Supervisor Survival Series: Let the Whistle Blow

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Monthly Observations, Guidance, Tools, and Tips to Make Your Job Easier

March 19, 2020

Over the past few months, we have seen an uptick in media coverage about federal employees who blow the whistle, then accuse the agency of illegal reprisal in the wake of the whistleblowing. While we know that not everything in the media is reported as accurate, there is truth to some of these claims, and as a result are a few of takeaways that supervisors should remember:

  • Federal employees are permitted to make public disclosures of waste, fraud, and abuse in the federal government, and the law protects them from illegal reprisal.
  • Even if you don’t like what the employee discloses, if it is protected under the Whistleblower Protection Act and Whistleblower Protection Enhancement Act, it is illegal for you to treat the employee adversely as a result of the disclosure.
  • If your agency chooses to take an action against a whistleblower (for example, discipline, performance, reassignment) then the action cannot be motivated by the whistleblowing or be issued because the person is a whistleblower. The required burden of proof in taking an action against a person who happens to be a whistleblower is clear and convincing, which is a much higher burden than typically needed in workplace actions.

The Good News – Investigations are the Fun Part!

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By Ann Boehm, March 19, 2020

Unless you’ve been hiding under a rock for the last 30 years, chances are that at some point you have watched an episode of Law and Order. (And if you haven’t seen an episode, I’m pretty sure there’s one playing on some channel at this very minute.)

To run for three decades, the show must be onto something, and it is. The format. After the crime is discovered, the first half hour is devoted to an investigation by the detectives. The second half focuses on the criminal trial.

Personally, I generally lose interest once the detectives are done. The investigation part is much more interesting than the trial part. (Perhaps becoming an attorney was a bad idea for me.) The investigation part is also the most important.  If the detectives don’t do their job right, the lawyers can’t do their job and convict the bad guys.

This is true in the world of federal misconduct. A good investigation makes all the difference.

So, if a good investigation makes all the difference, why do I so often get blank stares at training sessions when I ask, “Who is responsible for investigating misconduct?” That concerns me. It may indicate a couple of issues: The people who do the investigating are not properly trained (because no one knew they were supposed to be the ones investigating); or, even worse, the agencies aren’t investigating the misconduct properly before disciplining employees.

When I teach our Investigations course, I always emphasize that the point of investigating is to find the facts, not “get” the employee. Employees who allegedly engaged in misconduct should want the matter to be properly investigated.

In my experience, a lack of investigation can result in improper discipline, and a good investigation can clear an innocent person. And of course, a good investigation will support proper disciplinary action so that the agency will prevail in any grievance, arbitration, or EEOC or MSPB litigation.

Here are two anecdotes. I have a friend who was accused of having improper contact with a contractor. She received a letter of reprimand.  No one investigated the alleged misconduct – they just issued the letter. She grieved it and demonstrated she did nothing wrong. It put her through tremendous angst and a lot of effort to clear herself after the issuance of the reprimand. The agency had to spend time considering a grievance and ultimately rescinding the letter of reprimand. A good investigation beforehand would have saved the agency time and effort and the employee stress.

In another instance, I had a friend accused of pretty serious criminal misconduct. Fortunately, the agency conducted a top-notch investigation and quickly determined there was no misconduct. The people making the misconduct allegations were misinformed. The employee was cleared.

The detectives on Law and Order have a harder job than agency misconduct investigators.

First, they have to get enough evidence to meet the criminal burden of proof – beyond a reasonable doubt. The burden of proof for federal administrative cases is preponderance of the evidence or “more likely than not.” The federal administrative investigator also is not bound by the many constitutional restrictions and rules of evidence that often doom the Law and Order investigations.

But investigations must be done, and they must be done correctly.

A note to agencies: Make sure you have policies that address misconduct investigations. Make sure it’s clear who is to conduct those investigations. And make sure the investigators know how to investigate.

Investigations are the fun part. They will either assist the agency with proper discipline or clear a wrongly accused employee. Wouldn’t you rather be Detective Lenny Briscoe than District Attorney Jack McCoy? And if you are Jack McCoy, don’t you want the talents of Lenny to help you get the best information for your case?

Good investigations benefit all! [email protected] 

You and What Army?

