The Good News: What Says Happy Holidays More than a Column about Due Process Law?

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By Ann Boehm, December 11, 2019

Throughout my career, I’ve often heard people mistakenly say, “That would be a due process violation.”

When this occurs, I feel like I should respond as Inigo Montoya (rousingly played by Mandy Patinkin) does to Vizzini (Wallace Shawn) in the fabulous movie “The Princess Bride.”  It’s the scene where Vizzini keeps saying, “Inconceivable,” and Inigo finally turns to him and says, “You keep using that word. I do not think it means what you think it means.” That’s how I feel about people who wrongly refer to due process. I do not think it means what you think it means.

Due process is a very simple concept. It’s spelled out in a clause of the Fifth Amendment of the Constitution: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Starting in 1881 with the assassination of President James Garfield by Charles Guiteau, a man who failed to get a federal job (a bit extreme, don’t you think?), Congress transformed the Federal hiring process from a spoils system to a merit-based civil service.

By 1912, Congress recognized that the system was still imperfect and enacted the Lloyd-La Follette Act.  A key provision of that Act provided that “no person in the classified civil service …  shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing.”

So since 1912, an employee being removed from Federal employment has received notice of the reasons, in writing, and an opportunity to reply.

Decades later, Congress decided to spell out the due process protections for Federal employees in the Civil Service Reform Act of 1978. Due process rights come into play only if pay is taken away from a Federal employee. (Salary is “property” and that is why you do not have due process rights for a letter of reprimand.)

For suspensions of 14 days or less, the due process rights are spelled out in 5 USC § 7503(b): An employee against whom a suspension for 14 days or less is proposed is entitled to: (1) an advance written notice stating the specific reasons for the proposed action; (2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.

Are you still with me? We’re almost home!

For suspensions of 15 days or more, demotions, and removals, the due process rights are spelled out in 5 USC § 7513(b):  An employee against whom an action is proposed is entitled to: (1) at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action; (2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer; (3) be represented by an attorney or other representative; and (4) a written decision and the specific reasons therefor at the earliest practicable date.

This is what due process is, but here is what it is not.

It does not require that you treat all employees the same. I once had an Employee Relations Specialist tell me that, because we granted extensions of time to anyone who requested one, denying anyone would be a due process violation. Um, no, it’s not.

I recently had someone ask if you could settle a case at the proposal stage without violating due process.  Settling at any point is fine – no impact on due process.  Due process is notice, reply, impartial decision.  That’s it.

Folks, don’t complicate things. Due process is simple. Keep it that way!

Federal employees have plenty of rights. Don’t give them more than what Congress intended. And that’s Good News! [email protected]

Deep-fried Cubicle Chicken, Naked Employees and Unwritten Rules

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By Dan Gephart, December 11, 2019

Here at FELTG, we like to make things as easy as possible, especially when it comes to discipline. The slide that introduces the elements of the discipline portion of our flagship supervisory training course, UnCivil Servant: Holding Employees Accountable for Performance and Conduct, includes this aphorism often attributed to Leonardo da Vinci:

“Simplicity is the ultimate sophistication.”

With that in mind, we introduce the first element of discipline: Establish a rule. How do you do that? Well, that rule could be a law, an agency regulation, or a local policy that is already in place. A supervisor could establish her own unique rule, such as forbidding cell phones in meetings. But not all rules have been put to paper. Some rules employees should just know, whether they’re written or not.

The federal workplace is not alone when it comes to unwritten, or “should have known” rules. Baseball is full of them. “Don’t bunt to break up a no-hitter.” “Don’t try to steal a base when you already have a large lead.” And “don’t flip your bat to celebrate a home run.” That last unwritten rule will lead to a beanball being tossed, which is an unwritten rule that breaks a written rule.

Want to have a big muscular bro drop his dead weight, then drop you at the gym? Just get in his way while he’s lifting. When you’re heading up the escalator, stay to the right. Leave the left side open for passers.

Here’s an unwritten rule I wish everyone followed: If you’re getting gas and a hoagie at the Wawa, pull your car away from the pump before you go inside. That spot next to the gas pump is not a parking space.

