Why a Supervisor Should Never Give a Summary Performance Rating of Unacceptable

, ,

By William Wiley, January 14, 2020

Here’s an issue that comes up frequently in FELTG training and consulting. Supervisors who have a non-performing employee are sometimes advised by well-meaning attorneys and HR specialists to give the employee an Unacceptable performance rating at the same time (or just before) the supervisor issues a memo initiating a Demonstration Period (aka PIP). Well, that advice is not legally incorrect, but it’s still bad advice from a practical standpoint. A recent question presented to “Ask FELTG” highlights the problem and allows us the opportunity, once again, to explain why a supervisor should never give a Level 1 Unacceptable rating:

Dear FELTG,

We have received guidance from headquarters on assigning unacceptable performance ratings. Specifically, I wanted to make sure about the three times the guidance identifies we can assign an unacceptable rating of record, and then proceed with corresponding action under Chapter 43:

a. At the end of the rating period, if the employee was put on written notice of performing at an unacceptable level, we can assign an unacceptable rating. No Demonstration Period would be needed, and we can move forward with corresponding action under Chapter 43.

b. If the WIGI is denied when it is coming due.  We can assign an unacceptable rating. No Demonstration Period would be needed, and we would be able to move forward with corresponding action under Chapter 43.

c. At the end of the standard Demonstration Period process we are currently implementing.

So here’s our always insightful and entertaining FELTG response:

Dear Concerned Reader-

Your headquarters’ guidance speaks to three occasions in which a supervisor can assign an unacceptable rating. However, it is not necessary to assign an unacceptable rating to initiate a Demonstration Period (DP), to deny a WIGI, or at the end of a failed DP. All that’s required is that the supervisor reach a determination that the employee’s performance is unacceptable to initiate a DP. See 5 CFR 432.104.

We recommend that the supervisor never issue an unacceptable rating. Instead, when confronted with a non-performer, just initiate a DP. If you initiate the DP, the results of the DP are all that the employee can challenge. However, if you coincide the DP initiation with an unacceptable rating, the employee can independently challenge the rating through EEOC separately from what you are doing on the DP. A DP process resulting in removal is over in 60 days. The appeal of the removal to MSPB takes about 100 days for a judge’s decision. Unfortunately, a challenge to an unacceptable rating can take several years to be adjudicated through EEOC. If you give an unacceptable rating while dealing with a DP-failed poor performer, conceivably you could have a judge at EEOC set aside the unacceptable rating years into the future, thereby destroying the foundation of the DP removal, resulting in big buckets of backpay and a reinstated employee.

We’d suggest you not worry about the guidance from your HQ because you never need to issue an unacceptable rating. Just DP ’em. Best of luck- [email protected]

Supervisor Survival Series: Buy a Notebook and Use It

, ,

If you’re a supervisor in the federal government, you need a notebook. Because federal employees have multiple avenues to challenge management actions, contemporaneous documentation is critical evidence that will help you demonstrate bona fide, legitimate reasons for your workplace decisions. You don’t have to write a novel; simply include a date, time, and any relevant details.

Here’s an example: “On January 10, 2020, I received Employee X’s annual leave request for January 13, 2020. I denied the request because Employees Y and Z are already on annual leave that day and Employee  X is needed to cover Project A in their absence. Employees Y and Z  requested leave for January 13, 2020 on November 19, 2019.”

It might seem obvious, yet many supervisors don’t take the time to make contemporaneous notes. You might never need them, but you’ll be very glad you have them if the situation calls for evidence in addition to your testimony.

How About Standards That Actually Measure Performance?

, ,

By Barbara Haga, January 14, 2020

I’ve looked at quite a few performance plans recently and I keep seeing the same problems showing up. Performance plans full of boilerplate measures that deal with what should be conduct issues, lists of tasks with no discussion of how the quality of that work will be performed, and pages and pages of measures that probably neither the manager nor the employee actually has a grasp of what that means in their daily work.

For the next few columns I am going to focus on what these problems look like and what can be done to fix them.

I wrote about many of these issues when I first started writing for FELTG way back in 2013, but I still see these issues cropping up when I am leading classes on performance.

Putting Conduct Issues into Performance Plans

In many of the situations I am going to  describe, the “blame” for including these falls largely on high-level agency officials and Congress and whomever is advising them!

First, let’s step back a minute. The performance plan is not the document that sets standards of behavior for Federal employees. The performance plan should identify the key aspects of the job and what acceptable performance (and other levels if you write them) looks like. Expectations regarding behavior or conduct standards are set in multiple ways – some things are established by 1) common sense (you can’t murder anyone at work), 2) program folks in the organization (you can use your government computer to do this at lunch and before and after work but not that), 3)  supervisors (if you need to leave the work area, please find me and let me know before you go), 4) agency policies (you must have EMT certification to be a firefighter), and 5) union contracts (you have up to two hours from the start of the shift to call in and request unscheduled leave). If we need to discipline somewhere down the road, the questions will be: Was it a valid rule? Did or should the employee have known about it?

