Another Bold FELTG Recommendation

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By William Wiley

Dear President-to-Be:

I’ve been reviewing all the Board’s decisions for FY-2016 in preparation for our upcoming Updates webinar on Thursday, and I notice that the trend from past years continues. When looking at cases that agencies have lost, I lump the reasons for the losses into one of two groups:

  • Proof Losses – In these cases, the Board set aside a removal because it disagreed with the Deciding Official’s evaluation of the Douglas Factors or the agency’s presentation of a preponderance of the evidence to support its removal charges. I don’t see a lot of “fault” in these losses because an agency simply cannot predict what evidence the Board will find to be compelling. You do your best, but you just never know.
  • Practitioner Losses – In these cases, the Board set aside a removal because the agency representatives – lawyer or Human Resources specialists or both – failed to grasp a fundamental rule of MSPB practice. Examples of decisions in this group would be due process violations, failing to follow procedures, and improper charge framing.

As in previous years in which we have done this analysis, Practitioner Losses outpaced Proof Losses two-to-one. For every three cases agencies lost in FY 2016, one was because of a lack of enough proof, and two were because agency lawyers/HR specialists did not know Board law. And I mean BASIC Board law.

This situation is bad for America. In two-thirds of the FY 2016 cases that were lost, an employee was denied some right guaranteed by MSPB precedence. And the price for these rights-denials is often back pay with interest, attorney fees, and reinstatement. There is no joy in this situation for anyone: union, management, or private citizen.

From the pages of this newsletter, for nearly a decade, we have beseeched OPM to do something about this government failing. We have argued for OPM-approved training, testing, and certification of agency practitioners. We got nothing. We have pleaded with agency top leadership to mandate training for agency representatives. Not a peep. We’ve lobbied Congress to pass laws that would require that government employees who do this work know government employment law. Not even a thank-you for the sample textbooks we send them.

Well, maybe we’ve been barking up the wrong organizational tree.

I never claim to know much law beyond the four corners of federal employment law. But it is my understanding that to practice law in certain jurisdictions, an attorney has to be admitted to practice. For example, my fancy admission to the practice of law in California and before the US Supreme Court does me little good if I try to appear in some local parish courthouse in Louisiana. Did you see My Cousin Vinny? Well, that would be me, except I’d never get into the courtroom (and Marisa Tomei would never give me the time of day). Courts have their standards and they don’t want some doofus lawyer from out of town making a fool of himself before one of their judges.

So what if MSPB were to establish a standard of practice for lawyers and non-lawyers alike who represent agencies or clients in appeals to the Board? What if it required testing for anyone who wants to either appear on behalf of an agency or be entitled to attorney fees in a successful appeal of a removal? Maybe it could certify training groups to present programs that would be an alternative to testing, sort of the way that bar associations screen and approve organizations to provide continuing legal education.

There would need to be some exceptions, of course; perhaps some grandfathering in of practitioners who have represented in a certain minimum number of Board appeals. And of course, an employee can always represent herself. But a well-trained, recognized group of employment law practitioners, on both sides of the hearing room, would certainly make for a better government. Hey, Board! You’re in charge of protecting the merit systems. How about requiring that those who implement the merit systems know what in the devil they are doing.

Because these latest loss statistics say that some of them don’t. [email protected]

A Love/Hate MSPB Decision

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By William Wiley

I think I’ve read maybe 10,000 MSPB initial decisions over the years. Most were good to very good, a real credit to the judges at the Board and their leadership. However, every now and then – perhaps 1 out of a 1000 – stands out as particularly well done. And recently, I ran across one of those.

The appellant’s situation is a sad one. After receiving a proposed 14-day suspension for possession of alcohol on agency premises and unauthorized use of government property, the employee entered into a Last Chance agreement (LCA) in which the agency agreed to hold the implementation of the suspension in abeyance to give the employee a chance to undergo rehabilitation related to his alcohol use. A condition of the agreement was that the employee would refrain from future misconduct for one year.

Very smart agency move – most likely implemented by one of our FELTG-certified MSPB Law Week practitioners.

Unfortunately, the employee just could not get his situation under control. So when the agency later found him under the influence of alcohol and living in an agency building (with his dog! Isn’t that some sort of mitigating factor under Douglas?), the agency notified the employee that he had violated the abeyance agreement, and imposed a 14-day suspension. A month later, it proposed the employee’s removal based on charges of alcohol impairment and misuse of government facilities. In selecting the removal penalty, the deciding official relied on the originally-abated 14-day suspension as a prior act of discipline, thereby applying the principle of “progressive discipline,” and fired the employee. Duffy v. DVA, SF-0752-15-0552-I-1 (June 15, 2016).

I’ve been waiting on resolution of this narrow point for a number of years. Suspensions that are held in abeyance are rare as compared to removals held in abeyance, so the issue does not come up often. On one hand, as the judge did here, I can see counting the suspension as a prior act of discipline because the employee engaged in previous misconduct and served his suspension prior to the proposal to removal. On the other hand, as a psychologist, I can argue that the suspension should not have been considered as a prior act of discipline because the employee has not had the “benefit” of the negative reinforcement that comes from serving a suspension. We punish (cause a little pain by suspending without pay) to motivate an employee to do better, to obey our rules. In this case, the employee was punished after he committed the misconduct that resulted in his removal. Therefore, he did not have the benefit of the pain of a suspension to motivate improved conduct. And arguably therefore, the suspension cannot be counted as a prior act of discipline for the purpose of an enhanced penalty based on progressive discipline.

Fortunately for DVA, this judge had no problem with counting the suspension as a prior for purposes of a Douglas analysis. And unless that finding is set aside on appeal, it will become a rule we can all apply. If so, I can see a future in which we never suspend anyone. If we can get the same bang for our buck by holding the suspension in abeyance and implementing it only when there is future misconduct warranting discipline, why in the world would we go through the hassle of a grievance, an arbitration in a union environment, an EEO complaint, or a complaint to the Office of Special Counsel? A smart agency (as here) would propose a suspension, then cut a deal with an employee to accept an abeyance agreement instead. Soooo much easier.

I love this decision for taking on this issue and stating an answer. At least now we have something to hang our litigation hats on should we choose to use an abeyance’d-suspension as a prior act of misconduct in a penalty analysis. But there’s so much more.

There were a number of other issues in this case:

  • Did the employee waive his rights in the LCA to challenge any eventual removal for misconduct?
  • Does a charge of “alcohol impairment” require an agency to prove that the employee was legally intoxicated?
  • What weight should be given to unsworn statements by law enforcement officers as to the indicia of the employee’s being under the influence; e.g. slurred speech, swaying, disorientation?
  • What is the best evidence that should be presented when using the results of a breathalyzer test to establish intoxication?
  • How valuable is a penalty-of-perjury-declaration when the deciding official swears that just one of the two charges proposed would warrant removal?
  • Why is it prudent to have the Proposing Official complete a Douglas Factor analysis as compared to a Deciding Official?

