Due Process Challenges in a COVID-19 World

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By Deborah Hopkins, April 7, 2020

When it comes to due process in federal sector employment law, the steps are as easy as 1-2-3. Let’s take a hypothetical where the employee has violated agency purchase card restrictions, and the agency is ready to propose his removal. Here are the three steps that provide Constitutional due process to the employee – mandatory steps if he is a career Title 5 or Title 42 employee and no longer a probationer:

  1. The agency provides the employee with a proposal notice containing the proposed action (removal), the charge (misuse of an agency purchase card), the penalty justification (Douglas factors worksheet), and boilerplate rights, plus any materials relied upon.
  2. The employee is given a minimum of seven days to respond orally or in writing, and to be represented.
  3. The Deciding Official issues an impartial decision based only on the information in the proposal, and the employee’s response.

This is all fairly straightforward, though by no means do all agencies do it perfectly. But now that we are living in a COVID-19 world, there are some new questions that agencies are facing as it relates to providing due process. Let’s take a look.

The employee is working from home and we usually hand-deliver proposal notices, but the employee is on telework. What are our options?

In this case you have two options:

    • You can hand-deliver the proposal to the employee at his home. This is currently not advised, as many of us are under social distancing and stay-at home orders. I suppose if you were pulled over by the police on your way to the employee’s house you’d have a pretty good argument that this delivery is mission-essential.

Here is the better option:

    • Mail the letter to the employee, email it to the employee, or both. When an employee is teleworking, there’s a presumption of receipt of an email sent by a supervisor. What’s more, the folks in IT can check and see exactly when the employee opened the email. And if you think emailing proposed discipline is frowned upon by MSPB, then check out Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016) (ID), where an MSPB supervisor emailed a proposed adverse action to an employee. You can also send the letter via U.S. mail, where there is a presumption of receipt after 5 days.

Watch the timelines here, because the clock on the notice and response period starts on the day the employee receives the notice. If you only use the mail, you’ll be waiting a few extra days to start the notice period.

The employee needs access to files at the agency in order to prepare his response, and the building is closed because of COVID-19. Do we have to wait until the building re-opens to issue the proposal?

No, you do not need to delay your action. At this point in the process, the employee is not entitled to any agency files to prepare his response – unless your union contract says otherwise. Once the removal is issued and the employee files an appeal, he can request relevant files through discovery and the agency must produce the information. At the proposal stage, however, there is no entitlement. Don’t take my word for it; check out Kinsey v. USPS, 12 MSPR 503 (1982), a foundational Board case that settled this question in the early days of the Civil Service Reform Act.

The employee has requested an in-person response but the Deciding Official is teleworking and does not want to risk being exposed to the virus. Does the agency have to grant the onsite response meeting?

Again, the answer is no. The employee is entitled to an oral response, not a face-to-face response. Telephone or video conferencing are routinely used for the oral response, even when a pandemic is not consuming the globe. As long as the deciding official is able to hear the employee’s response, the legal requirement in 5 USC § 7503 has been met.

The Deciding Official receives an email from the employee’s former supervisor, encouraging the DO to remove the employee. Must the Deciding Official tell the employee about this email?

If the DO considers the information in the email at all in making her decision, then the employee is entitled to notice of this information, commonly known as a Ward letter. The agency would then need to give the employee the statutory minimum of seven days to respond to the email before the DO could implement her decision.

If the DO does not notify the employee of this new information, and the employee or judge finds out, the agency will automatically lose the case on a due process procedural violation – even if the agency has 50 witnesses, a public confession, and a video recording of the entire act of misconduct. Regardless of the evidence, due process violations are losers for the agency every single time.

In fact, most agencies lose cases because of due process violations, rather than on evidence. It’s a tricky area so for that reason, we invite you to join us next week on April 16 for a 60-minute webinar Due Process Violations: How One Mistake Could Cost You the Case. Until then, be safe and take care. [email protected]

Using Progressive Discipline: How Many Strikes Before You’re Out?

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By Deborah Hopkins, March 10, 2020

I spend most of my days talking about discipline. It’s a topic that I find very interesting, as do a lot of you in the FELTG Nation. In our field, of course there are a lot of boring discipline cases about the guy who is late to work or doesn’t follow an SOP and is disciplined accordingly. There are also attention-grabbing cases about employees who view pornography on government computers, urinate in mop closets, take food off inspection lines to do vulgar things, destroy government property, and on and on. If you work in federal employment law, you never have to make anything up.

One of the topics worth focusing on (and hey, there’s a webinar about this next Thursday) is progressive discipline for employees who are multiple misconduct offenders. While reprimands usually correct misbehavior, in 15-20% of cases an employee re-offends with a subsequent act of misconduct. What’s more, in 2018 the Government Accountability Office issued a report that said 25% of the 10,000-12,000 people suspended in the federal government every year have been suspended at least once previously.

Misconduct is loosely defined as the violation of a workplace rule. Discipline for misconduct is a way to correct bad behavior, or to teach the employee a lesson. Some agencies even discipline to send a warning message to other employees in order to deter future misconduct. The underlying principle in determining the appropriate level of discipline is that the penalty is proportionate to the offense. Agencies determine what’s appropriate with the guidance of the Douglas factors.

But some employees just don’t (or won’t) learn their lesson even after being disciplined, and that’s where things typically escalate. Enter progressive discipline. The general principle is “Three Strikes and You’re Out” when it comes to breaking minor rules and being disciplined in the federal workplace. This has been a widely accepted approach for longer than most of us have been alive; indeed, it pre-dates the Civil Service Reform Act and was standard in cases when we still had the Civil Service Commission. Three strikes is not a mandatory requirement, of course. Some supervisors allow employees four, five, or six strikes – or even more.

However, if an agency chooses to rely on past discipline in the Douglas factors analysis, any past, unexpired discipline at all is an aggravating factor in determining the appropriate penalty. In 2018 President Trump issued Executive Order 13839 that clarified prior misconduct for any charged offense – not just the current offense – could be relied upon in using progressive discipline. For example, a previous Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL, as would be a prior Reprimand for AWOL. This been the law for decades, but had been misunderstood in recent years.

Take a look at a few cases where agencies used progressive discipline, and MSPB upheld the removals:

  • Grubb v. DOI, 96 MSPR 361 (2004): Removal was warranted for two charges – making repeated unfounded and unsubstantiated allegations concerning her co-workers’ and supervisors’ alleged misconduct and failure to follow her supervisor’s instructions in violation of a direct order – because the appellant had received four suspensions within a two-year period. [Can I just mention that I cringe at how those charges are drafted…but that’s another article.]
  • Blank v. Army, 85 MSPR 443 (2000): A reprimand and two suspensions preceded a removal action, and the MSPB upheld the removal because the past discipline was an aggravating factor.
  • Alaniz v. USPS, 100 MSPR 105 (2005): In one year alone, the appellant received four suspensions, so a fifth offense in the same year warranted removal.

