final. I'll update this post as the picture develops.
But these are the issues I think every federal employee should be tracking right now.
Concern One: The Whistleblower Language May Not Match What Congress Required
What the law says. Federal law has long recognized that nondisclosure agreements can be used to silence whistleblowers. To prevent that, Congress passed what is sometimes called the "anti-gag" statute, codified at 5 U.S.C. § 2302(b)(13). The statute says it is a prohibited personnel practice — meaning a violation of federal law that protects employees — for any agency to "implement or enforce" a nondisclosure policy, form, or agreement that does not contain a specific block of language Congress wrote.
That required language must protect, among other things, "the reporting to an Inspector General or the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety."
The two agencies named matter. The Inspector General is the watchdog inside each federal agency. The Office of Special Counsel is an independent federal agency Congress created specifically to receive and investigate whistleblower disclosures from federal employees. They are not interchangeable. Congress required both to be named.
What the form says. Paragraph 3 of the OPM draft includes a whistleblower protection clause. The form's clause protects "the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety."
Read those two passages next to each other. The statute says "an Inspector General or the Office of Special Counsel." The form, as I read it, says "an Inspector General" and stops.
Why this matters. The Office of Special Counsel appears to be missing from the required statement. Appendix A of the form separately lists the Whistleblower Protection Act and other statutes, but as I read the law, a reference list in an appendix is not a substitute for the required language in the body of the agreement. The Merit Systems Protection Board has long treated the statutory statement as a required block of text, not a checklist.
If I'm reading the form correctly — and I want you to check this for yourself against the statute and Paragraph 3 of the form — implementing or enforcing this NDA as drafted could itself be a prohibited personnel practice under 5 U.S.C. § 2302(b)(13). This could be a drafting error OPM fixes before finalization. I hope it is. But as drafted, it's a real concern.
Concern Two: The First Amendment Question — United States v. NTEU
What the law says. Federal employees do not surrender their First Amendment rights when they accept a federal job. The Supreme Court has said so repeatedly, including in Pickering v. Board of Education, 391 U.S. 563 (1968).
The case most directly relevant to a sweeping, advance restriction on federal employee speech is United States v. National Treasury Employees Union, 513 U.S. 454 (1995). In NTEU, the Supreme Court struck down a federal law that broadly prohibited federal employees from accepting honoraria for speeches and articles. The Court held that when the government imposes a prophylactic restriction on federal employee speech — a restriction that applies in advance, to a large group, before any specific speech has occurred — the government has to make a real, evidence-based showing that the restriction's interest outweighs the speech interests of employees and the public's interest in hearing them.
What the form says. Paragraph 1 of the OPM draft defines the information employees may not disclose as "all non-public, confidential, or proprietary information, to include, but not be limited to, information relating to internal agency operations, personnel matters, personally identifiable information (PII), personal health information (PHI), procurement processes, or any sensitive, pre-decisional or deliberative material that is not currently publicly available and should not be disclosed under applicable law."
That definition is sweeping. The phrase "pre-decisional or deliberative material" in particular reaches far beyond classified information or trade secrets. It covers, on its face, the kind of internal conversation that happens in every agency every day — draft policies, dissent memos, candid emails between staff.
Why this matters. As I read this, the form may capture speech federal employees make as private citizens about matters of public concern. That is precisely the speech the Supreme Court has historically protected.
The administration's justification, as set out in OPM's notice, points to a handful of recent leaks. That may not be the kind of evidentiary showing NTEU requires for a restriction of this breadth applied to roughly two million people. I am not predicting how a court will come out. I am saying I think there will be litigation, and I think the NTEU analysis is where it lives.
Concern Three: The Privacy Act Statement Contradicts Itself
What the form says. Page 4 of the form contains a Privacy Act Statement — a standard disclosure required when the government collects personal information. The "Effects" line reads:
"Signing the NDA is voluntary; however, failure to sign may result in removal from federal service and potential debarment for refusal to certify compliance with applicable non-disclosure obligations."
Read that twice. The form says signing is voluntary. The next clause of the same sentence says that if you don't sign, you can be removed from federal service and barred from future federal employment.
Why this matters. This is not just a wording problem. It's a consent problem.
In contract law — federal and state — a signature is generally treated as voluntary when the signer has a meaningful choice. A choice between "sign this" and "lose your job and be barred from federal work" may not meet that standard. Federal courts asked to enforce this NDA against an employee will have to grapple with the contradiction in the document itself, and the government will be the party that drafted it. Under the longstanding doctrine of contra proferentem — which translates roughly to "against the drafter" — ambiguities in a contract are construed against the party that wrote it.
I do not know how this plays out. But it could be messy, and it could affect enforceability.
Concern Four: Five Years After You Leave — and Written Permission to Speak
What the form says. Two paragraphs work together here.
Paragraph 2: "Upon leaving employment with the Agency, the Employee agrees not to disclose any Confidential Government Information absent written permission from an authorized agency official."
Paragraph 7: "The Agreement is effective for a period of 5 years after leaving Federal service."
Combined: for five years after you leave federal service, you would need written permission from your former agency — typically from the General Counsel, the Records Officer, or your former supervisor — before disclosing covered information.
Why this matters. Five years is not a lifetime, but it is a long time. It is a full presidential election cycle plus one. During that window, the form, as I read it, would require former federal employees to ask permission from the agency they left before talking publicly about a wide range of topics they encountered on the job.
In First Amendment law, requiring a government license before someone can speak is called a prior restraint. Prior restraints have a long, well-developed history in Supreme Court law, going back to Near v. Minnesota, 283 U.S. 697 (1931), and New York Times Co. v. United States, 403 U.S. 713 (1971). They are not categorically forbidden, but they face heavy scrutiny.
As I read this, a five-year, post-employment, written-permission requirement administered by the same agency the employee left raises serious questions. The form names the official who decides, gives that official broad discretion, and provides no clear standard or timeline for response. I think this draws challenges.
Concern Five: This NDA Does Not Sit Alone
This last concern is not about the NDA itself. It's about what the NDA sits next to.
What's on the table. OPM has three rules in motion that, taken together, change how federal employment works.
1. The proposed governmentwide NDA discussed in this post. (Docket OPM-2026-0100, May 27, 2026.)
2. A separate proposed rule on Suitability and Fitness, published in the Federal Register on June 3, 2025. See 90 Fed. Reg. 23467. This rule would amend 5 CFR Part 731 to add "refusal to certify compliance with, and/or adhere to, applicable non-disclosure obligations" as a suitability factor. Suitability factors are the basis on which OPM can direct an agency to remove an employee. The comment period on this rule closed July 18, 2025. As of this writing, no final rule has been published.
3. A companion proposed rule on Suitability Action Appeals, published February 6, 2026. See 91 Fed. Reg. 5352. This rule would move appeals of suitability actions out of the Merit Systems Protection Board — the independent body federal employees rely on for due process — and into OPM itself. The comment period closed March 9, 2026. As of this writing, no final rule has been published.
Why this matters. Read those three pieces together. As I read them, the NDA could become a trigger. The suitability rule could make refusal to sign a basis for removal. The appeals rule could change what your appeal rights look like.
I want to be careful here. None of these rules is final. All three are proposed. Comments are in. We do not yet know what the final versions will say. But the architecture of three rules sitting next to each other is what I think federal employees should be paying attention to — not just this one form in isolation.
Could refusal to sign become a suitability factor? Could removal proceed differently than it does today? Could appeal rights look different than they do today? I do not know yet. I think we need to explore this more as the rules move toward final form.
Where That Leaves Us
Five concerns, as I read the document and the surrounding law:
The whistleblower-protection language in the form may not match what Congress required at 5 U.S.C. § 2302(b)(13).
The form's breadth raises First Amendment questions under United States v. NTEU.
The Privacy Act Statement contradicts itself on whether signing is voluntary.
The five-year post-employment restriction with a written-permission requirement raises prior-restraint questions.
The NDA sits next to two other proposed OPM rules that, taken together, could change how refusal to sign is treated.
These are concerns, not conclusions. The form is still a draft. Comments are open. Litigation may come if it goes final in current form.
If you are a federal employee, my advice is the same as it was this morning: read the form yourself. You handle harder documents than this every day. The link is on the OPM docket page at regulations.gov, Docket OPM-2026-0100-0003 or at fedlegalhelp.com/ndatext. Don't let anyone — including me — tell you what's in it without reading it yourself.
This post reflects my reading of the draft NDA as published on May 27, 2026, and does not constitute legal advice. Federal employees facing specific employment decisions should consult qualified counsel. The author is the CEO of Southworth PC represents federal employees and applicants in matters before the MSPB, EEOC, OSC, and related forums.]]>by Southworth PC<![CDATA[Federal Employment Attorneys: MSPB Reverses a Navy Removal Case]]>https://www.attorneysforfederalemployees.com/?p=510252026-05-14T14:12:46Z2026-05-18T13:42:22Z livelihood questioned—often while still trying to keep their careers intact. When a removal is on the table, it's normal to feel isolated, worried about retaliation, and unsure who to trust.
Sometimes the rules change. Sometimes you're told to do something one way, then blamed for not doing it another way. And sometimes you know the work they're accusing you of not doing simply didn't exist.
This post breaks down an Aug. 8, 1995 decision from the Merit Systems Protection Board (MSPB) involving a Department of the Navy removal and what the Board looked at when the agency tried to justify its action. Southworth PC did not represent any party in this matter.
Even though this is an older decision, the themes are familiar today: What did management actually tell the employee to do? Was the expectation clear? And can the agency prove it?
Case Snapshot
Forum:Merit Systems Protection Board (MSPB)Decision date: Aug. 8, 1995
Agency: Department of the Navy
Position: GS-5 Lead Medical Clerk (urology clinic)
Action challenged: Removal
Key issues in the removal: Alleged failure to input telephone consults into a clinic computer system (CHCS) and alleged issues with end-of-day (EOD) reporting
Result: Removal reversed; restoration and back pay/benefits ordered
Other claims raised: Sex and disability discrimination and reprisal for whistleblowing were raised as affirmative defenses, but the administrative judge found they were not established
What Happened
According to the decision, the agency removed the employee from a GS-5 lead clerk role based on two broad charges:
Failure to perform work as assigned, and
Failure to follow supervisor instructions.
The specifications the Board focused on involved:
Telephone consults that were allegedly not entered into the clinic's computer data system (CHCS) during August to November 1993, and
An allegation that no telephone consults were logged during January 4–7, 1994, plus
Allegations about EOD reports for that same January 1994 period.
After a hearing, an administrative judge did not sustain the charges and reversed the removal. The agency then filed a petition for review. A separate fight also developed over whether the agency provided interim relief while it sought review (the Board ultimately found the agency complied for petition-for-review purposes).
What the MSPB Decided—and Why
The MSPB ultimately left the removal reversed. Here's the plain-English "why" from the decision:
1) Interim relief compliance mattered before the Board addressed the petition
The Board explained that when an agency petitions for review after an administrative judge orders interim relief, the petition must be accompanied by evidence showing the agency complied (or made a determination that returning the employee would be unduly disruptive).
In this case, the agency submitted documents (including an SF-50) and additional evidence in response to a show-cause order. Based on the record described in the decision, the Board found the employee was returned to the position, given the necessary computer access, and received pay and benefits required by interim relief.
2) The agency did not prove the "telephone consults" specification (Aug–Nov 1993)
A central problem was responsibility and notice. The Board agreed the agency did not prove, by a preponderance of the evidence, that the employee was responsible for entering telephone consults into CHCS (or ensuring someone she supervised did so) during the charged period.