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By Meghan Droste, March 19, 2020

Way back in January 2018, which feels like a lifetime ago at a time when every day brings at least 20 urgent news alerts and many more times as many things to worry about, I wrote my first article for this newsletter. I discussed the Commission’s decisions in a case in which the agency repeatedly refused to comply with orders from OFO.  (The decisions are in the Selene M. v. Tennessee Valley Authority case, Appeal No. 0720150024, Request No. 0520170121, and Petition No. 0420170027, if you’re curious.) The agency repeatedly explained why it was not complying with the Commission’s orders, and the Commission repeatedly told the agency to do it anyway.

When I bring this case up during classes, I get questions about the Commission’s ability to enforce its decisions. After all, the Commission, like other judicial bodies, can only do so much when it tells a party what to do (or not do). The Commission has no army to compel agencies to comply. Does that mean agencies get a free pass?  Not quite, as we can see in the recent decision in Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020).

The administrative judge found in the complainant’s favor and ordered various types of relief.  The agency appealed the characterization of backpay as pecuniary damages.  The Commission agreed, holding that back pay was equitable relief, and ordered the agency to comply with the order and file documentation outlining its compliance.  All of that took place in 2015.  By June 2016, six months after the Commission’s decision, the agency had failed to file any documentation or respond to the Commission’s requests for evidence of compliance. As a result, the Commission opened a petition for enforcement.  In January 2017, the Commission again ordered the agency to comply and submit documentation.  The agency again failed to respond, resulting in the February decision.

Remarkably, the Commission noted in its decision that the agency failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019.  The Commission reminded the agency that failure to comply with its orders could result in any of the measures outlined in 29 C.F.R. § 16414.503, including a show cause order to the head of the agency or certification to the Office of Special Counsel. It then ordered the agency to comply with the previous orders and provide a report with an analysis of “Agency-wide EEO reporting on compliance with EEOC orders to identify problem areas,” and a “detailed action plan setting forth how the problems identified in its analysis will be corrected, delays ended, and compliance reporting brought in accordance with EEOC regulations.”

With the Commission seemingly lacking a method to force compliance, it might be tempting to take a “you and what army?” approach.  However, as you can see from the potential repercussions, I definitely would not recommend that. [email protected]

More on Probationers: FELTG Answers Your Follow-Up Questions

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By Deborah Hopkins, March 19, 2020

In a recent newsletter, I discussed the differences between initial appointment probationary periods and supervisory probationary periods. As a result of this discussion, FELTG received some follow-up questions, including requests for explanation of more complicated scenarios involving probationary periods. So here goes.

What happens if the agency wants to remove a probationary employee for pre-employment reasons?

If a probationer in the competitive service is removed for reasons occurring after they begin work, such as a performance or conduct issue, they have no MSPB appeal rights and no right to due process, with limited exceptions. However, if a probationer is being removed for a condition that arose before they started their job at a federal agency (for example, they lied on their job application), then they are entitled to a three-step procedure that mimics due process and if this process is not followed they can appeal to MSPB that the procedural requirements were not met:

  1. Notice for the reasons why the agency is proposing the action;
  2. A reasonable amount of time to file a written response; and
  3. A written decision at the earliest practicable date, with notice of a right to appeal to MSPB.

See 5 CFR § 315.805.

Note: This three-step process does not follow the same 30-day notice timeline as a proposed removal actions for a fully vested career employee. These procedures are generally abbreviated by agency policy to be a few days at most.

Does a reinstated employee have to serve a new probationary period?

When an agency appoints an individual using reinstatement authority, the individual does not have to serve a probationary period if during any prior service that forms the basis for the reinstatement, the individual successfully completed probation. 5 CFR 315.401, 801(a); Aviles-Wynkoop v. DoD, DC-315H-16-0327-I-1 (2016)(NP).

How are temporary appointments related to probationary status?

For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days break in service between appointments. The reason for this was the theory of a Continuous Employment Contract. See Roden v. TVA, 25 MSPR 363 (1984).

A few years ago, though, MSPB changed its stance and said in order to gain MSPB appeal rights, temporary employees must have more than a year of continuous, uninterrupted employment with no break in service – not even a day or two. Winns v. USPS, 2017 MSPB 1. See also Bough v. DoI, Fed. Cir. 2018-1477, 1478 (April 5, 2019). This “current, continuous standard” for temporary employees allows them to count their work toward completion of probation when the prior service:

  • Is in the same agency,
  • Is in the same line of work (determined by the employee’s actual duties and responsibilities); and is
  • Continuous (without a service break).

