The Golden Doodle Who Wouldn’t Nuzzle: A Service Dog, or Not?

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By Deborah Hopkins, April 20, 2021

While preparing the materials for an upcoming training session Ricky Rowe and I are presenting at FELTG’s annual Emerging Issues in Federal Employment Law virtual forum, I came across a case that I thought prudent to share – especially because, as return to work orders are issued in the coming months, agencies are likely to see an uptick in requests for service animals and emotional support animals in the workplace.

In a recent case at the Department of Veterans Affairs, the complainant suffered from PTSD, depression, anxiety, and panic attacks. Because of her medical conditions, she requested an accommodation to bring her trained service dog, a golden doodle, to work. She informed the agency that her dog was scent-trained to recognize chemical shifts in her body when she was escalating into anxiety or panic attacks. The dog was trained to alert and calm her before she reached the panic stage. The complainant explained to agency management that her dog might bark in the process of alerting her to her escalating symptoms, as that was the dog’s alert mechanism.

The agency approved accommodation for a 30-day trial. During a meeting shortly thereafter, the dog repeatedly barked and was disruptive for more than 30 minutes. Because of the disruption,  management began considering removing the interim accommodation, but did not take action.

The dog became even more disruptive in a subsequent meeting. According to agency management, the dog appeared impossible to handle. During the meeting, it continually barked, and jumped on the complainant multiple times, and she was unable to calm it down.

The complainant explained the dog’s behavior was an alert to her oncoming anxiety attacks. She said that the dog was trained to stand in front of her, put her paws on her shoulders and nuzzle her to calm her down. Agency management’s account of the events was that the dog was not nuzzling the complainant, but jumping on her and others in the workplace, and was uncontrollable.

As a result, the agency terminated the interim accommodation, stating that the dog was too disruptive and impossible to handle in the office. The agency invited the complainant to discuss alternative accommodations, including liberal use of leave when she was experiencing symptoms, but she maintained that other than having her service dog, there was no other useful accommodation.

The agency denied her request to keep the dog in the workplace, so she filed a complaint and the FAD found for the agency. On appeal, EEOC looked at the facts and said the agency was not obligated to allow the service dog in the workplace because the complainant “failed to provide evidence to adequately establish the need for the presence of her dog in order to assist her in performing [her] essential functions.”  EEOC also said they “cannot reasonably conclude that the Agency’s decision to terminate its trial approval constitutes an unlawful failure to accommodate.” Kathie N. v. VA, EEOC No. 2019003312 (Sep. 22, 2020).

So remember, if an employee wants to bring a service animal into the workplace, having a disability is not enough. The employee must establish the need for the specific use or presence of the service animal as accommodation, and that no other accommodation would be effective. For more on this, join us for the session Barking Up the Wrong Tree? Service and Therapy Animals in the Workspace, part of Emerging Issues in Federal Employment Law, April 28. [email protected]

The Good News: OPM is Back (I Think)!

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By Ann Boehm, April 20, 2021

A mere two years ago, a move was afoot to abolish the Office of Personnel Management. You know, OPM – the entity created by the Civil Service Reform Act of 1978 that “serves as the chief human resources agency and personnel policy manager for the Federal Government.”

At the time, I wrote an article suggesting that abolishing OPM might not be a bad thing. I reflected on a time, early in my career in the 1990s, where one could call OPM experts and get outstanding advice. And I reflected on how that greatly changed by the end of my career in 2018. OPM stopped being the go-to entity for Federal personnel advice, particularly in the area of hiring federal employees.

Not to bore those of you who read the article then, but my anecdote is worth mentioning again.

I could not fill an Employee Relations Specialist position. Two years of advertising the position resulted in no hires. I went to OPM’s website to see if there was anything there that could help me. The website highlighted OPM’s hiring reform concept. I was prepared to be the manager who could be creative and hire more effectively.

I wrote an email to the address on OPM’s website. Instead of getting some legitimate guidance from OPM, the OPM contact forwarded my email to the Human Resources Director for my agency and indicated that I needed help. I was mortified. What OPM did not only failed to help me, but also embarrassed me with my agency, just for trying to think outside the box.

In 2019, the Trump Administration proposed moving OPM to the General Services Administration and the Office of Management and Budget. Congress placed that action on hold and commissioned a study by the National Academy of Public Administration (NAPA) on the wisdom of this proposal. The findings of that study, issued in March, recommended against dismantling OPM. Elevating Human Capital: Reframing the U.S. Office of Personnel Management’s Leadership Imperative, National Academy of Public Administration, March 2021 (NAPA Report).