For some reason, however, it seems every time management wants to send a message, agencies start adding required critical elements to cover what should be a conduct expectation. I’ve seen a host of them — everything from protecting classified material to acting ethically and completing yearly IT security training.

Let’s look at these in a little more detail:

Protecting classified material

Here’s an example:

Exhibits individual and personal accountability for classified information under their custody and control by taking precautions to ensure unauthorized persons do not gain access to classified information through proper marking, transmission, and safeguarding; reports unauthorized disclosures, security incidents, violations and vulnerabilities to the appropriate management official and/or security official; completes initial/annual refresher security awareness training,  initial/biennial derivative classifier training and other related security training as required.

Okay, that’s great. But let’s think through this. If an employee intentionally discloses classified material for gain or political reasons, for example, I don’t think there is any doubt that person would end up in jail, so the appraisal would be a moot point. Even if the failure was unintentional, there is likely to be significant action, depending on the sensitivity of what was disclosed. I really don’t think anyone will be writing a demonstration period or improvement notice about it.

The other concern with a standard like this is that it’s essentially a pass/fail measure – the person either follows it or they don’t. That wouldn’t be a problem except that most of you don’t rate elements at two levels. You have something higher than Fully Successful. So how does an employee demonstrate performance above Fully Successful on this? They do a little briefing in a staff meeting, or they write an article for an agency newsletter, or they stand up and swear they REALLY believe? Better yet, I suppose an employee could bring a sleeping bag and spend the night on the floor guarding the classified safe, thereby demonstrating his or her commitment!

Demonstrating Integrity

Employee consistently demonstrates integrity and accountability in achieving Departmental program and management goals.

That statement is part of a benchmark Fully Successful standard for one agency. The accountability part might apply to performance, but it’s kind of like repeating a word in its definition – the whole performance plan is about accountability. If an employee is not demonstrating integrity, they could be providing inaccurate information, hiding information, falsifying documents, and a host of other things that are all likely conduct issues. If an employee truly acts in such a manner, he or she is likely to be the subject of a disciplinary action and not given a warning period to demonstrate that they can behave properly.

Completing required training

There are lots of variations on this one – everything from safety training to IT security training to continuing education requirements. I know from personal experience that a standard on IT security training was used as a hammer to make employees do their annual training because they wouldn’t do it otherwise; they would put it off until the supervisor threatened them with “You’re not going to get the highest rating this year if you don’t do your training on time.” Is that a performance issue? I don’t think so. It would make more sense to me to just order the employees to do it and then follow up appropriately if needed.

But, let’s say the manager wanted to deal with it as a performance matter, so you spend your time writing an opportunity to demonstrate acceptable performance letter. Unless the employee is completely oblivious, he or she would complete the training during the window and now they’ve improved. And, you can repeat it all again next year since there is no record to use to build a more severe action next year.

More importantly, going to training should not be a performance measure for anyone.  We’re talking about a few hours of work in most cases.  A couple of hours out of 2087 in a cycle: Is that critical?  Maybe doing something with what you learned in the training might make sense as a measure. There’s an easy way to see whether any of these elements are used effectively or not. Look through a sample of performance appraisals and see how the supervisors documented performance on them.

Check back next month for more thoughts on performance measures.  And, if you want to attend an in-depth session — from system requirements to within-grades, writing good measures, and taking action on unacceptable performance —  join me for in Washington April 15-16, 2020 for Maximizing Accountability in Performance Management. We will spend two days on everything you need to know about performance.

The Good News: A Cheat Sheet to Help Overcome the Office of Folklore!

, ,

By Ann Boehm, January 14, 2020

Those of you who attend FELTG training and read our newsletters know that supervisors regularly tell us, “These are great ideas, but our HR staff or counsel won’t let us do this.”  I have come to realize that it is not the fault of the fine folks in HR and counsel offices.

I blame the Office of Folklore (OOF). Yes.  I coined this term. It’s not a real office. But it really exists. The Federal personnel community is a small one, and its insularity results in bad information being circulated as the truth. In our training, we try to defeat OOF, but it’s a formidable opponent driven by a risk-averse culture.

At a recent training, some astute students suggested it would be very helpful to have a “cheat sheet” for supervisors, that would enable them to demonstrate to OOF that they indeed have the authority to properly handle problem employees. (Let me also take this opportunity to remind supervisors, HR staff, and counsel of this important piece of information – HR and counsel are advisors and not decision-makers.  Typically, agency policies state that line managers should make discipline and performance decisions with the advice of HR and counsel.)

