It’s Beginning to Look a Lot Like … The Holiday Season

, ,

By Meghan Droste, November 13, 2019

Time really flies — it feels like just a few weeks ago I was writing about how the EEO process should be your Valentine and now, all of sudden, we’re about two weeks away from Thanksgiving. Of course, the fact that my neighborhood grocery store put away the Halloween candy and already had Christmas-themed items out days before Halloween certainly doesn’t help with this. Regardless, we cannot ignore that the holiday season and all of its related decorations, festivities, and yummy treats are upon us once again.

To help you prepare for and navigate through this time of the year, here are some helpful decisions from the Commission on things that may or not be problematic:

For those of you wondering whether holiday decorations might be religious displays that are not permitted in government spaces, the answer is not necessarily. As the Commission has noted, according to the Supreme Court, Christmas lights and references to Santa Clause “amount to secular symbols rather than an expression of a religion” and, therefore, federal agencies can display them without running afoul of the First Amendment’s prohibitions against the federal government establishing a religion.  See Garry H. v. Dep’t of Transp., EEOC App. No. 0120181570 (Sept. 24, 2019) (citing County of Allegheny v. ACLU, 492 U.S. 573 (1983)).

As a result, an agency did not discriminate against an employee based on his religion when it removed a “Happy Hanukkah” sign and a garland with stars of David but kept up Christmas lights and a sign that said “Santa is coming to town in [x number] of days.”  See id.

What about accommodating an employee who does not want to see holiday decorations?  The Commission addressed this issue in Ian S. v. Department of Transportation, EEOC App. No. 0120160622 (Apr. 27, 2018). The complainant requested a religious accommodation of being permitted to eat at his desk — employees in his unit were not allowed to have food or uncovered beverages at their desks due to the risk of damaging agency equipment —because he did not want to eat in the breakroom when it was decorated with Christmas decorations.  The agency offered to allow him to eat in a breakroom in another, connected, building, but the complainant argued that this was not an effective accommodation because it would take too long to get to the other room. The Commission found that the agency’s offered accommodation was sufficient, particularly because the complainant had not voiced his concerns about the distance to any of his managers. The Commission also noted that the decorations — a tablecloth and two poinsettias — were secular and not religious in nature.

Finally, a quick reminder that not wanting someone at a holiday party is not a good reason for not hiring them. In Ebonie L. v. Department of Transportation,  EEOC App. No. 0120171469 (Feb. 12, 2019), the complainant’s supervisor reprimanded her for saying that she did not want to hire a male applicant because having a male administrative employee “makes the administrative Christmas lunch and gift exchange awkward.” The Commission rejected her claim that the reprimand was discriminatory or harassing.

I hope these tidbits easy your minds and bring you some joy during the upcoming holiday season! [email protected]

Takeaways from OPM’s 2019 Federal Employee Viewpoint Survey

, ,

By Deborah Hopkins, November 13, 2019

It’s that time of year again. No, not the time when the stores put out Christmas decorations and pre-black-Friday sales begin (although that is happening, too). It’s the release of OPM’s 2019 Federal Employee Viewpoint Survey (FEVS). Each year as I await the report, I wonder what new pieces of information we’ll learn about how the federal government is doing as an employer. And each year, I learn something I didn’t know before. In case you haven’t had a chance to read it, here are a few takeaways, in ascending percentage order, from over 615,000 federal employees who participated:

  • 17% of respondents said there were no poor performers in their work unit.
  • 34% believe their supervisors take steps to deal with a poor performer who cannot or will not improve. Looking at it from the other side, this means that 66% of employees still don’t think supervisors are taking action against poor performers. Not a great number, but it is still the best percentage on this question in recent memory.
  • 39% believe that differences in performance among employees in their work unit are recognized in a meaningful way. Again, this means that 61% do not feel recognized.
  • 56% said that poor performers remain in their work unit and continue to underperform.
  • 57% believe their training needs were assessed and addressed in the past year.
  • 59% think their workload is reasonable.
  • 66% would recommend their organization as a good place to work.
  • 67% believe they can disclose a suspected violation of any law, rule or regulation without fear of reprisal – in other words, two-thirds of employees believe it’s safe to be a whistleblower in the federal government.
  • 71% of respondents agree with their most recent performance rating.
  • 83% believe their supervisors are holding them accountable for performance.
  • And, and astounding 96% of employees who responded said that when needed they are willing to put in the extra effort to get a job done. This proves what FELTG has always known, that most of our readers are incredible, hard-working, dedicated employees who want to make the government a better place.

