We Might Get an MSPB After All

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By Deborah Hopkins, April 30, 2019

Did you hear the big news? Yesterday, President Trump nominated a third and final member to the Merit Systems Protection Board. After months of waiting and a lot of angst, B. Chad Bungard has been named to be the Vice Chairman for a term that will expire March 1, 2025.

According to the White House press release, Mr. Bungard currently serves as the Deputy Commissioner for the Office of Analytics, Review, and Oversight (OARO) at the Social Security Administration (SSA). Mr. Bungard is responsible for providing executive leadership to more than 2,000 employees, including leading the Office of Anti-Fraud Programs and the Office of Appellate Operations, where SSA’s Administrative Appeals Judges adjudicate appeals from SSA’s Administrative Law Judges. Previously, Mr. Bungard served as the General Counsel for the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) and Chief Counsel to the SSA Inspector General. Mr. Bungard earlier served as the General Counsel for the United States Merit Systems Protection Board. He also spent several years on the Hill in leadership roles, where he focused on oversight and government reform. He started his career in private practice, where he primarily focused on Federal civil litigation. In addition to attaining his B.S., cum laude, from Liberty University and J.D. from Regent University School of Law, Mr. Bungard received an LL.M. in Law and Economics from George Mason University School of Law.

Earlier this year, the Senate Committee on Homeland Security and Governmental Affairs voted out of committee MSPB nominees Dennis Dean Kirk (R) for Chairman and Julia Akins Clark (D) for Member. Committee Chair Ron Johnson announced that the Senate would wait for the third nominee to be named and voted out of committee before the first two nominees would be confirmed.

Here’s to hoping the full Senate will vote on these nominees quickly, and we get a functioning MSPB by the time school’s out. FELTG will keep you posted. [email protected]

The Seven Deadly Sins Employment Law Practitioners Commit

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By Deborah Hopkins, April 23, 2019

One thing I don’t understand is why people make their jobs (and as a result, their lives) more difficult than necessary. Aren’t the challenges that are out of our control already causing enough problems?

In my adventures traveling the country conducting federal employment law training, I’ve come across some suggestions that employment law practitioners offer as advice, that make things far more difficult than necessary for all parties involved. Not all advisors commit these sins; many do not. But in order to make the list, the Deadly Sin has to have been seen in multiple agencies, multiple times over the past year.

Here they are, with my bulleted responses following each:

  1. Inaccuracy. Advisors in L/ER or OGC tell supervisors they need a three- to six-month record of poor performance before they can put an employee on a PIP/ODAP/DP, or whatever the agency calls the period where the employee is given an opportunity to demonstrate acceptable performance.
  • That’s just wrong, and it’s bad advice. As soon as a supervisor can articulate why the employee’s performance is unacceptable, she can put the employee on a demonstration period, as long as the employee has been on her performance standards for a warm-up period of 60 days or so. The only thing that matters in a performance-based removal is what happens during the demonstration period. As long as the reason why the performance action was initiated was not illegal (e.g., based on race or sex or whistleblower status) and the performance is unacceptable now, the employee’s performance before that articulation of unacceptable performance has no bearing.
  1. Imprudence. There are some jobs that are so high-level, an employee needs more than 30 days to demonstrate acceptable performance; therefore, the demonstration period should be at least 60-90 days.
  • No can do. The MSPB has never found a 30-day demonstration period to be too short, regardless of an appellant’s job level or type. Even if the employee’s typical work cycle takes months or even years, there must be some amount of work the supervisor expects to be done within the next month or so. Break the projects down into smaller steps and you’ll find you have a nice 30-day demonstration period. If my suggestion isn’t enough, you may want to note that several agency policies, and even the President in Executive Order 13839, now say that 30-day demonstration period is sufficient. Unless you have a union contract that says you have to provide more than 30 days, you don’t. And you shouldn’t.
  1. Waste. If an employee fails the PIP/ODAP/DP before the end date, the agency should let the employee finish out the 30-day demonstration period anyway.
  • This makes no sense – and could actually cause a lot of harm. Picture this: a TSA security screener who is on a demonstration period, lets a bunch of cocaine and guns get on an airplane in the first couple of weeks of the demonstration period, and you’re going to let that screener continue working for the next several days? If so, I guess you think letting drugs and loaded weapons onto a plane are no big deal. Or what about the nurse who is putting patients’ lives in danger – you’re really going to let him continue to provide poor care after he shows you he cannot do the job acceptably? The same principle applies across the board, no matter the job or what the employee’s critical element is called.

It is a waste of time, taxpayer money, and supervisory resources to allow someone who fails an opportunity period before the end date to finish it out, and there is legal authority that says you can end it early due to error rate. See, e.g., Luscri v. Army, 39 MSPR 482 (1989). The primary issue the MSPB will look at is whether the employee was given an opportunity to demonstrate acceptable performance. We know from the case law that even 17 days is enough time for an employee to demonstrate whether he can do the job acceptably. Bare v. HHS, 30 MSPR 684 (1986). The only time you have to allow the full length of the demonstration period to run is if it is required by your collective bargaining agreement.