These rules are basically assumed societal contracts based on common sense and respect for our fellow human beings, whether it’s on the baseball diamond, in the gym, ascending from the Metro, or in the workplace.

Have you ever felt a desire to be elsewhere more than when you catch that initial whiff of something awful from the microwave slowly snaking its way down the hallway to your work station? That’s a big unwritten workplace rule being broken. However, truth be told, a foul-reeking microwave will lead to someone scribbling the rule down on a piece of notepaper and taping it angrily onto the microwave door, thereby taking away its “unwritten” status.

Are you going to discipline someone for cooking yesterday’s fish in the microwave? No. If the culprit fesses up, though, you should have a short talk with him, preferably in an office far from the kitchen. But you should take a less-forgiving approach to an employee who is deep-frying chicken in her cubicle. Microwaved fish is smelly, deep-fried cubicle chicken is a fire hazard.

And, yes, that fire hazard really happened. It’s one of many stories of jaw-dropping unwritten rule-breaking we’ve heard from our customers over the years, which also includes the employee who thought running naked through the hallway was a fine idea since it wasn’t forbidden in the dress policy, and the employee who liked to masturbate in the office supply closet during work hours.

There are numerous tales of employees catching a little snooze at the most inappropriate of times and places. [If you’d like to share your own unwritten rule story, anonymously of course, then email me.]

You have to wonder how many ZZZs it took for the General Services Administration to propose a rule last month to prohibit sleeping in federal buildings. (I admit an editorial conceit here. The GSA rule, as FELTG President Deborah Hopkins explained last month, is meant to address overnight camping. Still, we’ve pored over the text of the proposed rule and we don’t see it.)

There are clearly more should-have-known rules than written ones. The creativity with which some humans find ways to set new low standards of workplace behavior is abundant.

So if you’re faced with disruptive behavior for which there is no current law, policy, regulation, or rule, and you wonder if it falls in the should-have-known category, ask yourself these questions: Is it common sense? Did the employee’s action show a lack of respect for his or her co-workers?

In other words, don’t overthink it. Keep it simple. [email protected]

Equal Pay Act Claims: Yes, They Exist in the Federal Sector

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By Meghan Droste, December 11, 2019

The discussion of pay inequality — the fact that women still earn less than men in the American workplace — generally seems to focus only on the private sector. The news, by the way, is not exactly great right now. Latina Equal Pay Day, the day when Latina pay catches up to what white, non-Hispanic men earned the year before, was just last month (November 20, 2019), 18 days later than it was in 2018. It was also far behind the equal pay days for other women: March 5 for Asian women, April 2 for the average for all women, April 15 for white women, August 22 for black women, and September 23 for Native American women. We clearly have a long way to go in this area.

The conversation is generally about how to improve things in the private sector, possibly because there is no private sector or industry-wide General Schedule for those not lucky enough to work for the federal government. That doesn’t mean that pay inequity doesn’t exist in the federal sector.  The EEOC issued decisions in multiple cases involving Equal Pay Act (EPA) claims this year. It’s important to be aware of them.

One initial note about EPA claims: Be careful when dismissing them for timeliness issues. While the 45-day deadline still applies for federal sector complainants, each violation restarts the clock.  That means that an employee has 45 days from each unequal paycheck to contact an EEO counselor. Be sure to keep this in mind when determining whether or not a complaint is timely.

When looking at the merits of an EPA claim, the Commission first determines whether the complainant can satisfy the elements of a prima facie case — the complainant received less pay than an individual of the opposite sex for equal work. Equal work is work that requires “equal skill, effort, and responsibility, under similar working conditions within the same establishment.”  See Mercedez A. v. USDA, EEOC App. No. 0120170574 (Mar. 7, 2019). You might have noticed one thing that is missing from what the complainant must prove: intent.  EPA claims do not turn on intent like disparate treatment claims under Title VII or other statutes.  See Mercedez A. v. USDA, EEOC Req. No. 2019004025 (Oct. 17, 2019) (“[I]ntent to discriminate is not a necessary element to prove an EPA violation.”).