There’s also an entire series of questions related to the impact of the 35-day shutdown, which is not very eye-opening but because it’s new you might find it interesting. If you want to read it yourself, check it out here. [email protected]

Tips from the Other Side: November 2019

, ,

By Meghan Droste, November 13, 2019

Long-time fans of FELTG are probably aware that our former president and professor emeritus Bill Wiley and our current fearless leader Deborah Hopkins are fans of alternative methods of discipline — ways to hold employees accountable other than suspensions and removals.  One of the prime examples of alternative discipline is a last chance agreement (LCA). In an LCA, the agency holds a potential disciplinary action, such as a removal, in abeyance for a set period of time. If the employee does not reoffend during that time, the potential discipline goes away.  If they do, the agency moves forward with the action and the employees cannot challenge, having waived their right to by agreeing to the LCA.

Sounds simple, right?  Well, as with so much of what we do, yes and no. The concept is simple, but of course there are certain details that, if ignored, can make things far more complicated.

First, although you can have the employee waive the right to challenge the action and any claims of discrimination or harassment that occurred up to the signing of the LCA, you cannot have the employee waive future claims of harassment. That means if something happens the day after the LCA, the employee can still file a claim of harassment, discrimination, or retaliation based on the new event.

Another wrinkle is making sure that you comply with the Older Workers Benefit Protection Act (OWBPA). The OWBPA, which is part of the Age Discrimination in Employment Act (ADEA), sets out specific requirements for valid waivers of potential age discrimination claims. These requirements, which apply to employees age 40 and older, include a specific waiver of age claims, a period of at least 21 days to consider the waiver, and a 7-day revocation period after signing.  If an agency fails to include a proper OWBPA waiver in an LCA, the employee may raise age discrimination claims that occurred before the LCA. See Jaleesa P. v. Dep’t of Veterans Affairs, EEOC App. No. 2019001777 (Aug. 14, 2019).  This of course defeats at least some of the purpose of having the LCA to begin with.

One way to avoid these issues is to think of the LCA as settlement agreement, because with the waiver of claims that’s essentially what it is, and ensure that you keep in mind the same considerations you would in a traditional settlement agreement.  If you don’t, you may find yourself defending against claims you assumed were waived. [email protected]

Do You Really Want to Give a Poor Performer the 5-Star Lyft?

, ,

By Dan Gephart, November 13, 2019

John Horton knows which rating you gave your last Uber driver.

Horton isn’t a mind reader. He’s a professor at New York University, and he studies online marketplaces. His research found that most Uber/Lyft customers give their drivers a 5-star rating, regardless of the quality of the ride, the choice of music, or the stink of the car. Online publisher Mic recently broke the study down: “(P)eer-to-peer apps are designed to induce customer guilt and thus promote rating inflation. The act of sitting in a car with your service provider, the study found, humanizes them.”

I have a similar penchant for overly positive ratings when it comes to Goodreads. The social media app allows you to track the books you’re reading, have read, or want to read, and to rate and review those books, then share that information with others. Like Uber and Lyft, it uses a five-star rating system. As the husband of an author, I know how much work goes into researching, writing, editing, and revising a book, and it sways my Goodreads ratings. Absorbing, engaging, well-written page-turners that I want to read again and share with the world? That’s easy – five stars. Books that weren’t bad, but quickly forgettable? Five stars. Did the book fall flat, put me to sleep, or take a huge effort to even finish? Five stars, five stars, and five stars. Basically, if your book got four stars from me, you might want to put down your pen before you hurt somebody.

Economists, social scientists, and tech experts have been raising concerns about five-star rating systems for the last several years. A recent Harvard Business Review article stated :“(W)hile simple five-star systems are good enough at identifying and weeding out very low-quality products or suppliers, they do a poor job of separating good from great products.”

There is an inherent problem with five-star ratings, whether they are being used to select restaurants or book travel. And that glitch is heightened when the reviewer and reviewed have formed a human connection. Yet when it comes to measuring the work of federal employees, many agencies still use a five-step performance rating system. And there are few humanizing situations like a performance review.