The study also highlighted years of OPM failures, particularly failing to provide greater flexibilities to hire. It noted the constant turnover at OPM – from the position of Director on down through the ranks. And it stated emphatically that OPM needs to “focus on strategic human capital management and performance.” NAPA Report at p.22.

Now for the good news. Even before the issuance of the NAPA Report, the current administration signaled support for the mission of OPM.

Just a few days after the Inauguration, on Jan. 25, the Biden Administration identified a new OPM leadership team. On Feb. 23, 2021, President Biden nominated Kiran Ahuja to be OPM Director. Her nomination is pending in the Senate. OPM has been without a Senate-confirmed Director since Dale Cabaniss left abruptly in March 2020, and leadership is important.

Most recently, on April 9, OPM indicated it is ready to improve its management of human capital. It launched the Federal Workforce Competency Initiative (it even has an acronym, FWCI, which we know is a big deal in the Federal government!) to Build Stronger Federal Workforce Capability.

The first phase of the FWCI will be a survey of Federal agency employees and supervisors. The purpose of the survey is to identify competencies and tasks relevant to Federal jobs. Hmmm. Sounds like a good start (and yes, I know, OPM has done stuff like this in the past to no avail. But I’m always hopeful).

Here are some more good signs. We know that OPM worked quickly to issue guidance to agencies on the implementation of Biden Executive Order 14003. I’m also hearing that OPM is happily taking phone calls and providing advice.

Folks, this is a big deal. The Federal workforce is essential to this country. Agencies need support managing the workforce – from hiring to firing. OPM is supposed to help. And maybe, just maybe, help is on the way.

Think good thoughts, my friends. I’m looking forward to a renewed and improved OPM that can result in a better Federal government for all! That would be Good News! [email protected]

Being a Member of Protected Class Is Not a Free Pass to Harass Others

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By Meghan Droste, April 20, 2021

It’s hard to believe it’s been more than a year since I’ve been able to teach a class in person. I’m so grateful that we live in a time when technology makes it possible for us to continue teaching and learning in a virtual environment. Even in this past year of dramatic changes, there have been a few constants — my cat still demands treats regularly, the weather in New England remains unpredictable (I’ve received reports from friends that it is snowing there today, and yes, it’s mid-April as I write this), and many people still have questions and concerns about holding an employee accountable when there is the possibility the employee might file an EEO complaint.

I get the hesitation. Who wants to invite a complaint, and the time and effort it requires to respond to one, if there is a way to avoid it? That’s an understandable concern. But as a recent Commission decision reminds us, not holding an employee accountable can lead to consequences as well. In Zora T. v. Department of Justice, EEOC App. No. 0120171654 (Mar. 23, 2021), the complainant alleged that a coworker harassed her repeatedly based on her sex.  The harassment included following the complainant in what multiple employees perceived as a stalking manner, physically blocking the complainant from leaving a room, repeatedly invading the complainant’s personal space, and grabbing the complainant from behind and lifting her off the floor in a “bear hug.”  The agency verbally reprimanded the coworker and proposed a five-day suspension that it mitigated to one day. Despite this, the harassment continued. The complainant’s supervisor testified that management was afraid to discipline the coworker because she served as the LGBT Program Manager.

The case was before the Commission on an appeal from the administrative judge’s grant of summary judgment in the agency’s favor.  The Commission noted that summary judgment was not appropriate in part because there was a dispute of fact as to whether the agency took appropriate corrective action against the coworker. From the facts presented in the decision on the appeal, it seems clear that the agency’s actions were not sufficient to avoid liability, if for no other reason than that the harassment continued. While management may have been concerned that the coworker would have filed a complaint of sex discrimination if they took more severe disciplinary action, that concern does not change the agency’s obligations to the complainant. Regardless of whether the harasser might subsequently file a complaint, an agency still has an obligation to take prompt and effective corrective action when it learns of harassment.

Sometimes, despite your best efforts, employees will file EEO complaints. That’s their right and there is nothing inherently wrong with that. What is wrong is failing to act simply because you are concerned that a harasser will file a complaint if you hold her accountable. [email protected]

Director of EE Oh No: When HR Practitioners Fail to Perform Part III

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By Barbara Haga, April 20, 2021

This third column will focus on how discipline might fit with the situation described first in the February column.

