‘Summertime, and the livin’ is easy’ – A Brief Reminder on EEO Deadlines

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By Meghan Droste, July 17, 2019

Happy summer dear FELTG readers! By the time you read this, we will be firmly in the middle of July and, if you are in an area like DC, in the midst of plenty of heat and humidity. It’s the perfect time to take it easy, find some shade, and maybe indulge in a frozen treat or two. (I leave it to you to decide what form those treats will take. Personally, I’m sticking with some coffee cookie ice cream).

In the spirit of the lazy days of summer, I’m bringing you a pretty straight forward case that won’t require too much thought to digest. In Leisa C. v. Department of Agriculture, EEOC App. No. 2019001265 (April 3, 2019), the agency issued a Notice of Proposed Removal to the complainant on February 2, 2018.  Four months later, on June 20, 2018, the agency issued a decision on the proposal, removing the complainant effective June 23, 2018. The complainant received the decision letter on June 27, 2018, and she contacted an EEO counselor on July 16, 2018. The agency subsequently dismissed the complaint, finding the complainant contacted a counselor beyond the 45-day deadline.

If you are currently scratching your head, you’re not alone. I was a bit surprised when I read this one too. The complainant contacted a counselor less than a month after she received the decision, and only 23 days after the effective date of the removal. I am terrible at math, but it’s pretty clear even to me that 23 is less than 45, so there is no question that the complainant’s contact was timely. See, I told you this one would be pretty straight forward. No heavy lifting required.

The Commission didn’t offer any detail on the agency’s argument, but my best guess is that it based the deadline on the February 2, 2018 notice proposing the complainant’s removal (164 days before the complainant made EEO contact). If this was the theory of the agency’s case, it unfortunately doesn’t float.  As the Supreme Court has said, “[t]he claim accrues when the employee is fired,” and not a moment before.  See Green v. Brennan, 136 S. Ct. 1769, 1777 (2016).

And with that, I leave you all to find a pool to float in or a hammock to nap in; just be sure to wear lots of sunscreen. [email protected]

 

Tips from the Other Side: July 2019

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By Meghan Droste, July 17, 2019

When I’m not litigating my own cases, I spend most of my work-related time out there teaching, bringing you case law and pointers to help in your own practice. Last month, I had the pleasure of being the student instead of the teacher, and I picked up a bunch of new and exciting info at a conference for employment lawyers. One of the panels I attended brought my attention to an EEOC decision from last year, Joseph B. v. Department of Veterans Affairs, EEOC App. No. 0120180746 (August 14, 2018), that is remarkable for the award of several years of front pay. Front pay is unusual and years of front pay is nearly unheard of. But that’s not the only takeaway from this decision, so this month’s tip comes from the procedural issues that led to the case being in front of OFO.

In Joseph B., the complainant filed a motion for summary judgment and the agency stipulated to liability in nearly all areas of the complaint.  After reviewing the pleadings, the administrative judge granted the complainant’s motion and entered summary judgment in his favor.  The administrative judge subsequently conducted a hearing on damages and issued a decision ordering several types of relief. As part of the order, the administrative judge ordered that the complainant “continue to receive full benefits in front pay status, including health insurance.” The agency fully implemented the administrative judge’s decision with some modifications to the language. It included in the final order a direction that, to receive the front pay, the complainant had to resign from his position. The agency did not file an appeal of the administrative judge’s decision.

The agency paid the complainant his salary and related benefits for more than a year after the final order, although the complainant did not resign. Fifteen months after the order, the agency separated the complainant from federal service and stopped paying the ordered relief.  Instead, the agency asserted that it would pay the complainant a lump sum of the front pay owed, with an offset for the salary he was earning from his part-time employment (which the complainant had engaged in while working for the agency with the agency’s knowledge and approval). The complainant filed a petition for enforcement with the Commission.