5 CFR 315.802(b)

In the excepted service, prior intervals of permanent service that are separated at the time of removal by a period of temporary service do not count toward the two-year requirement, even if there is no break in service when one considers both temporary and permanent positions. Roy v. MSPB and DoJ, 672 F.3d 1378 (Fed. Cir. 2012) (employee who had 8 years permanent employment and 1.5 years permanent employment separated by an 18-month temporary appointment did not have MSPB appeal rights).

What if an employee voluntarily accepts a job with a probationary period?

There are some positions in the federal government that may require a probationary or trial period regardless of the employee’s employment history with the government. Employees have appeal rights, regardless of whether they are serving a probationary/trial period, if they have:

  • Current continuous employment (as defined above) of:
    • One year in the competitive service (excluding service in temporary positions with a duration of two years or less), or
    • Two years in the excepted service, and
    • For veterans: one year in either service.

Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999), Claiborne v. VA, 2012 MSPB 101 (August 30, 2012). 

This means that an employee in the competitive service who has completed a year of current, continuous service (not a temporary appointment) has full procedural and appeal rights even if that individual is serving a probationary period. 5 USC 7511(a)(1)(A). If the individual is in the excepted service then the full appeal rights vest after two years even if that individual is serving a probationary period. 5 USC 7511(a)(1)(C). A person eligible for veterans preference will receive full procedural and appeal rights after one year of “current continuous service in the same or similar positions” whether the veteran is in the competitive or excepted service. 5 USC 7511(a)(1)(B).

In summary, employees have two separate and distinct avenues to appeal rights:

  • Employees who have completed a probationary period have appeal rights.
  • Employees who have a year of current service prior to the termination have appeal rights.

A special note for DOD, the probationary period is two years instead of just one, so some of your timelines may have to be modified accordingly. [email protected]

Tips from the Other Side: March 2020

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By Meghan Droste, March 19, 2020

I imagine many of you are spending fair amount of time right now refreshing your online news source of choice for updates on COVID-19. There’s no doubt that this is a stressful and possibly scary time, with a lot of unknowns about how and for how long this pandemic will impact our day-to-day lives. If you are concerned, I completely understand.

In this stressful time, I want to take a moment to remind you about improper medical inquires.  In short: Don’t make them!  Slightly longer advice: Be mindful of when you can ask employees for medical information or documentation.  A global pandemic does not suspend the application of the Rehabilitation Act or the Americans with Disabilities Act, so it is important to remember that agencies may only request medical information in very specific circumstances.

Employers may only ask current employees for medical information or documentation if it is job-related and consistent with business necessity. This means that in many (but not all) circumstances, an agency may request medical documentation to support a request for reasonable accommodations. It also means that an agency cannot request medical documentation because it is curious and wants to know if an employee has a medical condition.  If one of your employees shows up with the sniffles in the next few weeks, you should not automatically demand a letter from their doctor establishing that it is seasonal allergies and not something worse.

Agencies may also request medical information when there is a concern an employee will pose a direct threat while performing the essential functions of their position due to a medical condition. Be careful with these inquiries as well. An agency may not request all medical records, just those related to the specific condition at issue, and the request must be based on an individualized assessment and on reasonable medical judgment that relies on the most current medical knowledge and/or best objective evidence. That Facebook post you just saw about the symptoms of COVID-19?  It’s not objective evidence. The musings of a health expert on TV?  Also not objective evidence.

Tread carefully out there and when in doubt, check with knowledgeable folks at your agency before asking an employee to reveal information about their health.  (Also, wash your hands!) [email protected]

Using Progressive Discipline: How Many Strikes Before You’re Out?

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By Deborah Hopkins, March 10, 2020

I spend most of my days talking about discipline. It’s a topic that I find very interesting, as do a lot of you in the FELTG Nation. In our field, of course there are a lot of boring discipline cases about the guy who is late to work or doesn’t follow an SOP and is disciplined accordingly. There are also attention-grabbing cases about employees who view pornography on government computers, urinate in mop closets, take food off inspection lines to do vulgar things, destroy government property, and on and on. If you work in federal employment law, you never have to make anything up.

