What’ll It Be, Mack? The Easy Way, or the Hard Way?

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By Deborah Hopkins, January 21, 2020

My colleague Bill Wiley has long preached the value of taking the easy route vs. the hard route. An example he has often used in our Washington, DC classes goes something like this:

If you’re in Washington, DC, and you want to get to Baltimore, the fastest and most direct way to get there is to take I-95 north. Of course, there are other ways to get to Baltimore from DC. You could hop on I-66 and head out toward West Virginia, come up north across western Maryland and on into central Pennsylvania, then drive east on the Pennsylvania turnpike before heading to Baltimore south on I-95 via Philadelphia. But why would you take the long route and waste all that time and fuel, when you could be there in less than an hour by taking the quickest route?

I want to look at  a 2019 Federal Circuit decision [PDF] with this easy-vs-hard approach in mind. The case involves a VA psychologist named Eric Cerwonka who was removed from his position as a Clinical Psychologist at a VA medical center in Alexandria, La. Cerwonka appealed his removal to the MSPB and ultimately petitioned for review by the Federal Circuit.

Here’s what happened: The state of Louisiana took away Cerwonka’s license to practice for “clear ethical violations and a repeated failure to follow the rules and regulations binding upon [him] as a psychologist.” Once the VA learned Cerwonka’s license had been revoked, it proposed his removal based on one charge: failure to maintain a current license, in violation of 38 U.S.C. § 7402(f). The statute provides that a psychologist “may not be employed” by the VA if even one of his licenses is terminated for cause.

Cerwonka appealed to Louisiana over the license revocation. The state temporarily reinstated his license, as is typical procedure in appeals of license revocations. Cerwonka appealed his removal to the MSPB and argued that the subsequent reinstatement of his license meant the VA did not have cause to remove him because he once again had his license to practice.

The Board’s role in these cases – and thus the Federal Circuit’s jurisdiction in appeals and PFRs – is limited to reviewing Federal agency personnel actions and determining whether those actions were proper at the time they were made. See 5 C.F.R. § 1201.4(f) (defining the term “appeal” to the Board as “[a] request for review of an agency action”).

In the initial decision, the AJ concluded that the agency action under review — Cerwonka’s removal — was proper at the time it was made. Because Cerwonka’s Louisiana license had been revoked, for cause, at the time the agency removed him from employment, he did not have a license on the day the agency issued his removal, and Cerwonka did not present any evidence to refute this fact. The express terms of the statute compels removal and does not permit the VA to consider subsequent events, such as the reinstatement of a license at a later date. The Federal Circuit put it this way:

To the extent Cerwonka is arguing that the Board must consider subsequent events or that there should be a waiting period prior to removal to give an opportunity for an appeal, those arguments find no support in the statute, and we decline Cerwonka’s invitation to read exceptions into the express terms of 38 U.S.C. § 7402(f).

Which brings me to the point of this article. The agency could have drafted up a fancy proposed removal with perhaps multiple charges revealing Cerwonka’s misconduct and how the ethical violations he engaged in caused harm to the agency. It could have proven the facts, and the elements of each charge, by a preponderance of the evidence. And it could have justified the removal penalty by showing that because Cerwonka’s ethics were called into question, he was no longer trustworthy in his role and, accordingly, the agency lost confidence is his ability to do his job. Then if Cerwonka had appealed to the MSPB, the agency could have defended its charges. As we teach in FELTG training classes, doing that is not nearly as difficult as you might think.

However, in this case, the agency made a smart call. Rather than try to build a case over misconduct, it took an even easier and more efficient route by proposing removal for failure to maintain a current license:

  1. A license is required to have this job today;
  2. Your license is revoked as of today;
  3. No license = you’re fired.

Get where you want to be the easiest way. Take I-95 to Baltimore – or better yet take the MARC or Amtrak – rather than go the circuitous route. Make your life easier, when you can. [email protected]

Creating a Thriving Work Environment in 2020: It’s Not a Laughing Matter

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By Dan Gephart, January 14, 2020

Chip is a hard-working and successful comedian. A few years ago, he was named the funniest stand-up comic in Philadelphia. He moved to Los Angeles and wrote for television shows. He returned to the East Coast and grew his reputation for hilarious headline sets, working an impressive array of comedy clubs.

On this recent January evening, however, he was telling jokes on a tiny stage in the back room of a South Jersey Pizzeria Uno.

