A Letter of Caution Can Equal Reprisal – or, Another Yellow Donut Case

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By Deborah Hopkins, December 7, 2021

We have long taught that issuing a letter of caution, warning, expectation, concern, and the like can cause more problems for agencies than it’s worth. A supervisor can caution, warn, set an expectation, or express concern for an employee verbally, then follow it up in an email, and achieve the same purpose, while lessening the likelihood of a grievance or complaint being filed. At FELTG, we refer to these types of documents as lesser letters, or more memorably, the yellow donut.

There are too many cases where agencies have spent hundreds of thousands of dollars, plus time and years of effort, defending these documents before various third parties. These documents don’t have any legal substance or definition and don’t even count as disciplinary actions. Just to get you started, see, Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016); Huddleson v. USPS, EEOC No. 0720090005 (2011) Massie v. DoT, 2010 MSPB 106; Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

A few days ago, I came across a fairly recent EEO case that confirms the above: Will K. v. USPS, EEOC Appeal No. 2020000109 (Oct. 26, 2020). Among other claims raised, a USPS Operations Industrial Engineer alleged retaliation for protected activity after his supervisor discussed with him several performance concerns. The supervisor issued a Letter of Concern (LOC), which recapped the discussion. If you’re thinking that an LOC is not discrimination or reprisal and the supervisor did nothing wrong here, you’re correct in general. But it all depends on what is in the LOC. If the content includes a mention of events related to previous protected activity, the agency has a big problem.

In this case, the LOC contained a list of areas where the supervisor was concerned about the complainant’s performance, including:

  • Mentioning that the complainant “claimed work-related illness/injury for stress” [which is an employee’s right, under workers’ compensation laws];
  • References to a previous EEO settlement agreement; and
  • An indication that the complainant “claimed discrimination and harassment at work, currently being investigated.”

The AJ granted summary judgment to the agency. On appeal, the EEOC found the reference to the Complainant’s protected activity was per se retaliation. Including this type of information in a Letter of Concern is “reasonably likely to either deter Complainant or others from engaging in the EEO process. Therefore, although Complainant ultimately has not demonstrated that the LOC itself was unwarranted, the Agency is still liable for per se retaliation with regard to some of the language used in the LOC.”

With exemption requests to the COVID vaccine requirement indicating protected activity under the EEO categories of disability and religion, we want to help your agency handle these cases properly and avoid even the hint of retaliation.

So, send all your supervisors, HR and EEO staff to the January 19 webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace, and we’ll show you how. [email protected]

The Good News: A Letter to Santa 2021

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By Ann Boehm, December 7, 2021

Dear Santa:

I hope you and Mrs. Claus had a good year, despite the continued pandemic. I guess you’re happy to have your own elf labor and reindeer transportation, since the supply chain appears to be a problem now.

I think I should be on the good list this year. I have decided that I won’t mention the pony this year, even though a pony would be really neat. And since I’m not asking for a pony, I hope you will help me with some other things I really want for Christmas. Here they are.

1. A revised Federal EEO process.

Yes, Santa, I know that the pony would probably be easier than this, even with the sleigh limitations. But this one would really help EEO complainants and Federal agencies.

2. Senate-confirmed MSPB Board members.

Santa, please stop laughing. This one is serious. No quorum at the MSPB since January 2017 is getting a little silly. The three nominees are through committee and just waiting for confirmation. Can you help?

3. Senate-confirmed FLRA members and General Counsel.

There are three FLRA members, but two are on expired terms. It would be bad for the FLRA to go the way of the MSPB and not have a quorum. And the Acting General Counsel can only serve for so long. Not having a General Counsel means no ULP processing, and that’s a bad thing. Two FLRA nominees and the General Counsel nominee are through committee and waiting for confirmation. Please help with these nominations, too.

4. Acknowledgment from this Administration that pro-Union doesn’t mean pro-bad employee.

The Biden Administration is really pushing agencies to encourage union membership and work with bargaining unit employees. That’s a nice theory, but too often unions take the side of the toxic, draining employees at the expense of the effective, hard-working employees. Santa, it would be great if you could help everyone understand that bad employees are bad employees, regardless of their bargaining unit status.

