Prior to terminating a federal employee, the agency for which that employee works will issue a proposed removal letter which outlines the basis for the removal and the employee's rights to appeal. The employee will have the opportunity to respond in writing and/or orally to the proposed removal. This is an opportunity that should be seized upon. In addition, to disputing the facts underlying the proposed removal, thae response should also contain an analysis of the Douglas Factors. Douglas Factors are criteria the agency must take into consideration when rendering an adverse employment decision, such as a removal action. Merely disputing the facts involved in the proposed removal, will likely not do much to sway the agency's decision. However, a response containing a well thought out analysis of the Douglas Factors and taking into consideration the agency's table of penalties may very well prevent the removal from being upheld
EEOC vs. MSPB
If a removal is upheld, then there are routes for appeal. Many federal employees immediately think that the appropriate venue for an appeal is the Equal Employment Opportunity Commission (EEOC). The EEOC is only for appealing adverse employment actions arising due to discrimination. This means that the reason for the adverse employment action was based on the employee's belonging to a protected class (race, gender, age, etc.). This is often incredibly difficult to prove. Moreover, the EEOC investigation and litigation process takes years to resolve. Most federal employees seeking to appeal an adverse employment action would benefit by taking their case to the Merit Systems Protection Board (MSPB). The MSPB reviews appeal of removals, suspensions over 14 days, and other types of adverse employment actions. In addition, the MSPB typically processes cases in 120 days, so it is a much faster and more efficient route of appeal than the EEOC.
Costs of Litigation vs. Settlement
Failure to address a removal as a federal employee can have long lasting and severe consequences. For example, it becomes very difficult to get another job either in the federal government or elsewhere when the removed employee's SF-50 says removal on it. Therefore, steps should be taken to appeal the decision. That said, it is important to not get overly emotional about the removal or think that you will be able to sue the terminating agency for millions of dollars. Sometimes the best course of action is to settle a matter to recover damages for what losses have actually been incurred and to clean up the personnel file so that it becomes easier to obtain employment elsewhere. In sum, engaging in an appeal can be the right decision, but it should be undertaken from a very logical point of view to ensure resources are not wasted in litigation for which the desired result is unlikely.
Retain Knowledgeable and Experienced Counsel
Appealing federal employment matters is difficult. The law in this area is complex, the government has tremendous resources to fight the appeal, and the procedures can be very intimidating for someone unfamiliar with how the appeals process works. As such, it is a wise idea to retain a lawyer to assist you in your federal appeal, particularly one who has handled these types of appeals before and can successfully navigate you through the process.
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