So to start off the new decade right, I have created the requested Cheat Sheet, which you will find below. Clip it out and keep it with you. I hope you find this to be helpful. And if you think of anything that I need to add to the cheat sheet, send me an email.  We are here to help.  [email protected]

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

FELTG’s Supervisor Cheat Sheet
(How to Overcome the Office of Folklore)

PIPs/DPs should be 30 days long.

E.O. 13839, Section 4(c):  no agency shall “generally afford an employee more than a 30-day period to demonstrate acceptable performance under 4302(c)(6) of title 5, United States Code, before removing an employee for unacceptable performance.”

Melnick v. HUD, 42 MSPR 492, 101 (1989)—30-day PIP is sufficient

You don’t have to “prove” anything to put an employee on a PIP/DP; just articulate failure of a critical element.

“To prevail in an appeal of a performance-based removal under chapter 43, the agency must establish by substantial evidence that: . . . (3) the agency warned the appellant of the inadequacies of her performance during the appraisal period and gave her an adequate opportunity to improve.”  Towne v. Dep’t of the Air Force, 2013 MSPB 81 (2013) (emphasis added).

The rationale for restricting the performance considered in a Chapter 43 action to the period occurring after the date of the notice of deficiency and opportunity to demonstrate acceptable performance is that consideration of earlier performance is ordinarily unnecessary when the employee fails the PIP. If the PIP provided the employee is adequate to fulfill the statutory purpose of affording a meaningful opportunity to demonstrate acceptable performance, then proof that the employee failed to perform at even a minimally acceptable level during that period usually is a sufficient basis for removal or reduction in grade. Evidence of the performance failures which preceded the PIP would therefore not be required.  Brown v. VA and OPM, 44 MSPR 635, 640 (1990).

Performance standards do not have to be lowered for an employee with a disability.

“An employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation. However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.” The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities, Section III.A.1, Equal Employment Opportunity Commission Guidance.  

Some acts of misconduct warrant removal for a first offense.

Destruction, mutilation, or theft of a government record by custodian warrants termination (18 USC 2071).

 Both the courts and the Board have held that removal from employment is an appropriate penalty for failure to cooperate with an investigation. Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Sher v. VA, 488 F.3d 489 (1st Cir. 2007) (Courts have repeatedly held that removal from employment is justified for failure to cooperate with an investigation). Hamilton v. DHS, 2012 MSPB 19.

Another 1st offense removal:

    • An employee’s verbal threat to a supervisor warrants removal despite the appellant’s lack of prior discipline and 4 years of service.
    • Such behavior affects the agency’s obligation to maintain a safe work place for its employees, thus impinging upon the efficiency of the service.

Robinson v. USPS, 30 MSPR 678 (1986) aff’d., 809 F.2d 792 (Fed. Cir. 1986)

E.O. 13839, Section 2(b):  “Supervisors and deciding officials should not be required to use progressive discipline.  The penalty for an instance of misconduct should be tailored to the facts and circumstances.”

E.O. 13839, Section 2(d):  “Suspension should not be a substitute for removal in circumstances in which removal would be appropriate.  Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.”

Different employees may receive different penalties, even for similar misconduct.

E.O. 13839, Section 2(c):  “Each employee’s work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation.  Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time — particularly where the employees are in different work units or chains of supervision — and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.  Nonetheless, employees should be treated equitably, so agencies should consider appropriate comparators as they evaluate potential disciplinary actions.”

A reprimand can be issued without a prior warning.

There is no law that requires warning prior to issuance of a written reprimand. Union contracts may require this, though it’s unlikely.

Any past misconduct counts for progressive discipline—not just the same misconduct.

E.O. 13839, Section 2(e):  “When taking disciplinary action, agencies should have discretion to take into account an employee’s disciplinary record and past work record, including all past misconduct — not only similar past misconduct.”

You can remove an employee for medical inability to perform before a disability retirement is granted.

Not only can an agency remove an employee for medical inability to perform before a disability retirement is granted – a removal on this grounds provides a rebuttable presumption that the employee is entitled to disability retirement.  Bruner v. OPM, 996 F.2d 290 (Fed. Cir. 1993).

Please Mr. (Sometimes Electronic) Postman: How Do You Determine Receipt?

, ,

By Meghan Droste, January 15, 2020

Happy New Year to our wonderful FELTG community!  With the holidays, and their many related treats behind us, it’s time to get back to work. I decided to follow the example of my swim class coach and ease all of you back into things this month with a return to some fundamentals (unlike in my class, I promise not to make you break a sweat with these).

We talk a lot about deadlines when it comes to the EEO process. I have covered many different ones in this column. It may seem repetitive in a way, but really, they are so important to ensuring the integrity of the EEO process that it’s worth returning to them with some frequency. One key part of handling deadlines correctly is knowing what it takes to trigger them. After all, if the agency doesn’t send something to a complainant or their representative, the clock never starts running. Two relatively recent Commission decisions highlight the ways a small error can end up in a reversal of an agency’s decision.