The decision highlights that:
The employee's performance standards did not address the disputed duty, and
The evidence about what the employee was told (and when) was vague and disputed.
The Board underscored a key point: performance standards don't need to list every duty, but an employee generally should not be disciplined for failing to do something the agency did not make the employee aware she had to do.
3) The agency did not prove the "telephone consults" specification (Jan 4–7, 1994)
Even assuming the employee knew about the expectation, the Board found a second proof gap: the agency presented no evidence that telephone consults actually existed to be entered during those four days.
4) The agency did not prove the EOD-report "instructions" specification
On the EOD issue, the Board emphasized the lack of evidence—beyond a supervisor's testimony—that the employee was told to prepare a particular version of the report (including both "current day" and "prior day" reporting), especially when clinic personnel had differing understandings of what an EOD report should capture.
Why This Matters for Federal Employees
If you're facing discipline, this decision illustrates a reality federal employees often live with:
Vague expectations can become "misconduct" after the fact. When duties shift informally or instructions aren't documented, employees can be accused of failing to do work they didn't clearly own.
Proof still matters. In MSPB litigation, the agency generally must prove the charges by a preponderance of the evidence. When key details are missing—like whether the work existed, or whether the instruction was clearly communicated—the case can turn.
Interim relief can be a lifeline, but it can also be disputed. When an initial decision reverses a removal, interim relief issues may arise if the agency seeks further review.
If you're trying to get oriented, an MSPB overview can help you understand where the MSPB fits in the federal discipline system and what "burden of proof" means in practice.
Key Takeaways
Insist on clarity about what is expected and who owns a task. Preserve written instructions, emails, and policies that show how duties were assigned.
Track whether the agency can prove the underlying facts (for example, whether the work existed during the charged period). Compare expectations against performance elements and standards—while recognizing they may not list every duty.
Note when workplace processes change during absences or reorganizations, and document what changed. Stay professional and consistent in communications, especially when emotions run high.
Respond to proposed discipline thoughtfully and on time, because deadlines can be short.
Practical Next Steps
If you're dealing with a proposed or actual adverse action, here are practical steps that often help—without assuming anything about your specific situation:
Save evidence early. Keep copies of emails, memos, assignments, SOPs, and any "who does what" documents.
Build a timeline. Write a dated timeline of key events, instructions, and changes in duties—while details are still fresh.
Document expectations. If a supervisor gives verbal instructions, consider following up professionally in writing to confirm your understanding.
Identify witnesses. Note who saw what, who trained whom, and who can speak to normal practices in your unit.
Keep communications professional. Avoid venting in writing; assume workplace messages may become exhibits later.
Watch for overlapping issues. Some matters involve both MSPB and EEO concepts; an EEOC overview can help you understand the federal-sector side, and federal-sector EEO complaints are governed by 29 CFR Part 1614.
Flag reprisal/whistleblowing issues carefully. If you believe protected disclosures are involved, the OSC / whistleblower process may also be relevant, and you can review public resources through the OSC official site and the MSPB official site.
Get help early. Speaking with Federal employee attorneys can help you understand options, identify the right forum, and avoid preventable missteps. In this decision, the Board's notice section referenced specific time limits for further review options and fees for that appellant—your deadlines may differ, but they can be short.
A Word From Southworth PC Leadership
"When your job is on the line, clarity and documentation matter. If the expectations weren't communicated and the evidence doesn't add up, that's something you can address—step by step, with the right support." — Lydia Taylor, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
Federal cases can involve multiple systems and overlapping theories—discipline, MSPB procedure, discrimination frameworks, and sometimes whistleblowing concepts. Federal employment attorneys often help by explaining how MSPB appeals work and what the agency must prove, identifying what documents and testimony are likely to matter most, reviewing proposed removal letters and specification language for proof problems, helping organize evidence into a clear narrative and timeline, preparing for hearings (including witness preparation and cross-examination planning), and discussing settlement options and practical outcomes without overpromising.
When removal is involved, the legal and career stakes can feel overwhelming. That's one reason many people look for attorneys for federal employees who understand how federal adverse actions differ from private-sector discipline and how MSPB wrongful termination concepts may apply depending on the facts.
This case also included affirmative defenses alleging sex and disability discrimination and whistleblowing reprisal (not sustained by the administrative judge, per the decision). In other matters, readers may see statutes like Title VII of the Civil Rights Act of 1964 and Sections 501 and 505 of the Rehabilitation Act of 1973 discussed in the federal workplace context. If retaliation is part of your lived experience, learning the basics of EEOC retaliation can also be helpful.
Working with Federal employee lawyers can be especially valuable when the situation involves multiple moving parts: proof disputes, unclear expectations, and potential parallel processes. Depending on your circumstances, a federal employee EEO attorney may help you understand how discrimination concerns intersect with disciplinary proceedings. And where the issue involves alleged retaliation for protected activity, a federal employee retaliation attorney can help you frame events in a way that is clear, professional, and tied to the timeline.
Talk With Our Team
Southworth PC works with federal employees navigating EEO complaints, MSPB appeals, and career-impacting discipline—serving federal employees nationwide and abroad. If you want to talk through your situation in a careful, fact-specific way, use the contact form below to reach Southworth PC.
FAQ
What does the MSPB have to prove to sustain a removal?
In an MSPB case, the agency generally must prove the charged conduct by a "preponderance of the evidence," meaning it's more likely than not. This decision illustrates how charges can fail when the record does not show clear notice of a duty or when key factual proof is missing.
When should I contact MSPB Attorneys after a proposed removal?
Many people reach out as soon as they receive a proposal notice or removal decision because deadlines can be short and the paperwork can be technical. MSPB Attorneys can help you understand what issues are provable, what documents matter, and how to present a coherent timeline—without relying on assumptions.
What do MSPB Lawyers focus on when "failure to follow instructions" is alleged?
MSPB Lawyers often examine whether the instruction was actually communicated, whether it was clear, and whether the employee had a reasonable opportunity to comply. This decision highlights that when expectations are disputed and supporting documentation is thin, the agency may struggle to meet its burden.
Do I need a federal employee EEO attorney if discrimination is part of the story?
If discrimination issues are involved, some people consult a federal employee EEO attorney to understand how EEO theories interact with other processes and what evidence is typically used. This decision notes that discrimination claims can have separate review paths, and federal-sector EEO procedures are generally governed by 29 CFR Part 1614.
When might a federal employee retaliation attorney help?
A federal employee retaliation attorney may help when you believe protected activity (like prior EEO activity or other protected conduct) is followed by a materially negative action at work and you need help thinking through proof. Even when reprisal allegations are raised, the outcome depends on evidence and what the record supports.
Is it useful to talk to Federal Employee Lawyers even if I'm "just" at the proposal stage?
It can be. Federal Employee Lawyers commonly help clients understand the agency's theory, spot weak specifications, and plan how to gather and present evidence effectively—before the record hardens.
Disclaimer
This blog 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 evidence in each case. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.]]>by Southworth PC<![CDATA[MSPB Reverses Two GSA Removals Over 2010 Conference Spending]]>https://www.attorneysforfederalemployees.com/?p=510142026-05-05T17:18:37Z2026-05-13T16:57:45Z 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.
Use the contact form below to reach Southworth PC.
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.]]>by Southworth PC<![CDATA[Federal Employees and the FMLA]]>https://www.attorneysforfederalemployees.com/?p=510202026-05-12T13:52:02Z2026-05-12T12:54:16ZRead this First: How to Use this Guide
This guide is general information about the Family and Medical Leave Act (FMLA) as it applies to federal employees. It is not legal advice and does not create an attorney-client relationship. Reading this guide does not, by itself, preserve any legal claim or stop any deadline from running. The law changes; agency rules vary; every situation has facts that matter. If you are dealing with an FMLA issue, speak with a qualified federal employment attorney about your specific facts before acting.
This guide reflects the law as we understand it as of May 2026. If you need help, our firm represents federal employees nationwide. Free consultations are available through attorneysforfederalemployees.com.
1. Why this Guide Exists
Most FMLA explainers online describe the law as it works for private-sector employees. Federal employees are not under that framework, and the differences matter. They affect your eligibility, the leave you can stack with FMLA, your job protection, your remedies if your agency violates the law, and the timing of every clock that runs. This guide is for federal employees who want to understand their actual rights — what they are, where they come from, and what to do if something goes wrong.
2. At a Glance: Title I vs Title II
The FMLA has two parts, and the part you fall under decides almost everything else.
Title I of the FMLA (29 U.S.C. § 2601 et seq.) covers private-sector employees and a small set of federal entities — primarily the U.S. Postal Service, the Postal Regulatory Commission, the Government Accountability Office (GAO), the Library of Congress, and the Architect of the Capitol.
Title II of the FMLA (5 U.S.C. §§ 6381–6387) covers most of the federal civil service — the rest of the executive branch.
The two frameworks share the same core rights — 12 weeks of leave, the same qualifying reasons, the same definition of "serious health condition" — but the eligibility rules, the administering agency, and the enforcement paths differ significantly. Here are the differences that matter most, side by side.
Who is Covered
Title I: USPS, the Postal Regulatory Commission, GAO, the Library of Congress, and the Architect of the Capitol — plus private-sector workers covered under Title 29.
Title II: Most federal civil service employees in executive branch agencies.
Eligibility
Title I: 12 months with the employer, plus 1,250 hours worked in the prior 12 months.
Title II: 12 months of total federal service at any time in your career, at any federal agency. No 1,250-hour requirement.
Administering Agency
Title I: U.S. Department of Labor.
Title II: U.S. Office of Personnel Management.
Statute and Regulations
Title I: 29 U.S.C. § 2601 et seq.; 29 C.F.R. Part 825.
Title II: 5 U.S.C. §§ 6381–6387; 5 C.F.R. Part 630, Subpart L.
Private Right of Action in Federal Court
Title I: Yes — a private lawsuit is available under 29 U.S.C. § 2617.
Title II: No. See Russell v. U.S. Dep’t of the Army, 191 F.3d 1016 (9th Cir. 1999), and Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997). Most other circuits have agreed.
Statute of Limitations
Title I: 2 years from the violation; 3 years for willful violations.
Title II: No single FMLA limitations period — different enforcement paths have different clocks (see Section 15).
Primary Remedies
Title I: Damages, liquidated damages, equitable relief, and reasonable attorney’s fees.
Title II: Grievance under the negotiated or administrative procedure, FMLA defense at MSPB, Office of Special Counsel complaint, and the EEO route under Section 501 of the Rehabilitation Act when a qualifying disability is in the picture.
Note: A few federal communities have special rules — including VA Title 38 employees and members of the Foreign Service. If you are in one of those groups, the framework above is the starting point but specific provisions may modify your rights. Talk to a federal employment attorney familiar with your community.
3. Eligibility
Title II (Most Federal Employees)
You need 12 months of federal service at any point in your career, at any federal agency.
Virtually all civilian federal service counts toward the 12 months — including temporary, intermittent, term, and seasonal service.
There is no 1,250-hour requirement. This is a common misunderstanding. The hours requirement applies to Title I, not Title II.
You do not have to be at the same agency or in the same position for the entire 12 months.
Title I (USPS, GAO, Library of Congress, Architect of the Capitol)
12 months of service with the employer (need not be consecutive).
1,250 hours of work for the employer in the 12 months immediately preceding the leave.
Employed at a worksite where the employer has 50 or more employees within 75 miles — always met at federal agencies.
Probationary Employees
Probationary status does not strip FMLA eligibility. If you meet the eligibility test above, you have the right to FMLA leave even while on probation. (Note, however, that probationary employees typically have limited rights to appeal adverse action to MSPB — making other enforcement routes especially important. See Section 15.)