An agency can avoid liability by showing that the difference in pay is due to: 1) a seniority system; 2) a merit system; 3) a system that determines earnings based on quantity or quality of production; or 4) any factor other than sex. See Mercedez A., EEOC App. No. 0120170574. Essentially, an agency “must establish that a gender-neutral factor, applied consistently, in facts explains the compensation disparity.” See id. To meet this burden, the agency must be able to articulate the actual reason for the disparity, not merely point to speculative reasons.

One last note: An applicant’s prior salary is not enough to justify a difference in pay. As the Commission has recognized, relying only on prior salary (also known as “market value”) can simply perpetuate pay disparities, in direct contradiction of the purpose of the EPA.  See EEOC Compliance Manual, 915.003, § 10-IV(F)(2)(g). When justifying why your agency offered a lower salary to one new employee than to another, make sure you have more you can point to, including factors such as education and years of prior experience. [email protected]

Old Man Winter and the Requirement to Telework When it’s a Snow Day

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By Deborah Hopkins, December 11, 2019

‘Tis the season. Yes, the holidays are upon us and there are lights and ornaments and Christmas trees everywhere you look. But it’s also the season of snow, sleet, and ice in many parts of the country. And with that, it’s a good time to review OPM’s newish guidance on weather and safety leave, last updated in its Governmentwide Dismissal and Closure Procedures in November 2018 and based on the Administrative Leave Act of 2016.

FELTG readers understand the federal government’s vital business must continue without compromising the safety of its employees and the general public. And while some agencies can shut down for a day or two with no real harm, other agencies absolutely must stay operational no matter what’s happening outside.

Read the procedures for yourself here, but below are some highlights and reminders:

  • First, make sure you know your agency’s procedures about what is expected of you when operating status announcements are issued. Also, be sure you know where to look for operating status alerts. Is it the OPM website, your agency’s website, your local Federal Executive Board, your email, or somewhere else?
  • It’s also important to understand which flexibilities are available to you during specific agency operating procedures, such as unscheduled telework, unscheduled leave, leave without pay, an alternative day off, etc.
  • An agency may grant paid weather and safety leave when it is determined that employees cannot safely travel to or from, or safely perform work at their normal worksite, a telework site, or another approved location because of severe weather or another emergency situation. The cause could be weather, an earthquake, a terrorist attack, or any other situation that causes a danger to employees. There is no annual limit to paid weather and safety leave – it’s all up to Mother Nature.
  • Employees who are set up to telework are generally excluded from receiving weather and safety leave. Because this leave is explicitly granted when travel is dangerous, and employees who telework do not have to travel, they are expected to work as regularly scheduled. There are exceptions if, in the agency’s judgment, the telework-capable employee could not have reasonably anticipated the severe weather or other emergency condition and, therefore, did not take home needed equipment or work.But in general, telework-eligible employees are expected to anticipate telework days if the forecast makes weather-related leave likely
  • Employees on preapproved leave may not receive weather and safety leave even if their colleagues were granted the leave. That means if you used 40 hours of annual leave to escape the cold and go on a cruise, and that same week there is a snowstorm where you live and work and your colleagues get 16 hours of weather and safety leave because the roads are snowed in, you still have to use all 40 hours of annual leave. If you’re on leave, whether in or out of town, you don’t get the benefit of the snow days.

The new OPM Director also issued a memo with more highlights. Be safe out there! [email protected].

EEOC’s Fiscal Year 2019 Agency Financial Report

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By Meghan Droste, December 11, 2019

With the year (and the decade!) rapidly coming to a close, I decided to forgo our usual discussion of tips to avoid trouble with the Commission, and instead review some good news from the EEOC. In its recent Agency Financial Report, the Commission touts multiple improvements in the processing of federal sector complaints in FY19, even while it faced a noticeable increase in both hearing requests and appeals.

As any federal sector practitioner can tell you, part of why the EEO process takes so long is the sheer number of cases pending before the Commission at any time. The Commission has been making a significant effort in recent years to reduce the number of cases pending before both administrative judges and the Office of Federal Operations (OFO). The improvements continued in FY19, although not always outpacing those from FY18.

In FY19, the Commission resolved an impressive 10,608 federal sector hearing requests, up from 8,662 in FY18. These decisions resulted in $87.8 million in relief for complainants, a slight increase from $85 million the prior year. The total inventory of pending cases only decreased by 5 percent, down from a decrease of 8.6 percent in FY18, because the Commission saw an increase in the number of hearing requests complainants filed in FY19. The Commission also received a larger number of appeals in FY19, and issued 4,094 decisions. That is a slight decrease from the 4,320 it issued in FY18.

