We Don’t Need Civil Service Reform, Part III: It Doesn’t Take As Much Proof As You Think

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By Deborah Hopkins, September 18, 2019

In the final installation of this three-part series, I will discuss how holding employees accountable does not take as much evidence as you think it does. Before you read this, though, take a look at the first two articles in the series:

Holding employees accountable is not as difficult as you think it is.

Holding employees accountable is not as time-consuming as you think it is.

I hope by now you’ll agree with me that the civil service system is not completely broken, but instead is being used inefficiently. Today we will tackle the final challenge, on the amount of evidence needed to take actions against employees for misconduct or performance-related problems.

A 2015 MSPB survey found that 97% of federal supervisors thought they needed more evidence to remove a federal employee that they actually do. The most startling number was that 94% of proposing officials thought they needed evidence beyond a reasonable doubt – that’s the amount you need to send someone to jail – to take an accountability action. The reality is, the evidence you must show to defend your action is far lower.

In DISCIPLINE cases, the level proof you need is called a preponderance of the evidence, which is that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true. 5 CFR 1201.56(c); 5 CFR 1201.4(q).  If it is more likely than not that the employee violated a workplace rule (stole a laptop, falsified a time card, acted disrespectfully toward a supervisor, went AWOL, failed to follow a supervisor’s instruction, etc.), the agency has enough proof to discipline. If you are a supervisor and your employee said something disrespectful to you in a one-on-one meeting, you have a preponderance of the evidence. It’s as simple as that. You might have witnesses, video logs, an admission, or more, and that’s fine, but you don’t actually need that much evidence.

The most disempowering words a supervisor can hear from an advisor when the supervisor wants to take action against an employee who has violated a workplace rule is, “You can’t do that because you don’t have enough evidence.” In most cases, there actually is enough evidence to proceed.

In PERFORMANCE cases, the proof you need is substantial evidence, which is evidence that reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action, even though others may disagree. 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p). If an employee might have failed a critical element in her demonstration period, that is substantial evidence – even though other supervisors might disagree with the assessment of the employee’s performance. (Unless it’s a widget-based, black and white standard that is not open to interpretation.)

Additionally, with performance cases, unless your agency is exempted from the performance procedures in the statute, there is no requirement to do a Douglas factors analysis. Things like harm, length of service, work record and potential for rehabilitation do not have any impact – the MSPB can’t even look at those factors if the employee appeals a performance-based removal. The only evidence that matters is what happened during the 30-day demonstration period.

A special word to our friends at the VA – under 38 USC 714, which is just over two years old: Your burden of proof is substantial for both misconduct and performance cases for all employees covered by this statute.

Hopefully, you now see that you don’t need as much effort, time, or evidence as you thought you did, in order to hold a federal employee accountable. The legal minimum makes it easy to take the necessary actions so that an employee being paid by our tax dollars gets better, or else moves on to something else. [email protected]

The Good News: At Last, Successful Last Rites Agreements

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By Ann Boehm, September 18, 2019

In many training sessions, we suggest that agencies consider a “Last Rites” Agreement to handle problem employees. In my experience, despite our encouragement, many agencies still don’t use this effective tool. Finally, however, I heard from a recent class participant who had  success with Last Rites in 8 out of 9 employment situations. That’s Good News, and I want to share it.

For those who don’t know what a Last Rites Agreement is, our Grand Poobah Emeritus Bill Wiley described it in an April 2017 FELTG newsletter article:

A Last Rites agreement is negotiated at the point that the supervisor has reached the conclusion the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation as an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal. (See the sample in the back of your copy of UnCivil Servant).

2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement.

3. The employee has the choice of being fired and exercising appeal rights, or quitting and foregoing appeal rights in exchange for a “clean record.” [Boehm note: By acting before any final action occurs, the agency also avoids conflict with Executive Order 13839’s edict that there be no more Clean Record settlements that remove items from official personnel records. This is pre-official record.] Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee (emphasis added).

