WIGI Documentation Can Justify a PIP Under Santos

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By Deborah J. Hopkins, September 19, 2022

I don’t know about you, but I am still loving the fact that we have a fully functioning MSPB again. While you might be tempted to skip over the non-precedential (NP) cases, you should rethink that because we have found several jewels in NP cases over the past six months.

One of the the trends we’ve seen in 432 actions – performance-based removals and demotions – is that the MSPB has been remanding cases if the record doesn’t contain substantial evidence of unacceptable performance that justified the agency’s decision to place the employee on a PIP. And because that requirement didn’t exist until March 22, 2021 (Santos v. NASA, No. 2019-2345, Fed. Cir. Mar. 11, 2021; see also Singh v. USPS, 2022 MSPB 15 (May 31, 2022)), most of the 432 cases are being remanded on this point. Santos never explicitly stated what types of evidence agencies could use to justify the PIP, instead ruling, “we are not prescribing any particular evidentiary showing with respect to the employee’s pre-PIP performance. Performance failures can be documented or established in any number of ways.”

So, one of the items that jumped out at me in a brand-new case (Slama v. HHS, SF-531D-15-0266-I-4; SF-0432-16-0496-I-1 (Aug. 24, 2022)(NP)) is we now know at least one type of evidence the Board will consider in pre-PIP unacceptable performance determinations.

A bit of history first: In Slama, the appellant’s performance problems started in 2011. Bigger problems emerged in performance year 2013, and he received a Level 1 summary rating in 2014. His unacceptable performance that year led to the denial of a Within Grade Increase (WIGI), which he appealed to the MSPB. For reasons not explained in the case, the appellant was not put on a PIP until 2015 after he received yet another Level 1 summary rating. The appellant failed the PIP and the agency removed him later that year. He appealed … and into the backlog the new case went.

Fast forward to 2022, the return of the quorum, and the new Santos requirement. In Slama, the MSPB joined his two appeals (one over the WIGI denial and the other over the 432 action) and, among other things, decided that the material that forms the basis of a WIGI denial can also be used to justify a PIP and meet the Santos requirement. According to the case:

The administrative judge found that the agency demonstrated by substantial evidence that, before being placed on the PIP, the appellant’s performance in the critical elements of administrative requirements, communication, and technical competence was unacceptable [citation omitted]. The administrative judge based her finding largely on the same facts and analysis under which she had affirmed the agency’s [acceptable level of competence] determination in connection with the WIGI denial. ¶25

While WIGI denials are rare, it’s quite interesting (and time saving) that the Board will rely on that same content to show the agency can justify the PIP. It might be helpful for those of you handling the 432 remands to check the WIGI files and see if you have anything you can use. And then join me for Back on Board: Keeping Up with the New MSPB on October 20. [email protected]

Employees Can Be AWOL Even if at Work or Working Elsewhere

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By Dan Gephart, September 12, 2022

Only six percent of American workers who have been teleworking since the pandemic began want to return to the physical workplace, according to a recent poll.

You know that there are more than a handful of people at your agency who feel the same way. What if one of those employees just never came back to the physical workplace and just kept working from home. What would you do?

Let me spell it out for you.

A-W-O-L.

But they’re still working, you say. Yes, but are they working in the location where they were told to report? No? Well then it looks like you have a clear-cut case of Absence Without Leave.

As FELTG President Deb Hopkins pointed out during the recent training session What You Think You Know About AWOL is Probably Wrong, there are foundational MSPB cases going back to the 1980s on AWOL. The newly quorumed MSPB has already decided AWOL cases. And there are so many AWOL cases in between that you should have little problem finding one with a similar fact pattern to yours. As Deb said during the training, “a lot of employees have gone AWOL over the last 40 years.”

Are you still hesitant to charge AWOL for an employee who works remotely despite orders to return to the physical workspace?  Well, the MSPB has ruled that an employee doesn’t even need to be “absent from the work site to be found AWOL.” Buchanan v. Dep’t. of Energy, 247 F.3d 1333 (2001).

There are several examples of this, including the employee successfully charged with AWOL for conducting personal business while on duty (Mitchell v. DoD, 22 MSPR 271 (1984)) and the employee removed via AWOL for sleeping on the job. Golden v. USPS, 60 MSPR 268, 273 (1994).

And then you have Mr. Lewis. The Bureau of Engraving and Printing employee, still seemingly dismayed by a change of shifts two years previously, refused to obey his supervisor’s order. He was told that he only should return to work only if he was “willing and able to report for duty.”

