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]

Civil Service Update: October 2019

, ,

By Dan Gephart, September 18, 2019

Welcome to FY 2020. Didn’t it feel like we spent most of the previous fiscal year waiting? Waiting for new Merit Systems Protection Board members to be confirmed. Waiting for some type of resolution on the portion of President Trump’s Executive Orders that were under injunction. Waiting for guidance from OPM.

But we’re waiting no more, at least when it comes to the Executive Orders. In case you missed it, here’s a quick recap. President Trump issued three Executive Orders in May 2018 aimed at curtailing union activity and increasing supervisors’ ability to hold employees accountable for misconduct and poor performance. Three months later, several provisions of those Executive Orders were set aside as illegal, per a D.C. District Court decision. Several weeks ago, an Appeals Court overturned the District Court decision. The unions sought an en banc re-hearing, which the Appeals Court has refused.

What does that all mean? Well, the Executive Orders are now fully in play. OPM Director Dale Cabannis was quick to alert agencies, writing in an October 4 memo: “Accordingly, all provisions of these executive orders, including previously enjoined provisions, are in full force and effect and should be implemented consistent with the requirements and guidance contained in the EOs.”

Agencies are now expected to set time limits on bargaining, severely restrict official time, and are allowed to charge unions rent for office space, and that’s just the Labor Relations portions of the Executive Orders, and the president issued a memo to that effect last week. If you deal with federal unions, it’s a good time to register for FELTG’s FLRA Law Week, which takes place next week – October 21-25, 2019 in Washington, DC.

Speaking of the FLRA, the agency recently started posting quarterly case digest with summaries of its decisions. These digests contain summaries of full-length merit decisions issued by the authority. This is part of the FLRA’s strategic to plan to make those decisions more easily accessible. The digests are available on the FLRA website.

That October 4 memo wasn’t the only one the OPM Director sent to agencies. The previous week, Cabaniss issued  Maximization of Employee Performance Management and Engagement by Streamlining Agency Performance and Dismissal Policies and Procedures. Among the items discussed are streamlining performance and misconduct procedures and eliminating unnecessary barriers to holding employees accountable.

If those topics sound familiar to you in FELTG Nation, it might be because that’s what we’ve been teaching for the past 19-plus years. Those of you who have been to MSPB Law Week or Developing & Defending Discipline have a nice head start on what OPM wants. You might equate unnecessary barriers to what we at FELTG call “yellow donut” items. The yellow donut is full of things that are perfectly legal to do, but are legally useless in developing your performance- or misconduct-based actions. They waste your time and misdirect your efforts. As Deb puts it, the yellow donut is full of empty calories.

And hey, how about those MSPB appointments? Just kidding. I’m afraid we’re still waiting for those. In the meantime, be sure check out to last month’s And Now A Word With … Tristan Leavitt, where the MSPB General explained to FELTG readers what the agency is still doing while it waits for the return of a quorum. Lots going on, and lots more to come. We’ll keep you posted. [email protected]

The Good News: Finally, an End to the Table of Penalties!?!

, ,

By Ann Boehm, October 16, 2019

Employee relations specialists, supervisors, and attorneys at agencies all around the country have one thing in common – they love, love, love their agency’s Table of Penalties.  And I just don’t get it.

When I became Chief of Discipline Management at my former agency, I too thought the TOP should be the focus of all discipline.

What I learned instantly, though, was that the TOP is pretty much useless because of the way federal agencies have to charge employee misconduct. In order to comply with years of Merit Systems Protection Board and Federal Circuit law, agencies have to prove every word of a charge against an employee. The result is that the TOP often doesn’t match what the agency charges.

In countless disciplinary letters I reviewed, the following phrase appeared: “Although there is no offense in the TOP directly relevant to the charge in this case, the most closely related is [Enter Offense from TOP Here].” The reference to the TOP resulted in wasted words and nothing gained. So, a nothingburger, basically.

