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Melville Johnson Blog

Recent Updates

Discrimination Based on Disparate Impact

Though it comes with unique difficulties and limitations as compared with other theories of discrimination, one of the ways in which a federal employee can make a case of discrimination is by showing disparate impact. A disparate impact claim must be brought separately from a disparate treatment claim.
MJPC
December 31, 2020
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Granting Preferential Treatment

To sustain this charge, the Agency must establish that: (1) the employee had authority to take personnel actions; (2) the employee purposefully took or refused to take a personnel action as a way of giving preference to another individual or to improve the individual’s prospects for employment; and (3) the preference was unauthorized by law, rule, or regulation. Martin and Wallace v. Dept. of Commerce, 106 M.S.P.R. 23 (2007).
MJPC
December 31, 2020
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Sexual Misconduct Charge

Sexual misconduct is often charged as “Abusive, Offensive, Indecent, Disgraceful, Disrespectful, Insolent, or Inflammatory Language” or as “Conduct Unbecoming.” The Merit Systems Protection Board (“MSPB”), however, often has drawn distinctions between using profanity or vulgar language and sexual harassment. Sexual misconduct charges typically come up in situations where a federal employee is accused of instances of sexually inappropriate conduct or words toward his/her colleagues.
MJPC
December 31, 2020
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Disorderly Conduct

Federal agencies, like other employers, try to maintain a work environment free from disruptions so that they and their employees can effectively carry out their missions. If the agency determines that an employee is disrupting the work environment, the agency may try to remove or otherwise discipline that employee for Disorderly Conduct.
MJPC
December 31, 2020
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Obtaining an Overpayment Waiver

Sometimes the federal government makes the mistake of overpaying federal employment benefits, such as retirement annuities, to a recipient. In these scenarios, the federal government will attempt to force overpayment recipients to repay what was overpaid. In this kind of situation, the recipient can request an overpayment or debt waiver within thirty (30) days of the date of the notification letter. This process is typically handled by the Office of Personnel Management (“OPM”).
MJPC
December 28, 2020
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Failure to Complete Training

To charge a federal employee with a Failure to Complete Training, the Agency must show: (1)there is an agency training program in place; (2) as a condition of employment ,the employee is required to complete training program requirements; (3) the employee failed to complete the training program or a part of the program required for advancement to the next part of the program; and (4) the agency provided all required training or that the there was no connection between training that it failed to provide and the employee’s failure to complete training.
MJPC
December 28, 2020
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Indefinite Suspensions

An indefinite suspension is where an employee is placed on a temporary status without duties and pay pending an investigation, inquiry, or further agency action that only ends after an investigation, inquiry, or other agency action. An indefinite suspension that lasts more than fourteen (14) days is appealable to the Merit Systems Protection Board (“MSPB”). 
MJPC
December 28, 2020
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Sexual Orientation Discrimination as a Form of Gender Discrimination

For decades since the passage of Title VII of the Civil Rights Act of 1964, discrimination on the basis of sexual orientation was not considered a form of sex or gender discrimination. This unfortunately left many individuals, particularly lesbian, gay, bisexual, and transgender individuals open to discrimination and harassment in the workplace, including at federal agencies.
MJPC
December 28, 2020
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How to Stop OPM from Robbing the MSPB of Jurisdiction

So you have decided to appeal an unfavorable decision from the Office of Personal Management (“OPM”) to the Merit Systems Protection Board (“MSPB”), when OPM rescinds its final decision and moves that the MSPB dismiss your appeal for lack of jurisdiction to make you start over again.
MJPC
December 28, 2020
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The Consequences of Wrongful Classifications

As is the case with private-sector employees, federal employees can be misclassified. This occurs more often in the federal sector than you would think, but takes a different and more complex form than in the private sector. Misclassification can have major ramifications for pay, benefits, and career advancement within the federal government.
MJPC
December 28, 2020
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Abusive, Offensive, Indecent, Disgraceful, Disrespectful, Insolent, or Inflammatory Language Charge

In order to prove the Charge of Abusive, Offensive, Indecent, Disgraceful, Disrespectful, Insolent, or Inflammatory Language at the Merit Systems Protection Board (“MSPB”), an agency must prove by preponderance of evidence that the employee: (1) made certain comments; and (2) the comments were abusive, insolent, or offensive. 
MJPC
December 28, 2020
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Reprisal (for Whistleblowing)

This charge is usually brought against a supervisor or a manager at a federal agency for taking retaliatory actions against an employee because the employee previously made a protected disclosure. Such a charge can be brought on individually, by the Office of Special Counsel (OSC) or by a Federal Agency.
Melville Johnson
October 29, 2020
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