The Presidential Impeachment Inquiry and FELTG Training

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By William Wiley, October 29, 2019

As the inquiry into impeachment continues on Capitol Hill, many talking heads and so-called experts are accusing those running the inquiry of being unfair. We here at FELTG love teaching moments. And the impeachment inquiry arguments provide a great opportunity for us to hammer home some basics about federal workplace investigations.

  • Secret interrogations. A number of media personalities are all bent out of shape that the House Intelligence Committee is questioning witnesses in private rather than in a public forum. Well, that’s the first hour of FELTG’s Workplace Investigations program. [Join us for our next Workplace Investigations Week, which will be held November 4-8 in Washington, DC.] Frankly, you shouldn’t have to attend the training to realize that when you’re investigating possible misconduct involving many witnesses, you don’t want the witnesses getting together and aligning their stories with each other. You want to hear each person’s independent view of events without reliance on what someone else heard or saw. Studies show us that when witnesses are exposed to the testimony of others, subconsciously they often draw details or judgments from that testimony. It’s not necessarily a conscious attempt to mislead. It’s just that we as humans in a neutral setting don’t want to seem out of step with what others are thinking. Were the committee’s investigative sessions open to the public, each witness possibly would have been influenced by the testimony of the previous public witnesses. That would undermine the validity of the investigation process, as we teach in our training classes.
  • Refusal to appear. It has been reported that a number of individuals who were subpoenaed by Congress were ordered by their supervisors not to comply with the subpoenas, to refuse to testify, and/or not produce the requested documents. One talk show expert stated that he would always advise his client to obey his supervisor’s order, or risk being fired. Well, that’s just the opposite of what FELTG teaches in its UnCivil Servant seminar for supervisors. If an employee is ordered to do something illegal, he should refuse to do it. As we sometimes say in class, “We can get you another job a lot more easily than we can get you out of jail.” Obedience to a supervisor’s directive does not shelter the employee from criminal prosecution. MSPB will refuse to uphold a removal for misconduct if it finds that the supervisor’s order was illegal. In addition, the Follow the Rules Act, passed in 2017, amended 5 USC 2302(b)(9) to allow an employee to refuse to follow an order he believes violates a regulation or agency rule – not just a statute.
  • Preliminary conclusions. As the chairman of the House Judiciary Committee walked out of a closed-door session last week, a reporter called out to him, “Do you have enough evidence to impeach yet?” The chairman, wisely, just kept walking without answering. The very LAST thing you want to do when conducting an investigation into possible misconduct is to reach a preliminary conclusion about what the outcome will be. The science is full of studies, as FELTG teaches in its investigations class, that show that simply suggesting a possible conclusion to an investigator before the investigation concludes skews the investigator’s results toward that conclusion. In one famous study, fingerprint experts who were preliminarily told that the prints being studied “probably” belonged to the suspect were 60% more likely to find that the fingerprints did indeed belong to that suspect. The conclusions of an investigation should not be made until all the evidence is in.

With all modesty, this is basic stuff. FELTG prides itself on getting the basics in place and then building up from there. We don’t do a lot of training on Capitol Hill or in CNN/FOX/MSNBC newsrooms, but we’d be happy to present a session. You can’t really reach meaningful conclusions about the hard bits if you don’t understand the fundamentals. [email protected]

SCOTUS Watch 2019: Does Title VII Cover Discrimination Based on Sexual Orientation or Gender Identity?

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By Meghan Droste, October 22, 2019

The Supreme Court heard arguments on October 8 in what I am sure will prove to be three landmark cases: Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The first two cases, which the Court consolidated for arguments, raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation. The Harris Funeral Homes case raises the question of whether those same protections prohibit discrimination on the basis of gender identity.

These questions are settled law in the federal sector. The Commission concluded in 2012 that Title VII protects gender identity and in 2015 that sexual orientation is covered. Appeals courts were split, however, on these issues as they apply to private and public sector employees. For that reason, the Supreme Court is now poised to answer these questions for the entire country, and potentially reverse EEOC precedents.