4. Reasons You Can Take FMLA Leave
Under Title II (5 U.S.C. § 6382(a)) and Title I (29 U.S.C. § 2612(a)) you can take FMLA leave for any of the following:
Your own serious health condition that makes you unable to perform the essential functions of your job.
To care for a covered family member with a serious health condition.
The birth of your child and to bond with the newborn (up to 12 months after birth).
Adoption or foster placement of a child (up to 12 months after placement).
A qualifying exigency arising from a covered family member’s active-duty military service.
To care for a covered service member with a serious injury or illness (up to 26 workweeks in a single 12-month period).
Who Counts as a "Family Member"
FMLA’s family definitions are narrower than the family definitions in some other federal leave programs.
Spouse (including a same-sex spouse in a valid marriage under applicable state law).
Parent — biological, adoptive, step, foster, or a person who stood in loco parentis when you were a child.
Son or daughter — biological, adopted, step, foster, legal ward, or in loco parentis — who is under 18, or 18 or older if incapable of self-care because of mental or physical disability.
For military caregiver leave only: son or daughter (of any age), parent, spouse, or next of kin of the covered service member.
FMLA does not include siblings, grandparents, parents-in-law, or other relatives unless the in loco parentis test is met. Some of those relationships are, however, covered under separate federal sick-leave programs.
5. What Counts as a "Serious Health Condition"
A "serious health condition" is an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health-care provider.
Inpatient Care
Any overnight stay in a hospital, hospice, or residential medical-care facility, plus any period of incapacity or subsequent treatment connected to it.
Continuing Treatment
Any of the following:
Incapacity of more than three consecutive, full calendar days, plus either two in-person provider visits within 30 days of the start of incapacity (the first within seven days) or one provider visit plus a regimen of continuing treatment.
Pregnancy, prenatal care, and any period of incapacity due to pregnancy.
A chronic condition that requires periodic provider visits at least twice a year and continues over an extended period (e.g., asthma, diabetes, epilepsy, migraine disorders, lupus).
A permanent or long-term condition for which treatment may not be effective (e.g., late-stage Alzheimer’s disease, severe stroke, terminal cancer).
Conditions requiring multiple treatments for restorative surgery after an accident or for a condition that would result in more than three days of incapacity without treatment (e.g., chemotherapy, dialysis, physical therapy after orthopedic surgery).
Conditions that Ordinarily Do Not Qualify
The common cold, the flu (unless it leads to inpatient care or meets the continuing-treatment test), upset stomach, routine headaches that are not migraines, routine dental work, and elective cosmetic procedures are not typically "serious health conditions" by themselves. They can become qualifying if complications develop.
6. Mental Health Under the FMLA
Mental health conditions qualify as serious health conditions when they meet the same standards as physical conditions. The Department of Labor addresses this directly in
DOL Fact Sheet #28O — Mental Health Conditions and the FMLA. Examples that qualify when properly documented include:
Major depressive disorder requiring ongoing treatment.
Substance-use disorders, for treatment by a health-care provider.
Any condition requiring inpatient mental-health care.
What matters under the regulation is not the diagnosis label but whether the condition meets the "serious health condition" definition. A licensed health-care provider must document the condition through the medical certification process described in Section 8.
Practical point on "burnout." "Burnout" by itself is not a standalone clinical diagnosis under the DSM-5-TR. To qualify for FMLA, what is commonly called "burnout" needs to be evaluated and documented by a licensed provider, who may diagnose an underlying or co-occurring condition — for example, major depressive disorder, generalized anxiety disorder, or an adjustment disorder — that meets the regulatory standard. Many federal employees experience the symptoms; the legal question is the diagnosis and documentation.
7. How to Request FMLA leave
Notice You Have to Give your Agency
30 days advance notice when the need is foreseeable — a scheduled surgery, an expected birth or adoption, a planned course of treatment.
As soon as practicable when the need is unforeseeable. Under 5 C.F.R. § 630.1204(a)(2) (Title II) and 29 C.F.R. § 825.303 (Title I), this generally means one to two business days after you learn of the need, except in extraordinary circumstances.
How to Give the Notice
Use your agency’s official channel — a written FMLA leave request submitted through HR or to your supervisor in writing. Email and an agency leave-request system are typical. Save a timestamped copy.
What You Have to Say
Enough information to make the agency aware that FMLA may apply. You do not have to provide a diagnosis or detailed medical history simply to give notice. Once you request FMLA leave, the agency can require medical certification — see Section 8.
What the Agency Has To Do
Notify you of your FMLA eligibility within five business days under 5 C.F.R. § 630.1208 (Title II) and 29 C.F.R. § 825.300 (Title I).
Provide a written Notice of Rights and Responsibilities.
Designate the leave as FMLA-qualifying (or not) and tell you in writing.
Count qualifying time against your 12-week entitlement accurately.
8. Medical Certification
The agency can require medical certification to support your FMLA request. The relevant authorities are 5 C.F.R. § 630.1207 (Title II) and 29 C.F.R. § 825.305 (Title I).
You have at least 15 calendar days to provide certification. The agency can extend that period.
Certification can be on an agency form, on the DOL forms WH-380-E (your own condition) and WH-380-F (family member), or any comparable document that contains the required information.
The certification must include the date the condition began, the expected duration, the medical facts within the provider’s knowledge, and a statement about your ability to perform essential job functions (or family member’s need for care).
The agency cannot require disclosure of detailed diagnostic information or treatment beyond what the form requires.
Curing an Incomplete Certification
If the agency thinks your certification is incomplete or insufficient, it must tell you in writing what is missing and give you at least seven calendar days to cure (5 C.F.R. § 630.1207(g); 29 C.F.R. § 825.305(c)). The agency cannot reject a certification for reasons not specified in the regulations.
Second and Third Opinions
If the agency has reason to doubt the validity of a certification for your own serious health condition, it may, at its own expense, require a second opinion from a provider not regularly used by the agency. If the first and second opinions conflict, the agency may require a third opinion from a mutually agreed-upon provider. The third opinion is final and binding.
Recertification
The agency can require recertification no more often than every 30 days in connection with absences (and not unless an absence has occurred), or every six months for ongoing conditions. Significant changes in circumstances can also trigger recertification.
Fitness-for-Duty Certification
For your own serious health condition, the agency can require a fitness-for-duty certification before you return — but only if (a) it required one consistently for similarly situated employees and (b) it notified you of the requirement in the original FMLA designation. Fitness-for-duty requirements often implicate the Rehabilitation Act’s prohibition on disability-related inquiries; if you believe a fitness-for-duty demand is being used to remove a qualified employee, talk to an attorney.
9. Pay During FMLA Leave
FMLA leave itself is unpaid. That is true under both Title I and Title II.
But you can substitute paid leave for some or all of the unpaid FMLA leave. This is a critical right under 5 C.F.R. § 630.1206 (Title II). The substitution rule has three parts:
The employee elects. You decide whether to substitute paid leave.
The agency cannot force substitution. Your agency cannot require you to use sick leave or annual leave during FMLA. If you are told you must, get that direction in writing and consult a representative or attorney.
The agency cannot deny an election. Subject to the normal rules governing the type of leave you are electing to substitute, the agency must honor your election.
Sick Leave for Your Own Serious Health Condition
Sick leave for personal medical needs has no annual cap (5 C.F.R. § 630.401(a)(1)). If you have accumulated sick leave, you can substitute it for all of your unpaid FMLA leave for your own serious health condition, subject to your sick-leave balance.
Sick Leave for Family Care
Sick leave for family-care purposes is subject to annual limits under 5 C.F.R. § 630.401(b)–(d) — generally up to 12 weeks per year for care of a family member with a serious health condition, less for general family care. The substitution into FMLA must respect those limits.
Annual Leave
Annual leave can be substituted for any FMLA purpose, up to your balance.
Compensatory Time and Credit Hours
Generally substitutable consistent with the rules governing those programs.
Leave Without Pay (LWOP)
Any FMLA time not covered by paid leave is taken as Leave Without Pay. Health benefits continue (Section 12), and the time generally counts toward retirement service computation, though it does not generate retirement-contribution credit. WGI eligibility, TSP contributions, and other entitlements can be affected by extended LWOP.
10. Paid Parental Leave (FEPLA) — Separate Program
The Federal Employee Paid Leave Act (FEPLA), codified at 5 U.S.C. § 6382(d)(2) and implemented at 5 C.F.R. Part 630, Subpart Q, gives most federal civilian employees up to 12 workweeks of paid parental leave in connection with the birth of a child or the placement of a child with the employee for adoption or foster care.
FEPLA is paid at the employee’s basic rate of pay.
FEPLA is taken instead of, not in addition to, FMLA leave for the same event — it counts within the 12-week FMLA entitlement, not on top of it.
You generally must agree to return to work for at least 12 weeks after the end of FEPLA leave (5 C.F.R. § 630.1705).
FEPLA applies only to bonding leave for birth, adoption, or foster placement — not to your own serious health condition or to care for a family member.
11. Intermittent and Reduced-Schedule Leave
You can take FMLA leave intermittently (in separate blocks of time) or on a reduced schedule when medically necessary. Common examples include chemotherapy, dialysis, physical therapy, mental-health treatment appointments, and flare-ups of chronic conditions.
Intermittent leave is tracked in the smallest increment used for other forms of leave at your agency — typically 15 minutes or one hour. All time used counts against the 12-week annual entitlement.
Temporary transfer. For foreseeable intermittent leave tied to planned medical treatment, the agency may temporarily transfer you to an alternative position with equivalent pay and benefits that better accommodates the schedule.
Schedule changes. Reduced-schedule leave can lower your daily or weekly hours. The agency may need to make corresponding adjustments to FLSA exemption status or other entitlements; ask HR for specifics.
12. Job Protection and Restoration
When you return from FMLA leave, you are entitled to be restored to the same position you held when leave began, or to an equivalent position with equivalent pay, benefits, and other terms of employment. See 5 U.S.C. § 6384; 5 C.F.R. § 630.1209; 29 C.F.R. § 825.214.
"Equivalent" means substantially similar duties, the same pay and benefits, the same shift and schedule, and the same worksite (or a geographically proximate one). A position is not "equivalent" simply because it has the same grade and series.
Benefits During FMLA
Health coverage continues on the same terms as if you were working. You pay your share of the premium; if your leave is unpaid, the agency may collect your share on your return.
Retirement contributions are not made during LWOP, but the LWOP time generally counts for retirement service computation (subject to the 6-month-per-year cap on creditable nonpay status for FERS purposes).
TSP contributions stop during LWOP unless you elect otherwise.
Within-grade increases. Extended LWOP can affect WGI timing — confirm with HR.
Key Employee Exception (Title I only)
Under Title I, a "key employee" — generally a salaried employee in the top 10% of pay among employees within 75 miles of the worksite — can be denied restoration if it would cause "substantial and grievous economic injury." This exception does not exist under Title II.
13. Confidentiality of Medical Information
Medical information you provide to support FMLA leave — certifications, related communications, recertifications — must be:
Kept in files separate from your regular personnel file.
Treated as confidential medical information.
Disclosed only on a need-to-know basis — limited to supervisors who need to know about work restrictions or accommodations; first-aid and safety personnel if appropriate in an emergency; government officials investigating compliance with applicable law; insurance carriers when relevant; and as required by law.
If your medical information has been improperly disclosed — for example, your supervisor told colleagues why you were out — document who said what, when, and to whom. Potential remedies include FMLA interference, Privacy Act, Rehabilitation Act (if disability-related), and, depending on the content, other claims.