The reason I love this decision is that the judge to his great credit took on each issue (raised by highly competent appellant counsel, by the way), cited extensively to the record and the controlling precedence, and then reached a firm, defensible conclusion. The initial decision is 25 pages long with 17 footnotes. I encourage anyone who has any of these issues to review the well-written and well-supported judge’s decision. You will find rationale and case law to support exactly where the Board is today on each of these matters: 116 LRP 35609 if you have CyberFEDS©. Alternatively, you can come to the next FELTG seminar MSPB Law Week seminar (March 13-17, 2017 in Washington, DC) and we will be happy to explain this stuff to you.

Yet I also hate this decision. It took this very smart judge 25 pages and 17 footnotes to resolve this appeal. Yes, he has created a terrific learning tool for us practitioners. However, the expense of the creation of this learning tool is significant. In my practice, it takes me about an hour to write each page of a legal document like a decision. Given the workload that the current leadership at MSPB (soon to be gone in just over four months) has placed on itself and thereby its judges, one has to wonder whether the cost of this decision is worth the value it has provided to the appellant and to the agency. In other words, could a shorter decision have been written to provide the same value to the parties as this longer decision did, without taking so much legal time and effort to get there?

Of course, here at FELTG, we like to ask ourselves questions, and then answer them so that we look smart. We encourage you to read the judge’s decision in its entire 25-page glory, and then consider the following as an alternative way of resolving an appeal of a removal in a case that has many significant issues and is well-litigated:

Heading: [As usual]

Appellant Darrell Duffy has appealed removal from his position as a WG-4749-10 Maintenance Mechanic for misconduct at the Department of Veterans Affairs.

Charges (abbreviated):

  1. Alcohol impairment – On December 17, 2014, a breathalyzer revealed the appellant’s blood alcohol level to be 0.065.
  2. Misuse of Government Property – On December 17, 2014, the appellant was found to be storing approximately 40 boxes of personal property within agency facilities.

Issues:

  • Claim – The appellant waived rights to appeal this removal because of a “Last Chance Agreement” (LCA) that held a prior 14-day suspension in abeyance.

Holding – Although the LCA specifically waives the appellant’s rights to contest the 14-day suspension, it did not specifically address waiver of any appeal rights relative to a subsequent removal. Moreover, the agency treated the subsequent removal as a classic adverse action removal by basing the removal on new charges and by giving the appellant full Board appeal rights. If the agency believed that the appellant had waived his rights to a subsequent removal when he entered into the LCA, it would not have framed new charges and it would not have given MSPB appeal rights. Therefore, the appellant may challenge the validity of the removal on the merits as there is NO RIGHTS WAIVER.

  • Claim – A charge of “Alcohol Impaired” requires the agency to prove intoxication at a level defined in law as legally intoxicated.

Holding – A charge of impairment does not require proof of intoxication. The unsworn statements of the police officers (though better if sworn) that the employee’s speech was slurred, that he was disoriented, had bloodshot watery eyes, appeared nervous and standoffish, and smelled of alcohol coupled with the breathalyzer reading and the employee’s admission that he had been drinking the night before, established that it is more likely than not that he was alcohol-impaired while at work. Although I have credited the unsworn statements of the police officers relative to the breathalyzer results, better evidence would have been a contemporaneous photograph of the reading on the breathalyzer. Charge 1 is SUSTAINED.

  • Claim – Appellant’s decision to move personal items into the agency’s facility was caused by a lapse in judgment that resulted from his alcoholism.

Holding – Whether intentional or inadvertent due to his alcoholism, the photographic and testimonial evidence fully supports that the appellant stored personal items, including a dog, on agency premises without authorization. The appellant stated in deposition that his poor judgment was not related to his alcoholism. Charge 2 is SUSTAINED.

  • Claim– The agency committed three harmful errors: 1) double-punishment, 2) failure to conduct a proper investigation, and 3) the Proposing Official conducted a premature Douglas Factor analysis.

Holding – As for 1) the double-punishment claim, the 14-day suspension was for alcohol at work in November. Although the December alcohol event established a breach of the LCA and also formed the basis for the eventual removal, it was not the basis for the prior discipline that resulted from the November alcohol event. Separately, the Deciding Official testified that he would have removed the employee even if there had not been a prior disciplinary act based on alcohol. Therefore, no double punishment. As for the 2) proper investigation issue, although the appellant points to sections of the relevant collective bargaining agreement that arguably call for a management investigation separate from a police investigation, even if error, the appellant has not shown how he was harmed by the error. As for the 3) claim that it is agency policy for the Deciding Official to perform a Douglas analysis, not the Proposing Official, I am aware of no law, regulation, or policy that imposes such a limit. In fact, given the holding in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011), such an approach would appear to be prudent and act to ameliorate potential injustice. Therefore, I find the agency DID NOT COMMIT ANY HARMFUL ERRORS.

  • Claim – The agency failed to accommodate the appellant’s disability of alcoholism and otherwise treated him disparately and harassed him because of his alcoholism.

Holding – The appellant presented neither direct nor circumstantial evidence that he was treated more harshly as compared to non-alcoholics who engaged in similar misconduct. In addition, even if alcoholism caused the employee’s misconduct, he is not immunized from discipline. The agency is free to hold him to the same conduct standards as a non-disabled employee. As for a failure to accommodate the appellant by refraining from disciplining him and allowing him to seek treatment for his alcoholism, an alcoholic is not entitled to such a “firm choice” accommodation. As for any claim of disparate impact, the appellant has not presented any statistical evidence to support such a claim. As for the claim of harassment based on his status as an alcoholic, the appellant has not presented any evidence that any treatment by the agency was motivated by his status as an alcoholic. Therefore, I find NO DISABILITY DISCRIMINATION.

  • Claim – The agency has failed to prove a nexus between the appellant’s misconduct and government efficiency because it has not proven that the appellant could not do his job satisfactorily even though he was under the influence of alcohol at work and stored personal possessions in the agency’s facility.

Holding – Proof of nexus is not restricted to demonstrating actual impediment to full job performance. Charges such as these implicate a palpable effect on management’s trust and confidence in an employee’s job performance. Therefore, I conclude that the agency HAS PROVEN A NEXUS between the charged misconduct and the efficiency of the service.

  • Claim – The penalty of removal is unreasonable.