I did a Google search for Table of Penalties and, using the first one that appeared (the agency name is withheld to protect the innocent), I noticed a couple of things of interest. First, 53 offenses are listed.  In 18 of them (34%), the recommended penalty for a first offense is “Written Reprimand to Removal.” Well, isn’t that helpful – NOT!

That’s the penalty range for anything and everything.  So what in the world is good about the TOP in that respect? Second, when is the last time you saw someone charged with “Negligent or intentional injury to person or property of other employees”? Never. Because the MSPB would not sustain that charge and the agency would lose. That’s also one of the ever-so-helpful “written reprimand to removal” offenses. There are almost no offenses in any TOP that would actually be used as the “charge” in an appealable adverse action.

The Good News for this month is that the Office of Personnel Management (OPM) agrees with me: The TOP is not helpful and may even be harmful.

In the proposed revisions to 5 CFR part 752 issued on September 17, 2019, OPM notes that the “creation and use of a [TOP] is not required by statute, case law or OPM regulation, and OPM does not provide written guidance on this topic.”  Probation on Initial Appointment to a Competitive Position, Performance-Based Reduction in Grade and Removal Actions and Adverse Actions, 84 Fed. Reg. 48794 (Sept. 17, 2019). Let me boil that down for you. OPM notes that because agencies are to discipline based upon the “efficiency of the service,” agencies “have the ability to address misconduct appropriately without a [TOP], and with sufficient flexibility to determine the appropriate penalty for each instance of misconduct.”  84 Fed. Reg. at 48798.  OPM also states that TOPs “may create drawbacks to the viability of a particular action and to effective management.”  84 Fed. Reg. at 48798. In that regard, OPM explains that “by creating a range of penalties for an offense,” a TOP may “limit the scope of management’s discretion to tailor the penalty to the facts and circumstances of a particular case by excluding certain penalties along the continuum.”  Id.

So what’s an agency to do? Use the Douglas factors (Douglas v. VA, 5 M.S.P.R. 280 (1981)), and not the TOP.

The proposed regulations actually direct agencies to “propose and impose a penalty that is within the bounds of tolerable reasonableness” as established by the MSPB in Douglas. Notably, this will now apply to any removal, demotion, or suspension, including suspensions for 1-14 days.  84 Fed. Reg. at 48798.

As OPM directs, “the penalty for an instance of misconduct should be tailored to the facts and the circumstances, in lieu of the type of formulaic and rigid penalty determination that frequently results from agency publication of [TOPs].” Id.

My friends, say goodbye to the beloved, if not exactly precise, TOP and start using all 12 of the Douglas factors. Once you break free of the TOP, I think you will see that you did not need it at all.  OPM wants you to do it. Take their direction and believe! This is Good News!! [email protected]

Tips From the Other Side: October 2019

, ,

By Meghan Droste, October 16, 2019

Like many other large organizations, the Equal Employment Opportunity Commission issues strategic plans every few years to highlight institutional goals and identify ways in which it hopes to achieve them.  During a recent webinar on EEO updates, I highlighted some of the points from the Commission’s Federal Sector Complement to its Strategic Enforcement Plan for FY 2017-2021. As laid out in the plan, the Commission’s priorities include eliminating barriers in recruitment and hiring, protecting vulnerable workers, and addressing emerging and developing issues.

While I encourage you to review all of the Commission’s priorities to get an insight on the types of cases it will be focusing on in the federal sector, I want to draw your attention in particular to the priority of preserving access to the legal system. For the federal sector, the Commission highlighted that this priority includes improving federal employees’ faith in the integrity of the EEO process.

What does this mean in practice? It means the Commission is going to start sanctioning agencies more.  As noted in the report, “[w]hen Federal agencies repeatedly ignore regulatory requirements to provide files, conduct timely investigations, fail to meet hearing deadlines, etc. and are not held accountable, it erodes employee faith in the EEO program and discourages employees and applicants from accessing the system.” The Commission also noted that it will be on the lookout for “repeat offenders” and considering program evaluations and issues notices of non-compliance to these agencies.