The decisions resulted in $12.8 million in relief for appellants, down from $13.6 million in FY18. Perhaps most notably, the Commission reduced the number of appeals pending for more than 500 days from 601 in FY18 to just 97 in FY19.

There is obviously still room for improvement. The numbers of pending hearing requests and appeals are still high, and anecdotally, I can share that attorneys representing complainants have noticed that some of the decrease inventory seems to come from judges issuing summary judgment sua sponte before discovery in cases where it may not be appropriate (which will just lead to an increase in the number of appeals). Even with these caveats, I still think it is worth applauding the Commission’s efforts in 2019. Hopefully this time next year they will have even more good news to share!

And with that, dear readers, I wish you a happy and healthy new year!

[email protected]

Yes, ADHD Actually is a Disability – and NO, All Kindergartners Don’t Have It

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By Deborah Hopkins, December 3, 2019

My brother is several years younger than I am, and I remember when he was in kindergarten, his teacher recommended he go on Ritalin because he was hyper and she thought he had ADHD. My parents were taken aback and started talking to other parents who had children in my brother’s class. It turns out the teacher had recommended that 22 out of 25 of her students go on Ritalin.

I’m no medical expert, but I can tell you that 22 kids in his class did not have ADHD; they were five and six years old and had energy, as kids do. Maybe the teacher should have opted for a classroom of students who were a bit older, but I digress.

As we teach during the behavioral health day of Emerging Issues Week (next offered in Washington, DC, July 20-24), ADHD is a brain disorder with a pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development. This may include:

  • Inattention – individual wanders off task, lacks persistence, or has difficulty sustaining focus.
  • Hyperactivity – individual moves about constantly, excessively fidgets, taps, or talks. The individual is frequently restless.
  • Impulsivity – individual makes quick decisions without thinking through them first; may have a desire for immediate gratification and/or may be socially intrusive.

Note: These problems are not due to defiance, lack of comprehension or substance use.

I’m not sure if the over-diagnosis of ADHD in the 1980s and 1990s has led agencies to believe it is not a legitimate disability, but don’t make that mistake. ADHD does exist and for the people who have this condition, the symptoms and effects are very real.

If you’ve been in this business longer than five minutes, you are aware that Americans With Disabilities Act, the Rehabilitation Act, and the various amendments to these laws provide employment protections to certain people with disabilities.

In order to be covered the employee or applicant must:

–      Have a physical or mental impairment that substantially limits one or more of the major life activities of such individual,

–      Have a record of such an impairment, or

–      Be regarded as having such an impairment

42 USC § 12102(1).

Obvious physical impairments are sometimes handled better by agencies than mental impairments. Indeed, a number of mental impairments, such as ADHD, are what we refer to as “hidden,” “unseen,” or “invisible” disabilities. While it’s true that many physical disabilities are also invisible to the observer, there have been too many cases where agencies denied reasonable accommodation to employees with unseen mental impairments.

I’d like to look at two cases involving ADHD.

In the first, the complainant, who had ADHD, had a difficult time concentrating, so she requested to be moved to a quieter work area. Though the agency agreed the complainant had a disability, it took two years (!!!) before it addressed her request to move to a quieter, low-traffic area to work. She also requested she be allowed to do work that “focused on the task at hand,” be allowed to avoid multi-tasking whenever possible, and that the agency provide her with time to readjust when moving from one thing to another and time to formulate ideas when trying to streamline questions or statements. The agency did not grant these additional requests beyond the workspace move, and the complainant’s performance rating was affected as a result. The Commission found the agency did not show it would be an undue hardship to consider these requests and ordered the agency to expunge negative performance reviews from her file, and to consider the complainant’s claim for compensatory damages. Michelle G. v. Treasury, EEOC Appeal No. 0120132463 (May 13, 2016).