  1. Fallacy. If the supervisor saw an employee engage in misconduct, he can’t discipline the employee unless there is additional evidence to support the charge.
  • The standard of proof for misconduct is preponderance of the evidence – or substantial evidence if the employee is covered by the new VA law. If a supervisor saw the employee violate a workplace rule, that’s a preponderance of the evidence. 5 CFR 1201.56(c); 5 CFR 1201.4(q). If you have witnesses and video logs, that’s great – but if you don’t then you still have enough evidence. The only exception is if the employee is a whistleblower; in that case you’ll need clear and convincing evidence, so those extra witnesses and videos will come in handy.
  1. Risk. Don’t use Notice Leave except in extreme circumstances where you have determined an employee is a threat to safety.
  • Notice Leave is a paid leave status, created by the Administrative Leave Act of 2016, that allows the agency to send the employee home with no duties after a removal is proposed, for the duration of the 30-day notice period. In order to use Notice Leave the agency simply needs to document why retaining the employee at work jeopardizes a legitimate government interest, that reassignment is not appropriate, and inform the employee in the proposal that she will be placed in this pay status.

Why wouldn’t you use Notice Leave it every time you propose a removal? Congress created this category of leave exclusively for this situation. An employee whose removal is proposed will not do anything constructive during the notice period – and may even cause severe problems in the workplace. Don’t believe me? Come to our Emerging Issues Week class this July where we talk about people becoming violent in the workplace after proposed removals; even though there may be warning signs, you can’t always predict it. Plus, some people become violent with NO warning at all. Don’t gamble with your life or your agency resources. Use the gift called Notice Leave every time, and you won’t have to wonder who will become dangerous in the workplace after you’ve proposed their removal.

  1. Apathy. It’s too much work to go through with a misconduct or performance action, and the agency will probably just settle the case anyway, so supervisors should ignore conduct and performance issues unless they are especially harmful or egregious.
  • I cringe every time I hear something like this. This is completely disempowering to supervisors and just plain wrong. If a supervisor wants to take an action, the role of an advisor is to make the supervisor aware of the options and to point out potential legal issues – not to tell the supervisor to forget it. If a supervisor has reason to hold someone accountable, then we should support that supervisor.
  1. Avoidance. If an employee has EEO activity pending, the supervisor must hold off on any discipline until the complaint is resolved.
  • If I had a dollar for every time I heard this, I could have retired years ago. This statement is completely incorrect. EEO activity is not a shield for employees, though in reality it has become one in many agencies. Supervisors can discipline employees who happen to have EEO complaints pending, as long as the discipline is not motivated by, or because of, the person’s EEO activity. And here’s another note: It often takes between 3-5 years for an EEO complaint to be resolved, so you definitely shouldn’t wait to hold employees accountable.

I hope practitioners can understand why these pieces of advice are so detrimental to supervisors, and impact the efficiency of the government workplace. If there are other deadly sins you’ve heard about, feel free to share them and they may show up in a future article. In the meantime let’s all work together to make the federal government a better place to be employed. [email protected]

Losing Charges Can Sink Your Case – Unless You Work at the VA

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By Deborah Hopkins, April 10, 2019

One of the long-standing principles we teach during MSPB Law Week (next offered in Dallas, TX, June 2-6) deals with how important it is to be mindful of the words used in disciplinary charges. Historically, if all of an agency’s charges are sustained, then the MSPB grants deference to the agency’s penalty selection unless the penalty is outside the bounds of reasonableness. See, e.g., Payne v. USPS, 72 MSPR 646 (1996). But if the agency loses even one charge, the agency loses the presumption of penalty deference and the MSPB has more room to step in and mitigate the penalty. See LaChance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).

One of the tendencies we warn agencies against is what my colleague Bill Wiley calls “spanking the employee,” otherwise known as piling on charges. You might have an employee who has done a bunch of bad things, but the danger in piling on charges is that if you lose even one, you could lose your penalty. (Hint: One way to avoid this is to include in the decision letter a statement that says any one of the charges, standing alone, would be enough to warrant the selected penalty. See LaChance, above.) So, it’s important to be mindful of the charges and to choose your best two or three, rather than to charge 10 or 20 things and risk losing a few.

Unless you’re covered by the new VA law, that is.

Under the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (38 USC § 714), the MSPB does not have the authority to mitigate the VA’s penalty, as long as the agency can show the employee might have engaged in the misconduct. That’s right, might have. Under this law, the VA must only show substantial evidence (not preponderance like all the other agencies must show) that the employee engaged in misconduct in order to have a charge upheld. The regulatory definition for substantial evidence in federal personnel actions is “evidence a reasonable person might accept [not would accept] to support a conclusion even though others may disagree. [Emphasis added.] 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p).

So if you work for the VA and you lose charges, you don’t have to worry. As long as even one charge stands, your penalty stands. To drive that point home, the U.S. Court of Appeals for the Federal Circuit just issued a non-precedential decision in what we believe is its very first decision under the new VA law, Hairston v. VA, No. 2018-2053 (Fed. Cir. Mar. 8, 2019).

In this case the appellant, a housekeeping aid, was removed for two acts of misconduct:

  • Charge 1: Conduct unbecoming of a federal employee (kissing a nurse without her permission)
  • Charge 2: Failure to follow instructions (for visiting a ward he was ordered to stay away from)

The MSPB AJ sustained Charge 1, but did not find substantial evidence on Charge 2. Normally, this is where an agency’s penalty determination would be scrutinized – but because the agency is the VA, the AJ did not have the authority to mitigate the penalty, so he upheld the removal. See 38 USC § 714(d)(2)(A)-(B).