14. Interference and Retaliation
Two protections sit at the heart of the FMLA. Under 5 U.S.C. § 6385 (Title II) and 29 U.S.C. § 2615 (Title I), the agency cannot:
Interfere with the exercise of FMLA rights. Examples: denying eligible leave, discouraging requests, requiring documentation beyond what the regulations permit, miscounting time taken, forcing substitution of paid leave.
Retaliate against an employee for requesting or taking FMLA. Examples: discipline, demotion, denial of promotion, schedule changes, performance ratings that drop after FMLA activity, micromanagement that follows the request.
Discriminate against an employee for participating in an FMLA proceeding or opposing FMLA-related practices.
Common Patterns of Retaliation that Lead to Viable Claims
A sudden negative performance evaluation after returning from leave, with a clean record before.
A Performance Improvement Plan started shortly after an FMLA request.
Reassignment to less favorable duties or shifts when restoration to an equivalent position was required.
Denial of a promotion or training opportunity that the pre-leave record would have supported.
A hostile work environment that begins or worsens after the leave request.
Causation
Tight temporal proximity between FMLA activity and adverse action is strong evidence of retaliation. The closer the timing and the cleaner the pre-leave record, the stronger the case. Pretextual reasons offered for an adverse action — reasons that do not hold up against the record — strengthen the inference further.
15. Enforcement — Title II federal employees
This is the area most online FMLA explainers get wrong for federal employees.
If you are a Title II federal employee, you cannot bring a private lawsuit in federal court under the FMLA. The Ninth Circuit and Fourth Circuit settled this in Russell v. U.S. Dep’t of the Army, 191 F.3d 1016 (9th Cir. 1999), and Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997). Most other circuits to address the issue have agreed.
Your enforcement paths instead:
Grievance Procedure
If you are in a bargaining unit, file under your collective bargaining agreement’s negotiated grievance procedure. CBAs typically allow advancement to arbitration if the grievance is not resolved.
If you are not in a bargaining unit, file under your agency’s administrative grievance procedure. Each agency’s AGP has its own steps and timelines, and the process usually ends with a final agency decision.
MSPB — Defensive Use
If the agency takes an adverse action against you (suspension over 14 days, demotion, removal, or furlough of 30 days or less) and FMLA is connected to the action, you can appeal to the Merit Systems Protection Board and raise FMLA as a defense, including arguing that the action was retaliation or interference.
Filing window: 30 days from the effective date of the adverse action.
Office of Special Counsel
FMLA-related retaliation can constitute a prohibited personnel practice under 5 U.S.C. § 2302 — particularly § 2302(b)(9) (taking action because of the exercise of an appeal, complaint, or grievance right) and, where applicable, § 2302(b)(8) (whistleblower retaliation).
OSC can investigate and seek corrective action through MSPB. No fixed filing deadline applies, but earlier is better.
EEO Process — Rehabilitation Act
If your underlying condition is a "disability" under Section 501 of the Rehabilitation Act, FMLA-related denials and retaliation may also be disability discrimination.
Filing window: 45 calendar days to initiate contact with an EEO counselor from the date of the discriminatory action (29 C.F.R. § 1614.105). Missing this deadline closes the EEO route.
Practical Sequencing
More than one path may be available at once. Strategic sequencing matters because some paths preclude others (election of remedies issues) and some preserve more remedies than others. This is the single most common reason to consult a federal employment attorney early — to choose the right forum before clocks expire.
16. Enforcement — Title I Federal Employees
Postal Service, GAO, Library of Congress, and Architect of the Capitol employees have a different set of remedies under Title I.
DOL Wage and Hour Division complaint. WHD investigates Title I FMLA complaints and can pursue enforcement.
Private lawsuit in federal court. 29 U.S.C. § 2617 provides a private right of action.
Statute of limitations: 2 years from the violation, or 3 years for willful violations.
Available damages: lost wages, salary, benefits, and other compensation; reasonable interest; liquidated damages equal to that amount unless the employer shows good faith; equitable relief; and reasonable attorney’s fees and costs.
USPS employees often also have remedies through the USPS administrative process and the EEO process for related disability-discrimination claims. Many strategies are available; consult an attorney for case-specific advice.
17. The Rehabilitation Act — Your Second Layer of Protection
Section 501 of the Rehabilitation Act (29 U.S.C. § 791) is the disability-discrimination statute that applies to federal employees. It incorporates the ADA’s substantive standards through Section 501(g).
When a serious health condition also constitutes a "disability" — meaning it substantially limits a major life activity — you have a second set of rights running alongside FMLA:
Reasonable accommodation through the interactive process. Accommodations can include leave beyond FMLA, modified schedule, telework, reassignment, equipment, or other workplace adjustments.
Protection from disability-based discrimination in any term or condition of employment — hiring, firing, promotion, pay, training, benefits, work assignments, and harassment.
An enforcement path through the EEO process — 45-day counselor contact, formal complaint, agency investigation, hearing before an EEOC administrative judge or final agency decision, appeal to EEOC, and ultimately federal court.
Mental-health conditions are often disabilities under the law. Many federal employees with anxiety, depression, PTSD, ADHD, or other diagnoses meet the legal definition when their condition substantially limits a major life activity such as concentrating, sleeping, working, learning, communicating, or interacting with others.
Why this matters for Title II federal employees: Unlike Title II FMLA, the Rehabilitation Act EEO route leads to federal court. For Title II feds facing FMLA-related discrimination tied to a qualifying disability, the Rehabilitation Act is often the strongest available enforcement path.
18. Common Scenarios and What To Do
"My FMLA leave was denied."
Get the denial in writing. Identify the stated basis. Compare it to the eligibility rules and the qualifying-reason categories. If the denial appears improper, file under your grievance procedure (Title II) or contact DOL Wage and Hour (Title I). If a disability is part of the picture, start the 45-day EEO clock simultaneously.
"I was put on a PIP shortly after returning from FMLA."
Document the timeline. Pull copies of all pre-leave performance feedback. Identify what changed. The shorter the time between the leave and the PIP — and the cleaner the pre-leave record — the stronger the retaliation case. Consult an attorney quickly; PIP cycles end fast and the proposed adverse action that follows has its own short clocks.
"My supervisor told my colleagues why I was out."
Document who said what, when, and to whom. Identify any record of the disclosure (emails, IMs, team meeting minutes). This is a confidentiality violation. Potential claims include FMLA interference, Privacy Act violation, Rehabilitation Act (if disability-related), and other claims depending on the content of the disclosure.
"My certification was rejected."
The agency must tell you in writing what is incomplete or insufficient and give you at least seven calendar days to cure (5 C.F.R. § 630.1207(g); 29 C.F.R. § 825.305(c)). The agency cannot reject the certification for reasons not specified in the regulations. If the rejection is procedurally improper, document it and challenge it through your grievance procedure.
"I was forced to use my sick leave during FMLA."
The agency cannot force substitution. You — not the agency — elect whether to substitute paid leave. If you were told you had to use sick leave or annual leave, get the directive in writing and consult a representative or attorney. This is a clean interference claim.
"I was reassigned when I came back from leave."
Restoration must be to the same or an equivalent position. If the new position differs in pay, benefits, schedule, status, or geographic location, that is a potential failure-to-restore claim. Document the differences between the pre-leave and post-leave positions.
"I am a probationary employee — am I still protected?"
Yes — if you meet the eligibility test, probationary status does not strip FMLA rights. Note, however, that probationary employees have limited rights to appeal adverse action to MSPB during the probationary period. The grievance, OSC, and EEO routes are especially important for probationers.
"The agency is demanding fitness-for-duty before I can return."
A fitness-for-duty certification can be required if the agency required one consistently for similarly situated employees and notified you of the requirement in the original designation. Random, one-off, or selectively applied FFD demands raise interference and disability-discrimination concerns and are worth pushing back on.
"My agency claims I am not eligible because I have not been with them for 12 months."
For Title II employees, eligibility looks at total federal service across all federal employers, not just service with the current agency. If you have 12 months of federal service total — at any agencies, any time in your career — you meet the requirement. Push back in writing, citing 5 C.F.R. § 630.1203.
"My intermittent leave is being counted in larger increments than I actually used."
Intermittent leave is tracked in the smallest increment used for other forms of leave at the agency — typically 15 minutes or one hour. Inflated tracking is interference. Document the discrepancy and grieve.
19. Documentation Checklist
Keep these records in a personal location (not on agency systems):
The written FMLA request you submitted, with date and channel.
The agency’s eligibility notice and designation notice.
A copy of your medical certification.
Any communications about the leave — emails, IMs, voicemails, notes from meetings.
Performance evaluations from the past two years.
Records of any pre-leave commendations, awards, or recognition.
Names and contact information for witnesses.
A chronological timeline of relevant events.
Records of any disclosure of your medical information.
Do not forward government records to personal email accounts. Instead, keep your own contemporaneous notes, dated screenshots of personal-device communications, and timestamped copies of materials you legitimately produced or received outside of your work systems.
20. When to Consult a Federal Employment Attorney
You should consider consulting a federal employment attorney if any of the following has happened or is about to:
Your FMLA request has been denied or designated incorrectly.
Adverse action has been proposed or taken and FMLA is connected.
Your performance record has changed sharply after FMLA activity.
You have been reassigned, demoted, or denied a promotion after returning.
You have been disciplined for FMLA-protected leave.
Your medical information has been disclosed.
A deadline is about to run — particularly the 45-day EEO counselor contact rule, the 30-day MSPB appeal deadline, or the 2-year (3-year willful) Title I statute of limitations.
Bring to the consultation:
A clear chronology of events.
The documents listed in Section 19.
Any agency communications about the leave or the adverse action.
Your job description and current position description.
Your union or representative information, if applicable.
21. Resources and Authorities
Statutes
Family and Medical Leave Act (Title I): 29 U.S.C. § 2601 et seq.
Family and Medical Leave for federal employees (Title II): 5 U.S.C. §§ 6381–6387.
Federal Employee Paid Leave Act (FEPLA): 5 U.S.C. § 6382(d)(2).
Rehabilitation Act § 501: 29 U.S.C. § 791.
Prohibited personnel practices: 5 U.S.C. § 2302.
Regulations
OPM FMLA regulations: 5 C.F.R. Part 630, Subpart L.
OPM FEPLA regulations: 5 C.F.R. Part 630, Subpart Q.
DOL FMLA regulations: 29 C.F.R. Part 825.
Federal-sector EEO regulations: 29 C.F.R. Part 1614.
DOL Guidance — Fact Sheets
#28: The Family and Medical Leave Act.
#28A: Employee Protections Under the FMLA.
#28D: Employer Notification Requirements.
#28F: Qualifying Reasons for Leave.
#28O: Mental Health Conditions and the FMLA.
#28P: Taking Leave When You or Your Family Member Has a Serious Health Condition.
Key Cases
Russell v. U.S. Dep’t of the Army, 191 F.3d 1016 (9th Cir. 1999) — no private right of action under Title II.
Mann v. Haigh, 120 F.3d 34 (4th Cir. 1997) — same conclusion.
Crisis Resources
988 Suicide and Crisis Lifeline (call or text 988, 24/7).
Your agency’s Employee Assistance Program (EAP) — most agencies offer free short-term counseling and referrals.
Talk to us
Southworth PC represents federal employees in MSPB, EEOC, OSC, and related forums nationwide and worldwide. We offer free consultations on federal employment matters.