5. Progressive discipline (reprimand, suspension removal) even for non-vaccine disciplinary cases.

Santa, we here at FELTG have taught about progressive discipline for a very long time. Sometimes agencies don’t always believe us when we tell how it works, and then bad employees stay employed for far too long. The vaccine mandate has highlighted how progressive discipline works. I would like to ask you to make sure agencies (and this Administration) understand that progressive discipline is appropriate to use for all misconduct cases (unless misconduct is bad enough to remove an employee in the first instance—and yep, that can be appropriate).

6. More in-person training.

It’s been amazing to be able to train agencies virtually during this bizarrely long pandemic crisis. But I do miss the in-person interaction. I’m fully vaccinated and willing to travel. If any agencies want in-person training, I’m ready to roll.

7. A pony.

OK. I said I wouldn’t ask, but I have to keep trying. Stay safe, Santa. Merry Christmas and Happy New Year! Ann

[email protected]

Updated Guidance on Vaccine Refusals – Just in Time for the Holidays

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By Deborah Hopkins, December 7, 2021

While the federal mandate for COVID-19 vaccination had a compliance rate of more than 97% from civilian and military personnel as of the end of November, there are still a number of personnel who have not complied with the Executive Order or requested an exemption. The deadline for compliance of civilians was November 22. Until a few days ago, the guidance from the administration had been that agencies should begin the process of counseling, then quickly disciplining, employees who refused to comply.

Perhaps, as a direct result of requests for delay by labor unions, the Safer Federal Workforce Task Force updated its guidance on discipline for vaccine refusals, encouraging agencies to counsel and educate employees on the benefits of vaccination for an “appropriate period” of time rather than the 5 days previously recommended.

In an email to agencies, OPM more closely defined that time period by advising agencies to refrain from suspensions until after the holidays. This timeline aligns more closely with the January 4 deadline the administration set for federal contractors to be fully vaccinated against COVID-19.

The Task Force guidance also included a new suggested step in the disciplinary process of noncompliant employees — the reprimand.

If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, agencies may issue a letter of reprimand, followed by a short suspension (generally, 14 days or less).

Reports from the end of November revealed that some agencies were already beginning the disciplinary process for employees who did not comply with the vaccine requirement. Most of those actions will likely be held in abeyance, but the email from OPM does not say agencies are prohibited from disciplining certain noncompliant employees before the end of the year.

According to a November 29 article by Government Executive, OPM’s email said “We understand that your agencies may need to act on enforcement sooner for a limited number of employees, such as where there are additional or compounding performance or workplace safety issues under consideration, but in general, consistency across government in further enforcement of the vaccine requirement after the start of the new calendar year is desired,” they wrote. “We believe this approach is the best one to achieving our goal of getting the federal workforce vaccinated.”

I’m sure this is frustrating for some of you who had already begun work on the disciplinary process and is welcome news to others who are inundated with discipline issues. Wherever you might be, and however you might feel about the vaccine requirement, FELTG thanks you for your service to the American people and promises we will keep you posted as new developments arise. [email protected]

Performance System Failures: Lack of Feedback, Poorly Written Narratives

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By Barbara Haga, December 7, 2021

Picking up from last month’s column, we look at who’s responsible for setting the stage for feedback to take place and what a good narrative should include.

It’s common to find language in agency appraisal plans that sets out requirements for which official(s) are responsible for ensuring that feedback is provided to employees and that it is usable feedback.

Most agency plans assign responsibility for ensuring that the appraisal program operates as it should to the head of the component, installation, or operating division. The DoD Instruction on the Performance Management and Appraisal Program (DOD 1400.25, Volume 431) states on page 5 that DoD Component Heads (think Army, Navy, Air Force) are responsible for overseeing “the implementation, application, and evaluation of performance management programs within their respective Components.”

That’s an incredibly broad statement. However, included within it is ensuring that supervisors provide required feedback and that narratives actually contain documentation of accomplishments around the elements that are designated in the plan.  Usually, this responsibility would be delegated further down the line to subordinate levels of managers until we get to raters and reviewers. Here is the language regarding those officials from the HHS Performance Management Appraisal Program (430-1, Sections VIII and IX):

HHS – Rating Officials

  • Manage the full performance cycle from:
    • Clearly communicating expectations to holding employees accountable
    • Monitoring performance to providing regular feedback

HHS – Reviewing Officials

  • Implement performance management policies and practices within the appropriate span of control
  • Ensure that Rating Officials (ROs) carry out their performance management responsibilities within established deadlines and evaluate Rating Officials to ensure accountability for HHS’s PMAP

Here is where the rubber should hit the road. The requirement for the feedback sits squarely on the shoulders of the supervisor, but the enforcement comes from the reviewing level. Yet, I’ve heard countless stories of managers not carrying out these responsibilities without any consequence.