The appellant in this case did not file a petition for review to the MSPB (probably because they lack a quorum and he didn’t want to wait at least three years to get a decision back). After a month, the administrative judge’s initial decision became the final decision, and then the appellant filed a petition for review with the Federal Circuit, which has jurisdiction under 28 USC § 1295(a)(9). (Did you even know that an appellant can skip the PFR process and go right to the Federal Circuit? It’s been happening more lately since the MSPB is currently non-functioning at the PFR level.)

The scope of review in an appeal from the Board is limited by statute and the Federal Circuit must affirm the Board’s decision unless they find it to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

The decision is unremarkable in the Federal Circuit upheld the MSPB’s decision and affirmed the removal, as it does over 90% of the time. But it’s noteworthy because it’s the first decision under the VA’s new law, and it tells us that our read of the law on penalty mitigation is absolutely what we thought it was. Whether you agree or disagree with the application of the law, you can fire an employee at the VA if he might have broken a rule – and the Federal Circuit can’t step in.

If you’re not covered under this VA law, though, you’ll want to be extra careful when drafting charges. Join me for a webinar on this very topic July 11 called Words Matter: Drafting Defensible Charges in Misconduct Cases. [email protected].

Hey, Deciding Officials: What Exactly Does Ex Parte Mean?

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By Deborah Hopkins, April 10, 2019

In federal sector employment law, we often use terms of art that carry very specific meaning. These terms may vary from a typical dictionary definition, or even from a black-letter law definition. Examples include discipline, due process, notice, response, representative, supervisor, and even employee.

A term of art that I want to highlight today is ex parte. This is a Latin term used in legal proceedings meaning “from one party.” The Legal Dictionary definition goes a little deeper: “An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney.”

That’s fine, but still not entirely helpful for the purposes of agency discipline and performance actions in the federal government. It needs some context. But before the context, let’s do a quick review of the required steps to taking a disciplinary or performance action:

  1. The Proposing Official (PO) gives the employee a proposal notice which includes the reasons for the proposed discipline (charges; Douglas factors) or performance removal (incidents of unacceptable performance during the PIP), and any relevant supporting documentation.
  2. The employee responds orally and/or in writing to the Deciding Official (DO), based on the information given in the proposal notice and any other information the employee thinks is relevant. The employee has the right to be represented in this response.
  3. The Deciding Official makes a decision based ONLY on what is contained in the proposal packet and what was contained in the employee’s response.

These are the due process steps required by law, for any Title 5 or Title 42 career employee who has satisfied the probationary period. So, where exactly does this ex parte concept fit in? Well, there are two primary types of ex parte violations that might arise:

  • An ex parte act occurs when an adjudicator considers evidence not available to one or more of the parties.
  • An ex parte discussion is one held by an adjudicator without allowing all of the parties to the controversy to be present.

The DO is a management official in the agency and as such makes decisions for the agency, she is also acting as the judge, because she is weighing the evidence to determine what penalty to dole out.

The employee legally is entitled to know all the reasons the PO relied upon, at the time he issues the proposal notice. So an ex parte violation occurs when, after the proposal is issued, the DO becomes aware of new information about the employee or the case, and the employee (and the representative, if he has one) is not made aware of the new information.

Let’s apply this scenario to the two types of ex parte violations above:

  • Ex parte act: A coworker of Ed Employee, whose removal has been proposed, sends an email to the DO, informing her that the Ed has been sending inappropriate text messages to her for months, even though she’s asked him to stop. The coworker attaches a PDF with copies of the purported text messages.
  • Ex parte discussion: The deputy director of the division sets up a meeting to talk with the DO about the risks of keeping Ed around, when there are unsubstantiated but potentially serious allegations of harassment against him. Ed is never told about this discussion.

Now you can see where the term ex parte comes in – only one side (the DO) gets the information, either intentionally or unintentionally, and Ed Employee does not have a chance to respond to it, because that new information was not in the proposal notice.

If such a violation occurs and the employee finds out about it, then it’s an automatic loser of a case for the agency – even if there is video evidence of the employee committing the charged act of misconduct, 15 sworn statements from credible witnesses, and a confession from the employee himself. It’s a procedural due process violation and that employee cannot be removed or otherwise disciplined.

One of the foundational ex parte cases involved a DOD employee who claimed credit for time not worked on six different days, and was removed for submitting false claims. After the proposal was issued, the Commanding Officer engaged in surveillance of the employee and provided this information, along with additional documents, to the DO – and the employee was not given any of this information. Due process violation, and we’re done; employee gets his job back. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Additional cases show that ex parte information, whether it is relied upon or not, automatically violates due process. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011); Buchanan v. USPS, DA-0752-12-0008-I-1 (2013); Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007); Gray v. Department of Defense, 116 MSPR 461 (June 17, 2011). Be careful when doing legal research, though, because you will find cases where agencies got lucky and successfully argued that the new information was not considered, or did not influence the DO. See, e.g., Blank v. Army, 247 F.3d 1225 (Fed. Cir. 2001) (After receiving the employee’s response to the proposed termination, the DO conducted a further inquiry into the matter but there was no due process violation because the interviews only clarified and confirmed what was already in the record.).

You don’t want to hope to get lucky in one of these cases, though. Fortunately there’s a simple fix for an ex parte conundrum, and it will save your case. The DO can simply notify the employee of the new information and give the employee an opportunity to respond to it, before the DO makes a final decision. See Ward, above.