The employees in these cases argue that “sex” as understood in Title VII must encompass discrimination on the basis of sexual orientation and gender identity. As the Commission found in the Macy v. Department of Justice and Baldwin v. Department of Transportation cases, the employees assert that these forms of discrimination inherently take into account their sex and, therefore, their employers discriminated against them “because of … sex,” as prohibited by Title VII. They also point to the idea of sex stereotyping, arguing, as the EEOC found, that these forms of discrimination may be due to stereotypes regarding who an individual should be attracted to and what reproductive organs men and women should possess. Finally, the employees pointed to the Supreme Court’s decision in Oncale v. Sundowner Systems, in which the Court rejected arguments that Congress could not have intended to prohibit same-sex sexual harassment, to argue that Congress’s understanding of sex, sexual orientation, and gender identity is not the correct question in these cases.

Those who observed the arguments have reported that it is unclear how the Court will come out on these cases. For example, while Justice Gorsuch appeared to find that taking an employee’s sexual orientation into account necessarily involves sex, he also cautioned against “massive social upheaval.”

I urge all federal sector practitioners to keep an eye out for the Court’s decisions in these cases. While the Court may issue them as early as January, I expect that we won’t see anything until closer to the end of the term in June. [email protected]

FELTG Sets the Record Straight on Whistleblowing

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By Deborah Hopkins and William Wiley, October 8, 2019

We’ve been reading and hearing a lot lately about whistleblowers, most recently about the Ukraine/Biden/Trump situation. We’re not here to discuss the merits of the complaint about President Trump’s conversation with Ukrainian President Zelensky, and we’re not here to discuss politics. We’re here to clarify that the media and numerous folks in Washington have (yet again) gotten a lot of things wrong in talking about this mysterious intelligence community whistleblower.

In discussions about the whistleblower’s motive for making the disclosure, one of the themes that keeps coming out is, “The whistleblower is a partisan.” Well, guess what? Even if that’s true, it’s irrelevant because when it comes to whistleblowing, the motive does not matter.

That’s right, whether a whistleblower makes the public aware of waste, fraud and abuse because he wants to save the world, or whether he does it to get the President impeached, the law protects him anyway, as long as he meets the legal requirements of whistleblowing.

To be protected a whistleblower must disclose:

  • Violation of law, rule, or regulation;
  • Gross mismanagement or gross waste of funds;
  • Substantial and specific danger to public health or safety; or
  • Abuse of authority.

While there is statutory protection and a Presidential Policy Directive (PPD-19) that covers whistleblowing by intelligence community employees, the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act cover a large group of employees in the federal sector non-intelligence communities. That’s what we’ll discuss here today, because these are the statutes that apply to most FELTG readers.  [Editor’s note: House Democrats Ted Lieu (Calif.) and Don Beyer (Va.) recently updated and released a whistleblower guide for federal employees that you may find of interest.]

Let’s start with a little history lesson. Following the implementation of the Civil Service Reform Act (CSRA), a whistleblower’s disclosures were not considered protected if the employee’s “primary motivation” was not for the public good, but rather for was for his own personal motives. See Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed. Cir. 1986). However, in subsequent years, the Federal Circuit determined it had improperly reached that conclusion because nothing in the CSRA requires an employee’s motives should be considered in determining whether a disclosure is protected. Id.; see also Horton v. Department of the Navy, 66 F.3d 279, 282-283 (Fed. Cir. 1995).

In 1988, Congress decided that a whistleblower’s motivation should not be considered, and that all employees should be encouraged to alert the public of waste, fraud and abuse. “The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.” S. Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988). Id.

As we said above, under 5 USC § 2302(b)(8), disclosures of information that the employee making the disclosures “reasonably believes” evidences certain kinds of wrongdoing are protected. The only time bias or motivation might enter the picture is in testing reasonableness of belief in blowing the whistle — and, warning, it’s an uphill battle. While bias and self-interest may be considered in testing the reasonableness of belief, bias alone does not determine that a whistleblower does not have a reasonable belief. LaChance v. White, 174 F.3d at 1381. Personal motivation, whether to save the world, ruin someone’s career, or something in between, does not per se affect reasonableness. Carter v. Army, 62 MSPR 393 (1994).

If “the employee is motivated by a desire to damage others’ reputations,” this fact alone is not dispositive, even though the whistleblower’s motives in making disclosures were to destroy his supervisor “during the course of an internal agency power struggle,” Fickie v. Army, 86 MSPR 525 (2000).