All of this brings us to the tip for this month: If an agency is going to take issue with an administrative judge’s award, it must file an appeal.  The agency did not do so, and instead issued a final order stating that it would fully implement the administrative judge’s decision. As a result, the Commission found that it could not modify the order and pay the complainant a lump sum — which would not allow the complainant to continue to receive the “full benefits,” including health insurance, provided for in the order — rather than keep him on the rolls in a non-duty status. The Commission also rejected the agency’s arguments regarding the complainant’s other income, and held that front pay is not subject to mitigation.

I recommend thinking of these final orders like a settlement agreement. While you might come to regret it later, once you agree to it (or fully implement it without appealing), you’re stuck with it. [email protected]

More Questions about Federal Employees Who Use Marijuana

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By Deborah Hopkins, July 17, 2019

As marijuana is legalized in more states around the U.S., the questions FELTG receives regarding marijuana use by federal employees continue to come in. (If you haven’t already, check out my first article on the topic, Can Federal Employees Smoke Pot?) Below are some recent questions sent to the FELTG question desk, and along with each answer comes the disclaimer that this article is not intended to provide legal advice, is for training purposes only, and does not create an attorney-client relationship with any of the questioners.

Question 1:

Hello and good afternoon,

I have a question about the use of marijuana by federal employees. Since its use has been cleared in Canada for all who are 18 and over, can a federal employee with the U.S. be charged for just using it there? Upon returning to work, even days after using, he/she may not pass a drug test. Technically, a federal employee in Canada is subject to Canada laws and not those of the United States, correct?

Thanks and look forward to your response,

[Name Redacted]

And our FELTG-response:

Well, that’s a creative way to look at things, but you won’t like my answer. Don’t make the mistake of thinking that because an activity is legal in a certain jurisdiction, that activity can’t be considered misconduct for the purposes of federal employee discipline. For example, in over 40 countries around the world domestic violence is legal. But if a federal employee happens to work for the State Department in Armenia, which is one of the countries that does not see domestic violence as a crime or civil infraction, that employee can still be disciplined for physically assaulting her spouse, if the agency can find a nexus between the conduct and the federal job.

Of course, we don’t even need to look at such an extreme example. Take a read of what then-OPM Director Archuleta put in a 2015 memo to agency heads, which is still true today:

Marijuana is categorized as a controlled substance under Schedule I of the Controlled Substance Act.  Thus knowing or intentional marijuana possession is illegal, even if an individual has no intent to manufacture, distribute, or dispense marijuana. In addition, Executive Order 12564, Drug-Free Federal Workplace, mandates that (a) Federal employees are required to refrain from the use of illegal drugs; (b) the use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service; and (c) persons who use illegal drugs are not suitable for Federal employment. The Executive Order emphasizes, however, that discipline is not required for employees who voluntarily seek counseling or rehabilitation and thereafter refrain from using illegal drugs … Drug involvement can raise questions about an individual’s reliability, judgment, and trustworthiness or ability or willingness to comply with laws, rules, and regulations, thus indicating his or her employment might not promote the efficiency or protect the integrity of the service.

So even if marijuana is legal in a jurisdiction (Canada, or elsewhere), it is illegal for a federal employee to use marijuana in any form – smoke, edibles, tinctures, pens, etc. – at any time, if they are employed by a federal agency. If you fail a drug test, you can probably kiss your job goodbye, even if the drug was legal where you used it. In fact, in one of the last MSPB decisions we ever got, all the way back in December 2016, the MSPB affirmed an indefinite suspension for an employee who used marijuana and whose security clearance was under review. Palafox v. Navy, 2016 MSPB 43 (December 20, 2016).

Bottom line: The federal government takes marijuana use seriously. If you want to keep your job, don’t use it anywhere, anyhow.

Question 2:

Hello, I am starting a position with the [agency redacted] soon as a [job title redacted]. I’ve used marijuana prior to this position and am thinking of continuing to do so while there. What should I take into consideration while making this decision, and what consequences can I face if I fail a drug test? The position is very low level, barely a step above intern, for context.