Lewis took his supervisor’s directive to mean that he was on “approved leave,” and could take his time to determine if he wanted to continue working. The agency disagreed with his assessment and charged him with AWOL. The MSPB agreed with the agency. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

If you missed Deb’s recent session, join us for Feds Gone AWOL: Understanding the Charge and Applying it Correctly, which will be held on October 6 from 1-2 pm ET, and get yourself up to speed on this important charge. [email protected]

EEOC Case Illustrates the Ugliness of Harassment Based on Disability

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By Deborah Hopkins, September 12, 2022

Members of the FELTG Nation are likely familiar with EEO cases where agencies fail to accommodate a complainant’s disability, but there’s another ugly side of disability discrimination that sometimes arises – hostile work environment harassment based on the complainant’s disability. We saw this in a fairly recent EEOC case, Damon Q. v. DOD, EEOC Appeal No. 2020003388 (Aug. 9, 2021).

Imagine you have a visible physical disability, and a high-level supervisor mimics your disability and the way you do your job in front of a room full of your co-workers. This exact thing – and more – happened to a supply technician at DLA, a left-hand amputee who, among other things, alleged:

  • During a safety re-enactment meeting in front of the workgroup, the Director mimicked the complainant’s physical disability by “put[ting] his arm up with his elbow bent” and demonstrating the way the complainant performed the task, which humiliated and embarrassed him.
  • After the meeting, the complainant approached the Director to talk to him about his conduct during the meeting, and the Director responded in an intimidating manner.
  • While walking away from the Director because of his intimidating response and mannerisms, the Director walked behind Complainant talking aggressively about his physical disability.
  • A few weeks later the complainant received an email from the safety representative stating that the complainant chose not to come to the regularly scheduled meeting because he did not want to participate in management meetings. This was a misrepresentation of his request to not be required to interact with the Director who had mimicked his disability.

EEOC looked at the facts of this case and disagreed with the AJ, who granted summary judgment for the agency. Interestingly, though, the Commission said the material facts were not in dispute and summary judgment was appropriate – for the complainant. The Commission found the agency created a hostile work environment because the unwelcome conduct based on the complainant’s disability was sufficiently severe or pervasive:

“…[W]e note that in evaluating whether the conduct is severe or pervasive enough to create a hostile work environment, the harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. (citation omitted). In this case, we note that Complainant attested that he felt threatened, embarrassed, and humiliated by the Director’s impersonation of him with his impairment during the safety reenactment. Complainant maintained, moreover, that the Director was also aggressive towards him after he complained to the Director that the mimicking of his disability was offensive towards him. We note that employees observed that Complainant and the Director engaged in a “heated” conversation after the reenactment, and a Material Handler attested that he observed the Director getting closer and closer to Complainant to the point of Complainant putting his arm up between the two of them. As noted above, the Director did not dispute that he demonstrated the crate inspection as if he had no left hand to show that Complainant was not properly performing the task…

According to Complainant, he was so humiliated by the Director’s mimicking of his disability in criticizing his performance in front of employees that he communicated to the Deputy Director, among others, that he no longer wished to attend meetings wherein the Director would be present. Rather than immediately addressing Complainant’s request and concerns of a hostile work environment, the Agency generated CAC meeting minutes noting that Complainant did not want to attend the meeting because he did not want to meet with management. Complainant further received emails wherein he was accused of having a conflict with management. Complainant believed that the meeting minutes and the emails cast him in a negative light, as he only wanted to be away from the Director and did not have a conflict with management as a whole. Upon review, we determine that a reasonable person in Complainant’s circumstances would find that management’s actions were severe enough to create a hostile work environment based on disability… (Damon Q., above, p. 8-9).

The EEOC found the agency liable because the actions were committed by a director and the agency did not take prompt, effective corrective action. When handling disability cases, be careful not to stop at reasonable accommodation, but also be aware that harassment isn’t part of the equation. We’ll discuss in more detail during the virtual event EEOC Law Week, September 19-23.  [email protected]

The New Board Affirms Several Established Discipline Principles

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By William Wiley, September 12, 2022

Best practices in our business are worth restating on occasion, particularly when we get new adjudicators at MSPB. From an otherwise unremarkable recent Board final order, we are refreshingly reminded of the following principles related to federal employee discipline.

FACTS: During a discussion with an agency manager, the employee walked toward the management official, snatched a leave request form out of his hand, and then pushed the official’s hand down “in an aggressive manner.”

QUESTION: Can an agency fire an employee who does something this minor?

ANSWER: Yes, IF the agency knows what it is doing, see Stevens v. Navy, DC-0752-21-0412-I-1, August 5, 2022 (NP).