Final Disclaimer
This guide is general information and does not constitute legal advice or create an attorney-client relationship. It reflects the authors’ understanding of the law as of May 2026. The law and agency rules change. Every case is decided on its specific facts. Before acting on any of the information in this guide, speak with a qualified federal employment attorney about your specific situation. Reading this guide does not, by itself, preserve any legal claim or stop any deadline from running.]]>by Southworth PC<![CDATA[MSPB Case: Due Process Errors Can Undo a Federal Removal]]>https://www.attorneysforfederalemployees.com/?p=510112026-05-01T17:43:37Z2026-05-11T17:19:41Z mix of stress and isolation: fear of losing income and benefits, worry about future employability, and concern that speaking up will trigger retaliation or make the workplace even harder to navigate.
Sometimes you ask for time to prepare a response. Sometimes you request an oral reply—and then the decision comes anyway, before you ever get a chance to speak. And sometimes you know your restrictions are real, but proving what accommodations should have been offered feels impossible.
A 2013 decision from the Merit Systems Protection Board (MSPB) shows how process mistakes can change the outcome of a removal appeal—even when the employee does not win on a disability discrimination argument. This post summarizes Massey v. Department of the Army and highlights practical lessons for federal employees dealing with removal, accommodation conversations, and high-stakes deadlines. Southworth PC did not represent any party in this matter.
Case Snapshot
Forum: Merit Systems Protection Board (MSPB)
Decision date: October 25, 2013
Agency: Department of the Army (Army hospital in Fort Campbell, Kentucky)
Employee role: Nurse (Clinical/Medical-Surgical), GS-0610-10
Personnel action: Removal for medical inability to perform
Key issues: Due process (oral reply opportunity); disability discrimination (reasonable accommodation/reassignment)
Outcome: Removal reversed for due process; disability discrimination defense not proven
Remedy ordered: Restoration effective February 24, 2012, plus back pay, interest, and benefits (as described in the decision)
What Happened
According to the decision, the employee worked as a nurse at an Army hospital for more than 21 years. In late 2011, she provided medical documentation describing a chronic respiratory disorder triggered by certain cleaning solutions/solvents used in the hospital environment. A fitness-for-duty evaluation concluded she could not meet her position's physical requirements unless the agency could eliminate exposure to the triggering substances (and other fumes/fragrances).
The agency proposed removing her for medical inability to perform. The employee did not dispute she could not perform the essential functions of her hospital nursing position under those exposure conditions. Instead, she argued the agency should have tried harder to find a different position that would accommodate her limitations, and she also argued the agency denied her due process by not allowing an oral reply before issuing the removal decision.
What the MSPB Decided—and Why
1) The MSPB reversed the removal because the agency violated due process
Federal employees facing an adverse action under Chapter 75 generally have the right to respond to a proposal—in writing and/or orally—within the timeframe provided in the notice.
In this case, the Board focused on timing and clarity. The employee received an extension, and her private attorney emailed the deciding official on the final day of the extension to request scheduling of an oral reply. The deciding official did not schedule it and later issued the removal decision without considering any response.
The MSPB found the oral reply request was timely under the agency's own terms and that the agency should have waited a reasonable time instead of issuing the decision first. The Board concluded this denied the employee the "minimum due process" required before a removal becomes final. As a result, the MSPB reversed the removal and ordered the agency to cancel it and restore the employee effective February 24, 2012 (with back pay and benefits as described in the order).
2) The MSPB still rejected the disability discrimination defense
The employee also claimed disability discrimination based on an alleged failure to provide reasonable accommodation (including reassignment). The Board affirmed the administrative judge's conclusion that she did not meet her burden of proof on that claim.
In plain terms, the decision explains a core challenge in reassignment-as-accommodation cases: even if an employee believes a different job could work, the employee still must show that a suitable vacant position actually existed and was available at the relevant time. Here, the employee said she applied for multiple positions that were primarily telephone duty, but she did not submit documentation showing those vacancies existed (such as vacancy announcements, applications, or accommodation requests).
The Board also noted that the positions the employee pointed to were located in the same hospital environment, which—based on the record—would still expose her to substances that aggravated her condition. The agency presented evidence (unrebutted in the decision) that it attempted to accommodate her condition and that accommodation obligations do not require an agency to search indefinitely or create a new job where none exists.
Why This Matters for Federal Employees
This decision is a reminder that federal-sector cases often turn on two different things at the same time:
Process rights (due process): Even when the underlying medical limitation is real and undisputed, the agency still has to follow a constitutionally adequate procedure before finalizing a removal. If the employee timely requests an oral reply, the agency generally must allow a meaningful opportunity to be heard before deciding.
Proof in accommodation disputes: If your argument depends on reassignment, documentation is not optional. You usually need concrete evidence that the position existed, was vacant, and would actually meet the restrictions described in the record.
It also shows how complicated representation and communication issues can become in real life (union involvement, outside counsel, scheduling, and internal agency messaging). When careers are on the line, clarity and documentation matter—because later, that paper trail may be all the MSPB has.
Key Takeaways
Track every deadline stated in a proposal notice and in any extension communications. Confirm oral reply scheduling expectations in writing (who, when, and how it will occur).
Save emails, letters, calendar invites, and delivery records showing when responses were sent. Build reassignment/accommodation proof with documents (vacancy announcements, applications, and written accommodation requests).
Compare the work environment of any proposed reassignment to your restrictions (location and exposure risks matter). Stay professional and factual in communications, even when the process feels unfair or chaotic.
Remember that winning on due process does not automatically prove discrimination—and vice versa.
Practical Next Steps
If you're facing a proposed removal, medical inability action, or an accommodation dispute, these steps can help you stay organized:
Preserve evidence immediately. Save proposal and decision notices, medical letters, emails, texts, and meeting notes. Keep versions of drafts you sent and anything you received.
Document a clean timeline. Create a dated list of events (proposal issued, extension granted, replies requested, meetings scheduled, decision issued). Include who said what and when—especially about oral reply scheduling.
Identify witnesses and corroboration. List coworkers or representatives who helped you apply for positions or observed conversations. Note what each person could confirm (and what documents support it).
Keep accommodation records concrete. If reassignment is at issue, keep copies of vacancy announcements, applications, and any written requests for reassignment as an accommodation. Note why a specific vacancy would or would not match your restrictions.
Keep communications professional. Stick to facts, dates, and requested actions. Avoid venting in emails you might later need to rely on.
Be mindful that deadlines can be short. In Massey, the MSPB's notice section described 30-day windows tied to certain review options after receipt of the final decision. In many federal processes, timelines are measured in days—not months.
Consider talking with counsel. Many people start by looking for attorneys for federal employees who understand removal procedures, accommodation frameworks, and the federal-sector EEO landscape.
A Word From Southworth PC Leadership
"When your job is on the line, process matters. A missed opportunity to respond—or unclear scheduling—can change everything, so it's worth getting organized early and protecting your record." — Lydia Taylor, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
Even when you know what happened, it can be hard to translate the story into a case record that holds up under review. Federal Employment Attorneys can help federal employees understand the forum they're in, what issues matter most, and what evidence supports each element of a claim or defense.
Depending on the situation, Federal Employee Attorneys may assist with reviewing a proposal notice and identifying due process concerns (including oral reply issues), organizing medical and workplace records in a way that is clear and respectful of privacy, evaluating accommodation options and the documentation needed to support them, preparing for MSPB appeals, including removal cases and MSPB wrongful termination issues when the facts support that theory, navigating discrimination-related components that may intersect with the Equal Employment Opportunity Commission (EEOC) process and the federal rules in 29 CFR Part 1614, discussing retaliation concepts at a high level, including what people often mean when they reference EEOC retaliation, and considering whether issues also implicate the Office of Special Counsel (OSC) in appropriate circumstances.
You may also see the terms federal employee lawyers used interchangeably. And if your case is in the Board forum, people often seek MSPB Attorneys or MSPB Lawyers who regularly work with MSPB procedures and records.
Some employees also search specifically for a federal employee EEO attorney or a federal employee retaliation attorney based on the issues they're experiencing—especially when discrimination, reprisal, or hostile conditions are part of the picture.
For general background, many federal employees review resources like the MSPB official site, the OSC official site, and the statutory framework most often associated with federal disability claims (for example, EEOC Rehabilitation Act (Sections 501 and 505)). And when leave intersects with health limitations, general education resources like the DOL FMLA page can be a starting point, along with discussions of FMLA and disability discrimination.
Talk With Our Team
If you're dealing with a proposed removal, an MSPB appeal, or a disability-related workplace breakdown, you don't have to sort it out alone. Southworth PC is serving federal employees nationwide and abroad.
Use the contact form below to reach Southworth PC. We'll listen to what's going on and explain—at a high level—what the process may look like based on the facts you share.
FAQ
What does "due process" mean in a federal removal?
In plain terms, due process means you must get a meaningful opportunity to respond before the agency finalizes a removal. In Massey, the MSPB found the agency violated due process by issuing a removal decision without allowing a timely requested oral reply.
If the MSPB reverses a removal, does that prove discrimination?
Not necessarily. Massey is an example where the employee prevailed on due process but did not prove disability discrimination. Different legal theories require different proof, and outcomes depend heavily on the record.
What evidence matters most for reassignment as a reasonable accommodation?
Documentation is key. The decision emphasized the importance of showing that a vacancy actually existed and was available at the relevant time—such as vacancy announcements, applications, and written accommodation requests—rather than relying only on general statements.
When should someone talk with MSPB Attorneys about a potential appeal?
If you've received a proposal or decision letter involving a Chapter 75 action, it's often helpful to consult early so you understand what belongs in the record and what deadlines apply. MSPB procedures can move quickly, and small process issues (like an oral reply request) can become central later.
How do MSPB cases relate to the Equal Employment Opportunity Commission (EEOC)?
Some MSPB cases include discrimination-related claims or defenses. The MSPB decision in Massey included notice explaining that the employee could seek EEOC administrative review of discrimination claims, with timing measured from receipt of the final order (as stated in the decision's notice section).
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, evidence, and procedural posture of each matter. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.]]>by Southworth PC<![CDATA[When a Forced Reassignment Leads to Removal: A Federal Circuit Reminder]]>https://www.attorneysforfederalemployees.com/?p=510082026-04-30T16:20:28Z2026-05-06T16:00:39Z role, new performance standards, and the fear that one setback could derail a career. That stress can be even heavier when the process feels fast, confusing, or isolating.
Sometimes you're doing your job well. Sometimes you're reassigned without warning. And sometimes—before you've even had a real chance to succeed—you're facing removal.
A 1998 decision from the U.S. Court of Appeals for the Federal Circuit highlights a core fairness issue: if an agency involuntarily moves an employee from work they can do into work they cannot qualify for, the agency may still have to prove why removal is truly the most efficient outcome.
This post discusses Vidal v. United States Postal Service (143 F.3d 1475). Southworth PC did not represent any party in this matter.
Case Snapshot
Forum: U.S. Court of Appeals for the Federal Circuit
Agency: United States Postal Service
Workplace issue: Removal after an involuntary reassignment to a more difficult machine operator role
Key dispute: Whether removal "promoted the efficiency of the service" compared to returning the employee to his prior role
Outcome: MSPB decision vacated; case remanded for further analysis under the correct legal standard
What Happened
According to the decision, the employee was hired in 1993 as a part-time flexible (PTF) clerk and operated a flat sorting machine (FSM) for about two years with satisfactory performance.
In 1995, a permanent position operating a more difficult machine—a multi-purpose letter sorting machine (LSM)—opened for bids under a national collective bargaining agreement. No one volunteered, and the employee was involuntarily reassigned into the permanent LSM role based on seniority.
To qualify for the LSM position, the employee needed to reach 98.0% accuracy on the LSM keyboard. During training, his highest score was 96.0%, and later he improved to 97.3%—still below the required standard. The Postal Service issued a notice proposing removal (September 27, 1995), then issued a decision removing him (October 12, 1995), with the removal effective November 9, 1995.