Just a quick recap: An IG investigation resulting from an OSC complaint found that the head of the EO Office at an Air Force Base had “… actively discouraged employees from filing EEO complaints, improperly modified and rejected EEO complaints and allegations, provided false and misleading information about the EEO process, and failed to identify conflicts of interest by management during the EEO mediation process.”

As a result of the OSC action, the Air Force reassigned the EO Officer to another office with no involvement and influence over EEO filings and issued a Letter of Counseling.

Let’s look at performance errors handled through conduct procedures.

Performance Errors and Conduct

As noted last month, there is nothing mentioned in any of the documents posted on the OSC website that indicated the EO Officer gave this bad advice for some nefarious reason or received any benefit from doing so. I read the report to say that the person believed that her actions were proper. She was wrong. These are terrible errors. When there are performance errors, we might think of performance procedures as the proper remedy. However, sometimes a performance approach doesn’t make sense. The risk of allowing the person to continue to perform the work after discovery of such errors in my mind is unacceptable.

Performance errors don’t have to be intentional to be actionable under conduct procedures.  Negligence and failure to follow procedures are types of charges that might be used when performance errors are so serious that the agency would find a performance opportunity period intolerable. I wrote a series of columns on this topic in September, October, and November 2017.

752 Cases and Performance Errors

The cases I discussed in the prior columns dealt with actions that, for the most part, threatened people’s safety and well-being. All resulted in removals. One was a paramedic who failed to check the drug box to make sure it was properly filled and secured before departing for the day.  Unfortunately, later that day, she needed a drug that should have been usable but wasn’t there. Providence intervened because another truck had responded to the call and their drug box was intact so the drug could be administered to the patient. In this case the paramedic had prior discipline for failure to follow procedures. Publicover v. Navy, DC-0752-15- 0003-I-1 (2016) (ID).

A second case involved a VA technician who did not properly sterilize instruments even after being recently counseled about proper procedures. The problem here should be obvious to all – the danger of infection through use of dirty instruments. The instruments that were not properly sterilized made it all the way into an operating room before they were discovered. The VA had to discard $1,000 worth of supplies that had been exposed to the dirty instruments, and there was a delay in being able to perform the surgery.

The Board decision includes an interesting discussion of remorse and potential for rehabilitation in this type of circumstance. Mr. Williams was very sorry, but that didn’t convince the Board to allow the AJ’s mitigation to stand. Williams v. VA, 94 FMSR 5623 (1994), affirmed without opinion Fed. Cir. October 18, 1995.

In Hunter v. Navy, DC-0752-11-0325-I-1, (2011) (ID), a police officer was removed for failure to follow procedures related to responding to a call. He was not dispatched to respond to the scene and the situation was not an emergency (high probability of death or serious injury) under their procedures. Hunter responded using lights and sirens, which was also against established procedures. In the process, his vehicle was involved in an accident and totaled.

Negligence and Similar Charges

Negligence is a subset of poor performance. Negligence in performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Board decisions tell us that where an act of carelessness or negligence results, or could result, in serious injury, a more severe penalty may be warranted.

Similarly, charges of failure to follow established procedures or careless workmanship could also result in severe penalties. Many actions that Federal employees perform from law enforcement work to medical treatment have horrible consequences if not performed correctly. But what about jobs that have legal responsibilities?

What happens when an employee fails to follow a law that applies to her assignment?  What if the person has the proper training but still fails to uphold the provisions of that law? What would happen if a contracting officer failed to follow contract law in awarding a contract?  What if an NLRB employee failed to enforce labor law in a case involving a private sector company or an FLRA employee failed to enforce 5 USC 71 in a Federal agency case?  What if a budget officer violated appropriations law in approving use of funds? Assuming we could prove that the law was violated, I think that most of us would come to the conclusion that there would be serious consequences.  

According to the OSC press release, this Air Force EO Officer was found to have “… improperly and unlawfully handled complaints involving sexual harassment and discrimination.”

Does such a finding warrant disciplinary action? I believe an argument could be made that it does. When I first read an article about this case, I thought I was reading about an actual removal not a reassignment. I certainly didn’t expect to read about issuance of a letter of counseling.  What purpose did that serve? If the person was no longer in the position and had no involvement in EEO work, how could she repeat the infraction?