REAFFIRMED DISCIPLINE PRINCIPLES:

  1. A generic unlabeled charge is often better than a more specific labeled charge. If you have attended FELTG’s famous MSPB Law Week seminar, you know that an unlabeled charge of misconduct has no separate elements of proof; the agency need prove only the underlying misconduct. In comparison, a labeled charge requires that the agency prove both the underlying misconduct AND the elements of the definition of the specific charge. Here, the agency used the generic unlabeled charge of “unacceptable conduct.” Therefore, it needed to prove only the “FACTS” laid out above. On appeal, the appellant argued that the agency failed to prove that an “assault” or “threat” occurred. Because the agency avoided using the specific labels of “Assault” or “Making a Threat,” it had no obligation to prove the elements that define those specifically labeled charges. Therefore, the appellant’s argument failed, and the Board sustained the charge.
  2. Misconduct that occurred many months earlier can be disciplined without the charge being dismissed as stale. In this appeal, the appellant appeared to argue the equitable defense of laches. In that argument, an individual asserts that discipline cannot be administered because the misconduct occurred too far in the past prior to the initiation of discipline. Laches bars an adverse action when an unreasonable delay in bringing the action has prejudiced the party against whom the action is taken. The elements of a laches defense require proof of BOTH an unreasonable delay AND prejudice, e.g., there is no automatic bar to taking an action just because it occurred far in the past. The one-year delay in this case was found to be neither unreasonable nor prejudicial. In fact, MSPB has previously found that a delay of three or four years did not warrant reversal of the discipline ultimately administered. Therefore, the laches defense failed.
  3. It is safest if the deciding official (DO) does not discuss the proposed discipline with others prior to making a decision. Since the cooling of the Earth, we at FELTG have counseled that the agency is in the most defensible position if the DO considers only the materials in the proposal notice and the employee’s response when deciding what discipline is warranted. If the DO considers facts outside of these two documents, there is a chance the employee’s due process rights will be violated. Constitutional due process requires the agency tell the employee what facts the DO will be relying on so the employee can mount a defense to the proposed action. In this case, the DO did not follow our advice and discussed the pending discipline with others before making a decision regarding the proposal. However, because much of that discussion simply confirmed facts already in the proposal, there was no violation of due process. Separately, even though arguably the DO learned about facts not in the proposal, he testified that he did not rely on those facts. Based on a credibility determination, the judge held that the DO’s testimony was true and concluded that the appellant’s arguments were unpersuasive. The agency won this point on appeal. However, if the DO had not engaged in these ex parte discussions, the judge would not have had to assess credibility and the Board would not have had to review the undisclosed material to determine whether they contained new facts or simply confirmed existing facts in the proposal notice.
  4. A removal after a suspension will almost always be found to be a reasonable penalty. Progressive discipline is not a requirement prior to firing an employee for misconduct. However, if the agency has previously disciplined the employee, removal for a subsequent act of misconduct will almost always be found to be a reasonable penalty even if the later misconduct is relatively minor. This is particularly true if the second act of misconduct is a suspension (as it was here) and similar to the first misconduct (thereby establishing a pattern of misconduct). Always remember, it is not up to the Board to decide what the proper penalty should be. Rather, it is the Board’s responsibility to determine whether the DO properly weighed the relevant Douglas Factors and whether the removal penalty “clearly exceeded the bounds of reasonableness.”

You have three ways to learn basic principles like these: work in the business 10 to 15 years (learning from your mistakes as you go), read 43 years of Board decisions (plus the related decisions of the Federal Circuit Court of Appeals), or attend our FELTG seminars. When deciding which of these to undertake, keep one very important distinction in mind: At FELTG, you get free coffee. [email protected]

Effective Performance Plans are Key to Supervising Teleworkers

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By Barbara Haga, September 12, 2022

I recently led a virtual training session on creating effective performance narratives as part of FELTG’s Federal Workplace 2022: Accountability, Challenges & Trends event, where I discussed several issues related to performance plans and narratives. I started with a quick discussion about plans for teleworkers. I thought it might be beneficial to explore that topic further here.

A request I have heard more than once in the past few months is a need for help with performance plans for teleworkers. This one usually leaves me scratching my head. How were managers holding people accountable for work results since 2020 if we are talking about creating plans for those workers in 2022?

Effective performance management and successful telework arrangements go hand in hand. That has been the requirement for more than ten years. Section 6502(b)(1) of the Telework Enhancement Act of 2010 stated that agencies policies on telework had to “… ensure that telework does not diminish employee performance or agency operations.”

There would have to be some way to assess performance results, which should have come through individual performance requirements.

OPM’s updated telework guidance is published in the 2021 Guide to Telework and Remote Work in the Federal Government. For our purposes, we are not going to distinguish between routine telework, situational telework, or remote workers, because for this topic, the type of telework arrangement doesn’t matter.

Here is OPM’s key point regarding teleworkers and performance plans:

When implementing the telework program, managers should keep in mind that performance standards for teleworking employees must be the same as performance standards for non-teleworking employees. Also, management expectations for performance should be clearly addressed in an employee’s performance plan, regardless of whether or not the employee is a teleworker. When an employee participates in telework, expectations related to accountability do not differ by virtue of the telework arrangement.  (p.36)(underscoring added)

This guidance is not new. It has been this way since telework came on the scene.  Does that make sense?

