We Don’t Need Civil Service Reform, Part III: It Doesn’t Take As Much Proof As You Think

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By Deborah Hopkins, September 18, 2019

In the final installation of this three-part series, I will discuss how holding employees accountable does not take as much evidence as you think it does. Before you read this, though, take a look at the first two articles in the series:

Holding employees accountable is not as difficult as you think it is.

Holding employees accountable is not as time-consuming as you think it is.

I hope by now you’ll agree with me that the civil service system is not completely broken, but instead is being used inefficiently. Today we will tackle the final challenge, on the amount of evidence needed to take actions against employees for misconduct or performance-related problems.

A 2015 MSPB survey found that 97% of federal supervisors thought they needed more evidence to remove a federal employee that they actually do. The most startling number was that 94% of proposing officials thought they needed evidence beyond a reasonable doubt – that’s the amount you need to send someone to jail – to take an accountability action. The reality is, the evidence you must show to defend your action is far lower.

In DISCIPLINE cases, the level proof you need is called a preponderance of the evidence, which is that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. 5 CFR 1201.56(c); 5 CFR 1201.4(q).  If it is more likely than not that the employee violated a workplace rule (stole a laptop, falsified a time card, acted disrespectfully toward a supervisor, went AWOL, failed to follow a supervisor’s instruction, etc.), the agency has enough proof to discipline. If you are a supervisor and your employee said something disrespectful to you in a one-on-one meeting, you have a preponderance of the evidence. It’s as simple as that. You might have witnesses, video logs, an admission, or more, and that’s fine, but you don’t actually need that much evidence.

The most disempowering words a supervisor can hear from an advisor when the supervisor wants to take action against an employee who has violated a workplace rule is, “You can’t do that because you don’t have enough evidence.” In most cases, there actually is enough evidence to proceed.

In PERFORMANCE cases, the proof you need is substantial evidence, which is evidence that reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action, even though others may disagree. 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p). If an employee might have failed a critical element in her demonstration period, that is substantial evidence – even though other supervisors might disagree with the assessment of the employee’s performance. (Unless it’s a widget-based, black and white standard that is not open to interpretation.)

Additionally, with performance cases, unless your agency is exempted from the performance procedures in the statute, there is no requirement to do a Douglas factors analysis. Things like harm, length of service, work record and potential for rehabilitation do not have any impact – the MSPB can’t even look at those factors if the employee appeals a performance-based removal. The only evidence that matters is what happened during the 30-day demonstration period.

A special word to our friends at the VA – under 38 USC 714, which is just over two years old: Your burden of proof is substantial for both misconduct and performance cases for all employees covered by this statute.

Hopefully, you now see that you don’t need as much effort, time, or evidence as you thought you did, in order to hold a federal employee accountable. The legal minimum makes it easy to take the necessary actions so that an employee being paid by our tax dollars gets better, or else moves on to something else. [email protected]

Can an Agency Track Down a Former Employee and Discipline Him?

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By Deborah Hopkins and William Wiley, August 14, 2019

This hypothetical recently came across the FELTG Help Desk, and we thought it was a curious question that the rest of our readers might be interested in. It’s a multi-part scenario, so read carefully.

  1. Can a misconduct investigation at an employee’s old agency follow him to or otherwise impact him at a new agency where he has gotten a new job?

Answer 1. As long as the agency can find a nexus (a connection) between the previous misconduct and the current government job, then an investigation (and its ensuing findings) from another agency may follow the employee to the new job. The impact can include anything from nothing through removal, depending on how the new agency views the conduct.

The investigation stays with the employee because the employee is accused of engaging in misconduct directed against the government, which is not limited to just the former agency. Or, perhaps he’s committed a criminal act (against the American people). Either way, moving from one agency to another does not relieve him of accountability.

  1. If it is a low-level offense (far from criminal), can the old agency mandate the employee back to be interviewed, and reach them at their new agency to receive the proposal and decision letters? Or does the new agency somehow take on the case?

Answer 2. The former agency can absolutely request the employee to come back for an interview, and the new agency’s supervisor can mandate the employee comply with the interview request or else face disciplinary action. And just so you know, refusal to cooperate with an agency investigation is first-offense removal misconduct, no matter how serious or minor the misconduct allegations might be. See, e.g., Hamilton v. DHS, 2012 MSPB 19, Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Sher v. VA, 488 F.3d 489 (1st Cir. 2007).