System Failures

Many years ago, I helped an agency rewrite all of their performance elements and standards. It was not a large agency. Also, they had a lot of employees who were attorneys who did the same work, so the task wasn’t as monumental as it might sound. (Don’t get excited, it wasn’t the MSPB). I led a group of employees and a supervisor and a union official who worked on the content of the elements and standards. That part worked great. What they told me about how ratings were done was shocking. I’ve seen a lot more since then and likely wouldn’t be as shocked now.

Here’s their story. I don’t know how many were in this situation, but it was common enough that all of the employees on the team said: “Oh, yeah. That’s how it’s done here.”

The managers of these attorneys, paralegals, and other support staff would not meet with them to discuss ratings. Ever. They would prepare the ratings and wait until the employees left for the day and put the ratings in the employees’ chairs with a note saying basically “sign this and give it back to me.”

I was going to do a briefing for the managers to introduce the new plans and get their feedback on them. I was also covering some basic provisions of the appraisal system in that briefing.  Some of the team members made a slide for me to include that had a red stop sign shape with the words, “Stop Drop and Sign” in white letters across it. They were asking me to tell their supervisors to stop leaving appraisals in empty chairs and not discussing them.

These supervisors were very high level, so the threat of rating them lower because of their failure to provide at least a minimum amount of feedback wasn’t a threat. Apparently, there was no requirement coming from above these supervisors to meet their responsibilities as set in the agency appraisal system.

Another System Failure

The same agency asked me to come back the next year. Their headquarters had told them they had too many Level 5 ratings and they needed to actually write a standard for Level 5. It was my brilliant idea that if I reviewed a sample of those Level 5s, maybe those managers would have done a good job of writing down what a 5 looked like and they would already have done a lot of the work for me.

So, I reviewed the sample. In some cases, they did a good job.  In others, I wanted to cry. After all the work of the team getting the standards done, the training I did on how they should be used, and what their own agency plan required, I found all sorts of problems.

The worst one was written to support a Level 5 on the element about their writing of appeal decisions. The element set measures about adequately researching issues, properly citing precedent cases, writing clearly, raising issues in advance if there was a legal issue that needed to go to their headquarters before the decision could be finalized, and so on. The appraisal for one of the GS-13s started off with a sentence about writing appeal decisions followed by this:

In addition to the outstanding work Mary does for the XXXXXX Branch, she has also volunteered and has done an excellent job in organizing a number of functions for the XXXXXX Division, including the end of year pizza party, after work socials, the end of year Holiday Party, and …

That rating had been approved by the reviewing level and an award paid, at least in some part, based on being the Division party planner. I helped write those elements and standards and I promise there was no event coordinator duties covered in those plans. It does cause one to wonder sometimes.

Next time, we talk about what documenting ratings should be about. [email protected]

COVID Retaliation: What You Need to Know

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By Michael Rhoads, December 7, 2021

Last month, the EEOC updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws under Section M. Retaliation and Interference. The anti-retaliation protections outlined in the guidance only apply to the exercise of rights under the federal EEO laws.  The questions and corresponding answers are meant to guide federal agencies when considering the rights of job applicants, employees, and former employees in connection with COVID-19.

Some of those questions are below, along with our thoughts and EEOC’s answers:

Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19?

According to the EEOC guidance: “Speaking out about or exercising rights related to workplace discrimination is called ‘protected activity.’ Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.”

For examples of COVID retaliation join Katherine Atkinson on Wednesday, January 19 from 1:00-2:15 PM ET for the webinar Stop the Spread of COVID-related Retaliation in the Federal Workplace

Who is protected from retaliation?

The retaliation protections apply to all types of employees including full-time, part-time, probationary, seasonal, and temporary. It is also important to note that an employee’s or applicant’s citizenship or work authorization status is not a factor when considering retaliation protections.