Same Outcomes Reached Differently

The best way I know to explain it is that the teleworker is held to the same outcomes, but how the manager gets to the point of measuring that outcome might be different. Let’s use an example of an employee relations specialist preparing discipline and performance-based actions. Here is the Fully Successful standard for the critical element Technical Competence that is similar to standards I have used for staff members in the past.

Demonstrates a thorough under-standing of law, rule, and regulation that applies to the assigned functional area.  Provides effective management advisory services to assigned organizations which reflect well thought-out solutions and viable alternatives. Documents are clearly written and are prepared in keeping with agency format requirements.  Notices and decisions 1) incorporate up-to-date information in terms of agency policy and third-party decisions, 2) include appropriate citations to contracts, policies, etc., 3) clearly and completely cover the elements of the case, and 4) incorporate required information on employee rights in the matter.  Demonstrates a basic understanding of other personnel functional areas to ensure that his/her own work is fully integrated with other functions.

It would seem to me that this standard could work in either an in-person or telework situation. Perhaps in the pre-pandemic world, notices and decisions such as these were left on my desk with the case file so I could review them before they were issued. That way I had detailed information on the clarity of the elements of the case, whether due process was observed, whether the notice incorporated the latest case decisions, etc. In a world where this work is accomplished at a different location, I could still see the letter if it was sent by e-mail to me or through an automated system. What might be new is how I could see the case file remotely, so there would have to be an alternate arrangement for me to get those, but I would be judging the work on the same things regardless of whether my employee worked on that action down the hall or miles away from the agency office.

Better Methods Across the Board

Perhaps the need to evaluate the teleworker’s performance means that I recognize a new way to identify the outcomes for all employees. Determining whether effective advice was given might have been easier in a pre-pandemic world. Maybe, as the office head, I attended staff meetings with the serviced organizations, and I received regular feedback in those sessions about the quality of guidance provided. There may also have been a lot of informal interactions in the cafeteria or walking down the hall with those managers who were receiving guidance from my staff members. Things may be different now, but I still need to know whether the advice is effective. Just looking at the letter being issued doesn’t really tell me how well the manager was advised throughout the process.  One solution would be to do some follow-up on a sample of actions for all staff, not just the teleworkers.

Using a neutral method of choosing which cases I am going to follow up on, I could select a certain number of lower-level disciplinary actions and some adverse and performance-based actions for each of my employees. I could design a questionnaire or, perhaps, set up a time for a phone call to interview the manager involved in the action with a set of standard questions about how well they were walked through the steps of proposing/taking action.

Ultimately, as the rater, I would have to determine if the advice was effective – whether my employee allowed the manager to decide or tried to force the manager to take a particular action, whether my employee explained the steps of how various actions might take place, and what the potential issues might be that could come out of an action in terms of grievances, complaints, and appeals, etc.

It’s interesting that a lot of positions have measures about providing effective advice in their performance plans, but when I ask how that is assessed supervisors often answer: “Nobody complained.” That’s not enough – telework or in-person.

Next month we will look at some other related performance matters!

 

Confidentially Speaking: Legitimate Reason Needed to Request Medical Info

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By Michael Rhoads, September 12, 2022

Think of a personal secret you’ve been keeping.  Now imagine that, as part of an investigation, you must divulge that secret. You assume that the investigators will keep the secret confidential, only to find out that personal secret has been published for all to see online. This might sound like a plot line to a teenage drama, but revealing confidential information happens, intentionally and unintentionally, during investigations.

As part of Section 501 of the Rehabilitation Act of 1973, an employee’s medical information should be treated as confidential. Agencies often find themselves on the losing side when an employee’s medical information is disclosed, no matter the intent of the disclosure. A few recent EEO cases illustrate just how costly it can be when agencies improperly disclose or improperly request medical information.

Augustine V. v. U.S. Postal Serv., EEOC Appeal No. 2020001847 (Aug. 16, 2021)

The EEOC increased the amount of non-pecuniary damages from $25,000 to $70,000. The complainant, a city carrier at the United States Postal Service, had his medical information displayed publicly on the agency form used to request overtime or auxiliary assistance. The manager instructed the complainant to put his medical information on the form. Also, the complainant was not given a reasonable accommodation for his medical condition. The agency gave him a light-duty assignment, but the work he was given was completed in a few hours each day, and not over a full day’s work. The complainant was forced to use sick leave to make up the balance of the day.

The agency had not complied with orders from the EEOC in a previous case, which affected the outcome of this case. In the previous case brought by the complainant in 2017, the EEOC found the agency failed to make a good faith effort to accommodate and granted him compensatory damages. The agency opined that it had accommodated the complainant sufficiently in 2017. In this subsequent case, however, the EEOC disagreed with the agency over the accommodation.

The EEOC found the agency’s accommodation to be insufficient and increased the non-pecuniary damages from $25,000 to $70,000.