It’s not as if we don’t have a problem with poor performance in the federal workplace.  In the latest Federal Employee Viewpoint Survey, only 36 percent of non-supervisory employees believed that appropriate steps are taken to deal with poor performers. And this problem has been around a lot longer than the FEVS. When looking through old MSPB reports for my recent And a Word With … interview with James Read, I came across the agency’s Federal Supervisors and Poor Performers, submitted to the President and Speaker of the House in 1999. The report’s executive summary states the following:

Federal employee surveys and other indicators over at least the last 18 years suggest that most employees, including supervisors themselves, judge the response to poor performance to be inadequate.

FELTG training attendees know that in any given year only three or four percent of removal actions (aside from suitability, probationary, or other less-common removals) are performance-based, while the remaining removals are conduct-related. Even a math-challenged Training Director can tell you those statistics are out of whack with 40 years of concern about performance.

There are dozens of reasons why poor performance problems continue to flourish seemingly unabated, and five-step performance systems probably won’t make anyone’s top five of those reasons. Not that there aren’t others reason to oppose five-step performance systems. They can even lead to overturned performance actions, as FELTG Past President Bill Wiley has explained previously.

Here’s the issue: The five-step performance systems offer sympathetic supervisors a gray area, giving them an out on a tough decision, and allowing performance problems to linger. In the tech world, the five-star rating systems fail to separate the good and great. In the federal workplace, those systems also fail to separate those successfully meeting their job requirements from those who aren’t.

In a five-step system, the third level is usually “fully successful” and the second level is usually “minimally successful.” As Barbara Haga points out during the Performance Management portion of her three-day Advanced Employee Relations course, an employee can be rated at Level 2 for his entire federal career and a performance-based action cannot be taken. [Side note: Don’t miss Barbara’s upcoming Advanced ER sessions in New Orleans or Atlanta.]

Why should we allow an employee who is not fully successful to continue working at that level with no apparent end? Oh, he won’t get any step increases. And he may lose some retreat rights in RIFs. Do you think that matters to the coworker watching this minimal performer do the absolute minimum?

By the way, if you did not give your Uber/Lyft driver a 5, kudos to you. You are not an uncaring human. In fact, the most altruistic customers are the ones who give honest feedback, according to Horton. As a result, they improve the rides for everyone.

So supervisors: Next time you’re making a decision on performance ratings, be as honest as possible, and improve the employment ride for the rest of your employees. [email protected]

And Now a Word With … James Read

,

By Dan Gephart, November 5, 2019

Last month, we talked with MSPB General Counsel Tristan Leavitt about the adjudicatory and other work that the 200-plus employee agency continues to do despite not having any Board members since February. It’s a few weeks later and the Board still lacks members, while the lack of a quorum has inched even closer to hitting the three-year mark.

This month, we catch up with James Read. The former chief counsel for then-Member Robbins took over as director of the agency’s Policy and Evaluation office a few years ago. Read oversees the group of psychologists, HR specialists, statisticians, and lawyers who fulfill the agency’s statutory responsibility to conduct objective, non-partisan studies of the Federal civil service and other merit systems in the Executive Branch.

DG: How have your unit’s reports been hampered by the lack of a quorum?

JR: We’ve been putting out publications in shorter form since we lost the quorum, but it’s more than just length. The official reports as described in statute go to the President and Congress and are approved by the board, and they typically contain policy recommendations. They are only issued with approval of board members. Our thinking is that to the extent we can provide useful information through research briefs, we should. They are a little lighter on recommendations, but we have been putting out publications.

We have information about sexual harassment in the federal workplace that others don’t have. We’ve been releasing some of it, but an official report is on hold. Almost everything else we’ve been trying to convert to shorter publications.

DG: How do you measure whether a report is successful?

JR: We don’t have a hard measure. We look at the audience for which a report may be intended, and see what effect it had on the audience. Some reports are for policy makers. A successful report would be one that results in change of policy. An example would be our 2014 report that talked about veterans hiring, and a DOD-specific authority that was restricting competition for jobs and had other unintended consequences. Congress took it up and changed the law — and cited our report. That’s an example of success.

Other reports, we intend as educational pieces. Some are intended for managers and new leaders to help educate them. I’ve heard of chief learning officers in agencies using our reports to design in-house training. When that happens, a report did its job.

Sometimes, reports are intended for multiple audiences at the same time. We’ll have practice pointers intended for HR and managers, footnotes and appendices intended for researchers, people trying to replicate the work in their organization. We believe it’s important to show our work, so we remain credible. We’re not just sitting here in an ivory tower contemplating. We have an empirical basis for our findings.

