MSPB Law Blog

Proposed Discipline Defense for Federal Employees

By John V. Berry, Esq., www.berrylegal.com 

We defend and represent federal employees in proposed disciplinary actions. When a federal employee is facing a proposed disciplinary action before their agency it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation in the appeal. This summary discusses some brief thoughts for federal employees as they respond to proposed disciplinary actions.

Retaining a MSPB Lawyer for MSPB Appeals

By John V. Berry, Esq., www.berrylegal.com

We are often asked the question of whether or not it makes sense for a federal employee to hire an attorney for their Merit Systems Protection Board (MSPB) appeal. This article discusses the reasons why it is very important for federal employees to have an MPSB lawyer represent them in their MSPB appeal and to hire an attorney with experience in this area.

AWOL Charges at the MSPB

By John V. Berry, Esq., www.berrylegal.com

What is an AWOL charge?

Absence Without Leave (AWOL) cases at the Merit Systems Protection Board (MSPB) are known to involve a very specific form of misconduct. An AWOL charge essentially alleges that a federal employee was absent from work without pay and permission. The MSPB, for the most part, has found a connection or nexus between absent federal employees and a disruption of the federal workplace to justify discipline. However, at the same time, federal agencies commonly seem to make mistakes in this type of disciplinary action.  For the most part, they seem to forget the issue of potential disability or family medical matters that arise.  This type of situation is different than when a federal employee is on approved leave without pay (LWOP).  

An AWOL charge is one of the more common forms of charges for disciplinary actions for federal employees. The Office of Personnel Management (OPM) notes that it is one of the most common forms of disciplinary action in their article on the subject.   It is important to understand the nature of this type of charge when an employee is defending against this type of charge at the MSPB or during proposed discipline.  I have included some samples of AWOL charges to give a sense of how these types of charges can be presented.  

Sample AWOL Charges

The following are some examples of conduct unbecoming charges that might be lodged against a federal employee:

1. On April 4, 2018, you did not report for duty at your workstation and you provided no explanation for your absence;
2. On February 2, 2019, you reported for work, but then after reporting in, left your office and went off-site without permission;
3. On January 12-19, 2019 you were absent from work without permission and then were again absent from work on February 10-24, 2019;

Elements Needed to Prove AWOL Charge

An AWOL charge is proven by demonstrating that the employee committed the misconduct alleged. In order to prove a charge of AWOL charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence or by 51% of the evidence provided. The federal agency will need to establish that the employee was absent, and that his or her absence was not authorized, or that his or her request for leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277 (2003).

Defenses to AWOL Charges

There are a number of different types of methods of defense for AWOL charges. Some of the more common ones include:

1. FMLA Defense: The federal agency asserting AWOL charges against a federal employee holds the burden of proving that it properly denied FMLA leave in taking an AWOL based disciplinary action against an employee who is eligible for leave under the FMLA. Ellshoff v. DOI, 76 MSPR 54 (1997);
2. Disability Discrimination: A federal employee may allege that the Agency issued an AWOL charge on the basis of disability discrimination.  If a federal employee who has been removed for AWOL charges raises an affirmative defense of disability discrimination, he or she must show that he or she is a person with a disability entitled to the protection of disability discrimination laws. Davis v. Department of Veterans Affairs, 106 MSPR 654 (2007);
3. Military Discrimination: Under military anti-discrimination laws and case law, an employee who is ordered to active military duty  should not have been charged AWOL. Jeffrey v. Department of the Navy, 25 MSPR 697 (1985).

The number of potential defenses to an AWOL charge are varied and require the assistance of a attorney knowledgeable in federal employment law to determine the best strategy. It is often the case that a federal agency tends to forget the fact that an employee or an employee's family are undergoing medical issues in issuing AWOL charges.  It is far better for the federal agency involved to work with the federal employee during this difficult period than attempting to impose an adverse action.  

Conclusion

In sum, when facing an AWOL disciplinary charge it is very important to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.

The Agency's Burden of Proof at the MSPB

By John V. Berry, Esq., www.berrylegal.com

We are often asked how the Merit Systems Protection Board (MSPB) evaluates MSPB appeals brought by federal employees.  This article discusses the way in which administrative judges at the MSPB review and consider charges sustained against federal employees by their agencies.