The employee appealed to the MSPB. An Administrative Judge upheld the removal, and the MSPB affirmed (with a modification related to a disability discrimination allegation). The case then went to the Federal Circuit for review.
What the Federal Circuit Decided—and Why
The Federal Circuit ruled that the MSPB applied the wrong legal standard when it upheld the removal. The court explained that the collective bargaining agreement did not require the agency to remove the employee simply because he did not qualify after an involuntary reassignment.
Instead, the agency had to prove—by a preponderance of the evidence—that removal promoted the "efficiency of the service." Importantly, the court adopted an MSPB precedent (from a case called Majors) that requires a comparative analysis: the agency must show that the employee's removal promotes efficiency more than keeping (or returning) the employee to the former position.
In plain English: it was not enough to say "he didn't qualify for the new job." The MSPB had to consider whether it was actually more efficient to remove him than to keep him doing the work he had been performing satisfactorily.
Because the MSPB did not do that comparative step, the Federal Circuit vacated the decision and sent the case back for further fact-finding based on the existing record.
Why This Matters for Federal Employees
This case speaks to a real workplace fear: "If management forces me into a different job and I struggle, does that automatically mean I'm out?"
The Federal Circuit's reasoning underscores that removals in these circumstances can involve more than a single test score or qualification metric. When an employee has a track record of performing well in one role, and then is involuntarily moved into a role with higher qualification requirements, the legal framework (as described in the decision) may require decision-makers to ask hard questions about fairness and efficiency.
It also shows how process problems can shape outcomes. Even when an agency has legitimate reasons to reassign someone, the record may still need to address whether returning the employee to prior duties was feasible—or why it was not.
For readers dealing with adverse actions, this is one reason the "paper trail" matters: training records, qualification standards, vacancy information, communications, and how alternatives were evaluated can become central later.
Key Takeaways
Recognize that an involuntary reassignment does not automatically make removal the only outcome. Request clarity about qualification standards and how they will be measured.
Document training time, feedback, scores, and any obstacles that affect performance. Ask whether returning to prior duties is possible if a qualification standard is not met.
Compare what the agency says about "efficiency" with what the record actually supports. Preserve written communications that show how decisions were made and what alternatives were considered.
Consult counsel early when a proposed removal follows a forced transfer or training failure.
Practical Next Steps
If you're facing a forced reassignment, training-based qualification standards, or a proposed removal, consider this checklist:
Save and organize records: training schedules, performance metrics, test/qualification results, written instructions, and emails.
Write a simple timeline: dates of reassignment, training milestones, evaluations, and proposed action notices.
Identify witnesses: trainers, coworkers, or supervisors who observed your training and performance.
Keep communications professional: assume emails and messages may later be reviewed.
Clarify alternatives: if you previously performed other duties successfully, ask (in writing where appropriate) whether return to those duties is being considered.
Track deadlines carefully: in federal employment matters, response and appeal windows can be short.
Learn the forum: MSPB processes differ from EEO processes; resources like an MSPB overview and an EEOC overview can help you understand the landscape. For official resources, the MSPB official site can provide additional context.
Get informed on related topics: if medical leave or medical limitations are part of your situation, materials like FMLA and disability discrimination may be useful background reading.
A Word From Southworth PC Leadership
"When a federal employee is pushed into a new role and then judged solely on a narrow qualification metric, the process has to be examined carefully—especially when there may have been a workable path to keep that employee employed." — Shaun Southworth, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
In high-stakes federal workplace disputes, getting oriented quickly can reduce uncertainty and help you make informed decisions. Federal Employment Attorneys often help clients understand which forum applies (for example, MSPB vs. the EEO process), what evidence matters most, and how to present facts clearly and professionally.
Depending on the situation, federal employee attorneys may assist with reviewing a proposed removal, evaluating whether the agency met its burden, preparing written submissions, and organizing proof in a way that aligns with the standards decision-makers must apply. federal employment lawyers can also help identify whether a case involves overlapping issues—like discipline plus disability-related concerns—and explain common pathways without assuming any particular outcome.
In matters involving removals and serious discipline, practitioners familiar with MSPB wrongful termination matters may also help you understand how MSPB lawyers typically analyze "efficiency of the service" arguments, and what kinds of comparative questions can matter when reassignment precedes removal. Some situations can also intersect with other protective frameworks, including the Office of Special Counsel for whistleblower protection (where applicable, see OSC official site for more information), though every case turns on its specific facts.
Working with federal employee lawyers and attorneys for federal employees can be especially valuable when the situation involves multiple moving parts: involuntary reassignments, qualification disputes, and agency burden-of-proof issues.
Talk With Our Team
If you're dealing with an involuntary reassignment, a proposed removal, or a career-impacting personnel action, our team can help you understand the process and your options in a clear, respectful way—serving federal employees nationwide and abroad.
Use the contact form below to reach Southworth PC.
FAQ
What does "efficiency of the service" mean in a federal removal case?
It's a legal standard agencies must meet to sustain many adverse actions. In general terms, the agency must show the action has a rational connection to the agency's work and mission. In this decision, the court emphasized that the analysis may require comparing removal to reasonable alternatives, depending on the situation.
If I'm involuntarily reassigned and don't qualify, can I be removed?
The decision shows that removal may be challenged when the agency cannot show it is more efficient to remove the employee than to retain or return them to prior duties they performed successfully. That said, outcomes depend on the specific record and the governing rules in your workplace. This is general information, not legal advice.
Does a collective bargaining agreement automatically decide whether removal is required?
Not always. In this case, the Federal Circuit said the national agreement did not require removal after an involuntary reassignment where the employee failed to qualify. Agreements can set procedures and protections, but they may not answer every question about whether removal is the correct action.
When should I talk with MSPB Attorneys?
If you receive a proposed removal, a final removal decision, or an adverse action tied to training/qualification requirements, it can be helpful to consult early—because deadlines can be short and evidence issues start immediately. MSPB Attorneys can help you understand the applicable standards, the record you'll need, and how to present your facts effectively (without promising any outcome).
Do I need a federal employee EEO attorney if disability is involved?
Sometimes employees raise disability-related issues as part of their defense, or they may have separate EEO concerns. A federal employee EEO attorney can explain general frameworks and how disability-related protections are typically evaluated, including resources like EEOC Rehabilitation Act (Sections 501 and 505) and the federal-sector rules in eCFR 29 CFR Part 1614.
What if I think my reassignment or discipline is retaliation?
Retaliation concerns can arise in many federal workplaces, but each situation is fact-specific. If you believe protected activity may be connected to a negative action, speaking with a federal employee retaliation attorney can help you understand common evidence themes (timing, comparators, documentation) and the forums where such issues may be raised. Background resources like EEOC retaliation can provide additional context.
Disclaimer
This blog 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 evidence in each matter. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.]]>by Southworth PC<![CDATA[MSPB Reverses VA Removal After Finding Retaliation]]>https://www.attorneysforfederalemployees.com/?p=509972026-04-28T16:27:41Z2026-05-04T15:48:42Z representation, or both—it can feel like you're walking on a tightrope. The stress isn't just professional; it can be deeply personal: fear of retaliation, worry about your reputation, and the possibility of career-changing discipline.
Sometimes you file a complaint. Sometimes you help someone else file a complaint. And sometimes—right after management learns what you've been doing—the discipline starts coming fast.
A published decision from the Merit Systems Protection Board (MSPB) highlights why those concerns aren't "in your head"—and why the details matter when an agency takes severe action. Southworth PC did not represent any party in this matter.
In Marshall v. Department of Veterans Affairs (Dec. 11, 2008), the MSPB reversed a removal after concluding the employee proved retaliation connected to protected EEO-related activity and union activity.
Case Snapshot
Agency: Department of Veterans Affairs
Role: GS-9 Medical Technologist
Action challenged: Removal (charge: failure to follow instructions)
Core issue: Employee was ordered to return copies of supervisory notes obtained while acting as a union representative
What the MSPB ultimately did: Reversed the arbitrator and set aside the removal based on retaliationRelief ordered: Cancellation of removal, reinstatement effective July 14, 2006, and back pay/benefits (as described in the order)
What Happened
According to the decision, the agency removed the employee for failure to follow instructions—specifically, an instruction to return copies of certain supervisory notes the employee obtained while acting in a union representational role.
The record described a dispute that began after a bargaining unit employee (whom the employee was representing) obtained copies of documents during a fitness-for-duty medical visit. The documents included supervisory notes that discussed the represented employee and another employee. The union representative provided the notes to the EEO office handling an EEO matter involving the represented employee (as described in the MSPB decision).
The agency then instructed the employee to return the documents. The employee's position (as summarized in the decision) was that she had obtained the documents during representational duties and questioned the legal basis for an order to return them. The agency proceeded with removal, and the employee challenged it through the negotiated grievance procedure and arbitration.
An arbitrator initially found he lacked jurisdiction, but the MSPB reversed and remanded. On remand, the arbitrator upheld the removal for "good cause." The employee requested MSPB review again—and this time, the Board reversed.
What the MSPB Decided—and Why
The key point: the MSPB applied well-known retaliation concepts reflected in the decision's legal discussion. In plain English, retaliation claims generally focus on whether:
the employee engaged in protected activity,
the agency took a materially adverse action, and
the evidence shows a causal connection—often proven with circumstantial evidence like timing, patterns, and credibility issues.
Here, the MSPB concluded the arbitrator did not commit legal error on the narrow question of whether the charge (failure to follow instructions) could be sustained under the standards discussed. But the arbitrator failed to address the employee's affirmative defenses—especially the claim that removal was motivated by retaliation tied to EEO activity and union activity.
Rather than remand again, the MSPB addressed retaliation itself. The Board pointed to several forms of circumstantial evidence that, taken together, supported a "pattern" of retaliation—such as:
the employee's extensive protected activity and management's awareness of it,
close timing between communications about EEO matters and the removal process,
the agency escalating to the harsh penalty of removal in a dispute the Board characterized as essentially about document possession, and
the broader backdrop described in the record involving multiple prior disciplinary actions over a relatively short period that neutral arbitrators had overturned (including findings tied to reprisal in at least two).
Based on the totality of the record, the MSPB found the employee proved retaliation by a preponderance of the evidence and set the removal aside.
Why This Matters for Federal Employees
Retaliation claims are rarely proven with a single "smoking gun." Most federal employees don't have an email that says, "We're removing you because of your EEO complaint." Instead, these cases often turn on a combination of facts—timing, shifting explanations, unusually severe penalties, and patterns of escalating discipline.
This decision is also a reminder that union representational activity and EEO-related activity can intersect in real workplaces. When the underlying dispute involves documents, representation, or EEO communications, it's easy for a disagreement to become a discipline case—fast.
Finally, it reinforces a practical point: even if an agency can prove some misconduct, an employee may still prevail if they establish an affirmative defense like retaliation.
Key Takeaways
Track the timeline when discipline follows protected activity closely. Preserve emails, letters, proposals, and decision notices that show what management knew and when.
Document how and why the dispute started (especially if it arises from representational or EEO-related work). Compare the penalty to the conduct at issue and to typical penalty ranges, if available.
Name the protected activities clearly (EEO complaints, grievances, representational assistance) when raising affirmative defenses. Request clear explanations in writing when an instruction or "expectation" isn't explained.
Stay professional in communications, even when the process feels unfair.
Practical Next Steps
If you're facing discipline (or already removed) and you suspect retaliation may be part of the story, these steps can help you stay grounded and organized:
Build a timeline (dates, who said what, what documents exist).