Separately, some in the press made a big issue that the whistleblower disclosed no first-hand information in the complaint, nor any other direct proof of the alleged impropriety that occurred in the President’s July 25 phone call. Again, that’s irrelevant as to whether the individual is a protected whistleblower. A whistleblower need only have a “reasonable belief” in the facts he is disclosing, not actual proof that the facts are as they are being described. In other words, if an individual is told something by a reliable source, and chooses to believe it because it makes sense to him, he is then protected if he discloses the believed facts in a whistleblower complaint. It’s the subsequent investigation of the complaint that is supposed to flesh out the facts based on credible evidence; it’s not up to the whistleblower to prove the allegations.

Some talking heads made an issue out of the belief that the employee is not a whistleblower because the alleged facts do not rise to the level of a crime. Well, federal employees are whistleblowers if they report things other than criminal activity; e.g., a simple abuse of authority or gross mismanagement will suffice to protect the discloser. The commission of a “high crime or misdemeanor” would be relevant to the impeachment process, but not to the status of being a whistleblower.

A lot of guests on talk TV have used harsh words to describe the whistleblower: traitor, spy, partisan hack, deep-state operative, rotten snitch, rat, back stabber, saboteur. In reality, a federal employee who believes that he or she has observed corruption committed by a government official is required by regulation to disclose that belief. A “basic obligation of public service” can be found at 5 CFR Sec. 2635.101

(a) Public service is a public trust. … To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section …

(b) …

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

Even if the individual personally did not want to disclose what appeared to be corruption being committed by a particular government official, the regulations mandates that a disclosure be made.

What does this all mean? It means Congress has afforded protections to whistleblowers higher than any other kind of protection in the civil service, and as long as the employee has a reasonable belief that the content of the protected disclosure is true, that whistleblower cannot legally be disciplined for making the disclosure – even if his goal was to make his boss look bad, get fired, or worse.

[email protected]; [email protected]

 

And Now a Word With … Tristan Leavitt

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Tristan Leavitt, General Counsel, Merit Systems Protection Board

By Dan Gephart, October 1, 2019

More than 200 employees work for the Merit Systems Protection Board in numerous regional and field offices across the country. But it’s the three offices that sit empty at the Board’s Washington, D.C., headquarters that have drawn the most attention.

It’s been more than seven months since then-Chairman Mark Robbins’ term expired. Robbins spent his last two years as the Board’s only member. The Board has lacked a quorum since January 2017 and, therefore, has been unable to issue final decisions on petitions for review for almost three years.

While those three offices on the MSPB’s Executive Floor sit dark, its career employees continue to toil away. We caught up with General Counsel Tristan Leavitt to find out what the MSPB has been doing – and what it has not been able to do – since former Chairman Susan Grundmann’s departure nearly three years ago, when the Board last had a quorum. Under the MSPB’s continuity of operations plan, Leavitt, as GC, has assumed the responsibilities for the executive and administrative functions vested in the Chairman.

Before joining MSPB a year ago, Leavitt was principal deputy special counsel at the U.S. Office of Special Counsel. He also worked for eight years on Capitol Hill, where he served on the staff of the House Oversight and Government Reform Committee and the Senate Judiciary Committee.

DG: Tell us about the work that continues on the adjudication side at MSPB.

LT: AJs have issued approximately 14,550 initial decisions since the Board first lost its quorum in January 2017. At that point, parties have two options. The first option is to submit a petition for review to the full Board, at which point MSPB’s Office of the Clerk dockets the appeal and MSPB’s Office of Appeals Counsel prepares a draft opinion for Board member consideration.

Of the approximately 2,325 PFRs currently pending at MSPB headquarters as of August 31, 2019 [PDF], 2,180 have had draft opinions prepared by the Office of Appeals Counsel. (MSPB publishes these numbers monthly.) If a petition for review of an initial decision isn’t filed within 35 days, the decision becomes the final decision of the MSPB, at which point the appellant may appeal it to the U.S. Court of Appeals for the Federal Circuit or, in whistleblower cases, to any U.S. Court of Appeals in the country.

In addition, mixed cases may be appealed to a U.S. district court. MSPB’s Office of General Counsel continues to review such federal filings and represents the MSPB as necessary in litigation.

DG: How many PFRs involve back pay or attorney’s fees?

TL:  MSPB doesn’t track at an enterprise level which PFRs involve back pay or attorney’s fees, but 177 are PFRs or cross-PFRs from agencies, and of those, 95 involved the AJ ordering some form of interim relief in the initial decision.

DG: What other work does the MSPB continue to do?