Keep in mind, even though the employee has left, there’s this little piece of the Administrative Leave Act of 2016 (part of the 2017 NDAA) dealing with investigative leave that says if an employee quits during an investigation, the formerly employing agency should complete its investigation, then forward any adverse conclusions to the new agency for inclusion in the employee’s OPF. The former agency will have to notify the employee and then deal with any appeal, and as far as we can tell this issue has never been litigated.

When it comes to imposing discipline, however, that decision must be made by the new agency.

The employee now works at X agency, so he is controlled by X agency’s rules and regulations. And no agency regulations in the history of our great country allow some other agency to discipline employees other than its own. The former agency, call it Y, can inform agency X of its findings and recommend to management at X that the employee be disciplined. If X refuses to discipline, then the management at Y can go up the chain of command to the President and have him order X to discipline. The power to discipline employees is vested in the president (5 USC 301, et seq) and he can delegate that authority downward to his respective department heads. It’s all up to him.

In summary, the authority to discipline is vested in the employing agency, not the formerly employing agency. The old agency can recommend, but that’s about it, UNLESS…

If agency Y doesn’t mind taking political heat, they can report the matter to the IG of agency X, just like anybody can, by dropping a dime on employee misconduct.

[Wiley Note:  Several years ago, while riding with a chatty Uber driver, he asked me what I did for a living. I told him that I helped government agencies fire people who do bad things. He paused a second, and then asked, “Do these agencies contact you for help, or do you just go around DC looking for bad government employees you can fire?” There are a lot of days, my friends, that I wish that the second option had been the right answer.]

Hope this helps. [email protected]

We Don’t Need Civil Service Reform, Part II: Accountability Doesn’t Take as Much Time as You Think

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By Deborah Hopkins, August 14, 2019

Last month, I published the first article in a three-part series We Don’t Need Civil Service Reform, where I discussed how holding employees accountable is not as difficult as you think. A couple readers took issue with that premise, and said it’s NOT that easy. Well, at FELTG our instructors’ experience, some as former federal managers and some as legal consultants to dozens of agencies over the years, leads us to this conclusion: Although some agencies have built managerial problems for themselves, when it comes to misconduct and performance removals, the procedures are indeed simple. Actions can be taken without great pains. We don’t make this stuff up.

If you haven’t read the article, I recommend you do before you move on to today’s topic.

Have you noticed when you read the news or watch politicians on TV, the theme about federal employees, on a continuous loop, is that it takes forever to take any action against them? In reality, yes, agencies are taking far too long to take action against employees who have performance or conduct issues. But, it shouldn’t take a long time – and even better, it doesn’t have to.

Holding employees accountable is not as time-consuming as you think it is.

There are legal timelines for taking misconduct and performance actions and unless your agency policy or collective bargaining agreement says you have to do otherwise, I don’t know why you wouldn’t comply with the legal minimums. In addition, the documents needed to discipline an employee, or to put the employee on a performance demonstration period (or DP, the preliminary action formerly known as the PIP) shouldn’t take weeks or months to draft.

In DISCIPLINE cases, here’s the timeline:

Reprimand: Issue this immediately – as in, the same day the employee violates a workplace rule, or the day you find out the rule was violated. The longer you wait, the more of a disservice you do to yourself (it doesn’t count as discipline until the reprimand is given to the employee) and to the employee (she doesn’t have a chance to “learn” from the reprimand until she has received it).

It also doesn’t make logical sense to wait months to issue a reprimand. Such a delay undermines the assertion that “What you did was bad, and we won’t put up with it.” Legally, you can still issue a reprimand months after the misconduct – but why would you wait?

Short suspension: The proposal for the short suspension (anything a pay period or less) should also be handed to the employee as soon as practicable after the employee violates the workplace rule – generally within a week.

The employee then has a minimum of 24 hours to prepare a response to the deciding official (some agency policies or CBAs allow 7 or 10 days for the response), and the deciding official’s decision after considering the proposal and the employee’s response, can go into effect the next day.