In the second ADHD case, the complainant’s condition substantially limited her ability to concentrate. She also experienced side effects from multiple medications which further affected her ability to concentrate. Her request for accommodation included a medical note that stated, “cannot concentrate in loud open cubicle environment.” She requested a regular telework schedule, a private office or cubicle, or a modified work schedule. The agency requested additional information, which the complainant responded. Her medical documentation noted that the cubicle location allowed “for too many distractions for her disability” and that she “needed to work in the most distraction-free environment possible (e.g., a private office or quiet cubicle away from noise and/or distractions).” This did not satisfy the agency, so they asked for more. Once again, the complainant complied. Her doctor explained that she was: [H]aving difficulty wrapping up the final details of a project, organizing things, evidencing signs of physical and mental restlessness, easily distracted by noise, talking too much and interrupting people, and trouble waiting her turn, which Complainant’s doctor described as “classic signs of ADHD.” The complainant’s doctor added that medication “was not the full answer” and that “ADHD impact[ed] upon one’s ability to care for self, to speak appropriately, to interact with others, to concentrate and to work effectively.” The agency considered this medical documentation insufficient, so the complainant filed an EEO complaint over the denial of reasonable accommodation.

Eventually, the Commission found that the Agency failed to present sufficient evidence that granting the complainant’s request would have been an undue hardship, and the complainant received $60,000 in non-pecuniary damages, plus pecuniary damages and attorney’s fees. That’s an expensive lesson to learn. Selma D. v. Education, EEOC Appeal No. 0720150015 (April 22, 2016). [Allow me to note that the original RA request came in 2007 and the decision was not issued until 2016. Talk about harm.] So, there you have it.

If you want more, there’s still time to join FELTG’s webinar Accommodating Hidden Disabilities in the Workplace this Thursday. [email protected]

A New Way to Fire Bad Performers

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By William Wiley, November 13, 2019

Actually, it’s not new; it’s the way Congress intended it be done starting in 1978. Check out the following situation. As a legal or HR advisor, consider what you would advise.

Sally Supervisor tells you her problem: Ed Employee just can’t do his job. He’s a GS-14, and he routinely submits “finalized” reports with typos, missing data, and improper calculations. Over the past couple of months, she’s repeatedly had to return reports to Ed with many mistakes marked in red and instructions that they be corrected. Ed’s resubmissions sometimes still contain errors. She has reminded him that his mistakes are related to the very first critical element in his performance plan, and has told him several times that if his work does not improve, she will fire him.

We have taught for many years here at FELTG that the best advice in this hypothetical is to draft a Demonstration Period (DP, aka PIP or ODAP) Initiation Memo for Sally to issue to Ed. That memo should check off what we believed to be important legal requirements:

  1. Identification of the Critical Element(s) in Ed’s performance plan related to developing accurate reports,
  2. Clarification as to what Sally considers to be the minimal level of performance for Ed to keep from being fired (e.g. “More than three errors during the DP is unacceptable performance and warrants removal”),
  3. Establishment of a period of no more than 30 days for Ed to be given a chance to demonstrate that he can perform acceptably,
  4. Assignments for Ed to accomplish during the DP related to the failed CE,
  5. Weekly meetings in which Sally gives Ed specific feedback as to his errors, followed up with emails confirming the matters discussed, and
  6. Explicit notification that if Ed makes more errors than allowed, Sally will take steps to remove him from his position.

Compared to the expansive, overly burdensome procedures we hear that a lot of advisors would give Sally (e.g., a 90-day PIP), we proudly felt that we had boiled the legal requirements for firing a poor performer down to the statutory minimum.

And, we were wrong. Check out this language from a recent publication by MSPB’s Office of Policy and Evaluation (OPE).  [FELTG Training Director Dan Gephart recently interviewed James Read, the Director of the Office of Policy and Evaluation.] In respect to OPM’s regulation defining how an agency can fire a poor performer, 5 CFR 432.104, OPE notes:

This regulation does not state that an agency must create a formal (or even informal) performance improvement plan. The Board has held that the communications required by OPM’s regulation may occur in a formal performance improvement plan, in counseling sessions, in written instructions, or in any manner calculated to apprise the employee of the requirements against which he is to be measured. [Citing Baker v. DLA 25 MSPR 614 (1985), aff’d 782 F.2d 1579 (Fed. Cir. !986)]

Remedying Unacceptable Employee Performance in the Federal Civil Service, June 18, 2019, p. 14.