Save evidence immediately (emails, texts if applicable, memos, case logs, proposals/decisions, arbitration records).
Identify witnesses who observed key events or can confirm what was common practice.
Write down what management knew about your protected activity and how you know they knew.
Keep communications professional and focused on facts (assume everything could be reviewed later).
Preserve copies of policies and instructions that relate to the dispute.
Be alert to short deadlines. This MSPB decision's notices describe timeframes that can run from receipt of the decision (for example, deadlines discussed for requesting review, filing certain motions, or pursuing court action).
Consider getting guidance early so you can evaluate forum choice (grievance/arbitration, MSPB, federal sector EEO) and avoid procedural traps.
Helpful orientation materials many employees review include an EEOC overview, EEOC retaliation, an MSPB overview, and information about MSPB wrongful termination. Some matters also involve leave/accommodation issues—FMLA and disability discrimination can be part of the broader landscape depending on the facts. And if whistleblowing is involved, the Office of Special Counsel for whistleblower protection may be relevant.
For those who like to read source materials, you may also see references to eCFR 29 CFR Part 1614, the EEOC Title VII statute page, the MSPB official site, and the OSC official site.
A Word From Southworth PC Leadership
"When a federal employee raises concerns through EEO channels or representational work, the process should be handled professionally—not escalated into career-ending discipline. Careful documentation and a clear timeline can make a real difference." — Lydia Taylor, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
In high-stakes adverse action cases, federal employment attorneys often help by analyzing the agency's charge, the proof, and whether an affirmative defense (like retaliation) may be supported by the record.
Federal employee attorneys commonly assist with strategy and case organization—what evidence matters most, what witnesses can help, and how to present a coherent timeline.
When a matter involves arbitration records or Board review standards, federal employment lawyers may focus on preserving issues and identifying where a decision failed to address material defenses.
In practical, day-to-day terms, federal employee lawyers can also help you keep communications focused and professional while your case is pending—especially when work continues during a dispute.
If your case is headed to the Board, MSPB lawyers may help develop the record, prepare testimony, and frame arguments around the standards the MSPB applies.
Many people looking for attorneys for federal employees also want help understanding how the federal sector EEO system and adverse action processes can overlap. In some situations, a federal employee EEO attorney can assist with the EEO track while a federal employee retaliation attorney concentrates on the proof issues that often decide reprisal claims.
Working with practitioners can be especially valuable when the situation involves multiple moving parts: retaliation allegations, timing disputes, and potential parallel processes.
Talk With Our Team
If you're dealing with removal, retaliation concerns, or a process that feels like it's spiraling, you don't have to sort it out alone. Southworth PC is serving federal employees nationwide and abroad.
Use the contact form below to reach Southworth PC.
FAQWhat is retaliation in a federal employment case?
Retaliation generally refers to adverse action taken because an employee engaged in protected activity, such as filing an EEO complaint, participating in an investigation, or exercising grievance/appeal rights. Proof often relies on timing, credibility issues, and patterns, not just direct statements.
Can the MSPB reverse a removal even if the agency proves the charge?
In some cases, yes. As this decision illustrates, even where the underlying charge is sustained, an employee may still prevail by proving an affirmative defense like retaliation, depending on what the full record shows.
Why does timing matter so much in retaliation cases?
Timing can be circumstantial evidence of motive—especially when a proposal or decision quickly follows management learning about protected activity. Timing is usually evaluated alongside other facts, not in isolation.
When should I talk to MSPB Attorneys?
If you're facing a removal or other major adverse action, it may help to talk with MSPB Attorneys early enough to understand forum choices, deadlines, and what evidence will matter most. Even an initial review can help you identify gaps in documentation and clarify next steps.
What should I do right now if I fear retaliation?
Start by preserving evidence and writing a clear timeline. Keep communications professional, identify witnesses, and consider speaking with counsel so you can understand the process and avoid missing key procedural steps.
Disclaimer
This blog 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 evidence in each situation. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.]]>by Southworth PC<![CDATA[When a Removal Follows EEO Activity: What an MSPB Decision Shows]]>https://www.attorneysforfederalemployees.com/?p=509442026-04-27T16:00:47Z2026-04-29T15:41:21Z clearance, or reputation may be on the line. Many employees describe the process as isolating: you're trying to keep doing the work while also protecting your career, your finances, and your future.
That pressure can get even heavier when discipline shows up while EEO matters are pending. It's common to wonder: Is this about performance—or is this payback? And even asking that question can feel risky.
Sometimes you file a complaint. Sometimes you apply for promotions you're qualified for. And sometimes—right in the middle of pending EEO cases—an investigation starts, allegations surface, and suddenly you're facing removal.
In a published Merit Systems Protection Board (MSPB) decision, the Board reversed an arbitrator's ruling that upheld a removal and found the employee proved retaliation connected to protected EEO activity. Southworth PC did not represent any party in this matter.
Case Snapshot
Forum: Merit Systems Protection Board review of an arbitration decision
Agency: Department of Homeland Security (Federal Law Enforcement Training Center referenced)
Employee role: GS-12 law enforcement training instructor (Glynco, Georgia)
Agency action: Removal (effective November 25, 2005)
Agency charge: Alleged falsification of applications for federal employment (14 specifications tied to OF-612 responses)
Employee's defense: Retaliation for protected EEO activity
Outcome: MSPB reversed, ordered reinstatement and back pay/benefits (January 29, 2008)
What Happened
According to the decision, the employee worked as a GS-12 instructor at the Federal Law Enforcement Training Center in Glynco, Georgia. She had been selected for that job in May 2000 through priority consideration that came from an EEO settlement agreement.
After being rejected for promotion multiple times, she filed a series of EEO complaints beginning in November 2002. In those complaints, she alleged her non-selections involved illegal sex discrimination, age discrimination, and retaliation for earlier EEO activity.
While those EEO matters were pending, the agency investigated her promotion applications. The agency proposed removal on September 29, 2005, charging (in 14 specifications) that she falsified applications by stating she had a bachelor's degree from Hamilton University. The agency asserted Hamilton University was not accredited by an accrediting institution recognized by the U.S. Department of Education. The removal became effective on November 25, 2005.
The employee challenged the removal through the grievance process, which proceeded to arbitration. While that grievance was pending, an EEOC administrative judge issued a decision dated June 12, 2006, finding discrimination in several promotion-related applications and ordering monetary relief (including $20,000 in nonpecuniary compensatory damages, as described in the MSPB record).
The arbitrator ultimately upheld the removal for "just cause" and rejected the employee's retaliation defense. The employee then requested MSPB review.
What the MSPB Decided—and Why
The MSPB's decision turned on two main issues: (1) the "falsification" charge, and (2) retaliation for EEO activity.
1) MSPB jurisdiction wasn't blocked by the FLRA exception process
The agency argued the employee should have pursued the Federal Labor Relations Authority (FLRA) exception process instead of seeking MSPB review. The Board disagreed and explained that the statutory review scheme did not preclude MSPB jurisdiction in these circumstances (the decision discusses how removal arbitration awards fit into that structure).
2) The Board found legal error in sustaining "falsification" on the OF-612
To sustain falsification, the decision explains the agency must prove—by preponderant evidence—that the employee knowingly supplied incorrect information with intent to deceive or mislead.
Here, the MSPB focused on what the form actually asked for. The Board noted that the OF-612 prompted applicants to list education but did not state that only accredited degrees could be listed. The employee also testified she asked a Human Resources supervisor whether she could list the degree and was told there was no requirement to list only accredited institutions (the HR supervisor did not testify, but the arbitrator admitted the employee's notes).
The MSPB relied in part on its reasoning from a similar case and concluded the arbitrator erred in interpreting civil service law when sustaining the falsification charge under these facts.
3) The Board found the arbitrator used the wrong approach to retaliation—and then found retaliation proven
On retaliation, the decision describes the legal framework the MSPB applies in these cases (including the elements related to protected activity, knowledge, and a nexus to the adverse action). The Board concluded the arbitrator committed legal error because he did not cite a legal standard and his analysis did not follow the required framework.
Because of that legal error (and because the record was complete), the MSPB made its own findings. The Board explained that retaliation can be shown through circumstantial evidence—what it called a "convincing mosaic"—including suspicious timing, statements suggesting retaliatory intent, disparate treatment, or evidence that the stated reason is pretext.
In weighing the record, the MSPB emphasized several circumstantial indicators described in the decision, including:
the employee's long history of EEO activity,
the timing of the investigation and removal relative to the ongoing EEO litigation activity described in the record,
evidence that key officials knew about the EEO activity, and
evidence suggesting resentment toward the employee's EEO activity.
The MSPB ultimately found the evidence sufficient to establish a causal link and held the employee met her burden on the affirmative defense of retaliation. The Board ordered the agency to cancel the removal, reinstate her effective November 25, 2005, and provide back pay, interest, and benefits under applicable regulations.
Why This Matters for Federal Employees
This decision highlights a reality many federal employees live through: once you engage in protected EEO activity, workplace dynamics can change—sometimes subtly, sometimes abruptly. Even when an agency frames a later action as "integrity" or "paperwork," timing and context can become critical.
It also shows how process choices matter. The employee challenged the removal through a negotiated grievance process that went to arbitration, and then sought MSPB review. If you're a bargaining unit employee, it can feel like you're navigating multiple systems at once.
Finally, the decision reinforces that retaliation analysis isn't just about who signed the removal letter. The MSPB criticized an approach that limited retaliation evidence only to officials directly connected to the termination decision, and it discussed broader "identity of interests" and circumstantial proof.
Key Takeaways
Read the exact wording of the forms and policies at issue before assuming a "falsification" charge fits. Preserve notes, emails, and other records if you asked HR or management for guidance and relied on it.
Track timing carefully when discipline follows protected activity—timing can become evidence. Document who knew about your protected activity and when (knowledge is often a key dispute).
Look for patterns, not just single events, when evaluating retaliation claims. Stay professional in written communications, even when you feel targeted.
Ask for clarity in writing when instructions or requirements are ambiguous.
Practical Next Steps
If you're facing discipline, an investigation, or a removal after EEO activity, consider these general steps:
Preserve evidence now. Save emails, messages, calendar invites, drafts, and relevant attachments.
Write a timeline. Include dates of EEO activity, meetings, investigations, proposals, and decisions.
Identify witnesses. List who heard statements, attended meetings, or saw key events.
Keep communications professional. Assume messages could become exhibits later.
Request and retain key records. Vacancy announcements, application copies, rating sheets, and any guidance you received.
Compare stated reasons to the record. Note inconsistencies you can prove with documents.
Be alert to deadlines. They can be short, and the correct forum may affect the timeline.
Get informed support. Talking with attorneys for federal employees can help you understand processes and options without guessing.
If you want plain-language background reading while you're sorting things out, you can look up resources like MSPB overview, MSPB wrongful termination, EEOC overview, and EEOC retaliation. For official references, many employees also consult the MSPB official site, the EEOC Title VII statute page, the EEOC ADEA statute page, and eCFR 29 CFR Part 1614. And for whistleblower-related concerns (a separate process from EEO), see Office of Special Counsel for whistleblower protection and the OSC official site.
A Word From Southworth PC Leadership
"When a federal employee believes discipline is tied to speaking up, it can feel deeply personal and professionally destabilizing. A steady, informed plan can help you move forward with clarity." — Shaun Southworth, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
In situations like this—where a removal, arbitration, and EEO activity intersect—having knowledgeable support can reduce confusion and help you focus on facts.