Holding – The Deciding Official’s analysis of the Douglas Factors is complete and worthy of deference. He relied heavily on the original Douglas Factor analysis completed by the Proposing Official and found it holistic and compelling. Relevant aggravating factors included safety concerns raised by the appellant’s misconduct, the repeated nature of the misconduct within only a year, the public nature of his work, prior notice of his misconduct, the fact that this was a second disciplined offense, a lack of rehabilitation potential, and a lack of alternative sanctions. Therefore, I find that ANY MITIGATING FACTORS ARE OUTWEIGHED BY THESE AGGRAVATING FACTORS.

Decision: I AFFIRM the removal action.

[Standard petition for review rights.]

As we teach in the wonderful FELTG Legal Writing seminar, the author of a legal document should always keep in mind the purpose of the document. Therefore, we should ask, “What is the purpose of a judge’s decision?” Here at FELTG, we would argue that in a removal appeal the purposes of an Initial Decision are, in priority order:

  1. To resolve the question of whether the agency legally removed the appellant.
  2. To inform the parties as to what the judge concluded relative to the issues on appeal.
  3. To justify the judge’s decision to those who might review it on further review: Board members and federal judges.

While this decision is terrific for its well-reasoned and authoritatively-supported conclusions, it feels as if it is trying to address a purpose other than these three. Whether there are additional purposes, and whether they are worth the cost involved in drafting a 25-page decision, are questions that we hope the new leadership at the Board will address. Another little note for our new President. [email protected]

Learning from Our Mistakes

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By William Wiley

If you’ve never made a mistake in this business of federal employment law, you either just started work last week, or you are not being aggressive enough. We all make mistakes. The trick is to learn from them. Sadly, too many agencies make mistakes that have been made for over a quarter of a century without seeming to have learned that they were mistakes to be avoided. Let’s deconstruct a recent adverse MSPB decision and hope that we FELTGers can learn from it.

Rosario-Fabregas v. Army, NY-0752-13-0142-I-2 (2016)(NP)

Action on appeal: Removal, GS-12 Biologist

Judge’s decision: Mitigate to a 30-day suspension

Board’s decision: Affirm the judge’s mitigation

Charge 1. Conduct Unbecoming: The employee edited letters on behalf of outside organizations with interests contrary to those of the federal government (five specifications).

Board’s Decision: Although the agency proved that the appellant edited letters for outside organizations, for four of the five specifications it did not prove that those organizations maintained interests contrary to those of any federal agency; e.g., the deciding official did not identify any interests he believed were contrary to those of the federal government. Therefore, one specification (and thereby the charge) affirmed.

Charge 2.  Insubordination:  The agency determined that a private organization did not need a permit for some act within the agency’s jurisdiction. The appellant voiced his conclusion that indeed a permit was required. The second level supervisor reconsidered the no-permit determination and concluded that it was correct. The appellant maintained his disagreement with that conclusion. When directed to issue the no-permit finding, the appellant “still maintained his original position” and was “openly antagonistic and disregarded the decision-making authority of his chain of command.”

Board’s Decision:  A charge of insubordination requires the agency to prove that the employee willfully disobeyed an order. The appellant testified that he complied with the order to issue the no-permit-required letter to the private organization. The deciding official had no personal knowledge as to whether the letter was issued. The proposal letter suggested that it was not issued, but the proposing official did not testify. Therefore, the charge fails. Being antagonistic is not being insubordinate.

Charge 3:  Inappropriate use of official time (five specifications).

Board’s Decision:  The editing of the letters at issue were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Charge 4:  Inappropriate use of government property (five specifications)

Board’s Decision:  The editing of the letters at issue on a government computer were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Summary:

  • The removal was based on four charges, three which had five specifications (4C + 15S).
  • The Board affirmed five specifications to support each of two charges, one specification in the other multi-specification charge, and set aside the Insubordination charge that had no specifications (3C + 11S).

Penalty factors warranting mitigation:

  • Not all specifications were affirmed.
  • The most serious charge, insubordination, was not affirmed.
  • The employee had not been informed of any specific rule that prohibited the editing of letters like the ones at issue here.
  • Letter editing was commonplace within the agency.
  • Although adverse notoriety was claimed by the deciding official to be possible, the actual notoriety relative to the letter editing was positive.
  • Although a lack of rehabilitation potential was claimed by the deciding official, the appellant was on record as saying, “I give my word of honor as a man that I would not correct any other letter for anybody else and that I would not argue about regulatory processes with my fellow staff. I would avoid any type of conflict, no matter its complexity.”

Learning points we have been making in our FELTG training for 15 years that, had the agency applied them, would have caused the removal to be upheld;

  • The fewer the charges and specifications, the better. We teach SHORT and SPECIFIC when it comes to discipline. That’s because, as happened here, the more the agency charges, the more the agency is required to prove. If the agency starts losing charges or specifications on appeal, the more likely it is that MSPB will set aside a removal.
  • Every element of a labeled end charge MUST be proven by a preponderance of the evidence. When the agency charged “Insubordination,” it obligated itself to prove that the order was not obeyed. Although it proved that it was mad at the employee for being cantankerous, it neglected to enter into evidence that the employee did not obey an order.
  • There are five elements to every removal action. The first one is that the agency must prove the existence of a rule, and the second one is that it must prove the employee was informed of the rule. Rules that are not enforced cease to be rules as an employee is reasonable to conclude that the agency did not intend to enforce its rule. Here, the agency failed to enter evidence to show that the employee had been told of a rule not to edit letters, and it was commonplace for letters to be edited.
  • Statements of fact in a Douglas factor analysis (the penalty defense explanation) MUST be proven by a preponderance of the evidence. When an agency claims potential bad publicity and a lack of rehabilitation in the face of good publicity and a positive indicator of rehabilitation, it is going to lose those claims for a lack of evidence.

Fun Facts:

  1. The Appellant won his appeal on his own, without a lawyer or other assistant.
  2. The Appellant won without requesting a second hearing, precluding the agency from introducing testimonial evidence.
  3. This decision was effectively a re-litigation of a prior appeal by this employee. The prior appeal was of a previous removal that was based essentially on the same charges that were the basis in this appeal. The really fun fact is that the judge in the first appeal upheld the removal.