The EEOC wanted the agency to conduct a supplemental investigation to determine the compensatory damages, which it did not.  Also, the agency failed to train and discipline the management official responsible for the disclosure of the complainant’s medical information. A timelier compliance with the EEOC’s orders, and especially a timelier accommodation, might have saved the agency from the increase in non-pecuniary damages.

Salvatore K. v. Dep’t of Justice, EEOC Appeal No. 0120182095 (Jun. 23, 2021)

A contract company working with the US Marshals Service terminated a court security officer (CSO). The CSO is contracted to provide “security to the federal court and its judicial officers, witnesses, defendants, and attorneys.” The contract company is obligated to have their CSOs “… undergo and pass an annual examination …”  The complainant was diagnosed with borderline Type II diabetes in 2005.

During the annual examination in August 2013, a doctor cleared the complainant for duty as “medically qualified.”  A few months later, a second doctor reviewed the report and issued a medical review form to the complainant requesting ten different types of medical data from the complainant’s hemoglobin measures to a complete history of his medications. The first doctor responded to the second doctor’s medical review form by declaring the complainant medically fit for duty. The second doctor wasn’t satisfied with that response and issued a follow-up medical review form requesting an additional eleven different types of medical data.

The complainant did not comply with one of the initial requests to test his blood sugar four times a day from his fingers since it would interfere with his ability to hold a gun. In June 2014, the complainant’s district supervisor asked if he had any additional information to submit to the agency. The complainant declined to offer any further medical data. Six days later, he was terminated from his CSO position for failing to provide all documentation to determine his medical qualification.

In March 2015, the complainant filed an EEO complaint on the basis of disability, claiming the agency “subjected him to harassing, excessive, and unduly burdensome medical assessments and to requests for documentation.” The AJ issued a decision without a hearing in favor of the agency. On appeal, the EEOC reversed the AJ’s decision and found in favor of the complainant.

The EEOC found the agency did not prove its case for a few reasons. The complainant was able to perform his duties and was not a direct threat to himself or others.  The agency relied upon too broad of a series of generalized medical requests and not an individualized assessment of the complainant or any observations of his work performance.

The EEOC also took the guidance from the American College of Occupational and Environmental Medicine (ACOEM) to task. The ACOEM’s guidance violated the Rehabilitation Act by relying on generalized stereotypes rather than individualized assessments, which is required by the Rehabilitation Act.

The point of these two cases is clear: An employee’s medical information is confidential. There are legitimate, business-based reasons to request medical information. However, that information should be treated more like a game of Operation than Go Fish.

To learn more about how you and your agency can properly request medical records from an employee, join FELTG for Absence, Leave Abuse & Medical Issues Week, September 26-30 from 12:30-4:30 pm ET each day.

Stay safe, and remember, we’re all in this together. [email protected]

The Good News: Jurisdiction Matters to FLRA, MSPB, EEOC — It Better Matter to You

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By Ann Boehm, September 12, 2022

The decision-making entities in Federal employment and labor law have distinct jurisdictional limitations. Based upon some interesting recent decisions from several of these entities, they take those limitations seriously.

The Federal Labor Relations Authority (FLRA) website explains its mission as follows: “The FLRA exercises leadership under the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7101-7135, to promote stable, constructive labor relations that contribute to a more effective and efficient government.” They are the labor law people.

The mission of the Merit Systems Protection Board (MSPB), according to its website, is to “’Protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.’” They explain that “MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies.” They are the performance, misconduct, and whistleblower protection people.

The MSPB’s website also explains what they do not do, such as “[h]ear and decide discrimination complaints except when allegations of discrimination are raised in appeals from agency personnel actions brought before Board. That responsibility belongs to the Equal Employment Opportunity Commission (EEOC).” They are not the discrimination people.

The jurisdictional divisions of labor should be clear, but sometimes employees, unions, and agencies file in the wrong place. The cases below demonstrate the problems with those errant filings.

Let’s start with the FLRA’s recent decision in National Federation of Federal Employees, Local 1998, 73 FLRA 111 (2022). The union filed exceptions to an arbitrator’s award that upheld the removal of a grievant for unacceptable performance.

I assume you astute FELTG readers are thinking: “They can’t ask the FLRA to review a performance-based removal, because that’s within the MSPB ‘s jurisdiction.” And that is correct.

The FLRA explained, “[u]nder § 7122(a) of the Statute, the Authority lacks jurisdiction to review exceptions to an award ‘relating to’ a matter described in § 7121(f) of the Statute” – such as removals for performance that are covered under 5 U.S.C. § 4303.  Id. at 112. “Such matters are appropriately reviewed by the Merit Systems Protection Board.” Id.

The FLRA lacked jurisdiction. It dismissed the case.