DG: You recently asked for input on what reports people want to see. What kind of input did you get? What reports will you be doing based on that feedback?

JR: (We received) hundreds of ideas. The last time we went out asking for ideas was 2014, so five years on we felt we needed to refresh the ideas. The timing seemed to make sense with the lack of quorum. We went out to stakeholders, unions, chief human capital officers, affinity groups, and individuals. A lot of what we got were variations on themes of what we’ve seen throughout the years: Are whistleblower protections adequate? How can we improve the hiring, classification, compensation and performance management systems? Are they due for overhauls? How does the government adapt to changing expectations of younger workers? What alternatives might there be to the Title 5 system? We’ve been vetting and refining the ideas for several weeks now. Our goal is to have a proposed agenda to present to the new chairman when he arrives.

DG: What has been the most controversial report you’ve done?

JR:  A 2015 report of how agencies use various appointing authorities and the results of the different choices agencies make caused a bit of a stir. The report found Title 5 hiring rules systematically favor men over women. We found, for example, that since the 1970s, women’s participation in general civilian labor force grew from the lower 30 percent range to almost 50 percent, but in many years the government was not even reaching 40 percent.

The Civil Service Reform Act of 1978 states that the Government should strive to achieve a workforce representative of all segments of society. For many years now, women have been earning more bachelor’s degrees than men and they make up almost half the civilian workforce, yet under 40 percent of new hiring is women. This took people by surprise. They thought we were attacking OPM, and that was certainly not the intention. The biggest question raised by report was: What do we do about this?

One side note: We were criticized for not including VA nurses. If we had included them in the percentage of women as new hires, it would’ve been higher. But in a way, that criticism showed our point. We were looking at Title 5 hiring, and the nurses at the VA are hired under Title 38. So staying within Title 5 world, you do see a hiring system that appears to disadvantage women.

DG: Will you follow up on this report?

JR: I’d like to follow up. The last time I looked at the numbers was for FY 16 and they hadn’t budged. It’s a good area for follow-up, not a full-blown report but a dive into the statistics. It may be that to some extent women are making individual choices not to seek government employment in the same numbers as men do, so we need to study the applicant pool.

DG: The Supreme Court will rule this term on whether Title VII covers discrimination based on sexual orientation. You did a report on that a few years ago. However, that report wasn’t controversial. 

JR: There had been questions swirling for years: What’s the source of the prohibition? Title VII of the Civil Rights Act? The CSRA of 1978? Something else? We looked at the history of systematic discrimination against gay employees and the gradual change of view to acceptance. Clarity regarding the legal prohibitions was needed, but MSPB had be extremely careful not to come down on one side or another because MSPB is not a policy-making body. Every year since 2000 or so, there was someone in the House who introduced a bill to amend Title VII to prohibit discrimination in employment based on sexual orientation. We didn’t want to look like we were taking a side in the debate. We were expecting some backlash from the report, and we didn’t get it. The report was well-received.

DG: What other reports have had impact?

JR: There was a pair of related publications from 2015. One was a full report on due process, an official report to the President and Congress. Another report was on adverse actions. Deb (Hopkins, FELTG President) quoted from it in your newsletter recently, and that’s an illustration of its lasting power. In 2014-15, influential voices were saying “the system is broken, and you cannot fire a federal employee. Maybe we should go at-will.” It turned out that many people managing in the system didn’t understand it. They thought you needed a higher standard of proof to fire a federal employee than the law requires, and we pointed out that’s not the case. We developed an outreach program around the publications. The message I tried to deliver was managers need to understand the system and have the will to act, and the support of the agency. We don’t need to throw out rules or abandon due process.

DG: What do you see as the most significant challenge facing the civil service in the next 10 years?

JR: The relationship between Washington and local agencies needs to be recalibrated. I’m not suggesting one direction or another. Look at what happened in ’90s. OPM was cut in half in terms of its resources and authorities were delegated to the field. In the area of hiring, for example, you see the difficulties in the system. Twenty-five years ago there was the symbolic burning of the (Federal Personnel Manual). The rules and the laws upon which they were based were not repealed, however, even as OPM delegated authority to several hundreds of offices that now have the responsibility for developing sound recruitment strategies and rigorous legally compliant assessments, and then evaluating applications. That’s hard for a typical HR office to do that well; the exceptions would be the really big departments with ample resources and expertise that hire many people under same job series on a regular basis. In other words, hiring might not be susceptible to effective scaling down.

