What! No Tooth Fairy, Either?

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By William Wiley

Innocence. I seem to remember it vaguely. Many of us practiced it with our kids when they were young, telling them fun things like that if they were good a big fat guy in a red suit was going to come down the chimney and leave them presents once a year. Or, that an Easter Bunny had hidden colorful eggs around the house. Or, that if they put a recently-dislodged tooth under their pillow, a fairy would fly into their room when they were asleep and leave a quarter (although I guess now he has to leave a $20 to keep up with the times). Yes, sometimes we play little fantasy games with ourselves and with others, games that have good thoughts, but are not necessarily based on the hard facts of reality.

Although the more obvious fantasy games are usually played with children, we also play fantasy games with ourselves as adults. For example, a number of practitioners hang on every decision from EEOC as if they are each some sort of independent ex cathedra declaration of civil service law, bringing wisdom and justice to an otherwise discriminatory federal workplace. Well, if you’re in this group, start reading more EEOC decisions. Too many of them, like the following, contain a questionable evaluation of the evidence, Elbert H. v. DVA, EEOC No. 0120140032 (2015).

Relevant dates in order:

  1. February (estimate) 2009 – Complainant is hired as a probationary employee.
  2. June 30, 2009 – Supervisor rates complainant’s performance for the period from hiring until the rating is issued as Satisfactory.
  3. Beginning in the “summer” of 2009, supervisor begins to note deficiencies in the employee’s performance:
  4. July 19, 2009 – Employee complains to supervisor about a “hostile environment” caused by a coworker. Interestingly, nothing in the Commission’s decision references whether the employee claimed that the hostility was based on a protected civil rights category, or whether some coworker just didn’t like him and was therefore hostile.
    • Only hostility complaints based on race/sex/age/etc. are protected activity for the purpose of the filing of a reprisal discrimination complaint.
    • One would think that this would be an important evidentiary finding in EEOC’s decision.
  5. January 4, 2010 – Supervisor terminated employee’s appointment during probation for poor performance. Specifically, the supervisor reported that the employee:
    • Failed to create purchase orders
    • Failed to establish purchase orders prior to services being rendered
    • Failed to provide adequate customer support to the medical center
    • Failed to support the transitioning of Network circuits
    • Ignored an environmental alarm
    • Failed to follow orders regarding work transfer
    • Failed to notify chain of command of system issues
  6. Employee subsequently filed an EEO complaint claiming reprisal for the July 19, 2009 grumble. The EEOC judge found reprisal and awarded the employee:
    • Reinstatement
    • Back pay (est. $135,000)
    • Non-pecuniary damages of $23,750 (it appears that the employee did not request damages, but the judge awarded them anyway)
    • Attorney fees and expenses of $44,618.55.
  7. Amazingly, the employee/complainant appealed the judge’s decision to EEOC. The rationale for the appeal is not given in EEOC’s final decision. However, that decision affirmed the judge’s findings and award.

For those of you clinging to the belief that EEOC’s decisions are well-founded and fair, check out how the judge and the Commission rationalized that the supervisor reprised against the employee:

From the decision: “While the supervisor testified at the hearing that Complainant’s performance problems began in the summer of 2009, the supervisor had rated Complainant as ‘fully successful’ or better on June 30, 2009, and the ‘performance appraisal reflects no references to any of the alleged multiple performance problems that the supervisor now asserts as the basis for the Complainant’s termination.’”

  • FELTG Analysis: Well OF COURSE the appraisal given on June 30 was satisfactory. The supervisor testified that the employee’s problems didn’t start until the “summer. According to The Google, summer begins in the northern hemisphere (the relevant hemisphere herewith) on June 21. The successful performance rating given the employee for the first six months of 2009 is irrelevant to the employee’s unsuccessful performance the last six months.

From the decision: “The AJ further noted that Complainant had received a Special Act Award from the Deputy Director during the period his performance was supposedly problematic.”

  • FELTG Analysis: A Special Act award is based on an “act or service in the public interest in connection with or related to official employment.” 5 CFR 451.104(a)(2). It is defined as separate from an award based on an employee’s performance, 5 CFR 415.104(a)(3). Special Act awards are given for beneficial suggestions, acts of heroism, a reduction in paperwork, and other non-performance accomplishments that contribute to an efficient government. 5 CFR 41551.104(a). I once received a Special Act award because I helped a disabled employee down a stairway when there was a (minor) fire in the office. It is irrational to conclude that an employee who received a Special Act award necessarily is a successful performer.