Burden of Proof at the MSPB

An appeal brought be a federal employee (e.g. an appeal of a removal action by a federal agency), will be evaluated by an administrative judge based on the evidentiary standard that is appropriate.  For cases involving misconduct charges, the standard is "preponderance of the evidence" and for performance cases, it is a lower standard, "substantial evidence." In an MSPB appeal, a federal agency, much like in a criminal case, has the burden of proof to prove the charges alleged. 5 U.S.C. § 7701(c). As a result, the federal agency must prove the charge and establish a connection, or "nexus" between the charge and the efficiency of the service.  The "efficiency of the service" is a term which simply means for the good of government operations.

The preponderance of the evidence standard has been defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). In performance cases, the substantial evidence standard has been defined differently.  Substantial evidence has been defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). Under this standard, the agency is not required to present evidence that is more persuasive than the evidence submitted by the appellant. Shuman v. Dep't of Treas., 23 M.S.P.R. 620, 624 (1984).

Examples

Example: A federal employee is accused of conduct unbecoming because of an allegation that they engaged in a fight at work with another employee.  The employee is removed for the alleged fight at work and appeals to the MSPB.  The federal agency will have to prove, by a preponderance of the evidence (51% of the evidence at the hearing) that the employee actually engaged in a fight in the workplace.

Example 2: a federal employees is accused of poor performance and placed on a Performance Improvement Plan (PIP).  The agency then removes the federal employee for failing the PIP.  The federal employee appeals.  In this type of case, the agency must show that the evidence shows that the federal employee could be seen as having engaged in poor performance.  This standard of proof is easier for federal agencies to show.  

Conclusion

In sum, when facing an MSPB appeal to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.

 

MSPB Review of Arbitration Decisions

By John V. Berry, Esq., www.berrylegal.com

In certain circumstances, the Merit Systems Protection Board (MSPB) can hear an appellant’s (federal employee) request for a review of a labor arbitrator’s decision. Most arbitration review requests go to the Federal Labor Relations Authority (FLRA) at the request of a union. However, some grievants seek review by the MSPB. In some cases, MSPB review is possible where jurisdiction is found.

MSPB Must Have Jurisdiction for Review

In general, the MSPB has review over a grievant’s request to review a decision under 5 U.S.C. § 7121 (d) when the MSPB has jurisdiction over the “subject matter” of the grievance, the appellant has alleged a claim of discrimination under 5 U.S.C. § 2302 (b)(1), and the arbitrator has issued a final award or decision. When it chooses to review a decision, the MSPB often gives greater deference to decisions issued by arbitrators than they do to decisions issued by their own administrative judges.

In general, in order for the MSPB to have jurisdiction to review an arbitration case, the grievant must have alleged discrimination in combination with the other claims and taken the case to arbitration, where appropriate. Where a union elected not to move forward to arbitration, the MSPB found that a grievance's decision was not appealable as a final decision. Knuckles v. Dep't of the Army, 122 MSPR 519 (2015).

When will the MSPB Reverse an Arbitrator’s Decision

The MSPB will reverse or modify a labor arbitrator’s decision only where the arbitrator has made a mistake of law in interpreting civil service laws, rules or regulations. Hidalgo v. Dep’t of Justice, 93 MSPR 645 (2003). An arbitrator's findings of fact are entitled to deference unless the arbitrator erred in his legal analysis. Cambridge v. Dep’t of Justice, 111 MSPR 152 (2009), If an arbitrator has not made specific findings on a particular issue, the MSPB will not defer to the arbitrator's decision to deny an appellant's review request related to that issue. Hollingsworth v. Dep’t of Commerce, 115 MSPR 636 (2011).

A Few Examples Where Reversal Took Place

This is a sparse area of law and there have not been a significant number of cases of arbitration review.  As as result, there are not a number of cases to cite.  However, depending on the outcome of a labor arbitration and what has been alleged, it may be a potential avenue of appeal, especially where a union is not willing to take the case to the FLRA.  There are many potential examples of potential types of cases, but here are a few reversal case examples:

1. The MSPB reversed an arbitrator’s decision that an appellant was removed for cause. The MSPB determined that the arbitrator failed to address the appellant’s claim of affirmative defense that she had been subject to retaliation by the agency. Marshall v. Dep’t of Veteran’s Affairs, 111 MSPB 5 (2008).