There are cases where an HR official has been disciplined when that individual failed to carry out responsibilities properly. There are several OSC cases where HR officials violated veterans’ preference and were disciplined.  A GSA GS-15 HR director was removed for fabricating three discontinued service retirements Hathaway v GSA, DA-0752-92-0689-I-1, (1993). The answer this time, however, was different. C’est la vie.

Opening Up the Damns About Supervisor Rules and Return to Physical Workplace

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By Dan Gephart, April 20, 2021

I was moderating one of the recent webinars in our Supervisory Webinar Series (there are still a lot of great sessions left and you can still register) when FELTG President Deborah Hopkins was discussing the Five Elements of Discipline, specifically establishing legal and valid rules.

“Legally, a supervisor can establish a rule that you can’t say damn in the workplace,” Deb explained.

It’s a good thing I was on mute. If not, attendees would’ve heard me say “Damn right!,” thereby disrupting the presentation, while also breaking the example rule that Deb had just described. Why the overreaction? That “no damn” rule is the first one I would decree as a supervisor. It’s not that I’m prudish. I don’t curse much myself, but it’s not an issue for me if others do, as long as it’s not excessive.

During college, I spent  many hours working in the warehouse of a freight shipping company. I don’t want to name the specific company, other than it’s named after a color and it rhymes with “hello.”

I was promoted from loading the trucks to something called Swak Clerk. I and another young man would scan the boxes before they made their way down the conveyor belt, into a loader’s pile and onto a truck. I was eager to meet the performance standards set for me. Yet, I found it difficult because every few minutes, I’d hear someone scream my name in a very urgent manner.

I’d stop scanning and holler: “What?” This would eventually lead to someone else saying: “What?” After further back-and-forth yelling over loud warehouse noises, I’d realize that nobody called my name. A truck loader had only screamed “Damn!”

These continuous interruptions made it hard to keep up with the performance standards. Things were much worse for my fellow Swak Clerk, who dealt with the exact same problem. His name was Buck.

You can understand why I’d embrace the “no damn” rule. But these kinds of rules have been absent over the last dozen or so months. During that time, employees have worn sweatpants, worked in bed, eaten whenever and wherever they wanted, yelled at their kids, and walked their new dogs during the workday. They’ve done a lot of things they’re not going to be able to do once they return to the physical workplace. Readjusting to unique workplace rules is going to be a little challenging.

The concept of supervisor’s rules is such a basic principle, there isn’t a foundational case that specifically addresses whether small rules set by supervisors are OK.

There were a few cases where supervisor’s rules were questioned, but those cases were adjudicated for completely different reasons. (Safe must be locked at all times when not in use – Chavez v. DVA, 120 MSPR 285 (2013)) (Leave office lights on during work hours – Mogil v. Dep’t of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019)) (Men must wear neutral pants but women may wear pants of any color – Shedd v. FAA, EEOC No. 0120073132 (2007)).

The general authority to run the workplace the way a supervisor sees fit comes from 5 USC 301-302:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. [Emphasis added.]

If you’re a fellow “Dan” or “Buck,” hard of hearing, or someone who hates mild profanity and you’re looking for more guidance, you should read Pinegar v. FEC, 2007 MSPB 140.

In that case, a GS-12 attorney with a discipline-free record was removed based on two charges: Disruptive Behavior (two specifications) and Making Inappropriate Remarks (seven specifications, including referring to his supervisor’s writing as “crap,” making unseemly accusations, and using a sarcastic or intemperate tone).

The agency had issued “four express warnings” and the employee still did not correct his behavior, so the agency proposed removal, which the MSPB upheld.

For more guidance on rules and everything else involving accountability, register now for UnCivil Servant: Holding Employees Accountable for Performance and Conduct held over two half-days on May 19 and 20. [If you have new supervisors, this course fulfills OPM’s mandatory training requirements for new supervisors. Also, registrants for both days will receive a copy of the textbook UnCivil Servant: Holding Federal Employees Accountable for Performance and Conduct, 5th Ed., by William Wiley and Deborah Hopkins.]

Basically, if your rule makes sense and it doesn’t run afoul of any law, you’re good. But in the coming months, as your employees reacclimate themselves to their old workspaces, you might want to ease up a little on any rules that are more onerous than useful. [email protected]

Tips From the Other Side: Employee Responsibility and Religious Accommodation Requests

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By Meghan Droste, April 20, 2021

Welcome to the latest installment of our discussion of religious accommodations. So far, we have looked at various obligations agencies have when processing requests for accommodations, namely what an agency needs to prove in order to successfully defend against a failure to accommodate claim, and when agencies should not ask for more information or question the need for an accommodation.  This month, we’re going to take a look at part of what an employee needs to show in order to prove an entitlement to an accommodation.