Sounds so logical and simple, but agencies are not doing these. I suspect some folks fear it is “coercion” or a “constructive discharge.” But that’s not how the MSPB and Federal Circuit see it. These are perfectly legal.

So along comes this month’s hero to tell us about the situations where he had success with Last Rites Agreements.  To his credit, he wanted to share this with our newsletter readers to “potentially help people in the future.”  We here at FELTG are very appreciative.

Here are some of the success examples:

  1. Female employee bullied and demeaned other female employees for approximately 10 years. Despite investigations substantiating misconduct, her supervisors never took any action. The last straw was when she harassed a colleague who was having trouble conceiving a child. The supervisor suddenly wanted to fire her. Without any prior discipline, the Last Rites Agreement was a safe way out. The agency called in the union representative, since the employee was in the bargaining unit. They offered her 60 days of pay, and even the union thought this was fair.  She accepted the agreement!
  2. An employee had a long history of attendance issues, including AWOL and habitual tardiness. Supervisors failed to act, but finally did give him a letter of reprimand. He went AWOL after that. The agency offered him a Last Rites Agreement. The union representative was briefed prior to delivery. He accepted the agreement!
  3. One perpetually tardy/AWOL employee had received a reprimand and suspension and removal was up next. The employee had lost his son to illness six months earlier. As a humanitarian move, the agency offered a Last Rites agreement instead of removal. He accepted the agreement!
  4. Another employee was facing prison time for a DUI with bodily harm to another person. He kept postponing his court dates and lingered on as an employee, and the supervisors wanted the conviction in place before proposing removal. He knew he was facing prison time and likely removal, so he was actually relieved to get paid for 30 days and have the ability to resign. He accepted the agreement!
  5. Two employees were harassing and bullying a female subordinate for several months. She filed a grievance and the agency investigated the matter. The agency was ready to remove both, but the agency elected to try a Last Rites Agreement. They both accepted the agreement!

I didn’t even include all of the examples from this one agency. Last Rites Agreements work. At least give it a try.  And if you try and succeed, please let me know.  You too can make The Good News.

[email protected].

Accommodation and Performance Issues II

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By Barbara Haga, September 18, 2019

Once again, we are looking at handling performance issues in the case of an employee with a disability based on information provided in the EEOC guidance document The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.

Section III.c of the guidance document covers the matters addressed in this column. It is a section about conduct matters, but the examples include performance, too. Sections quoted from the EEOC document are in italics.

10) What should an employer do if an employee mentions a disability and/or the need for an accommodation for the first time in response to counseling or discipline for unacceptable conduct?

If an employee states that her disability is the cause of the conduct problem or requests accommodation, the employer may still discipline the employee for the misconduct. If the appropriate disciplinary action is termination, the ADA would not require further discussion about the employee’s disability or request for reasonable accommodation.  

If the discipline is something less than termination, the employer may ask about the disability’s relevance to the misconduct, or if the employee thinks there is an accommodation that could help her avoid future misconduct.

We are going to look at the examples in reverse order since they line up with the two options discussed above that way.

Example 20: An employee informs her supervisor that she has been diagnosed with bipolar disorder. A few months later, the supervisor asks to meet with the employee concerning her work on a recent assignment. At the meeting, the supervisor explains that the employee’s work has been generally good, but he provides some constructive criticism. The employee becomes angry, yells at the supervisor, and curses him when the supervisor tells her she cannot leave the meeting until he has finished discussing her work. The company terminates the employee, the same punishment given to any employee who is insubordinate. 

The employee protests her termination, telling the supervisor that her outburst was a result of her bipolar disorder which makes it hard for her to control her temper when she is feeling extreme stress. She says she was trying to get away from the supervisor when she felt she was losing control, but he ordered her not to leave the room. The employee apologizes and requests that the termination be rescinded and that in the future she be allowed to leave the premises if she feels that the stress may cause her to engage in inappropriate behavior. The employer may leave the termination in place without violating the ADA because the employee’s request for reasonable accommodation came after her insubordinate conduct.