TL: In addition to these various functions surrounding adjudicative work, MSPB’s Office of Policy and Evaluation continues to conduct research pursuant to the agency’s statutory mission to conduct studies of the merit system. [Editor’s note: We’ll have more on the MSPB’s studies in an upcoming article.] Although MSPB does not issue final studies without a quorum, the agency has conducted research and prepared a number of draft reports for an incoming Board to review and consider publishing.

MSPB has also continued to publish a regular newsletter and issue smaller publications on useful topics such as Remedying Unacceptable Employee Performance in the Federal Civil Service, Improving Federal Leadership Through Better Probationary Practices, and The Perceived Incidence of Prohibited Personnel Practices.

DG: What functions have been impacted most, other than the growing PFRs, over the course of this lack of quorum?

TL: Besides the Board itself issuing no decisions, the largest impact on the adjudicative side is the inability to issue stays in response to requests from the Office of Special Counsel. MSPB is also impacted in its studies function and on the regulatory side, where the agency cannot promulgate substantive regulations in the absence of a quorum.

DG: Is there a plan or structure in place so that when Board members are confirmed, they can most efficiently begin to tackle the backlog?

TL: Because the approach to the backlog ultimately is the prerogative of a Board itself, it’s difficult to make definitive plans at this point regarding how to tackle the backlog. Nevertheless, MSPB has taken a number of steps to prepare to swiftly carry out whichever approach a new Board settles on. A new Board will be able to see which types of cases are in the backlog and how old they are. Staff have also drawn up various plans for dealing with the backlog, which the new Board may adopt or modify.

[email protected]

 

And Now a Word With … The Hatch Act Unit

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By Dan Gephart, September 10, 2019

It’s always interesting when federal employment law makes its way into mainstream conversation. After Kellyanne Conway’s failure to understand and comply with the Hatch Act made headlines, people who have yet to figure what kind of work I do were telling me about the Hatch Act.

Back in a previous life, I edited a book on compliance with the Hatch Act. In terms of length, the book was less Stephen King’s The Stand and more Shirley Jackson’s The Lottery. And like those aforementioned stories, the Hatch Act, which originally became law in 1939, had an element of horror: The punishment for Hatch Act violations was termination.

Then in 2012, the Hatch Act was updated to allow more discretion in punishment, along with several other provisions. This made sense. Some Hatch Act violations are more severe than the others. Thanks to the change in the law, the rise of social media, the overt politicization of almost every aspect of our lives, and the increasing divide in the country, the Hatch Act has become a lot more difficult to navigate.

However, you do not need a book to get your answers. The Office of Special Counsel oversees the Hatch Act. Its Hatch Act Unit, led by Ana Galindo-Marrone, handles all matters related to the law, and provides regular guidance. All you need to do is ask. If you are seeking advice about your political activity or the activity of another employee, under the Hatch Act, you may request an advisory opinion from OSC by calling (800) 854-2824 or (202) 804-7002. You can also email the Unit at [email protected].

Thank you to Ana Galindo-Marrone and her team at the Office of Special Counsel’s Hatch Act Unit for answering our questions.

DG: Must a federal employee’s personal social media account be free of any reference to their governmental position if they expect to post political content?

OSC: No. The Hatch Act does not prohibit employees from including their governmental position in the biographical information section of their social media account, even if they post political content on that account. However, if the employee is using the account for official purposes, the employee should not engage in political activity on that account.

DG: What Hatch Act violations are you seeing in this political cycle that are new or unexpected?

OSC: We are seeing more violations involving employees engaging in political activity in their official capacities, whether on official social media accounts or in the performance of their official duties. We also have received more complaints about employees openly stating or displaying their support or opposition to a candidate in the workplace.

DG: If a federal supervisor thinks one of her employees is in violation of the Hatch Act, what should she do?

OSC: Federal supervisors can call OSC’s Hatch Act Unit to discuss whether the employee’s activity violates the Hatch Act, and if so, the best course forward.

DG: If a federal employee’s relative is running for office, what are the limitations on the assistance a federal employee can provide to the campaign?

OSC: It depends on whether the employee is less restricted or further restricted. Less restricted employees, which are the majority of the federal workforce, generally may provide support to a relative’s campaign, as long as they do not:

  • Engage in any campaign-activity at work, including using social media or email.
  • Fundraise for the campaign by any means.
  • Use their position to assist the campaign by, for example, involving subordinate employees in the campaign or engaging in campaign activity in their official capacity.