A camera light flashed in Chip’s eyes. He saw the culprit, and reminded her of his pre-set warning against taking pictures, politely explaining how the flashes are distracting. The slightly annoyed audience member coldly told Chip she wasn’t even paying attention to his set. She was taking a picture of her dessert.

Sometimes you’re writing jokes for television stars. And then suddenly you find yourself competing for attention with a subpar pizza chain’s deep-dish sundae.

So how are things going in your job so far this year?

If you’re like most, you started the new year with resolutions, goals, and promises to improve your professional life. However, while we control whether we’re going to get our butt off the couch and our legs onto that treadmill, there are certain factors in the workplace that keep us from becoming our best professional selves.

As supervisors and HR professionals, you have some control over whether your workplace environment is one in which you, your colleagues, and your employees can thrive. Here are three specific actions you can take that will help your employees reach their professional goals and resolutions in 2020:

  1. Don’t ignore toxic employees

We discuss the 10-80-10 rule in some of our training classes. It’s a generality, sure, but attendees tell us it’s right on target. Here’s the rule: Approximately 10 percent of employees are rock stars – the people who get their work done really well before it’s due. They make your job easier and fun.

About 80 percent of employees are just fine, maybe not spectacular, but they get the job done and they don’t give you too many problems.

And then there’s the final 10 percent.

Some are just poor performers. But many of them are toxic employees. Their bad habits and de-energizing destruction take up the majority of your time and energy. And they generate noxious stress, which weaves its way into your life outside of work. If you ever had a toxic employee under your charge, you likely brought that stress home with you. Toxic employees do not wash off easily. And it’s not only you being served that daily dose of trauma. Toxic employees impact everybody in the workplace.

If you want to keep your rock stars and get the most from the 80 percenters, you must hold toxic employees accountable. They must meet the acceptable level on their performance standards. Their misconduct must be addressed immediately. Unfortunately, according to OPM’s Federal Employee Viewpoint Survey of every year since I’ve been reading them, that’s not happening much.

FELTG is there for you: Join us next month in Puerto Rico or April in Seattle for our flagship course Developing & Defending Discipline: Holding Federal Employees Accountable. Or contact me about bringing this class or another FELTG favorite, UnCivil Servant: Holding Employees Accountable for Performance and Conduct, to your agency.

  1. Set the tone on EEO issues.

Few can thrive in a workplace where employees feel unsafe, disrespected, or ignored based on their color, gender, religion, sexual orientation, disability status, or other EEO category.

As we’ve learned from the #MeToo movement, it’s not enough to simply state that you won’t tolerate harassment or discrimination. You need to take clear and distinct actions to prevent harassment and discrimination. One of those actions needs to be giving supervisors and employees the skills and knowledge to respond quickly, effectively, and appropriately when they see any inappropriate behavior, even if it doesn’t rise to the legal level of harassment or discrimination.

For years, many people in EEO-protected categories have done incredible work despite workplaces that failed to recognize their worth and dignity. Taking down those barriers requires more than lip service. It requires action. And it requires strong leadership.

Join us for EEOC Law Week in April. Or contact me to learn more about the many onsite EEO training programs we offer, including Preventing and Correcting Sexual Harassment in the Federal Workplace or Defending Against Discrimination Complaints: The Supervisor’s Role in EEO.

  1. And, finally, get some darn sleep.

More than a decade ago, the Centers for Disease Control and Prevention called insufficient sleep “a national health epidemic.” With the ubiquity of smart phones and the distraction of TV binge-watching, this epidemic has gotten worse.

I find it odd how so many people revere those who can function on little sleep. A few years ago, Forbes Magazine profiled 19 tech giants and celebrities who thrive on much fewer than 8 hours of slumber, dubbing them the “sleep elite.” At the time of his presidency, much was made of Bill Clinton’s ability to lead the free world while snoozing just a few hours each night. That’s cool, but it’s not something to emulate. Very few of us fall into the sleep elite category.

When is the last time you had a rough night of sleep? If it wasn’t yesterday, it was likely in the last week or month. I’m guessing you didn’t thrive the next day. Recent studies suggest you probably had trouble concentrating at work, and that lack of focus resulted in more errors than usual. Whether you recognized it or not, your emotional processing was severely hampered, too. And that’s if you even got to work. Other studies claim that insufficient sleep leads to a 20-percent higher chance of getting in a car accident.

So put that phone down at least an hour before you decide to close your eyes for the evening. Make that afternoon drink a decaf. And try to fall asleep and wake the same time every day – even on days off.

