February 2000

Our Regular Reminder

This is a reminder to all our union clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, on-site visits and filing and processing of unfair labor practice charges. Please do not hesitate to contact us if you would like to have one of us conduct training, meet with employees or review a case for arbitration or MSPB. We are also just a phone call or a fax away if you need help or feedback researching any legal issue on federal sector employment.

Excepted Service Appeal Rights

The Federal Circuit on December 15, 1999, issued a favorable decision for excepted service employees wishing to appeal to the MSPB. Ever since the law granting these employees appeal rights was passed in 1991, the MSPB has taken the position that an employee serving during a "trial period" cannot appeal a separation to the MSPB, even if she has been working more than two years. The Federal Circuit reversed the Board, finding that an excepted service employee gains appeal rights by serving more than two years in the same position, even if she is serving a trial period (such as a student trainee). Van Wersch v. Dept. of Health and Human Services, No. 983372 (Fed. Cir. 1999).

New Regulations

The Office of Personnel Management has issued miscellaneous changes in compensation regulations at 64 Fed. Reg. 69165 (Dec. 10, 1999). The regulations cover pay retention, standby pay, severance pay and back pay. By and large, the regulations clarify existing policy. Clients with questions are invited to contact us.


The General Services Administration issued a final rule on mandatory use of government credit cards for travel at 65 Fed. Reg. 3054 (Jan. 19, 2000). These regulations provide for agencies to exempt employees from mandatory use of the government credit card in limited circumstances. The regulations also require agencies to pay employee travel vouchers within 30 days after submission. GSA was asked to provide guidelines on appropriate disciplinary action for misuse of government credit cards but refused to do so, saying these decisions are best left to individual agencies.

EEO Developments

The "adverse action" doctrine marches on in the federal courts. Under this doctrine, many courts have been dismissing EEO complaints on the basis that the action taken against the employee was not serious enough to allow a lawsuit to be filed. The D.C. Circuit has extended this doctrine to federal employees in Brown v. Brody, 81 FEP Cases 1161 (D.C. Cir. 1999). The employee claimed she was transferred to another job in the same office due to race and sex discrimination. The court dismissed the case on the basis that she had lost no pay or benefits.

In a more encouraging development, the D.C. Circuit in Cones v. Shalala, 38 GERR 128 (D.C. Cir. 2000) ruled that a federal employee alleging the discriminatory denial of a promotion does not have to show that the position was filled through a promotion action. The agency had decided not to fill the position competitively and instead selected a non-minority candidate through lateral transfer. The court said "it matters not whether the person ultimately selected was promoted to that position, hired from a pool of outside candidates, or, as in this case, laterally transferred. " The fact that the plaintiff was denied a promotion was sufficient.

Another D.C. Circuit case shows how important it is for disabled employees to provide medical support for their claims. In Flemmings v. Howard University, 10 AD Cases 10 (D.C. Cir. 1999) the employee requested a schedule change so she could carpool with her husband since she suffered from dizzy spells. The court found that the employer did not violate the ADA because the employee had not furnished enough information to justify her need for the accommodation from a medical standpoint.