I think most FELTG readers would agree that these cases show egregious examples of repeated misconduct. I would even hazard a guess that removal could have been upheld a couple of suspensions sooner, had the agencies above chosen to go that route. However, they chose not to and under the law that is their right.

Believe it or not, though, removal is appropriate in cases of “minor misconduct” where employees have been disciplined in the past and continue to violate workplace rules. See Ferguson v. USPS, 19 MSPR 52 (1984) (When past disciplinary records indicate unreliability and a failure to comply with agency regulations, the penalty of removal does not exceed the limits of reasonableness even for cases involving minor misconduct such as “being out of the facility while on the clock without permission.”) Foundational MSPB case law tells us that the agency need not impose the minimum penalty possible so long as the penalty imposed is reasonable. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Of course, because progressive discipline is not mandatory, sometimes agencies employ the “One Strike and You’re Out” approach. Next month, we’ll look at cases where progressive discipline was not used, because it wasn’t necessary. See you then, if not before. [email protected]

And Now a Word With … OSC’s Louis Lopez

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By Dan Gephart, March 3, 2020

Louis Lopez, Associate Special Counsel, Investigation and Prosecution, Office of Special Counsel

Last week, the “Make it Safe Coalition” sent a letter to Congressional leaders with this ominous warning: The Whistleblower Protection Act “is at a severe risk of complete breakdown” and “on the verge of paralysis.”

The coalition is made up of several organizations, including the Project on Government Oversight and the Government Accountability Project, and they blamed the Senate for not acting on at least two of the three Merit Systems Protection Board nominees placed before them. Two members on the now currently member-less board would provide the quorum needed to act on the expanding backlog of more than 2,500 cases that have been piling up over the last 3-plus years.

“This means the Office of Special Counsel cannot seek stays for temporary relief against retaliation. When employees prevail after administrative hearings their victories remain indefinitely in limbo while agencies petition for review by a nonexistent Board. This is unprecedented,” the coalition wrote.

Regular FELTG Flash and Newsletter readers know how concerned we are about the lack of a quorum at the Board. The Office of Special Counsel is concerned, too, according to Louis Lopez (pictured above). As the Associate Special Counsel, Investigation and Prosecution at OSC headquarters, Lopez oversees cases brought under the Whistleblower Protection Act, the Civil Service Reform Act, the Hatch Act, and USERRA.

“Yes, OSC is concerned for a couple of reasons,” Lopez explained. “First, as Special Counsel Henry Kerner has publicly stated, without any board members at MSPB, ‘OSC is unable to fully protect federal employees who have been retaliated against or were subjected to unfair personnel practices.’

“For example, OSC is unable to obtain formal stays of problematic personnel actions from the Board at this time. Second, and equally important, MSPB reports a rising backlog of whistleblower and other federal employee appeals that cannot proceed to final adjudication until the Board has a quorum. Regrettably, these delays often cause further economic and emotional harm to whistleblowers and other federal workers who have cases pending with MSPB.”

Based on the questions we’ve been receiving from attendees at our onsite training over the last few months, there is a lot of interest and concern about whistleblower laws these days. And there is a little confusion, too.

So we reached out to Lopez for answers. Lopez has had a distinguished federal career, working for the Department of Justice, the Equal Employment Opportunity Commission, and the Federal Bureau of Investigation before moving onto the OSC. He worked in the private sector for law firms in DC and Chicago and at Washington Post Digital. Lopez has also taught advanced courses on labor and employment law at Georgetown University.

Some of the questions we received in class dealt with whistleblowers in the intelligence community. The OSC does not have jurisdiction over whistleblowers in the intelligence community, so we could not address that here. Answers to some questions are dependent on facts we don’t know, so we greatly appreciate Lopez providing this guidance.

DG: We get a lot of questions about a whistleblower’s motive. Does a whistleblower’s motive matter? What if they’re just trying to get someone in trouble?

LL: Under the statute, a whistleblower’s motives, characterized as good or bad, for making the disclosure should not matter.

DG: What if it turns out the whistleblower is wrong and there was no waste, fraud or abuse happening, they just thought there was?

LL: A whistleblower does not have to be correct about their disclosures under the statute. Rather, they must have a reasonable belief that the wrongdoing occurred.

DG: How does an adjudicator know whether or not a whistleblower has a reasonable belief?

LL: Generally, when assessing the reasonableness of the whistleblower’s belief, the adjudicator will ask whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that there exists one of the statutory types of wrongdoing. In other words, the adjudicator must determine whether a person standing in the employee’s shoes may reasonably believe, given the information available to the employee, that the disclosed information evidences one of the statutory types of wrongdoing.

DG: Can a whistleblower be guaranteed anonymity?

LL: Whistleblowers are asked to sign a consent statement on the complaint form indicating their preference regarding the disclosure of their identity or circumstances about their case. Release of information from OSC files is governed by the Privacy Act. OSC takes very seriously a whistleblower’s decision to remain anonymous and would make every effort to protect their identity.

DG: If the whistleblower chose to be anonymous, what would the penalty be for a manager exposing a whistleblower to the rest of the staff and/or agency?

LL: For prohibited personnel practice cases, the vast majority of whistleblowers alleging retaliation consent to the release of their identity because it would otherwise be impossible to obtain corrective action in those cases. Regardless of anonymity, a manager’s reaction to a whistleblower’s complaint may be evidence of retaliatory animus or, in an extreme case, even create a hostile work environment. Although rare, OSC will assess these circumstances on a case-by-case basis to determine an appropriate course of action.

[Editor’s note: OSC’s Disclosure Unit is more likely to have a higher rate of anonymous whistleblowers.]

DG: What if the whistleblower is currently on a Performance Improvement Plan, which is nearing its end. Should the PIP be put on hold? Should the PIP be considered separate? Can an agency remove a whistleblower for performance?

LL: A PIP may be considered a threat of a personnel action and, as such, is independently covered under our statute. OSC can investigate an agency’s placement of an employee on a PIP as part of a PPP case regardless of whether a subsequent personnel action occurs. Whistleblowers, like all federal employees, can be removed for poor performance. But OSC’s role in a PPP case is to determine whether an agency’s stated performance concerns about an employee are a pretext for retaliation. Our handling of each PPP case, including how to address an existing PIP, depends on the facts of that case.