2. The MSPB reversed a labor arbitrator’s ruling which found that an appellant's grievances were not arbitrable and could not be heard. The arbitrator found that the union failed to pursue the grievances as required by their collective bargaining agreement because it failed to timely schedule the appellant's requested oral or written presentations to management officials in support of her grievances. The MSPB determined that the arbitrator improperly construed the CBA, as the MSPB could not find language within the collective bargaining agreement requiring that the appellant make a presentation at the required step of the grievance procedure. Morales v. SSA, 107 MSPR 360 (2007).

3. The MSPB reversed a labor arbitrator's decision finding that an individual that had previously filed an EEO complaint could not appeal her removal matter through arbitration, finding that the arbitrator was wrong as a matter of law. Galloway v. SSA, 2009 MSPB 46 (2009).

4. The MSPB reversed a labor arbitrator's decision regarding a removal based on falsification, finding that the charge had not been proven and that evidence of EEO retaliation was present.  Fitzgerald v. DHS, 2008 MSPB 17 (2008).

Conclusion

In sum, when litigating an appeal of an arbitrator’s decision, it is very important to retain legal counsel familiar with the MSPB to determine the best possible appeals options. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at Berry & Berry PLLC Facebook Page.

Lack of Candor Charges at the MSPB

By John V. Berry, Esq., www.berrylegal.com

What is Lack of Candor?

Lack of candor cases at the Merit Systems Protection Board (MSPB) are unique. Candor, according to Dictionary.com, is defined as "the state or quality of being frank, open, and sincere in speech or expression." Lack of candor charges seem to be more common today than they have been in the past.  In fact, more federal agencies use this charge against federal employees today than ever before. While many individuals would think that lack of candor and falsification charges are the same type of charge, they are not.  A lack of candor charge is distinct from a standard falsification charge. A lack of candor charge is more broad than a falsification charge.  Falsification cases involve direct evidence of deception. Lack of candor is more a term of art, which can involve more general conduct. Usually, lack of candor cases involve charges alleging that a federal employee did not disclose information that the agency thinks should have been disclosed by the employee.

To prove a charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence.  For lack of candor cases at the MSPB there is no need for an agency to prove an intent to deceive, but rather that under the circumstances, the information should reasonably been disclosed for completeness. Fargnoli v. Dep’t of Comm., 2016 MSPB 19 (2016). Lack of candor, however, necessarily involves an element of deception. Parkinson v. Dep't of Justice, 815 F.3d 757, 766 (Fed. Cir. 2016).  There needs to be some element of proof that the federal employee knowingly omitted or hid facts from an agency.  

Sample Charge of Lack of Candor

The following is one sample of a lack of candor charge:

Charge 1, Specification 1: Lack of Candor

On July 12, 2017, you were interviewed by investigators about the theft of computers from your office. You testified that you did not take the computers when asked.  However, even though you were not asked if you knew who took the computers from your office, you had knowledge of the individual that had taken them and did not disclose that to investigators. You did not disclose this information.

Elements Needed to Prove Lack of Candor

Lack of candor generally requires that an agency prove two elements according to the Fargnoli case. These are:

(1) the federal employee gave incorrect or incomplete information; and

(2) the federal employee (he/she) did so knowingly.

The MSPB Board in Fargnoli provided reasoning for a lack of candor analysis in their decision:

Because the agency failed to establish by preponderant evidence that the appellant knew her statement was false, we found the administrative judge was correct in not sustaining the charge. Our reviewing court recently took a similar approach in Parkinson, in which an employee of the Federal Bureau of Investigation (FBI) was charged with lack of candor under the FBI Offense Code based on his alleged “failure to be fully forthright” in his statements to agency investigators. In that context, the court found that the “element of deception” required under Ludlum entailed that the employee must have “knowingly” failed to be forthright (citing Parkinson, 815 F. 3d at 766-67).

Id. at page 9.

Hence, the key in defending lack of candor cases before the MSPB falls on the issue of whether or not the federal employee knowingly failed to be forthright. Because of the ever increasing number of lack of candor charges, federal employees involved in administrative investigations and disciplinary actions involving this type of issue should retain counsel early to attempt to avoid lack of candor charges and/or defend against them at the MSPB.  

Conclusion

In sum, when facing a lack of candor charge it is very important to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at Berry & Berry PLLC Facebook Page.