From the decision: The AJ concluded that the supervisor’s statements regarding the employee’s failure to report to work during a snowstorm were false (“a sham,” “outright prevarication”).

  • FELTG Analysis: Yielding to the judge’s conclusion that the supervisor was “prevaricating” about the snow storm incident, what about the other five or six incidents of unacceptable performance on which the probationary termination was based? Is the Commission drawing the conclusion that since the supervisor’s testimony about the snow storm incident is not to be believed, the other incidents also are not to be believed? If EEOC is going this way, that’s quite a stretch, and not one that they’ve specifically laid out as a conclusion. The decision is silent as to the other bases for the removal, without explanation.

Evidence is often in the eye of the beholder. But a rational explanation (or lack thereof) is something we all can appreciate. Without one, we all have trouble believing in EEOC’s decisions, even though without exception, we all wish that they were always rational and correct. Sadly, they are not.

And for those of you who are still believers, there’s no such thing as a tooth fairy, either. So get rid of those left over teeth and warn your managers that you’re going to lose some cases that go to EEOC, whether you deserve to, or not. [email protected]

 

Exactly What is “Priority Consideration”?

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By William Wiley

It’s a new year. We get new questions. Here’s one from a concerned reader that involves a staffing office that may be unfamiliar with a long-standing legal concept:

I recently conducted a labor arbitration case that resulted from a grievance.  The remedy that was negotiated for settlement included a “priority consideration” for the individual, noting that the individual had to be qualified and a vacant position open.  The “priority consideration” stated that “the appellant would be considered first by the selecting official before any of the other candidates, who applied competitively for that vacancy announcement, will be considered.  The Appellant will then be offered the position unless he is no otherwise qualified for the position at that time.”  I have been told by our Civilian Personnel Office that, while they recognize “priority consideration” they do not recognize the authority of the arbitrator to approve the use of priority consideration in the way I have structured it in the facts of this case. They believe that this “priority consideration” violates the merit system principles.   The CBA for the particular union in the grievance uses the “priority consideration” but only in those cases where the government, during a competitive promotion process, has errored against an individual.  The typical case is where the individual has not been referred and should have been.  In that case and only that case, the Civilian Personnel Office recognizes priority consideration and gives the wronged individual a referral in the next vacancy for which he/she is qualified but does not guarantee the job.  I have performed some research under FLRA case law and have not found any cases on point but have found cases where priority consideration was a remedy.  Would greatly value your opinion on this matter. Thank you.

And our occasionally-elucidating response:

Always nice to hear from you. The answer is not in FLRA law, but in MSPB law. “Priority consideration” is a term of art that “generally means that an employee will receive bona fide consideration by the selecting official before any other candidate is referred for consideration, that he will not be considered in competition with other candidates, and that he will not be compared with them,” Lou v. Heckler, 38 FEP Cases 835, 837 n.3 (D.C. Cir. 1985).

Even when there is some question as to how a settlement is to be implemented, the obligation of the agency is to implement it in line with legal authority. Agencies have been offering priority consideration for over 30 years, so we know you have the authority to do it. The only limitation would be that you have to offer it consistent with any legal constraints; e.g., perhaps there is a disabled employee who has the legally superior claim to the vacancy, and has to be offered it as a reasonable accommodation.

Your civilian personnel office is mistaken in where the authority comes from to award priority consideration. It is not the arbitrator who is exercising the authority, but the agency itself through the operation of the settlement it agreed to. We provide training to personnel specialists (OPM does not provide mandatory training, sadly). We’d be delighted to have some of them in our upcoming classes; perhaps save you and Rod further difficulties.

As a footnote, be sure to have your selecting official document his bona fide reasons for not selecting the grievant, if that is the result. You’re going to have to defend that the appropriate consideration was provided if there’s a non-selection.

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

Perhaps MSPB Needs New Glasses

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By William Wiley

Why new glasses? Because the Board seems to have lost its focus. Let me tell you what I mean.

Way back in 1977, when yours-truly was but a babe in the world of “civil service personnel,” Congress was thinking up legislation that was destined to become The Civil Service Reform Act of 1978. In those primordial discussions, Congress began to develop the concept of a new federal agency, independent and given the responsibility to oversee all the major discipline in government (more or less). I remember clearly a couple of Senators referring to this still-conceptual embryonic oversight entity as the “Merit Board.” Nice tight name, I thought. “MB” works well as the acronym (certainly better than the unfortunately-named “Sam Houston Institute of Technology”). So we called it the Merit Board, at least for a few weeks.