Another labor law entity, the Federal Service Impasses Panel (FSIP), also had to remind a union and agency that the MSPB handles the merit system. U.S. Army Corps of Engineers, Logistics Activity Center and IFPTE, Local 259, 2021 FISIP 019 (2022). The union and agency went to impasse over proposals discussing “Merit System Principles.” The agency proposed, “The Employer recognizes merit system principles as reflected in 5 U.S.C. § 2301(b).” The Union proposed to spell out the statutory language in 5 U.S.C. § 2301(b).

Relying on jurisdiction, the FSIP ordered the parties to withdraw their proposals. The FSIP explained that the Civil Service Reform Act created the MSPB to enforce the Merit System Principles. Thus, the FSIP explained, “[t]he interpretation of the Merit System principles is best addressed through the numerous MSPB decisions and studies.” Id. No need to include the merit system statutory reference in a collective bargaining agreement.

While the labor law entities were explaining what the MSPB does, the MSPB explained in Edwards v. DOL, 2022 MSPB 9 (2022), what it does not do. The employee claimed to be a whistleblower based upon his disclosures to supervisors about alleged race discrimination.

The MSPB said that allegations of perceived discrimination under the Civil Rights laws are not protected disclosures under the whistleblower laws. Instead, the proper forum for equal employment opportunity retaliation allegations is the Equal Employment Opportunity Commission. Id.

[Editor’s note: You can get the full picture of what the EEOC and FLRA do starting Sept. 19 as FELTG begins its EEOC Law Week and FLRA Law Week virtual training events.]

What’s the lesson to be learned from these cases? Pay attention to jurisdiction! It matters! It may be the easy way to win a case. And that’s Good News. [email protected]

Mistakes to Avoid When Removing or Demoting the Poor Performer

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By William Wiley, August 30, 2022

Sometimes an MSPB decision that identifies itself as nonprecedential is still an important decision. That’s especially true in times like these when we have three relatively new members of the Board who are being called on to reconsider established practices of Federal employment law, practices that they have not personally been called on to address before.

A good example of this is the Board’s Final Order in Feesago v. DoD, SF-0432-16-0458-I-1 (August 10, 2022) (NP). When analyzing the appeal of that relatively straightforward 432 unacceptable performance action, the members applied an important principle we have taught here at FELTG for over two decades:

The supervisor MUST tell the employee EXACTLY what level of performance he must attain during the PIP to avoid removal from his position.

In Feesago, the PIP initiation memo told the employee that she would be held accountable for mistakes in her performance in each of four critical elements. However, it failed to tell her how many mistakes she would have to make to be deemed to have failed to meet the standards for two of the critical elements. Therefore, the PIP was invalid for those critical elements.

The cure for this removal-reversing defect that we have incorporated into every PIP initiation memo that we have ever written here at FELTG is this: “During the PIP, you must not make more than three errors relative to this critical element or I will consider you to be performing at the Unacceptable level and thereby subject to removal from your position.”

By the way, I once had an agency attorney try to tell me that the above is an invalid “backwards” standard because it tells the employee what he cannot do rather than what he must do to be performing acceptably. Well, that’s an attorney who has not read the case law very carefully and has not applied common sense to the situation.

A Minimal performance standard (Level 2) is backwards and invalid if it does not clarify where the Unacceptable performance level is, e.g., the agency will lose the appeal if the PIP initiation memo tells the employee that the Minimal standard is “must not make more than three errors.” However, it’s perfectly fine (and according to Feesago, EXPECTED) that you will tell the employee that the acceptable level of performance is “must not make more than three errors.”

Relatedly, several years ago I overheard an Employee Relations specialist tell a supervisor that she should NOT tell the employee how many errors he was making during the PIP that would be counted toward evaluating the minimal level of acceptable performance. I guess that the ER specialist was concerned that if the employee were to be told that he had already exceeded the maximum error level early in the PIP, it would somehow undermine the PIP as “predetermined,” or the employee’s morale would suffer, or whatever. Well, that’s just wrong and a reversible error under the same principle that caused the loss of two critical elements in Feesago.

Of course, the employee should be told how he is doing during the PIP. How can he otherwise know if he is improving or continuing to fail? If you tell the employee that the minimal level of performance is “no more than three errors,” and the employee makes one or two errors during the first week of the PIP and then another couple of errors during the second week, he should be told. If you don’t, the Board will conclude that he has not been given a “reasonable opportunity to improve.”

But what about “morale”? What about “predetermined”? Aren’t those valid concerns? No, they are not. Nothing in law or common sense says that the agency must continue a PIP beyond the point of demonstrated failure. Think about it for a minute. When the supervisor sets a minimum level of acceptable performance in the PIP memo, he is saying that an employee who fails to meet that level is unacceptable and should be removed from the position. If the employee has more than the maximum-allowable errors during the first couple of weeks of a PIP, and the supervisor continues to allow the employee to stay in the position where he can make even more errors after that, doing so undermines the supervisor’s PIP-initiating statement relative to what constitutes Unacceptable performance. The employee cannot undo the early PIP errors by acceptable performance after the point of unacceptability. In this situation, an in-the-know supervisor will end the PIP early and propose that the employee be removed from the position at the moment of failure rather than wait until the PIP expires.