When do Retaliation protections apply?

Always. When considering retaliation protections, consider whether the employee or applicant has a reasonable belief that an EEO law has been violated in the workplace. The employee or applicant must also come forward with those beliefs in a “reasonable manner.”

When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation?

This is the hardest question to answer, but if it looks like a duck, and quacks like a duck, it’s a duck.  Per the EEOC’s guidance: “Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.” Examples include suspensions, denying a promotion, negative or less than favorable evaluations, and transfers. Retaliation can also take place outside of the workplace. An action by the employer is still considered retaliatory even if the employee or applicant moves forward with an EEO complaint or complaint-related process.

Does this mean that an employer can never take action against someone who has engaged in EEO activity?

No.  If an employer takes action against an employee or applicant who has engaged in EEO activity, the action must be based on the employee’s or applicant’s conduct or performance.

For example, if an employee’s performance slips, or if the employee makes harassing statements to co-workers, employers may respond with appropriate action.

Does the law provide any additional protections to safeguard ADA rights?

Yes. For example, if an employee or applicant asks for a religious accommodation for an FDA-approved vaccine, this type of accommodation request is covered under the ADA. Employers should engage in their agency’s reasonable accommodation process in such circumstances.

An important reminder comes at the end of the question-and-answer segment: “The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.”

Happy Holidays, and I’ll see you back here in the New Year. Stay safe, and remember, we’re all in this together.  [email protected]

A Fully Functioning MSPB and Other (Overly?) Optimistic Predictions

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By Dan Gephart, December 7, 2021

By the time you read the first FELTG Newsletter of next year, it will be five (yes, five) years since the MSPB had a quorum. Heck, it’s been almost three years since the agency has even had a single board member.

Not.

One.

Member.

This is unacceptable. It’s unfair to employees, especially whistleblowers, and it’s unfair to agencies. It’s unfair to supervisors. It’s unfair to taxpayers. The fact that this has not been a priority is worrisome. Yet it continues, and petitions for review keep piling up amid the cobwebs on that darkened Executive Floor at MSPB Headquarters. It’s going to take new members a looooong time to get through that backlog.

The last couple years have been difficult for everyone. As we rumble toward the end of the calendar year, I resolve to stay optimistic, especially when it comes to looking ahead to 2022.

My rosy outlook for the Federal workplace includes a fully functioning Merit Systems Protection Board. I know that seems impossible, but three nominees have made it through committee. Now we need the Senate vote. It could happen.

But why stop there with positive predictions? Here are a few others:

  • Agencies will embrace the President’s Management Agenda.
  • Leaders will heed the lessons learned during the pandemic.
  • Federal EEO professionals will successfully navigate the vaccine mandates.
  • And, since I’m really putting myself out on a limb here, everyone will treat each other with empathy.

President’s Management Agenda

Last month, the Biden-Harris Administration released its Management Agenda Vision with three priorities. This is the priority that has our attention:

We will take new steps to attract, hire, involve, develop, support, and empower talent who can help us meet the challenges of today and tomorrow.

This PMA lays out more specifics on how to do this, including “continuing to build a diverse, equitable, inclusive, and accessible workforce that reflects our nation” and “ensuring that every Federal employee’s job is a good job with the tools, work environment, and resources they need to succeed.”

We at FELTG headquarters couldn’t agree more. Empowerment of federal supervisors has been the cornerstone of our training programs the past 20 years (Attend UnCivil Servant: Holding Employees Accountable for Performance and Conduct on February 9-10 and you’ll find out how.) and our commitment to DEIA is built into our mission statement. If you care about DEIA – and you better, because the White House certainly does – we’ll offer plenty of opportunities for training, including our March 9 session on Honoring Diversity: Eliminating Microaggressions and Bias in the Federal Workplace.

I’m also glad to see emphasis on employee engagement – a tool that is, unfortunately, underused in the federal sector.

The Management Agenda also calls for management to respect employee rights to “organize, bargain collectively, and have their voices heard through their unions in agency decisions that genuinely matter.” Wow, a true partnership for the betterment of taxpayers? Who wouldn’t want that, even if it does give birth to the oxymoronic “neutral encouragement” that Ann Boehm discussed in her column last month.