You should, of course, be concerned about meeting deadlines and upholding the integrity of the process just on principle. But if you need a little more incentive in light of the Commission’s stated goal of increased enforcement, consider that default judgment can result in awards of hundreds of thousands of dollars for complainants who never have to prove liability. See, e.g., Dionne W. v. Dep’t of Air Force, EEOC App. No. 0720150040 (2018) (awarding $185,000 in compensatory damages and $155,050 in attorney’s fees); Lauralee C. v. Dep’t of Homeland Sec., EEOC App. No. 0720150002 (2017) (awarding $200,000 in non-pecuniary damages, $223,116.35 in pecuniary damages, and $122,150 in attorney’s fees).

I recommend you calendar every deadline and triple check that they are met, including the uploading of files before a judge is even assigned to the case.  If not, you may find yourself explaining why your agency is on the hook for a six-figure award. [email protected]

Initial-Appointment Probationary Periods: Not the Same as Supervisory Probationary Periods

, ,

By Deborah Hopkins, October 16, 2019

A question recently came up in class about the difference between an initial-appointment probationary period and a supervisory probationary period in the competitive service. It turned into a more interesting discussion that I would have guessed, so I thought perhaps some FELTG readers might also be intrigued. Here goes.

Initial-Appointment Probationary Period

When an individual gets her first job with the federal government, she begins a one-year probationary period with that initial appointment (some jobs are subject to a two-year trial period). During this time, the employee is expected to perform the work at an acceptable level, and to follow workplace rules. If, during the probationary period, there is a problem with the probationer’s performance, the agency can remove the employee without putting her on a performance demonstration period. If the employee is engaging in misconduct, the agency can remove her for a first offense without utilizing progressive discipline, even if the misconduct is minor. In fact, a removal doesn’t have to be related to performance or misconduct, if the agency determines it is not a good fit, or the agency no longer needs the probationer’s service.  In addition, the probationer has very limited appeal rights and generally cannot appeal her removal to MSPB. (There are a few exceptions: If she claims she was removed because of her marital status, or because of her partisan political activity, or for pre-appointment reasons (5 CFR 315.805), she can appeal to the MSPB. Otherwise, the Board has no jurisdiction.) A probationer does have a right to file an EEO or OSC complaint.

The reason a probationer’s MSPB appeal rights are limited is because until the probationary period is successfully completed, the employee has not earned a property interest in her job, and, therefore, she is not entitled to the constitutional due process afforded to vested career employees (advance notice, opportunity to respond, impartial decision). Most employees are on their best behavior when they start a new job. If, in the first 12 months of employment, it becomes apparent the person is already not a good fit, the agency should remove that person before the statutory protections attach.

The probationary period applies to initial appointments with the federal government as a whole, so an employee new to your agency may have already completed a probationary period, or part of a probationary period, at another agency.

Timing is important here so if you’re thinking about removing an employee who is new to your organization, check the calendar to determine whether you can remove them without due process procedures.

Supervisory Probationary Period

Now let’s talk about new supervisors and managers, and their probationary periods, 5 U.S.C. 3321. But first some definitions. According to MSPB’s research brief Improving Federal Leadership Through Better Probationary Practices (May 2019):

A supervisor is someone who accomplishes work through the direction of other people and performs at least the minimum supervisory duties required for coverage under the OPM General Schedule Supervisory Guide. They plan work, communicate organizational goals and policies, guide performance, listen to concerns and ideas, ensure employees have the resources needed to do their jobs, play a significant role in determining the culture of the organization, and often make difficult decisions about employee recruitment, retention, development, recognition, and appraisal. In addition, because resources are scarce for many employers, supervisors are often expected to perform line work that requires technical skills.

A manager supervises other supervisors and is not a member of the Senior Executive Service (SES). Further, a manager, as described in the General Schedule Supervisory Guide, directs the work of an organizational unit, is held accountable for the success of specific line or staff functions, monitors and evaluates the progress of the organization toward meeting goals, and makes adjustments in objectives, work plans, schedules, and commitment of resources.