This example is important for several reasons. Although it arose in a performance context (the counseling meeting), it is actually a misconduct issue in the Federal context since the action results from the employee yelling and cursing at her supervisor. It reiterates the point that employees with disabilities are expected to meet the same conduct standards as any other employee and allowing such an employee to violate an accepted standard because of a disability is not a reasonable accommodation.

Another reason this example is helpful is it serves as a reminder that managers can require employees to stay put in meetings. My sense from training lots of supervisors is that many of them might not have responded as this supervisor did when the employee tried to leave. I think some might have felt that they could normally require an employee to stay but might have paused this time because this employee had disclosed that there was a disability. As the EEOC described the scenario, the supervisor properly told the employee she had to stay for the discussion of her work.  This is one of the things that you might consider mentioning to a supervisor when you help them with actions and prepare them to deliver the notices. They need to be ready to say, “you have to stay,” when discussing performance matters since sometimes employees, with disabilities and without, will refuse to listen or attempt to walk out when confronted with information about performance deficiencies.

Example 19: Tom, a program director, has successfully controlled most symptoms of his bipolar disorder for a long period, but lately he has had a recurrence of certain symptoms. In the past couple of weeks, he has sometimes talked uncontrollably and his judgment has seemed erratic, leading him to propose projects and deadlines that are unrealistic. At a staff meeting, he becomes angry and disparaging towards a colleague who disagrees with him. Tom’s supervisor tells him after the meeting that his behavior was inappropriate. Tom agrees and reveals for the first time that he has bipolar disorder. He explains that he believes he is experiencing a recurrence of symptoms and says that he will contact his doctor immediately to discuss medical options. The next day Tom provides documentation from his doctor explaining the need to put him on different medication, and stating that it should take no more than six to eight weeks for the medication to eliminate the symptoms. The doctor believes Tom can still continue working, but that it would be helpful for the next couple of months if Tom had more discussions with his supervisor about projects and deadlines so that he could receive feedback to ensure that his goals are realistic. Tom also requests that his supervisor provide clear instructions in writing about work assignments as well as intermediate timetables to help him keep on track.

The supervisor responds that Tom must treat his colleagues with respect and agrees to provide for up to two months all of the reasonable accommodations Tom has requested because they would assist him to continue performing his job without causing an undue hardship.

Tom’s example is a good news story. The disability was disclosed close after the performance deficiencies began, the medical provided the next day, the fix with new medication would only take six to eight weeks, and in the meantime there was a reasonable solution to help Tom successfully perform in the interim. If all goes as planned, management should be able to retain what appears to be a good employee with a successful performance record.

In this case, it appears that the supervisor agreed to the requested accommodation without any discussion about consequences tied to the outburst. If we could roll the clock back: What would have been the answer if the supervisor had wanted to discipline Tom for the outburst? From a discrimination point of view, there is nothing that would prevent the supervisor from doing so since the disability was not disclosed until after the outburst occurred. From a disciplinary standpoint, there is a choice to be made. If the supervisor is satisfied that Tom’s outburst is not likely to recur, then a memo to the record about what happened and noting that Tom was told that this inappropriate behavior wouldn’t be tolerated in the future, might be appropriate. But, if the supervisor wanted to take an action such as a reprimand or short suspension and felt it was warranted given that others who engaged in similar outbursts were similarly disciplined, then it is not out of the realm of reasonableness for that to be the outcome

On the performance side, the supervisor should certainly document what the issues were regarding deadlines and projects. A memo to Tom citing what the problems were and what the supervisor would do in the next weeks to assist Tom in bringing his performance back to an acceptable level would be appropriate. In this example, Tom’s health care provider recommended that the supervisor do the very types of things that might have been suggested as part of a counseling process for Tom.  I would imagine that most of us would stop short of a PIP given that there is an expectation that Tom will return to successful performance in a short period of time.