That’s right. If an employee violates a rule on a Monday, the proposal can be given to the employee on Wednesday or Thursday, and the suspension could be served starting as soon as the following Monday.

Removals, demotions, and long suspensions: We recommend you never demote an employee or suspend for more than a pay period – come to MSPB Law Week if you want to know why – so I’ll focus this on removal actions.

The proposed removal should be issued to the employee immediately after the conclusion of the misconduct investigation, and the employee should be placed on notice leave so as not to disrupt the workplace. After all, the employee has done something so bad he deserves to be fired, so the longer you wait, the weaker it makes your argument about the nature and seriousness of the offense. The employee then has a minimum of 7 days to respond to the proposal (again, check policy or CBA). At any point after the response, and within 19 calendar days (per Executive Order 13839) the deciding official must make a decision, which can become effective as soon as day 31 (if the proposal is day 1).

Yes, an employee who violates workplace rules can be out of the workplace and off the payroll in a little over a month after the misconduct occurs.

In PERFORMANCE cases, the timeline looks like this:

As soon as the supervisor can articulate why the employee’s performance is unacceptable on a critical element in the performance plan, the supervisor should initiate a 30-calendar-day demonstration period – what we used to call a PIP – to allow the employee to show he can perform his job at an acceptable level. If the employee is not successful, his removal or demotion should be proposed immediately after the end of the demonstration period. In fact many agencies, such as USDA and HHS, have policies requiring a decision about the employee’s future to be made within 7 days of the end of the demonstration period.

After the proposal is issued, the employee then has a minimum 7-day response time, the same as in proposed disciplinary removals. But here’s where things become different from disciplinary cases: the deciding official is legally required to issue a decision within 30 days of the expiration of the notice period. Functionally, that falls between days 31 and 60, if the proposal is issued day 1.

It’s true, my friends. It only takes a month to remove a poor performer and MSPB has never NEVER NEVER found a 30-day demonstration period to be too short. The only time you have to make that period longer is if your CBA requires it, or perhaps if the person comes down with some terrible illness and is out of the workplace for three weeks out of the demonstration period.

Whether it’s a misconduct or a performance problem, you can have the employee off the rolls within just a few short weeks. It shouldn’t take months or years. The system as it exists is built for efficiency. You just have to use it the way it was intended.

Join us next time for Part III, where we discuss how holding employees accountable does not take as much proof as you think.

Take care out there. [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.

We Don’t Need Civil Service Reform, Part I

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By Deborah Hopkins, July 17, 2019

Yes, you read that title correctly. Despite what you hear and read in the media and from politicians who don’t know our business, We Don’t Need Civil Service Reform. The system is not broken. We just need federal supervisors to use the tools the law has made available for the past 40 years. And we just need advisors to counsel the supervisors about how the system works, and to support them through the process.

Here are a few things it’s important to know:

  • Holding employees accountable is not as difficult as you think it is.
  • Holding employees accountable is not as time-consuming as you think it is.
  • Holding employees accountable does not take as much evidence as you think it does.

In a three-part series of articles this summer, I will explain each of the above statements in detail, starting with the first.

Holding employees accountable is not as difficult as you think it is.

In our FELTG training classes, we present the conduct and performance accountability tools in checklist order. The checklists are easy to follow, make it easy to confirm you have the evidence you need, and make it easy to verify that you aren’t missing an important legal requirement and as a result jeopardizing your case. We spend time in our seminars going through each step, citing to relevant statutes, regulations, case law, and best practices, to be sure the process and requirements are absolutely clear, and to help ensure your case is defensible.

In DISCIPLINE cases, the checklist looks like this:

  1. Is there a reasonable rule in place?
  2. Did the employee have notice of the rule?
  3. Do you have proof the employee violated the rule?
  4. Can you defend your penalty?
  5. Did you provide the employee due process?

Do NOT jump to step 4 and choose a penalty if you don’t have steps 1-3 covered. If you do you will lose your case. It really IS that simple.

In PERFORMANCE cases, the checklist looks like this:

  1. Has the employee been issued a performance plan with legally sufficient critical elements identified?
  2. Has the employee been given a warm-up period to get used to the performance standards?
  3. Can you articulate why the employee is performing at an unacceptable level on at least one critical element?
  4. Did you give the employee an opportunity to demonstrate acceptable performance?
  5. Did you provide the employee legally-required assistance during the demonstration period?
  6. Do you have documentation the employee did not perform acceptably during the demonstration period?
  7. If the employee was not successful during the demonstration period, did you provide the employee due process?