When requesting an accommodation, an employee must point to a religious practice or belief that conflicts with a work requirement (think back to our February discussion of EEOC v. Consol Energy, Inc. and Mr. Butcher’s belief that using a hand scanner would violate his religious faith regarding the Mark of the Beast). One key component to this is the employee providing enough information to show that a religious practice is actually part of the employee’s belief — in other words, that not being able to engage in the practice would violate the employee’s sincerely held religious beliefs.

As the Commission has explained, an agency is not required to provide accommodations for a voluntary activity that is connected with religion. For example, in Nesbitt v. U.S. Postal Service, EEOC App. No. 01996248 (Sept. 19, 2000), the complainant sought changes to his schedule  to accommodate attending church services on Sundays, a teaching service on Wednesdays, and choir practice on Thursdays. The Commission upheld the administrative judge’s conclusion that the teaching service and choir practice “were more akin to ‘extra-curricular’ activities than fundamental tenets or obligations of faith.” Therefore, the agency did not have an obligation to provide accommodations for those activities. As the Commission explained, for the purposes of accommodations, there is a distinction between “a church member’s belief in the tenets of the religion” and participation in activities, like religious study or choir practice, that occur “as a desire of the participant.”

This does not mean, however, that the only activity an agency must accommodate is attending services. In Yau v. U.S. Postal Service, EEOC App. No. 07A50063 (May 24, 2006), the complainant requested leave to attend a Buddhist conference. The agency denied the request, stating that it was an “optional religious activity,” and, therefore, it did not have a duty to provide an accommodation for it. The Commission upheld the administrative judge’s finding of religious discrimination. Although a conference might appear to be similar to other “optional” activities, the record demonstrated that the complainant considered attendance at the conference to be a mandatory part of his religious practice. As the Commission noted, the complainant testified “regarding the commencement of his multi-year training to become a Buddhist Temple Master and Service Man and noted that his attendance at the conference was required of participants in the training program and those who maintained a temple in their home, which complaint and his wife did.”

What does all of this mean for agencies? As always, you should handle requests for accommodations on a case-by-case basis. While the employee needs to show that the activity in question is required and not optional, the agency should not jump to conclusions or make assumptions just because an activity is something other than attending services. [email protected]

New ARPA Presumption Expands Federal Workers’ Comp Coverage

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By Frank Ferreri, April 20, 2021

The one constant that has emerged in the COVID-19 era is that things will change, and such has been the case with Federal workers’ compensation coverage.

Early on in the pandemic, the Office of Workers’ Compensation Programs made it easier for certain federal employees to establish that their exposure to coronavirus was work-related without going through traditional requirements on producing evidence.

With the American Rescue Plan Act of 2021 now in effect, Congress has followed OWCP’s lead, and declared that a federal employee who is diagnosed with COVID-19 and carried out duties that required contact with patients, members of the public, or coworkers, or included a risk of exposure to the virus during a covered period of exposure prior to the diagnosis, is deemed to have an injury that is proximately caused by employment.

Under the law, employees who are “exclusively teleworking” don’t enjoy the presumption of coverage, and it’s up to the U.S. Department of Labor to specify what the “covered period of exposure” is.

In the meantime, OWCP has advised in guidance that federal employees should be aware that:

  • Any COVID-19 claim filed under the Federal Employees Compensation Act that was accepted for COVID-19 prior to March 12, 2021, is not impacted because coverage for benefits has already been extended.
  • Any COVID-19 claim filed under FECA that was denied or withdrawn prior to March 12, 2021, is eligible for review under the new eligibility requirements.
  • Any COVID-19 claim filed under FECA on or after March 12, 2021, will be reviewed solely under the new eligibility requirements.

OWCP explained in the guidance that if employees previously filed a COVID-19 claim under FECA that OWCP denied based on a lack of exposure or lack of medical evidence establishing a causal relationship between the job and the infection, they can expect to hear from OWCP by around the end of April.

For employees who have never filed a COVID-19 claim under FECA but believe they have contracted COVID-19 from federal employment, it’s necessary to file a CA-1 through the Employees’ Compensation Operations and Management Portal.

