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]

We Don’t Need Civil Service Reform, Part II: Accountability Doesn’t Take as Much Time as You Think

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By Deborah Hopkins, August 14, 2019

Last month, I published the first article in a three-part series We Don’t Need Civil Service Reform, where I discussed how holding employees accountable is not as difficult as you think. A couple readers took issue with that premise, and said it’s NOT that easy. Well, at FELTG our instructors’ experience, some as former federal managers and some as legal consultants to dozens of agencies over the years, leads us to this conclusion: Although some agencies have built managerial problems for themselves, when it comes to misconduct and performance removals, the procedures are indeed simple. Actions can be taken without great pains. We don’t make this stuff up.

If you haven’t read the article, I recommend you do before you move on to today’s topic.

Have you noticed when you read the news or watch politicians on TV, the theme about federal employees, on a continuous loop, is that it takes forever to take any action against them? In reality, yes, agencies are taking far too long to take action against employees who have performance or conduct issues. But, it shouldn’t take a long time – and even better, it doesn’t have to.

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

There are legal timelines for taking misconduct and performance actions and unless your agency policy or collective bargaining agreement says you have to do otherwise, I don’t know why you wouldn’t comply with the legal minimums. In addition, the documents needed to discipline an employee, or to put the employee on a performance demonstration period (or DP, the preliminary action formerly known as the PIP) shouldn’t take weeks or months to draft.

In DISCIPLINE cases, here’s the timeline:

Reprimand: Issue this immediately – as in, the same day the employee violates a workplace rule, or the day you find out the rule was violated. The longer you wait, the more of a disservice you do to yourself (it doesn’t count as discipline until the reprimand is given to the employee) and to the employee (she doesn’t have a chance to “learn” from the reprimand until she has received it).

It also doesn’t make logical sense to wait months to issue a reprimand. Such a delay undermines the assertion that “What you did was bad, and we won’t put up with it.” Legally, you can still issue a reprimand months after the misconduct – but why would you wait?

Short suspension: The proposal for the short suspension (anything a pay period or less) should also be handed to the employee as soon as practicable after the employee violates the workplace rule – generally within a week.

The employee then has a minimum of 24 hours to prepare a response to the deciding official (some agency policies or CBAs allow 7 or 10 days for the response), and the deciding official’s decision after considering the proposal and the employee’s response, can go into effect the next day.

That’s right. If an employee violates a rule on a Monday, the proposal can be given to the employee on Wednesday or Thursday, and the suspension could be served starting as soon as the following Monday.

Removals, demotions, and long suspensions: We recommend you never demote an employee or suspend for more than a pay period – come to MSPB Law Week if you want to know why – so I’ll focus this on removal actions.

The proposed removal should be issued to the employee immediately after the conclusion of the misconduct investigation, and the employee should be placed on notice leave so as not to disrupt the workplace. After all, the employee has done something so bad he deserves to be fired, so the longer you wait, the weaker it makes your argument about the nature and seriousness of the offense. The employee then has a minimum of 7 days to respond to the proposal (again, check policy or CBA). At any point after the response, and within 19 calendar days (per Executive Order 13839) the deciding official must make a decision, which can become effective as soon as day 31 (if the proposal is day 1).

Yes, an employee who violates workplace rules can be out of the workplace and off the payroll in a little over a month after the misconduct occurs.

In PERFORMANCE cases, the timeline looks like this:

As soon as the supervisor can articulate why the employee’s performance is unacceptable on a critical element in the performance plan, the supervisor should initiate a 30-calendar-day demonstration period – what we used to call a PIP – to allow the employee to show he can perform his job at an acceptable level. If the employee is not successful, his removal or demotion should be proposed immediately after the end of the demonstration period. In fact many agencies, such as USDA and HHS, have policies requiring a decision about the employee’s future to be made within 7 days of the end of the demonstration period.

After the proposal is issued, the employee then has a minimum 7-day response time, the same as in proposed disciplinary removals. But here’s where things become different from disciplinary cases: the deciding official is legally required to issue a decision within 30 days of the expiration of the notice period. Functionally, that falls between days 31 and 60, if the proposal is issued day 1.

It’s true, my friends. It only takes a month to remove a poor performer and MSPB has never NEVER NEVER found a 30-day demonstration period to be too short. The only time you have to make that period longer is if your CBA requires it, or perhaps if the person comes down with some terrible illness and is out of the workplace for three weeks out of the demonstration period.

Whether it’s a misconduct or a performance problem, you can have the employee off the rolls within just a few short weeks. It shouldn’t take months or years. The system as it exists is built for efficiency. You just have to use it the way it was intended.

Join us next time for Part III, where we discuss how holding employees accountable does not take as much proof as you think.

Take care out there. [email protected]

The Good News: Mulvaney is Wrong!

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By Ann Boehm, August 14, 2019

Acting Chief of Staff to the President and Director of the Office of Management and Budget Mick Mulvaney recently spoke at a Republican Party event in South Carolina and boasted about the Administration’s clever way of getting Federal employees to quit.

He explained that by moving Department of Agriculture employees “outside this liberal haven of Washington, DC” the employees quit. This is a great thing, according to Mulvaney, because “[i]t’s really hard to drain the swamp.” He said, “it is nearly impossible to fire a federal worker.” And, he clearly believes getting Federal employees to quit benefits the country. To quote the Church Lady, “Well, isn’t that special?”

Folks, Mr. Mulvaney is on swampy, not solid, ground.  Here are three reasons why.