It may bump your timeline back a few days to allow the extra response time, but that’s waaaaaay better than losing a case on a due process violation and having to start from scratch. [email protected]

 

 

How Far Back in Time Can I Go to Discipline an Employee?

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By Deborah Hopkins, March 26, 2019

Recently, we received a question from a reader about how far back in time an agency can go when it wants to discipline an employee.

We have a [hypothetical] case where we recently uncovered dozens of harassing comments (sexual) from an employee, spanning many years. How many years back can I reference specific examples in his proposed removal notice? The charge will be Conduct unbecoming a federal employee.

And here’s the FELTG response.

Thanks for the question. If you look at 5 USC § 7513 you’ll notice that in cases of adverse actions for misconduct there are no time limits for how far back an agency is allowed to reach, nor is there a requirement that an action be proposed within a particular time period. (Conversely, the law in performance cases under 5 USC § 4303 limits agencies to proposing removals for poor performance occurring during the one-year period prior to the proposal date.)

Because the law is silent on timeline, we have to look to the cases to see how the MSPB has viewed this issue. Excessive delays, especially those without explanation, can hurt the agency’s ability to successfully defend a disciplinary case and may result in the discipline being overturned. The longer an agency takes, the less convincing its stance that discipline was warranted. See Baldwin v. VA, 2008 MSPB 169 (if an agency’s delay in charging discipline is unreasonable, the charges may be dismissed). In these cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm. Brown v. Treasury, 61 MSPR 484 (April 7, 1994). The Board will also consider whether the delay indicates an improper motivation to discipline the employee, such as reprisal for EEO or whistleblower activity. Id.

Sometimes agencies have good reason for delaying disciplinary action. The more detailed the explanation, the better for the agency; the discipline may be upheld even if a large amount of time has passed. The reasons for delay the Board has accepted (though not condoned) include management official waiting on receipt of an investigation report, and office restructuring and turnover that caused delays in all workplace actions. Cates v. USDA, 24 MSPR 468 (Nov. 20, 1984), aff’d, 776 F.2d 1065 (Fed. Cir. 1985). If criminal charges have been filed against an employee, this may also justify the agency choosing not to charge the conduct for some time. See Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (an eight-month delay after learning of the misconduct, which had occurred six years earlier, did not prevent the agency from disciplining the employee).

Not finding out about the conduct until recently is a darn good reason for not disciplining the employee until now; the key is not to wait too long, now that you know what happened.

An employee’s primary defense in one of these cases is an affirmative defense called laches. A party claiming laches must establish two elements: 1) the agency’s unreasonable delay in bringing a personnel action, and 2) resulting prejudice to the appellant. See Carr v. SSA, 185 F.3d 1318, (Fed. Cir. 1999). Prejudice to the appellant is shown if the appellant encounters increased and prejudicial difficulty in mounting a defense due to the delay, such as the loss of records, destruction of evidence, fading memories, and the unavailability of witnesses. Hoover v. Navy, 957 F.2d 861 (Fed. Cir. 1992).

While an employee may assert laches, you’ll want to look for evidence the employee actually remembers the misconduct which you’re charging. In Williams the appellant actually stipulated to the charge, which turned the light green for the agency to proceed with discipline. In Baldwin, the employee asserted he did not remember the conduct at issue, but other evidence including witness statements, indicated he did in fact know what the agency was talking about, and the Board said his assertions were “not…nonfrivilous.”

One other thing, on the “Conduct unbecoming a federal employee” charge: well done. It’s tempting in cases of egregious and harassing behavior, to charge an employee with Sexual Harassment. But that can be tough, because the bar to prove sexual harassment is quite high –  and if you don’t prove all the elements of sexual harassment, your discipline cannot stand even if you have 15 sworn witness statements, documentary evidence, a video of the harassing conduct, and a confession by the harasser.

At FELTG, we’d suggest using the charge listing out all the harassing behavior as specifications rather than running them all together in a list as part of the generic charge. It would look like this.

Charge: “Conduct unbecoming a federal employee”

Specification A: On February 5, 2019, you referred to Coworker X as “a hot piece of ass.”

Specification B: On November 16, 2018, you slapped Coworker X on the rear end in the break room at lunchtime and said, “I want some of this.”

Specification C: On October 1, 2018, you told Coworker Y that you wanted to get Coworker X alone in the stairwell and have your “way with her once and for all.”

Specification D: On August 5, 2018, you told Coworker X if she did not have sex with you, you would tell the Agency Director she was conducting personal business on government time.

Be specific. Use dates, times, the employee’s actual words, and his actions – even if it’s uncomfortable to see it in writing. Go back as far as you need to, without overdoing it. Resist the urge to “spank” the employee, as Bill Wiley puts it, by listing every single bad thing he has ever done. Instead, either focus on the most recent or most egregious incidents and list those. If you lose a couple of specifications, no problem, but if you list 20 and only two stand, the Board may decide to mitigate your penalty. If you list two and both stand, the Board doesn’t have the authority to mitigate unless your penalty was unreasonable. See, e.g., Payne v. USPS, 72 MSPR 646 (1996).

As we say at the end of each training day, good luck out there. [email protected]

 

Cook-ing a Sick Employee

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By Deborah Hopkins, March 13, 2019

A few days ago I got a nice note from a FELTG customer, who had a question about an employee with excessive absences. Allow me to paraphrase a snippet that you might find interesting.