Depending on the forum and the posture of your case, federal employment lawyers may help by assessing whether the agency's charge matches the actual wording of forms and policies, organizing evidence into a coherent timeline and record, identifying what must be proven for affirmative defenses like retaliation, preparing for hearings (including witness preparation and exhibit organization), and explaining how an MSPB appeal can differ from a grievance/arbitration track.
Some employees look for federal employee attorneys early because the process can feel overwhelming and because the record you build at the start often matters later. Others seek federal employee lawyers when the stakes rise—like a proposed removal or career-impacting discipline.
And when the issue is an adverse action within MSPB jurisdiction, MSPB lawyers can help you understand how the Board evaluates charges, penalties, and defenses like retaliation, based on the evidence in the record.
Working with practitioners and attorneys for federal employees can be especially valuable when the situation involves multiple moving parts: falsification allegations, EEO activity timelines, and potential parallel processes. Depending on your circumstances, a federal employee EEO attorney may help you understand how discrimination and retaliation concerns intersect with disciplinary proceedings. And where the issue involves alleged retaliation for protected activity, a federal employee retaliation attorney can help you frame events in a way that is clear, professional, and tied to the timeline.
Talk With Our Team
If you're dealing with an investigation, proposed discipline, or a removal connected to EEO activity, you don't have to sort through it alone. Southworth PC is serving federal employees nationwide and abroad.
Use the contact form below to reach Southworth PC.
FAQ
How do retaliation claims get evaluated in federal-sector cases?
In the MSPB decision discussed here, the Board emphasized that retaliation can be proven through circumstantial evidence and evaluated by weighing the full record—not just isolated events. The decision also discussed a "convincing mosaic" concept, including timing, knowledge, and pretext-type evidence.
When should I talk to MSPB Attorneys after a removal?
If you receive a proposed removal or a final removal decision, it's often helpful to consult early so you can preserve evidence and understand your forum options. This is general information, not legal advice, and your specific deadlines and options depend on the documents in your case.
What does a falsification charge usually require?
The decision explains that falsification generally requires proof that an employee knowingly supplied incorrect information with intent to deceive or mislead the agency. A dispute can sometimes turn on the exact language of the form or question the employee answered.
What does a federal employee EEO attorney typically do in a mixed set of issues?
A federal employee EEO attorney often helps a client understand the EEO process, develop evidence, and frame issues like protected activity and causal connection. When multiple processes overlap (like EEO activity and discipline), counsel can also help coordinate a consistent factual record.
What's the difference between retaliation and "disagreement with management"?
Retaliation involves an adverse action taken because of protected activity (like EEO participation), not merely workplace conflict. A federal employee retaliation attorney will typically focus on evidence of protected activity, knowledge, timing, and whether the agency's stated reasons hold up against documents and testimony.
Disclaimer
This blog post is for informational purposes only and is not legal advice. Reading this post does not create an attorney-client relationship with Southworth PC. Outcomes depend on specific facts, evidence, and procedural posture. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.]]>by Southworth PC<![CDATA[MSPB Reverses Removal After Ex Parte Evidence Undermined Due Process]]>https://www.attorneysforfederalemployees.com/?p=509422026-04-21T17:07:31Z2026-04-27T16:52:19Z uncertainty at work, and a lingering fear that speaking up will make things worse. Many employees also describe isolation: colleagues pull back, supervisors stop communicating clearly, and the process starts to feel stacked against you.
One of the most common (and most painful) surprises is learning that the deciding official considered something you never saw—information you didn't get a chance to explain or correct—before your career was changed.
Sometimes you answer the charges. Sometimes you give your side of the story. And sometimes you find out later that the deciding official went around you to get information you didn't even know was being considered.
In Kolenc v. Department of Health and Human Services (Sept. 11, 2013), the Merit Systems Protection Board (MSPB) affirmed an administrative judge's decision reversing a removal because the deciding official relied on ex parte information that affected how the official viewed the employee's credibility. Southworth PC did not represent any party in this matter.
Case Snapshot
Forum: Merit Systems Protection Board (MSPB)
Decision date: September 11, 2013
Agency: Department of Health and Human Services (HHS), Food and Drug Administration (FDA)
Position: Consumer Safety Officer
Action challenged: Removal
Core issue: Whether ex parte communications gave the deciding official new and material information without allowing the employee to respond
Outcome: MSPB denied the agency's petition for review and affirmed reversal of the removal
Relief ordered: The agency was ordered to cancel the removal effective December 5, 2011, and provide back pay, interest, and benefits (with deadlines stated in the decision)
What Happened
According to the decision, the agency removed the employee based on four charges: willful misuse of a government-owned vehicle, misuse of a government gas card, failure to provide accurate time and attendance information, and failure to follow instructions.
One specification under the "failure to follow instructions" charge involved a traffic ticket the employee received while driving a government vehicle in August 2011. In a written reply to the proposed removal, the employee's representative stated that the ticket had been cancelled. The deciding official, however, received information from the agency's fleet manager—obtained after contacting the Denver Police Department—that the ticket was still active.
The deciding official referenced that information in the removal decision and later testified that it affected the official's view of the employee's credibility.
After a hearing, an MSPB administrative judge reversed the removal in an initial decision dated July 13, 2012, finding a due process violation because the deciding official considered ex parte information that was new and material. The judge also ordered interim relief while the case was under review.
The agency petitioned for review. The employee moved to dismiss that petition, arguing the agency did not timely comply with the interim relief order. The MSPB ultimately declined to dismiss the petition, finding the agency had shown compliance (although delayed), and then denied the petition on the merits—affirming that due process was violated.
What the MSPB Decided—and Why
The MSPB focused on a constitutional due process problem: when an agency removes a federal employee, the employee is entitled to notice of the charges and the evidence relied upon, plus a meaningful opportunity to respond.
The decision applied the Federal Circuit's framework from Stone v. FDIC for evaluating ex parte communications. In plain English, not every off-the-record communication is automatically fatal—but it becomes a due process problem when it introduces new and material information that the employee didn't know about and couldn't answer.
The MSPB emphasized several points that mattered in this case:
The deciding official did more than "confirm and clarify" what was already in the record. The official obtained and relied on new information about the status of the traffic ticket.
The deciding official used that new information to judge the employee's credibility, and credibility mattered to how the official evaluated the charged misconduct.
The employee was not given an opportunity to respond to the discrepancy about whether the ticket had been cancelled.
Even though the agency argued the traffic-ticket issue was not central to the removal, the deciding official admitted the ex parte communication influenced the credibility assessment.
On these facts, the MSPB affirmed the finding that the removal decision was constitutionally flawed.
Why This Matters for Federal Employees
A removal case isn't only about the underlying allegations—it's also about whether the process was fair. When a deciding official considers extra information behind the scenes, it can change the outcome in subtle ways, especially if the official decides the employee is "not credible."
This decision is also a reminder that:
Credibility determinations can be decisive. If a deciding official uses undisclosed information to conclude an employee was untruthful, that conclusion can spill over into other charges.
Interim relief is supposed to reduce hardship. Even when an agency ultimately complies, delays can create real-world financial stress—exactly what interim relief is meant to prevent.
Procedural rules are not "technicalities." They exist to ensure that federal employees can respond meaningfully before being deprived of a job.
Key Takeaways
Recognize that ex parte communications can create a due process violation when they add new, important evidence. Track what evidence was actually provided to you during the proposal-and-reply stage.
Focus on whether undisclosed information affected credibility or the penalty decision. Document interim relief problems promptly and in writing if an initial decision orders relief.
Preserve all proposal notices, replies, exhibits, and decision letters in one organized file. Ask (politely and professionally) for clarification when decision letters reference facts you did not see in the record.
Practical Next Steps
If you are facing discipline, removal, or an MSPB appeal, a few practical steps can help you stay grounded and protect your options:
Preserve evidence. Save emails, texts, Teams messages, calendar entries, travel logs, and any policy documents you were expected to follow.
Build a timeline. Create a dated, factual chronology of events (proposal date, reply date, key meetings, decision date, and any interim relief orders).
Identify witnesses. Write down names and what each person observed (stick to facts, not conclusions).
Keep communications professional. Assume every message could be read later by a third party.
Request the record. When appropriate, ask for the materials the agency relied on so you can respond to the evidence, not rumors.
Watch deadlines. Federal-sector deadlines can be short, and missing one can limit your ability to challenge an action.
Get informed about forums. Some disputes go through Merit Systems Protection Board (MSPB) appeals, while others proceed through the EEO process—sometimes both.
Consider the overlap. If disability, leave, or accommodation issues are part of your situation, learning about FMLA and disability discrimination may help you ask better questions.
Know where whistleblowing fits. If your concerns involve protected disclosures, Office of Special Counsel (OSC) complaints may be a separate track to understand.
For readers who want to review primary sources, the MSPB official site and OSC official site can provide general background. If your issue involves the federal-sector EEO process, an EEOC overview and the regulations in eCFR 29 CFR Part 1614 may also be useful context. And if you are trying to understand reprisal concepts, EEOC retaliation is another helpful reference point.
A Word From Southworth PC Leadership
"When your livelihood is on the line, you deserve a process you can actually participate in—where the decision is based on the record you had a fair chance to answer." — Lydia Taylor, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
In many cases, counsel can help federal employees make sense of the record, identify procedural problems (like undisclosed evidence), and present a clear, organized narrative to the tribunal reviewing the action.
Depending on the situation, federal employment lawyers may review proposal and decision letters for due process concerns, evaluate whether the agency followed MSPB procedures in a removal or suspension, prepare exhibits, witness lists, and hearing strategy for appeals, advise on settlement considerations and practical risk management, and coordinate strategy when EEO allegations or protected activity may also be involved.
In removal cases, many employees look for MSPB lawyers who understand how "new and material" evidence issues can affect credibility and penalty analysis. And when the dispute involves claims that resemble MSPB wrongful termination, counsel can help frame the issues in a disciplined, evidence-based way.
Separately, some federal employees also consult a federal employee EEO attorney when discrimination statutes may apply, or a federal employee retaliation attorney when they believe protected activity is being used against them. (Those issues were not specified as claims in this MSPB due process decision.)
Working with federal employee attorneys can be especially valuable when the situation involves multiple moving parts: procedural challenges, credibility disputes, and potential parallel processes. If you're looking for attorneys for federal employees who understand how due process issues can shape removal outcomes, it can help to speak with someone who regularly works inside these systems.
Talk With Our Team
Southworth PC is a firm of attorneys for federal employees, serving federal employees nationwide and abroad. If you want to talk with practitioners about what your paperwork means and what questions to ask next, we're here to listen.
Use the contact form below to reach Southworth PC.
FAQ
What is an ex parte communication in an MSPB removal case?
An ex parte communication is information provided to the deciding official outside the employee's notice-and-response process. The key issue is whether it adds new and material information the employee did not get a fair chance to answer.
Why does credibility matter so much in federal discipline cases?
Credibility can influence how a deciding official interprets disputed facts across multiple charges. In the decision discussed here, the MSPB emphasized that undisclosed information affected the deciding official's view of the employee's credibility.
What do MSPB Attorneys look for when reviewing a due process issue?
They often look for signs that the deciding official relied on evidence the employee never received, especially information used to resolve disputed facts or assess credibility. They also examine whether the employee had a meaningful opportunity to respond.
Can the MSPB order back pay after reversing a removal?
Yes. In this decision, the MSPB ordered the agency to cancel the removal and provide back pay, interest, and benefits, with specific timeframes stated in the order.
If my case also involves disability issues, where does the Rehabilitation Act fit?
Federal employees sometimes raise disability discrimination or accommodation issues under the Rehabilitation Act. A useful starting point for background is EEOC Rehabilitation Act (Sections 501 and 505), but how it applies depends on the specific facts of a case.
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.]]>