Sadly, here at FELTG we know that there is a fair amount of incorrect advice out there relative to taking unacceptable performance actions. What if the employee has exceeded the maximum number of tolerable errors during the PIP, but the HR/legal advisor erroneously tells the supervisor that the PIP cannot be ended early? How should the supervisor respond if the employee says, “Hey, boss, I’ve already failed. Why should I keep trying? Why are you keeping me on the job?” Easy, if true; the supervisor can say, “Yes, it looks like I’ll have to initiate action to remove you from your position at the end of the PIP because you’ve already failed the performance standard. I’ll continue to observe your performance during the remainder of the PIP so I can decide whether the action I take will be a termination, demotion, or reassignment.” Of course, if demotion and reassignment are not options, the supervisor should not lie. And, of course, the advisor should not be giving bad advice. Federal workplace law is filled with rocks and corresponding hard places for the uninformed.

Although two of the critical elements in Feesago were dismissed as invalid, there were two other critical elements that also formed the basis for the action on appeal. Unfortunately, during the PIP the supervisor did not provide adequate feedback to the employee as to how she was performing under these two valid standards, thereby violating the employee’s right to “a reasonable opportunity to improve her performance.” In the PIP initiation memo, the supervisor (in over-simplification) told the employee, “You are making errors relative to the critical element of Customer Care by doing X.” Then, during the PIP, the supervisor considered Y and Z to be examples of deficient Customer Service performance but did not tell the employee. In finding this oversight to be a critical deficiency in the action, the Board said, “the record does not reflect that any of these issues were ever mentioned to the appellant in the PIP discussions.”

If you are an HR specialist, attorney, or supervisor (or union representative, because we love you guys, too) involved in performance-based actions with unacceptably performing employees, it will be well worth your time to read Feesago from beginning to end. The new Board’s analysis throughout that decision is replete with old-school hints and helpful takeaways relative to how to (or not to) craft a performance-based action. I particularly liked the section where the agency seemed to fault the employee for granting bereavement leave so that a subordinate could make funeral arrangements for his grandmother. Board members have grandmothers, too.

Or you could just sign up to attend FELTG’s next MSPB Law Week seminar September 12-16 or UnCivil Servant September 7-8 and learn about this and all the other principles and best practices to employee accountability. This stuff is not hard IF you’ve been to the training. [email protected]

Q&A About the Douglas Factors Under the New MSPB

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By William Wiley and Deborah J. Hopkins, August 22, 2022

In a recent MSPB case law update (the next one is October 20, if you’re interested), we discussed the Douglas factors and the new comparator analysis the Board laid out in Singh v. USPS, 2022 MSPB 15 (May 31, 2022). This dramatic change in precedent inevitably led to questions, which we thought were worth sharing with FELTG Nation. So here goes.

Q: For the comparator analysis under Douglas, is it required that the Deciding Official (DO) in her decision letter specify or identify any comparable cases, or is it sufficient to state, for example, “in consultation with HR, I considered how the agency addressed similar misconduct in the past.” Wondering what evidence, if any, needs to be put forth in the decision letter regarding comparators.

A: The best practice is for the DO not to consult with anyone they don’t need to. The requirement is for the DO (and the Proposing Official, or PO) to consider misconduct cases they know about that have the characteristics of “same-or-similar misconduct” we discussed in the training. If the DO knows of any cases that fit that definition, or if she decides to ask HR for same-or-similar cases (even though she doesn’t have to), good appellant’s lawyer will grill her on appeal about what those cases involve, and why she felt that they were different. In detail. If the PO/DO were to reference asking HR for same-or-similar situations, and the HR advisor says that there were none, then that HR advisor becomes the appellant’s witness who will be expected to provide details of the cases surveyed.

Unlike expected testimony on appeal, a broad statement will suffice for the purpose of the Douglas factor analysis in the proposal and decision notices. The language we have recommended at FELTG for more than a decade, as long as it is true, is something like: “I know of no other situations in which an agency employee engaged in similar misconduct and was, thereafter, disciplined at a lesser level.”

On the other hand, if the DO/PO knows of similar cases that support the penalty selected, then something like: “In two misconduct cases similar to this situation, removal was determined to be the appropriate penalty.” And finally, if a similar case is known of in which removal was not the selected penalty, something like: “I know of one other case of AWOL in which the employee was not removed. However, in that case there was no significant harm caused by the unapproved absences. In this situation, the employee’s absences caused the agency to expend $5,000 to hire a contract replacement.” Or whatever the distinction may be.