I recall learning in one of your courses that a supervisor who approves leave cannot then turn around and use the approved leave to support a disciplinary charge of excessive absence. Is this correct – and if so, are there any exceptions?

And here’s the answer: While there’s a fundamental principle that says an agency cannot discipline someone for being on approved leave, there are indeed exceptions. At FELTG, we like to highlight these kinds of exceptions, as they provide us with the coordinates of the outer boundaries of the law, for taking these kinds of actions.

The foundational case for excessive absence removals, one that every employment law practitioner should read, is Cook v. Army, 18 MSPR 610 (1984). This case sets out the elements required for an excessive absence removal, where an employee has been on approved leave for a period of time but the agency can no longer allow the absence to continue, and needs to remove the employee for not being able to work. Here they are:

  1. The employee was absent for reasons beyond her control;
    • For example, she was too sick to come in to work.
  2. The absences continued beyond a reasonable time;
    • For example, she was gone for 2 months out of 6 months after her FMLA ran out (see Gartner v. Army, 2007 MSPB 8; Savage v. Army, 2015 MSPB 51).
  3. The supervisor warned the employee that she would be removed if she did not report to work;
    • Send the employee a letter that tells her this.
  4. The agency showed that the position needed to be filled on a regular, full-time basis
    • Your Douglas analysis on the harm caused by the employee being gone is key here.

After you read Cook, take a look at Curtis v. USPS, 2009 MSPB 134, in which a Cook removal was upheld when, over a 21-month period, the employee was absent for 77 days (on approved LWOP) due to PTSD and depression. That works out to about one day per week. If this kind of intermittent attendance happens for a couple of weeks, you don’t have a burden – but this went on for nearly two years and the agency was able to show a hardship in the absences.

You’ll want to be careful here. You can rely on approved annual leave, sick leave, and LWOP but you cannot count FMLA excused absences (these are an entitlement) or AWOL (which is an act of misconduct) when determining what constitutes excessive absence. See McCauley v. DoI, 116 MSPR 484 (2011); Savage, supra.

If you can’t meet even one of the Cook elements listed above, you can’t Cook an employee. Let’s look at a couple of cases that demonstrate this point.

First up is Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016). Miles had been out on approved leave for quite some time (1,000 hours, if I remember correctly) and the agency needed him to come back to work, so they sent him a letter telling him so. The warning letter told the employee that if he did not return to work, he would be disciplined – but it did NOT state that absence on approved leave would warrant dismissal. There was the agency’s first problem. Secondly, Miles’ medical documentation said he could return to work in six months, which was a foreseeable end to the absence. The agency had already granted 1,000 hours of approved leave, and the workload was actually getting done in the office despite his absence. The result: MSPB decided the agency did not meet the Cook burden, and Miles got his job back.

Another case to check out where the agency lost an excessive absence removal, is New v. DVA, 99 MSPR 404 (2005). In this case the employee had 12% absences over a five-year period but the MSPB reversed his termination because the Cook criteria were not met – being absent 12% of the time is not excessive enough.

One other approach to consider with an employee who is too sick to work, rather than Cook-ing him, is doing a non-disciplinary Medical Inability to Perform removal. I know it’s not easy on the conscience to fire someone who is in a bad medical place and is too sick to come to work; after all, you’re not dealing with someone who is breaking the rules for fun. But the good news is, these removals almost always help the employee’s case in an application for disability retirement. For information on this, and a whole lot more, join FELTG for Absence, Leave Abuse & Medical Issues Week, March 25-29 in Washington, DC. [email protected]

Too Many Goose Eggs at MSPB

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By Deborah Hopkins, March 5, 2019

I’m sure by now you have heard that for the first time in its history, we have zero Members at the Merit Systems Protection Board. Acting Chairman Mark Robbins’ term expired March 1, leaving the front office at 1615 M Street NW completely dark.

On his last day at MSPB, Robbins released MSPB’s Annual Report for FY 2018. So while we don’t have a Board (and who knows how long that will last since nobody with decision-making authority on Capitol Hill seems worried about it), we do have some new information to share.

Let’s take a look at some of the impressive numbers out by MSPB last year:

Are you seeing a trend here? That’s a whole lot of goose eggs. (And yes, the term “impressive numbers” above was meant to be sarcastic.) Without a quorum, a huge chunk of the Board’s work cannot get done. In a normal year, those subtotals are usually upwards of 1,000, including approximately 800 Petitions for Review.

I share these numbers not to slam Robbins or any of the dedicated employees at MSPB, because none of this is their fault. In fact, we know they have worked hard every day, despite the lack of quorum. The responsibility for this lack of performance falls directly on the Administration and the Congress, which for over two years have refused to put Board Members in place. This inaction has left the MSPB with over 2,000 cases, sitting in a hallway in cardboard boxes, waiting to be adjudicated. To add insult to injury, all of Robbins’ work on those 2,000 cases became obsolete last week and cannot be used by future Board members.

If I come across as upset, it’s because I am. If you’re tired of reading about this, then maybe you shouldn’t finish this article because I have more. There is NO REASON things at MSPB have to be this way. And yet it’s continued, for 786 days. I have contacted everyone I know – and don’t know – on the Hill and in the White House to try to get the message across that while maybe this doesn’t play on TV as well as national security issues, hot-button committee hearings, or North Korean summits, real people are hurting every day, more people get hurt every day, and the fix is SO EASY. Others have joined in this plea, even testifying before congressional committees and pleading with Congress and the White House to do something. And nothing has changed.