Come to our classes. Learn the law. Do not assume that because you are smart and right, your removal will be upheld on appeal. [email protected]

 

 

Legalized Lying

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By William Wiley

Consider this scenario:

  • Jane writes a letter to the director of human resources at her agency (or files an Inspector General complaint, or blows the whistle with the Office of Special Counsel, or writes to her Congressman). In that letter, she accuses her supervisor of forcing her to have sex with him or be fired during probation. Above her signature she appends the old penalty-of-perjury statement and swears on all that is holy that she is telling the truth.
  • John writes a letter to the HR director saying he saw the incident occur. Same truthfulness attestation.
  • The supervisor denies the allegation. However, because it’s two witness to one, the agency believes Jane and John. It fires the supervisor.
  • The supervisor’s wife becomes aware of the charge and leaves him, taking both kids and the dog with her (not the dog!).
  • Both Jane and John testify under oath at the supervisor’s MSPB hearing that their original statements are true.
  • Subsequently, it’s determined that both Jane and John had acted in bad faith and lied, that they made up their story to get the supervisor in trouble because they did not like him.
  • The agency restores the supervisor to his old job, pays his back pay and attorney fees. The wife moves back in, but the couple needs months of marriage counseling to heal things. But the dog – the poor dog – just cannot put all of this behind him, and barks incessantly every time the supervisor comes home.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  Yes. Making false statements, lying under oath; that’s some serious stuff. Probably a felony; e.g. 18 USC 242, 1621, or 1622. Removal is no doubt a defensible penalty.

OK, similar scenario, except this time, instead of writing a letter to HR, Jane says the same thing in the filing of a sexual harassment discrimination complaint. John’s statement is given to the EEO investigator. Both testify before an EEOC judge.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  No, if the agency is located in Richmond or New Orleans. Yes, if the agency is located in Chicago. Probably not if the agency is located in DC. See Egel v. DHS, Slip op 15-434 (US District Court, District of Columbia) (June 24, 2016).

You see, there’s something at play in this second scenario called the Pettway Rule (Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969)). That rule is based on the analysis that since Title VII of the Civil Rights Act prohibits an agency from taking an adverse employment action because an employee has made a charge or testified in an EEO proceeding (the “opposition” and “participation” clauses), Jane and John cannot be fired because their false statements were made in that context. The Fifth and Fourth Circuit Courts of Appeal have adopted this rule (New Orleans and Richmond), but the Seventh Circuit has squarely rejected it (Chicago).  A single district court judge believes that the DC Circuit is in favor of it (Egel, above) and the rest of us court-watchers are waiting for an answer. EEOC appears to adopt it, but of course it’s the courts we care about if push comes to shove.

Those courts that have adopted the rule reason that to do otherwise would have a chilling effect on the rights of employees to file discrimination complaints. They conclude that statements made in EEO proceedings cannot be the basis for discipline even if those statements are false, malicious, or defamatory. The Seventh Circuit, on the other hand, concludes that only “reasonable” EEO complaint statements made “in good faith” are protected from discipline. Judge Posner from that circuit stated that he “can’t actually believe that forging documents and coercing witnesses to give false testimony are protected conduct.” See Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741 (7th Cir. 2010).

Wow. Talk about a clash of societal values. On one hand, we don’t want discriminated-against employees to be afraid to file EEO complaints. On the other hand, we don’t tolerate lying very much. Here at FELTG, if we were splitting this baby, we’d come down on the side of saying that conclusory statements in EEO complaints are protected (e.g., “He sexually harassed me.”), but false statements of fact are not (e.g., “He forced me to have sex with him.”). Of course, we don’t adjudge anything here and you know what you’re paying for our opinions.

So develop your own opinion on this issue, then write to your member of Congress. Or get elected yourself. Or appointed to the bench. These cases don’t come up very often, but the answer is of fundamental importance to who we are as a society of laws. Do we want federal employees to be able to attack their supervisors by lying about them in EEO complaints? You be the judge. [email protected]

Time for FELTG to Start Advising our New President

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By William Wiley

It’s that time again. We’re about to get a new face in the White House and a fresh breed of political overlords in each agency. Even the folks on Capitol Hill appear to be ready for a shake up. Hopefully, the new folks will take a few minutes to listen to us old guys before they start making seismic changes to our civil service.

As we here at FELTG claim rights to the heritage of some of the oldest folks in this business, we also claim the right – on your behalf – to tell the new leadership what’s working and what’s not working in this game of running the government. So expect to see several upcoming articles, intended for our new President, based on decades of (good and bad) experience, designed to make the government more effective and efficient while simultaneously recognizing long-standing employee rights and responsibilities.

To kick off our series, let’s start with one of our favorite topics: accountability. If you’ve participated in our supervisory program UnCivil Servant, you know that the subtitle for our textbook is Holding Government Employees Accountable for Performance and Conduct. We are all about accountability here at FELTG, from the bottom to the top.

But today, our focus is not on employee accountability, it’s on agency accountability. We’re looking at a question of accountability and responsibility that bedevils us all and drags down our civil service and our government:

What agency is responsible for the abysmal success rate government managers have when they fire employees?

Yes, abysmal. As we’ve written about in this newsletter before, MSPB should be upholding 100% of removals that managers implement. That’s because MSPB sets aside removals only when it finds that the agency made a mistake, and agencies have no business making mistakes (and thereby violating an employee’s rights) in any cases at all, save for the occasional unexpected change in law that occurs subsequent to the removal.

So exactly what is this less-than-100% rate that deserves the adjective “abysmal?” Well, according to the latest statistics and public pronouncements by MSPB’s current leadership, the Board finds fault and sets aside adverse action removals in 25% of appeals. That’s right. After spending the past 40 years learning the foundational civil service removal law, agencies still screw up one out of four cases.

That’s just terrible. Think of all the taxpayer dollars wasted on back pay and attorney fees. Add to that the agency resources that are wasted when an appealed action is set aside. Think of all the hundreds of lives disrupted each year by an unjust removal. If one out of four appealed removals is unwarranted, extrapolate that failure rate to all those employees who were fired, and who didn’t have the money, stamina, or wherewithal to make it through the appellate process so that MSPB could reverse their firing. And think of all the employees who should have been fired who were not because management looked at a success rates of only 75% and decided that it wasn’t worth the risk to fire them.

Now that I think about it, “abysmal” might not be strong enough.

If you ran a company, what would you do if you realized you had a 25% failure rate? 25% of your cars fell apart? 25% of your airplanes didn’t land? 25% of your pizzas made people sick? Would you sit back and say to yourself, “Well, at least 75% of my clients didn’t die.” No, you’d put somebody in charge of fixing the situation and then hold them accountable for a fix.

So who is responsible for fixing the government’s horrible success rate before MSPB? Nobody, as far as we can tell. Oh, here at FELTG we do what we can, but we don’t really have the responsibility to do it. We do it because it’s the right thing to do, and because our wonderful clients keep inviting us to do it. But really, shouldn’t there be a government entity held responsible for doing whatever it takes to make sure agencies fire people properly, to improve that success rate from 75% to something close to 99%?

And that, Madam/Mister President-to-Be is our first major recommendation. Put somebody in charge of improving the government’s success rate in removal actions. Don’t leave it up to individual agencies to know what to do. As we’ve discussed previously, too many employment law practitioners are still making basic mistakes, even though we’ve known that they were mistakes for almost a quarter of a century (don’t make me talk about “conjunctive charges” again).

