PRACTICE AREAS

M.S.P.B./Discipline

Maryland/Washington, DC and Nationwide services, M.S.P.B./Discipline Lawyer

Our firm has handled Merit Systems Protection Board cases for federal employees all over the United States. We have successfully defended federal employees who have been issued proposals to suspend, proposals to remove or proposals to be demoted to a lower grade. Fighting discipline is critical for successful federal career paths.

It is absolutely critical for a federal employee to have an attorney that regularly litigates these actions, has a fundamental understanding of the MSPB system and the knowledge of the most important factors decision makers weigh in deciding appropriate discipline. If you're a federal employee with an attorney that you get the feeling lacks true command of your case or fully doesn't understand your case, chances are, you're probably right. We appreciate the importance of protecting your career with the federal government and the M.S.P.B. process.

MSPB/ Federal Employee Discipline Cases- Sample Results

Melkus v. Department of Health and Human Services, M.S.P.B. Denver Field Office, Case No: DE-0752-10-0160-I-1

Tommy Melkus, a resident of Billings Montana was wrongfully terminated by the Department of Health and Human Services when he answered a directive from Secretary Head, Kathleen Sebelius, asking for suggestions to improve the agency. Mr. Melkus suggested that the department abandon its policy of Native American hiring preference. Mr. Melkus' comments were sharp and to the point and meant no long term racial animus in his comments. Mr. Melkus had a long standing history of tolerance for Native Americans, as he had been married to a Native American for a number of years and has two children that are Native Americans. The agency however claimed that Mr. Melkus could not carry out the agency's mission of racial tolerance.

The case represented a severe over reaction by the Health and Human Services agency which infringed upon Mr. Melkus' rights to free speech. He threatened no one and didn't place a single Native American or any other employee in any form of hostility. After the agency continually denied any wrong doing in terminating Mr. Melkus, on the day of hearing, at the EEOC building in Billings, Montana, the agency reached a confidential settlement agreement with Mr. Melkus and his attorney, Morris E. Fischer, Esq.

Our firm feels privileged to have represented Mr. Melkus on this case. Free speech is the cornerstone of liberty. For a federal employee to be terminated because of it, shuts down all logical and intelligent debate which may be necessary to move our nation forward. We are very grateful for Mr. Melkus for entrusting this matter with our law firm.

Client Testimonial

"I'm very pleased with the settlement agreement. In my mind, this agreement effectively clears my name of any wrongdoing and ends a dark chapter in my life. I'm also very grateful to Morris Fischer, Esq., who represented me on this case, was on top of my file and was very prepared for the hearing. I was so glad to see Mr. Fischer, who personally traveled from the Washington, DC area all the way to Billings. He made me feel confident and self assured that we were in the right."

Tommy Melkus
Billings, MT

Yvonne Glover v. U.S. Department of Veterans Affairs, Matter No. 558/05
Yvonne Glover v. U.S. Department of Veterans Affairs, Case # 1:10-cv-00007-LJB

Our client, Ms. Yvonne Glover, a U.S. Department of Veterans Affairs ("VA") registered nurse, was wrongfully terminated for alleged patient abuse, when Ms. Glover removed a patient's clothing and forcibly removed the patient to a seclusion room. We challenged the removal pursuant to 38 U.S.C. §7462(c) and we obtained a two day trial before the VA's Disciplinary Appeals Board. Trial testimony revealed that Ms. Glover committed no such abuse and that she was instrumental in actually saving the patient from a potential suicide attempt.

The VA delayed making a decision on this matter; and as such, our office then filed a claim against the VA in the United States Court of Federal Claims, for refusing to issue a decision. Soon after the federal court complaint was filed, the VA correctly ruled for Ms. Glover. The agency awarded her full reinstatement, complete back pay and provided her with an attorney fee application to recuperate her attorney fees. The discharge was ordered to be removed from her personnel file. The case was tried by Morris E. Fischer, Esq., in Durham, North Carolina.

Client Testimonial

I can't say enough good things about Morris E. Fischer, Esq., I got justice. My first attorney didn't do anything. Morris was very aggressive. His cross examination at trial of my supervisors was extremely intense, full of passion and strategic. One supervisor who perjured herself, "voluntarily" left the agency, shortly after the trial. I finally got to witness people who made me feel like a criminal, get put in their place.

Yes- I would highly recommend this office. In fact, I can't think of another law firm I would recommend for wrongful termination claims against the government. I got my name cleared from something I didn't deserve. Morris Fischer was worth every penny I paid him. He fought very hard for my case and his firm's professionalism and organization showed its true colors during my trial."

Yvonne Glover
Durham, North Carolina

Frequently Asked Questions

What does the M.S.P.B. consider in employee termination decisions?

There are twelve factors determining the appropriate discipline for Federal employees as articulated in Douglas v. Veterans Admin, 5 M.S.P.R. 280 (1981). These factors consist of the following:

• nature and seriousness of the offense;
• employee's job level and type of employment;
• employees past disciplinary record;
• employees past work record;
• effect of the offense upon the employee's ability to perform at a satisfactory level and it's effect upon a supervisor's confidence in the employee's ability to perform assigned duties;
• consistency of the penalty with those imposed upon other employees for the same or similar offenses;
• consistency of the penalty with a table of offenses;
• notoriety of the offense or its impact upon the reputation of the agency;
• clarity on the employee was on notice of the rules that were violated;
• potential for rehabilitation;
• mitigating circumstances; and
• adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

What are the factors the government uses during the M.S.P.B. process to determine the actual disciplinary charge to be given to a federal employee?