One of the topics worth focusing on (and hey, there’s a webinar about this next Thursday) is progressive discipline for employees who are multiple misconduct offenders. While reprimands usually correct misbehavior, in 15-20% of cases an employee re-offends with a subsequent act of misconduct. What’s more, in 2018 the Government Accountability Office issued a report that said 25% of the 10,000-12,000 people suspended in the federal government every year have been suspended at least once previously.

Misconduct is loosely defined as the violation of a workplace rule. Discipline for misconduct is a way to correct bad behavior, or to teach the employee a lesson. Some agencies even discipline to send a warning message to other employees in order to deter future misconduct. The underlying principle in determining the appropriate level of discipline is that the penalty is proportionate to the offense. Agencies determine what’s appropriate with the guidance of the Douglas factors.

But some employees just don’t (or won’t) learn their lesson even after being disciplined, and that’s where things typically escalate. Enter progressive discipline. The general principle is “Three Strikes and You’re Out” when it comes to breaking minor rules and being disciplined in the federal workplace. This has been a widely accepted approach for longer than most of us have been alive; indeed, it pre-dates the Civil Service Reform Act and was standard in cases when we still had the Civil Service Commission. Three strikes is not a mandatory requirement, of course. Some supervisors allow employees four, five, or six strikes – or even more.

However, if an agency chooses to rely on past discipline in the Douglas factors analysis, any past, unexpired discipline at all is an aggravating factor in determining the appropriate penalty. In 2018 President Trump issued Executive Order 13839 that clarified prior misconduct for any charged offense – not just the current offense – could be relied upon in using progressive discipline. For example, a previous Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL, as would be a prior Reprimand for AWOL. This been the law for decades, but had been misunderstood in recent years.

Take a look at a few cases where agencies used progressive discipline, and MSPB upheld the removals:

  • Grubb v. DOI, 96 MSPR 361 (2004): Removal was warranted for two charges – making repeated unfounded and unsubstantiated allegations concerning her co-workers’ and supervisors’ alleged misconduct and failure to follow her supervisor’s instructions in violation of a direct order – because the appellant had received four suspensions within a two-year period. [Can I just mention that I cringe at how those charges are drafted…but that’s another article.]
  • Blank v. Army, 85 MSPR 443 (2000): A reprimand and two suspensions preceded a removal action, and the MSPB upheld the removal because the past discipline was an aggravating factor.
  • Alaniz v. USPS, 100 MSPR 105 (2005): In one year alone, the appellant received four suspensions, so a fifth offense in the same year warranted removal.

I think most FELTG readers would agree that these cases show egregious examples of repeated misconduct. I would even hazard a guess that removal could have been upheld a couple of suspensions sooner, had the agencies above chosen to go that route. However, they chose not to and under the law that is their right.

Believe it or not, though, removal is appropriate in cases of “minor misconduct” where employees have been disciplined in the past and continue to violate workplace rules. See Ferguson v. USPS, 19 MSPR 52 (1984) (When past disciplinary records indicate unreliability and a failure to comply with agency regulations, the penalty of removal does not exceed the limits of reasonableness even for cases involving minor misconduct such as “being out of the facility while on the clock without permission.”) Foundational MSPB case law tells us that the agency need not impose the minimum penalty possible so long as the penalty imposed is reasonable. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Of course, because progressive discipline is not mandatory, sometimes agencies employ the “One Strike and You’re Out” approach. Next month, we’ll look at cases where progressive discipline was not used, because it wasn’t necessary. See you then, if not before. [email protected]

And Now a Word With … OSC’s Louis Lopez

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By Dan Gephart, March 3, 2020

Louis Lopez, Associate Special Counsel, Investigation and Prosecution, Office of Special Counsel

Last week, the “Make it Safe Coalition” sent a letter to Congressional leaders with this ominous warning: The Whistleblower Protection Act “is at a severe risk of complete breakdown” and “on the verge of paralysis.”

The coalition is made up of several organizations, including the Project on Government Oversight and the Government Accountability Project, and they blamed the Senate for not acting on at least two of the three Merit Systems Protection Board nominees placed before them. Two members on the now currently member-less board would provide the quorum needed to act on the expanding backlog of more than 2,500 cases that have been piling up over the last 3-plus years.

