Retiring “Under Protest”

The Dept. of Energy initiated an adverse action against an employee what was not physically able to perform his job. The employee elected to retire “under protest” and filed an appeal. He will apparently continue to be a retired federal employee.

A recent federal appeals court decision illustrates what can happen when a federal employee is found not medically fit for duty. (Alley v. Department of Energy, No. 2006-3155 (non precedent), 7/13/06)

Mr. Alley, a lineman with Department of Energy, had several claims for on-the-job injuries over the years. The latest injury led to placing him on certain medical restrictions that kept him from doing lineman duties. Not surprisingly, the agency ordered up a fitness-for-duty exam. The doctor identified several tasks that are required of a lineman that Alley was not medically permitted to do on a permanent basis.

Since he was not fit to perform the essential requirements of his position, DOE initiated adverse action and ultimately decided to remove Mr. Alley from his job. He elected to retire “under protest.” (Opinion, p. 2)

Alley filed an appeal with the Merit Systems Protection Board seeking to set aside his removal.

Basically, the case turned on the medical evidence presented by the DOE doctor, which the Board found persuasive. When he found no sympathy at the Board, he took his case to the Federal Circuit Court of Appeals. Since “the Board’s decision is supported by substantial evidence,” the court affirmed. (p. 6)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.