The challenge is recalibrating the model of central HR policymaking with local decision-making and execution in such a way that HR can be done better. We’ve been studying the effectiveness of the HR workforce, and are finding that there’s great dissatisfaction among managers and agency leaders on what they are getting from their HR shops. It’s not necessarily the fault of the people in HR. The dissatisfaction may stem from the challenges intrinsic to the current decentralized model.

[email protected]

The Presidential Impeachment Inquiry and FELTG Training

,

By William Wiley, October 29, 2019

As the inquiry into impeachment continues on Capitol Hill, many talking heads and so-called experts are accusing those running the inquiry of being unfair. We here at FELTG love teaching moments. And the impeachment inquiry arguments provide a great opportunity for us to hammer home some basics about federal workplace investigations.

  • Secret interrogations. A number of media personalities are all bent out of shape that the House Intelligence Committee is questioning witnesses in private rather than in a public forum. Well, that’s the first hour of FELTG’s Workplace Investigations program. [Join us for our next Workplace Investigations Week, which will be held November 4-8 in Washington, DC.] Frankly, you shouldn’t have to attend the training to realize that when you’re investigating possible misconduct involving many witnesses, you don’t want the witnesses getting together and aligning their stories with each other. You want to hear each person’s independent view of events without reliance on what someone else heard or saw. Studies show us that when witnesses are exposed to the testimony of others, subconsciously they often draw details or judgments from that testimony. It’s not necessarily a conscious attempt to mislead. It’s just that we as humans in a neutral setting don’t want to seem out of step with what others are thinking. Were the committee’s investigative sessions open to the public, each witness possibly would have been influenced by the testimony of the previous public witnesses. That would undermine the validity of the investigation process, as we teach in our training classes.
  • Refusal to appear. It has been reported that a number of individuals who were subpoenaed by Congress were ordered by their supervisors not to comply with the subpoenas, to refuse to testify, and/or not produce the requested documents. One talk show expert stated that he would always advise his client to obey his supervisor’s order, or risk being fired. Well, that’s just the opposite of what FELTG teaches in its UnCivil Servant seminar for supervisors. If an employee is ordered to do something illegal, he should refuse to do it. As we sometimes say in class, “We can get you another job a lot more easily than we can get you out of jail.” Obedience to a supervisor’s directive does not shelter the employee from criminal prosecution. MSPB will refuse to uphold a removal for misconduct if it finds that the supervisor’s order was illegal. In addition, the Follow the Rules Act, passed in 2017, amended 5 USC 2302(b)(9) to allow an employee to refuse to follow an order he believes violates a regulation or agency rule – not just a statute.
  • Preliminary conclusions. As the chairman of the House Judiciary Committee walked out of a closed-door session last week, a reporter called out to him, “Do you have enough evidence to impeach yet?” The chairman, wisely, just kept walking without answering. The very LAST thing you want to do when conducting an investigation into possible misconduct is to reach a preliminary conclusion about what the outcome will be. The science is full of studies, as FELTG teaches in its investigations class, that show that simply suggesting a possible conclusion to an investigator before the investigation concludes skews the investigator’s results toward that conclusion. In one famous study, fingerprint experts who were preliminarily told that the prints being studied “probably” belonged to the suspect were 60% more likely to find that the fingerprints did indeed belong to that suspect. The conclusions of an investigation should not be made until all the evidence is in.

With all modesty, this is basic stuff. FELTG prides itself on getting the basics in place and then building up from there. We don’t do a lot of training on Capitol Hill or in CNN/FOX/MSNBC newsrooms, but we’d be happy to present a session. You can’t really reach meaningful conclusions about the hard bits if you don’t understand the fundamentals. [email protected]

SCOTUS Watch 2019: Does Title VII Cover Discrimination Based on Sexual Orientation or Gender Identity?

,

By Meghan Droste, October 22, 2019

The Supreme Court heard arguments on October 8 in what I am sure will prove to be three landmark cases: Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC. The first two cases, which the Court consolidated for arguments, raise the issue of whether Title VII’s protections against sex discrimination prohibit discrimination on the basis of sexual orientation. The Harris Funeral Homes case raises the question of whether those same protections prohibit discrimination on the basis of gender identity.