And whomever/whatever you put in charge, hold them accountable. If the government’s success rate goes up, then that’s good. But if it stays the same or (god forbid) gets worse, sack them and get someone else. Accountability is too important not to hold someone accountable for it. [email protected]

You Don’t Know Discipline

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By William Wiley

Whether you are a supervisor, attorney, human resources specialist, or union representative, many readers of this newsletter are in the business of employee accountability. Discipline is a major tool in the world of employee accountability. Yet, as much as we deal with it, and as important as it is in many ways, discipline is not an easy thing to define. And its definitions can be exceedingly important, varying from one forum to another. In this article, we here at FELTG try to sort them out for you.

MSPB: What is and is not discipline is tremendously important in the world of MSPB appeals. As every practitioner knows, when an agency is defending a removal penalty as being reasonable, the agency relies on the fabulous and famous Douglas Factors. Otherwise known as “penalty defense” factors, agencies who remove employees have had to analyze these 12 factors since 1981 to explain to the Board why the employee deserved to be fired rather than receive some lesser penalty.

Factor 3 in that list of mandatory factor consideration is the employee’s prior discipline history. The theory is that an employee who the supervisor has previously disciplined warrants a more severe penalty for a subsequent infraction than a similar employee who has not been given the benefit of discipline and a chance to learn from her mistakes. This theory of discipline is well established and often goes by the name “progressive discipline.”

To apply the theory of progressive discipline in support of a removal, it is critical to know what counts as discipline and what does not. In other words, we need a definition of a disciplinary act to distinguish “true” discipline from some lesser act on the part of the supervisor. Unfortunately, Congress did not see fit to define discipline in law. Fortunately, the Federal Circuit Court of Appeals early-on stepped into the breach and defined discipline for the purpose applying progressive discipline to defend a removal as having three mandatory characteristics:

  1. It must be in writing,
  2. It must be grievable, and
  3. It must be stored in an official employee file.

Bolling v. Air Force, 9 MSPR 335 (1981)

Universally throughout government, there are three documents that meet these criteria in support of a removal when applying the Douglas Factors. The Terrific Three are:

  1. Reprimand
  2. Suspension
  3. Demotion/Removal

By OPM regulations, these three documents are written, challengeable, and stored in an employee’s Official Personnel Folder, although somewhat briefly in the case of a reprimand. If these were the only supervisory actions used to correct behavior, the world would be a simpler and better place. In fact, that’s exactly what we teach in the FELTG supervisory training classes we present. Stay with these three, and your life will be simpler and your actions more defensible.

Unfortunately, some agency policy makers and discipline advisors have chosen to add other actions to the list of options that a supervisor has when trying to obtain employee compliance with a rule: warnings, counselings, admonishments, letters of expectation, letters of requirement, etc. I ran into a DoD agency many years ago that even had something officially called an “Oral Admonishment Reduced to Writing.” Sometimes one or more of these is listed in the agency’s Table of Penalties, sometimes in a collective bargaining agreement, and sometimes they have been used historically; therefore, they are still used today.

The overriding problem when we use these extra options is that there is no universal definition for them like there is for the Terrific Three. For example, when you give an Admonishment, can you use it for the purpose of applying the theory of Douglas Factor 3, progressive discipline? Well, we don’t know until we apply the Bolling criteria. In my experience, sometimes an Admonishment meets the criteria, but sometimes not. These extra options create a potential problem on appeal because, as every seasoned practitioner knows, the more opportunity you give yourself to make a mistake, the more likely it is that you will indeed make a mistake. There is a cost to using extra options that are not universally recognized when a case is challenged to a judge or to the Board. Every adverse thing you do to an employee can be challenged through the EEO complaint system. Why would you do more than necessary since the more you do, the more there is to become the subject of a complaint?

Costs aren’t necessarily to be avoided, however. One should always assess the potential benefits against the projected additional costs. So what’s the legal benefit of using any of these non-defined extra options?

There are none.

Oh, every now and then, someone in one of our classes will say that Letters of Warning and Letters of Counseling put the employee on notice of the rule, one of the Five Elements of Discipline. Yeah, well so does an email that states the rule, “Bill, be at your desk by 8:00 AM every morning.” And an email like this is not an “adverse action” that might have to be defended in a grievance or complaint, nor will it be confused with “prior discipline.” So the very best practice, by far, is to stick to the Terrific Three, avoid any creative other options, and your life will be much simpler and just as powerful. They are discipline.

OSC:  The US Office of Special Counsel is responsible for protecting whistleblowers against reprisal “personnel actions” taken by agency managers. We know that any of the Terrific Three counts as a personnel action for the purpose of this protection. But what about Admonishments? Letters of Counseling? If you give me a Letter of Warning, is it possible for OSC to conclude that you have reprised against me for whistleblowing? If OSC fails to act, might I convince an MSPB judge or the Board itself through an Individual Right of Action appeal that you are indeed a Whistleblower Repriser? And of course any failure to find reprisal by the Board can be challenged by me to any numbered federal circuit court of appeal in which I can establish jurisdiction, ultimately coming to rest on the desk of the Clerk at the US Supreme Court, if I have the patience and can figure out the forms. Yes, it is highly important to know what constitutes a disciplinary “personnel action” for the purpose of an OSC investigation and re-primal-claim resolution.

Unfortunately, the courts have come up with a different way of figuring this one out. Instead of relying on the Bolling criteria as an indicator of what counts as a disciplinary personnel action and what does not, the Federal Circuit has decided that it will look to the specific words of the contested document, whether it is called a Warning or Admonishment or something else. If the document a) accuses the employee of prior misconduct and b) threatens a suspension or removal in the future if the misconduct is repeated, then it is a “personnel action” for the purpose of allowing the employee to pursue a whistleblower reprisal claim. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

Here are two Letters of Admonishment:

A. “Bill, I admonish you to turn out the lights when you leave for the day.”

B. “Bill, I admonish you to turn out the lights when you leave for the day. If you don’t, next time I will reprimand you.”

Option B can take the employee through an OSC investigation, discovery and a hearing at MSPB, an appeal to the three Board members, to a federal circuit court, and finally to the Supremes. Option A takes him nowhere. These things, whatever you call them, have no value. Why in the world would an agency want to open up the possibility of this sort of confusion and extended litigation for something that is of no benefit and can be easily avoided? To paraphrase First Lady Nancy Reagan, “Just say no to extra options.” Focus on the Terrific Three. Learn to do what counts and what works.

