Tools, Techniques Needed: Conducting Investigations When Trauma is Involved

, ,

By Shana Palmieri, LCSW, September 14, 2021

The goal of Federal workplace investigations is to collect information in an objective manner through a series of techniques that provides information to uncover the ‘truth,’ allowing the agency to make appropriate decisions and actions. Unfortunately, the human mind and memory is tricky business. Since the 1960s, social scientists have produced numerous studies that demonstrate eye-witness testimony and memory are unreliable.

To make matters more complicated, memory is formed and stored differently in individuals under extreme stress from trauma. To conduct proper investigations, it is pertinent to understand the underpinnings of memory retrieval and have a toolkit of evidence-based techniques that will allow the investigator to obtain accurate, reliable information. [Editor’s note: Shana will be a presenter during FELTG’s upcoming Workplace Investigations Week (December 6-10) and will share guidance on interviewing witnesses who have experienced trauma, de-escalating emotionally charged interviews, and more during Conducting the Investigation, Part I on December 8.]

Memory includes three primary processes:

Encoding. Individuals receive information based on what they see (visual), hear (acoustic), and understand (semantic). The brain then encodes the information deemed important and lets go of what it considers less important information.

Storage. The brain takes these selected details and consolidates them into a memory in the brain based on the details selected from the encoding process combined with our current knowledge to reconstruct what we ‘think’ happened in the past.

Retrieval. Retrieval involves the recall of old memories to form a narrative of past events and our recollection of what we ‘think’ happened. People are only able to retrieve a portion of their actual memories, and these memories when retrieved are combined with additional memories, events, and beliefs that have occurred since the initial memory was consolidated.  What this means is that when we retrieve a memory, we are not retrieving the initial memory that was encoded and consolidated, instead we are retrieving a memory that has been reconstructed and changed over time.

Memory systems in humans are not like replaying a video or audio recording that gives us a play-by-play of the exact details that occurred. Rather, the human memory selects what it believes the key factors are to encode, then uses current beliefs to consolidate a narrative that changes over time. This creates problems for obtaining an objective account of what occurred in the past built on a memory-based interview.

Add in other complicating factors, such as trauma, to impact the functioning on the memory systems, and the interview process becomes more challenging. Due to the activation of the stress response system, memories are often fragmented. Additionally, the type of memories the brain decides to encode differ than that of individuals not under extreme stress. And, finally, individuals under extreme stress as a result of trauma often do not store memories in a chronological fashion, making the retrieval of the incident difficult for the purposes of an investigation.

Therefore, specific investigative tools and interview techniques need to be applied when working with individuals that are impacted from extreme stress or trauma.

These techniques allow investigators to ask questions in a way that aligns with the way individuals store, retrieve and process information, allowing for a more objective investigation. [email protected]

Establishing Conduct Expectations: A Sample Policy Part II

, ,

By Barbara Haga, September 14, 2021

This month, we tackle a few other aspects of the work and conduct expectations that I began in last month’s article, in which I tackled work schedules, attendance and other related matters.

INTERNAL WORK REQUIREMENTS.  The following standards relate to how work gets done within our organization.

Standards for Work Assignments:

Due Dates: Certain assignments have specific due dates. Sometimes these are recurring items which have due dates such as monthly reports. In addition, various actions and projects will have due dates which may be either immediate or months in advance. Employees are expected to comply with due dates unless an extension has been given for good cause. If there are problems meeting a deadline, you are expected to notify your supervisor sufficiently in advance for alternative arrangements to be implemented to meet the deadline.

Priorities. Depending on the grade of your position, you may be responsible for setting work priorities or that information may come from your supervisor. You are expected to ensure that work is appropriately prioritized within guidelines and to raise issues regarding any competing priorities with your supervisor in advance to ensure timely completion.

Compliance with Directives. In some cases, work assignments are made with specific instructions or directives that explain how the work will be performed. Employees are expected to follow such protocols, directives, or procedures where they have been provided. This is not intended to limit opportunities for improving procedures or adapting to new conditions, but instead to ensure that supervisors are made aware of proposed adjustments in advance.

Files and Records: Any files or records that you develop in the course of your work are the property of the agency.

Sharing Information within the Unit: Staff meetings provide an opportunity for sharing information regarding our organization and our work and are a key ingredient to ensure that everyone on the team is aware of developments and changes that affect us.