These questions are settled law in the federal sector. The Commission concluded in 2012 that Title VII protects gender identity and in 2015 that sexual orientation is covered. Appeals courts were split, however, on these issues as they apply to private and public sector employees. For that reason, the Supreme Court is now poised to answer these questions for the entire country, and potentially reverse EEOC precedents.

The employees in these cases argue that “sex” as understood in Title VII must encompass discrimination on the basis of sexual orientation and gender identity. As the Commission found in the Macy v. Department of Justice and Baldwin v. Department of Transportation cases, the employees assert that these forms of discrimination inherently take into account their sex and, therefore, their employers discriminated against them “because of … sex,” as prohibited by Title VII. They also point to the idea of sex stereotyping, arguing, as the EEOC found, that these forms of discrimination may be due to stereotypes regarding who an individual should be attracted to and what reproductive organs men and women should possess. Finally, the employees pointed to the Supreme Court’s decision in Oncale v. Sundowner Systems, in which the Court rejected arguments that Congress could not have intended to prohibit same-sex sexual harassment, to argue that Congress’s understanding of sex, sexual orientation, and gender identity is not the correct question in these cases.

Those who observed the arguments have reported that it is unclear how the Court will come out on these cases. For example, while Justice Gorsuch appeared to find that taking an employee’s sexual orientation into account necessarily involves sex, he also cautioned against “massive social upheaval.”

I urge all federal sector practitioners to keep an eye out for the Court’s decisions in these cases. While the Court may issue them as early as January, I expect that we won’t see anything until closer to the end of the term in June. [email protected]

Discipline Alternatives: Too Good to be True?

, ,

By Deborah Hopkins, October 16, 2019

What if…

  • You could discipline an employee in a way that didn’t cause you more work?
  • You could discipline an employee and they couldn’t file a grievance or complaint?
  • The discipline you issued actually helped other people?

Believe it or not, there’s a way to make all these dreams come true. You see, in addition to traditional discipline (reprimand, suspension, demotion, and removal), the MSPB, for years, has blessed alternative arrangements that agencies and employees agree to, that carry the weight of traditional discipline but are not traditional disciplinary actions. These are called discipline alternatives.

As former MSPB Chairman Neil McPhie once put it, “The merit principles encourage agencies to be effective and efficient in how they use the Federal workforce. This includes the responsibility to address misconduct in a manner that has the greatest potential to prevent further harm to the efficiency of the service. Under the correct circumstances, alternative discipline may be the most effective method for addressing such misconduct.” (Emphasis added.)

One of the most popular discipline alternatives is the Reprimand in Lieu of a Suspension (RLS). We first learned about these courtesy of the United States Postal Service, which back in the 1990s negotiated suspensions OUT of their master contract and replaced them with RLS.

That’s right, forget about suspensions because there’s no evidence they work anyway. In fact, when you suspend an employee for misconduct, the supervisor and co-workers have to pick up the slack while the suspended employee sits at home doing nothing.

Here’s how an RLS works. If a supervisor determines that an employee deserves to be suspended, let’s say for 5 days, the supervisor proposes the 5-day suspension. But at the bottom of the proposal letter there’s an additional section with an employee signature line, that read something like this:

By my signature below, I accept responsibility for this act of misconduct. I acknowledge that discipline is warranted and accept a Reprimand in Lieu of a Suspension as offered to me by My Manager. I understand that the agency will consider this Reprimand in Lieu of a Suspension as equivalent to the proposed suspension for the purpose of progressive discipline should I engage in future misconduct. By accepting this Reprimand in Lieu of a Suspension I agree not to file a complaint or grievance about this action.

Pretty cool, huh?

There are other alternatives you might want to consider as well. Here are a few, in no particular order.

  • Paper suspension or weekend suspension: With this approach, there is no loss of pay, but the agreement is considered to carry the weight of a suspension.
  • Non-sequential suspension: Instead of a 5-day suspension where an employee loses half a paycheck, suspend the employee one day per week for 5 weeks.
  • Leave donation: The employee donates annual leave to a leave bank or leave transfer program. For example, if the proposed suspension was 3 days, the employee donates 3 days of annual leave.
  • Community service: This may be a hard one to enforce, but the employee may agree to perform 24 hours of community service instead of a 3-day suspension.
  • LWOP: Carry the employee on LWOP for the amount of time the agency would have suspended him. Because it is coded as LWOP instead of a suspension, there will be no permanent record of a disciplinary action.
  • Training or support services: Require the employee to attend training or go to EAP in lieu of a suspension, if the type of misconduct matches up with these options.
  • Last chance agreement: Hold the penalty in abeyance for two years. If the employee does not engage in misconduct during the two years the proposal goes away, but if the employee violates another workplace rule during those two years, the penalty immediately goes into effect.