EEOC:  The Commission uses yet another standard when assessing whether an agency has done something to an employee in reprisal for her EEO activity, or her membership in a protected category; race, sex, age, etc. Whereas MSPB is concerned with Bolling disciplinary actions, and OSC is concerned with the broader concept of “personnel actions,” EEOC stands up to protect federal employees from the super-broad “adverse employment actions.” See Medina v. Henderson, No. 98-5471, 1999 U.S. App. LEXIS 11042, 1999 WL 325497 (D.C. Cir. Apr. 30, 1999). Without doubt, EEOC considers reprimands, suspensions, and demotions to be adverse employment actions. But what about these Extra Options? If you give me a Letter of Counseling, can I file an EEO complaint against you? (Yes you can; e.g., Zenobia K., Complainant, v. DLA, EEOC No. 0120142873, July 15, 2016)

There is a surprising exception to the EEOC definition of adverse employment actions: PIP initiation letters. Many years ago, EEOC decided that since the initiation of a PIP is not itself adverse, but rather a preliminary act to a possible adverse employment action down the road, the initiation of a a performance Improvement Plan cannot be the subject of a discrimination complaint. A tip of our collective hats to the Commission for that good-sense ruling: e.g., Lopez v. Agriculture, EEOC No. 01A04897 (2000).

Bottom Line:  The minimum actions necessary to hold a federal civil servant accountable are significant in number and degree. Adding Extra Options to a collective bargaining agreement, agency policy, or individual counselor’s practice does the agency no good and carries with it the possibility wasted resources and appeal loss. Leonardo de Vinci once said, “Simplicity is the ultimate sophistication.” He would have fit in well here at FELTG.

[email protected]

 

What Should be Done About This Rating?

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By William Wiley

Many of us use TripAdvisor or Yelp when we’re trying to decide where to have dinner. If we find ratings of four- and five-stars, we feel comfortable that the place will have decent-to-better food. However, if you’re like me, you avoid like the plague (or botulism) any place that’s rated primarily one- or two-stars. An eating establishment that is rated only one- or two-stars by its customers must have something seriously wrong with it.

So what would you say about a federal agency that asks its customers to rate it on Courtesy and Results on a five-star scale with:

** = Dissatisfied

*    = Very Dissatisfied

And 87% of the ratings are only one- or two-stars? What would you say if you found out that nearly half of the ratings were only one-star, that just under 50% of the citizens who had gone to that agency for help during FY-2015 were Very Dissatisfied with the Courtesy and Results they received? Would you not want to find out what was causing the low ratings, so you could understand better if something could be done to improve the situation?

Of course you would. You wouldn’t be staying in business very long as a private company with abysmally low ratings like that. We certainly should not expect less from our government than we do from a private business, at least on things like courtesy.

Historical Note: Did you know that President Jimmy Carter thought that courtesy towards the public on behalf of a federal agency was so important that he even had “discourtesy” added to the Civil Service Reform Act of 1978 as a specific type of misconduct warranting a suspension? Did you know that discourtesy is the ONLY act of misconduct specified in the CSRA that warrants discipline? Check it out: 5 USC 7503(a).

Well, the agency that has recently disclosed in its annual report to Congress that it was rated one-sies and two-sies by its Very Dissatisfied clientele last year is … drum roll, please … the US Office of Special Counsel. Yes, if you manage to dig through the first pages of its fascinating 52-page annual report (https://osc.gov/Resources/FINAL-FY-2015-Annual-Report.pdf) , way back at the bottom on page 44, you will find the results of the OSC client survey that contains these troublesome ratings.

It seems obvious that ratings like this are the result of either of two things:

  1. Discourteous behavior on the part of OSC employees, or
  2. An OSC clientele that is particularly sensitive to courtesy.

When dealing with OSC, each of us has limited personal experiences. About 350 clients participated in the 2015 survey. Each of those people had his own unique interactions with OSC staff. On a personal level, I’ve been dealing with OSC employees for over 35 years. Here at FELTG, one of the legal services we provide is representing agencies and individual managers in dealing with OSC. Without exception, although many times I do not agree with them, the representatives of OSC have been exceptionally courteous with me. Perhaps it’s my own internal charm that draws courtesy out of people (ha!) or perhaps I’ve just been lucky. Whatever it is, I cannot say I have ever experienced discourteous conduct on the part of OSC personnel.

Of course, perhaps others have. If we do a study and it turns out that OSC personnel are routinely being discourteous, then the solution to the ratings is to train those personnel in being courteous, and then hold them accountable for practicing what they have learned. There are a number of companies (e.g., Nordstrom) that teach customer courtesy. OSC could contract for training, and then impose discipline as specified in the CSRA for those who do not obey agency rules about courtesy. Alternatively, OSC management could implement Performance Improvement Plans for employees who fail a Courtesy critical element.

What’ that you say? OSC personnel don’t have any critical elements related to courtesy? Maybe that’s the start of the solution right there. [Special notice to OSC management: If you are unfamiliar with these two approaches to employee accountability, come to our MSPB Law Week seminar next scheduled for September 12-16, in Washington DC. Free coffee!]

OK, we do our little study and we find out that, for the most part, OSC personnel are just about as courteous as we would expect government employees to be, maybe even a bit better than some others. If that’s the case, then perhaps there’s something about the courtesy sensitivity of OSC clients. The people who go to OSC for help believe that they have been mistreated, that management officials within their employing agencies have committed prohibited personnel practices against them. In other words, they believe that they are right and others are wrong. Some might call them self-righteous; others might simply call them right. Whatever the case, if there’s a personality characteristic that makes OSC clientele more likely to feel that they’ve been treated in a discourteous manner, shouldn’t we acknowledge that in some way? And once acknowledged, maybe there are things we can do to reduce the feelings of discourtesy in this particularly sensitive group, sort of how we give anger management training to people who cannot control their anger. Sometimes folks need help.

When assessing any survey results, we have to keep in mind that there could be a problem with the data-gathering methodology. However, assuming that there’s no methodology problem in the survey that produced the results on page 44, and assuming that President Carter was right that courtesy in government is important, then it seems obvious to us here at FELTG that somebody should look into the cause for such low ratings. There are things that can be done to improve the situation whether the cause is discourteous OSC employees or courtesy-sensitive OSC clientele. Of course, we don’t get to run anything here at FELTG except ourselves, but SOMEBODY ought to be checking this out. [email protected]

You’re Still Making the Same Stupid Mistakes

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By William Wiley

Twice a year here at FELTG, we present an audio conference that we bill as an update on the law. Starting this fall in our next offering, we’re going to add a new twist. We’re going to highlight not only any tweaks to the existing law, but also call out those agencies that continue to make stupid mistakes, causing them to lose charges and cases that should not have been lost.