Regular attendance at staff meetings is expected. In the event that there is a conflict with another meeting or work commitment, you are expected to notify your supervisor to discuss the conflict prior to the day of the staff meeting.

During staff meetings, you are expected to fully participate and to contribute to the information-sharing within the group. You should prepare as necessary to be ready to engage fully in discussions and to contribute well-thought-out suggestions.

(If status reports are required, include information on due dates/content here). Status reports ensure that your supervisor has up to date information on key parts of each employee’s work that then enables the supervisor to respond when issues arise from senior officials and customers.

Communications:

E-mail: If you receive an e-mail requesting information or assistance, you are expected to respond within one business day of receipt. If you are not able to satisfy the request within one day, you will acknowledge the request and include an estimate of when you will be able to satisfy the request.

If you are going to be out of the office, you will utilize the auto-reply on your e-mail to alert others to the fact that you will be out for a specific period of time. Your auto-reply message is also to provide an alternate point of contact(s) who is providing coverage in your absence.

Telephone:  If you receive a phone call requesting information or assistance, you are expected to respond within one business day of receipt.  If you are not able to satisfy the request within one day, you will return the call and provide the caller an estimate of when you will be able to satisfy the request.

If you are going to be out of the office, you will change your greeting to alert others to the fact that you will be out for a specific period of time.  Your message is to include an alternate point of contact(s) who is providing coverage in your absence.

Personal Telephone Calls and E-mails. Work time is to be spent performing work activities. Reasonable time for short check-in calls with family or making calls or sending e-mails for personal business that cannot be accomplished outside of work hours are permitted.

Required Training.  Employees whose jobs have specific training requirements are expected to complete such training by any established deadline.  Training may range from annual IT Security or Ethics Training to continuing education requirements for certain position. Once notified of a due date for training it comes your responsibility to ensure that you comply.  Multiple reminders should not be expected. Failure to complete required training on time is grounds for disciplinary action.

Licenses and Certifications. Some jobs include requirements for licenses and certifications.  It is incumbent on you to ensure that any continuing education is completed in a timely manner and that any administrative requirements to maintain such a license, certification, or membership are met.  Failure to meet these conditions of employment may be grounds for removal.

ON AND OFF-DUTY BEHAVIOR. Federal employees are accountable for behavior both on and off-duty. Off-duty behavior may be a basis for employment action if there is a connection between the behavior and the position.

Off-duty behavior such as egregious sexual misconduct may be grounds for dismissal.  Other types of specific off-duty misconduct could impart an employee in a particular type of position or job; for example, an employee whose job requires a license to drive who loses that license because of a DUI conviction may be removed because he/she doesn’t meet a condition of holding the job. Similarly, an attorney who loses membership in the bar would no longer qualify for that position.

Certain jobs may have more stringent requirements than others.  Police and investigator positions, for example, are generally held to higher standards since it is their responsibility to enforce laws, testify in legal proceedings, etc.  Jobs that are designated as highly sensitive or those who which require security clearances may be held to stricter rules regarding off-duty issues such as indebtedness. Supervisory jobs are also held to a higher standard.

Be Careful What You Ask for – And How You Respond

, ,

By Michael Rhoads, September 14, 2021

I’ve always regarded Labor Relations like the old Rubik’s Cube. There are a seemingly endless number of twists and turns before arriving at the final solution. I admire the tenacity of those who have made a career out of LR.  It’s not for the faint of heart, especially when engaged in “robust debate.” And to make it even more interesting for those practicing LR in Federal agencies, the message from the top-down changes with each new Presidential administration.

Permissive Bargaining

Since President Biden revoked The Presidential Memorandum of October 11, 2019 (Executive Orders 13836, 13837, and 13839) in Executive Order 14003, management has been asked to operate under a new set of bargaining rules. The Biden administration even set the tone by stating: “It is also the policy of the United States to encourage union organizing and collective bargaining.”

Of particular note in EO 14003 is section 4. Ensuring the Right to Engage in Collective Bargaining. “The head of each agency subject to the provisions of chapter 71 of title 5, United States Code, shall elect to negotiate over the subjects set forth in 5 U.S.C. 7106(b)(1) and shall instruct subordinate officials to do the same.”  This is a 180-degree turn from the previous administration, who said the agency “may not negotiate” over the subjects of 7106(b)(1).