DG: What is the one piece of advice you’d give an agency and/or supervisor that would most help them avoid, whether consciously or subconsciously, retaliating against a whistleblower?

LL: Actively develop a culture that treats whistleblowing as a valuable public service. Agency officials often feel defensive when a whistleblower identifies problems under their purview, which can lead to unconscious bias and retaliatory employment decisions. If employees at every level consider whistleblowing an asset to the agency, supervisors are less likely to view raising concerns as a personal attack.

[email protected]

And Now a Word With … Dr. Anthony Marchese

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By Dan Gephart, February 11, 2020FELTG Instructor Dr. Anthony Marchese

The third page of the Partnership for Public Service report [PDF] released last week explicitly hinged the federal workforce’s future success on agencies’ ability to do four things:

  • Collaborate internally.
  • Work closely together with other agencies.
  • Engage the public.
  • Establish connections with stakeholders from outside government.

Unfortunately, as the Partnership’s report makes clear, those are not four areas where the federal government has a particularly strong track record.

“That’s a tall order,” said Dr. Anthony Marchese (pictured above), the author of DESIGN: An Owner’s Manual for Learning, Living, and Leading with Purpose, as he read through the report’s four recommendations.

Dr. Marchese teaches FELTG’s Leadership Training Courses. That includes the course Connecting, Collaborating, and Creating: Mastering the Art of Meaningful Relationships, which, in light of the Partnership’s report, should probably be mandatory training for all supervisors and managers. [Note: All of FELTG’s Leadership Training Courses align with the Office of Personnel Management’s Executive Core Qualifications.]

“The biggest barrier to collaboration is the absence of trust,” Marchese said. “Healthy collaboration occurs when people work together with others to achieve a common purpose or shared goal. If trust is compromised, communication/information will be limited, people will possess a level of competitive antagonism toward others across the agency which results in battles over who receives credit for successes, fighting over scarce resources, inactive listening, and the reinforcement of existing organizational silos. Leaders who focus first on how to build trust (interpersonal – among employees and supervisors and interdepartmental – across the agency) will drastically increase the likelihood of collaboration.”

If collaboration is the largest boulder holding us back, then communication is the large boulder the size of a small boulder. It’s particularly challenging for supervisors.

“A recent Harvard study revealed that two-thirds of managers are uncomfortable talking with their staff,” Marchese said. “The discomfort wasn’t over having difficult conversations, leading performance reviews, or convincing an employee to stay. Managers simply reported being uncomfortable communicating in general.”

DG: Is that why so many federal supervisors struggle to hold their poor performers accountable?

AM: Both the federal and private sectors often promote great technical experts to supervisory roles without demonstrating key behaviors that are necessary for success. Leading conversations with employees is one of the most important activities of the supervisor. Even those of us with many years of experience may feel uncomfortable having a conversation with a poor performer. But, with thoughtful preparation, there is much that can be done to increase the likelihood of a positive outcome. Two things come to mind.

First, structured conversations lead to better conversations. The second thing is that as supervisors, we need to better understand how people can change behavior or grow their expertise. It is a lot easier to tell someone, “Change X – or else” versus helping to set this poor performer up for success by understanding and using the tools of the “Performance Paradigm.” People learn differently, people are motivated differently, people require different types of reinforcement and accountability.

DG: The country is divided these days, and that divisiveness often causes problems in the workplace. What advice would you give to someone who is leading people with wildly divergent opinions and beliefs?

AM: If I had a choice between a team of like-minded members versus one filled with vastly different types of individuals, I would choose the diverse team every time. A team with “wildly divergent opinions and beliefs” requires more time and patience to lead but with a thoughtful strategy, the outcomes can be incredibly impressive. Think about a team meeting in which the leader has charged the team with the task of solving a complex problem. The team with like-minded members will frame the challenge as well as the course of action quite similarly. The meeting will produce a predictable outcome.

On the other hand, a diverse team will probably have a spirited discussion with multiple perspectives, some healthy debate, and quite possibly, reach a remarkable outcome. Leaders who find themselves leading a diverse team should seek agreement on core outcomes/results, what we call “The What,” also the easiest part. Then create a member-centric strategy that focuses on “The How.” This is where most teams fail. Consider the following:

  • Openly discuss and celebrate team differences and explore implications for synergy and conflict.
  • Create “rules of engagement” for working with different members (behavioral styles, strengths, personalities).
  • Build Safety: Encourage members to speak up, actively listen, not go silent, and avoid multitasking (phones/laptops).
  • Check-in periodically: How are we working together? What is working well? Not so well? What needs to change? Remind the group of the core outcomes/results that everyone is after.
  • Conduct an end-of-project debrief. Celebrate your accomplishments and retrace the process that got you there. What did we learn from this experience?

DG: What’s the one skill keeping most managers from being effective leaders?

AM: Without any reservation, the leading skill most supervisors lack is the ability to navigate and engage a diverse workforce. There is significant evidence indicating that three-quarters of those with whom we work are different from ourselves. They process information differently. They frame success differently. They communicate and collaborate differently. They respond to conflict differently. Different isn’t better or worse. It’s just different. Unless a leader is skilled at understanding and engaging her own behavioral style and those of her employees, there is a strong likelihood that a tremendous amount of time will be spent using a trial/error approach to learning how to work together. This causes frustration, wastes time and resources, and even encourages early exits. Leaders need to know their people.

DG: An employee has just been promoted and will now be supervising her former coworkers. What advice would give you her as she prepares for her first day leading her former colleagues?

AM: First, breathe. You don’t have to have everything figured out on day one. Making the transition from individual contributor to successful supervisor takes time. The biggest pressure most new supervisors feel is self-induced. As you stand in front of the mirror, ready to head out to your first day, pause for a moment and smile. You can “do anything” but you can’t “do everything.” Your first day might feel a bit awkward. Your coworkers may be feeling the same thing, They might be asking themselves, “How is she going to act now that she is a manager?” “Will we still be friends?” “How are things going to change?” Here are some suggestions to help you have a great first day:

  • Be yourself: While your office may have moved locations, your relationships still exist as they did yesterday. Talk to people. Be visible. Keep your door open.
  • Listen: People are going to be curious about how things are going to change. As they inquire, let them know that you are going to spend a few weeks asking questions, getting to know the agency and its priorities, and even talking to a mentor. You want to do your homework first. Let your coworkers know that you are open to ideas.
  • Read Boundaries for Leaders: Results, Relationships, and Being Ridiculously in Charge by Henry Cloud. As you read the book, conduct a self assessment. Where are your areas of strength? In what areas might you be vulnerable?
  • Organize your observations/priorities. You will start to notice new things, even on Day One. Use your phone, tablet, or laptop to keep a running list of ideas. Think about organizing your thoughts into three categories: Leading Myself, Leading My Team, Leading the Agency. At the end of the week (or two), talk with your own manager about what you observed and establish priorities for the year.
  • Breathe.