It’s time you took the lead in creating a workplace environment in which your employees thrive. Otherwise, we might as well all be working the back room at a South Jersey Pizzeria Uno. [email protected]

The Great Debate: Douglas in the Proposal or Douglas in the Decision?

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By Deborah Hopkins, January 14, 2020

When Bill Wiley and I teach MSPB Law Week (next held in Washington, DC March 9-13), we get a lot of great questions.

And occasionally, we get pushback from an attendee on some of our practice methods. One hot topic that always generates discussion – and the occasional challenge – is where to use the Douglas Factors analysis in a removal case.

We have written about this topic multiple times, because it’s a topic people always have questions about. So it’s a fitting discussion for the first newsletter of the year, and the decade.

At FELTG, our approach is to attach a Douglas Factors Worksheet to the proposal notice. We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.

Here’s a direct quote from Douglas v. VA, 5 MSPR 280 (1981):

[A]ggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

That’s right, all the way back in 1981 when the ink was barely dry on the Civil Service Reform Act, the famous Douglas decision laid out 12 factors to consider in determining a penalty for misconduct, and the aggravating factors (those factors which work against the employee and weigh in favor of a harsher penalty) must be included in the proposal notice.

And who is responsible for the proposal notice? The Proposing Official (PO), of course, usually in conjunction with an advisor from L/ER or OGC. The proposal letter, along with any attachments, such as a Douglas Factors Worksheet, is what gives the employee the “advance notice” required by the Douglas decision.

Sometimes a person in our class wants to get into a debate about why we include all 12 factors in the proposal when Douglas only requires the employee to be given notice of the aggravating factors.

It is true that the legal minimum is to give the employee only the aggravating factors, but at FELTG this is one of the few times we go beyond the legal minimum. We don’t want to get into a fight about whether a particular factor is aggravating or mitigating, so we include them all upfront.

One of the examples we use in class to illustrate this principle is length of service. Let’s say the employee has worked for your agency for nine years. Is that length of service aggravating or mitigating? The PO might think it’s mitigating, but if the Deciding Official (DO) thinks it’s aggravating and we haven’t given the employee the “Length of Service” factor in the proposal notice, we run the risk of a due process violation. In addition, the Federal Circuit has highlighted that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, No. 2010-3021 (Fed. Cir. 2011).

If the Proposal Letter contains only three or four aggravating factors, and the Deciding Official does a full Douglas analysis and decides there’s a fifth aggravating factor and does not provide notice to the employee, that DO has committed a due process violation because the employee has now been denied his legal right to fully defend himself. That due process violation is an automatic loser, regardless of the evidence on the merits.

The safest thing to do is to include all the Douglas factors in the proposal. Then we don’t have to make the call on whether a factor that could go either way is more aggravating or mitigating. Makes sense, doesn’t it?

Here’s the process:

  1. Employee is given the proposal notice, an attached Douglas Factors Worksheet, and any evidence relied upon.
  2. Employee responds to the Deciding Official based on the proposal notice and its attachments.
  3. Deciding Official makes a decision based only on the proposal, which includes the Douglas Factors worksheet, and the employee’s response.

As discussed above, the Douglas decision says the employee gets notice of the factors relied upon when the proposal is made – not the decision. So, if the DO agrees with the Douglas analysis in the proposal, there’s no need to add a word to the penalty assessment. Her decision letter will just say: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” No new information, no due process violation.

If the DO disagrees is some way with the Douglas analysis in the proposal, or comes across new information that was not in the proposal or the employee’s response (let’s say she gets an email from a former coworker, discussing how the employee always cheated on his time cards when they worked together), the safest thing to do is to send the employee what we call a Ward letter, describe the new information that was considered, and give the employee a chance to respond to that new information.

If the case ends up on appeal before the MSPB, the Administrative Judge will certainly be more interested in what the DO has to say, than what the PO has to say. This does not mean the DO has to do a separate Douglas Factors analysis, though; it just means that the DO should be intimately familiar with the PO’s Douglas analysis and be prepared to answer any questions about the content therein, since she is signing off on the analysis and agreeing with it.

I hope you agree that in the Great Debate of 2020 (and 2019, 2018, 2017, 2016….all the way back to 1981), the clear winner is Douglas in the proposal notice. We’ve even helped agencies rewrite their discipline policies to reflect this legal requirement. Let us know if you want help with yours; we’d be happy to assist. [email protected]

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

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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

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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?

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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!

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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?

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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

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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

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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]