OPM also issued a memo on March 5, 2021 in support of the topics covered in 7106(b)(1). “In order to implement the policies of the Executive Order, agencies shall agree to bargain over the substance of §7106(b)(1) subjects, whether at the union’s request (e.g., midterm bargaining request) or as the result of a proposed agency action (e.g., union responding to an agency notice of a pending change subject to collective bargaining).

Requests for Information

The new permissive bargaining sets the stage for new negotiations between management and the unions representing bargaining unit employees.  During these negotiations, the union will most certainly request information from management. Requests for information can sometimes feel like the children’s book If You Give a Mouse a Cookie: one request leads to another, and another, and another, ad infinitum.  But no matter how many requests a union submits to management, they must demonstrate a particularized need for the information.

The types of information a union can request from management are covered in 5 USC 7114(b)(4):

(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data—

(A) which is normally maintained by the agency in the regular course of business;

(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining

If you’re a labor relations specialist looking for best practices on how to negotiate in this new climate, look no further.  Join my colleague, Ann Boehm on Friday, October 1, 2021 for 2 sessions Permissive Bargaining from 11:15-12:30 PM EDT, and Requests for Information from 1:30-2:45 PM EDT.  And be sure to check out our other topics in our upcoming end-of-FY virtual event Federal Workplace 2021: Accountability, Challenges and Trends, which runs from September 27 – October 1.

 

As this fiscal year comes to a close, I wish everyone a productive September. Be safe, and remember, we’re all in this together. [email protected]

 

Well, Excu-u-use Me! Sometimes, Feds Say the Darndest Things

, ,

By Dan Gephart, September 14, 2021

Ever hear about the Federal employee who walked out of Whole Foods without paying for the two tacos in his hands? When stopped by security, he claimed he “thought the tacos were comped for Federal employees.”

Or how about the Fed who paid for his family’s entire Disney vacation with his government credit card? It was an accident, he said. He meant to use his own card. Yes, sure, it was an accident when he paid for the flight. And again, when he paid for the hotel. And again, when he paid for the rental car.

But what if the taco-buying Fed really did think he was comped? I don’t know, maybe he missed his day of ethics training. Or what if the Disney vacationer’s personal credit card looked almost identical to his government card?

Sometimes an employee’s excuse for misconduct may sound as illogical as the concept to the Broadway show Cats. Before you laugh off the premise, though, give it some consideration. After all, the MSPB once reversed an employee’s removal for failing a drug test when his excuse was that his soon-to-be-ex-wife laced his cigar with marijuana. The ol’ “my wife put weed in my cigar” excuse? Come on! That sounds like our drug-tested Fed was blowing smoke. But guess what? The evidence backed it up. After lacing the cigar, the wife called the employee’s supervisor and suggested her husband be drug-tested.

That evidence, however, was clearly missing for the IT specialist in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). A random drug test revealed marijuana in his system and the agency proposed his removal for “positive test for illegal drug use— marijuana.”

The appellant claimed he unknowingly consumed drug-laced brownies at a party. Who hosted the party and secretly served pot brownies to unsuspecting guests? Well, the appellant didn’t actually “know” the host. In fact, he claimed, he didn’t even know the brownies were made with marijuana until days later. He said he never felt the effects of the marijuana and attributed what he did feel (mostly nauseous) to eating bratwurst.

The MSPB found that he failed to meet his burden of “showing such inadvertent ingestion” and affirmed his removal.

For more on Hansen and other similar cases, join FELTG President Deborah Hopkins, starting at 9:30 am ET on Thursday, September 30 for High Times and Misdemeanors: Weed and the Federal Workplace. If you’re looking for guidance on handling off-duty misbehavior in general, join FELTG Instructor Bob Woods for Got Nexus? Accountability for Off-duty Conduct on Tuesday, September 28, starting at 11:15 am ET.  Both sessions are part of our Federal Workplace 2021: Accountability, Challenges and Trends event, which runs event runs September 27-October 1. Click here to find out more about this exciting annual event. [email protected]

What Happens if the EEO Director or Personnel Attorney is Named in an EEO Complaint?

, ,

By Deborah Hopkins, September 14, 2021

Here’s the scenario: A complainant files multiple EEO complaints including complaints against an attorney in the agency’s Office of General Counsel and the agency’s EEO Director. The complainant requests the attorney and the EEO Director to recuse themselves from the case. The GC and EEO Director happen to be the employees who handle most EEO matters and litigation for the agency in this particular region.

