Perception 1
It is impossible to fire a Federal employee.
Reality: From FY 2000-2014, over 77,000 full-time, permanent, Federal employees were discharged as a result of performance and/or conduct issues[1].
Perception 2
Agency leaders have no authority to serve as proposing or deciding officials in title 5 adverse actions.
Reality: Title 5 empowers the agency to take an adverse action. If agency leadership chooses to delegate the proposal or decision authority to lower levels, then it cannot interfere with the decision-making process of those delegees. But, prior to the assigned decision-maker’s involvement in a particular case, current statutes permit delegations to be abandoned or modified at will by the agency[2].
Perception 3
There are no legal barriers to firing an employee in the private sector.
Reality: Many of the laws that apply to removing employees in the Federal civil service also apply to private sector employment or have a similar counterpart, such as the Civil Rights Act of 1964 (Title VII – Equal Employment Opportunity), and the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), both of which permit private sector employees to pursue litigation[3].
Perception 4
An agency must pay a salary to an employee who has been removed until any appeal has been resolved.
Reality: An employee is not paid while appealing his/her removal to MSPB. If the action is found to have been unwarranted, then reinstatement and back pay may be awarded. But, there is no pay while removed[4].
Reprinted from Issues of Merit, a publication of the Office of Policy and Evaluation, U.S. Merit Systems Protection Board.
[1] Analysis of data from U.S. Office of Personnel Management, Central Personnel Data File (CPDF), FY 2000-FY 2014.
[2] Goeke v. Department of Justice, 122 M.S.P.R. 69, ¶ 23 (2015); see Boddie v. Department of the Navy, 827 F.2d 1578, 1580 (Fed. Cir. 1987); Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (2011); 5 U.S.C. § 7513.
[3] See 38 U.S.C. §§ 4301-4333 (USERRA); Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, § 706(e)-(g) (authorizing discrimination litigation in Federal courts).
[4] See 5 U.S.C. § 5596 (b)(1)(A).