Termination/ MSPB

Federal employees who are terminated may have the right to have their termination reviewed by the Merit Systems Protection Board (MSPB) or a federal court. When you go before the MSPB or to federal court in connection with an adverse employment decision, such as a termination, you should be represented by an experienced and skillful wrongful termination lawyer who can protect your interests as a government employee. A termination can have huge consequences for your career.

The MSPB is not limited to reviewing discrimination, retaliation, or whistleblowing claims. It is authorized to make important decisions about whether government employees’ terminations, demotions, suspensions, removals, or furloughs should stand. It also has jurisdiction over decisions related to a federal government worker’s retirement benefits. To make these decisions about whether a certain employment decision was fair, it interprets and enforces numerous regulations.

There are circumstances under which the MSPB can overturn an adverse employment decision. For example, an adverse decision can be overturned when an employer does not follow certain procedural regulations. Depending on the circumstances, a decision may not stand if an employer did not give appropriate, adequate notice, did not allow an employee to correct performance problems, or did not treat an employee in a fair, consistent way. If an employment decision is substantively unfair or not justified, it also may be overturned.

The MSPB is authorized to hear appeals of certain agency actions under the Civil Service Reform Act. Not all personnel actions can be appealed to the MSPB. When a personnel action arises in connection with a prohibited personnel practice, an employee is allowed to file a complaint with Special Counsel, regardless of whether they can appeal the action to the MSPB. Our attorneys can guide you through this process.

There are numerous prohibited personnel practices outlined under 5 USC section 2302(b). A person with the authority to take, tell others to take, recommend, or approve a personnel action is not supposed to discriminate for or against a job applicant or employee based on race, color, religion, sex, national origin, age when an employee is 40 or older, handicapping conditions under the Rehabilitation Act of 1973, or marital status or political affiliation as prohibited under any regulation, rule, or law.

Government officials with authority over employment decisions are also not supposed to ask for or consider recommendations with regard to an individual unless the recommendation is based on that person’s personal knowledge or records and includes work performance evaluations, ability evaluations, aptitude evaluations, or general qualifications, or an evaluation of an individual’s suitability, loyalty, or character. In other words, a federal government employer should not terminate your employment because you are black, because you are a woman, or because you are married or unmarried.

There are numerous other prohibited personnel practices. For example, government officials with authority over employment decisions are not supposed to coerce political activity by anyone or take an action against a job applicant or employee as a reprisal for their refusal to be involved in political activity.

Under some circumstances, if you believe that you have been a victim of a prohibited personnel practice, you may be able to bring your claim directly to the MSPB. The MSPB can hear and decide appeals from terminations and other adverse actions. If the agency takes an appealable action against you, and the MSPB has jurisdiction to hear an appeal from someone of your eligibility, it also can consider a claim that the action was taken for a prohibited reason. That type of claim is considered an affirmative defense to the agency’s decision. This means that even if the agency establishes its action by the requisite standard of proof, the termination might not be sustained if you can show that it took the decision based on a prohibited personnel practice.

The question of whether you should go before the MSPB can be complicated. If you are a federal employee who is considering taking this step, you should discuss your situation with an experienced employment attorney. We represent people in Dallas and other cities in Dallas, Collin, Denton, Tarrant, Rockwall, and Ellis Counties. Call us at (214) 528-6500 or complete our online form.