Knock, Knock. Who’s There? Harassment, And It’s Never Funny

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By Meghan Droste, September 18, 2019

Humor is generally a matter of personal taste.  Knock, knock jokes, for example, are very popular with my nieces, but those of us no longer in the elementary school set generally find them less amusing. While my humor tends toward the more sarcastic, plenty of my friends prefer puns or other types of jokes. Regardless of what tickles our funny bone, I hope we can all agree that harassment is never funny.

Unfortunately for the complainant in Bryant F. v. Department of Homeland Security, his supervisors found his disability rather amusing and repeatedly joked about it.  See EEOC App. No. 0120171192 (July 2, 2019). The complainant, a special agent, broke his wrist on the job. He had to undergo several surgeries to address the injury. Ultimately, he lost all movement in his wrist and hand. While he was recovering from the injury and the surgeries, his first-, second-, and third-line supervisors repeatedly joked about his injury, asking him about his bowling record and calling him “the bowling team captain” because his cast looked like a bowling brace.  When he pushed back against these jokes, which his supervisors subjected him to on a daily basis, his first-line supervisor told him it was “just for fun.”

In addition to “joking” about the complainant’s disability, his first-line supervisor repeatedly attempted to assign him work that went beyond his restrictions. He provided medical documentation to the agency describing his need to remain in the office and not perform field work because of his injury and ultimate loss of mobility. Despite this, his supervisor repeatedly listed him on the roster for field work, causing the complainant to find other agents to cover those duties. The complainant’s second-line supervisor also made comments about the complainant being on light duty, asking if he was “still trying to get out of his duty.”

The complainant initially requested a hearing but withdrew the request before the administrative judge issued a decision and the Commission remanded the case back to the agency for a Final Agency Decision. The agency determined in its FAD that the complainant failed to prove any of his claims of discrimination or harassment.

Unsurprisingly, the Commission reversed. It concluded that the complainant’s supervisors repeatedly harassed him when they “joked” about his cast and made comments about him being on light duty. It also held that the agency failed to accommodate the complainant when his supervisor repeatedly tried to assign duties that went beyond his physical restrictions and when it failed to look for a reassignment when it became clear that he would not recover mobility in his wrist and hand.

Considering the facts, it was no surprise that the Commission found in the complainant’s favor and also ordered training for several of the people involved. Harassment and disabilities are not good topics for jokes, and I hope the supervisors in the Bryant F. case adjusted their senses of humor after their training.  [email protected]

Tips From the Other Side: September 2019

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By Meghan Droste, September 18, 2019

Last week, I had the pleasure of traveling to Nevada to do an onsite training for a fantastic group of HR professionals. In talking through various issues related to harassment, we discussed an agency’s obligation to take prompt and effective corrective action when it substantiates an allegation of harassment (sexual or otherwise).

This is, of course, a legal obligation but it also goes a long way to ensuring that employees have faith in the agency and its willingness and ability to take harassment allegations seriously. If employees see that the agency takes these allegations seriously, they should be more likely to report harassment, hopefully before it rises to the level of legal liability, and less likely to commit harassment. This will result in a more productive work environment and fewer instances of liability for the agency.

During the class, we discussed examples of what would undermine employees’ trust in an agency. One situation that came up was an agency giving an award to an individual after finding the employee had engaged in harassment. From the perspective of a complainant’s representative, this type of situation jumps out at me. I would, of course, use such an award to argue that the agency was not taking the harassment seriously. See Complainant v. James, EEOC App. No. 0120123332 (Sept. 10., 2014) (finding the agency’s failure to discipline the harasser “communicated to employees that the [a]gency did not take racial harassment seriously”).  After all, how could it assert that it took prompt and effective corrective action if it followed any discipline it issued with a reward for the harasser? See Quinn v. Tenn. Valley Auth., EEOC App. No. 01956441 (Jan. 30, 1998) (finding the agency’s promotion of the harasser after the allegations of harassment to be “inexplicable”).

This practice tip grew out of the class discussion: A participant said she recommends that managers send all proposed awards to HR before awarding them so that HR can cross check the potential recipient with any open or recently closed harassment complaints and investigations.  This sounds like a good practice to me.  While I hope that your managers are well-trained and know that giving an award to someone who harassed another employee would be problematic, this extra level of review ensures that the agency does not get tripped up by someone who doesn’t see the big picture. [email protected]

Why Do We Suggest You Put a Douglas Analysis in the Proposal Letter?