In Orson R. v. Department of Veterans Affairs, EEOC App. No. 2019005308 (Oct. 2, 2019), the complainant initially made EEO contact without a representative. During the process of scheduling mediation, the complainant verbally notified the agency that he had retained counsel, and his attorney emailed the EEO program manager. The complainant’s attorney attended the mediation, which ultimately did not result in a resolution. When the agency subsequently mailed the notice of right to file (NRTF), it sent it only to the complainant. Three months later, the complainant’s attorney reached out to the agency for an update and learned about the NRTF. The complainant’s attorney then filed a formal complaint, which the agency immediately dismissed as untimely. In response to the complainant’s appeal, the agency argued that the complainant had failed to properly notify the agency that he was represented, because he did not send a written notification that included the attorney’s contact information. The Commission reversed the decision finding that the agency had notice that the complainant was represented and the clock starts from when the attorney, and not the complainant, receives the NRTF.

In Scarlet M. v. Department of Veterans Affairs, EEOC App. No. 2019005240 (Oct. 31, 2019), the agency sent the NRTF to both the complainant and the complainant’s representative via email on May 13, 2019. The complainant’s representative filed the formal complaint on May 29, 2019. In response to the agency’s request for an explanation for the apparently untimely complaint, the complainant’s representative acknowledged that although she opened the email on the day the agency sent it, the complainant was unable to open the email until May 15, 2019.  The agency dismissed the complaint as untimely. Based on the Orson R. decision, you probably expect the agency to prevail in this case — the complainant’s representative received the email on May 13, but did not file the complaint until 16 days later. There is one key difference here: The complainant’s representative in Scarlet M. was not an attorney. As a result, the clock started running when the complainant and not the representative received the NRTF. In this case, the agency did not receive a read receipt from the complainant so it could not prove that she opened the email before May 15. The Commission reversed the dismissal.

While I doubt that any of you are spending time waiting at a mailbox for formal complaints, particularly as so much happens electronically these days, I do encourage you to spend an extra minute or two triple checking your files before sending out notices and before dismissing complaints so that you can avoid a reversal by the Commission. [email protected]

Tips From the Other Side: January 2020

, ,

By Meghan Droste, January 15, 2020

In addition to representing federal employees (and having the pleasure of teaching many courses with FELTG), I spend about half of my time representing private sector and local government employees.  This gives me an interesting comparison of how attorneys and judges handle cases in federal court with how agency attorneys and administrative judges handle cases before the Commission.  I am happy to report that the experience before the Commission is often more pleasant. Things (generally) move more quickly, although I know that might be difficult to imagine, and the formal complaint process creates a record from the start, avoiding some of the hassles of fighting over information in discovery. 

There is one notable difference that makes things more difficult in the federal sector process and I hope you will indulge my moment on the soapbox discussing it. In several recent cases, I have found that agency attorneys are not producing emails from key witnesses as part of their document productions. I always ask for at least some emails in every case. I have yet to see a case where nothing was discussed over or sent by email. Unlike in my other types of cases, it seems that the attorneys on the other side in federal sector cases do not even think about checking with witnesses or even named harassers when gathering responsive documents. As a result, we end up spending unnecessary time on deficiencies letters and phone calls, and sometimes even motions to compel, to get documents that are clearly relevant to a complaint. If any of this sounds familiar to you, I strongly encourage you to reconsider your discovery practices.

As a quick reminder, the Commission considers discovery and the hearing process in general to be an extension of the investigation.  That means that parties are entitled to obtain “relevant information” for a “reasonable development of evidence on issues raised in [a] complaint.”  See EEOC Management Directive 110, Ch. 7, § IV(A)(1). If witnesses, harassers, or management officials have discussed the issues in the complaint (or, in some cases, engaged in harassment) by email, those emails are relevant.  You should be issuing litigation holds to anyone who might have relevant information at the outset of a case and also gathering emails from them as part of your normal litigation practice.  Even if a complainant does not request emails in discovery, you should still be gathering them for yourself so you know what is out there and to avoid any surprises when witnesses testify during a deposition or at hearing. [email protected]

And Now a Word With … Michael Bogdanow

,

By Dan Gephart, January 7, 2020

Michael Bogdanow, Acting Director of Regional Operations, Merit Systems Protection Board

When I first started working in the area federal employment law many years ago, I called around, looking for advice. One highly regarded and experienced attorney told me: If you need to understand anything at all about the Merit Systems Protection Board, talk to Michael Bogdanow (see photo).

I’ve been lucky enough to work with Bogdanow, MSPB’s Acting Director of Regional Operations, on a conference advisory board and to see him present many times. Whether it’s case law, procedure, or MSPB history, Bogdanow speaks with intelligence and authority, in his own unpretentious manner.

