A Successful Performance-Based Removal Under Chapter 75

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By Deborah J. Hopkins, August 12, 2024

Quick facts:  

  • Most executive branch agencies have the flexibility to remove employees who have performance failures under either Chapter 43 or Chapter 75 of the Civil Service Reform Act (CSRA).
  • If an agency has a policy that requires something beyond what the law requires, the agency must follow its own policy, or its action will be set aside.
  • If an agency meets the requirements of a traditional Performance Improvement Plan (PIP) without identifying the process as such, it can still show that the legal requirements for a performance-based action have been met.

We’ve long taught in our classes that performance-based removals under Chapter 43 were intended to be fast and easy under the CSRA. After all, the burden of proof is only substantial evidence, a “reasonable” opportunity to demonstrate acceptable performance should not exceed 30 days, and supervisors have broad discretion in assessing employees on subjective performance standards.

Over the years, though, some agencies have made it more difficult through self-imposed hurdles, such as:

  • Requiring a pre-PIP before implementing a PIP.
  • Negotiating a long PIP (90 or 120 days) into a union contract.
  • HR advisers telling supervisors (incorrectly) that they need much more evidence to implement a PIP than is actually legally required.

One of the approaches we at FELTG occasionally suggest is to handle a performance issue under the misconduct procedures in Chapter 75. This is a perfectly legal approach, and, in certain circumstances, it makes more sense than using the Chapter 43 procedures. See Lovshin v. Navy, 767 F.2d 826, 843 (Fed. Cir. 1985) (en banc).

A recent MSPB case involved an agency that removed an employee in exactly this manner. Gist v. DOD, DC-0752-18-0614-I-1 (Jun. 12, 2024)(NP). Here are some relevant facts:

  • The appellant, a GS-15 senior accountant, received his annual performance appraisal with a summary rating of “Not Met” because his performance was unacceptable on two critical elements: “Teamwork” and “Support of Mission.”
  • The agency proposed his removal under 5 U.S.C. Chapter 75 based on a charge of “Duty Performance at the ‘Not Met’ Level,” with a specification that said “the appellant ‘failed to create an overarching financial reconciliation [Standard Operating Procedure (SOP)] and to monitor reconciliation activity on a regular basis’ as he had been directed to do … and he ‘failed to effectively work well with others to get the job done.’” at 2.
  • He appealed his removal, claiming, among other things, that the assignment of the SOP was improper because he lacked the necessary background to complete it, that the assignment was vague and improper, and that he was given inconsistent instructions on how to actually complete the SOP.
  • The AJ and the Board disagreed with the appellant and found the agency’s assignment was proper, that the appellant was unnecessarily causing tensions within the team, and that the agency proved its charge.

The appellant also argued that because the agency claimed he had performance issues, he should have been given a PIP, and that “if the agency had followed the prescribed [PIP] procedures, he would have improved his performance, and the entire removal action would have been avoided.” Id. at 7.

Which brings up another interesting point. An agency is not required to give a PIP in order to remove an employee for unacceptable performance under Chapter 75 – unless it has a policy that says it must.

So, in effect the Board agreed with the appellant about the entitlement to a PIP period, relying on the following:

DOD Instruction No. 1400.25, § 3.9.b explicitly acknowledges that a performance-based action can be taken under either authority (Chapter 43 or 75), and it provides without differentiation that, if an employee’s performance declines to an unacceptable level, the supervisor must inform him of the deficiency and provide him assistance to help him improve his performance during an opportunity period to demonstrate acceptable performance. Although this is not normally required in a Chapter 75 performance-based action … the agency here has imposed this additional requirement on itself and is, therefore, bound to follow it… We find that the agency followed its requirements as stated in DOD Instruction No. 1400.25, § 3.9.b for taking a Chapter 75 performance-based action. (bold added, internal citations omitted)Id. at 8.

However, the Board also found that while the agency did not put the employee on an official PIP, it met its own policy requirement, because:

  • The supervisor informed the appellant of his performance deficiencies during his midyear performance evaluation, a full 4 months before the agency proposed the appellant’s removal;
  • The agency provided the appellant with ample time to bring his performance up to standards; and
  • The appellant’s supervisor met with him every other week about the SOP assignment, which satisfied the obligation to assist the appellant in improving his performance.