“This means the Office of Special Counsel cannot seek stays for temporary relief against retaliation. When employees prevail after administrative hearings their victories remain indefinitely in limbo while agencies petition for review by a nonexistent Board. This is unprecedented,” the coalition wrote.

Regular FELTG Flash and Newsletter readers know how concerned we are about the lack of a quorum at the Board. The Office of Special Counsel is concerned, too, according to Louis Lopez (pictured above). As the Associate Special Counsel, Investigation and Prosecution at OSC headquarters, Lopez oversees cases brought under the Whistleblower Protection Act, the Civil Service Reform Act, the Hatch Act, and USERRA.

“Yes, OSC is concerned for a couple of reasons,” Lopez explained. “First, as Special Counsel Henry Kerner has publicly stated, without any board members at MSPB, ‘OSC is unable to fully protect federal employees who have been retaliated against or were subjected to unfair personnel practices.’

“For example, OSC is unable to obtain formal stays of problematic personnel actions from the Board at this time. Second, and equally important, MSPB reports a rising backlog of whistleblower and other federal employee appeals that cannot proceed to final adjudication until the Board has a quorum. Regrettably, these delays often cause further economic and emotional harm to whistleblowers and other federal workers who have cases pending with MSPB.”

Based on the questions we’ve been receiving from attendees at our onsite training over the last few months, there is a lot of interest and concern about whistleblower laws these days. And there is a little confusion, too.

So we reached out to Lopez for answers. Lopez has had a distinguished federal career, working for the Department of Justice, the Equal Employment Opportunity Commission, and the Federal Bureau of Investigation before moving onto the OSC. He worked in the private sector for law firms in DC and Chicago and at Washington Post Digital. Lopez has also taught advanced courses on labor and employment law at Georgetown University.

Some of the questions we received in class dealt with whistleblowers in the intelligence community. The OSC does not have jurisdiction over whistleblowers in the intelligence community, so we could not address that here. Answers to some questions are dependent on facts we don’t know, so we greatly appreciate Lopez providing this guidance.

DG: We get a lot of questions about a whistleblower’s motive. Does a whistleblower’s motive matter? What if they’re just trying to get someone in trouble?

LL: Under the statute, a whistleblower’s motives, characterized as good or bad, for making the disclosure should not matter.

DG: What if it turns out the whistleblower is wrong and there was no waste, fraud or abuse happening, they just thought there was?

LL: A whistleblower does not have to be correct about their disclosures under the statute. Rather, they must have a reasonable belief that the wrongdoing occurred.

DG: How does an adjudicator know whether or not a whistleblower has a reasonable belief?

LL: Generally, when assessing the reasonableness of the whistleblower’s belief, the adjudicator will ask whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that there exists one of the statutory types of wrongdoing. In other words, the adjudicator must determine whether a person standing in the employee’s shoes may reasonably believe, given the information available to the employee, that the disclosed information evidences one of the statutory types of wrongdoing.

DG: Can a whistleblower be guaranteed anonymity?

LL: Whistleblowers are asked to sign a consent statement on the complaint form indicating their preference regarding the disclosure of their identity or circumstances about their case. Release of information from OSC files is governed by the Privacy Act. OSC takes very seriously a whistleblower’s decision to remain anonymous and would make every effort to protect their identity.

DG: If the whistleblower chose to be anonymous, what would the penalty be for a manager exposing a whistleblower to the rest of the staff and/or agency?

LL: For prohibited personnel practice cases, the vast majority of whistleblowers alleging retaliation consent to the release of their identity because it would otherwise be impossible to obtain corrective action in those cases. Regardless of anonymity, a manager’s reaction to a whistleblower’s complaint may be evidence of retaliatory animus or, in an extreme case, even create a hostile work environment. Although rare, OSC will assess these circumstances on a case-by-case basis to determine an appropriate course of action.

[Editor’s note: OSC’s Disclosure Unit is more likely to have a higher rate of anonymous whistleblowers.]

DG: What if the whistleblower is currently on a Performance Improvement Plan, which is nearing its end. Should the PIP be put on hold? Should the PIP be considered separate? Can an agency remove a whistleblower for performance?