Because the roles of supervising and managing people are of the utmost importance in agencies achieving mission success, an additional probationary period attaches when an employee first becomes a supervisor or manager. These probationary periods are governed by different regulations than the initial-appointment probationary periods. While there is no statutory timeline, most agencies set this period to a year.

Interestingly, agencies also require managers to complete a managerial probationary period once they begin their first manager job, even if they have already completed a supervisory probationary period.

So, at the end of this probationary period, how does an agency determine if a supervisor or manager has been successful? The regulations allow agencies a lot of flexibility in making this determination before the supervisory appointment is finalized. Some lay out the expectations explicitly while others leave a lot of judgment up to the next-in-command.

Let’s say the supervisory probationary period doesn’t go well and the agency determines the employee is not an effective supervisor. What happens now? Well, just because someone isn’t a good supervisor doesn’t mean that person isn’t a good employee. Results from MSPB’s Governmentwide 2016 Merit Principles Survey show that 72 percent of employees believe that their supervisor had good technical skills, but only 62 percent believed their supervisor had good people-management skills. Interestingly, though, in 2016 there were 28,467 new supervisors but agencies only took action in 192 of those cases – about .67%.

Being an unsuccessful leader does not automatically mean a probationary supervisor is out of a job at the end of the year. As long as that person has successfully completed the initial-appointment probationary period through prior federal service, she will be reassigned to a non-supervisory position in the agency at the same grade-level and pay she was earning before she became a supervisor. A removal from service without due process violates the employee’s statutory protections. If, however, the supervisor or manager was not in the competitive service before beginning her supervisory probationary period, then she is also concurrently serving her initial-appointment probationary period and has no right to a non-supervisory job, so she can be removed from service without due process. [email protected]

Related training: 

FELTG Sets the Record Straight on Whistleblowing

, ,

By Deborah Hopkins and William Wiley, October 8, 2019

We’ve been reading and hearing a lot lately about whistleblowers, most recently about the Ukraine/Biden/Trump situation. We’re not here to discuss the merits of the complaint about President Trump’s conversation with Ukrainian President Zelensky, and we’re not here to discuss politics. We’re here to clarify that the media and numerous folks in Washington have (yet again) gotten a lot of things wrong in talking about this mysterious intelligence community whistleblower.

In discussions about the whistleblower’s motive for making the disclosure, one of the themes that keeps coming out is, “The whistleblower is a partisan.” Well, guess what? Even if that’s true, it’s irrelevant because when it comes to whistleblowing, the motive does not matter.

That’s right, whether a whistleblower makes the public aware of waste, fraud and abuse because he wants to save the world, or whether he does it to get the President impeached, the law protects him anyway, as long as he meets the legal requirements of whistleblowing.

To be protected a whistleblower must disclose:

  • Violation of law, rule, or regulation;
  • Gross mismanagement or gross waste of funds;
  • Substantial and specific danger to public health or safety; or
  • Abuse of authority.

While there is statutory protection and a Presidential Policy Directive (PPD-19) that covers whistleblowing by intelligence community employees, the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act cover a large group of employees in the federal sector non-intelligence communities. That’s what we’ll discuss here today, because these are the statutes that apply to most FELTG readers.  [Editor’s note: House Democrats Ted Lieu (Calif.) and Don Beyer (Va.) recently updated and released a whistleblower guide for federal employees that you may find of interest.]

Let’s start with a little history lesson. Following the implementation of the Civil Service Reform Act (CSRA), a whistleblower’s disclosures were not considered protected if the employee’s “primary motivation” was not for the public good, but rather for was for his own personal motives. See Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed. Cir. 1986). However, in subsequent years, the Federal Circuit determined it had improperly reached that conclusion because nothing in the CSRA requires an employee’s motives should be considered in determining whether a disclosure is protected. Id.; see also Horton v. Department of the Navy, 66 F.3d 279, 282-283 (Fed. Cir. 1995).

In 1988, Congress decided that a whistleblower’s motivation should not be considered, and that all employees should be encouraged to alert the public of waste, fraud and abuse. “The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.” S. Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988). Id.