Because of her experience, the attorney would like to be involved in defending the agency against the complaints rather than create a firewall and pass this case off to a less-experienced attorney. And the EEO Director doesn’t want to recuse because he believes there is no merit to the EEO complaint.

What should the agency do?

Ideally, the agency should have a conflict policy in place and an agreement with another region or even another agency to step in for the investigation and defense of complaints in situations like this.  The EEOC issued a report last year with guidance on these conflict policies.

If the agency doesn’t have a conflict policy in place now, the below case discusses the conflict issue and should encourage the agency to address this as soon as possible: Katharine B. v. USPS, EEOC App. No. 0120170444 (Dec. 7, 2018).

“In Monroig, the Commission held that permitting the Deputy General Counsel, one of the responding management officials, to attend the hearing and simultaneously act as agency representative would create an inherent conflict of interest and tarnish other witnesses’ testimony.

EEO Management Directive 110 (EEO MD-110) (Aug. 5, 2015) requires that there be distance between the fact-finding and defensive functions of the agency in order to enhance the credibility of the EEO office and the integrity of the EEO complaints process. EEO MD-110, Chapter 1, at § IV (Aug. 5, 2015). The Commission ruled that even if the Deputy General Counsel had testified before all other witnesses at the hearing, her presence would discourage other employees from testifying freely at the hearing.

The Commission noted that the Agency was well represented at the hearing despite the Deputy General Counsel’s absence.

Accordingly, we find that a conflict of interest existed in the Agency’s representation at [*13] the hearing and that Complainant is entitled to a new hearing, in which S1 may not be involved as an Agency representative. See Rabinowitz v. U.S. Postal Serv., EEOC Request No. 05930348 (Sept. 23, 1993) (officials involved in discrimination may not be involved in processing the complaint).” [bold added]

Bottom line: Take conflict allegations seriously. Find a way to recuse counsel or EEO officials who may have conflicts of interest. Better yet, get ahead of these situations now by putting together a conflict policy, as recommended by the EEOC. It may not be something that arises often but being prepared for a conflict will benefit the agency in the long run. [email protected]

Performance Isn’t About Can’t Do vs. Won’t Do

, , ,
By William Wiley, September 7, 2021

Below is an email we received from a FELTG student, lightly edited for space and context, followed by our FELTG answer.

Dear FELTG,

I attended your MSPB Law Week in person last year just before everything was shut down due to COVID. I recall your discussion about performance management, and you made a statement that I swear I wrote down but cannot find in my notes. I was wondering if you might be able to reiterate. You said something along the lines of “Performance vs. conduct is not a matter of can’t do and won’t do.” This can’t vs. won’t is something I was taught as a young ER practitioner some years ago. However, your explanation was MUCH better!

Thanks in advance.

And the response:

Ah, the old “can’t do vs. won’t do.” Has a nice ring to it. The reason that FELTG teaches that this is an incorrect concept is based in law and, unfortunately, the law doesn’t always have a nice catchy rhythm.

If we read the statute that lays out the procedures for taking a performance-based removal (codified at 5 USC 4303), we don’t see anything that speaks to volition. Therefore, the willfulness of an employee’s unacceptable performance is not a matter of law with which we need to be concerned when initiating a performance removal. We don’t have to care whether the employee says, “Boss, I refuse to work that hard” or “Boss, I can’t work that hard.” If the employee is not performing at a level that the supervisor sets as the minimum level of performance, we can initiate a 432-performance action.

Being able to initiate a 432-performance action without concern for can’t v. won’t is important for several reasons:

  • It’s one less case element we have to prove on appeal. It gives the employee one less thing to argue with us about. Reducing arguments is a very desirable outcome.
  • 432-performance actions are a fast, efficient procedure for dealing with a documented non-producing employee. We can initiate a 432 action today by giving the employee a notice that specifies the performance elements being failed, and then propose the employee’s removal 31 days from now if performance does not improve to the minimal level. In contrast, a 752-misconduct action (a reference to 5 USC Chapter 75 adverse action removal procedures) many times involves an initial Reprimand (which might be grieved), followed by a proposed-then-decided Suspension (which also might be grieved), and THEN by an eventual proposed Removal. Those steps invariably take more than 31 days.
  • Separately, performance-based removals need be supported by only substantial evidence, whereas misconduct-based removals must be proven by the higher burden of a preponderance of the evidence. And MSPB cannot mitigate a performance-based removal to something else. No Douglas Factors to worry about. 432-removals are the preferred procedure to deal with problem employees who can’t or don’t do what they are told to do performance-wise.