Many practitioners and policymakers read into OPM’s regulations that a formal DP is required prior to removing a poor performer. That’s no doubt because the earlier permutations of OPM’s regulations from the ‘80s mandated that a supervisor initiate a “performance improvement period.” Although OPM did away with that formality as the case law developed, it never explicitly said by regulation that a structured DP was not required.

When VA’s law was changed a couple of years ago to make it easier to fire employees (Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, 38 USC 323), it became clear that henceforth in the VA, a formal demonstration period was not a necessary prerequisite to a poor performance removal. Many practitioners outside of VA were somewhat jealous of the reduced procedures that had become available to VA managers when dealing with a poor performer.  Well, in consideration of MSPB’s clarification in the recent OPE report, it seems that we have stumbled on a secret like that of Dorothy’s ruby slippers: OPE serves as the good witch of the north and we Munchkins have “always had the power.”

As Glenda told Dorothy, I guess they didn’t tell us earlier because we wouldn’t have believed it; we have to learn it for ourselves.

So now we’ve learned it. And we have the power. FELTG Nation! Click your little ruby-red heels together and go spread the word. Turn up your speakers, prepare for your day to get demonstrably better, and click here: The wicked old PIP-witch “is not only merely dead, it’s really most sincerely dead.” [email protected]

Can You Fire A Federal Employee for Body Odor or Bad Hygiene?

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By Deborah Hopkins, November 13, 2019

You’ve probably all dealt with this situation at some point: You’re sitting on an airplane, bus, or subway train, or at a concert or in church or in a meeting, and you catch an odor from the person sitting next to you. It’s not a temporary odor that’s the result of an accidental gas release from an upset stomach. It’s a fixed odor that’s likely related to bad hygiene.

I remember one time flying on Southwest Airlines and being so grateful that the seats were not pre-assigned; a seatmate who had some very unpleasant odors settled in next to me and I was able to move without having to endure a 3-hour flight in that seat. With my overly sensitive sense of smell, I had to get out of there ASAP. While it might seem mean to say it’s difficult to be around people with bad odors, I’m not saying it to be mean. I think most readers would agree it can be a real challenge to be exposed to people with certain hygiene issues.

In many of these unpleasant situations, the arrangement is temporary, and in a number of cases you are able to remove yourself from the situation like I did on my flight. But what happens when the problem is coming from an employee or coworker who you have to see – and work around – every day?

Believe it or not, we have MSPB cases on the topic. A very old, foundational case addressed the matter of an employee who had unhygienic personal habits which went beyond body odor and included intentional defecation of himself in the workplace. The agency removed him on four charges including (1) non-compliance with work standard; and (4) unhygienic personal habits. The presiding official – who we now call the Administrative Judge – concluded that the appellant’s unhygienic personal habits alone would have been sufficient to remove him. Interestingly, the employee argued that his disability (colitis) caused the misconduct, the MSPB didn’t buy that argument and agreed with the presiding official:

The evidence of record plainly shows the demoralizing and unhealthy environment created by appellant’s personal habits. The record also reflects that the agency frequently counseled appellant as to his hygiene and that appellant made no effort to change. The agency endured appellant’s poor performance and unhygienic habits for many years. It need not exercise forbearance indefinitely. Gertzman v. INS, 9 MSPR 581, 583 (Jan. 19, 1982).

It’s true that sometimes body odor is disability-related, and you may need to consider an accommodation. However, that was not the case in Gertzman.

In another old case, the agency removed a probationer for failure to improve her personal hygiene after repeated warnings and counseling from her supervisors and after several complaints about her odor from her coworkers and members of her trade. As many of our readers know, if a probationer is removed, she has very limited appeal rights to MSPB and may only appeal if her removal was based on partisan political reasons or marital status. 5 USC 7511(a)(1)(A)(i); Ney v. Commerce, 115 MSPR 204 (2010). In this case, the appellant claimed she had hygiene and odor issues because her status as an unmarried person prevented her from obtaining resources that would allow her to improve her personal hygiene. The MSPB didn’t buy that argument, either, but you can’t blame a person for trying. Hilden v. USDA, 8 MSPR 300 (Oct. 1, 1981).