Q: What is the rationale for separately attaching a Douglas factors worksheet instead of solely discussing it within the proposal notice?

A: We’ve seen numerous cases over the years in which the proposal or decision notice contained the Douglas factor considerations along with the misconduct charges. Unfortunately, doing so has the potential of confusing the Board as to which fact statements are relevant to the charge and which are relevant to the penalty. We have learned from history that the MSPB generally expects us to prove every factual assertion relative to the charge (due process requirement), but only most of the fact statements relative to the penalty, although proving everything is always ideal. Therefore, when the misconduct facts get mixed with the penalty facts, the Board has a problem weighing them. We don’t want the Board to get confused about anything we do.

Separately, using a Douglas factors worksheet forces the PO to go through each of the 12 factors, evaluating those that are relevant and noting which are not. We have seen many cases in which an agency lost the penalty because the PO or DO ignored or failed to adequately address one or more factor. A worksheet reduces the possibility of making this mistake. Administrative judges are trained to assess each of the 12 factors in order. A worksheet lays that out for them to the benefit of the agency.

That said, it is not a critical error to include the Douglas factor analysis in the body of the proposal notice. Clearly delineated and identified as penalty factors separate from the misconduct charge facts, encompassing all 12 Douglas factors would work. But there is no reason you would want to go to that extra trouble and accept that extra risk.

A separate worksheet attached to the proposal notice, as we noted in the recent caselaw in the training, helps the Board understand (and affirm) the agency’s action. It is a good idea without a downside.

One final thought. For goodness’ sake, DO NOT violate the employee’s Constitutional right to due process. The Board will automatically reverse a removal, without consideration as to whether there was any harm, if the DO considers Douglas Factors relied on by the PO, but not communicated by the PO to the employee. See Braxton v. VA, DC-0752-14-0997-A-1, August 12, 2022 (NP).

This really is easy, folks. Just have the PO do a Douglas Factor Worksheet, staple it to the Proposal Notice, and fuhgeddaboudit. [email protected]

The Good News: 100% Official Time Does Not Excuse Misconduct!

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By Ann Boehm, August 16, 2022

This administration is decidedly pro-union. The FLRA has two Democrats and one Republican on the Authority. There may be a perception that unions are untouchable in this environment, but that is just plain wrong. A recent decision from the newly constituted FLRA is illustrative. Bremerton Metal Trades Council, 73 FLRA 90 (2022).

The agency investigated a union representative, who was on 100% official time, for bullying and verbal abuse. The investigation showed she engaged in the misconduct over several years. The agency suspended her for ten days. The union grieved the suspension, leading to an arbitration hearing to determine whether the agency had jurisdiction to discipline the grievant.

The union “claimed that because the grievant’s schedule consisted of 100% official time, any Agency-imposed discipline would constitute an unfair labor practice” (emphasis added).

That is a bold argument. Even on 100% official time, the union representative is receiving a salary from the Federal government. Insulating individuals on 100% official time from any agency-imposed discipline would seemingly allow those officials to operate without accountability.

According to the arbitrator, the union rep “’engaged in “confrontational and bullying” behavior on a “regular basis’” which degraded “’the morale of those working around her’” and created an “uncomfortable working environment.’” Her behavior caused a chief steward to experience three panic attacks in one month, the last one sending him to an emergency room.

According to signed statements obtained by the agency, the grievant described her colleagues with words like “’r**ard,’ ‘stupid,’ ‘slow,’ ‘f**king p**sy,’ ‘f**king idiot,’ and ‘god d**n r**ard.’” As Dana Carvey’s Church Lady might say, “Well isn’t that special?”

Holy cow! A ten-day suspension seems light given her misconduct, but as aforementioned the union argued the agency could not discipline her at all because such discipline would interfere with internal union affairs.

The agency argued that the parties’ collective bargaining agreement enabled the agency to ensure the union office remained safe and usable, which justified the discipline of this union representative. Id. The arbitrator agreed with the agency, concluding the agreement “allowed the agency to discipline any employees who used the Union ‘office in a way not intended’ or who made the office’s ‘occupancy untenable.’”

The arbitrator noted an agency may discipline employees for conduct that is “’flagrant or otherwise outside the bounds of protected activity.’” Unsurprisingly, the arbitrator concluded the repeated and intentional bullying, with the goal of inflicting emotional distress, was for the grievant’s own benefit and not provoked. Therefore, it was flagrant and outside the bounds of protected activity.

The union filed exceptions with the FLRA, arguing the flagrant misconduct finding exceeded the arbitrator’s authority. The FLRA disagreed and denied the union’s exception. The union also argued the Arbitrator’s award was contrary to the Federal Service Labor-Management Relations Statute. Again, the FLRA disagreed and denied the union’s exception.

The agency won. Justice prevailed! Even in a pro-union administration, unions and their reps can and should be held accountable. That’s Good News! [email protected]