Federal Manager's Daily Report

A federal appeals court has rejected the bids of three employees to pursue for a second time a claim that agency management created a hostile work environment, after an earlier ruling against them.

Managers commonly complain that the federal personnel appeals system allows for “second bites at the apple” that prolong such disputes, consuming more of their time–and in some cases act as disincentives against taking disciplinary actions.

The MSPB recounted that its hearing officer consolidated the cases and found that the employees had failed to prove that management had subjected them to a hostile work environment in violation of the Uniformed Services Employment and Reemployment Rights Act. Each ultimately resigned and then filed separate appeals, arguing that a hostile environment had compelled them to resign. Hearing officers and the full merit board rejected the cases on grounds that the underlying claims already had been decided.

In doing so, the MSPB overturned its prior precedent that had said that “an earlier decision that the individual did not prevail on the merits should not preclude a finding that he made a nonfrivolous allegation establishing jurisdiction in a subsequent appeal,” as an MSPB summary put it.

The Court of Appeals for the Federal Circuit upheld the board’s new policy of barring second appeals where the same issues already have been decided.