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  • Writer's pictureKevin Crayon II

Decision to Remove, Demote, or Indefinitely Suspend You!

You've received a memo or letter proposing your removal, demotion, or indefinite suspension from federal service. You replied, and the decision was still sustained! What options do you have as a federal employee?

Depending on whether you qualify, you may file with the Merit Systems Protection Board, or the MPSB. The #MSPB allows you the option to appeal the decision. Although it's called an "appeal," it's really a form of litigation that is similar to a civil action. You have a judge, you have a final hearing, you have motions and discovery and prehearing conferences and arguments over evidence. These are qualities that are similar to civil actions at the trial level. After the judge hears and decides on your case, you have further review (appeal) options that are more like traditional appeals.

Why were you terminated? Was it because of performance? If so, then your case will likely proceed under a performance-based termination, which is more employer-friendly. Was it alleged misconduct? If so, then your case will likely proceed under different, more employee-friendly, procedures. Were you terminated from the VA? Well...unfortunately, your appeal will proceed under very pro-employer procedures. Were you terminated from the Postal Service? If so, you may not have #MSPB rights unless certain exceptions apply.

The most commonly defensible adverse actions are taken under Chapter 75 of Title 5 of the United States Code and are appealable to the #MSPB. These include demotions, suspensions of more than 14 days, reduction in pay or grade, a removal, and more. This means you have the right to appeal the discipline to the #MSPB, and the burden is on the employer to prove by a preponderance of evidence that the action promotes the efficiency of the service, and, more importantly, they have to prove the charges to the judge.

Most importantly, however, is the Agency must prove that the penalty is reasonable. This is where a case like this becomes much more defensible. Think of this like the leniency phase. To determine the reasonableness of a penalty, the judge will look at the "Douglas Factors," which include the severity of the charge (which is the most important factor), your prior discipline, mitigating factors, and at least 12 or more factors. Therefore, even if the Agency proves its charges, the judge can reduce the penalty if the punishment doesn't fit the conduct!

If the Agency is able to overcome its burdens listed above, then you can plead affirmative defenses, such as discrimination, harmful procedural error, retaliation for engaging in protected activity, and other defenses. This is why MSPB litigation is, in many cases, far superior than launching an EEO case alone. You may have many potential legal theories of recovery!

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