As we said above, under 5 USC § 2302(b)(8), disclosures of information that the employee making the disclosures “reasonably believes” evidences certain kinds of wrongdoing are protected. The only time bias or motivation might enter the picture is in testing reasonableness of belief in blowing the whistle — and, warning, it’s an uphill battle. While bias and self-interest may be considered in testing the reasonableness of belief, bias alone does not determine that a whistleblower does not have a reasonable belief. LaChance v. White, 174 F.3d at 1381. Personal motivation, whether to save the world, ruin someone’s career, or something in between, does not per se affect reasonableness. Carter v. Army, 62 MSPR 393 (1994).

If “the employee is motivated by a desire to damage others’ reputations,” this fact alone is not dispositive, even though the whistleblower’s motives in making disclosures were to destroy his supervisor “during the course of an internal agency power struggle,” Fickie v. Army, 86 MSPR 525 (2000).

Separately, some in the press made a big issue that the whistleblower disclosed no first-hand information in the complaint, nor any other direct proof of the alleged impropriety that occurred in the President’s July 25 phone call. Again, that’s irrelevant as to whether the individual is a protected whistleblower. A whistleblower need only have a “reasonable belief” in the facts he is disclosing, not actual proof that the facts are as they are being described. In other words, if an individual is told something by a reliable source, and chooses to believe it because it makes sense to him, he is then protected if he discloses the believed facts in a whistleblower complaint. It’s the subsequent investigation of the complaint that is supposed to flesh out the facts based on credible evidence; it’s not up to the whistleblower to prove the allegations.

Some talking heads made an issue out of the belief that the employee is not a whistleblower because the alleged facts do not rise to the level of a crime. Well, federal employees are whistleblowers if they report things other than criminal activity; e.g., a simple abuse of authority or gross mismanagement will suffice to protect the discloser. The commission of a “high crime or misdemeanor” would be relevant to the impeachment process, but not to the status of being a whistleblower.

A lot of guests on talk TV have used harsh words to describe the whistleblower: traitor, spy, partisan hack, deep-state operative, rotten snitch, rat, back stabber, saboteur. In reality, a federal employee who believes that he or she has observed corruption committed by a government official is required by regulation to disclose that belief. A “basic obligation of public service” can be found at 5 CFR Sec. 2635.101

(a) Public service is a public trust. … To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section …

(b) …

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

Even if the individual personally did not want to disclose what appeared to be corruption being committed by a particular government official, the regulations mandates that a disclosure be made.

What does this all mean? It means Congress has afforded protections to whistleblowers higher than any other kind of protection in the civil service, and as long as the employee has a reasonable belief that the content of the protected disclosure is true, that whistleblower cannot legally be disciplined for making the disclosure – even if his goal was to make his boss look bad, get fired, or worse.

[email protected]; [email protected]

 

And Now a Word With … Tristan Leavitt

,

Tristan Leavitt, General Counsel, Merit Systems Protection Board

By Dan Gephart, October 1, 2019

More than 200 employees work for the Merit Systems Protection Board in numerous regional and field offices across the country. But it’s the three offices that sit empty at the Board’s Washington, D.C., headquarters that have drawn the most attention.

It’s been more than seven months since then-Chairman Mark Robbins’ term expired. Robbins spent his last two years as the Board’s only member. The Board has lacked a quorum since January 2017 and, therefore, has been unable to issue final decisions on petitions for review for almost three years.

While those three offices on the MSPB’s Executive Floor sit dark, its career employees continue to toil away. We caught up with General Counsel Tristan Leavitt to find out what the MSPB has been doing – and what it has not been able to do – since former Chairman Susan Grundmann’s departure nearly three years ago, when the Board last had a quorum. Under the MSPB’s continuity of operations plan, Leavitt, as GC, has assumed the responsibilities for the executive and administrative functions vested in the Chairman.

Before joining MSPB a year ago, Leavitt was principal deputy special counsel at the U.S. Office of Special Counsel. He also worked for eight years on Capitol Hill, where he served on the staff of the House Oversight and Government Reform Committee and the Senate Judiciary Committee.

