News from the Courts: On July 10, 2017, the District of Columbia Office of Human Rights (OHR) issued its Final Order in Massengale v. D.C. Fire and Emergency Medical Services, OHR Docket No: 14-360-DC(CN). OHR reversed Ms. Massengale's 2014 termination and ordered her reinstated with back pay.
News from the Federal Circuit: On December 27, 2016, the U.S. Court of Appeals issued its decision in Gallegos v. Dept. of Health and Human Services, Case No. 2016-2120. A divided panel refused to enforce a breached clean record settlement agreement provision because of the delay in seeking enforcement.
Developments at the MSPB: On November 22, 2016, the Merit Systems Protection Board (Board) issued its decision in Elder v. Department of the Air Force, 2016 MPSB 41. The Board reversed the removal of Mr. Elder, finding retaliation for Mr. Elder's efforts to enforce his whistleblower complaint settlement agreement.
News from the Supreme Court: On May 23, 2016, the Supreme Court issued its decision in Green v. Brennan, No. 14-613, holding that federal employees' 45-day deadline for initiating EEO complaints for constructive discharge cases runs from the date the employee announces his/her resignation, not the date of the last precipitating discriminatory act by the agency.
News from the Federal Circuit: On May 11, 2016, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Lal v. Merit Systems Protection Board, No. 2015-3140, holding that a category of employees at the Department of Health and Human Services (HHS) had the right to appeal adverse actions to the Merit Systems Protection Board (MSPB).
News from the Supreme Court: On April 27, 2015, the Supreme Court agreed to hear the appeal in Green v. Donahoe. The appeal seeks to resolve a split in the courts regarding how to calculate deadlines for federal sector EEO complaints.
Developments at the GAO: On March 9, 2015, the Government Accountability Office (GAO) issued a new report, "FEDERAL WORKFORCE: Improved Supervision and Better Use of Probationary Periods Are Needed To Address Substandard Employee Performance", Report GAO-15-191. In the report, GAO discussed various issues concerning performance management for federal employees.
Developments at the MSPB: On April 3, 2013, the Merit Systems Protection Board (MSPB) issued a precedential decision which completely rewrites the caselaw for deciding removals based on failure to accept a management directed reassignment. In Miller v. Dept. of the Interior, 2013 MSPB 27, the MSPB reversed the removal of Ms. Miller and reinstated her to duty.
Developments at the MSPB: This case represents another case from the MSPB where an employee's removal was reversed because the agency considered detrimental information in its decision-making process without sharing that information with the employee. Because the employee was not given the opportunity to rebut this information, the agency violated the employee's due process rights which requires a reversal of the employee's termination.
The MSPB held in two cases, involving related issues, that a deciding official's consideration of information to enhance penalties violated an employee's due process rights where the employee was not put on notice of the consideration of new evidence. Both cases involved a deciding official improperly considering new and material information, but failing to inform the employee in the notice of proposed action that such information was being considered. The Administrative Judge in Thomas did not fully address the potential due process violation, while the Administrative Judge in Gray found that Mr. Gray failed to prove a violation of his due process rights. The Board reversed Gray after finding that the information the deciding official considered was "new and material," and remanded Thomas for further inquiries. Thomas v. U.S. Postal Service, 2011 MSPB 62 (June 14, 2011) and Gray v. Department of Defense, 2011 MSPB 64 (June 17, 2011).