Because the agency afforded the appellant all the procedural protections that the DOD rule required for performance-based actions under chapter 75, the Board upheld the removal.

I discussed this case with FELTG founder Bill Wiley. I asked if he had any additional thoughts, and he shared the following:

Although the agency was successful in defending its removal of an unacceptably performing employee by using 752 procedures instead of 432 procedures, it gave itself two significant extra burdens. First, it had to defend the penalty selection of removal under Douglas. That means that it had to produce proof of the agency’s proper consideration of the Douglas Factors as well as proof of the facts alleged in the Douglas Factor analysis. Second, it had to do all this proving at the preponderant level (51%+ of the evidence) rather than at the substantial level (40%+) that is used for 432 removals. Yes, certain types of unacceptable performance situations are better addressed through use of the 752 procedures, e.g., a single act of highly harmful unacceptable performance. However, as a general rule, here at FELTG, we still recommend 432 procedures as a first and primary consideration when faced with a non-performer.

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The Good News: Reassignments Can Work for Everyone!

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By Ann Modlin Boehm, August 12, 2024

Quick facts:

  • Most people end up in a job they don’t like at some point in their careers.
  • Many of those people are afraid of change and typically choose to just stick it out in the unhappy job situation. This can sometimes lead to performance and attitude problems.
  • Reassigning an employee doesn’t have to mean dumping a problem on another manager.

Have you ever been in a job you do not like? I hope the answer is not, “Yes, my current one.” But it could be. If you have ever been in a bad job, you know it is not a fun situation.

Being in the wrong job makes for very long days. The work can be daunting and exhausting. Very often, your performance suffers.

During my career, I had a few jobs I really did not like. Sometimes, I did not like the duties of the job, and sometimes, I did not like my supervisor. (I wonder if any of my former supervisors are reading this and wondering if they fell into that last category.)

I am not afraid of change. When I was unhappy in a job, I started looking for a new one. I searched dutifully on USAJOBS for new opportunities. And sometimes, I searched for a detail or reassignment opportunity within my agency.

Those efforts worked for me, but many people are afraid of change. People who do not like change typically choose to stick it out in their unhappy job situation rather than look for another opportunity.

Supervisors know when an employee is performing poorly or when their bad attitude is creating toxicity in the workplace. What supervisors often miss in those situations is that the root cause of the performance and attitude problems is that the employee just does not like the job.

Too often, supervisors tend to believe this kind of employee will not succeed in any job. That belief may keep them from helping the employee find a reassignment within the agency. There is a fear that they will be dumping a problem on someone else, but that should not be a foregone conclusion.

During my Federal career, I observed several “problem” employees in one environment end up thriving in another environment. Very often, a supervisor with a different personality made all the difference. Or the employee found a job better suited to their skillset.

I encourage supervisors and advisors to think about a reassignment as an option for an unhappy employee. As a first step, it is a good idea to talk to the employee and find out if they like their job, and if not, what other agency jobs might interest them. Then, look around and ask around and see if there is a job opening within the agency.

To avoid dumping a problem, explore a detail. Make it clear to the employee and the receiving supervisor that if the detail is not a success, the employee will return to the original position. If the employee thrives, the reassignment can be permanent. If they fail, you now have an indication that this employee may just be a poor employee. And yes, then the original supervisor will have to deal with that situation.

If a reassignment works, you can go from an unhappy supervisor and unhappy employee to two happy supervisors and happy employee. And that’s Good News! [email protected]

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Accommodations: Reasonable Doesn’t Always Mean Preferred

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By Frank Ferreri, August 12, 2024

Quick facts:

  • An SEC attorney had dyslexia and ADHD, which affected her concentration and ability to read and write.
  • The attorney was provided with accommodations, but the agency denied the mode of training she preferred for some of those accommodations.
  • The court found the agency engaged in a good-faith interactive process for Rehabilitation Act

Those who have experience with the interactive process know an employee with a disability often is the best source for finding accommodations that will work best to ensure the employee can perform the essential functions of her job.