DG: Tell us about the work that continues on the adjudication side at MSPB.

LT: AJs have issued approximately 14,550 initial decisions since the Board first lost its quorum in January 2017. At that point, parties have two options. The first option is to submit a petition for review to the full Board, at which point MSPB’s Office of the Clerk dockets the appeal and MSPB’s Office of Appeals Counsel prepares a draft opinion for Board member consideration.

Of the approximately 2,325 PFRs currently pending at MSPB headquarters as of August 31, 2019 [PDF], 2,180 have had draft opinions prepared by the Office of Appeals Counsel. (MSPB publishes these numbers monthly.) If a petition for review of an initial decision isn’t filed within 35 days, the decision becomes the final decision of the MSPB, at which point the appellant may appeal it to the U.S. Court of Appeals for the Federal Circuit or, in whistleblower cases, to any U.S. Court of Appeals in the country.

In addition, mixed cases may be appealed to a U.S. district court. MSPB’s Office of General Counsel continues to review such federal filings and represents the MSPB as necessary in litigation.

DG: How many PFRs involve back pay or attorney’s fees?

TL:  MSPB doesn’t track at an enterprise level which PFRs involve back pay or attorney’s fees, but 177 are PFRs or cross-PFRs from agencies, and of those, 95 involved the AJ ordering some form of interim relief in the initial decision.

DG: What other work does the MSPB continue to do?

TL: In addition to these various functions surrounding adjudicative work, MSPB’s Office of Policy and Evaluation continues to conduct research pursuant to the agency’s statutory mission to conduct studies of the merit system. [Editor’s note: We’ll have more on the MSPB’s studies in an upcoming article.] Although MSPB does not issue final studies without a quorum, the agency has conducted research and prepared a number of draft reports for an incoming Board to review and consider publishing.

MSPB has also continued to publish a regular newsletter and issue smaller publications on useful topics such as Remedying Unacceptable Employee Performance in the Federal Civil Service, Improving Federal Leadership Through Better Probationary Practices, and The Perceived Incidence of Prohibited Personnel Practices.

DG: What functions have been impacted most, other than the growing PFRs, over the course of this lack of quorum?

TL: Besides the Board itself issuing no decisions, the largest impact on the adjudicative side is the inability to issue stays in response to requests from the Office of Special Counsel. MSPB is also impacted in its studies function and on the regulatory side, where the agency cannot promulgate substantive regulations in the absence of a quorum.

DG: Is there a plan or structure in place so that when Board members are confirmed, they can most efficiently begin to tackle the backlog?

TL: Because the approach to the backlog ultimately is the prerogative of a Board itself, it’s difficult to make definitive plans at this point regarding how to tackle the backlog. Nevertheless, MSPB has taken a number of steps to prepare to swiftly carry out whichever approach a new Board settles on. A new Board will be able to see which types of cases are in the backlog and how old they are. Staff have also drawn up various plans for dealing with the backlog, which the new Board may adopt or modify.

[email protected]

 

If You Don’t Know Where You’re Going, You’ll End Up Somewhere Else

, ,

By William Wiley, September 18, 2019

Yogi Berra laid down an important principle of life when he delivered the quote in our headline. A less-gifted author, such as your reporter here, might have said something like, “You should know what you’re trying to accomplish before you set out to do it.” Of course, that’s why Yogi is quoted more fondly than Wiley. Yogi is so much more articulate.

This leads us to an article we published a couple of weeks ago about disciplining employees. We presented the question: “Why do supervisors discipline employees?” We thought we should try to nail down our goal if we are to understand the value of and the pathway to administering discipline. Although the article was meant mostly as a thought question for all you philosophers out there, we received a lot of really good reasons from several members of the FELTG Nation.

Historically, this particular article received the second-most FELTG Newsletter comments from you avid readers out there, being surpassed only by Deb’s “How to Dress” piece many years ago (a copy of which is still taped to the inside of my clothes closet door, for easy reference).