LL: A PIP may be considered a threat of a personnel action and, as such, is independently covered under our statute. OSC can investigate an agency’s placement of an employee on a PIP as part of a PPP case regardless of whether a subsequent personnel action occurs. Whistleblowers, like all federal employees, can be removed for poor performance. But OSC’s role in a PPP case is to determine whether an agency’s stated performance concerns about an employee are a pretext for retaliation. Our handling of each PPP case, including how to address an existing PIP, depends on the facts of that case.

DG: What is the one piece of advice you’d give an agency and/or supervisor that would most help them avoid, whether consciously or subconsciously, retaliating against a whistleblower?

LL: Actively develop a culture that treats whistleblowing as a valuable public service. Agency officials often feel defensive when a whistleblower identifies problems under their purview, which can lead to unconscious bias and retaliatory employment decisions. If employees at every level consider whistleblowing an asset to the agency, supervisors are less likely to view raising concerns as a personal attack.

[email protected]

You Can’t Be Halfway Pregnant, and Informal Discipline is Not a Thing

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By Deborah Hopkins and William Wiley, February 19, 2020

Have you ever heard this saying: You can’t be halfway pregnant   — either you are, or you aren’t? There are a number of things in life that are all or nothing, with no halfway. Either it is, or it isn’t.

One of those things is discipline. An action taken against an employee who has committed misconduct in the federal workplace is either discipline, or it isn’t. There’s no halfway. I can’t tell you how many agency policies we have seen – yes, even recently — that list the items that constitute Formal Discipline, but then have other sections highlighted as “Informal Discipline” or “Other Discipline” or, perhaps most confusingly, just Discipline. Other policies list the steps of Progressive Discipline and include items such as Counseling and Oral Reprimands. That’s another mistake and isn’t legally accurate.

Here’s what we know about the requirements for an action to be considered discipline in the federal workplace, as laid out in Bolling v. Air Force, 9 MSPR 335 (Dec. 21, 1981):

Discipline must be in writing. If a supervisor yells and screams at an employee, calls the employee all kinds of nasty names , throws a chair, slams a door, threatens to fire the employee, or anything else along those lines, that supervisor might feel like she is disciplining the employee, and indeed, the employee may even feel disciplined from the sting of those words. However, under the law, the employee has not been disciplined. Those words and gestures matter not one iota under the law. If it isn’t in writing, it isn’t discipline. (It’s definitely bad management, but we’ll save that conversation for another article.)

Discipline must be grievable. As explained in Bolling, for an action to count as discipline, the employee must be “given an opportunity to dispute the action by having it reviewed, on merits, by an authority different from the one that took the action.” Just because an item is in writing, doesn’t make it grievable. An agency needs to look to its administrative grievance procedure or its union contract to see what types of written documents are grievable. Typically, items such as counseling memos, emails, letters of caution, or written expectations, do not meet these criteria and, therefore, are excluded from the definition of discipline.

The action must be made a matter of record. This requirement essentially means that there is official agency paperwork involved; the item belongs in the employee’s OPF. A lot of supervisors put notes and memos into the OPF, but the only things that truly belong there, for the purposes of counting as discipline, have an SF-50 attached. A reprimand does not have an SF-50 because it is not a pay action. However, it is commonly stored in the OPF in the temporary section (for those who remember OPFs before they were electronic, on the left side of the folder), where it does not remain in the file past its expiration date. A reprimand is considered discipline until its expiration date, because it meets all the legal requirements of discipline: It is written, grievable, and a matter of record.

All this brings us back to the confusion around “informal discipline,” or whatever your agency calls it. There is no accepted definition for informal discipline, and it does you more harm than help if you try to draw a distinction.

If a supervisor mistakenly issues three types of informal discipline against an employee, and on the fourth offense decides that it’s time for a removal under progressive discipline, she is going to be upset when she realizes the informal procedures she followed in her agency’s policy have carried exactly ZERO legal weight for the purposes of progressive discipline. At the very most, she might have some evidence for the Douglas factor on notice, but that’s about it. Here’s why this is important:

Efficiency: As we have taught in our FELTG seminars since the cooling of the Earth, the best practice is to do as little as required by law when dealing with a problem employee. The more you do, the longer it takes, the more you give the employee to grieve and complain about, and the greater your chances of making a mistake. If you create a category of actions unrecognized by law or otherwise unnecessary, you make it more difficult to efficiently correct behavior.