Further restricted employees generally are those employed in intelligence and enforcement-type agencies or who hold certain positions, such as career SES. They may not take an active part in partisan political campaigning, which means they may not engage in any activity in concert with a political party or candidate for partisan political office (e.g., working as a campaign volunteer, distributing campaign materials, circulating nominating petitions, etc.). In addition to the limitations placed on less restricted employees, further restricted employees may not provide assistance to a relative’s campaign if such assistance is done in concert with the campaign. They may, however, make a monetary donation to the campaign, appear in a family photograph that is used for campaign purposes, or accompany the candidate to a campaign-event. [email protected]

Question of the Day: Why Do Agencies Discipline?

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By William Wiley, August 28, 2019

Every now and then, I’ll make a statement in a class, and some bright student will say: “Where did you get that?” If the issue has to do with something recent, often I am able to find a citation to a case decision or perhaps a regulation that resolves the question. But every now and again, I get a question about something that is so fundamental I can’t remember (nor find) where I got it.

For example, recently I was looking through some old Board decisions that made me ask the question: “Why do we discipline?” For many years, I have taught that the purpose of discipline is to correct behavior and prevent future occurrences, not to punish for the sake of retribution or extracting pain from the employee simply for the sake of extracting pain. However, when I tried to find the source of that answer, I found very little. The Merit Systems Protection Board doesn’t seem to have addressed the question. The Office of Personnel Management has some very nice regulations relative to the procedures by which discipline can be taken, with the admonition that it can only be taken for reasons that support the efficiency of the service. But that doesn’t really tell us much.

The answer to this question seems so fundamental that I am absolutely blown away that I cannot find what answer might be. And the answer is absolutely critical to assessing some of the actions taken by MSPB. For example, in 2015, the Board upheld the mitigation of a removal to a 180-day suspension (based on the mitigating circumstance of the employee’s medical condition). The employee’s misconduct was falling asleep at work. If the purpose of discipline is to correct misbehavior, does the Board really believe that a six-month suspension is necessary to motivate a sick employee not to be sick? In another decision a couple of days earlier, the Board concluded that a 30-day suspension was somehow appropriate for an individual suffering from major depressive disorder. I just cannot understand how that motivation could possibly be the right answer. See Banks v. DVA, CB-7121-15-0006-V-1 (Feb. 27, 2015)(NP), Bowman v. SBA, 2015 MSPB 18.But if that’s not the answer, what is? If we are not trying to correct behavior through negative reinforcement, then what the devil are we doing by disciplining employees? Would someone out there with a paygrade above mine (and as my pay grade is effectively GS-zero, so that includes everybody), please answer this question? If the purpose of discipline is to correct behavior, then the Board was absolutely crazy to be mitigating removals to 60-, 90-, 120-, and 180-day suspensions. There has never been a study nor is there a principle of psychology that supports discipline to correct behavior at this level of punishment. If there is another purpose for discipline, it would be terrific if we all knew what that was so that supervisors could take that into consideration when analyzing the Douglas Factors. [email protected]

A Two-for-One Removal

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By Deborah Hopkins, August 6, 2019

Here’s a scenario that came across the FELTG desk a few days ago:

Dear FELTG,

Let’s say, hypothetically, an agency has an employee who failed a PIP/demonstration period last week, and the agency is finishing up drafting his proposed removal.

Meanwhile, let’s say the supervisor sent an email to the employee pointing out his failure to submit leave requests as previously instructed and asking him to send them immediately. Instead of sending them, he calls the supervisor and unleashes a tirade – lots of “G-d damn,” “f*!king,” “sh!t,” screaming at the top of his lungs and calling the supervisor names. The supervisor’s door is closed, but the employee is on speakerphone, and people across the hall – also with their office doors closed – hear the tirade and are almost as upset and shocked as the supervisor.

The supervisor wants to do a misconduct removal, and considering the fact that the employee was just suspended for five days for similar inappropriate conduct towards a coworker, that’s probably not unreasonable. Also, the employee still hasn’t submitted those leave requests as instructed. In any event, some kind of discipline is warranted.

What should the agency do with the disciplinary proposal since a performance removal is imminent? Hold one in abeyance while the other is processed? Propose them both at the same time? It might be tempting to just forget about the discipline (since they’re removing the employee anyway), but what if the agency didn’t want to do that?

Sincerely,

Anonymous

 

And here are FELTG’s thoughts on the scenario:

Good to hear from you, Anonymous, and thanks for the hypothetical. This imaginary person has just made your case for removal even stronger.