That’s right. No more Mister Nice Guy. After 15 years of trying to teach agency representatives how to win cases, protect employee rights, and save us taxpayers a bucket-load of money when you screw up, we’re going to tell it like it is. Yes, you lose cases sometimes because the members at  MSPB get a little screwy and try to create foolish new law (e.g., the comparator employee Terrible Trilogy, Miller reassignment only if it makes the employee happy, prior discipline as progressive discipline only for the same category of misconduct). And sometimes you lose cases because the judge weights your evidence more lightly than you thought warranted. But do you know the Number One reason agencies lose cases? No, you don’t, because you haven’t read all the Board’s decisions.

Fortunately, we have here at FELTG. And the Number One Reason agency removals are set aside on appeal is … (drum roll, please) … practitioner error. That’s right. Some agency employee, attorney or Human Resources specialist, did something wrong. And we are TIRED OF IT. We’ve been out here for 15 years, a dozen times a year or more, telling you agency practitioners how to win cases. And some of you still don’t get it. Federal employment law is our craft, for goodness sakes. If you claim to be one of us, then you must properly and consistently practice our craft. And waaaaaaay to many agencies are relying on practitioners who don’t know this work, to do this work.

Let’s take just one topic: charging. Our FELTG colleague, author, and Instructor Emeritus Renn Fowler highlighted this issue all the way back in the mid-90s. MSPB and the Federal Circuit Court of Appeals are very fussy about the way an agency frames a charge. Something about Constitutional due process and the Magna Carta providing inalienable rights to federal employees. So for at least 20 years, those of us who teach employment law to federal agencies have been pounding away at the critical nature of the drafting of a charge in a proposal letter. By now, federal agencies with even a modicum of knowledge should have picked up on how to do this.

Yet too many haven’t.

We’ll be covering this in more detail in the fall webinar, but here’s a little taste of some recent evidence that some employment law practitioners do not know the basics:

Reid v. Air Force, CH-0752-14-0849-I-1 (2016): The misbehaving supervisor had a way of saying and doing things relative to the breasts and buttocks of other employees that were simply inappropriate in a federal workplace. When the agency finally got around to proposing that she be fired, one of the charges it relied on was “Touching and making a statement about the breast size” of another employee. And all of you certified practitioners who have completed our famous MSPB Law Week just about choked on your morning coffee when you saw that conjunctive “and” in the middle of this charge. Because you know that the law for nearly a quarter of a century requires that an agency prove both sides of a conjunctive change that is joined by an “and.” As the agency proved the touching but not the making a statement, the charge failed.

Bennett v. DVA, CH-0752-15-0367-I-1 (2016): Although the Board conceded that the appellant had a record of troubling behavior, it reversed the agency’s removal and put Mr. Bennett back to work because it simply could not “uphold his removal by affirming a poorly drafted charge.” And the horrific charge? Eerily similar to one we use as a bad example in our FELTG on-site one-day Charges seminar: “Disrespectful, intimidating language toward a supervisor/Conduct unbecoming a Federal employee.” Was it disrespectful? Was it intimidating? Was it both? And how’s all that related to unbecoming conduct? Would the conduct have been “becoming” if appellant was NOT a federal employee? Just think of all the good DVA could have done for our vets with the money it has to spend to pay this guy’s back pay. At least, a nice balloon party.

We’ve got more. So sign up for our Update webinar, if you can take pain and humiliation. If you want Mr. Nice Guy, go talk to an EAP counselor. If you want to learn how to be a better practitioner and not embarrass your agency and the rest of us in the same profession, come to our seminars. Learn this business. Everybody makes mistakes, but there are no excuses for mistakes that could (and should) have been easily avoided. [email protected]

 

 

MSPB’s Non-Precedential Decision Policy is Bad for America

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By William Wiley

Beginning in 1979, MSPB issued two types of decisions: precedential and short forms. The short form says nothing other than a Petition for Review challenge to a judge’s decision has no merit, much like the Supreme Court’s say-nothing orders that “deny certiorari.”

A full “Opinion and Order” precedential decision discusses an important civil service principle, and contributes to the development of federal employment law. The Board’s reviewing authority, the US Court of Appeals for the Federal Circuit, is bound to affirm an MSPB Opinion and Order on appeal unless it is:

  • Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  • Obtained without procedures required by law, rule, or regulation having been followed; or
  • Unsupported by substantial evidence.”

5 USC § 7703(c); see Terban v. Energy, 216 F.3d 1021 (Fed. Cir. 2000)

About five years ago, the then relatively-new leadership at MSPB decided to replace the say-nothing short form dismissal with a new type of decision, a non-precedential order (NP). These new orders were defined by the Board as not contributing significantly to the Board’s case law, 5 CFR 12901.117(c). In other words, they were intended to dismiss the less-important issues while simultaneous giving the reader insight into the members’ rationale for doing so.

When the NP change was announced, this newsletter argued strongly against it for several reasons:

  • Writing substantive NP decisions in the 60% of the appeals that formerly were short-formed would double the workload at MSPB without any commensurate increase in the value of the decision.
    • An increased workload would result in increased delays in issuing decisions thereby denying appellants a prompt resolution of their cases and increasing the government’s back pay liability in appeals in which a removal was set aside.
  • NPs allow the Board to create secret anti-agency case law, case law that cannot be challenged by agencies on appeal. You see, only significant decisions can be appealed by the government to federal court. As NPs, by definition, are not significant, the Board can give direction to its judges relative to the thoughts of the members via an NP, and an agency cannot do anything about it (whereas an appellant can).
    • Yes, the Board says in the introduction to an NP decision that a judge is not required to follow its reasoning. However, if you do not think that judges read these things and apply the rationale to later cases, you do not know how a judge thinks. If you were a Board judge, and an NP decision said the answer is X, would you not go with X the next time you saw that issue, knowing that if you said Y or Z the members will reverse and remand the case to you? Everybody likes to go home on time, even MSPB judges.
  • NPs confuse consumers: the parties, the courts, and us practitioners. We do not know what to do with them and they double the research case load, although we’re not sure they are worthwhile as precedent.

Here’s an example that reinforces our argument that MSPB made a mistake when it decided to begin issuing NPs. On July 14, 2014, the Board issued an NP order in the appeal of a putative whistleblower. The appellant had disclosed his belief that a private sector company had committed tax fraud. The judge had found disclosures related to misdeeds by private entities were, per se, not the sort of disclosure protected by the whistleblower protection laws. Two of the three members agreed, holding that the whistleblower laws protect those who disclose government malfeasance, not private entity malfeasance. Aviles v. Treasury, DA-1221-13-0518-W-1 (2014).