[email protected].

Not Commandments, but 5 Suggestions for Federal Employment Law Practitioners

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By William Wiley, February 4, 2020

A few years ago, someone sent me a list of “Ten Commandments” for those who do not subscribe to a particular religion. From a philosophical aspect, I found it interesting and applicable in a number of situations in life. With some paraphrasing, some apply to the field of federal employment law. Since we here at FELTG can’t command anyone to do anything, I thought I’d send these along as suggestions, reducing them to five, in the spirit of the thrifty thought that we teach in our legal writing programs:

1 – Be open-minded and willing to alter your beliefs when you are confronted with new evidence or argument.

2 – Strive to understand what is most likely to be the correct approach, rather than believing what you wish to be the correct approach.

3 – Legal research and formal training are the best ways to understand the field of federal employment law.

4 – Every supervisor has the right to decide the best course of action given a particular situation, as long as that decision is allowable by law.

5 – Many times in our business, there is no one right way to accomplish an objective.

I am reminded of these on occasion when someone in a class or by email asks me to explain something I’ve said in a training session. As our recurrent readers know, here at FELTG, we love getting your questions. It feels good to know that we might be contributing to a more-efficient civil service.

The best request for an explanation goes something like this:

“Hey, Bill. You are super-smart and very attractive. I get goose bumps when I read your insightful comments in an article. But I’m having a little trouble understanding your thought regarding blah, blah, blah, and wonder if you could explain it in more detail?”

“Sure, you poor under-educated newbie. I’d be delighted to impart to you a portion of the wisdom I have accumulated over the eons I have been in this business. Regarding blah, blah, blah, the answer which you seek is …”

“Wow, thanks, Bill! I’ve got it now.”

Frankly, I don’t necessarily believe that the questioner has “got it.” As far as I know, she may just be being nice, continuing to adhere to her misdirected view of the issue, but realizing that further exchange on the matter will do neither of us any good. Contrary to what some might believe, I don’t really care if anyone agrees with me. Here at FELTG, we don’t see it as our job to convince our participants of anything. Rather, it is our job to teach the conclusions we have reached based on many years of experience and study, and let you the student decide whether you agree or disagree. If you agree, fine. If you disagree, that’s fine, as well. Continue on your (misdirected) ways and let the consequences be what they may.

On rare occasions, however, we will bump into a participant who does see things this way, and who apparently sees it a responsibility to convince us that one of our instructors has said something that is wrong. Here’s an example of how one of those discussions goes:

[Me]: “In this situation, I’d suggest that you do X based on Y authority.”

[Participant]: “X is wrong. Z is the right answer because:

1 – I’ve always done Z.

2 – I was taught to do Z in a class I took years ago.

3 – I called my headquarters and they said that Z is the right answer.

4 – I heard a judge say that Z is correct.

5 – OPM regulations don’t say you can do X.

6 – I heard about a case in which the agency did X and it lost.

7 – I’ve been in this business as long as you have, and I’ve concluded that X is wrong.

8 – (And my favorite …) I don’t like X.”

Oh, poor participant. If only he would adopt the Five Suggestions, he might actually improve the performance of his craft. Be open-minded that there might be a better way to do things. Just because he’s always done something one way doesn’t mean it’s the only way. Look for more efficient approaches, not just the approach that he believes to be best. Consider new evidence, that being the conclusion of our instructor based on a lot of training and experience. Research the case law. Read the statute. And don’t rely on some case you read about in the newspaper.

Here are a few sample issues that have caused recent controversy, accompanied by our FELTG position on the matter:

  • An agency can unilaterally suspend an employee without taking away his pay and then count the suspension as progressive discipline.

FELTG: An agency and an employee can enter into an agreement where a “paper” suspension equates to a prior act of discipline for progressive discipline purposes. However, without such an agreement the law requires there to be a loss of pay for there to be a suspension cognizant under Chapter 75.

  • An agency needs a lot of proof of unacceptable performance to initiate a Performance Demonstration Period (DP, formerly a PIP).

FELTG: An agency has to reach a judgment that the employee’s performance is unacceptable before initiating a DP, but it will not have to prove the DP was warranted in an appeal to the Board of an eventual removal for DP failure.

  • Douglas factors should not be included in the proposal letter, only the decision letter.

FELTG: The employee is entitled to have the Douglas factors in the proposal letter according to the Douglas decision itself, and to satisfy due process.

If you disagree with any of these, that’s OK here. We’d just hope that you could learn to keep an open mind and do the research yourself for support of an alternative answer. If you’ll do that, we’ll keep answering your questions as best we can based on our experience and education. Join me and FELTG President Deborah Hopkins for a spirited week of discussion during the next MSPB Law Week March 9-13 in Washington, DC. [email protected]

What’ll It Be, Mack? The Easy Way, or the Hard Way?

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By Deborah Hopkins, January 21, 2020

My colleague Bill Wiley has long preached the value of taking the easy route vs. the hard route. An example he has often used in our Washington, DC classes goes something like this:

If you’re in Washington, DC, and you want to get to Baltimore, the fastest and most direct way to get there is to take I-95 north. Of course, there are other ways to get to Baltimore from DC. You could hop on I-66 and head out toward West Virginia, come up north across western Maryland and on into central Pennsylvania, then drive east on the Pennsylvania turnpike before heading to Baltimore south on I-95 via Philadelphia. But why would you take the long route and waste all that time and fuel, when you could be there in less than an hour by taking the quickest route?

I want to look at  a 2019 Federal Circuit decision [PDF] with this easy-vs-hard approach in mind. The case involves a VA psychologist named Eric Cerwonka who was removed from his position as a Clinical Psychologist at a VA medical center in Alexandria, La. Cerwonka appealed his removal to the MSPB and ultimately petitioned for review by the Federal Circuit.

Here’s what happened: The state of Louisiana took away Cerwonka’s license to practice for “clear ethical violations and a repeated failure to follow the rules and regulations binding upon [him] as a psychologist.” Once the VA learned Cerwonka’s license had been revoked, it proposed his removal based on one charge: failure to maintain a current license, in violation of 38 U.S.C. § 7402(f). The statute provides that a psychologist “may not be employed” by the VA if even one of his licenses is terminated for cause.