It makes sense that Bogdanow knows MSPB history. He has lived it. Not only was Bogdanow there at the agency’s inception, he actually worked for several years with the Board’s predecessor – the Civil Service Commission. The Board has faced its share of tests over its 40-plus years in existence, yet nothing like what’s happening now. It’s been three years since the Board lost its quorum, and it will soon be a whole year that the agency has gone without any Board members at all. Meanwhile, the pile of PFRs awaiting Board review continues to grow. (For more on that, be sure to read our earlier interviews with MSPB General Counsel Tristan Leavitt and James Read, Director, Policy and Evaluation.)

Bogdanow noted that Board has “always been ready to meet huge challenges.”

“Within its first three years, [the MSPB] was hit with about 11,000 appeals filed by fired striking air traffic controllers,” Bogdanow said. “And in 2013, three times that number of furlough appeals were filed as a result of sequestration. In both instances, the AJs and the Board worked almost non-stop to assure that the appeals would be decided with as little disruption to the normal workload as was possible under the circumstances.”

There is one thing that hasn’t changed over the MSPB’s long history, and that’s the myth that it’s impossible to fire a fed. That’s where we started our conversation with Bogdanow.

DG: Why do you think that myth persists that it’s impossible to terminate a federal employee, and what can be done to shatter it?

MB: You are certainly right, this is a persistent myth. One of the motivations for enacting the Civil Service Reform Act of 1978 was that same myth. A lot of changes were implemented in the law to put it to rest, but they did not succeed in ending it, and now more than 40 years later, the same argument endures.

However, OPM recorded a total of 29,785 executive branch employees who were removed for cause in fiscal years 2013-2017, and that number is far lower than the actual number because OPM does not track actions taken by the Postal Service, the intelligence community, and certain other agencies. During that same period, the Board decided more than 44,000 adverse action appeals, and fewer than 600 of them were reversed or mitigated.

I think that a significant part of the reason for the belief that federal employees cannot be terminated is that there are laws and regulations, as well as agency policies and procedures, that establish the system for removing employees, and to agency officials who do not use them regularly, they may seem daunting. In fact, those authorities are guides for how to take and prosecute such actions, and, if followed carefully, the process will become more obvious and yield the result the agency expects. It is not an exaggeration to say that the Board frequently sees lack of proper preparation both before agencies take an adverse action and also in prosecuting the action on appeal that contribute to the perceived difficulty of making a removal action stick. (Needless to say, we see this from both parties.) Of course, agencies must also be prepared to defend themselves against affirmative defenses appellants may bring, most frequently discrimination and whistleblower retaliation claims.

I should note that an MSPB Office of Policy & Evaluation publication in December 2016 found that rather than preponderant evidence, which is the standard required for proof of an adverse action before the Board, “90 percent of proposing officials and 84 percent of deciding officials reported that the standard they used was ‘beyond a reasonable doubt,’” the standard used in criminal proceedings. Thus, management’s perceptions of the hurdles faced in taking an action actually exaggerate their difficulty. That same publication noted the three greatest perceived barriers to removal were the agency’s culture toward taking such actions, the level of support given by managers and leaders, and the quality of service provided by the human resources office, none of which is attributable to the systems created by title 5 or to the MSPB.

In short, while nothing will guarantee 100 percent success, I would suggest that better preparation, from before an action is proposed and throughout the appeal process, would help shatter the myth.

DG: Why are removals most often overturned?

MB: MSPB generates statistics on many aspects of the appeals we address, and for adverse actions and performance-based cases, that includes the number and percentage of cases reversed on procedures, on the merits, because of a finding of discrimination, and because of a prohibited personnel practice (PPP) other than discrimination. Those statistics do not break down the categories based on the specific procedural failure or the problem found with the merits of the case. Leaving aside the number of cases reversed because of discrimination or a PPP, which are relatively small, the percentage of cases reversed on procedures is consistently lower than the percentage reversed on the merits.

To me that suggests that, contrary to the view that reviewing authorities like the Board throw procedural obstacles in the way of agencies so that they lose meritorious cases on the basis of insignificant or irrelevant procedures, in fact, it is the agency’s failure to meet its burden of proof that causes most reversals. In my view, agencies’ failure to do their homework by thoroughly investigating before bringing charges and preparing their cases to make the most persuasive presentation to the Administrative Judges and the Board account for a substantial percentage of merits reversals.

Another important aspect of Board caselaw that is frequently given insufficient attention is being sure to bring the correct charge. Because the Board and courts over the years have attached significance to the words used in a charge, and have insisted that agencies prove what they claim, agencies must know that criminal charges require proof of all elements of the crime, and that certain misconduct charges require proof of the employee’s intent. The distinctions between charges such as “theft” and unauthorized possession, between “insubordination” and failure to follow instructions, “falsification” and misstatement or lack of candor, between “threats” and inappropriate conduct, all make a tremendous difference in the proof an agency must present. If an agency has not assured itself that it can prove the specific charge it brought, it is unlikely to prevail.