In addition to all of this, we have to acknowledge that there are exceptions to the concept that can’t-do problems are necessarily addressed via a 432-performance-based action. We routinely use 752-adverse-action procedures to remove employees who can’t do things, e.g.:

  • The employee who can’t come to work because of matters beyond the employee’s control where leave has been approved (Excessive Absence)
  • The employee who has a medical limitation and, thereby, can’t perform an essential job function (Medical Inability to Perform)

I hope you either read one of our earlier FELTG articles and/or attended our webinars that explained that the Federal Circuit recently changed what management is required to do when confronted with a non-performing employee. Previously, we had to prove that the employee was put on notice of on-going unacceptable performance (usually by the supervisor initiating a Demonstration Period, i.e., a DP), and then prove that the employee did not perform acceptably during the DP. Now, we also must prove that the employee was performing unacceptably BEFORE the DP was initiated.

Bottom Line: Assessing whether a problem with an employee is “can’t do or won’t do” is unnecessary and possibly misleading. It’s better just to focus on the outcome when dealing with a poor performer. When it comes to the concept of volition – can’t do vs. won’t do – Master Yoda said it most succinctly, “You must unlearn what you have learned. … Try not. Do, or do not. There is no try.” Hey, if we can’t rely on the wisdom of a little, old, green alien, who can we trust?

Best of luck out there. [email protected]

 

Undoing the Last Four Years: Federal Circuit Clarifies the Burden of Proof in VA Discipline

, , ,

By Deborah Hopkins, August 13, 2021

Over the last four years, the VA has enjoyed a lower burden of proof in taking disciplinary actions against employees covered by the VA Accountability and Whistleblower Protection Act, 38 USC 714. Indeed, Congress passed this law in 2017 to make it easier to fire bad employees at the VA.

Between then and today, we have learned that the law is not retroactive for actions that occurred prior to its enactment (Sayers v. VA, 954 F.3d 1370 (Mar. 31, 2020); Brenner v. VA, No. 2019-2032 (Mar. 9, 2021)) and that, while MSPB has no penalty mitigation authority in actions taken under this law, agencies must show by substantial evidence that their selected penalty is reasonable. Mogil v. VA, No. 2018-1673 (Fed. Cir. May 1, 2019). Ok, fine. We can live with that.

Now, get ready.

On August 12, the Federal Circuit hit us with a big one. In this case, a Supervisory Consumer Affairs Specialist named Ariel Rodriguez yelled and used profanity at a patient in a VA facility. The confrontation escalated and the police were called. The police had to escort Rodriguez to his office because he was so agitated. After that, Rodriguez returned to the reception area, where he again confronted the patient. During the investigation that followed, Rodriguez was dishonest in his account of the events that occurred. He also attempted to influence one of his employees to alter her testimony to the investigator.

Rodriguez was removed on three charges: (1) disruptive behavior toward a veteran patient; (2) conduct unbecoming a federal supervisor, and (3) lack of candor. The facts justified an easy removal for the VA – or so we all thought. Plenty of witnesses, police activity, a patient’s wellbeing in danger, clear nexus – no question there was substantial evidence of misconduct and substantial evidence to support removal.

But wait.

The Federal Circuit saw things differently. There are two huge new takeaways that every management official at the VA must be aware of, courtesy of this case, Rodriguez v. VA, No. 2019-2025 (Fed. Cir. Aug. 12, 2021) [PDF].

  1. The standard of proof for a VA to take a disciplinary action is a PREPONDERANCE of the evidence; the substantial standard in the statute only refers to MSPB’s review of the action.
  2. The VA must complete a Douglas factors analysis for its disciplinary actions, even though the MSPB lacks authority to mitigate the agency’s penalty.

Let’s look at each in turn.

  1. Burden of Proof

For the past four years, just about everyone in this business has been under the impression that the language in 38 USC 714(d)(2)-(3) “if the decision is supported by substantial evidence” meant that the agency action also required the substantial evidence standard. It’s even in the VA’s Discipline policy.