Employees who previously filed a COVID-19 claim under FECA that was accepted can expect no change and need not take further action. [email protected]

The Performance Equation Adds Up To Better-Prepared Supervisors

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By Anthony Marchese, April 20, 2021

Most organizations do a great job developing strategy and working with divisions and departments to cascade goals to employees. Yet, the vast majority of supervisors seek support to help employees translate their goals into actionable results.

In many instances, the ability of an employee to successfully meet her goals requires learning new information, developing new or enhancing existing expertise, and having a mechanism in place to track her progress.

Opportunities for professional development and career advancement remain a primary driver in choosing and staying with an employer. Employees seek a work environment that is committed to their growth. They also want an environment that helps them develop a measurable strategy to reach their desired destination.

According to recent Gallup studies, 50 percent of employees do not know what is expected of them on a day-to-day basis. More than 70 percent report not having mastered the necessary skills to successfully do their job. We can do a better job preparing our supervisors!

The Performance Equation© considers the multidimensional nature of human performance. Performance is driven by the role Meaning, Mindset, Mastery, Malleability, and Measurement play in helping:

  • Assess one’s current state
  • Plot one’s desired state.
  • And develop a strategy with measurable goals to ensure that clarity, competency, and capacity exists to effectively execute job responsibilities.

Employees can execute their jobs when they have a clear awareness of expectations, and either have the necessary skills or are in the process of developing them. It’s also critical that the capacity for continual learning is present to ensure ongoing relevancy.

Learn the Performance Equation© to:

  • Equip leaders with tools to better understand what matters most to employees and how to align the mission and values of the so employees know how they fit into the “bigger picture.”
  • Examine the intimate relationship between one’s mindset and behavior. Mindset drives how individuals respond to performance feedback, confront difficult situations, handle ambiguity, respond to failure, and take on new tasks.
  • Integrate the latest research-based practices in adult learning, neuroscience, and human motivation theory to help supervisors understand how to assess current capabilities and what to do to help support growth.
  • Embrace the fact that diverse teams are better teams. However, without an inclusive, non-threatening approach to understand, celebrate, discuss, develop, and leverage behavioral differences, teams are likely to encounter greater misunderstanding, poor collaboration, and be impaired due to crippling conflict.
  • Establish a clear understanding of where one is currently in their career or skill development and introduce a path forward creating goals that are driven by experiences that are proven to be most impactful.

I’ll be presenting the virtual training The Performance Equation: Providing Feedback That Makes a Difference on May 27 from 12:30-4 pm.

I hope to see you there. [email protected]

And Now a Word With … Marcus Hill

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By Dan Gephart, March 29, 2021

As the former Senior Executive Advisor for the Federal Law Enforcement Training Centers, Marcus Hill (pictured at right) knows a lot about training. When it comes to determining whether training is going to be effective, he recalls something one of his mentors Dr. Phil Callicutt once told him: “Marcus, you have to believe in the song and the singer.”

“I believe the same is true related to determining if so-called leadership training will be effective, hence ‘the song.’ I believe you have to start by assessing the credentials, credibility and reputation of the developer and the delivery of the training, hence ‘the singer.’”

FELTG Nation, we’re pleased to introduce you to our newest singer.

Marcus Hill retired earlier this year, ending a distinguished 37-year federal career that included stints with FLETC, the United States Air Force, the Department of the Navy, and the Transportation Security Administration, where he was instrumental in establishing the TSA infrastructure and screening operations at Jacksonville International and Gainesville Regional airports.

Marcus served an active-duty tour with the US Air Force, and retired from the USAF Reserves in 2007. His honors include a 2017 Presidential Rank Award for Meritorious Service, the 2014 Department of Homeland Secretary’s Under Secretary for Management Partnership Award, DON Civilian Meritorious Service Medal, and USAF Meritorious Service and Commendation Medals.

He is currently the Principal of Hill Management Consultancy LLC, a minority, veteran-owned small business. And he serves on the Senior Executives Association Board of Directors.

You’ll have the opportunity to see Marcus during FELTG’s upcoming Emerging Issues in Federal Employment Law virtual event. Marcus will co-present with FELTG President Deb Hopkins the session “When Employees Go Insubordinate: Don’t Mess With the Wrong Elements” on Tuesday, April 27 from 3:15-4:30 pm.

Recently, Marcus and I had a chance to discuss some of FELTG’s favorite topics — leadership, accountability, and labor relations.