Is that fair? Ask the employee who may be branded a “thief” when his only misconduct was that he borrowed or had unauthorized possession of government property, or the employee tarred as being insubordinate when he simply failed to follow a supervisor’s instructions.

There is little doubt that over the years, more attorneys have become skilled at raising challenges to adverse actions taken against their clients, which has led to increasingly technical, “legalistic” arguments. Moreover, adverse actions and performance-based actions were both created by Congress, so are statutory in nature, and are reviewable at a US Court of Appeals. As a result, the parties must both be prepared to argue and respond to the due process requirements of statute in an increasingly law-based environment.

DG: Only about 5 percent of terminations are for poor performance, and the rest are for misconduct. Why is there such a disparity?

MB: If your question really is why there are so many more actions taken because of misconduct than poor performance, I’d say that’s because there’s an infinite variety of misconduct on which charges can be based, misconduct is generally pretty obvious, it can be a one-time act, and it tends to get supervisors’ attention more quickly than does poor performance. Moreover, taking an action for misconduct does not require that the agency first take a set of steps to address the misconduct.

However, if you are asking why more actions based on performance are taken under chapter 75 (“adverse actions”) than chapter 43 (“performance appraisal”), I’d venture to say that although the CSRA was intended to make it easier to take action against poor performers, agencies have not found that to be the case. Chapter 43 establishes a system, one that governs not just separating or demoting a poor performer, but also establishing performance requirements, rewarding good performance, appraising performance, and providing an opportunity to demonstrate acceptable performance before removing an employee. Thus, there are more preparatory steps an agency must take to be able to effect an action under chapter 43. Still, the heart of chapter 43 is found in employee performance standards, which must be written so as to inform an employee of the tasks he must perform and the specific indicia of performance he must demonstrate in order to be rated at the various levels against which he is measured.

Absent valid performance standards, an action under chapter 43 will not succeed, and because a chapter 75 action based on performance may not be sustained if the performance at issue is “governed by and meets” the performance standards, valid standards are one chapter 43 requirement that cannot be ignored. Make no mistake, writing proper, understandable, substantive performance standards is often difficult, but Congress clearly expected that such standards would be implemented for the benefit of both the employee and the agency. In return for doing all of the required preparation before an action is taken, Congress gave agencies two major advantages over chapter 75. First, their action will be sustained if they meet a lower burden of proof, substantial evidence rather than preponderance of the evidence, and second, the Board may not mitigate a chapter 43 action where the poor performance is proven.

Board cases show that not only do some agencies fail to draft sufficient performance standards, but they may also add specific requirements to the process for taking an action under chapter 43 that are not imposed by regulation or case law. For instance, while the statute and the Board require that an employee be given an “opportunity to demonstrate acceptable performance” before an action is taken, neither has specified what the opportunity must consist of, how long it must be, or that training is a necessary component. Many agencies, though, add such requirements in their own policy and procedure documents.

Regardless of which of the two questions you are asking, I think the short answer is that taking an adverse action, even one based on performance, is a lot quicker, requires fewer preparatory steps, and can be accomplished even if all of the safeguards set by chapter 43 are not in place.

DG: What information could our readers learn that could make them more likely to pursue a removal for poor performance?

MB: I’m not sure that I know how to answer that question. Agencies have certainly had enough time to get comfortable with chapter 43 requirements, so suggesting that they become familiar with chapter 43 and even some of the legislative history of the CSRA that explains the reasons Congress chose to establish it might not be enough. It is, though, good management practice to comply with the requirements of chapter 43, not just for taking actions against poor performers, but also to do what 5 U.S.C. § 4302(a)(3) requires, to “use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, … [and] retaining … employees.”

Agencies must have performance standards for their employees, and if those standards are valid and accurate measures, the hardest part of the chapter 43 process is already done. Providing an “opportunity to demonstrate acceptable performance” as required by § 4302(b)(6), means just providing a chance for the employee to work for a reasonable period of time (which depends on the nature of the work) on his or her regular tasks so as to be able to show the ability to successfully perform those duties – or not. Therefore, the remaining parts of chapter 43 should all be straightforward, and in return, the agency will have a considerably lighter burden of proof if the employee files an appeal, and its action will be insulated from mitigation.

One other thing I would mention: I have often been asked to speak to agency groups about chapter 43, and when I ask why, since MSPB rarely sees appeals from chapter 43 actions, I’ve been told on several occasions that once an employee goes through the chapter 43 pre-action process and is unsuccessful, he recognizes that he is better off moving on to a job he is better able to perform than to fight the action.