MSPB Vice Chairman Wagner disagreed. She argued in dissent that the then-recent amendments to the Whistleblower Protection Act expanded the protection of whistleblowers beyond those that report government malpractice, but also to those who disclose waste/fraud/abuse by private entities in their normal course of duties.

This issue is HUGE. If Congress indeed intended to expand the definition of whistleblower to cover those who report non-government bad deeds in the normal course of their duties, as argued by Vice Chairman Wagner, the universe of whistleblowers increases by several-fold, as there are hundreds of thousands of government employees who have the opportunity to do this sort of thing as a routine part of their work. One would think that if one of the three Presidential appointees at MSPB believes this is what Congress clearly intended “as a matter of plain logic,” the Board’s decision in this matter would be worthy of a precedential decision.

Well, the members did not think this way. They decided to hide this intra-Board disagreement in an NP, thereby relegating the competing rationales of the dissent and the majority opinion to the never-never land of Board law.

In response to the NP order denying his appeal, appellant Aviles took the Vice Chairman’s arguments in his favor to the United States Court of Appeals for the Fifth Circuit. As it turns out, this NP decision became the very first decision to be appealed directly to the Fifth Circuit as provided for in the alternative forum provisions of the 2012 amendments to the Whistleblower Protection Act. The Fifth Circuit did three interesting things with this “insignificant” Board order:

  1. Held that it would not decide whether it was bound to provide the 5 USC § 7703(c) (Terban) deference to an NP decisions (the court is just as confused as the rest of us).
  2. Concluded that the US Federal Circuit Court of Appeals, the court that has been ruling on appeals of Board decisions involving whistleblowers for 25 years, is using the wrong evidentiary standard when assessing jurisdiction (e.g., that the motion-to-dismiss standard should be applied to these appeals, not the summary judgment standard used by the Federal Circuit).
  3. That the logic of Vice Chairman Wagner, as argued by the appellant, was “at odds with common sense and principles of statutory construction.” Aviles v. MSPB, 779 F.3d 457 (5th 2015)

Vice Chairman’s rationale was clearly wrong in this matter. However, she was indeed one of the three individuals empowered by the President, with confirmation by the Senate, to make these decisions. Her dissenting logic and arguments should not be relegated to the world of non-precedential orders, especially so when the case involves significant matters of Board jurisdiction and Federal Circuit precedent. [email protected]

Swearing (at?) the Proposal Letter and Other Matters

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By William Wiley

Questions, we get questions. And we got several follow-up questions from a certified practitioner who recently completed our famous FELTG MSPB Law Week seminar. Always good to hear that class participants are picking up on things. Below are my responses, in bold.

  1. Mr. Wiley stated that he now recommends that proposed discipline is sworn by the PO. Is that true for disciple that is not appealable to the MSPB? Yes. Why do you recommend that proposals be sworn to?

By adding the penalty of perjury statement to a proposal letter, the statement is converted from a simple hearsay documenting the agency file to a document having greater evidentiary value. “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”.  28 USC 1746. The Board consistently gives significant weight to uncontroverted penalty of perjury statements, and lesser evidentiary value to evidentiary statements made in an unsworn document.  There is always the possibility that a proposing official will not be able to testify at hearing. Adding the penalty of perjury statement converts those factual statements in the proposal – perhaps things that the PO observed personally – into hard evidence that the agency can use to support its case. Without that statement, it cannot use the proposal as evidence of very much. As there is value added and as there is no reason NOT to include the statement, I think it is prudent to do so.

  1. In the class Mr. Wiley said that the deciding official should complete a DF [Douglas Factor] analysis on a worksheet. However, in the version of his book that’s available on CyberFEDS©, the DF analysis is in the document. Which one is correct?

Both are correct. However, attaching the worksheet itself is a stronger approach, and an approach that I developed after CyberFEDS© published the desk book. I believe I wrote the desk book around 2005.  In 2010, the Board began a more scrupulous review of the Douglas Factors. Therefore, my practice evolved.

  1. Mr. Wiley said that if one of our supervisors is confronted with a record that another supervisor gave a lesser penalty, then he could say: “If I was that supervisor, I would have handled it differently.” HR has said that that recommendation is not supported by the case law, and even if a manager would have handled it differently, we are bound by the previous decision, absent distinguishable facts. Do you agree? Is there any case law or other references that support the recommendation?

Davis v. USPS, 120 MSPR 457 (2013): “The deciding official further testified that he was unfamiliar with the [comparator employee] or the circumstances of his discipline, but that he would have removed the [comparator employee] if he had been the deciding official in that case.”

  1. Mr. Wiley said that MSPB is pulling back from the idea that you have to disciple consistently throughout the agency. HR disagrees, and I can’t find any authority in support of the statement.

I reach that conclusion from reviewing how the Board assessed the factors in a recent case like Chavez v. SBA, 2014 MSPB 37, and the facts in the collection of the four 2010/2011 cases that started us down this dark road of comparator employees: Lewis/Woebcke/Villada/Raco. In Chavez, the Board addresses three points that they ignored in the Terrible Trilogy: 1) penalties effected post-removal are due limited weight (the greater the length of time between the two, the less weight the later penalty warrants), 2) different discipline officials in different chains of command can justify different penalties, and 3) the agency need not compare appellant to employees who engaged in similar misconduct, unless that misconduct was actually charged. The discipline officials in Lewis/Villada/Raco were different from the comparators. However, the Board did not consider that when mitigating the penalties in those cases. Yet in more recent cases such as Chavez , the fact that the employees were in different chains of command was a major factor in the Board not mitigating that penalty.

In other more recent cases, the Board has spoken to non-mitigating factors it did not consider in 2010/2011. For example, the Board now considers a lack of knowledge on the part of the deciding officials relative to other discipline to be a non-mitigation factor. Ly v. Treasury, 2012 MSPB 100 (“Any difference in treatment between the appellant and the comparator was not knowing and intentional on the part of the deciding official.”) Knowledge on the part of the deciding officials (or lack of knowledge) was not a consideration in the earlier Terrible Trilogy comparator-mitigation decisions.

Finally, the Terrible Trilogy decisions were issued by Board members Grundmann/ Wagner/Rose soon after Grundmann and Wagner were appointed and began issuing decisions in 2010. Member Robbins was appointed in 2012 subsequent to the Terrible Trilogy decisions to replace Member Rose and immediately dissented from the comparator theory of the Terrible Trilogy. Boucher v. USPS, 118 MSPR 640 (2012). Ms Wagner is now gone and Ms Grundmann’s appointment has expired although she is holding over until after the Presidential election, by all appearances. Putting all of this together leads me to the conclusion that the Board is moving away from its poorly thought out approach in the Terrible Trilogy.

Hope this helps. Best of luck-  [email protected]