Remember, in each of these cases you are cutting a deal with the employee and offering the discipline alternative in exchange for the employee waiving her right to appeal or file a complaint about this discipline. If you don’t like it, then forget about it because you don’t have to do it. But I promise, these discipline alternatives will make your life much easier. [email protected]

Excessive Absence and the Third Cook Factor

, ,

By Barbara Haga, October 16, 2019

In several classes recently, I have had questions regarding the Cook factors and what makes one of these cases successful. Just to make sure we are all on the same sheet of music, here is a quick review of what the Board wrote in Cook v. Army, 18 MSPR 610 (1984). The Army challenged the AJ’s determination that Cook should not have been suspended for 40 days as a result of his roughly 1000 hours of approved absence over three years.

In its petition for review, the Army based its argument on guidance in the Federal Personnel Manual where OPM had set out conditions under which action could be taken on approved leave.

FPM Chapter 752, Subchapter 3, paragraph 3-2b(4)(c) provides an exception to the general rule that an adverse action cannot be based on an employee’s use of approved leave. The following three criteria must be met to satisfy the exception:

(1) The record showed that the employee was absent for compelling reasons beyond his or her control so that agency approval or disapproval was immaterial because the employee could not be on the job;

(2) The absence or absences continued beyond a reasonable time and the employee was warned that adverse action might be initiated unless the employee became available for duty on a regular, full-time or part-time basis; and

(3) 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.

The Army was not successful in getting the decision on Cook overturned, but gave us the decision we still talk about 35 years later regarding excessive absence.

Assuming that your employee missed the requisite amount of time on sick leave, annual leave, or LWOP, and you properly warned the individual that if he/she did not become available for regular attendance at work that action, up to and including removal, could be forthcoming, then you have to talk about the impact of those absences.

In the following cases, the agencies were successful in demonstrating what happened when the employee was absent.

Gartner v. Army, 107 FMSR 200 (MSPB 2007)

Gartner was a GS-4 Medical Support Assistant in the General Surgery Ward at an Army Community Hospital in Fort Stewart, GA. It is important to note that two blocks of hours that the Army had relied upon in removing Gartner were not sustained. She had had prior discipline twice as a result of a period of absence, so those hours were discounted. Also, this decision was issued in 2007 when an agency had to have enough LWOP to take an action, before McCauley v. Interior, 111 FMSR 224 (2011) was issued  – which allowed counting of all approved absences, both paid and unpaid. Gartner’s sick leave hours were not counted to sustain the charge. Thus, in the two Gartner decisions, the period that was accepted to support the charge of excessive absence was 252 3/4 hours of LWOP and 80 3/4 hours of AWOL for a total of 333 1/2 hours of unscheduled absences.

In the initial decision (AT-0752-06-0156-I-1, 2006), the AJ discussed the following:

The appellant works in an Army Hospital where her presence is needed at work to provide much-needed patient care, such as patient check-in, patient care, and appointment scheduling. AR, Tab 4C. Because her absences were unscheduled or of indefinite duration, it made it impossible to hire someone to temporary fill her position. AR, Tab 4C. The appellant presented no evidence to the contrary.

The Board decision quoted further testimony:

When you are not here it places an extreme burden on the rest of our General Surgery/Urology staff whom must then do your job as well as their own job. We are a very busy clinic seeing over 600 patients a month on average.

As a GS-4, Gartner obviously was not running the Urology Clinic, but the Army could talk about 1) other people who provided patient care had to stop what they were doing to cover her duties, and 2) because her absences were intermittent and of an indefinite duration, they could not hire someone to cover those duties. These arguments were sufficient even though only half of the hours included in the original removal notice were actually sustained. The AJ did not question whether 333 hours out of the original 515 hours cited still had such a negative impact on the clinic.