Thanks for the hypothetical question. Federal employees may not legally use marijuana in any form, whether recreational or medicinal. If they do, they can be removed, either for misconduct or for suitability reasons. And if you’re a probationer, you won’t even get to the conduct or suitability question – you’ll just be out. You need to realize the risk you are taking if you choose to violate this federal statute.

While job level and type is a Douglas factor, when the misconduct violates a federal statute, the weight of the offense carries far more significance than the level of job you hold. (By the way, probationers don’t even get the benefit of a Douglas-justification in removals for marijuana use.)

Question 3:

Can you work for the federal government and still use medical marijuana?

Sure you can. Until you get caught, that is, and then you can be removed because it is illegal to use marijuana while you are a federal employee.

No matter how many different ways you ask the question, my answer is going to be the same. Unless and until Congress passes a law that says marijuana is not illegal, federal employees should just say no. [email protected]

Are They Going to Regret Leaving?

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By Dan Gephart, July 17, 2019

It was 24 years ago this month, and I vividly remember that heart-pounding march from the desk I shared with a fellow reporter to the Editor’s office. The newsroom boss — we’ll call him X – was very talented. He was even more intimidating. And I was about to, for the first time in my professional career, tell my boss I was resigning.

At first, X offered the usual — a slight raise and a few minor perks. I felt flattered and appreciated. Once I made it clear that my decision was final, however, the mood abruptly turned sour. X looked me directly in the eye and ominously said: “You’re going to regret leaving the newspaper business.”

X scared the heck out of me.

In hindsight, though, X’s threat was pretty ridiculous. That small suburban newsroom never had as many employees as it did on the day I resigned. It now has fewer than half. In the mid-90s, the newspaper business began a slow steady decline that has accelerated in the last few years. About 3,000 newspaper employees have been laid off or offered buyouts within the first five months of this year, according to Bloomberg.

I share this experience so that I can ask you this question: If a highly productive young employee came into your office to give her two weeks’ notice, would you feel confident enough to reply: “You’re going to regret leaving the federal government”?

We’re in trouble, folks. There are more than twice as many federal employees 60 years and older than there are federal employees under 30 years old, according to FedScope data. That retirement tsunami never really hit, but darn if those big waves don’t keep lapping up on our shore. We need to bring in young talent to continue our agencies’ very important missions, many of which are at critical junctures. Yet, those agencies still haven’t figured out how to consistently hire young federal employees. There is also good reason to believe that they’re losing the ones they were able to hire.

The FedScope data is based on information as of September of 2018. It’s reasonable to think those figures will continue to get worse. Just look at what has happened since last September:

  • A highly politicized and soul-crushing 35-day shutdown that fell over the end-of-year holidays.
  • Multiple announcements from agencies planning to scale back their telework programs.
  • A member-less Merit Systems Protection Board. (And remember: The Board has lacked the quorum necessary to make decisions on cases for more than two years, leaving thousands of employees and their agencies in employment limbo.)
  • A proposal to dismantle the Office of Personnel Management, the agency responsible for federal workplace policy. (If you’d like a more positive take on OPM’s potential demise, my colleague Ann Boehm found a silver lining.)
  • Bills to extend probationary periods.
  • Proposed legislation that would basically make federal employees at-will, returning civil service to the spoils system.

The federal government is not looking like an ideal place to work.

What does this have to do with you, FELTG reader? A lot. As federal leaders, supervisors, HR professionals, and EEO specialists, you either manage people yourself or advise those who do.

Look at any survey of why people leave jobs and you’ll see poor performance management at the core. They may say “bad manager,” but it’s the same thing. Nothing drives a good performer to frustration more quickly than seeing a poor performer skating by. I know. I’ve watched it happen quite often in previous jobs. But don’t trust me. Just read any Federal Employee Viewpoint Survey over the last several years. There are way too many federal employees who think their managers are not holding bad employees accountable.