The charging process is deceptively critical. It looks pretty straightforward when the federal employee receives his or her notice to remove or other disciplinary letter. However, one of the favorite government tricks when an M.S.P.B. litigation starts, believe it or not, is at the charging stage of the case.

It's important to understand that a federal employee can be charged very differently for the same conduct. For example, a federal employee accused of physically assaulting a co-worker can be charged with assault and battery or improper conduct. The difference in these charges pertains to first, the elements of each charge, to which the government must prove were committed by the Federal employee and second, the range of penalties for that offense.

With respect to an assault case, the government will typically have to prove some form of a willful attempt or threat to inflict bodily harm. If that can't be proven, an Administrative Law Judge cannot find for the government agency and against the federal employee on the charge of assault. However, improper or disorderly conduct requires the government agency prove only that the federal employee engaged in disruptive and inappropriate conduct: a much lower threshold of proof.

The range of penalties for these two offenses can and should differ greatly depending on the agency. For example, the National Institutes of Health, otherwise known as NIH, lists the following as appropriate discipline for each of these offenses.

This table demonstrates that the penalties for assault are considerably more severe than for disorderly conduct. So here's what the government will typically do to a federal employee. They will charge the federal employee with disruptive conduct, not assault or fighting because the government agency will be unable to prove the stricter elements of the more serious charge. However, during the course of the M.S.P.B. litigation, government lawyers will attempt to convince the Administrative Law Judge that the alleged federal employee's conduct was so violent and dangerous, that it warrants the most severe penalty, that of removal.

The way to beat this is for the M.S.P.B. lawyer from the start of the litigation to take a deposition of the charging official and ask that official under oath about the nature of the offense. Specifically, if the conduct was so violent and dangerous then why wasn't the federal employee charged with assault? Inevitably, the charging official will not have a good answer to this question. This shows up at closing statement time at the M.S.P.B. trial, wherein the M.S.P.B. lawyer should argue that whatever the government proved the federal employee did, the government's own charging official basically conceded that it wasn't as severe as the government lawyers have made it out to be at trial. This may be the difference in the employee winning the M.S.P.B. hearing to the extent that he or she will not be wrongfully terminated.

I just received a scheduling order on my MSPB case, what steps should I take?

The M.S.P.B. scheduling order is an extremely important document. It lists the deadlines for various important events in the case and the rules for the litigation that are ongoing. Administrative Law Judges have the power, and it's not uncommon, for them to dismiss a federal employee's M.S.P.B. case for the federal employee not following the rules of the acknowledgement order.

Discovery, which is the information gathering stage of the case, is a process that can be the difference maker in prevailing or not prevailing in a federal employee M.S.P.B. case. For example, one of the Douglas factors as described above is the manner in which the discipline penalty has been administered by the government agency to other federal employees similar to the federal employee who is being currently charged. The M.S.P.B. lawyer during discovery has the opportunity to demand that the federal agency produce all records of other discipline given to other federal agency employees for the same conduct being charged now. Failing to request these records in a timely manner and failing to make the necessary motions when the government withholds these important documents can be a fatal flaw in the federal employee's M.S.P.B. case. The acknowledgement order contains many of these rules regarding this process. It should be immediately shown to an M.S.P.B. lawyer at the initial consultation.

Can You Tell Me About A Recent Successful M.S.P.B. Result Handled By Your Office?

Texeira v. United States Postal Service, 2008 U.S. App. LEXIS 4335 (Fed. Cir. Feb. 28, 2008), was a case recently decided in our favor. The case is an excellent example of the Administrative Law Judge's failure to satisfactorily apply the Douglas factors. Ms. Texeira was charged with Falsification in Recording Time and Failure to Follow Proper Timekeeping Procedures. The U.S.P.S. was able to prove the second charge only, yet the Administrative Law Judge believed the Postal Service's deciding official, who contended that he would have given the same discipline had both charges been proven, even if the lesser of the two charges was the only one upheld. The case was affirmed by the Merit System Protection Board. Following that event, Ms. Texeira from Modesto, California retained our office to appeal to the Federal Circuit Court of Appeals. To read the decision, click here.

In what ways does litigating against the Federal government differ from litigating against a typical company in an employment matter?

The government has unlimited resources, including an unlimited supply of attorneys who are in a position to ignore virtually all economic principles that the rest of us have to live by. Even large law firms who are retained by large companies to defend them in lawsuits are typically under some kind of budgetary constraint. Their clients can be very demanding as to the efficiency of the financial aspects of the case. The government has none of this.

Particularly when litigating against the government at the federal court level, you can face multiple attorneys who take different positions on the same issue. For example, we had a case where one government lawyer asked for an extension in exchange for a commitment to send to our office certain discovery documents. Another government lawyer on the same case then called our office to negotiate the same extension without sending the documents.

The government will send multiple attorneys and multiple positions at whomever is litigating the other side of the case. If that lawyer doesn't do a good number of M.S.P.B. cases, and hasn't seen this before, the federal employee could be disadvantaged. The difference in a successful or unsuccessful result in an M.S.P.B. case sometimes isn't much.

At our office, we've had extensive experience in litigating against the federal government on behalf of federal employees. It is our fundamental belief that every federal employee has the right to a fair hearing and proper application of the Douglas factors. Careers are very important and should be taken seriously. At our initial no-cost consultation, we'll review with you the critical facts in your M.S.P.B. case. We'll help you identify necessary witnesses and set forth a litigation plan that will make your agency deal with the veracity of the charges against you and whether the discipline proposed was reasonable in light of the law. Call us today at (800) 209-2608 for your free consultation today.