[email protected]

The Top 10 FELTG Newsletter Stories of 2019

,

By Dan Gephart, December 17, 2019

Before we put the wrap on 2019, all of us here at FELTG Headquarters want to thank all of you who make up what our Past President William Wiley dubbed “FELTG Nation” —  our great attendees, customers, and readers. It’s been quite a year as we all worked together to make the government’s accountability systems more efficient.

We couldn’t do what we do without our uber-talented group of instructors, including Barbara Haga, Katherine Atkinson, Ann Boehm, Meghan Droste, Dwight Lewis, Anthony Marchese, Shana Palmieri, Jim Protin, Ricky Rowe, and Joe Schimansky. And we can’t forget the continuing contributions of Bill Wiley and our other past president Ernie Hadley – two absolute legends in the field of federal employment law.

Unless any major stories break before then, we will see you all again in the new year. And it’s a big one for FELTG, as it marks our 20th year of federal employment law training. Meanwhile, we’re expecting Supreme Court decisions on age discrimination and gender stereotyping, both of which will have a major impact on the federal workplace, as will OPM’s regulations implementing President Trump’s executive orders. And we’ll continue to wait with our remaining ounce of patience for someone – anyone, actually – to fill the empty positions on the Merit Systems Protection Board.

For now, let’s take a look back at this year. Introducing the 10 most popular articles (based on the number of reads and forwards) from the FELTG Newsletter in 2019.

  1. Can an Agency Track Down a Former Employee and Discipline Him?
  2. Out of Control
  3. The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems
  4. Cook-ing a Sick Employee
  5. Can You Fire a Federal Employee for Body Odor or Bad Hygiene?
  6. Deep-fried Cubicle Chicken, Naked Employees, and Unwritten Rules
  7. Legitimate Non-Discriminatory Reasons When Preselection is a Defense
  8. Cook, McCauley, and Savage: What if AWOL is Involved?
  9. Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?
  10. Excessive Absence and the Third Cook Factor

Here’s to a wonderful holiday season and a successful 2020 for all!

Cook, McCauley, and Savage: What if AWOL is Involved?

, ,

By Barbara Haga, December 11, 2019

This month we are looking at Cook cases from another angle.  What are the charges when there is AWOL included in the time off?

Here is a scenario that a former class participant inquired about:

In 2018, Employee X was on 154 hours of approved leave. So far in 2019, Employee X was on approved leave 160 hours. In addition, Employee X was AWOL in 2018 for 568 hours and AWOL for 1120 hours during 2019. The absences appear to have been due to medical reasons.  Also, there is a separate issue of failure to follow leave procedures.

The questions posed were:

1 – Can AWOL be counted as part of an excessive absence charge? If not, do we have sufficient absence under approved leave for the excessive absence charge?

2 – At the same time, can and should we have a separate AWOL charge?

Note: There will be another charge of failure to follow leave procedures.

AWOL and Excessive Absence

Remember that in Cook v. Army, 84 FMSR 5013 (1984), the Board cited OPM guidance from the old Federal Personnel Manual (FPM) that provided an exception to the general rule that an adverse action cannot be based on an employee’s use of approved leave, and then set out the Cook factors that we know and love.

The sentence from the FPM shouldn’t be read lightly. The exception is about leave that the agency has approved. Over the years, there were Board decisions that approved the use of excessive absence charges that included AWOL hours. McCauley v. Interior, 116 MSPR 484 (2011) was one of them.

McCauley is an important case because it clarified what kinds of leave could be included in an excessive absence charge. In McCauley, Interior had actually charged the excessive absences and AWOL separately.  However, in its decision, the Board stated, “Because the efficiency of the service may suffer in the absence of an employee’s services, regardless of the type of leave used, we hold that whether the leave is sick leave, annual leave, LWOP, or AWOL will not be dispositive to a charge of excessive absences.” McCauley further clarified that FMLA hours could not be counted in the excessive absence charge since they are protected:

Because Congress’s clear intent when enacting FMLA was to provide job security for individuals who needed to be temporarily absent due to a serious medical condition (whether their own or that of a family member addressed by the FMLA legislation) and the law unambiguously promises this job security, use of FMLA in any calculation to remove an employee is inappropriate. Therefore, it is improper to consider FMLA absences as a part of the equation when evaluating if an employee has taken excessive leave.

Four years later, the case of Savage v. Army, 2015 MSPB 1, resolved the AWOL question. AWOL hours don’t fit under excessive absence charges:

Regarding the 800 hours of AWOL, it has been suggested in dicta that periods of AWOL may be included in a charge of excessive absences. McCauley, 116 MSPR 484, ¶ 10. However, while it is true that AWOL is a type of absence, the Cook holding was based on provisions of the Federal Personnel Manual (FPM) specifically concerned with excessive use of approved leave. See Cook, 18 MSPR at 611-12. Although the FPM was abolished in 1993, the Cook holding has survived for decades since, and we see no grounds for revising it now. Accordingly, to the extent that periods of AWOL are included within a charge of excessive absences, we will not consider those periods under the Cook standard, but instead will consider them as an AWOL charge.