Cerwonka appealed to Louisiana over the license revocation. The state temporarily reinstated his license, as is typical procedure in appeals of license revocations. Cerwonka appealed his removal to the MSPB and argued that the subsequent reinstatement of his license meant the VA did not have cause to remove him because he once again had his license to practice.

The Board’s role in these cases – and thus the Federal Circuit’s jurisdiction in appeals and PFRs – is limited to reviewing Federal agency personnel actions and determining whether those actions were proper at the time they were made. See 5 C.F.R. § 1201.4(f) (defining the term “appeal” to the Board as “[a] request for review of an agency action”).

In the initial decision, the AJ concluded that the agency action under review — Cerwonka’s removal — was proper at the time it was made. Because Cerwonka’s Louisiana license had been revoked, for cause, at the time the agency removed him from employment, he did not have a license on the day the agency issued his removal, and Cerwonka did not present any evidence to refute this fact. The express terms of the statute compels removal and does not permit the VA to consider subsequent events, such as the reinstatement of a license at a later date. The Federal Circuit put it this way:

To the extent Cerwonka is arguing that the Board must consider subsequent events or that there should be a waiting period prior to removal to give an opportunity for an appeal, those arguments find no support in the statute, and we decline Cerwonka’s invitation to read exceptions into the express terms of 38 U.S.C. § 7402(f).

Which brings me to the point of this article. The agency could have drafted up a fancy proposed removal with perhaps multiple charges revealing Cerwonka’s misconduct and how the ethical violations he engaged in caused harm to the agency. It could have proven the facts, and the elements of each charge, by a preponderance of the evidence. And it could have justified the removal penalty by showing that because Cerwonka’s ethics were called into question, he was no longer trustworthy in his role and, accordingly, the agency lost confidence is his ability to do his job. Then if Cerwonka had appealed to the MSPB, the agency could have defended its charges. As we teach in FELTG training classes, doing that is not nearly as difficult as you might think.

However, in this case, the agency made a smart call. Rather than try to build a case over misconduct, it took an even easier and more efficient route by proposing removal for failure to maintain a current license:

  1. A license is required to have this job today;
  2. Your license is revoked as of today;
  3. No license = you’re fired.

Get where you want to be the easiest way. Take I-95 to Baltimore – or better yet take the MARC or Amtrak – rather than go the circuitous route. Make your life easier, when you can. [email protected]

And Now a Word With … Michael Bogdanow

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By Dan Gephart, January 7, 2020

Michael Bogdanow, Acting Director of Regional Operations, Merit Systems Protection Board

When I first started working in the area federal employment law many years ago, I called around, looking for advice. One highly regarded and experienced attorney told me: If you need to understand anything at all about the Merit Systems Protection Board, talk to Michael Bogdanow (see photo).

I’ve been lucky enough to work with Bogdanow, MSPB’s Acting Director of Regional Operations, on a conference advisory board and to see him present many times. Whether it’s case law, procedure, or MSPB history, Bogdanow speaks with intelligence and authority, in his own unpretentious manner.

It makes sense that Bogdanow knows MSPB history. He has lived it. Not only was Bogdanow there at the agency’s inception, he actually worked for several years with the Board’s predecessor – the Civil Service Commission. The Board has faced its share of tests over its 40-plus years in existence, yet nothing like what’s happening now. It’s been three years since the Board lost its quorum, and it will soon be a whole year that the agency has gone without any Board members at all. Meanwhile, the pile of PFRs awaiting Board review continues to grow. (For more on that, be sure to read our earlier interviews with MSPB General Counsel Tristan Leavitt and James Read, Director, Policy and Evaluation.)

Bogdanow noted that Board has “always been ready to meet huge challenges.”

“Within its first three years, [the MSPB] was hit with about 11,000 appeals filed by fired striking air traffic controllers,” Bogdanow said. “And in 2013, three times that number of furlough appeals were filed as a result of sequestration. In both instances, the AJs and the Board worked almost non-stop to assure that the appeals would be decided with as little disruption to the normal workload as was possible under the circumstances.”

There is one thing that hasn’t changed over the MSPB’s long history, and that’s the myth that it’s impossible to fire a fed. That’s where we started our conversation with Bogdanow.

DG: Why do you think that myth persists that it’s impossible to terminate a federal employee, and what can be done to shatter it?

MB: You are certainly right, this is a persistent myth. One of the motivations for enacting the Civil Service Reform Act of 1978 was that same myth. A lot of changes were implemented in the law to put it to rest, but they did not succeed in ending it, and now more than 40 years later, the same argument endures.

However, OPM recorded a total of 29,785 executive branch employees who were removed for cause in fiscal years 2013-2017, and that number is far lower than the actual number because OPM does not track actions taken by the Postal Service, the intelligence community, and certain other agencies. During that same period, the Board decided more than 44,000 adverse action appeals, and fewer than 600 of them were reversed or mitigated.

I think that a significant part of the reason for the belief that federal employees cannot be terminated is that there are laws and regulations, as well as agency policies and procedures, that establish the system for removing employees, and to agency officials who do not use them regularly, they may seem daunting. In fact, those authorities are guides for how to take and prosecute such actions, and, if followed carefully, the process will become more obvious and yield the result the agency expects. It is not an exaggeration to say that the Board frequently sees lack of proper preparation both before agencies take an adverse action and also in prosecuting the action on appeal that contribute to the perceived difficulty of making a removal action stick. (Needless to say, we see this from both parties.) Of course, agencies must also be prepared to defend themselves against affirmative defenses appellants may bring, most frequently discrimination and whistleblower retaliation claims.

I should note that an MSPB Office of Policy & Evaluation publication in December 2016 found that rather than preponderant evidence, which is the standard required for proof of an adverse action before the Board, “90 percent of proposing officials and 84 percent of deciding officials reported that the standard they used was ‘beyond a reasonable doubt,’” the standard used in criminal proceedings. Thus, management’s perceptions of the hurdles faced in taking an action actually exaggerate their difficulty. That same publication noted the three greatest perceived barriers to removal were the agency’s culture toward taking such actions, the level of support given by managers and leaders, and the quality of service provided by the human resources office, none of which is attributable to the systems created by title 5 or to the MSPB.

In short, while nothing will guarantee 100 percent success, I would suggest that better preparation, from before an action is proposed and throughout the appeal process, would help shatter the myth.

DG: Why are removals most often overturned?