Behind those draconian bills in Congress and the wariness of young, talented job-seekers is the biggest and most damaging myth about federal employees: They can’t be fired. And there isn’t one iota of truth to that.

Are you one of those managers who cowers at the thought of accountability? Do you advise one of those managers? Well, you better learn how to hold employees accountable or get out of the way.

Anyone who has attended FELTG’s signature program UnCivil Servant: Holding Employees Accountable for Performance and Conduct or read the book (now in its 5th edition) can tell you how to remove an employee for unacceptable performance in 31 days. If you haven’t attended the training, scroll back and re-read the article by FELTG President Deborah Hopkins that leads off this month’s newsletter — We Don’t Need Civil Service Reform. Deb gives you the simple steps to address poor performance and misconduct. It doesn’t get any easier. Print the article, and be on the lookout this summer for the next two installments in Deb’s series. If you still need inspiration, then scroll back to the article – Ann Boehm’s Good News feature It’s Perfectly Legal to Talk to Your Employees — and it Can Net Results! There is a lot of wisdom in those two articles.

You should also find a way to get to our Managing Federal Employee Accountability next week in Portland, Ore., Barbara Haga’s Advanced Employee Relations class in Norfolk, Va., from September 10-12, or the three-day Developing and Defending Discipline: Holding Federal Employees Accountable, starting September 17 in Atlanta. You’ll leave each class with a lot of specific guidance on how to handle the accountability challenge.

Look, it can be done. Wouldn’t it be nice to hire and keep good talent? While we never want our talented employees to leave, wouldn’t it be great to be able to say to the departing worker, with a straight face: “You’re going to regret leaving the federal government.” [email protected]

Where Does It Say I Can Reprimand?

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By William Wiley, originally published November 14, 2015; posted July 10, 2015

Questions, we get questions. And here’s one that goes to the fundamental nature of an agency’s authority to do anything:

Dear Genius-Level Brains at FELTG-

What is the Statutory or CFR basis that gives Management the authority to issue written reprimands? I’ve reviewed USC Chapter 5 and 5 CFR 752 as well as more OPM webpages than I thought could exist. I see lots on suspensions (<14 days and >14 days) but nothing that seems to give Agency Management the right or authority to issue written reprimands. Do you know of any CFR reg that addresses an Agency Head’s authority to issue written reprimands for the efficiency of the service?

And our sparkly little FELTG answer:

There’s no specific statutory or regulatory authority to issue reprimands. Rather, the authority comes from the statutory delegation of the authority for the general administration of personnel within an agency to the head of the agency, 5 USC 302(b). Issuing a reprimand is part of the “general administration of personnel.” Therefore, it is delegated to the head of your agency.

It is a common misunderstanding to look for the authority to do something specific in government. Rather, this broad delegation of general administration authority effectively allows you to do anything related to personnel administration that you deem necessary, unless there is a prohibition against it. The better way to approach the issue is to ask, “Where does it say I cannot issue a reprimand?” As it does not say that anywhere, then you can.

An analogy would be, “Where does it say in law or regulation you have the right to breathe?” It does not. That right is embedded in the right to “the pursuit of happiness” that is found in our Constitution.

As for the content of a reprimand, generally the belief is that a reprimand was first defined for the practical purposes of progressive discipline in Bolling v. Air Force, 9 MSPR 335 (1981). Subsequently, buckets of Board decisions have relied on the fact of a reprimand being in the record to support progressive discipline. Black’s Law Dictionary defines a reprimand as “to censure formally, especially with authority.” The head of your agency has the authority to administer personnel. Therefore, you can reprimand.

By the way, nothing requires that a reprimand be for “the efficiency of the service.” That is a requirement set forth in statute only for 5 USC 7513(a) actions: suspensions, demotions, and removals. Rather, we are bound to take a personnel action (e.g. reprimand) only on the basis of conduct that adversely affects the performance of the employee or others, 5 USC 2302(b)(1). A reprimand is based on misconduct. Therefore, this standard is satisfied.