This is one of those rare areas where the inaction hurts both sides involved – the agency and the employee. There now are up to 2,000 people waiting for years to find out if they will get their jobs back. There are agencies on the hook for potential back pay in these cases. I’m not a math scholar but I know that three years (and counting) of back pay for a GS-14 in Washington, DC, plus attorney fees, can easily exceed half a million dollars. And that’s just one case out of 2,000.

But all is not lost. There is some light in all this darkness. As of right now the MSPB is still open and operating, aside from the front office. MSPB’s General Counsel, Tristan Leavitt, is now the Acting Chief Executive and Administrative Officer, so fortunately the career staff in the headquarters, regional offices, and field offices are still at work.

Let’s look at some more numbers from the report that aren’t 0s. In FY 2018, the Administrative Judges issued initial decisions (IDs) on 5,134 appeals. Here are a few significant numbers from within these IDs:

2,267: IDs on disciplinary actions

142:     IDs on performance-based actions

416:     IDs on probationary removals

517:     IDs on Individual Right of Action (IRA) appeals [usually whistleblower reprisal appeals]

325:     IDs on USERRA and VEOA appeals

1,058:  Cases settled before hearing

83.2:    Percentage of agency actions upheld

14:       Percentage of agency actions overturned or requiring corrective action

3,077:  Cases dismissed

The agency with the most cases adjudicated was the VA (1,080), and the agency with the fewest cases adjudicated (excluding those that have no appeals pending) was actually a 13-way tie at one appeal each. You can read the full report to see which agencies those were.

At FELTG, we’ll keep you posted on what’s next. And if you want to hear us rant about these injustices in person – while also teaching the law – join us at an upcoming MSPB Law Week in Washington, DC or Dallas, TX. [email protected]

 

 

Why the Discipline Process Matters More Than Ever

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By Deborah Hopkins, February 19, 2019

If you’ve been in the federal employment law arena for more than five minutes, or if you’ve read this newsletter in the recent past, you know that we (the People) have been without a quorum at MSPB for more than two years now. In fact, next Friday marks the end of Mark Robbins’ tenure as the sole remaining Board member, at which time the MSPB will have ZERO members for the first time in its 40-year history.

Last week, the Senate Committee on Homeland Security and Governmental Affairs voted to advance two MSPB nominees (Dennis Dean Kirk and Julia Akins Clark) to the full Senate for a confirmation vote – but the vote won’t be held until a third nominee is named (the remaining nominee Andrew Maunz withdrew his name last week), and clears committee to join them for a Senate vote. In case you didn’t know this: It’s not a legal requirement to confirm all the members together. However, the Committee Chairman, Senator Ron Johnson (R-WI) indicated that would be the process used. (Read the full detail of the committee meeting here.)

So, what will happen next? It’s anybody’s guess. Will the MSPB have to shut down until they get some leadership — or will the General Counsel run the place in the interim? Arguments can be made for either option.

As of today, the Administrative Judges are still holding hearings and issuing decisions on agency removal actions, and your cases still need to be as tight as ever to ensure a favorable outcome. Because if anything is appealed from a judge’s decision, it goes into a stack of 2,000+ cases that are sitting in boxes in the hallways, waiting for Board members to read them and issue opinions. Wouldn’t you rather NOT have to appeal a judge’s decision? Me too.

So what’s the best way to have a judge agree with your choice of discipline? Follow the law. In order to discipline a federal employee for misconduct, there are five legally required elements:

  1. A reasonable rule exists
  2. The employee knew the rule
  3. A preponderance of the evidence (more likely than not) that the employee broke the rule
  4. Choose a defensible penalty
  5. Provide due process

If you miss even one element, you lose your entire case. Let’s look the elements in turn and see how easy they are to check off — and how easy they are to screw up, if you’re not paying attention.

1. A reasonable rule exists. You cannot discipline an employee for breaking a rule that does not exist. The very definition of misconduct is a violation of a rule. So, if you want to reprimand, suspend, or remove someone, you can only do it if they have indeed broken a rule. Also note: the rule must be related to the job; you cannot enforce rules that have nothing to do with the workplace. For example, you can set a rule that an employee to always fill up a GOV’s gas tank when it gets below ¼ tank, but you cannot require that rule for the employee when driving his personal vehicle.

Case example: Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009)

2. The employee knew the rule. An agency cannot enforce secret rules against employees – that would violate the fairness federal employees are guaranteed. If you have a rule that employees wear closed-toed shoes in the office but you’ve never bothered to tell them the rule, you cannot discipline them for wearing open-toed shoes. There are some “commonsense” rules where notice is a given (for example, you don’t need a rule that says employees are not permitted to have a campfire in the breakroom), but when in doubt, TELL the employee the rule. Don’t assume the employee knows it.

Case example for further reading: Tudor v. Treasury, 639 F.3d 1362 (Fed. Cir. 2011)

3. A preponderance of the evidence (more likely than not) that the employee broke the rule – unless you’re at the VA in which case you only have a substantial evidence requirement, that the employee might have broken the rule. Preponderant evidence is not a huge burden, but you do have to have some evidence. Whether you saw the misconduct happen, or witnesses saw it, or you have video evidence or a confession, you need something to show the employee broke the rule. This should not be difficult. The employee has a lunch break from 12-12:30 and you, the supervisor, see the employee come back to his desk with a Chipotle bag at 1:10 – that’s evidence. Don’t make this more difficult than it needs to be. But please have evidence.