The agency can issue one proposed removal letter with two sections: one for conduct and one for performance. I would start off with a subject line of Proposed Removal for Misconduct and Unacceptable Performance, and start the letter something like this:

By this letter I am proposing your removal for Conduct Unbecoming [or whatever you call that profanity-laced tirade], AWOL [for the amount of time not covered by a proper leave request], and for unacceptable performance, based on the below:

Then I’d make very clear in the letter where the conduct section starts and ends, and where section for the performance removal starts and ends. In the attachments of materials relied upon, be clear what materials relate to the conduct removal (such as Douglas analysis, any evidence, affidavits, etc.) and which relate to the performance removal (such as failed PIP assignments).

You don’t want to confuse the processes for yourself, or the employee, so you’ll need to be organized in the letter.

Also, if the Deciding Official concurs with removal, you’ll want to split out the decision sections for conduct and performance clearly as well. It would also be wise to include in the decision letter something to the effect of, “Removal is an appropriate penalty for the conduct issue alone, and for the performance issue alone.” Only if it’s true, of course. That way even if for some reason you lost one, you would still have the other one.

As a quick point, in the FELTG world this employee would not have had the chance to be confronted about leave requests and subsequently act disrespectfully to the supervisor the week after he failed the demonstration period (DP). Why, you ask? In our classes, we teach that if it looks like the employee is not going to succeed during the DP, the supervisor can begin to draft the proposed removal letter during the DP, based on the incidents of poor performance, so that the letter can be issued the day after the end of the DP. Immediately after we give the employee the proposed removal, we put the employee out on Notice Leave so he’s no longer in the workplace. That’s the ideal situation, if you are aggressive in your approach. And we like aggressive.

Hope this hypothetical helps. Good luck! [email protected]

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

And Now Another Word With … Steve Shih

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Portrait of Steve Shih on Wednesday, Dec. 6, 2017 at NASA Headquarters in Washington, DC. Photo Credit: (NASA/Joel Kowsky)

By Dan Gephart, July 30, 2019

Anyone who has ever attended a mediocre leadership training has surely heard the story of the Janitor and the President. Per the legend, President John F. Kennedy was touring NASA in the agency’s early days when he came upon a man sweeping the floor. The president asked him what he was doing. The janitor replied: “Mr. President, I am putting a man on the moon.”

The Janitor and the President is often shared as an example of how a great leader gets buy-in to organizational mission. I imagine that most of you, like me, recognize it as fiction more than reality. The story has more holes than the colander shelf at Bed Bath and Beyond.

What I don’t doubt, however, is the space agency’s amazing success at making all facets of the organization feel a part of the mission, especially when it comes to EEO/Diversity.

Today we pick up our conversation from earlier this month with Steve Shih, NASA’s Associate Administrator of Diversity and Equal Opportunity. (See Part I of the interview here.) Shih and I didn’t discuss the Janitor, President Kennedy, or the Moon Landing. (Happy 50th anniversary NASA!). But Shih did mention the Low-Boom Flight Demonstration (a supersonic flight with technology that reduces the loudness of a sonic boom), the International Space Station, the Parker Solar Probe, and Mars InSight Lander. All these projects are collaborations with academic, commercial and international partners. And they all are projects taken with Diversity & Inclusion (D&I) and EEO in mind, according to Shih.

DG: One of NASA’s most publicized goals is the return to the Moon by 2024. How is EEO part of that mission?

SS: D&I and EEO is an enabler for this exciting mission, including in our emphasis on the equitable and inclusive contributions of the entire diversity of NASA’s organizations and workforce, and our historical and inspirational plan to not only land Americans but to also land the first woman on the moon.

Every aspect of this mission from the rocket to the European Service Module, to the Gateway lunar outpost, to the Lunar Lander – will involve NASA’s collaboration and partnership with other sectors and other countries, and the services of our diverse Astronaut corps.

DG: You’ve worked for several agencies. How does agency culture define EEO’s approach, and how would someone go about changing that culture?

SS: Different agencies have different approaches and different strategic emphases on D&I and EEO. As leaders and practitioners in federal agencies, we have a responsibility to help provide leadership on shaping a culture of inclusiveness, fairness, and employee engagement … and to align culture, policies, programs, and personnel management towards mission accomplishment, both in achieving immediate priorities as well as sustainment of effective and efficient services to the American people.