Then, without a lot of fanfare, when the draft legislation began to take shape, the name appeared not as the Merit Board, but as the “Merit Systems Protection Board.” A couple of years later when former Civil Service Commissioner Scotty Campbell spoke at one of our earliest conferences, he related that the change was made to emphasize that this new agency had been created to protect the system itself, not to ensure some sort of individualized “merit” throughout government. The concept was that no single small agency could be responsible for every adverse personnel action within the two-million-plus government workforce. Rather, the most that could be hoped for was that the new MSPB would make sure that the merit-based systems were in place for use by the managers who run the various government agencies, and that the systems would provide the protection to the employees within those systems.

That’s why its named the “Merit Systems Protection Board,” not the “Federal Employee Protection Board.” If it were intended to be the FEPB, rather than the MSPB, it would be responsible for protecting the right of individual employees to be treated based on its definition of merit. In comparison, as the MSPB, it is designed to be responsible for protecting the system in which agency managers deal with agency employees, to make sure that those SYSTEMS are grounded in merit.

I know, I know. Sounds a lot like an angels-on-the-head-of-a-pin rumination, doesn’t it. Well, let me show you the distinction in practice.

Hypothetical Scenario: Agency fires employee because of theft.

MSPB World:  MSPB decides whether Agency provided Employee the procedures required by the merit system. Did Agency give Employee clear notice of why his removal was proposed? Check. Did Agency allow Employee to defend himself? Check. Did Agency provide Employee the reasons for the removal, all based on the proposal? Check and done. The focus has been on the application of the system by Agency.

FEPB World:  FEPB decides whether it can protect the employee who is in a merit system from being fired. Did Employee steal from Agency? Did Employee get due process? Did Agency pick the best penalty? The focus has been on the protection of Employee from removal.

Non-hypothetical Scenario:  A supervisory employee responsible for keeping terrorists out of our airplanes lies in a report. Twice. The judge even found part of her defense of herself to be an unbelievable “convoluted” rationale. Who would want a convoluted liar to be responsible for life-and-death decisions? Agency fires her.

MSPB World:  She got notice, she defended herself, the agency made a decision based on all the facts. Done.

FEPB World:  Ah, ha! I, the FEPB, conclude Agency did not prove all charges. I, the FEPB, conclude that she’s really not that bad of an employee because she lied in only a single report, has decent performance ratings, there’s tension in the workplace, and she had no prior discipline. I, the FEPB, conclude that removal is beyond reasonable and that “her misconduct would not preclude her from providing efficient service in a non-supervisory” lower-graded position, plus a 30-day suspension should replace the removal. Brown v. DHS, SF-0752-14-0816-I-1 (2016) (NP).

Note that in the FEPB World, not only did that Board declare that removal was unreasonable, it also concluded that the agency needed someone in a lower-graded position, and even though it might need someone in a lower-graded position, it could spare that individual for a month while suspended. Sure feels a lot more like managing an agency than simply protecting a merit system, doesn’t it?

The scenario in which this loss of focus has become most publicized imvolves the recent reversals of adverse actions taken by DVA against three of its Senior Executives. Instead of MSPB ensuring that the systems that were in place were complied with, it interjected itself into those systems and made decisions that were always intended to be made by the line managers who run DVA. For example, as we noted recently last month, in one of those reversals the Board’s judge said, “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016). This is a perfect example of the Board’s case law steering its judge toward the defense of the employee rather than the defense of the system, substituting its judgment for that of the line manager responsible for the operation of the agency.

Think of it this way. You’re ready to buy a new car. I go car shopping with you. We get to the point of considering two cars: a Ford and a Chevrolet. You conclude that the Chevrolet is the better car. I conclude that the Ford is the better car. Given that you are the one buying the car, responsible for driving it, and accountable should anything go wrong with it, who should make the buying decision: you or me? That’s right, you should, and so should it be the agency making judgment-call decisions like this within a merit-based system.

MSPB Chairman Grundmann was called upon earlier this month by several members of the US Senate to explain how the Board could possibly have not affirmed the demotions/removal in these DVA cases. In response, the Board stated that it was just following the law. Well, that’s just nonsense.  The Terrible Trilogy precedent (recent case law that calls for setting aside a penalty if anyone else in the agency who did anything remotely similar was not removed) exists solely as case law developed by the Board under Chairman Grundmann in 2010, and is not required by statute or regulation.  However wrong in its own right, the Board’s disparate penalty analysis was obviously designed for use in cases governed by Douglas, i.e., cases in which penalties can be mitigated.  That is the whole point of the Terrible Trilogy precedent — to justify mitigating a removal penalty to something less even though removal otherwise would be justified.  The Board was in no way required to apply this precedent to cases in which penalty mitigation was prohibited by law, as It is in the DVA/SES adverse actions.