But the Federal Circuit said otherwise:

The references to “substantial evidence” in section 714 are all explicitly directed to the standard of review to be applied by administrative judges and the Board. Those references do not address the standard of proof to be applied by the DVA in making disciplinary determinations, nor does the remaining text of section 714 explicitly address the standard of proof in proceedings before the DVA…[T]he language of section 714 implies that the proper standard is the preponderance of the evidence. Section 714 provides that an employee may be removed, demoted, or suspended “if the Secretary determines the performance or misconduct of the covered individual warrants” such action. In the case of a disciplinary action based on misconduct, the requirement that the Secretary “determine” that the misconduct in question warrants disciplinary action implies that the Secretary must find that it is likely, i.e., more likely than not, that the employee has engaged in the misconduct that justifies the proposed discipline. [bold added]

The court’s explanation included discussion that if substantial evidence was the standard used, a Deciding Official would be required to find against the employee with regard to the charged misconduct even if the Deciding Official did not personally agree with that conclusion, because when substantial evidence is applied, a reasonable person might disagree and yet the standard is still met. The court said in no uncertain terms that the VA Accountability and Whistleblower Protection Act does not contain “any language stating explicitly, or even implicitly, that the burden of proof in disciplinary actions should be substantial evidence.”

Because the agency applied the substantial evidence standard in this case, what we now know is an incorrect standard, it was remanded back to the MSPB.

  1. Douglas Factors

Because the VA Accountability and Whistleblower Protection Act explicitly states that the MSPB does not have the authority to mitigate the agency’s penalty (38 USC 714(d)(2)(B)), in the first year or two after the law’s enactment the VA was (and the rest of us were) under the impression that Douglas factors were not required. In other words, if a penalty could not be mitigated, then there was no need to justify the penalty – and penalty defense is the primary reason why agencies use the Douglas factors.

Starting in 2019, the Federal Circuit determined that there must be substantial evidence the agency’s penalty is reasonable, otherwise the MSPB could remand a case back to an agency to determine a more appropriate penalty. Mogil, above.

The court in Rodriguez takes things further and says, “this court has made clear that the absence of mitigation authority does not deprive the Board of the authority to review penalties for substantial evidence” and that mitigation authority is completely divorced from “the power to review and strike down the DVA’s imposition of penalties that are arbitrary, capricious, an abuse of discretion, or not in accordance with law.” To that end:

For a reviewing tribunal to find a decision not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, that decision must have been based “on a consideration of the relevant factors and whether there has been a clear error of judgment…” [citation omitted] Accordingly, because the Board must review the DVA’s penalty selection in a section 714 case, that review must ensure that the DVA considered the relevant factors bearing on the penalty determination.

The court emphasized this point by declaring the Deciding Official must “weigh the relevant factors bearing on the appropriateness of the penalty, including the relevant Douglas factors” in cases of misconduct. So, there it is.

There is a whole lot more to discuss from this decision, but we’ll tackle those issues another time. As for now, we are anticipating multiple years’ worth of cases will be remanded to determine whether the VA had a preponderance of the evidence, and not merely substantial evidence, in taking appealable disciplinary actions. The good news for the VA is, preponderance is not too difficult to show, and I would bet they can meet this burden in nearly every case. The bad news is there’s a whole lot more work ahead. Please let us know how we can help – and attend UnCivil Servant September 8-9 or MSPB Law Week September 13-17 for all the details on what happens now. [email protected]

The Good News: If Feds Want to Force You to Discipline Them for Disobeying Mask, Testing, and Vaccine Rules, You May Do So

, ,

By Ann Boehm, August 18, 2021

I’m pretty sure that you, my FELTG friends, are aware that the Biden  administration issued some strong guidelines on vaccines, masks, and COVID-19 testing over the past few weeks. And along with this guidance has come direction from the administration that an employee’s failure to comply with the guidelines could result in disciplinary action or even criminal prosecution (for providing false information on the Certification of Vaccination form).

For those who manage people or for those responsible for advising those managers, this may seem like an enforcement nightmare. My job in this article is to give you an incentive to take action against the noncompliant, and to provide you the tools to reassure you that such actions are legally defensible.

So first, the incentive.

A few weeks ago, the VA issued a vaccine mandate for Title 38 VA employees. Soon after, articles about the mandate appeared with quotes from employees determined to resist the direction. Some employees plan to quit or retire. But one comment really got me (and here’s the incentive). One quoted employee said she was encouraging her colleagues not to retire or quit, and instead “force the department to fire them to maximize legal recourse.” Many VA Employees Apprehensive About Vaccine Mandate as Department Begins by Eric Katz, Government Executive (July 30, 2021).