Case example: Mott v. DVA, No. 2017-1222 (Fed. Cir. 2018)

4. Choose a defensible penalty. Unless you’re at the VA, you have to justify why you selected the penalty (suspension or removal) you did. This is done by looking at the Douglasfactors and explaining the effect of the misconduct. We consider things such as the harm caused or the potential for harm, the person’s job level and type, any notoriety or publicity, any past discipline the employee has received, what we’ve done with comparators who have engaged in the same type of misconduct, and a number of other factors. The penalty must be appropriate for the level or instance of misconduct the employee engaged in. You may not be able to justify a first-offense removal for a person who got to work five minutes late to a job where being on time doesn’t matter because there was no harm. However, if your employee is an ER surgeon and someone died in those five minutes, you have a completely different scenario and removal might very well be justified. Let the Douglas factors be your guide, and keep in mind, the MSPB is only going to mitigate (change to something less) your penalty if it exceeds the bounds of reasonableness.

Case examples for further reading: Jacoby v. USPS, 85 MSPR 554 (2000); Webster v. Army, 911 F.2d 679 (Fed. Cir. 1990); Mott, supra

5. Provide due process. Federal employees who have successfully completed their probationary periods are entitled to due process in disciplinary situations. Due process has three steps:

  1. Notice of the charged misconduct and the proposed penalty (given by a Proposing Official);
  2. An opportunity to respond to the charges, and to be represented; and
  3. An impartial decision based on the information given in the notice and the response (given by a Deciding Official).

If you miss a step, you lose your case EVEN IF you have 50 witnesses and video evidence of the employee stealing the laptop, punching a customer, sleeping on the job, whatever. A due process violation, sometimes referred to as “losing on a technicality,” is literally a loser every single time. While there are cases where agencies don’t give the employee notice of the charges, or don’t notify the employee of her right to respond, we see most cases lost under the third prong — where the deciding official relies on some bit of information that the employee is not privy to. This is why it is crucial to work with your Deciding Officials on their proper role and encourage them not to go looking for extra information about the employee.

Case example for further reading: Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007).

I hope this helps. If you want more – and trust me, you definitely want more – then come to our MSPB Law Week in Washington, DC or Dallas, TX, so we can show you how to win your case in front of the judge, and quickly get back to the business of fulfilling your agency’s mission. [email protected]

Two MSPB Nominees Voted Out of Committee, but Uncertainty Still Looms

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By Deborah Hopkins, February 13, 2019

Committee meeting room, pre-vote

Here’s a quick update from today’s business meeting for the Senate Committee on Homeland Security and Governmental Affairs, which held a scheduled vote on the nominees to the Merit Systems Protection Board (MSPB). I was there, and I am still saying “wow.”

Last night, the Senate was informed that Andrew Maunz, the nominee for Vice Chairman, had withdrawn his nomination for unspecified reasons. This morning, the committee, which is made up of 8 Republicans and 6 Democrats, considered the remaining nominees: Dennis Dean Kirk (R) for Chairman, and Julia Akins Clark (D) for Member. When Committee Chairman Ron Johnson (R – WI) opened the floor for discussion, the only person to speak was Sen. Rand Paul (R – KY).

And boy, did Sen. Paul have a lot to say. He voiced the opinion that the MSPB is failing as an agency, saying that it has become a job protector for federal employees instead of a protector of the merit system. Citing facts from a couple of unnamed cases, he claimed that the MSPB thinks child pornographers and VA leadership who allow veterans to die in the hallways belong as federal employees. He said this type of behavior from employees would never be tolerated in the private sector, and if the government can’t fire people for such egregious acts, then the MSPB should cease to exist and Congress should go back to the drawing board to create an oversight agency that actually works.

Here’s the problem: Sen. Paul (along with countless others) doesn’t understand the system. He didn’t give citations for the cases he mentioned, but I believe I know the cases to which he was referring. And in those cases, the MSPB didn’t put employees back to work because they necessarily wanted to; the MSPB was following the law. In the child pornography case, the agency failed to establish a nexus (a connection) between the employee’s off-duty conduct and his government job. The law requires a nexus to exist. (By the way, come to MSPB Law Week and we will show you how to find nexus in a case like that; the agency did not, but it was most likely doable.) The MSPB never said, “Child pornographers are good people and should be working for every federal agency.” The MSPB found that the agency failed to establish nexus, and nexus is required by law.

Regarding the VA cases Sen. Paul mentioned, I believe those cases dealt with senior leadership who were removed, and the Board members (who are no longer there) mitigated the penalties based on Board leadership’s at-the-time view on comparator employees, which has since been walked back in pieces.

Can someone please tell Sen. Paul – and the rest of America – that the system works IF the agency handles the case correctly? Citing the few cases where terrible employees got their jobs back because of procedural defects, while ignoring the 7,000+ removals that stuck in the last FY, does a disservice to the country. I had a hard time sitting still while he was speaking. I wanted to jump up and tell him that he had it all wrong, but I didn’t think it would be a wise move to get kicked out of a Senate Committee meeting.

I digress (for now).