Same thing here, don’t jump to step 4 and initiate a demonstration period (what we used to call a PIP) if you haven’t met the requirements of steps 1-3 first. If you do you will lose your case. It really IS that simple.

Let me say it again. It really is that simple.

You’ll have to come to our classes to get the full details on how to implement these checklists, and what is required for each step, but I promise it will be well worth your time. Do not believe what you read or hear in the media about how it is too difficult to deal with problem employees. Do not buy into the idea that civil service protections need to be stripped away to make the government a more efficient place. Do not look at the one case where a bad employee got her job back because of a procedural issue and think that you have no chance of getting your own action to stick; if you are on the management side, the odds are strongly in your favor that you will win your case.

Join us next time for Part II, where we discuss how holding employees accountable is not as time-consuming as you think it is. In fact, if you’ve got a problem employee, there’s a good chance you can have them off your payroll before the end of the summer. Stay tuned. [email protected]

More Questions about Federal Employees Who Use Marijuana

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By Deborah Hopkins, July 17, 2019

As marijuana is legalized in more states around the U.S., the questions FELTG receives regarding marijuana use by federal employees continue to come in. (If you haven’t already, check out my first article on the topic, Can Federal Employees Smoke Pot?) Below are some recent questions sent to the FELTG question desk, and along with each answer comes the disclaimer that this article is not intended to provide legal advice, is for training purposes only, and does not create an attorney-client relationship with any of the questioners.

Question 1:

Hello and good afternoon,

I have a question about the use of marijuana by federal employees. Since its use has been cleared in Canada for all who are 18 and over, can a federal employee with the U.S. be charged for just using it there? Upon returning to work, even days after using, he/she may not pass a drug test. Technically, a federal employee in Canada is subject to Canada laws and not those of the United States, correct?

Thanks and look forward to your response,

[Name Redacted]

And our FELTG-response:

Well, that’s a creative way to look at things, but you won’t like my answer. Don’t make the mistake of thinking that because an activity is legal in a certain jurisdiction, that activity can’t be considered misconduct for the purposes of federal employee discipline. For example, in over 40 countries around the world domestic violence is legal. But if a federal employee happens to work for the State Department in Armenia, which is one of the countries that does not see domestic violence as a crime or civil infraction, that employee can still be disciplined for physically assaulting her spouse, if the agency can find a nexus between the conduct and the federal job.

Of course, we don’t even need to look at such an extreme example. Take a read of what then-OPM Director Archuleta put in a 2015 memo to agency heads, which is still true today:

Marijuana is categorized as a controlled substance under Schedule I of the Controlled Substance Act.  Thus knowing or intentional marijuana possession is illegal, even if an individual has no intent to manufacture, distribute, or dispense marijuana. In addition, Executive Order 12564, Drug-Free Federal Workplace, mandates that (a) Federal employees are required to refrain from the use of illegal drugs; (b) the use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service; and (c) persons who use illegal drugs are not suitable for Federal employment. The Executive Order emphasizes, however, that discipline is not required for employees who voluntarily seek counseling or rehabilitation and thereafter refrain from using illegal drugs … Drug involvement can raise questions about an individual’s reliability, judgment, and trustworthiness or ability or willingness to comply with laws, rules, and regulations, thus indicating his or her employment might not promote the efficiency or protect the integrity of the service.

So even if marijuana is legal in a jurisdiction (Canada, or elsewhere), it is illegal for a federal employee to use marijuana in any form – smoke, edibles, tinctures, pens, etc. – at any time, if they are employed by a federal agency. If you fail a drug test, you can probably kiss your job goodbye, even if the drug was legal where you used it. In fact, in one of the last MSPB decisions we ever got, all the way back in December 2016, the MSPB affirmed an indefinite suspension for an employee who used marijuana and whose security clearance was under review. Palafox v. Navy, 2016 MSPB 43 (December 20, 2016).

Bottom line: The federal government takes marijuana use seriously. If you want to keep your job, don’t use it anywhere, anyhow.