MB: MSPB generates statistics on many aspects of the appeals we address, and for adverse actions and performance-based cases, that includes the number and percentage of cases reversed on procedures, on the merits, because of a finding of discrimination, and because of a prohibited personnel practice (PPP) other than discrimination. Those statistics do not break down the categories based on the specific procedural failure or the problem found with the merits of the case. Leaving aside the number of cases reversed because of discrimination or a PPP, which are relatively small, the percentage of cases reversed on procedures is consistently lower than the percentage reversed on the merits.

To me that suggests that, contrary to the view that reviewing authorities like the Board throw procedural obstacles in the way of agencies so that they lose meritorious cases on the basis of insignificant or irrelevant procedures, in fact, it is the agency’s failure to meet its burden of proof that causes most reversals. In my view, agencies’ failure to do their homework by thoroughly investigating before bringing charges and preparing their cases to make the most persuasive presentation to the Administrative Judges and the Board account for a substantial percentage of merits reversals.

Another important aspect of Board caselaw that is frequently given insufficient attention is being sure to bring the correct charge. Because the Board and courts over the years have attached significance to the words used in a charge, and have insisted that agencies prove what they claim, agencies must know that criminal charges require proof of all elements of the crime, and that certain misconduct charges require proof of the employee’s intent. The distinctions between charges such as “theft” and unauthorized possession, between “insubordination” and failure to follow instructions, “falsification” and misstatement or lack of candor, between “threats” and inappropriate conduct, all make a tremendous difference in the proof an agency must present. If an agency has not assured itself that it can prove the specific charge it brought, it is unlikely to prevail.

Is that fair? Ask the employee who may be branded a “thief” when his only misconduct was that he borrowed or had unauthorized possession of government property, or the employee tarred as being insubordinate when he simply failed to follow a supervisor’s instructions.

There is little doubt that over the years, more attorneys have become skilled at raising challenges to adverse actions taken against their clients, which has led to increasingly technical, “legalistic” arguments. Moreover, adverse actions and performance-based actions were both created by Congress, so are statutory in nature, and are reviewable at a US Court of Appeals. As a result, the parties must both be prepared to argue and respond to the due process requirements of statute in an increasingly law-based environment.

DG: Only about 5 percent of terminations are for poor performance, and the rest are for misconduct. Why is there such a disparity?

MB: If your question really is why there are so many more actions taken because of misconduct than poor performance, I’d say that’s because there’s an infinite variety of misconduct on which charges can be based, misconduct is generally pretty obvious, it can be a one-time act, and it tends to get supervisors’ attention more quickly than does poor performance. Moreover, taking an action for misconduct does not require that the agency first take a set of steps to address the misconduct.

However, if you are asking why more actions based on performance are taken under chapter 75 (“adverse actions”) than chapter 43 (“performance appraisal”), I’d venture to say that although the CSRA was intended to make it easier to take action against poor performers, agencies have not found that to be the case. Chapter 43 establishes a system, one that governs not just separating or demoting a poor performer, but also establishing performance requirements, rewarding good performance, appraising performance, and providing an opportunity to demonstrate acceptable performance before removing an employee. Thus, there are more preparatory steps an agency must take to be able to effect an action under chapter 43. Still, the heart of chapter 43 is found in employee performance standards, which must be written so as to inform an employee of the tasks he must perform and the specific indicia of performance he must demonstrate in order to be rated at the various levels against which he is measured.

Absent valid performance standards, an action under chapter 43 will not succeed, and because a chapter 75 action based on performance may not be sustained if the performance at issue is “governed by and meets” the performance standards, valid standards are one chapter 43 requirement that cannot be ignored. Make no mistake, writing proper, understandable, substantive performance standards is often difficult, but Congress clearly expected that such standards would be implemented for the benefit of both the employee and the agency. In return for doing all of the required preparation before an action is taken, Congress gave agencies two major advantages over chapter 75. First, their action will be sustained if they meet a lower burden of proof, substantial evidence rather than preponderance of the evidence, and second, the Board may not mitigate a chapter 43 action where the poor performance is proven.

Board cases show that not only do some agencies fail to draft sufficient performance standards, but they may also add specific requirements to the process for taking an action under chapter 43 that are not imposed by regulation or case law. For instance, while the statute and the Board require that an employee be given an “opportunity to demonstrate acceptable performance” before an action is taken, neither has specified what the opportunity must consist of, how long it must be, or that training is a necessary component. Many agencies, though, add such requirements in their own policy and procedure documents.

Regardless of which of the two questions you are asking, I think the short answer is that taking an adverse action, even one based on performance, is a lot quicker, requires fewer preparatory steps, and can be accomplished even if all of the safeguards set by chapter 43 are not in place.

DG: What information could our readers learn that could make them more likely to pursue a removal for poor performance?

MB: I’m not sure that I know how to answer that question. Agencies have certainly had enough time to get comfortable with chapter 43 requirements, so suggesting that they become familiar with chapter 43 and even some of the legislative history of the CSRA that explains the reasons Congress chose to establish it might not be enough. It is, though, good management practice to comply with the requirements of chapter 43, not just for taking actions against poor performers, but also to do what 5 U.S.C. § 4302(a)(3) requires, to “use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, … [and] retaining … employees.”

Agencies must have performance standards for their employees, and if those standards are valid and accurate measures, the hardest part of the chapter 43 process is already done. Providing an “opportunity to demonstrate acceptable performance” as required by § 4302(b)(6), means just providing a chance for the employee to work for a reasonable period of time (which depends on the nature of the work) on his or her regular tasks so as to be able to show the ability to successfully perform those duties – or not. Therefore, the remaining parts of chapter 43 should all be straightforward, and in return, the agency will have a considerably lighter burden of proof if the employee files an appeal, and its action will be insulated from mitigation.

One other thing I would mention: I have often been asked to speak to agency groups about chapter 43, and when I ask why, since MSPB rarely sees appeals from chapter 43 actions, I’ve been told on several occasions that once an employee goes through the chapter 43 pre-action process and is unsuccessful, he recognizes that he is better off moving on to a job he is better able to perform than to fight the action.

[email protected]

The Top 10 FELTG Newsletter Stories of 2019

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By Dan Gephart, December 17, 2019

Before we put the wrap on 2019, all of us here at FELTG Headquarters want to thank all of you who make up what our Past President William Wiley dubbed “FELTG Nation” —  our great attendees, customers, and readers. It’s been quite a year as we all worked together to make the government’s accountability systems more efficient.

We couldn’t do what we do without our uber-talented group of instructors, including Barbara Haga, Katherine Atkinson, Ann Boehm, Meghan Droste, Dwight Lewis, Anthony Marchese, Shana Palmieri, Jim Protin, Ricky Rowe, and Joe Schimansky. And we can’t forget the continuing contributions of Bill Wiley and our other past president Ernie Hadley – two absolute legends in the field of federal employment law.