DG: What is a key component of effective leadership that is often overlooked?

MH: Empathy; good leaders must exhibit the capacity for empathy. Effective leaders must have the ability to understand others’ thoughts and feelings from their points of view (insead of) the leader automatically overlaying hers/his. My former boss and good friend, Paul Hackenberry, emphasized this with me. He often says, “You don’t get to decide how others feel.”

DG: What lessons, advice or experiences from your Air Force career had the most impact on your federal civilian career?

MH: I credit the Air Force for developing my teaming skills and providing great opportunities to demonstrate them, in both follower and leader roles. Secondly, the Air Force provided my first significant exposure to strategic planning. It emphasized the importance and value of inculcating this process into your organizational DNA to ensure its long-term sustainability and continued relevance. These two experiences/attributes carried over into my civilian career and positioned the organizations in which I served to enjoy many successes.

DG: The pendulum has swung back to a pro-union Administration. What’s the best way for agency labor relations professionals to carve out a positive working relationship with unions? 

MH: Pro-union administrations really allow and expect labor relations professionals to actively engage and include union officials, representing bargaining units, in the planning and execution of their agencies missions. The belief is promoting and leveraging a partnering relationship will result in less labor-management turmoil, and more opportunities to achieve organizational wins through unity of efforts. The best way to carve out a positive working relationship with unions is “to seek to understand before being understood.” Create expectations to share appropriate pre-decisional information, exploit opportunities to dialogue in advance of making unilateral decisions and collaborating to achieve mutually desirable results which satisfy the mission and lion share of people that perform it.

DG: What do you suggest for supervisors and/or leaders who are having a difficult time navigating change?

MH: Actively engage change, don’t run from it. Change is consistent and here to stay. I view change as a process consisting of various phases – shock, denial, acceptance, plan, execute and overcome. The easier you can get through the first two phases, the quicker you can get to identifying and achieving the opportunities presented in the change. There are always opportunities in the change.

DG: What do you think is stopping supervisors from holding their employees accountable for performance and conduct?

MH: Two reasons. The first is supervisors not having a good understanding of the governance related to poor performance and misconduct, and their authorities within laws, regulations and policies. The second is supervisors not feeling comfortable that the institution will support them in holding employees accountable. Therefore, they take on the mindset it’s too hard and risky to pursue. That is why it is critically important to ensure all institutional managers and supervisors are knowledgeable and properly trained to carry out their duties in this space.

DG: What’s your favorite part of teaching/presenting?

MH:  My favorite part of teaching/presenting is hearing from former students/participants on how they were able to apply the learning objectives to achieve desired results. I also like to observe the facial expressions when they “get it” during the training session.

Mr. Hill teaches on numerous FELTG topics, including Leadership, Labor Relations, Employee Relations, and EEO. If you’d like to bring Mr. Hill to your agency (onsite or virtually) for training, contact me at [email protected].

Say Goodbye to 40 Years of Case Precedent: Agencies Must Justify PIPs

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By Deborah Hopkins, March 16, 2021

For the past 20+ years, we have taught a principle in performance cases that has been around since the beginning of the Civil Service Reform Act: An agency does not need to justify putting an employee on a performance demonstration period, what we at FELTG now refer to as a DP, formerly known as a PIP. In teaching that well-established principle, we relied on the statute (5 U.S.C. 4302-4303), relevant OPM regulations, and a number of foundational MSPB cases, such as  Wilson v. Navy, 24 M.S.P.R. 583 (1984); Wright v. Labor, 82 M.S.P.R. 186 (1999); and Clifford v. USDA, 50 M.S.P.R. 232 (1991).

Imagine our surprise last week when the Federal Circuit issued a decision that said an agency must have substantial evidence that the employee was performing poorly BEFORE it is allowed to put an employee on a PIP. Santos v. NASA, No. 2019-2345 (Fed. Cir. Mar. 11, 2021).

Not long after beginning work for a new supervisor, the appellant (Santos) was placed on a 45-day PIP, and given 11 deliverable assignments. His supervisor met with him to discuss his progress and give him feedback on his work product. The supervisor ultimately determined that Santos’s performance on the deliverables was unsatisfactory, so she proposed removal for unacceptable performance, and the deciding official concurred in the penalty.