Reviewing a Final Agency Disciplinary Decision Before Appealing to the MSPB

By John V. Berry, www.berrylegal.com

Before a disciplinary case moves to the Merit Systems Protection Board (MSPB) it is preceded with a final agency decision on a proposed disciplinary action. If the final disciplinary action is 15 days or more to removal, then the federal employee may appeal to the MSPB. Before making the decision to appeal, it is important to review the final agency decision and consult with an attorney.

The Final Agency Decision

A final agency decision is simply the decision made by the deciding official on a proposed disciplinary action (i.e. a proposed removal). Typically, the time period for receiving the agency’s final decision can range anywhere from 2-8 weeks from the time that an individual presents their oral and/or written response to the notice of disciplinary action. Some federal agencies are quick in issuing decisions, while others take their time in issuing a decision. During that time, the federal employee either continues to work or more often is at home in an administrative leave status. When the final agency decision is issued, there are some important considerations in reviewing the document as the federal employee considers whether to file an appeal to the MSPB.

Important Considerations

Here is a list of some considerations a federal employee should evaluate when reviewing a final agency decision on discipline before filing an appeal:

1. Check the Effective Date of the Decision: This date often differs from the date of the decision letter. The effective date usually starts the 30-day timeline for filing an MSPB appeal. This is extremely important because late appeals will not usually be considered.

2. Review which Charges were Sustained: In the final agency decision, if there is more than one charge or specification, it is possible that some or all of them have not been sustained. This can be helpful in that in may support an appeal on the basis that the penalty issued should have been mitigated.

3. Review the Language used in the Decision: Note any new information contained in the decision which was not in the proposed disciplinary action or the materials relied upon. Such information could be new and therefore potentially constitute a due process violation. It is not uncommon for final agency decisions on disciplinary actions to include information never previously disclosed in an appeal. This applies to both the deciding official’s findings of fact on the charges and his/her consideration of the Douglas (mitigation) factors.

4. Review the Appeal Rights Given: Often, depending on the federal agency involved, a number of appeals rights may be given to an employee in the final agency decision. However, it is important to have an attorney review these potential avenues in that sometimes employee relations for an agency may not have full knowledge of an employee’s eligibility for certain types of appeals, including MSPB cases. This can become a problem if an employee who could have elected one forum, elects the MSPB and later finds out that they were not eligible to file an appeal (despite the language used in the final agency decision).

In my estimation, about three quarters of final agency decisions do not include detailed factual findings by the deciding official. In about one quarter of those cases, a deciding official will provide detailed information in the decision. In representing federal employees, the general proposition is that the more information listed in the final decision the more likely it is to find potential errors in a negative decision which is then filed with the MSPB.

Conclusion

In sum, when evaluating a case for appeal to the MSPB it is important to have legal counsel review the final agency decision and evaluate an individual’s appeals options. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at Berry & Berry PLLC Facebook Page.

 

Clean Record Settlements for Federal Employees

By John V. Berry, Esq., www.berrylegal.com

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov in the appeals process. Many federal employees, especially if they have been removed, consider resolving their appeal by seeking an agreement with their federal agency to clear their employment record.  This type of agreement can include what is known as a clean record settlement.  There are a number of ways in which a settlement agreement with a federal agency can help to clear a federal employee’s record for future employability. 

What is a Clean Record Settlement?

A clean record settlement is simply the notion that an employment action that was taken against the federal employee is cleared from their employment files (e.g. Official Personnel File (OPF)) by agreement.  This is accomplished through a negotiated settlement agreement between the federal agency and the federal employee involved in an MSPB appeal.  The goal in a clean record agreement is to eliminate or minimize the negative employment information which can affect the individual’s future employment in the federal or private sector.  

Types of Clean Record Settlement Provisions

There are a number of different types of settlement provisions that can be considered clean record agreements.  Some settlement provisions fully rescind a proposed removal action or previously made decision (e.g. a removal decision) from OPFs or other employment files, while other types of agreements specify the type of information that will be disclosed by an agency when contacted by another employer.  Other provisions do not rescind documentation issued, but agree to change the Form SF-50 documentation that was issued in the OPF.

In many clean record settlements a contact point at the agency is designated by parties to handle inquiries about the former federal employee. With other provisions, certain employees are directed to not talk negatively of a former federal employee. Some provisions also specify that all records pertaining to a removal action (i.e. witness statements, etc.) will be destroyed and remove from agency files.  Other provisions may include agency acceptance of a retroactive letter of resignation explaining the personal reasons for the voluntary resignation.