However, as Uygur v. Gensler, No. 24-975 (E.D. Pa. July 19, 2024) recently demonstrated, an agency doesn’t have to fulfill all of the employee’s requests to meet its Rehabilitation Act duties.

What happened in Uygur?

A longtime attorney with the U.S. Securities and Exchange Commission was diagnosed with dyslexia and attention deficit hyperactivity disorder, which impacted her concentration and ability to read and write. The SEC provided her with three computer training programs. The agency also assigned the human resources disability program officer to help the attorney install the programs and learn how to use them.

Within a couple of months, the attorney requested live, in-person training rather than the computer-based options. The attorney said she struggled with the SEC’s virtual training platform.

The agency had previously used a Philadelphia office to conduct in-person training on computer programs. The SEC denied the request because all Philadelphia-based employees, like the attorney, were participating in the training virtually.

The attorney submitted a letter from her physician explaining why in-person training was needed to address the attorney’s disabilities. The agency approved the attorney to attend an in-person conference in Washington, DC, which was the subject of a separate request. However, according to the attorney, the agency would not apply the letter to her request for in-person computer program training.

The attorney filed a complaint with the Equal Employment Opportunity Commission for disability discrimination and eventually was granted the right to file a civil action, which she did in the form of a Rehabilitation Act suit alleging a failure to accommodate.

To establish a failure to accommodate under the Rehabilitation Act, an employee must show:

  1. She had a disability, and the agency knew it;
  2. She requested an accommodation or assistance;
  3. The agency did not make a good-faith effort to assist; and
  4. She could have been reasonably accommodated.

In this case, only the third factor was at issue. That factor turned on whether the agency engaged in the interactive process. The court cited Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) to explain that the interactive process under the Rehabilitation Act “does not dictate that any particular concession must be made” by an agency. Instead, agencies are required to make a good-faith effort to seek accommodations.

The court found SEC made the requisite good-faith effort to follow Rehabilitation Act requirements by:

  1. Allowing the attorney to attend the DC conference in person;
  2. Providing the attorney with three assistive computer programs; and
  3. Facilitating training on the computer programs, “albeit virtually as opposed to in person.”

The court faulted the attorney for not presenting enough evidence of her failure to accommodate the claim.

“The complaint provides no detail on whether, or how, [the attorney] was left unable to enjoy the equal benefits and privileges of employment by receiving virtual rather than in-person training on the three assistive computer programs provided to her as an accommodation,” the court explained. “Nor does the complaint allege … how [the attorney’s] ability to work, or her status at the SEC, were negatively affected by a lack of in-person training.” Id. at 7-8.

In the court’s view, the attorney was “provided every accommodation she requested except for her preferred method of training on the assistive programs.” Id. At 9.

As a result, the court dismissed the employee’s Rehabilitation Act claim.

The Lesson

A good-faith interactive process is one that rests on the agency and employee working together toward the shared goal of creating the work environment under which the employee will be able to perform the essential functions of the job.  The Uygur court was satisfied with the agency’s efforts toward that goal because the agency delivered the “what” of the accommodations the attorney requested with only a slight deviation from the “how” of them.

It makes sense that an employee with attention-deficit challenges might do better in an in-person setting, but the Rehabilitation Act doesn’t require optimal accommodations, only reasonable ones. Although the court didn’t highlight it, it was probably also a plus that the agency didn’t rule out in-person training as categorically off-limits. Instead, it provided the employee with in-person options when appropriate and offered her the training needed to use the computer programs she requested. [email protected]

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It’s Time to Get HIP(AA) to the Hatch Act

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By Dan Gephart, August 12, 2024

Quick facts:

  • A Federal contractor with no authorization to do so traveled to a conference in Russia to offer the host nation a “peace mission” to Mars.
  • A Federal employee who ran for Senate said he didn’t violate the Hatch Act because he was “unaware” of it.
  • Special Counsel Hampton Dellinger announced two important updates to OSC enforcement of the Hatch Act.

Remember a few years ago when everybody seemed to be an expert on the Health Insurance Portability and Accountability Act? HIPAA (not HIPPA as those self-anointed authorities often wrote) is the Federal law that protects sensitive patient health information from being disclosed by medical providers without the patient’s knowledge or consent. Too many people seemed to be unaware of the extent of the law.