Question 2:

Hello, I am starting a position with the [agency redacted] soon as a [job title redacted]. I’ve used marijuana prior to this position and am thinking of continuing to do so while there. What should I take into consideration while making this decision, and what consequences can I face if I fail a drug test? The position is very low level, barely a step above intern, for context.

Thanks for the hypothetical question. Federal employees may not legally use marijuana in any form, whether recreational or medicinal. If they do, they can be removed, either for misconduct or for suitability reasons. And if you’re a probationer, you won’t even get to the conduct or suitability question – you’ll just be out. You need to realize the risk you are taking if you choose to violate this federal statute.

While job level and type is a Douglas factor, when the misconduct violates a federal statute, the weight of the offense carries far more significance than the level of job you hold. (By the way, probationers don’t even get the benefit of a Douglas-justification in removals for marijuana use.)

Question 3:

Can you work for the federal government and still use medical marijuana?

Sure you can. Until you get caught, that is, and then you can be removed because it is illegal to use marijuana while you are a federal employee.

No matter how many different ways you ask the question, my answer is going to be the same. Unless and until Congress passes a law that says marijuana is not illegal, federal employees should just say no. [email protected]

A 75-cent Purchase Can Save Your Entire Case – and Help You Sleep at Night

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By Deborah Hopkins, June 12, 2019

In my travels across the globe teaching federal supervisors about the federal government’s accountability systems, one of the most-often-asked questions involves what supervisors can do to better their chances of defending their actions. Do they need more evidence? Witness statements? Video logs? A track record of poor performance a mile long?

All of that is fine, but I have an easier answer and it costs about 75 cents: an old-fashioned notebook. In the 40-plus years since the Civil Service Reform Act went into effect, we have seen case after case that hinged on contemporaneous note-taking – or the lack thereof – by agency supervisors or other management officials. I tell all the new supervisors I train that they need to go out to their nearest office supply store, and get a notebook pronto, since supervising in the federal government is a defensive practice.

While supervisors are generally given the benefit of the doubt in credibility determinations, the best way to supplement and enrich testimony is by producing contemporaneous notes. And the preference by administrative judges, still to this day, are hand-written notes as opposed to computer logs or even notes supervisors email themselves to document workplace events.

Let’s take a look at three types of cases where notes were the make-or-break point for the agency: Discipline, Whistleblower Reprisal, and EEO Complaints. We’ll look at a case the agency won (because of the notes) and a case the agency lost (because there were no notes, or there was a problem with the notes) in each category.

Discipline: Agency Winner

In our first case today, we have a removal case where the appellant engaged in multiple acts of misconduct, including failure to follow supervisory instructions. He disclosed the details of an ongoing agency investigation after his supervisor directly told him not to speak about it. The MSPB administrative judge (AJ) found that the agency failed to prove the charge of failure to follow supervisory instructions because the supervisor could not recall the exact words she used when giving an order to the employee. But the MSPB reversed the AJ’s finding and determined that the supervisor’s contemporaneous notes made shortly after the conversation with the employee, even though they were not a verbatim word-for-word recollection, supplemented her testimony. The charge was then sustained. Von Muller v. DOE, 101 MSPR 91 (Feb. 13, 2006).

Discipline: Agency Loser

In another failure to follow instructions case dealing with an agency investigation, the agency removed an employee for improper conduct because the employee failed to cooperate in an investigation, and failed to obey a supervisor’s order to leave the premises after his tour of duty had ended. At hearing, the supervisor’s testimony was different from what he had written in his contemporaneous notes about the situation, and that inconsistency led to a lack of credibility before the judge and, ultimately, before the MSPB. Because of the inconsistency in the notes, and the lack of any additional supporting evidence for the agency’s charge, the removal was mitigated to a 21-day suspension. Eichner v. USPS, 83 MSPR 202 (Aug. 6, 1999).

Whistleblowing: Agency Winner

When an agency takes an action against a whistleblower, the burden of proof rises from preponderance of the evidence or substantial evidence, depending on the type of case, to clear and convincing evidence. Clear and convincing evidence is a heavy burden, defined in the case law as “That measure of degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.” Schnell v. Army, 114 MSPR 83 (2010).