In all, there are many different types of settlement provisions which can provide improved employability if resolved during the MSPB process.  For a far more detailed discussion of the MSPB clean record process, the MSPB, in 2013, issued guidance in a report.

Conclusion

In sum, for some federal employees a clean record settlement is important in order to resolve an MSPB appeal.  Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Our Facebook page is located at https://www.facebook.com/BerryBerryPllc

Mitigating Penalties for Federal Employees at the MSPB

By John V. Berry, Esq., www.berrylegal.com

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov in the appeals process. In doing so, we have often been called upon to represent federal employees in cases where the facts are either not in dispute or where they are less in dispute than the penalty which is assessed.  We often attempt to mitigate proposed removal actions for federal employees to lesser penalties.  Often, these types of issues move to the MSPB on appeal.   

How Does the Penalty Evaluation Process Come Into Play? 

Typically, a penalty analysis comes into play following a decision on the merits of disciplinary charges by a federal agency.  If a charge is not sustained against a federal employee then no penalty need be evaluated.  If a federal agency decides to sustain some or a portion of the charges, they will also issue a penalty, i.e. suspension, removal, demotion.  The penalty analysis will be governed by Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981).  In Douglas, the MSPB held that 12 factors (“Douglas factors”) must be considered when evaluating possible penalties for disciplinary cases involving federal employees.

A federal supervisor is responsible for ensuring that a disciplinary penalty is fair and reasonable.  If a penalty is disproportionate to the alleged violation or is unreasonable under Douglas, it is subject to being reduced or reversed by the MSPB, even if the charges would otherwise be sustained.  As such, it is a federal agency’s duty to determine its penalty in accordance with the Douglas factors.  Furthermore, an agency must give “substantive consideration to a lesser penalty.”  Banez v. Dep’t of Defense, 69 M.S.P.R. 642, 650 (1996). 

When Does the MSPB Mitigate Disciplinary Penalties?

The MSPB mitigates disciplinary penalties when a penalty exceeds the bounds of reasonableness. While penalty selection is generally a matter of federal agency discretion, the MSPB will review a case to ensure that penalty judgment has been properly exercised.  The most typical situation is where a federal employee attempts to mitigate the penalty of removal to something less, like a suspension or demotion action.  

In making that type of determination, the MSPB must give appropriate weight to the agency's primary discretion in maintaining employee discipline and efficiency, recognizing that the Board's function is not to displace management's responsibility but to insure that management discretion has been properly exercised. See Brown v. Dep’t of Treas., 91 M.S.P.R. 60, P 7 (2002). Therefore, the MSPB will only usually disturb the agency's chosen penalty if it finds that the agency failed to weigh relevant factors or that the agency's judgment clearly exceeded the limits of reasonableness. See Toth v. USPS, 76 M.S.P.R. 36, 39 (1997).

In assessing the appropriateness of a federal agency's penalty selection, the most important factor is the nature and seriousness of the misconduct and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or was frequently repeated. See Batts v. Dep’t of Interior, 2006 M.S.P.B. 118, 102 M.S.P.R. 27, P 11 (2006).

The MSPB will modify a penalty when it finds that an agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness.   If a deciding official fails to appropriately consider relevant factors the MSPB does not need to defer to the agency's penalty determination.  And if the MSPB finds the agency's original penalty to be too severe, it may mitigate it to the maximum reasonable penalty. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). The MSPB may also mitigate to the maximum reasonable penalty when the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon the penalty. Cunningham v. USPS, 109 M.S.P.R. 402, P 24 (2008).  

Recent samples of MSPB cases mitigating disciplinary penalties.

Some recent examples of mitigation at the MSPB follow:

1. Judy v. DOJ, 2015 MSPB LEXIS 3508 (2015) (removal mitigated to 7-day suspension where administrative judge found that deciding official had not given bona fide consideration to the mitigating factors existing in  case).

2. Solis v. DOJ, 2015 MSPB LEXIS 4426 (2015) (removal mitigated to 60-day suspension where administrative judge and Board found that the maximum reasonable penalty was a 60-day suspension in light of the appellant's positive performance record, absence of disciplinary history, cooperation during the agency's investigation, and admission of wrongdoing).