 

At NASA, our leaders and workforce understand the importance of D&I and EEO for mission accomplishment. Our past and most current work provide abundant examples of accomplishments that required inclusive participation and teamwork across NASA and with external partners in other sectors and countries.

 

DG: How does an EEO professional create an environment where employees take EEO training seriously?

SS: Practitioners can best generate support and commitment for D&I and EEO including training, by ensuring D&I and EEO initiatives align to mission and offer value for agencies, organizations, and workforces. A value-added approach fosters an intrinsic motivation by individuals to support training or other programs, whereas a compliance approach (e.g., mandatory requirement) rests on an extrinsic motivation that not only may fail to create genuine commitment, but sometimes can cause resistance and resentment.

DG: In light of the #MeToo movement, what are some things agencies should know about harassment?

SS: Across our country, we’ve learned a great deal about contributing conditions and risk factors for harassment. Research informs us harassers often possess the following qualities: lack of empathy, belief in traditional gender roles, and a tendency toward dominance/authoritarianism, particularly involving power imbalances between individuals.

 

We know more about factors that increase the risk of workplace harassment, including:

  • Homogeneous workforces
  • Workplaces with cultures or social norms that permit or excuse harassment
  • Existence of cultural and language differences
  • Coarsened social discourse outside the workplace
  • Workforces with many young workers
  • Workforces with “high value” or “superstar” employees
  • Workplaces that rely on customer service or client satisfaction
  • Workplaces where work is monotonous or consists of low-intensity tasks
  • Isolated workspaces
  • Workplaces with cultures that tolerate or encourage alcohol consumption
  • Decentralized workplaces

The EEOC has consistently provided outstanding leadership on the issue of harassment. Most recently, EEOC led a task force to study harassment and subsequently issued a June 2016 Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace, and resources for employers to proactively prevent and to promptly correct harassment. The EEOC has issued many guidance documents on harassment. Additionally, EEOC’s “Model Equal Employment Opportunity (EEO) Program” Management Directive 715is extremely helpful for agencies to establish and maintain strong policies and programs for EEO, including for anti-harassment.

[email protected]

Where Does It Say I Can Reprimand?

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By William Wiley, originally published November 14, 2015; posted July 10, 2015

Questions, we get questions. And here’s one that goes to the fundamental nature of an agency’s authority to do anything:

Dear Genius-Level Brains at FELTG-

What is the Statutory or CFR basis that gives Management the authority to issue written reprimands? I’ve reviewed USC Chapter 5 and 5 CFR 752 as well as more OPM webpages than I thought could exist. I see lots on suspensions (<14 days and >14 days) but nothing that seems to give Agency Management the right or authority to issue written reprimands. Do you know of any CFR reg that addresses an Agency Head’s authority to issue written reprimands for the efficiency of the service?

And our sparkly little FELTG answer:

There’s no specific statutory or regulatory authority to issue reprimands. Rather, the authority comes from the statutory delegation of the authority for the general administration of personnel within an agency to the head of the agency, 5 USC 302(b). Issuing a reprimand is part of the “general administration of personnel.” Therefore, it is delegated to the head of your agency.

It is a common misunderstanding to look for the authority to do something specific in government. Rather, this broad delegation of general administration authority effectively allows you to do anything related to personnel administration that you deem necessary, unless there is a prohibition against it. The better way to approach the issue is to ask, “Where does it say I cannot issue a reprimand?” As it does not say that anywhere, then you can.

An analogy would be, “Where does it say in law or regulation you have the right to breathe?” It does not. That right is embedded in the right to “the pursuit of happiness” that is found in our Constitution.

As for the content of a reprimand, generally the belief is that a reprimand was first defined for the practical purposes of progressive discipline in Bolling v. Air Force, 9 MSPR 335 (1981). Subsequently, buckets of Board decisions have relied on the fact of a reprimand being in the record to support progressive discipline. Black’s Law Dictionary defines a reprimand as “to censure formally, especially with authority.” The head of your agency has the authority to administer personnel. Therefore, you can reprimand.

By the way, nothing requires that a reprimand be for “the efficiency of the service.” That is a requirement set forth in statute only for 5 USC 7513(a) actions: suspensions, demotions, and removals. Rather, we are bound to take a personnel action (e.g. reprimand) only on the basis of conduct that adversely affects the performance of the employee or others, 5 USC 2302(b)(1). A reprimand is based on misconduct. Therefore, this standard is satisfied.