On to the nominees. Both Kirk and Clark were voted out of committee. Everyone on the committee, Rebublicans and Democrats, voted “yes” to send them to the full Senate for a vote, except for Senator Paul.

But – don’t get your hopes up on a quorum just yet. After the “ayes” had it, Chairman Johnson said it’s typical that all nominees get voted on together in the full Senate, so now Kirk and Clark will be waiting for a third nominee to be named and voted out of committee before they can be confirmed.

Hold up just a minute, Mr. Chairman. The MSPB members intentionally have staggered terms and to my knowledge, in the 40-plus years since the Civil Service Reform Act created the current MSPB, we have NEVER had all three nominees confirmed together (except, maybe the very first time members were appointed). Occasionally two go together, yes – but not three.

Whether this is intentional or a misunderstanding about how this part of the system works, I don’t know. But are you ready for the real heartbreak?

If Kirk and Clark were to get confirmed by the full Senate before a third nominee is named, they could vote on dozens or (if they put in some really long hours) even hundreds of the 2,000 Petitions for Review (PFRs) Acting Chairman Mark Robbins has voted on, before his term expires on February 28.

But this is not going to happen. So, all of Mr. Robbins’ work on the PFRs since January 8, 2017, will go to waste, as the Committee chose NOT to vote on an amendment that would have allowed for the holdover term for a sitting Board Member to be extended beyond the one year currently permitted under 5 USC § 1202.

To recap: Robbins’ term expires February 28. Nominees Kirk and Clark won’t be confirmed until the full Senate votes. And the full senate won’t vote until a third nominee is named and the committee votes that person to the Senate floor as well. And we don’t have a third nominee yet. For what it’s worth, Chairman Johnson said he is working with the White House to come up with a nominee soon.

Also heard on the Hill this morning: As long as there’s not a shutdown this weekend, the Senate will be in recess next week. So, push the timeline for the vote back until the final week of February, at the very soonest, only if there’s a third person nominated and voted out of committee before then. If all that doesn’t happen before March 1, the Board may have to shut down entirely until the Senate votes on the nominees.

While this may be considered slight progress, it’s not the kind of progress the civil service needs. We’ll keep you posted on what happens next. [email protected]

Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?

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By Deborah Hopkins, February 13, 2019

We know intentional marijuana use, even for medicinal purposes, is a no-no for federal employees (see my recent article here). But what happens to a federal employee who is fired for marijuana use after failing a drug test, when he challenges the removal by stating the intake of marijuana was accidental?

The Federal Circuit recently looked at that very issue in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). Hansen, an IT Specialist at the United States Customs and Border Protection, was subjected to a random drug test, and the results showed marijuana in his system. The agency proposed his removal for “positive test for illegal drug use— marijuana.” Regarding nexus, a portion of the proposal read “[t]he use of an illegal drug, such as marijuana, stands in direct conflict with the principles of law enforcement, the mission of the Agency, and the public’s trust.”

In his response to the proposal, Hansen said he had inadvertently consumed drug-laced brownies at a barbeque he had attended, which was hosted by someone he did not know. Hansen revealed that he wasn’t initially aware the brownies had marijuana in them, and though he felt no immediate effects from the brownies, later that evening he felt tired and suffered an upset stomach. He attributed the upset stomach to a bratwurst he had consumed at the party, and as a result he called in sick the day after the barbecue.

The Deciding Official gave Hansen’s response “significant consideration” but ultimately determined it was not convincing. In her explanation, the DO said the employee did not present “any evidence from either the person who purportedly brought the brownies, or from the host” or even “a statement from anyone else who either knew that the brownies contained marijuana or who did not know, but felt the effect of the drug.” The DO subsequently removed Hansen.

Hansen appealed his removal to the MSPB, where it was upheld. The Board said that inadvertent marijuana ingestion would be relevant to its decision, if shown, but it determined that Hansen, not the government, bore the “burden of showing such inadvertent ingestion” and he did not show any evidence to convince the Board. The decision from the Board also said Hansen relied on “thirdhand hearsay” to support his story about marijuana in the brownies, and had not supplied “statements from the hosts, other attendees who observed the presence of the brownies, or the individuals who brought the brownies,” or even any evidence confirming that he ate brownies at all.

The Board further noted that though Mr. Hansen claimed fatigue and upset stomach after consuming the brownies, he attributed those ailments to marijuana consumption only after the deciding official expressed skepticism regarding his lack of symptoms.

Hansen also argued that the removal should be reversed because the agency could not show his “intent” to use marijuana, but the Federal Circuit correctly said the charge as written did not have an intent element. The agency was not required to show intent; it was only required to show by preponderant evidence that the employee tested positive for marijuana. This highlights a fundamental principle we cover in MSPB Law Week and Developing and Defending Discipline: Words matter when drafting a disciplinary charge. Had the agency charged “intentional use of marijuana,” then Hansen might very well be back at work today.

Hansen also argued that the agency violated his Fourth Amendment right against unlawful search and seizure by conducting the drug test because the government failed to show that he occupied a testing designated position, This argument failed because the agency’s “Drug-Free Federal Workplace Program” handbook listed employees with “access to the Customs Law Enforcement Automated Systems” as testing designated, and IT Specialists fall under that designation. The Federal Circuit upheld the removal.

If you’re interested, you can read the full decision here [PDF]. In the meantime, stay away from the brownies. [email protected]