If the employees want to force you to fire them, I think you should accept the challenge.

Now, the legal justification.

On July 29, the administration issued the guidelines that are binding on all Federal employees. Employees have two options. Certify that you are vaccinated (and possibly wear a mask in areas of substantial or high transmission areas) or wear a mask at all times, get tested, and physically distance. Employees do have options, at least. But they also have rules to follow. Break a rule, and you may be disciplined.

There’s precedent for enforcing these kind of rules. There’s even precedent for firing employees who do not comply with a vaccine requirement.

Let me give you a little history lesson. Way back in the 1990s, long before we could have imagined this past year’s pandemic experience, anthrax existed as a potential biological weapon. Anthrax can be deadly, but there is a vaccine for it.

In the early 1990s, the Department of Defense started vaccinating service members against biological warfare threats for which vaccines were available. By 1998, the anthrax vaccine immunization program included service members and civilian personnel who could be at high risk for biological weapons exposure.

Two civilian Navy employees being deployed on a ship bound for Korea were ordered to get the anthrax vaccine. They refused. The Navy removed them. They appealed their removals to the Merit Systems Protection Board. The MSPB Administrative Judge upheld their removals. They then appealed to the U.S. Court of Appeals for the Federal Circuit.

The Federal Circuit also upheld their removals. Mazares v. Dep’t of the Navy, 302 F.3d 1382 (Fed. Cir. 2002), cert. denied, 538 U.S. 960 (2003). The court expressly recognized the Navy’s authority to protect the health of civilian and military personnel.  Id. at 1385. The court also determined that removal was a reasonable penalty for the employees’ charged misconduct: “’failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.’” Id. The employees tried to get the Supreme Court to consider their case, but the Court denied the petition for writ of certiorari. 538 U.S. 960 (2003)

Just like anthrax, COVID-19 presents a legitimate danger to the health of the Federal workforce. The guidelines issued by the administration are intended to minimize that danger.

I fully acknowledge that there is a vast divide among people all over the world regarding vaccine and mask mandates. Just a few minutes reading through Facebook, Twitter, neighborhood listservs, and a multitude of media articles, or even conversing with friends and family makes that patently clear. But Federal employees now have been given the instructions. They must comply. Agencies: If employees choose to disobey the guidelines, they are subject to discipline. And Mazares strongly suggests that removal may be the appropriate penalty.

Good luck out there! [email protected]

Averting Retaliation: Fear is OK, but Don’t Act on Anger

, ,

By Dan Gephart, August 18, 2021

I remember very little about second grade, but I can vividly recall sitting in class when my fellow classmate Teresa C. tapped me on the shoulder and very matter-of-factly said, “I know you did it.”

“Did what?” I replied.

“You murdered my father,” she said, “and I’m going to tell the teacher.”

Thanks to Catholic guilt, already deeply ingrained in me at seven years old, my first thought was: When did I do this horrible thing? I eventually realized the claim was ludicrous. I mean, my parents still weren’t letting me cross the avenue by myself. How the heck could I pull off a murder without leaving my side of Fitler Street? Yet, I was certain the teacher would believe Teresa and the police would storm into Room 202 (yes, that really was my second-grade classroom) at any moment. I was terrified.

Fear is a common reaction when an individual feels they’ve been unfairly accused, particularly if they have a lot to lose, such as a job or the respect of peers. Perceived injustice creates psychological discomfort – and the person instinctively tries to find a way out of that discomfort.

I never found a way out of my second-grade discomfort. I spent the next couple of days terrified that the police were going show up at school or my house and take me away. But then again, I was just a seven-year-old kid. For an adult supervisor in the Federal workplace, there is a more common, easier path out of the discomfort. And that’s anger. Unfortunately, while anger may make help you forget your pain for the moment, if can also lead to retaliation when unchecked, especially if:

  • The accusation is very serious.
  • The accusation will negatively impact relationships with others at work.
  • The accused feels that he/she/they are being judged.
  • The accused believes his/her/their job is in jeopardy.

It’s no surprise then that retaliation is asserted in almost 45 percent of EEO complaints, or that findings of discrimination based on retaliation comprised between 42 and 53 percent of all findings from 2009 to 2015. And in many of those findings of retaliation, the original claim under which the complaint was filed was dismissed.

