MSPB Changes Stance on
Firm Choice Settlements
By Steve Burt
Director of Education
Michigan State Association of Letter Carriers
The Merit systems Protection Board has made a very troubling reversal of policy
on its traditional position with regard to accommodating federal employees with
alcohol and drug problems. This policy change is in concert with similar EEOC
policy modifications following passage of the Americans With Disabilities Act and
the 1992 revision of the Rehabilitation Act, which covers federal workers and now
relies on the ADA for much technical definition.
In the 1993 U.S. Merit Systems Protection Board Annual Report, under the heading
of Discrimination/"Handicapped" Employee - Accommodation, the concept of granting
employees with alcohol or substance abuse problems a "firm choice"
of effective
treatment or initiation of removal proceedings is presented.
Failure to offer accommodation through extension of a "firm choice" stipulation
In this decision, the Board explained the requirement that an agency provide
was historically
deemed to be handicap discrimination, as shown in the following review
from the MSPB Harris decision, but please also review the Harris, Kimble, and Martin
decisions which follow, indicating the policy shift on this subject:
Harris v. Department of the Army, NY-0752-90-0047-1-1, 57 M.S.P.R. 124 (1993)
a "firm choice" to employees handicapped by drug or alcohol abuse. To do so,
the agency must offer the appellant an unequivocal choice between effective
treatment of his condition and the initiation of removal proceedings if he
chooses not to participate in a treatment program, ceases his participation in
such a program, is discharged before the program's completion, fails to adhere
to its terms, or engages in alcohol- or drug-related misconduct or has alcohol-
or drug-related performance deficiencies after completing the program. Failure
to provide a "firm choice" would constitute handicap discrimination if the
appellant shows that he is a handicapped person and that his misconduct was
caused by his substance abuse handicap. (Vice Chairman Parks issued a
dissenting opinion.)
Kimble v. Navy, SF0752950404I1 (6/11/96)
HOLDING: As a result of the ADA and subsequent amendments to the
Rehabilitation Act, agencies are no longer required to provide the
accommodation of firm choice to alcoholics before imposing discipline,
even for alcohol-related misconduct; cases to the contrary were overruled;
allegations of disparate treatment and certain other forms of claimed
accommodation are still subject to review by the Board and EEOC; the Board
must follow the EEOC's findings based on discrimination law where they
conflict with the Board's in a particular case; it is appropriate to defer to such
legal findings even where they were not made in the same appeal; a
settlement is not involuntary as a result of the failure to offer a firm choice;
nor may the Board hear claims on the merits of a discrimination claim if it
lacks jurisdiction over the appeal as a result of that settlement.
Martin v. DOD, PH0752950436I1 (6/12/96)
HOLDING: Regardless of the possibility that a settlement's waiver of
discrimination appeal rights to the EEOC may not be enforceable, the validity
of the waiver of Board appeal rights is unaffected; claims of discrimination are
affirmative defenses to the merits of an appeal and cannot be considered in
the absence of jurisdiction resulting from a settlement agreement's waiver of
appeal rights....Finally, on the basis of Kimble, above, the Board found that
any failure of the agency to abide by previously-set rules as to the offer of a
firm choice is of no effect on the appeal, since a firm choice is no longer
required and the Board lacks jurisdiction over the
appeal.
The MSPB policy shift in no way prohibits federal agencies and their unions from
negotiating last chance settlements where appropriate. Their continued use by the
Postal Service and its
unions would serve everyone's best interest.