Confusion: If you create something called “informal discipline,” you confuse the poor front-line supervisor. When should the supervisor engage in informal discipline? Is there a requirement to use informal discipline before he uses the real thing? How is the employee supposed to view the administration of an informal disciplinary action? Most importantly, what is the judge or the arbitrator supposed to do with an informal discipline policy? Confusion does you no good when trying to manage workplace behavior.

Litigation: MSPB administrative judges closely review the removal of employees from federal service. If a judge discovers that you have mistakenly considered an act of “informal discipline” as a step in progressive discipline, then you stand a big fat chance of the removal being mitigated or even set aside on appeal. Litigation is hard. Don’t create the potential for mistakes that are unnecessary.

If you’re stuck with one of these policies and aren’t in a position to change it, don’t sweat it. Most of these policies do not require a supervisor to start with the informal before going the disciplinary route, so a supervisor should be free, to go right to the reprimand and skip the Letter of Whatever. [email protected]

The Good News – Don’t Worry, Be Jolly

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By Ann Boehm, February 19, 2020

I know, I know. The Bobby McFerrin hit song was “Don’t Worry Be Happy,” not “Don’t Worry Be Jolly.” But I want to provide a way to make you remember one of my favorite Federal Circuit cases in recent years – Jolly v. Department of the Army, 711 F. App’x. 620 (2017).  (And yes, I’m sorry that song will now be in your head for the next three days. It was either this or “Hello, Jolly.”)

Why is Jolly a favorite, you may ask?

Well, for one thing, it says pretty darn clearly that it is NOT a due process violation for a Deciding Official in a discipline matter to know about the employee, the facts of the case, and the employee’s background.

And why is this important? I hear too often from agencies that they won’t let a second-level supervisor serve as the Deciding Official because they “know too much about the case,” and it would be a due process violation. Agencies then rope in some other unsuspecting supervisor from another office to serve as Deciding Official.  According to Jolly, this is not necessary!

Jolly also indicates that agencies may remove federal employees for making threats. I’ve seen people visibly shaken due to fear about employees who make threats, and far too often agencies are afraid to terminate the employee. Jolly says you can. In my opinion, you should!

So, here are the facts in Jolly.

Employee Jolly was a Health Systems Administrator at an Army medical center. During a meeting with a unit chief to discuss concerns about her supervisors and work schedule, employee Jolly asked the chief “if she had heard about the [recent] Camp Lejeune and Fort Hood shootings.” Jolly, 711 F. App’x. at 621. She added that “her supervisor, and Col. Barrow, her second line supervisor, needed to be careful, to leave her alone and not to mess with her.”  Id.

YIKES!

The Army proposed her removal on the very sensible charge of “conduct unbecoming a federal employee,” based upon her “inflammatory and/or menacing comments which reasonably placed fellow employees in fear.” Id.

So, guess what Jolly did? She appealed. She argued her punishment was too harsh. She also argued her due process rights were violated because Col. Barrow — as target of her remarks and Deciding Official — was not impartial. The MSPB Administrative Judge, the MSPB, and the Federal Circuit all agreed that the punishment was appropriate and that there was NO DUE PROCESS violation!!

Here’s some of the lovely language from the Federal Circuit about due process:

“First, ‘[a]t the pre-termination stage, it is not a violation of due process when the proposing and deciding roles are performed by the same person. The law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.’” Id. at 623 (quoting DeSarno v. Dep’t of Commerce, 761 F.2d 657 660 (Fed. Cir. 1985)).

But wait, there’s more:

“Second, the standards of impartiality applicable to post-termination adjudications do not apply in the context of pre-termination hearings. ‘Nothing … limits the deciding official to being a neutral arbiter or requires that the deciding official be unfamiliar with the individual, the facts of the case, or the employee’s prior conduct’ during the pre-termination hearing.” (quoting Norris v. S.E.C., 675 F.3d 1349, 1354 (Fed. Cir. 2012)). Jolly, 711 F. App’x. at 623-24.

And here’s my favorite part:

Relying upon holdings in the Third, Fifth, Sixth, Ninth, and Eleventh Circuits, the Federal Circuit noted:

[u]sually, an employment termination decision is made initially by the employee’s direct supervisor … — a sensible approach given that such person often is already familiar with the employee … Yet, these individuals are also likely targets for claims of bias or improper motive simply because of their positions. . . . [T]o require . . . an impartial pretermination hearing in every instance would as a practical matter require that termination decisions initially be made by an outside party rather than the employer as charges of bias always could be made following an in-house discharge.