DC Federal employees are not the part of the swamp that needs draining (um, that would be Congress). I come from a distinguished line of DC swamp dwellers.  My father, sister, and I all retired from the swamp.  My husband is a current swamp dweller.  I promise you the American taxpayer has gotten plenty of value from their tax dollars with us.

Also, I’ve worked with many, many amazing DC swamp dwellers. Interestingly, they are not all liberal. Fox News was often the channel of choice in the office gym.

But that doesn’t even matter. Most of the Federal employees with whom I have worked in the DC area are hardworking, committed, talented employees.  There’s no reason to want them to quit. They should be praised.

Federal employees don’t work only in DC. I have been a FELTG instructor since November of 2018. During that time, I have spoken to outstanding managers, supervisors, attorneys, human resources specialists, and employees in 17 different states, including Alaska and Hawaii.  These folks protect our national parks, our national defense, our water rights, Federal lands, public health – so many things that most Americans either take for granted or don’t even realize. Apparently Mr. Mulvaney is unaware.

You can fire Federal employees. There are some bad Federal employees, and they are like bad apples. They can spoil the whole bunch. But here’s the truth: They can be fired for performance or misconduct. There’s a process but, as we teach and write about repeatedly, you can handle problem employees. In fact, you must handle problem employees.

Federal employees, hold your head high.  Do your public service.  Prove Mr. Mulvaney wrong and get rid of the bad employees — and cheer on the good ones, even in swampy DC!  And keep up the good work! [email protected]

Accommodation and Performance Issues

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By Barbara Haga, August 14, 2019

The topic of accommodation sometimes arises when an employee is having difficulties meeting the performance requirements of the position, and could also occur when the level of performance has dropped even though it is still acceptable performance. This month, I continue the discussion of these issues as addressed in the EEOC guidance document The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities. 

Section III.a of the guidance document covers the matters addressed in this column.  Sections quoted from the EEOC document are in italics.

Performance at Fully Successful or better.  Question 4 deals with situations where the employee only raises the issue of disability after performance had fallen to a level lower than what had been met previously had been reached. In the Federal workplace, this could be an employee who received a Level 4 Exceeds Fully Successful last cycle, but a Fully Successful this cycle.

4) If an employer gives a lower performance rating to an employee and the employee responds by revealing she has a disability that is causing the performance problem, may the employer still give the lower rating? Yes. The rating reflects the employee’s performance regardless of what role, if any, disability may have played.  

Example 4: Last year Nicole received an “above average” review at her annual performance evaluation. During the current year Nicole had to deal with a number of medical issues concerning her disability. As a result, she was unable to devote the same level of time and effort to her job as she did during the prior year. She did not request reasonable accommodation (i.e., inform the employer that she requires an adjustment or change as a result of a medical condition). The quantity and quality of Nicole’s work were not as high and she received an “average” rating. The supervisor does not have to raise Nicole’s rating even though the decline in performance was related to her disability.

In this example, if Nicole filed a grievance over the rating, the fact that she had difficulty maintaining the level of performance previously assigned because of a physical or mental condition should not affect the outcome. Assuming that the supervisor completed the rating properly and could substantiate the ratings assigned, the performance in this case was judged against the written standard and assessed as meeting those requirements but not exceeding them, so the deciding official should sustain the rating.

If Nicole gave the disability as a reason for the lower performance accomplishment, there should then be a conversation with Nicole about future performance. In the Practical Guidance following Q.4, the EEOC writes: If an employee states that her disability is the cause of the performance problem, the employer could follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation (the obligation generally rests with the employee to ask), the employer may ask whether there is an accommodation that may help raise the employee’s performance level.

 Performance at Unacceptable. What if the performance is at a level which would warrant some corrective action has already occurred and the issue of disability arises?  Questions 5 and 6 deal with these scenarios. The basic premise is as follows:

When an employee does not give notice of the need for accommodation until after a performance problem has occurred, reasonable accommodation does not require that the employer:

– tolerate or excuse the poor performance;

– withhold disciplinary action (including termination) warranted by the poor performance;

– raise a performance rating; or

– give an evaluation that does not reflect the employee’s actual performance

If the employee requests accommodation because a disability is interfering with the ability to maintain acceptable performance, two different scenarios could present themselves, whether the request occurred after the opportunity to demonstrate acceptable performance (ODAP) was concluded or was raised prior or during the ODAP.

Post ODAP.  The guidance document provides a private sector example of what would happen when the disability was not raised until after the warnings and corrective procedures had taken place.

Example 9: An employee with a small advertising firm has a learning disability. Because the employee had a bad experience at a prior job when he requested accommodation, he decides not to disclose his disability or ask for any accommodations during the application process or once he begins working. Performance problems soon arise, and the employee’s supervisor brings them to the employee’s attention. He tries to solve the problems on his own, but cannot. The firm follows its policy on counseling and disciplining employees who are failing to meet minimum requirements, but these efforts are unsuccessful. When the supervisor meets with the employee to terminate his employment, the employee asks for a reasonable accommodation.

The employer may refuse the request for reasonable accommodation and proceed with the termination because an employer is not required to excuse performance problems that occurred prior to the accommodation request. Once an employer makes an employee aware of performance problems, the employee must request any accommodations needed to rectify them. This employee waited too long to request reasonable accommodation.

For a Federal employee, this could play out in two ways. One, in a conversation at the conclusion of the PIP advising the employee that he/she was not successful in reaching an acceptable level of performance, the employee raises the disability. The issue of a disability could also be raised in conjunction with a reply to a subsequent proposed adverse action based on the failed ODAP. In neither case would the agency be required to forgive the unacceptable performance as an accommodation.

We’ll continue to explore these performance-related issues next time!