Unless any major stories break before then, we will see you all again in the new year. And it’s a big one for FELTG, as it marks our 20th year of federal employment law training. Meanwhile, we’re expecting Supreme Court decisions on age discrimination and gender stereotyping, both of which will have a major impact on the federal workplace, as will OPM’s regulations implementing President Trump’s executive orders. And we’ll continue to wait with our remaining ounce of patience for someone – anyone, actually – to fill the empty positions on the Merit Systems Protection Board.

For now, let’s take a look back at this year. Introducing the 10 most popular articles (based on the number of reads and forwards) from the FELTG Newsletter in 2019.

  1. Can an Agency Track Down a Former Employee and Discipline Him?
  2. Out of Control
  3. The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems
  4. Cook-ing a Sick Employee
  5. Can You Fire a Federal Employee for Body Odor or Bad Hygiene?
  6. Deep-fried Cubicle Chicken, Naked Employees, and Unwritten Rules
  7. Legitimate Non-Discriminatory Reasons When Preselection is a Defense
  8. Cook, McCauley, and Savage: What if AWOL is Involved?
  9. Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?
  10. Excessive Absence and the Third Cook Factor

Here’s to a wonderful holiday season and a successful 2020 for all!

Yes, ADHD Actually is a Disability – and NO, All Kindergartners Don’t Have It

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By Deborah Hopkins, December 3, 2019

My brother is several years younger than I am, and I remember when he was in kindergarten, his teacher recommended he go on Ritalin because he was hyper and she thought he had ADHD. My parents were taken aback and started talking to other parents who had children in my brother’s class. It turns out the teacher had recommended that 22 out of 25 of her students go on Ritalin.

I’m no medical expert, but I can tell you that 22 kids in his class did not have ADHD; they were five and six years old and had energy, as kids do. Maybe the teacher should have opted for a classroom of students who were a bit older, but I digress.

As we teach during the behavioral health day of Emerging Issues Week (next offered in Washington, DC, July 20-24), ADHD is a brain disorder with a pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development. This may include:

  • Inattention – individual wanders off task, lacks persistence, or has difficulty sustaining focus.
  • Hyperactivity – individual moves about constantly, excessively fidgets, taps, or talks. The individual is frequently restless.
  • Impulsivity – individual makes quick decisions without thinking through them first; may have a desire for immediate gratification and/or may be socially intrusive.

Note: These problems are not due to defiance, lack of comprehension or substance use.

I’m not sure if the over-diagnosis of ADHD in the 1980s and 1990s has led agencies to believe it is not a legitimate disability, but don’t make that mistake. ADHD does exist and for the people who have this condition, the symptoms and effects are very real.

If you’ve been in this business longer than five minutes, you are aware that Americans With Disabilities Act, the Rehabilitation Act, and the various amendments to these laws provide employment protections to certain people with disabilities.

In order to be covered the employee or applicant must:

–      Have a physical or mental impairment that substantially limits one or more of the major life activities of such individual,

–      Have a record of such an impairment, or

–      Be regarded as having such an impairment

42 USC § 12102(1).

Obvious physical impairments are sometimes handled better by agencies than mental impairments. Indeed, a number of mental impairments, such as ADHD, are what we refer to as “hidden,” “unseen,” or “invisible” disabilities. While it’s true that many physical disabilities are also invisible to the observer, there have been too many cases where agencies denied reasonable accommodation to employees with unseen mental impairments.

I’d like to look at two cases involving ADHD.

In the first, the complainant, who had ADHD, had a difficult time concentrating, so she requested to be moved to a quieter work area. Though the agency agreed the complainant had a disability, it took two years (!!!) before it addressed her request to move to a quieter, low-traffic area to work. She also requested she be allowed to do work that “focused on the task at hand,” be allowed to avoid multi-tasking whenever possible, and that the agency provide her with time to readjust when moving from one thing to another and time to formulate ideas when trying to streamline questions or statements. The agency did not grant these additional requests beyond the workspace move, and the complainant’s performance rating was affected as a result. The Commission found the agency did not show it would be an undue hardship to consider these requests and ordered the agency to expunge negative performance reviews from her file, and to consider the complainant’s claim for compensatory damages. Michelle G. v. Treasury, EEOC Appeal No. 0120132463 (May 13, 2016).

In the second ADHD case, the complainant’s condition substantially limited her ability to concentrate. She also experienced side effects from multiple medications which further affected her ability to concentrate. Her request for accommodation included a medical note that stated, “cannot concentrate in loud open cubicle environment.” She requested a regular telework schedule, a private office or cubicle, or a modified work schedule. The agency requested additional information, which the complainant responded. Her medical documentation noted that the cubicle location allowed “for too many distractions for her disability” and that she “needed to work in the most distraction-free environment possible (e.g., a private office or quiet cubicle away from noise and/or distractions).” This did not satisfy the agency, so they asked for more. Once again, the complainant complied. Her doctor explained that she was: [H]aving difficulty wrapping up the final details of a project, organizing things, evidencing signs of physical and mental restlessness, easily distracted by noise, talking too much and interrupting people, and trouble waiting her turn, which Complainant’s doctor described as “classic signs of ADHD.” The complainant’s doctor added that medication “was not the full answer” and that “ADHD impact[ed] upon one’s ability to care for self, to speak appropriately, to interact with others, to concentrate and to work effectively.” The agency considered this medical documentation insufficient, so the complainant filed an EEO complaint over the denial of reasonable accommodation.

Eventually, the Commission found that the Agency failed to present sufficient evidence that granting the complainant’s request would have been an undue hardship, and the complainant received $60,000 in non-pecuniary damages, plus pecuniary damages and attorney’s fees. That’s an expensive lesson to learn. Selma D. v. Education, EEOC Appeal No. 0720150015 (April 22, 2016). [Allow me to note that the original RA request came in 2007 and the decision was not issued until 2016. Talk about harm.] So, there you have it.

If you want more, there’s still time to join FELTG’s webinar Accommodating Hidden Disabilities in the Workplace this Thursday. [email protected]

And Now a Word With … James Read

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By Dan Gephart, November 5, 2019

Last month, we talked with MSPB General Counsel Tristan Leavitt about the adjudicatory and other work that the 200-plus employee agency continues to do despite not having any Board members since February. It’s a few weeks later and the Board still lacks members, while the lack of a quorum has inched even closer to hitting the three-year mark.