3. Seward v. DOD, 2015 MSPB LEXIS 3954 (2015) (removal mitigated to 60-day suspension where administrative judge found that although the sustained charge of sleeping on duty warranted discipline, when weighed against the mitigating factors of the appellant's years of service, his successful performance rating, his medical condition, and his efforts to correct the effects of that condition on his work, the penalty of removal was beyond the bounds of reasonableness).

4. Edmonds v. VA, 2015 MSPB LEXIS 2424 (2015) (removal mitigated to 14-day suspension where administrative judge found that there was no evidence that the offense was intentional, in addition to the fact that the federal employee had 7 years of prior service, an unblemished disciplinary record, good performance and because the agency’s table of penalties appeared to favor a lesser penalty).

5. Davis v. Dep't of the Navy, 2015 MSPB LEXIS 1917 (2015) (removal mitigated to 30-day suspension where administrative judge found that while federal employee had past discipline, that the agency had not proven all of its charges, and the employee held potential for rehabilitation).

Conclusion

When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and representation. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.

Production Requests for Federal Employees at the MSPB

By John V. Berry, Esq., www.berrylegal.com

During the course of a Merit Systems Protection Board (MSPB) appeal it is very important for federal employees to request documents, recordings, video and/or electronic data from their federal gency as part of their discovery efforts. Discovery is the legal process in which a federal employee can legally require a federal agency to turn over information which could be helpful to the federal employee in pursuing a successful MSPB appeal. The federal agency involved also has the opportunity to seek discovery from a federal employee for information relevant to such appeals.    

Types of Documents an Appellant can Seek

There are a number of type of items which can be sought from a federal agency in the course of an MSPB appeal through discovery.  These are generally referred to as “Production of Documents and Things” requests (Production Requests) under 5 C.F.R. § 1201.72 (c).  Production Requests can include requests for copies of relevant electronic mail messages, policies, memorandums, correspondence, audio or video recordings, and copies of investigative reports, when they are relevant to a federal employee’s MSPB appeal.  For instance, in disciplinary actions for federal employees we often request copies of email messages between supervisors or investigators connected with a disciplinary investigation.  Sometimes it may be possible to uncover bias which was the root cause of a disciplinary action (and not the misconduct alleged) or other issues which can be instrumental in defending a federal employee in the MSPB appeals process.

A Few Examples of Production Requests

The following are a few examples of how Production Requests can be used at the MSPB: 

Example 1: Federal employee is removed from federal employment for allegedly assaulting another federal employee in the agency lobby.  

Production Request: A Production Request could include a request for a copy of all videotape footage of the federal agency’s lobby area during the date of the incident, a copy of all statements taken of witnesses to the event (not just those provided at proposed removal stage) and any investigation summary or report prepared.   

Example 2: Federal employee is removed from federal employment based on alleged dishonesty during an investigative interview.   

Production Request: A Production Request could include a request for a copy of any video or audio recordings of the interview, any transcripts made, a copy of all of the questions asked by the investigators, and any summary, notes, emails or documents prepared by the investigator which references the interview.   

Example 3: Federal employee is removed from federal employment for alleged sexual harassment at work.  

Production Request: A Production Request could include a request for a copy of all witness statements taken by investigators as to the alleged sexual harassment, a copy of all recordings made of these interviews, and a copy of all emails generated or received by the complainant which reference the alleged sexual harassment.  

General Thoughts

In general, it is important for a federal employee before the MSPB to take advantage of the discovery process by utilizing  Production Requests.  The amount of information that one can uncover through this process can make all the difference in pursuing a successful appeal.  A federal employee should not be under the impression that they have received all of the information available just because their federal agency had previously provided them wiht documents at the proposal stage (e.g. during a proposed removal).  

A federal agency is only required, during the proposed action stage (prior to a final decision by the agency) to provide an employee with the materials they have relied upon in proposing the action.  This is not the same as providing a federal employee with all important information relevant to the case.  For instance, an agency might provide a federal employee with all of the witness statements that demonstrate misconduct in a proposed removal case, but not other witness statements that are helpful to the employee and disprove the conduct. This is one of the most important reasons that a federal employee should seek information through the discovery process at the MSPB.  

Conclusion

When facing the MSPB discovery process, it is important for a federal employee to have legal advice and representation during the process.  Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Our Facebook page is located at Berry & Berry Facebook Page.