MSPB should not be faulted for following the law, as it said in its response to the Senate inquiry. However, it certainly should be faulted for developing that law in the first place, for turning away from being the protector of our merit systems to being the protector of employees from what it believes IN ITS JUDGMENT to be unwarranted discipline.

By the way, since you’ve decided on the Chevrolet, may I suggest you consider the 2016 Corvette. That baby is wicked-cool and handles as if it was on rails. Of course, it’s your decision, not mine. [email protected]

Must One Be an Employee to Blow One’s Whistle?

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By William Wiley

Pop Quiz:  If an individual who is not a federal employee discloses an agency’s gross mismanagement and then is denied federal employment in reprisal by an agency for making that disclosure, is that individual entitled to pursue a whistleblower reprisal claim through OSC and the Board?

Hmmm.

And the answer is: Nobody knows.

That’s why on January 19, the Board issued a Federal Register notice calling for amicus briefs to address the issue, 81 Federal Register 11 (January 19, 2016), pp. 2913-2914. Seems as though there’s a case pending at MSPB that raises a similar hypothetical and the Board would like to know what you wonderful practitioners think about the issue, Mark Abernathy v. Army, MSPB Docket No. DC–1221–14–0364–W–1.

Now, I know many of you readers have a lot of spare time on your hands and are looking for something extra to do. And you’d like to show off your employment law chops just in case our next President’s transition team is looking for a new Board member (actually, two) over at MSPB about this time next year. What better way to have a sample of your work to send to them than an elucidating legal brief, discussing the pros and cons of both interpretations of the Whistleblower protection legislation (especially in light of the Department of Defense Authorization Act of 1987 – zzz), while reaching the conclusion that everyone on Earth, natural-born citizens and genetically-modified organisms alike, as well as citizens as yet unborn, and perhaps even visitors from other planets (with a proper visa, of course) is a protected whistleblower.

On one hand, it’s nice to see the Board members asking for an opinion from us practitioners. Goodness knows, they should have done that before they went down the dark road of Miller-reassignments and world-wide comparator employee analysis. On the other hand, although this is no doubt an important question for Mr. Abernathy (and perhaps your loyal reporter, were he seeking future federal employment), does it really concern enough potential appellants to be worth the effort of a call for amici?

As Pope Francis once said, “Who am I to judge?” The Members want to know your opinions, and now’s your chance to tell them. The deadline is February 9 so don’t dilly-dally. Be sure to review the Federal Register notice carefully so that you can fully understand this issue. Write well, write strongly, and perhaps affect the future course of federal employment law.

And, simultaneously create a nice writing sample for the President-elect to consider on her way to being inaugurated.

Numbers, We Love Numbers

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By William Wiley

Recently at FELTG, we stumbled across a copy of some MSPB case numbers that we found to be interesting (some call it dumpster-diving; others call it hard journalistic research). From what we could figure out, MSPB HQ has finally turned the corner on processing the multitudinous appeals from the Stupid Sequestration we all endured a couple of years ago. The Office of Appeals Counsel (if you have been to our famous MSPB Law Week seminar, you know who and how important that office is) has reduced its case backlog to just over 150 cases. That’s a remarkable achievement, given the workload increase that office has endured because of the Board’s decision to begin issuing non-precedential decisions several years ago.  150 pending cases is about the level of backload in OAC when I was MSPB’s Chief Counsel in the ’90s, a period of relatively expedient and consistent case processing (if I do say so myself).

The situation with the judges in the regional offices, however, is much darker. For nearly its entire existence, each Board Chairman has imposed a goal of issuing decisions in all initial appeals (the judge’s decision) within 120 days. And more than one MSPB administrative judge has been quietly moved into other employment over the years when he could not keep up with the pace of 120-day adjudication. In a perfect world, the regions would have a backlog of zero cases more than 120 days old. Practically speaking, a few cases will be so complex as to require more time, so you might expect a backlog of maybe 10-12 over-age cases.

As of the end the previous year, according to the reports we recently received, the Board’s regional offices had a 120-day-old backload of over 900 cases.

When you consider that number, think of each of the individual appellants who have a significant part of their lives on hold, awaiting a regional decision in their case. Think of the growing liability exposure each agency involved in the appeal has, if the case involves potential backpay. In my day, in a situation like this, we would have moved troops from HQ to the field to help with the backlog, as soon as we were able to work out details with the Board’s professional association and office directors. I wonder if the current leadership of the Board is taking action to help in the regions.