Hope this helps. Best of luck-

Bill

 

[email protected]

And Now a Word With … Steve Shih

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Portrait of Steve Shih on Wednesday, Dec. 6, 2017 at NASA Headquarters in Washington, DC. Photo Credit: (NASA/Joel Kowsky)

By Dan Gephart, July 2, 2019

On Feb. 1, 2018, the National Aeronautics and Space Administration launched a workplace anti-harassment campaign. The campaign was based on the applicable federal laws, EEO guidance on anti-harassment, and the expertise of its creator – Steve Shih.

Shih is that rare person who can explain the fundamental principles and concepts of subjects like employment law and leadership, but is also creative enough to develop outside-the-box solutions. He has held critical roles over the past 25 years with the Equal Employment Opportunity Commission, the Office of Personnel Management, and the Department of Homeland Security. Shih has created agency- and government-wide policy and guidance for EEO, leadership, diversity and inclusion, training and development, employee engagement, and agency operations. He is currently Associate Administrator of Diversity and Equal Opportunity at NASA.

When Steve Shih talks, you listen. And we were listening when he discussed the agency’s anti-harassment campaign as being about “safety and effectiveness” of the workforce and the NASA mission. “We know if we take care of the workforce, they will take care of our mission,” Shih said.The campaign focuses on proactive prevention of harassment, and the prompt correction of harassment when it occurs. For prevention, the agency has gone to great lengths to get the message across – everything from meetings with agency leaders to 3-D simulations and gamification.

DG: What specific steps has NASA done to proactively prevent harassment?

SS: First, the NASA Administrator sent a video message and a written memorandum to every NASA employee, communicating:

  • Expectations for the appropriate culture and values in the NASA workplace.
  • Emphasis on accountability.
  • Reinforcement of the agency’s anti-harassment policy and requirements for all NASA personnel to exercise reasonable care to prevent and enable the prompt correction of workplace harassment.
  • Expectations for all personnel to support NASA’s Anti-Harassment Campaign.

I personally conducted briefings for all NASA senior leaders, including at the Administrator’s Senior Staff Meeting in February as well as briefings and trainings at NASA Headquarters and Field Centers across the country.

NASA has just developed and launched an innovative online training involving 3-D simulations, avatars, and gamification, focusing on harassment prevention and bystander intervention. The training is available to the entire NASA workforce, and is aligned specifically to NASA mission and to providing a value to NASA organizations and individuals on mission accomplishment.

NASA field centers and other organizations are also continuing additional efforts to proactively prevent harassment, including town halls, diversity and EEO programs, and partnerships with employee resources groups.

DG: We talked a lot about prevention, but can you briefly tell our readers how NASA effectively handles correction?

SS: NASA’s anti-harassment program is operated through a partnership of relevant NASA organizations and officials (including the agency’s Anti-Harassment Coordinators, the Office of Diversity and Equal Opportunity, the Office of the Chief Human Capital Officer, the Office of General Counsel, and senior management officials) who work together to review the fact-finding results of harassment matters and determine appropriate action.

These organizations and officials have both the leadership and program responsibilities and authorities to coordinate appropriate corrective measures when harassment occurs, including deciding and implementing discipline for employee misconduct, and driving organizational improvements (e.g., through training and improved operational policies and procedures).

This approach has enabled NASA to prioritize correction and continual prevention of harassment in a consistent, coordinated, and effective way across the entire agency.

DG: How do you measure the success of the anti-harassment program?

SS: NASA’s recent annual processing times for reports of harassment has averaged only 51 days from receipt to fact-finding to full resolution of reports of harassment, compared to the formal EEO process, which on average easily takes more than two years to fully complete.