Santos appealed and claimed, among other things, that he was mistreated because of his military service, and that work he did not perform while he was on military leave was unfairly used to assess his performance. Part of his appeal included a claim that he should never have been put on a PIP in the first place, something the Board AJ did not address because the matter was well-settled in  MSPB case law: “[A]n agency is not required to prove that an appellant was performing unacceptably prior to the PIP.” Wright v. Labor, 82 M.S.P.R. 186 (1999). On review of the Board’s case, the Federal Circuit said:

The Board has held that … an agency [is not required] to prove that an employee was performing unacceptably prior to the PIP in order to justify a post-PIP removal. See Wilson [supra] … (finding “no statutory or regulatory basis” to require an agency to establish appellant’s unsatisfactory performance prior to the PIP1). The Board has consistently applied this interpretation to PIP removals.

Yes, this is as old as time, in our business. But here’s where things change:

We have not directly addressed the question of whether, when an agency predicates removal on an employee’s failure to satisfy obligations imposed by a PIP and that removal is challenged, the agency must justify imposition of a PIP in the first instance under 5 U.S.C. § 4302, though we have discussed the general relevance of pre-PIP performance to a PIP removal. See Harris v. Sec. & Exch. Comm’n, 972 F.3d 1307, 1316–17 (Fed. Cir. 2020). Today we confirm that the statute’s plain language demonstrates that an agency must justify institution of a PIP when an employee challenges a PIP-based removal. [bold added]

The Federal Circuit arrives at this by focusing on the 5 U.S.C. § 4302(c)(6) requirement that agencies remove, reassign or demote employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. That opportunity period is the DP/PIP. That’s not new. But then:

To “continue to have unacceptable performance” during the PIP, as the statutory text requires, an employee must have displayed unacceptable performance prior to the PIP. Under the plain meaning of the statute, then, an agency must defend a challenged removal by establishing that the employee had unacceptable performance before the PIP and “continue[d] to” do so during the PIP. [bold added]

Santos also relies on discussion in the notice of proposed rulemaking for OPM’s recently amended regulation at 5 C.F.R. § 432.104, which says agencies are not relieved “of the responsibility to demonstrate that an employee was performing unacceptably – which per statute covers the period both prior to and during a formal opportunity period – before initiating an adverse action under chapter 43.” More from the court:

Confirming an agency’s obligation to justify initiation of a PIP where the PIP leads to removal is particularly appropriate, moreover, in situations resembling Santos’s, where an employee alleges that both the PIP and the removal based on the PIP were in retaliation for protected conduct. Otherwise, an agency could establish a PIP in direct retaliation for protected conduct and set up unreasonable expectations in the PIP in the hopes of predicating removal on them without ever being held accountable for the original retaliatory conduct. Indeed, these are the circumstances in which the issue of pre-PIP performance would be most relevant.

We used to teach that as long as an agency could articulate the reason for poor performance, they could put an employee on a PIP, and the employee could not challenge the placement on a PIP. So, where does that leave us, post-Santos?

What’s New:

  • Agencies must have substantial evidence of poor performance in order to justify putting an employee on a PIP.
  • The decision about how to justify the PIP is up to the agency, so documentation of the reason(s) the supervisor begins the PIP should suffice. That’s something we at FELTG have always taught supervisors to do, in case they ended up defending against a reprisal complaint at some point in the future. But a big question lingers: is that enough?
  • The Federal Circuit does not prescribe any particular evidentiary showing with respect to the employee’s pre-PIP performance, but the emphasis is on continued poor performance. So how long is long enough, before implementing a PIP?
  • The burden is on the employee to prove that the motive for imposing the PIP was discriminatory.

What’s Still the Same:

  • “[A]n employee may not seek review of the decision to implement a PIP at the time it is instituted, either at the Board or otherwise.”
  • The institution of the PIP satisfies the notice component of 5 U.S.C. 4303.

Go ahead and absorb that. It changes 40-plus years of precedent. It’s completely doable, and we’ll explain exactly how to do so during MSPB Law Week later this month, or on May 11 at 11 am ET when we present Justifying Your PIP? What the Precedent-Breaking Fed Circuit Decision Means.

And before I go, let me just say this: some of the facts in this case don’t look good for the agency – the actual administration of the PIP was fine, but the proximity of certain management actions to Santos’s military service should be scrutinized. The Federal Circuit remanded the case back for a Board determination about whether Santos was the victim of reprisal under USERRA, so we don’t have an answer on that yet. But regardless of the outcome, we appreciate his service. [email protected]