How Much AWOL is Needed to Sustain a Removal?

The second charge in McCauley was AWOL. The agency cited that the employee had been AWOL for 22 consecutive days in 2009.  Assuming an eight-hour workday, that’s 176 hours.

She had also been previously reprimanded for AWOL in November 2008.  Even though the excessive absence charge was not sustained, the removal was sustained on the basis of the AWOL. In Crutchfield v. Department of the Navy, 73 MSPR 444 (1997), a removal was sustained based on 14 days of AWOL.

Many of you who still have tables of penalties might find that such tables identify excessive unauthorized absence as over five days, and the range of remedies often goes up to removal for the first offense. In other words, AWOL is a serious charge and you don’t need a lot of it to show an impact on the efficiency of the service.

How Many Approved Hours are Needed for an Excessive Absence Removal?

The case we often cite on this point is Gartner v Army, 107 FMSR 200 (2007), which I covered two months ago. Gartner was, of course, issued prior to McCauley and Savage. The employee was removed for excessive absence for 252 3/4 hours of LWOP and 80 3/4 hours of AWOL for a total of 333 1/2 hours of unscheduled absences over a period of roughly six months.

Back to Employee X

What would you do with Employee X?

Are there enough hours to support an excessive absence charge – 160 hours over 12 months?  I don’t think that one will stand.  Most employees earn 104 of sick leave and between 104 and 208 of annual a year – even using just what is accrued would be more a lot more than 160.  I think one would be hard pressed to succeed there. But I also don’t think it’s needed.

The AWOL charge is strong — 1120 hours in a 12-month period is nearly 10 times the amount of AWOL that McCauley was removed for. With some good documentation about impact of those absences, it should be easy to make a case for removal on just this charge.

What about failure to follow leave procedures? If the AWOL charge is a result of the employee’s failure to follow leave procedures, then it will likely be merged with the AWOL since they are basically the same misconduct. See Westmoreland v. DVA, 83 MSPR 625 (1999).  So, this one should be skipped as well.

That’s my two cents!

The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems

, ,

By Deborah Hopkins, December 11, 2019

Last month, FELTG published an article about federal employees with hygiene issues, and whether agencies could justify taking disciplinary action against employees who do things like intentionally defecate themselves, urinate in closets, and bring in unwelcome critters on their clothing or hair, thus infesting the office.

As you can imagine, a lot of people clicked on that article. One of the cases cited dealt with a food inspector in a chicken processing plant who intentionally passed gas on and around his coworkers (Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID)). I know a lot of people had a chuckle about that one, probably because it sounds horrid. (And it was horrid, among other things.) We used the case to illustrate the principle that employees can be disciplined for intentionally doing gross things in the workplace.

Some cases can teach us multiple lessons, and thanks to a FELTG reader who urged us to look deeper, I re-read the entire case – something I hadn’t done in a long time. I suggest you do the same and if you do, you will see this is not a case involving an employee playing the class clown, but it’s a case involving something much darker.

Yes, there is a lot about farting in the case – including multiple instances of the appellant passing gas and then asking coworkers and others if they could smell it. But the more serious issues in the case were incidents of unwelcome sexual conduct over an extended time period, against females he worked with and around. Some of the sexual references, suggestions, gestures, and requests are so egregious that I can’t print them here for fear of your agency firewalls blocking this email – not to mention the things he did with the chicken parts in an attempt to make his coworkers uncomfortable. In addition, the unwelcome sexual conduct was also directed at the private employees in the establishment that the appellant was charged with helping regulate, so it went beyond an internal agency issue. Despite multiple requests to stop, the appellant continued to subject his victims to this conduct. In the end, the AJ sustained the appellant’s 30-day suspension. This was 2006, and if you read the facts I think you’d agree that the agency could probably have justified a removal, even in a pre-#MeToo world.

Why do we bother spending so much time discussing an initial decision that doesn’t carry any precedential value? Because the principles are important, and the victims in this case are just as important as the victims in cases that carry precedential value. Our reader put it better than I ever could:

Often people laugh at those who say crude things to strangers on the street – dismissing them as silly because they won’t likely result in romance. I routinely cite this case to explain – saying overtly sexual things to someone is not meant to try and get them on a date. It’s meant to degrade the female with the overall purpose of elevating the male at her expense.

Why fart? Because it’s about POWER. Why would the same person who said explicit sexual things and ask for dates also raise his hip, [fart], ask “Didja smell that?” and laugh? Because he was engaged in multiple forms of bullying behavior. See the ID page 6 in particular…it’s just stunning (a great summation of a horrible thing).

This case is a perfect illustration that sexual harassment cases are not always about sexual desire. There are multiple motivators for unwelcome behavior in the workplace, and your agency should not put up with it. [email protected]