Jolly at 624 (quoting McDaniels v. Flick, 59 F.3d 446, 458-60 (3d Cir. 1995)).

Pretty clear, eh? Second-level supervisors can and should be Deciding Officials. End of story. 

And as much as I love the due process analysis in Jolly, I also think it is an important case for the crazy times in which we live.

If an employee is threatening anyone in the workplace, take action. Removal may be appropriate. According to the Federal Circuit, “[w]here an employee makes ‘threats … against her supervisor [that are] unprofessional and inappropriate, and … they adversely affect the work atmosphere,” the penalty of removal is “within the permissible range of reasonableness.” Jolly at p. 6 (quoting Harrison v. Dep’t of Agr., 411 F. App’x 312, 315–16 (Fed. Cir. 2010) (per curiam)).

HR folks and Counsel, when supervisors or employees are scared of an employee due to threats, do not act like there is nothing you can do. Let the supervisor propose removal. And don’t tell second-level supervisors they can’t be Deciding Officials because they know about the case. Of course they do — that’s their job. But now you know it is not a due process violation.

And heck – Don’t worry, be happy!

[Writer’s note: Jolly is “nonprecedential.” According to Federal Rule of Appellate Procedure 32.1(d), a court may “refer to a nonprecedential disposition in an opinion or order and may look to a nonprecedential disposition for guidance or persuasive reasoning.” Also, the Jolly court relies on established precedent in reaching its conclusions. If in doubt, rely on those cases.] [email protected]

A Valentine to Not Being Creative

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By Meghan Droste, February 19, 2020

 “Learn the rules like a pro, so you can break them like an artist.”

– (Possibly) Pablo Picasso

It’s Valentine’s Day as I write this column for you, dear readers.  And so it is with great love for my fellow practitioners, the EEO process, and (of course) the rules that I have to share that while creativity is wonderful, sometimes it’s a terrible litigation strategy. I truly admire great artists and creative types, and creativity can be helpful in our line of work, such as in coming up with out-of-the-box ideas during settlement discussions. But there are times when it can go too far.

I have been doing this (researching, litigating, teaching) long enough that I am rarely surprised by arguments employers raise to avoid liability.  Leon B. v. Department of State, EEOC App. No. 012018144 (Nov. 5, 2019), is one of the exceptions. The claims are fairly run of the mill: The complainant alleged that the agency discriminated against him on the basis of race, color, age, and disability when it did not select him for a special agent position.

The complainant made it through the initial stage of the application process, including an oral assessment conducted by two agency employees.  Following the assessment, the agency notified the complainant that he failed to meet the cut off score and, therefore, was not eligible to continue.

During the investigation of the formal complaint, the investigator asked the agency to provide documents regarding the scoring process, and asked both of the employees who conducted the assessment for information on what questions they asked and how the complainant’s answers compared to those of other employees. The investigator also asked the agency for information on the other candidates who were selected and those who also failed to meet the cutoff for the scoring of the oral assessment.

The agency refused to provide the requested information.

Why? Well, here comes the creative part: The agency asserted that the information was exempt from disclosure under the Freedom of Information Act, specifically exemption (k)(6).  (Notwithstanding the statements by at least one of the employees who conducted the assessment, the agency appears to be relying on the Privacy Act and not FOIA.)

This exemption allows agencies to withhold information regarding testing material in responding to Privacy Act requests when providing the materials would compromise the objectivity or fairness of the selection process.

You can probably guess that this did not end well for the agency. Because the agency failed to produce any specific information as to why the complainant did not score high enough to advance in the process, the Commission found that the agency could not articulate a legitimate, non-discriminatory reason and therefore the complainant prevailed.

The Commission ordered the agency to assign the complainant the same score as the highest scoring candidate and then continue the application process. Assuming the complainant received a clearance and passed the medical exam, the Commission also required the agency to put the complainant in a special agent position.

In your brushes with the EEO process, it is probably best to ignore Picasso’s advice in most circumstances and leave your creativity and artistry to other pursuits. [email protected]