I’ve got more. There’s the Bureau of Prisons supervisor who for years urinated in a mop closet – not into a bucket but onto the closet floor – rather than walk to the restroom to use the proper facilities. As if that’s not bad enough, he also encouraged his subordinate to do the same. His demotion for Conduct Unbecoming a Supervisor was upheld. Hutchinson v. DOJ, 211 MSPR 77 (May 5, 2014). Then there’s the food inspector who was suspended for “improper conduct” because he intentionally passed gas around his coworkers on the food inspection line, and then asked them to smell it. Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID).

What about the employees who bring critters in to the office with them? No, not emotional support animals (that’s a different article) but things like bedbugs. Can you tell the employee they are prohibited from bringing bedbugs in to the office? Well, sure. As long as you have a business-based reason, you can set a workplace rule for an employee, and there is most certainly a business-based reason for not wanting bedbugs in a federal office. Tell the employee, then follow up in an email: “Do not bring bedbugs to the office.” If necessary, you can even do an indefinite suspension until the employee demonstrates medically she is free of the little critters. See, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), cases which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unhygienic, conduct in the workplace. [email protected]

More on Excessive Absence and the Third Cook Factor

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By Barbara Haga, November 13, 2019

Following up on last month’s column, I continue to look at cases which further illustrate use of the Cook exception to remove an employee for excessive approved absence. In last month’s examples, the Army and Air Force were able to produce evidence regarding the problems created by their employees’ absences. This time, we look at cases where agencies didn’t succeed. To recap, Factor 3 is: The agency showed that the position needed to be filled by an employee available for duty on a regular, full-time or part-time basis.

In Walker v. Air Force, 84 FMSR 5882 (1984), the Board overturned the AJ’s decision to uphold Walker’s removal for excessive absence and AWOL. This decision is short and dispenses of the two issues quickly. Regarding the AWOL, the Board held that the Air Force should not have denied LWOP since Walker had already applied for disability retirement and the Air Force instruction in place at the time stated: “Leave without pay is appropriate “[f]or protecting an employee’s status and benefits pending final action by the [Office of Personnel Management] on his claim for disability retirement, after all sick and annual leave have [sic] been exhausted.”

More importantly for our analysis, the Board wrote the following:

The agency was well aware of the appellant’s pending application for disability retirement. Although it indicated, in the notice by which it disapproved the appellant’s request for leave without pay, that its disapproval was based on its belief that the appellant’s position “need[ed] to be filled by an employee who is available for duty on a regular full-time basis,” memorandum from G. Potter to appellant, August 11, 1983, the record shows that the agency had been able to assign the appellant’s duties to other personnel during the ten-month period prior to the disapproval, id. In addition, the agency has not disputed the appellant’s claim that, four and one-half months after the effective date of the removal, the appellant’s position still had not been filled. In view of these circumstances, we find that the agency’s disapproval of the appellant’s request for leave without pay constituted an abuse of discretion.

Unlike Gartner and Zellars reviewed last month, the Air Force, in this case, didn’t identify problems caused by Walker’s absence. The fact that the work was covered by other people and the job remained vacant without evidence of any adverse impact didn’t help the Air Force’s cause.  This concept that there was not a significant enough adverse impact appears in the Miles case discussed below, and, in fact, the Miles decision cites Walker on this point.

The case of Miles v. DVA, CH-0752-14-0374-I-2 (2016)(ID), which is an judge’s initial decision, incorporates the findings from Savage and McCauley regarding counting hours of excessive absence and is a good analysis of what can go wrong under several of the Cook factors.

Miles began his career with VA as a Program Support Clerk and was appointed to the position of Claims Assistant on April 22, 2012. He had a service-connected disability and verbally advised the agency of the disability during the interview for the Claims Assistant position. He requested reasonable accommodations shortly thereafter; his disability included injuries to both hands and wrists, requiring at least 12 surgeries between 2001 and 2013.  The reasonable accommodations included a different keyboard and some other furniture as well as voice-activated software. He was not provided the voice-activated software until roughly one year after his report date. When he did get the software, he reported problems with it and resorted to manual processing to avoid further problems with the hands and wrists, but he was advised that he still had to meet the performance standards for processing cases each day.