Hope this helps. Best of luck-

Bill

 

[email protected]

And Now a Word With … Steve Shih

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Portrait of Steve Shih on Wednesday, Dec. 6, 2017 at NASA Headquarters in Washington, DC. Photo Credit: (NASA/Joel Kowsky)

By Dan Gephart, July 2, 2019

On Feb. 1, 2018, the National Aeronautics and Space Administration launched a workplace anti-harassment campaign. The campaign was based on the applicable federal laws, EEO guidance on anti-harassment, and the expertise of its creator – Steve Shih.

Shih is that rare person who can explain the fundamental principles and concepts of subjects like employment law and leadership, but is also creative enough to develop outside-the-box solutions. He has held critical roles over the past 25 years with the Equal Employment Opportunity Commission, the Office of Personnel Management, and the Department of Homeland Security. Shih has created agency- and government-wide policy and guidance for EEO, leadership, diversity and inclusion, training and development, employee engagement, and agency operations. He is currently Associate Administrator of Diversity and Equal Opportunity at NASA.

When Steve Shih talks, you listen. And we were listening when he discussed the agency’s anti-harassment campaign as being about “safety and effectiveness” of the workforce and the NASA mission. “We know if we take care of the workforce, they will take care of our mission,” Shih said.The campaign focuses on proactive prevention of harassment, and the prompt correction of harassment when it occurs. For prevention, the agency has gone to great lengths to get the message across – everything from meetings with agency leaders to 3-D simulations and gamification.

DG: What specific steps has NASA done to proactively prevent harassment?

SS: First, the NASA Administrator sent a video message and a written memorandum to every NASA employee, communicating:

  • Expectations for the appropriate culture and values in the NASA workplace.
  • Emphasis on accountability.
  • Reinforcement of the agency’s anti-harassment policy and requirements for all NASA personnel to exercise reasonable care to prevent and enable the prompt correction of workplace harassment.
  • Expectations for all personnel to support NASA’s Anti-Harassment Campaign.

I personally conducted briefings for all NASA senior leaders, including at the Administrator’s Senior Staff Meeting in February as well as briefings and trainings at NASA Headquarters and Field Centers across the country.

NASA has just developed and launched an innovative online training involving 3-D simulations, avatars, and gamification, focusing on harassment prevention and bystander intervention. The training is available to the entire NASA workforce, and is aligned specifically to NASA mission and to providing a value to NASA organizations and individuals on mission accomplishment.

NASA field centers and other organizations are also continuing additional efforts to proactively prevent harassment, including town halls, diversity and EEO programs, and partnerships with employee resources groups.

DG: We talked a lot about prevention, but can you briefly tell our readers how NASA effectively handles correction?

SS: NASA’s anti-harassment program is operated through a partnership of relevant NASA organizations and officials (including the agency’s Anti-Harassment Coordinators, the Office of Diversity and Equal Opportunity, the Office of the Chief Human Capital Officer, the Office of General Counsel, and senior management officials) who work together to review the fact-finding results of harassment matters and determine appropriate action.

These organizations and officials have both the leadership and program responsibilities and authorities to coordinate appropriate corrective measures when harassment occurs, including deciding and implementing discipline for employee misconduct, and driving organizational improvements (e.g., through training and improved operational policies and procedures).

This approach has enabled NASA to prioritize correction and continual prevention of harassment in a consistent, coordinated, and effective way across the entire agency.

DG: How do you measure the success of the anti-harassment program?

SS: NASA’s recent annual processing times for reports of harassment has averaged only 51 days from receipt to fact-finding to full resolution of reports of harassment, compared to the formal EEO process, which on average easily takes more than two years to fully complete.

We have data demonstrating employees’ increased capability to report harassment through any of multiple avenues and to multiple individuals who can arrange for assistance, including through our Anti-Harassment Program. Our data also indicate employees have experienced increased psychological safety and assurance of protection from retaliation, and these conditions have improved the confidence of employees to report and seek assistance for harassment.

I’m pleased to say NASA has maintained a very low volume of EEO complaints raising claims of harassment. Our data shows NASA’s Anti-Harassment Program has been extremely effective for early resolution of harassment matters so they don’t later become EEO complaints. In fact, during FY 2018, NASA received only 30 EEO complaints of harassment – this is a tremendously small number for an agency with about 17,500 civil servants and additional contract employees – and of these 30 EEO complaints, not a single one them raised a claim of sexual harassment.