We have data demonstrating employees’ increased capability to report harassment through any of multiple avenues and to multiple individuals who can arrange for assistance, including through our Anti-Harassment Program. Our data also indicate employees have experienced increased psychological safety and assurance of protection from retaliation, and these conditions have improved the confidence of employees to report and seek assistance for harassment.

I’m pleased to say NASA has maintained a very low volume of EEO complaints raising claims of harassment. Our data shows NASA’s Anti-Harassment Program has been extremely effective for early resolution of harassment matters so they don’t later become EEO complaints. In fact, during FY 2018, NASA received only 30 EEO complaints of harassment – this is a tremendously small number for an agency with about 17,500 civil servants and additional contract employees – and of these 30 EEO complaints, not a single one them raised a claim of sexual harassment.

Security Clearances as Conditions of Employment

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By Barbara Haga, June 17, 2019

This month we are looking at what I would describe as the “King of Condition of Employment Cases.” In Egan v. Navy, 484 U.S. 518 (1998), the Supreme Court answered the question of what type of review would apply when the condition of employment involved a security clearance. Anyone who deals with security clearance issues should read this foundational case, if they haven’t yet.

Egan was hired in 1981 as a Laborer at the Trident Refit Facility in Bremerton, Wash., where all positions were deemed sensitive. His appointment was documented as subject to satisfactory completion of security and medical reports. During the interim between his date of hire and the date of the decision on his security clearance, Egan performed limited duty and was not allowed on board any submarines. Upon completion of the requisite inquiry into his background, the Navy proposed his removal based on several factors. First, it was noted that criminal records from California and Washington state reflected that he had been convicted for assault and for being a felon in possession of a firearm. It was also shown that he had failed to disclose on his employment application that he had two earlier convictions for carrying a loaded firearm.  Finally, he had admitted that he had had prior drinking problems and at one point had completed the final 28 days of one of his sentences in an alcohol rehab program.

The Navy completed the next required step in the clearance denial process and provided him an intent to revoke notice. Egan replied that his debt to society for his past convictions had been paid. He also stated that he had not listed convictions older than seven years because he did not interpret the employment form as requiring that information, and that he had not had an alcohol problem for the three years preceding the clearance determination. He also provided favorable references from his supervisors regarding his background and character.

Despite the rebuttal information Egan submitted, the Navy denied his clearance. He exercised his clearance appeal within the Navy. The answer regarding the clearance was not modified. In 1983, the Navy removed Egan since he was not eligible for the job for which he had been hired.

In the initial decision, the AJ reversed the removal ruling that the Board had the authority to review the merits of an agency’s security clearance decision, including that the “… agency must specify the precise criteria used in its security-clearance decision and must show that those criteria are rationally related to national security.”  The AJ held that “… the ultimate burden was upon the agency to persuade the Board of the appropriateness of its decision to deny clearance.”    

The agency petitioned for review and the Board overturned the AJ’s decision. Egan then took the matter to the Federal Circuit where in a divided vote, that court reversed the Board’s decision. In the Federal Circuit decision, the Court explained that because the removal was taken under 5 USC 7512 rather than 5 USC 7532, the Board’s role of deciding the merits of the removal were not limited.  The government took the case to the Supreme Court.  The case was decided as summarized here:

The Majority of the Supreme Court, in a 5 to 3 decision, decided that a denial of a security clearance is not an adverse action and therefore not subject to Board review under 5 USC 7512 and 7513. The Board may only decide whether cause for denial existed, whether the security clearance was denied, and whether transfer to a nonsensitive position was feasible. It may not review the agency’s decision to deny a clearance on the merits. The Executive Branch is by law authorized to make judgments with regard to national security matters. This authority has been delegated to heads of agencies. “Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction [with regard to an individual’s possible future behavior] with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.” The agency head is to have the final say as to whether an individual will be given access to classified information.