The most telling example was when a congresswoman was asked at a press conference in 2021 whether she received the COVID-19 vaccine. She replied that the reporter’s question was a “violation” of her HIPAA rights. Now more people know: Not only does HIPAA not prevent reporters from asking elected officials about their vaccination status; it also doesn’t prohibit workplaces from asking the same question.

I sometimes think of the Hatch Act as the HIPAA of election seasons. For a law that impacts so many Federal employees, a lot still fail to grasp its aim or restrictions.

Take for example, the contractor who received permission to virtually attend the Global Space Exploration Conference in Russia in 2021. Singh-Derewa v. NASA, DA-1221-23-0239-W-1 (May 21, 2024)(ID). The contractor attended in person and identified himself as a NASA employee. (Note: To reiterate, he was a contractor — not an employee of NASA, although he once was employed by NASA, nearly 20 years earlier.)

It turns out traveling without proper clearance is a serious violation of Department of State travel requirements. Following a review of the incident, the contractor was suspended, and later terminated. He was also rendered ineligible for rehire.

After attempting to work with another contractor in the same space center, he filed a complaint with the Office of Special Counsel, which included a Hatch Act component. If you’re scratching your head trying to figure out where the Hatch Act would come in, you’re not alone. Here are the details from the MSPB administrative judge’s decision.

[T]he appellant alleged NASA Administrator William Nelson violated the Act when he discouraged the appellant’s attendance at the 2021 GLEX Conference at which the appellant had planned to present a “peace mission” to Mars with Russia to prevent a “democrat war” with that country. Id. at 15, 21-24. The appellant further alleged Nelson had “collaborated with the Biden administration to prevent and discourage participation in ‘political activity’ that may prevent conflict and avert a potential nuclear war.”

As the OSC explained, and the AJ concurred, “even if the appellant’s allegations are true, they did not give rise to a Hatch Act violation because the alleged activity was not directed at the electoral success or failure of a political party.” Id. at 4.

Then there is the VA physician who ran for the Senate. OSC filed a Hatch Act complaint against the physician. His reply? “[B]ecause he was unaware that the Hatch Act prohibited his candidacy, he did not knowingly or willfully violate” it. Special Counsel v. Salekin, CB-1216-18-0004-T-1 (MSPB May 24, 2024).

The VA provided Hatch Act information in new employee orientation, maintained a Hatch Act FAQ page on its website, and sent Hatch Act emails to all employees in 2012 and 2014 – the year the physician tried to run for office. The physician did not open the 2012 email, asserting, “if I thought it was important to read, I would read [it].”

Ignorance, it seems, is no defense against a Hatch Act violation. It cost this want-to-be Senator a $1,000 fine and disbarment from Federal service for five years.

As we head into the election homestretch, it’s not the time to overlook the Hatch Act. You may not take it seriously, but OSC will.

In a recent op-ed piece for Politico, Special Counsel Hampton Dellinger put White House officials on notice that it was closing the “escape hatch.”  “[P]rior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect,” Dellinger wrote.

He also noted two important updates to OSC enforcement.

First, we will no longer automatically rule out bringing actions against former government employees. As the MSPB has advised: an “employee’s post-violation resignation does not eliminate the case or controversy between the employee and the Special Counsel concerning whether the employee violated the Hatch Act and, if so, what penalty is warranted.”

Second, the wearing or displaying of items in the workplace related to current political figures should be considered contrary to the Hatch Act regardless of whether it is before or after Election Day. Among the reasons for a blanket prohibition on such items while federal workers are on duty or in their office is the clear connection between political candidates and political parties. OSC has long advised that political party swag (T-shirts, hats, mugs) is banned year-round. It is logical and workable to apply the same rule to individual political figure paraphernalia, particularly items referencing presidential candidates who are, understandably, well-defined in the public’s mind as aligned with specific political parties.

Meanwhile, lawmakers are getting serious about the Hatch Act, too. The list of positions “further restricted” from partisan activity would grow under a new bill to include agency offices of inspectors general. The IGs would join the CIA, NSA, MSPB, OSC itself and more than a dozen other agencies that are held to more stringent standards than most Federal employees. [email protected]

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