A number of responses focused on the statutory requirement that discipline be used for such cause as will promote the efficiency of the service. “We discipline to send a message to the employees” was a common theme. In this same line of thought, one responder said that we use discipline to “control the workplace environment.” A couple of other responses took a different approach, wondering if we should really want employees working for the government who have to be coerced into behaving acceptably. One excellent thinker referenced an article published last year by the Society for Human Resource Management (SHRM) that argues that in the modern workplace, discipline has no purpose at all.

What was absent from any of the responses was the belief that we discipline employees to punish them for their wrongdoing, the old eye-for-an-eye tooth-for-a-tooth principle that an employee who has injured the agency is to be penalized to a degree similar to the harm. Frankly, we were glad to see that punishment was not articulated as an objective of discipline.

The distillation of the responses we got is that a supervisor should discipline an errant employee to correct his behavior so that he conforms his conduct to workplace norms in the support of an efficient government. Which takes us to a very real question we should all consider:

If we are disciplining to correct behavior, not to punish behavior, then why do we ever suspend employees as discipline?

If an employee were to do something at work that really hurt the agency, just short of being harmful enough to warrant removal; and if we were intent on punishing the employee, we might well resort to a big long suspension of 90 to 120 days. The US Merit Systems Protection Board is on record as finding such lengthy suspensions to be warranted as mitigation in a few cases over the years in which it has found a removal to be excessive. However, if we were not interested in punishing the employee, and instead had a goal of getting the employee to change his behavior so that he does not engage in future misconduct, then we should look for tools that correct (not punish) behavior. With the corrective approach in mind, when we consider whether we should suspend an employee as discipline, we start to realize a few things about suspensions:

1. There’s no proof that they get employees to correct their behavior. Oh, we’ve all seen employees who were suspended who did not engage in future misconduct, but perhaps they would have refrained from future misconduct with something other than a suspension. I’ve been on the lookout for 40 years for some scientific (preferably double-blind) study out of some reputable research entity that establishes that the greater the degree of lost pay enforced as a disciplinary suspension, the less likely it is that the individual will repeat the misconduct. The closest I’ve come to the severity of punishment correlated with the rate of recidivism is in research done with criminals. And there seems to be no correlation between the length of a sentence and the likelihood that the individual will repeat the criminal act. Your gut may tell you that the greater the suspension, the less likely it is that the individual will repeat the misconduct, but there’s no science to back that up.

2. Suspensions are not free. If a supervisor suspends an employee for three days, what happens to the work the employee would have done had he been at work? Does it go undone? Does it get dumped on coworkers? Do we call in contractors to do the work, or pay overtime? We’ve been told of cases in which agencies had to spend two to three times the employee’s lost salary to get the work done during the employee’s suspension. If I was going to spend that kind of government money, I’d want to be sure I was getting something of greater value in return. Suspensions as corrective tools have not been proven to be that valuable.

3. Suspended employees often challenge the suspensions. EEO complaints are free to the employee and resource-draining for management. Grievances take up a lot of management time, with serious costs if the union invokes arbitration. If the supervisor suspends the employee for more than 10 workdays, there’s the good old MSPB appeal/discovery/hearing/petition-for-review/federal court-times-2 process to be dealt with. If the employee is a whistleblower (aren’t they all?), then there are those delightful folks over at the US Office of Special Counsel who are ready, willing, and able to investigate and prosecute the pants off of a reprising management official

If we are disciplining to control the federal workplace, to modify behavior in support of an efficient government, then we should not use tools that don’t offer the promise of accomplishing that objective. Here within the FELTG neural net, that reality began to settle in about five or six years ago. When asked for advice on the development of a disciplinary policy, we recommend using two reprimands to establish progressive discipline, then removing the non-conforming employee without using suspensions at all. The SHRM article goes so far as to argue that the word “reprimand” is out of place in a modern workplace, and suggests that instead, we use the word “Notice.” Something worth considering.

We think Yogi would be proud of any agency that took this progressive discipline approach: Reprimand, Final Reprimand, then Removal. That’s because we seem to all be in agreement that where we want to end up is with a more efficient federal government, not with punished individuals for the sake of punishment. [email protected]