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By Dan Gephart, September 18, 2019

Here at FELTG laboratories, we create training that teaches the no-nonsense way of doing things, especially as it pertains to handling misconduct. You know the saying that the straight line is the quickest and easiest way to get somewhere? FELTG teaches that straight line on discipline.

Sometimes, however, we hear from attendees who, in the words of Col. Nathan R. Jessup, “can’t handle the truth.” These encounters usually start with something like … “but our HR Office says” or “our counsel told us differently.”

If you’ve been a part of MSPB Law Week or Developing & Defending Discipline, or sat in on our flagship UnCivil Servant training, you know that we teach that the Douglas Factor analysis should be included with the advance notice, or proposal. Heaven forbid! You’d think we were suggesting you fire off a nuclear weapon to stop a hurricane. “Who told you we should do that?” “Where is that in the law?” “Where’s the case law on that?” This hasn’t happened once or twice. This has happened numerous times, and continues to happen.

There is no mystery, and we’re going to address it right here, right now. The reason for including the Douglas analysis in your proposal letter is three-fold: There’s the concept of due process, as well as a statutory reason, and, yes Virginia, there is case law – the original Douglas decision.

Let’s get the answers directly from the brain of FELTG Past President William Wiley, co-author of UnCivil Servant: Holding Government Employees Accountable, 5th edition. After all, Bill is the one who has been challenged on this point more than anyone else.

Let’s start with due process.

Bill: The concept of fairness in our business requires that we tell an employee why we want to fire him so that he can defend himself before a final decision is made. We cannot have secret reasons for firing an employee. If a practitioner cannot agree with that fundamental principle of due process, we have little hope in moving them forward toward the right answer. An explanation of why we’ve chosen the penalty we have chosen is basic to employees being given a chance to defend themselves. For example, say that an employee engages in a loud profane argument with his supervisor. One reason the Proposing Official might think that such misconduct warrants removal rather than something less is because the argument took place in front of members of the public. The employee should be informed of that aggravating factor in the proposal notice so that he can argue that the argument did not take place in a public area, or that it was not in fact actually heard by a member of the public. We teach that by including a Douglas Factor analysis along with the proposal, we put the employee on notice of the reasons we selected the penalty of removal, thereby providing due process and an opportunity for defense.

Now, the law.

Bill: The proposal notice must state the “specific reasons” for the proposal. 5 USC 7503(b) and 7513(b). The selection of a particular level of penalty is intimately related to the “specific reasons” that a removal has been selected, rather than a lesser penalty. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011) for a decision in which the court slammed the Board for denying due process relative to the penalty analysis.

And, finally, case law.

Bill: The Douglas decision itself says that the aggravating penalty factors ”should be included in the advanced notice.” A Douglas Factor analysis, I will concede, contains both aggravating and mitigating factors. The reason to do a complete Douglas Factor Worksheet along with the proposal notice is to avoid a misunderstanding as to what constitutes an aggravating factor as compared to a mitigating factor (or a neutral factor). If we took the narrower approach and just included what we considered to be aggravating factors in the proposal – rather than the full Douglas Factor analysis – we run the risk of omitting a factor that, on review, the Deciding Official decides is indeed aggravating.

This is where agencies sometimes mess up. Length of service is one of the most-used Douglas Factors, and we’ve seen it presented as an aggravating factor and a mitigating factor. Which is it? Shouldn’t matter for the Proposing Official. Simply include the fact that the employee has five years of service in the Douglas analysis. That allows the Deciding Official to make his or her own judgment on how to consider the length of service.

The harder question to answer is why this concept is so hard to believe. Maybe it’s because judges seem to have little interest in what the Proposing Official thinks about the penalty selection. When it comes to penalty, the judge wants to hear from the Deciding Official. But the Deciding Official will make his/her conclusions based on the Douglas Factor assessment.