A whistleblower at DOJ was given a performance rating he did not agree with, and challenged the rating as an act of whistleblower reprisal. The agency was able to show clear and convincing evidence that the rating was warranted because, in addition to the supervisor’s specific testimony about the appellant’s performance issues, the supervisor had contemporaneous documentation that supported his observations. In addition, the agency was able to show that the appellant had performance problems prior to whistleblowing, and that documented complaints about the appellant’s performance came from outside chain of command. That, folks, is clear and convincing evidence. Rumsey v. DoJ, 2013 MSPB 82.

Whistleblowing: Agency Loser

The appellant blew the whistle on her supervisor, alleging harassment and intimidation and claiming that management and the EEO office had not taken any action. Shortly thereafter, she was informed that she was being reassigned. According to the appellant, when she questioned the reason for her reassignment she was informed by the VA hospital’s lead employee/labor relations specialist that the reassignment was due to her allegations of a hostile work environment involving her supervisor. The only evidence the agency presented in response to this allegation was two general statements, in affidavit form, denying that the reassignment was due to whistleblowing, but that it was because the appellant was unhappy with her supervisor. No additional evidence or documentation was provided, so the agency did not prove by clear and convincing evidence that the reassignment was not whistleblower reprisal. Moore v. DVA, DA-1221-13-0213-W-1 (March 10, 2015) (NP).

EEO: Agency Winner

In an interesting religious accommodation case, an employee requested to be allowed to wear a nine-inch ceremonial blade in the workplace, even though she worked in a federal building and the blade violated the security requirements. The agency could have simply said no because allowing the kirpan would have been more than a de minimis burden, but in an exercise of good faith, the agency also contemporaneously documented attempts to accommodate the employee including considering full-time telework and alternative work locations. Neither of these options worked with the employee’s job requirements, and the agency prevailed in showing that it did not engage in religious discrimination of the complainant because it documented the accommodation attempts. Tagore v. United States, 735 F.3d 324 (5th Cir. Tex. 2013).

EEO: Agency Loser

The complainant applied for a promotion and was not selected. She filed a complaint alleging discrimination based on race, sex, and reprisal for prior EEO activity. The four selection panel officials admitted the complainant was qualified but could not explain why she was not selected. There were no notes, scores or specific explanations of the scoring process in the record. One of the selection panel members asserted that he did not remember why she was not selected but that he “could only assume” her application did not show she had the skills needed to work at a higher level. That lack of contemporaneous documentation cost the agency the case. Hatcher-Capers v. USPS, EEOC No. 07A60008 (2006).

There are hundreds of other cases that show how contemporaneous documentation – or the lack thereof – is the deciding factor. Don’t let the next Loser case be yours; go buy a notebook today. [email protected]

Drafting Unauthorized Absence Charges: How to Write the Specification(s)

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By Deborah Hopkins, June 12, 2019

One of the more common categories of questions we get at FELTG involves the exceedingly technical area of drafting disciplinary charges. Here’s a recent note that came to us:

I have an employee who is being charged with unauthorized absence for a period of time. The specification(s) read something to the effect “You were absent from duty beginning January 28, 2019 through March 22, 2019 without authorization.”

There is a debate as to whether each day the employee was absent should be listed as a separate specification versus how it’s written above. I believe either specification spells out the conduct the Agency can prove. Any recommendations?

And the FELTG response:

Thanks for the email. I can’t give legal advice on your specific situation, but I can speak to the principle of drafting charges in general. When you charge an employee with misconduct you have to prove every single word in the charge. If there’s one word you can’t prove, you lose the whole charge – even if you have mountains of evidence the employee did something wrong. Check out Parkinson v. DoJ, SF-0752-13-0032-I-1, (October 10, 2014) (NP); Thomas v. USPS, 116 MSPR 453 (2011); Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990); Brott v. GSA, 2011 MSPB 52.

When it comes to specifications for charges, you don’t always have to prove every word (though that’s the goal), but you do have to prove the “essence” of the specification. We know from the case law that this means you have to get it pretty close to perfect, but if you get a word or a number wrong you still might get to keep the specification. See, e.g., Russo v. USPS, 284 F.3d 1304 (Fed. Cir. 2002).