It’s so counter-intuitive, but if you’re named in an EEO complaint — even if you are certain you are wrongly accused — you must find a way to deal with your anger. The other thing you can and, quite frankly, should do is be aware of what retaliation looks like so you know exactly what to avoid. For example, never publicly discuss EEO complaints, don’t make jokes about EEO, and don’t try to isolate the complainant. All of these actions have led to findings of discrimination on the basis of retaliation.

To learn more, join Attorney Meghan Droste on August 24, for the 60-minute webinar EEO Reprisal, Handle It, Don’t Fear It. In this the penultimate session in our Supervising Federal Employees webinar series, Meghan will discuss specific cases involving retaliation and provide you with several steps you can take to ensure you avoid retaliation. Reprisal will also be discussed along with intentional discrimination and contractor complaints during Day three of FELTG’s EEOC Law Week September 20-24.

After a couple of days, I began forgetting to worry about my imminent arrest. When I eventually told my parents, they laughed. Oh, and before Teresa C. transferred to another school a couple of years later, I became aware that her father was very much alive. [email protected]

What A Long, Strange Trip It Has Been

, ,

By Meghan Droste, August 18, 2021

Litigation, even when it all goes according to plan, can end up being a long and winding road.  And when it doesn’t go quite as it should … well, a long, strange trip is one way to describe what can happen.

Randolph A. v. Department of Veterans Affairs, EEOC Pet. No. 2020004882 (June 23, 2021) is a journey filled with many twists and turns. The story starts in September 2010 when the complainant filed a formal complaint regarding a non-selection. The agency investigated the complaint and issued an ROI. The complainant requested a hearing and then subsequently appealed the administrative judge’s grant of summary judgment in favor of the agency. On appeal, the Commission found in favor of the complainant and awarded several remedies, including placement in a position and back pay, and ordered the agency to conduct a supplemental investigation regarding compensatory damages. The agency filed a request for reconsideration, which the Commission denied.

So far everything seems straightforward. But here’s where the journey gets a bit strange: Instead of implementing the Commission’s decision, the agency sent a letter in 2016 to the Commission, asking the Commission to vacate its decision based on a November 2010 global settlement agreement with the complainant. The complainant objected to this and filed a petition for enforcement. The Commission found that the agency’s arguments regarding the settlement agreement were untimely, and that the agency had waived them, having waited until after the investigation, hearing stage, and appellate process to first raise the existence of the agreement. In November 2017, the Commission ordered the agency to comply with the previous order.

Unsatisfied with this result, the agency wrote to the EEOC acting chair in January 2018 to seek review and reversal of the Commission’s decision.  A month later, the agency issued a final order awarding damages. The complainant appealed the award, which the Commission modified.  In response, the agency filed request for reconsideration and again raised the arguments regarding the settlement agreement.

As the Commission notes, “[d]espite repeatedly addressing the Agency’s assertion in prior decisions, the Commission nonetheless provided the Agency with further reasoning and explanation” as to why its very untimely arguments failed. The case then ended up before the Commission yet again because the agency refused to comply with the decision and instead sent its January 2018 letter to the compliance officer.

In its most recent decision, the Commission provided a lengthy discussion of why the agency’s arguments failed, drawing comparisons to the Federal Rules of Civil Procedure to highlight how the agency failed to act with due diligence in 1) keeping track of the 2010 settlement agreement, and 2) timely raising arguments regarding it. The Commission yet again ordered the agency to pay compensatory damages to the complainant. It also informed the agency that if it failed to do so, it might refer the matter to the Office of Special Counsel under the memorandum of understanding (MOU) between to the two agencies. Under the MOU, OSC could initiate disciplinary action.

It’s unclear where the agency will go from here, but hopefully the potential involvement of OSC will prompt the agency to finally follow the Commission’s order and pay the damages it was ordered to pay years ago.

One last thing — the title of this article isn’t just about the Randolph A. case. It’s also because, to borrow from another song and a completely different genre, it’s time for me to say so long, farewell, auf Wiedersehen, and goodbye to the wonderful FELTG community. Starting next month, I will be joining the ranks of many you as a Federal employee.  Thank you to all of you who have joined me in the classroom over the past four years.  I have learned so much from you and will take many fond memories with me.  To paraphrase my source material, what a (not) long (enough), (wonderful) trip it has been – I hope this is more of a see you later rather than a real goodbye. [email protected]