The return to a more collaborative labor-management relationship will be discussed in the two-hour virtual training Navigating Federal Labor Relations in 2022 on January 13. Register now.

Management agendas come and go with presidential administrations. They usually generate more talk than actual results. However, if agency leaders can dig down into the latest PMA, I think they’ll see several paths to improved productivity and workplace morale.

Pandemic Lessons

Several months ago, the Delta variant put a hard stop to agencies’ plans to return their employees to the physical workspace. Now, we hold our collective breath for more information about the Omicron variant. Yet, some agencies are dusting off those return plans. And others, taking a similarly optimistic approach to mine, have already set return dates.

Bringing people back without a determined plan that considers what happened during the pandemic is not only a wasted opportunity, but also a huge miscalculation. Think about the amount of flexibility and adaptability you and your employees showed over the last two years. How do you keep and expand those qualities? How well did your supervisors do managing remote workers? What did you discover out about virtual meetings?

OPM’s Additional Guidance on Post-Reentry Personnel Policies and Work Environment makes that point clear, as a huge portion of its 38-page guidance focuses on telework. OPM suggests agencies “take this opportunity to adjust their telework policies to reflect a new understanding about how telework has worked at their agencies.”

EEO and Vaccine Mandates

The success of vaccines is allowing agencies to consider returning employees en masse to the physical workspace. Yet, more than 1,600 people were still dying every day from the virus over the past 7 days. The pandemic is not over, and the vaccine mandates aren’t going to disappear anytime soon. Already, it’s become clear that enforcing the mandates has been, to put it lightly, challenging, and fraught with opportunities for EEO missteps.

FELTG has been the leader on providing training on this topic. FELTG President Deborah Hopkins and Instructor Katherine Atkinson presented several training events on the topic over the last several months, each session offering the latest guidance and newest strategies. That continues February 8 with Managing COVID-related EEO Challenges in the Federal Workplace.

First, you must determine whether to provide the reasonable accommodation (disability- or religious-based) of an exception to the mandate. However, it doesn’t end once that determination is made – even if the decision was to not provide the accommodation. It’s highly likely that a lot of these exemption denials will turn into complaints.

And throughout it all, supervisors will have to be on their best behavior. Retaliation is asserted in almost 45 percent of EEO complaints. Considering the emotions and politics wrapped up in this issue, it’s likely you’ll be fielding your share of reprisal complaints next year. (I know. I know. What happened to my rosy optimism?) On January 19, Katie will present Stop the Spread of COVID-related Retaliation in the Federal Workplace, where she’ll walk you through the details of recent EEOC guidance, discuss the various forms of EEO reprisal and why it’s the most common category in discrimination findings, and provide important guidance on what can be done to limit retaliation from happening at your agency.

Empathy all Around

When leadership is the topic, I like to go straight to the experts. I’m lucky we have quite a few FELTG instructors who fit that description – Anthony Marchese, Scott Boehm, and Marcus Hill. It’s not a coincidence that they have all, at one point or another, mentioned empathy as a critical attribute for successful leadership.

Scott, who has 32 years of leadership experience with the Department of Defense and Intelligence Community, told me last year that leaders need to have “the ability to put themselves in someone else’s shoes. They [must be] open-minded enough to understand their followers’ motivations, hopes, dreams, and problems so they can forge deep, personal connections with them.”

More recently, Marcus, a former Senior Executive Advisor for the Federal Law Enforcement Training Centers, called empathy the key component of effective leadership that is often overlooked. “Effective leaders must have the ability to understand others’ thoughts and feelings from their points of view (instead of) the leader automatically overlaying hers/his. My former boss and good friend, Paul Hackenberry, emphasized this with me. He often says, ‘You don’t get to decide how others feel.’”

Leaders can set the tone and create a workplace where empathy can thrive. Think of the power an agency could access if that empathy spread to all employees. Your leaders would be leading. Performance would improve. There would be fewer EEO complaints. And employees would feel more connection to your organization and its mission. Talk about the “model workplace!”

Creating an empathetic workplace isn’t easy, and it won’t happen overnight. Take it one step at a time – and the first step is simple: Listen.

Is my optimism misplaced? Do you have any optimistic predictions for 2022? Let me know. And best wishes for a positive 2022 to everyone in FELTG Nation. [email protected]