Zellars v Air Force, No. 06-3321 (Fed. Cir. 2006)

Zellars was employed by the Air Force as an Office Assistant, GS-0318-5.  She was removed in 2005 after over 800 hours of LWOP in that leave year and another 817 hours the prior leave year.  Zellars’ job was Secretary for the Maintenance Engineering Section. Her second-line supervisor testified that the section was customer-oriented and the secretary needed to be in the office to answer phones and communicate requests for service, among other things. He added that Zellars’ absence placed an unreasonable burden on other employees because they were then obligated to perform her work in addition to their own. The AJ summarized the information in the Initial Decision (DC-0752-05-0793-I-1, 2006) regarding the third Cook factor as follows:

The agency also has shown that it needed the appellant’s position filled by an employee available for duty on a regular basis and that it had reason under the circumstances to believe that the appellant was unable because of the continuing effects of her various medical ailments to return to duty on a regular basis to fulfill that requirement.

Like in Gartner, the agency did not produce elaborate information to explain why the absence of their clerical support person was a problem, but they were successful before the Board in showing that her services were needed.  The Board (107 FMSR 171) denied the PFR filed by Zellars and the Federal Circuit did not disturb the AJ’s findings.

Next month, we will continue looking at issues that arise in connection with excessive absence cases.

Supreme Court Hears Arguments on Gender Stereotyping Cases

, ,

By Dan Gephart, October 16, 2019

The Supreme Court decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) made it clear that Title VII not only protects employees from being treated differently based on their sex. It also protects employees from being treated differently because they fail to adhere to their gender norms.

We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’

The Hopkins decision is the bedrock for protection from gender stereotypes under Title VII. In recent years, the EEOC has interpreted that protection to include gay, lesbian, and transgender employees.

In Macy v. Attorney General, EEOC No. 0120120821 (April 20, 2012), the EEOC concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex’ and such discrimination therefore violates Title VII.”  And in Baldwin v. Secretary of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the EEOC ruled that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

Many courts have agreed with the EEOC. The 11th Circuit Court of Appeals may have put it most succinctly, at least in terms of transgender employees, ruling “a person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”

But not all courts agree with the Commission. And neither does the Department of Justice. DOJ attorneys made their case last week before the Supreme Court, which heard oral arguments on Bostock v. Clayton City and Zarda v. Altitude Express, to determine whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964. The High Court also heard arguments in Harris Funeral Homes v. EEOC to determine whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

During the hearing last week, Solicitor General Noel Fancisco argued: “Sex means whether you’re male or female, not whether you’re gay or straight.” The lawyer representing Bostock and Zarda told the Justices that all they need to do is “show that sex played a role here.”

How will the Supreme Court rule? It’s hard to guess. If you saw my football pools this year, you’d immediately look elsewhere for prognostication. And if you’re talking legal analysis, you’d be much better off asking FELTG President Deborah Hopkins, or read FELTG instructor Meghan Droste’s recent article.

Many analysts see a 5-4 decision with Justice Neil Gorsuch as the deciding vote.

One thing we know for sure: A ruling in the Department of Justice’s favor will allow employers, including federal agencies, to fire an employee solely for being gay, lesbian, or transgender, or even for being someone who doesn’t neatly conform to gender-based standards. It’ll strike a serious blow to diversity and inclusion in the federal workplace.

Let’s face it, not everybody has a comfortable grip on the law as it is now. It’s painful to imagine a workplace where the actions described in the following EEOC decisions go unchecked:

  • In Larita G. v. USPS, EEOC No. 0120142154 (November 18, 2015), a supervisor referred multiple times to a lesbian employee as “the little boy” or a “guy.” When the complainant told the supervisor “I am not a guy, I am a lady,” the supervisor replied, “So that’s why you have to be so difficult.”
  • In Couch v. Department of Energy, EEOC No. 0120131136 (August 13, 2013), coworkers told the complainant that he was unwelcome and should get another job. They referred to him as “fag,” “faggot” and “gay” and told him everything he did was “gay.”
  • In Jameson v. USPS, EEOC No. 0120130992 (May 21, 2013), the EEOC found hostile work environment as the supervisor “repeatedly” referred to a transgender female employee as “he” and encouraged others in the workplace to use the male pronoun and refer to the employee by the employee’s previous, male name.

Actually, behavior like that in the EEOC cases above still does sometimes go unchecked. Last week, the American Federation of Government Employees Local 3403 demanded the agency take action against managers who bullied, intimidated, and harassed LGBT employees at the National Science Foundation.

It could get a lot worse for LGBTQ+ employees depending on how the Supreme Court eventually rules on this trio of gender stereotyping cases. [email protected]