And while you’re at it, include the Douglas Factor worksheet with the proposal notice, too. Why do that? Mark your calendars for the next MSPB Law Week on March 9-13, 2020. [email protected]

And Now a Word With … The Hatch Act Unit

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By Dan Gephart, September 10, 2019

It’s always interesting when federal employment law makes its way into mainstream conversation. After Kellyanne Conway’s failure to understand and comply with the Hatch Act made headlines, people who have yet to figure what kind of work I do were telling me about the Hatch Act.

Back in a previous life, I edited a book on compliance with the Hatch Act. In terms of length, the book was less Stephen King’s The Stand and more Shirley Jackson’s The Lottery. And like those aforementioned stories, the Hatch Act, which originally became law in 1939, had an element of horror: The punishment for Hatch Act violations was termination.

Then in 2012, the Hatch Act was updated to allow more discretion in punishment, along with several other provisions. This made sense. Some Hatch Act violations are more severe than the others. Thanks to the change in the law, the rise of social media, the overt politicization of almost every aspect of our lives, and the increasing divide in the country, the Hatch Act has become a lot more difficult to navigate.

However, you do not need a book to get your answers. The Office of Special Counsel oversees the Hatch Act. Its Hatch Act Unit, led by Ana Galindo-Marrone, handles all matters related to the law, and provides regular guidance. All you need to do is ask. If you are seeking advice about your political activity or the activity of another employee, under the Hatch Act, you may request an advisory opinion from OSC by calling (800) 854-2824 or (202) 804-7002. You can also email the Unit at [email protected].

Thank you to Ana Galindo-Marrone and her team at the Office of Special Counsel’s Hatch Act Unit for answering our questions.

DG: Must a federal employee’s personal social media account be free of any reference to their governmental position if they expect to post political content?

OSC: No. The Hatch Act does not prohibit employees from including their governmental position in the biographical information section of their social media account, even if they post political content on that account. However, if the employee is using the account for official purposes, the employee should not engage in political activity on that account.

DG: What Hatch Act violations are you seeing in this political cycle that are new or unexpected?

OSC: We are seeing more violations involving employees engaging in political activity in their official capacities, whether on official social media accounts or in the performance of their official duties. We also have received more complaints about employees openly stating or displaying their support or opposition to a candidate in the workplace.

DG: If a federal supervisor thinks one of her employees is in violation of the Hatch Act, what should she do?

OSC: Federal supervisors can call OSC’s Hatch Act Unit to discuss whether the employee’s activity violates the Hatch Act, and if so, the best course forward.

DG: If a federal employee’s relative is running for office, what are the limitations on the assistance a federal employee can provide to the campaign?

OSC: It depends on whether the employee is less restricted or further restricted. Less restricted employees, which are the majority of the federal workforce, generally may provide support to a relative’s campaign, as long as they do not:

  • Engage in any campaign-activity at work, including using social media or email.
  • Fundraise for the campaign by any means.
  • Use their position to assist the campaign by, for example, involving subordinate employees in the campaign or engaging in campaign activity in their official capacity.

Further restricted employees generally are those employed in intelligence and enforcement-type agencies or who hold certain positions, such as career SES. They may not take an active part in partisan political campaigning, which means they may not engage in any activity in concert with a political party or candidate for partisan political office (e.g., working as a campaign volunteer, distributing campaign materials, circulating nominating petitions, etc.). In addition to the limitations placed on less restricted employees, further restricted employees may not provide assistance to a relative’s campaign if such assistance is done in concert with the campaign. They may, however, make a monetary donation to the campaign, appear in a family photograph that is used for campaign purposes, or accompany the candidate to a campaign-event. [email protected]

Question of the Day: Why Do Agencies Discipline?

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By William Wiley, August 28, 2019

Every now and then, I’ll make a statement in a class, and some bright student will say: “Where did you get that?” If the issue has to do with something recent, often I am able to find a citation to a case decision or perhaps a regulation that resolves the question. But every now and again, I get a question about something that is so fundamental I can’t remember (nor find) where I got it.

