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Kenneth R. Hammond, a file clerk at the Veterans Affairs Department hired May 18, 2003, under a one-year probationary period, was fired April 24, 2004, for having a "disrespectful attitude and conduct."

In an appeal to the Merit Systems Protection Board, Hammond - who says he is a 40 percent disabled veteran and a member of the National Guard - argued that the agency fired him for his disability and retaliated against him for complaining to the union when he was not allowed to leave to attend National Guard drills.

"There were days when I needed to leave early because of the pain," Hammond said in his petition. "I also feel that my disability was part of the reason for my termination ... I have been through several surgical procedures and different pain management systems since 1997."

The MSPB court documents state that it is unclear whether Hammond served in the military.

An MSPB administrative judge told Hammond that the board might not have jurisdiction over his claim because he is a probationary employee with less than one year of service. The judge ordered Hammond to file evidence that his appeal was within the board's jurisdiction, which he failed to do.

After the administrative judge dismissed the appeal for jurisdictional reasons, Hammond appealed to the MSPB board, who sent the case back to the administrative judge because the case involves discrimination claims under the 1994 Uniformed Services Employment and Reemployment Rights Act, which could put the case under MSPB's jurisdiction.

The board found that the administrative judge erred by dismissing the case without telling Hammond of the requirements of the act in establishing jurisdiction.

Kenneth R. Hammond v. Department of Veterans Affairs, Merit Systems Protection Board, AT-315H-04-0609-I-1, March 29, 2005.

No More Telework

Deborah A. Deines, an Energy Department employee in the state of Washington, was allowed by her agency to transfer to an office closer to her home and telework part-time after she was injured twice while on the job.

But about three years after the injury, Deines' telecommuting arrangement was terminated by the agency, and she was told to return to work at her original office in Portland, Wash., in March 2002.

Deines, a GS-12 human resources specialist, appealed to the agency's reasonable accommodation coordinator about switching to a different position that would allow her to work around her disabilities, which were a result of her injuries. Deines maintained that positions were available, but she was not reassigned.

In December 2002, a supervisor was told that Deines would be removed unless she returned to her original office, and a human resources official told Deines to submit an application to the Office of Personnel Management for disability retirement.

Her application was accepted, and she was removed from her position April 5, 2003.

According to Deines, the retirement was involuntary and she was misled by the human resources official to believe that if her application for retirement was approved by OPM, she would be given the choice to continue working.

A Merit Systems Protection Board administrative judge dismissed Deines's appeal without holding a hearing for lack of jurisdiction, and because "the agency was not obliged to accommodate the appellant by permanently assigning her to light-duty tasks that do not constitute a complete and separate position."

In an appeal to an MSPB panel, Deines' case was sent back to the regional office for a hearing on the MSPB's jurisdiction to hear the case.

Deborah A. Deines v. Department of Energy, Merit Systems Protection Board, SE-0752-03-0257-I-1, March 31, 2005.

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