This month, we catch up with James Read. The former chief counsel for then-Member Robbins took over as director of the agency’s Policy and Evaluation office a few years ago. Read oversees the group of psychologists, HR specialists, statisticians, and lawyers who fulfill the agency’s statutory responsibility to conduct objective, non-partisan studies of the Federal civil service and other merit systems in the Executive Branch.

DG: How have your unit’s reports been hampered by the lack of a quorum?

JR: We’ve been putting out publications in shorter form since we lost the quorum, but it’s more than just length. The official reports as described in statute go to the President and Congress and are approved by the board, and they typically contain policy recommendations. They are only issued with approval of board members. Our thinking is that to the extent we can provide useful information through research briefs, we should. They are a little lighter on recommendations, but we have been putting out publications.

We have information about sexual harassment in the federal workplace that others don’t have. We’ve been releasing some of it, but an official report is on hold. Almost everything else we’ve been trying to convert to shorter publications.

DG: How do you measure whether a report is successful?

JR: We don’t have a hard measure. We look at the audience for which a report may be intended, and see what effect it had on the audience. Some reports are for policy makers. A successful report would be one that results in change of policy. An example would be our 2014 report that talked about veterans hiring, and a DOD-specific authority that was restricting competition for jobs and had other unintended consequences. Congress took it up and changed the law — and cited our report. That’s an example of success.

Other reports, we intend as educational pieces. Some are intended for managers and new leaders to help educate them. I’ve heard of chief learning officers in agencies using our reports to design in-house training. When that happens, a report did its job.

Sometimes, reports are intended for multiple audiences at the same time. We’ll have practice pointers intended for HR and managers, footnotes and appendices intended for researchers, people trying to replicate the work in their organization. We believe it’s important to show our work, so we remain credible. We’re not just sitting here in an ivory tower contemplating. We have an empirical basis for our findings.

DG: You recently asked for input on what reports people want to see. What kind of input did you get? What reports will you be doing based on that feedback?

JR: (We received) hundreds of ideas. The last time we went out asking for ideas was 2014, so five years on we felt we needed to refresh the ideas. The timing seemed to make sense with the lack of quorum. We went out to stakeholders, unions, chief human capital officers, affinity groups, and individuals. A lot of what we got were variations on themes of what we’ve seen throughout the years: Are whistleblower protections adequate? How can we improve the hiring, classification, compensation and performance management systems? Are they due for overhauls? How does the government adapt to changing expectations of younger workers? What alternatives might there be to the Title 5 system? We’ve been vetting and refining the ideas for several weeks now. Our goal is to have a proposed agenda to present to the new chairman when he arrives.

DG: What has been the most controversial report you’ve done?

JR:  A 2015 report of how agencies use various appointing authorities and the results of the different choices agencies make caused a bit of a stir. The report found Title 5 hiring rules systematically favor men over women. We found, for example, that since the 1970s, women’s participation in general civilian labor force grew from the lower 30 percent range to almost 50 percent, but in many years the government was not even reaching 40 percent.

The Civil Service Reform Act of 1978 states that the Government should strive to achieve a workforce representative of all segments of society. For many years now, women have been earning more bachelor’s degrees than men and they make up almost half the civilian workforce, yet under 40 percent of new hiring is women. This took people by surprise. They thought we were attacking OPM, and that was certainly not the intention. The biggest question raised by report was: What do we do about this?

One side note: We were criticized for not including VA nurses. If we had included them in the percentage of women as new hires, it would’ve been higher. But in a way, that criticism showed our point. We were looking at Title 5 hiring, and the nurses at the VA are hired under Title 38. So staying within Title 5 world, you do see a hiring system that appears to disadvantage women.

DG: Will you follow up on this report?

JR: I’d like to follow up. The last time I looked at the numbers was for FY 16 and they hadn’t budged. It’s a good area for follow-up, not a full-blown report but a dive into the statistics. It may be that to some extent women are making individual choices not to seek government employment in the same numbers as men do, so we need to study the applicant pool.

DG: The Supreme Court will rule this term on whether Title VII covers discrimination based on sexual orientation. You did a report on that a few years ago. However, that report wasn’t controversial. 

JR: There had been questions swirling for years: What’s the source of the prohibition? Title VII of the Civil Rights Act? The CSRA of 1978? Something else? We looked at the history of systematic discrimination against gay employees and the gradual change of view to acceptance. Clarity regarding the legal prohibitions was needed, but MSPB had be extremely careful not to come down on one side or another because MSPB is not a policy-making body. Every year since 2000 or so, there was someone in the House who introduced a bill to amend Title VII to prohibit discrimination in employment based on sexual orientation. We didn’t want to look like we were taking a side in the debate. We were expecting some backlash from the report, and we didn’t get it. The report was well-received.

DG: What other reports have had impact?

JR: There was a pair of related publications from 2015. One was a full report on due process, an official report to the President and Congress. Another report was on adverse actions. Deb (Hopkins, FELTG President) quoted from it in your newsletter recently, and that’s an illustration of its lasting power. In 2014-15, influential voices were saying “the system is broken, and you cannot fire a federal employee. Maybe we should go at-will.” It turned out that many people managing in the system didn’t understand it. They thought you needed a higher standard of proof to fire a federal employee than the law requires, and we pointed out that’s not the case. We developed an outreach program around the publications. The message I tried to deliver was managers need to understand the system and have the will to act, and the support of the agency. We don’t need to throw out rules or abandon due process.

DG: What do you see as the most significant challenge facing the civil service in the next 10 years?

JR: The relationship between Washington and local agencies needs to be recalibrated. I’m not suggesting one direction or another. Look at what happened in ’90s. OPM was cut in half in terms of its resources and authorities were delegated to the field. In the area of hiring, for example, you see the difficulties in the system. Twenty-five years ago there was the symbolic burning of the (Federal Personnel Manual). The rules and the laws upon which they were based were not repealed, however, even as OPM delegated authority to several hundreds of offices that now have the responsibility for developing sound recruitment strategies and rigorous legally compliant assessments, and then evaluating applications. That’s hard for a typical HR office to do that well; the exceptions would be the really big departments with ample resources and expertise that hire many people under same job series on a regular basis. In other words, hiring might not be susceptible to effective scaling down.

The challenge is recalibrating the model of central HR policymaking with local decision-making and execution in such a way that HR can be done better. We’ve been studying the effectiveness of the HR workforce, and are finding that there’s great dissatisfaction among managers and agency leaders on what they are getting from their HR shops. It’s not necessarily the fault of the people in HR. The dissatisfaction may stem from the challenges intrinsic to the current decentralized model.

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