For example, recently I was looking through some old Board decisions that made me ask the question: “Why do we discipline?” For many years, I have taught that the purpose of discipline is to correct behavior and prevent future occurrences, not to punish for the sake of retribution or extracting pain from the employee simply for the sake of extracting pain. However, when I tried to find the source of that answer, I found very little. The Merit Systems Protection Board doesn’t seem to have addressed the question. The Office of Personnel Management has some very nice regulations relative to the procedures by which discipline can be taken, with the admonition that it can only be taken for reasons that support the efficiency of the service. But that doesn’t really tell us much.

The answer to this question seems so fundamental that I am absolutely blown away that I cannot find what answer might be. And the answer is absolutely critical to assessing some of the actions taken by MSPB. For example, in 2015, the Board upheld the mitigation of a removal to a 180-day suspension (based on the mitigating circumstance of the employee’s medical condition). The employee’s misconduct was falling asleep at work. If the purpose of discipline is to correct misbehavior, does the Board really believe that a six-month suspension is necessary to motivate a sick employee not to be sick? In another decision a couple of days earlier, the Board concluded that a 30-day suspension was somehow appropriate for an individual suffering from major depressive disorder. I just cannot understand how that motivation could possibly be the right answer. See Banks v. DVA, CB-7121-15-0006-V-1 (Feb. 27, 2015)(NP), Bowman v. SBA, 2015 MSPB 18.But if that’s not the answer, what is? If we are not trying to correct behavior through negative reinforcement, then what the devil are we doing by disciplining employees? Would someone out there with a paygrade above mine (and as my pay grade is effectively GS-zero, so that includes everybody), please answer this question? If the purpose of discipline is to correct behavior, then the Board was absolutely crazy to be mitigating removals to 60-, 90-, 120-, and 180-day suspensions. There has never been a study nor is there a principle of psychology that supports discipline to correct behavior at this level of punishment. If there is another purpose for discipline, it would be terrific if we all knew what that was so that supervisors could take that into consideration when analyzing the Douglas Factors. [email protected]

Can an Agency Track Down a Former Employee and Discipline Him?

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By Deborah Hopkins and William Wiley, August 14, 2019

This hypothetical recently came across the FELTG Help Desk, and we thought it was a curious question that the rest of our readers might be interested in. It’s a multi-part scenario, so read carefully.

  1. Can a misconduct investigation at an employee’s old agency follow him to or otherwise impact him at a new agency where he has gotten a new job?

Answer 1. As long as the agency can find a nexus (a connection) between the previous misconduct and the current government job, then an investigation (and its ensuing findings) from another agency may follow the employee to the new job. The impact can include anything from nothing through removal, depending on how the new agency views the conduct.

The investigation stays with the employee because the employee is accused of engaging in misconduct directed against the government, which is not limited to just the former agency. Or, perhaps he’s committed a criminal act (against the American people). Either way, moving from one agency to another does not relieve him of accountability.

  1. If it is a low-level offense (far from criminal), can the old agency mandate the employee back to be interviewed, and reach them at their new agency to receive the proposal and decision letters? Or does the new agency somehow take on the case?

Answer 2. The former agency can absolutely request the employee to come back for an interview, and the new agency’s supervisor can mandate the employee comply with the interview request or else face disciplinary action. And just so you know, refusal to cooperate with an agency investigation is first-offense removal misconduct, no matter how serious or minor the misconduct allegations might be. See, e.g., Hamilton v. DHS, 2012 MSPB 19, Weston v. HUD, 724 F.2d 943 (Fed. Cir. 1983); Negron v. DoJ, 95 MSPR 561 (2004); Sher v. VA, 488 F.3d 489 (1st Cir. 2007).

Keep in mind, even though the employee has left, there’s this little piece of the Administrative Leave Act of 2016 (part of the 2017 NDAA) dealing with investigative leave that says if an employee quits during an investigation, the formerly employing agency should complete its investigation, then forward any adverse conclusions to the new agency for inclusion in the employee’s OPF. The former agency will have to notify the employee and then deal with any appeal, and as far as we can tell this issue has never been litigated.