Eventually, he needed more surgery and needed to be out six months for recovery and resulting therapy.  Twelve weeks of that absence was covered under FMLA.  Once he recovered from that surgery, he was scheduled to have surgery on the other wrist.  The agency granted some additional LWOP, before taking action under Cook.  The agency’s handling of the balance of the leave for his recovery and the need for his services resulted in this ruling by the AJ:

Further, the undisputed evidence in the record indicates the absence at issue here cannot be described as having had no foreseeable end at the time of removal. The appellant provided the agency with information that the general recovery period for his right wrist replacement was six months, and the agency noted his inability to return for approximately six months in his monthly performance review. IAF-1, Tab 19, Ex. 5; Tab 43, pp. 302-03. I find nothing in the record suggesting the agency had such an urgent need to replace the appellant that it could not wait an additional few months for the appellant to recover fully. It had already granted the appellant over 1,000 hours of leave during the year prior to his removal. Despite the agency’s evidence it is operating at fifty percent staffing levels and is under tremendous internal and external pressure to reduce and eliminate its massive backlog of claims, Ms. Hamilton testified she would have considered granting the appellant additional leave. IAF-1; Tab 42, p. 34; see also, e.g., IAF-1, Tab 19, Ex. 42. Ena Lima, the Service Center Manager, acknowledged during her testimony the agency has remained at the fifty percent staffing level present at the time of the appellant’s employment. See IAF-1, Tab 42, p. 65. Furthermore, even with the reduced staff, the agency appears to have made great strides in reducing the number of pending cases from 15,000 at the time the appellant was working to approximately 8,000 current claims.

Thus, to be successful, agencies need to be able to show some real impacts of the absences – overtime money spent, temporaries or contractors utilized, employees detailed to cover the work of the employee on leave, other employees taken away from their work, deadlines missed that are attributable to the absence of the employee being removed, etc.  As shown above, backlog alone may not be enough.  As to recruitment, agency witnesses should also be ready to address the filling of the position.  Even if it has been a while, which unfortunately is all too common these days, they should be ready to talk about the steps they have taken to initiate recruitment and where they are in the process to ensure that they can establish that some urgency has been attached to the situation.

The Good News: Good Leadership Does Make a Difference

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By Ann Boehm, November 13, 2019

In case you hadn’t heard, the Washington Nationals won the World Series!! Sorry Astros fans, but DC really needed this.  Now that I’ve almost recovered from the daily fog of staying up too late to watch seven baseball games, I’ve had some time to reflect on the win.  (Um, Ann, this is a federal employment law newsletter, not a sports journal.  What’s going on here?)

And so, I’ve concluded, good leadership is the key to success. (See, I’m getting there. I have lessons for you all.)

Before the Nationals started Game 1 of the World Series, I read an article about Nationals manager Dave Martinez and his exceptional leadership. “Things change, but Dave Martinez remains the even-keeled beating heart of the Nats,” by Chelsea James, Washington Post (October 24, 2019). One particular part of the article really hit home to me, and that’s the following:

[M]ultiple team executives and players offer unsolicited praise of his handling of people:  He doesn’t berate players. He doesn’t play mind games. He lets veterans lead how they see fit.  He stays positive. He smiles. He cares.

Well aren’t those some words to live by!

Federal managers, please read that paragraph again and again. Ask yourself if your employees could say the same about you. And if the answer is no, then do what Dave Martinez does.

We know that you have to deal with problem federal employees, and we do our best to help you handle performance and misconduct matters.  Sometimes you get frustrated by resistance from the human resources professionals and counsel who are risk averse, and we feel your pain. But no matter what, if you can try to run your organization a bit more like Dave Martinez runs the Washington Nationals, you may find that your employees take better care of you.

I’ve had my share of good and bad bosses throughout my career.  The good ones were a lot like Dave Martinez. The bad ones – polar opposites.  Even good employees are frustrated by bad managers.

Take a moment to think about how you run your organization, and see if you are doing what Dave does.

So let’s review:  Don’t berate.  Don’t play mind games.  Let veterans lead how they see fit. Stay positive. Smile. Care.  Let me know if it works! [email protected]