Also worth noting, if you have multiple specifications and lose some of those specifications, your charge will still stand – as long as at least one specification sticks. But the more specifications you lose, the more wiggle room it gives MSPB to mitigate your penalty, if the penalty starts to fall outside the bounds of reasonableness.

The danger in [hypothetically] charging something like “absent from duty beginning January 28, 2019 through March 22, 2019 without authorization” is that if during even one of those days the employee was entitled to be absent (let’s say he was incapacitated for duty because of the flu and he had sick leave on the books) then you could lose the entire charge if the adjudicator thinks you have lost the “essence” of the specification. If even a day within the entire span of absence was authorized, have you still proven the specification?

There’s a strong argument to be made that the “essence” is still there, but this is now moving into a gray area. What about the weekends that are included in the span of those dates, when the employee wasn’t supposed to be at work? Is that inclusion of weekends far enough away from the “essence” of the specification, for you to lose you the whole charge? I am not sure I’d want to take on that battle, especially when there is a much easier way to handle this kind of case.

The alternative way of drafting the charge is to list each day of absence as its own specification; that way even if it turns out that for a few of those days the employee would have been entitled to leave, the charge could still stand based on the remaining specifications.

Charge: Unauthorized Absence

Specification A: 8 hours on January 28, 2019

Specification B: 8 hours on January 29, 2019

Specification C: 8 hours on January 30, 2019

Specification D: 8 hours on January 31, 2019

Etc.

It seems like a bit more work to do things this way, but we have learned to be exceedingly conservative when drafting charges. MSPB has traditionally been technical on how it looks at charge drafting, and (if we ever get an MSPB again) we can assume that the new Board members will follow nearly 40 years of precedent in this area.

For more on charge drafting plus a whole lot more, join FELTG in Washington, DC for MSPB Law Week September 9-13. I hope we’ll see you there. [email protected]

Civil Service Status Update

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By Deborah Hopkins, May 21, 2019
    A lot has happened over the last few weeks as it pertains to the world of federal employment law. Here’s a recap, in case you missed anything.
    • MSPB: We finally have a third nominee for the MSPB. Chad Bungard was recently nominated by the President to be the Vice Chairman, for a term that expires in 2025. Among other positions, he previously served as General Counsel at MSPB for several years. As of today, there is no date for a committee vote on his nomination. When might we see the Board back at full capacity? Your guess is a good as ours.
    • Executive Orders: In early April, the Court of Appeals for the D.C. Circuit heard oral arguments in the case dealing with the legality of President Trump’s Executive Orders issued May 25, 2018. Most of the discussion dealt with jurisdictional issues and whether the court, or the FLRA, is the proper forum to discuss challenges to these EOs.
    • FLRA: Speaking of labor relations, the General Counsel seat at the FLRA has been empty for two years, but the President nominated Catherine Bird, who is currently Principal Deputy Assistant Secretary for Administration (ASA) at the Department of Health and Human Services.
    • EEOC: The EEOC has a quorum for the first time since January – and it has a new Chair as well. On May 15, nearly two years after she was first nominated, Janet Dhillon was sworn in as the EEOC’s 16th Chair for a term that expires July 1, 2022.
    • OPM: The Senate Committee on Homeland Security and Government Affairs recently voted to advance OPM Director nominee Dale Cabaniss to the Senate for a confirmation vote. If confirmed she will be the third person to hold this position in just over two years.
    • OPM’s demise: Last week, the administration unveiled the Administrative Services Merger Act, which would effectively eliminate OPM by reorganizing it into a subcomponent of GSA. Under the proposed structure, the person in charge of federal workforce policy would be a non-Senate-confirmed political appointee. As you can imagine, not everyone is happy about this potential change. Because this is a piece of proposed legislation, both the House and Senate will have to agree in order for it to be signed into law by the President.
    • LGBTQ employment protections: A few weeks ago, the Supreme Court agreed to look at whether Title VII’s prohibition against sex discrimination includes an employee’s LGBTQ status. Arguments are on the docket this fall. Also, last week the House passed the Equality Act, which among other things would make protections for LGBTQ federal employees a statutory right. The Senate and the President would need to sign off on this piece of legislation in order for it to become law.
    As you can see, there is a lot going on, and plenty more to come. Stick with FELTG and we’ll keep you posted. [email protected]