When it comes to imposing discipline, however, that decision must be made by the new agency.

The employee now works at X agency, so he is controlled by X agency’s rules and regulations. And no agency regulations in the history of our great country allow some other agency to discipline employees other than its own. The former agency, call it Y, can inform agency X of its findings and recommend to management at X that the employee be disciplined. If X refuses to discipline, then the management at Y can go up the chain of command to the President and have him order X to discipline. The power to discipline employees is vested in the president (5 USC 301, et seq) and he can delegate that authority downward to his respective department heads. It’s all up to him.

In summary, the authority to discipline is vested in the employing agency, not the formerly employing agency. The old agency can recommend, but that’s about it, UNLESS…

If agency Y doesn’t mind taking political heat, they can report the matter to the IG of agency X, just like anybody can, by dropping a dime on employee misconduct.

[Wiley Note:  Several years ago, while riding with a chatty Uber driver, he asked me what I did for a living. I told him that I helped government agencies fire people who do bad things. He paused a second, and then asked, “Do these agencies contact you for help, or do you just go around DC looking for bad government employees you can fire?” There are a lot of days, my friends, that I wish that the second option had been the right answer.]

Hope this helps. [email protected]

‘Legitimate’ Non-discriminatory Reasons – When Preselection is a Defense

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By Meghan Droste, August 14, 2019

Before going to a new restaurant, I always check out the menu online.  Part of this is probably a holdover from when I was a picky eater growing up and I needed to make sure there was at least one thing on the menu I would eat. As an adult with a much more normal range of preferences and a willingness to try new things, I think it’s also just part of being a planner.  I like to know what I’m getting into.  My pre-restaurant menu scanning often leads to me knowing exactly what I’m going to order before I even sit down.

A little strange? Perhaps. But in this case, preselection doesn’t hurt anyone.

In federal employment, however, preselection can hurt an agency. If an agency official provides a wrongful advantage to help an applicant, or to hurt the chances of another applicant, it can rise to the level of a prohibited personnel action. It can also, however, serve as a legitimate, non-discriminatory reason in defending against an EEO complaint, as the Commission held in Cory C. v. Social Security Administration, EEOC App. No. 0120180335 (May 2, 2019).

I urge you to keep in mind as you read about the Cory C. case that “legitimate, non-discriminatory reason” is a term of art in discrimination cases, and not all of those reasons may actually be what we might consider legitimate.

In the Cory C. case, the agency announced a vacancy for a supervisory management analyst position. Prior to the announcement, the second-line supervisor (S2) for the position promised the position to the eventual selectee (EV). She did so even though the person in the position at the time reported that EV was not qualified. Once the agency announced the position, the complainant made the best qualified list and was interviewed by the selection panel. The complainant received perfect scores and all of the panel members ranked him highest. Despite this, when the panel recommended the complainant to the selecting official, he ignored common practice and directed the panel to conduct additional reference checks.

When the panel provided positive references for the complainant, the selecting official conducted his own investigation and spoke with a colleague who had worked with the complainant in the past. Based on negative feedback from the colleague, the selecting official rejected the panel’s recommendation and selected EV instead. The complainant filed an EEO complaint, alleging discrimination based on race and sex, and retaliation.

The Commission found that the complainant established a prima facie case of discrimination because EV was outside of his protected classes, and found the selecting official’s reasons for deviating from common practice in the agency to be not credible.  The agency still prevailed. Although there was evidence of pretext, there was no evidence that the selection, or preselection, was because of a protected basis.

The clear preselection for the position, which pre-dated the complainant applying for the position, was a non-discriminatory reason that the complainant could not overcome.

It makes sense that the Commission found in the agency’s favor on this one. While it is unfortunate that the agency failed to select the best qualified candidate, there is no evidence that it engaged in discrimination in doing so.

That being said, I would hesitate to call this non-discriminatory reason “legitimate.” [email protected]