Thus, for security clearance denials and revocations, the required proof is that the agency observed the necessary due process in handling of the clearance and in carrying out any subsequent adverse action. Given that, one would think that these were not complex cases and almost impossible to mess up. However, as you’ll see, it is possible to lose one.

Everything that Could Go Wrong

Gamboa v. Air Force, 2014 MSPB 13, provides a checklist of what not to do. Gamboa was moved from the position of Electronics Technician to the position of GS-6, Supply Technician in 2005. It is an unusual change in positions, since one would expect that the Engineering Technician would have higher grade potential that the Supply Clerk, but nothing is provided in the decision to explain the move. The personnel action did not indicate that the new position required a clearance, although it was designated as non-critical sensitive. Unfortunately, neither the position description nor the vacancy announcement included than the position required access to classified information. The decision reflects that there was no affidavit from an agency official or a policy that established that the job required a clearance.

More troubling was the fact that Gamboa’s access to classified material was suspended in early 2007 yet the removal was not effected until December 2010.  The agency claimed that the duties requiring any handling of classified material were given to other employees who had clearance, but the Board was not convinced, writing , “… it is unclear how or why the agency maintained this alleged arrangement for nearly 4 years if eligibility for access and/or actual access to classified information was a requirement of the appellant’s position.”  The Board overturned the removal, holding that the Air Force had not established that there was a condition of employment which Gamboa failed to meet. In other words, the agency’s actions undermined the argument that a security clearance was required, and Gamboa came back to work.

Barr and Mueller Should Come to FELTG Training

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By William Wiley, June 12, 2019

Yeah, they each messed up. And if they had participated in the FELTG Conducting Workplace Investigations program (next offered August 5-9 in Denver), they would have not. In case you’ve been adrift at sea without social contact for the past several weeks, here’s what happened.

As provided for in both law and regulation, Robert Mueller was appointed by the Attorney General (AG) of the United States as the Special Counsel (SC) assigned to conduct an investigation into questionable dealings between members of President Trump’s campaign team and representatives of the Russian government. After two years of investigation, Mueller issued a 448-page report containing a bunch of fascinating facts, but no legal conclusion as to whether those facts amounted to criminal activity on the part of the President. When asked why he did not draw a legal conclusion relative to criminal activity, Mueller noted a Department of Justice policy that stated that a sitting President cannot be criminally indicted for federal crimes prevented him from doing so.

Subsequently, when Attorney General William Barr was asked whether Mueller should have drawn a legal conclusion, the AG offered that he should have. Barr said that even though there is a DoJ policy that a President cannot be indicted, the policy did not prevent the SC from drawing a legal conclusion as to Presidential criminality without issuing an indictment.

Each of these honorable gentlemen made a mistake, mistakes that are not made by participants in FELTG investigations courses. As we have taught for nearly 20 years, an investigation begins with a “customer,” someone who needs the benefit of an investigation. That customer appoints another individual to be the investigator, with certain powers, objectives, and limitations; i.e., defines the scope of the investigation. The goal of an investigation is for the investigator to provide the information needed by the customer to do whatever it is the customer wants done. In a workplace investigations situation, that’s usually whether some poor federal employee should be fired. In the AG/SC situation just described, it’s whether the President of the United States should be impeached, thrown in jail, or at a minimum, should be re-elected.

The law that governed the appointment of Mueller states specifically that the report of the investigation is to be provided to the AG. It could have said that the report was to go to Congress, or to the public. But it did not. The law made the “customer” of the report the Attorney General of the United States. Therefore, according to basic constructs of investigation, it is up to the AG to define the scope of the investigation, so that the SC investigator knows what to look for and what to produce as an outcome.

In our FELTG classes, we recommend that this critical scope definition be memorialized in an “appointment” memo. Preferably, that memo is provided by the customer to the investigator and lays out the expectations the customer has. For example, part of the appointment memo might say something like, “I am appointing you to investigate the theft of laptop numbered 123 from the director’s office that occurred around June 3, 2019. Based on the information you collect, I will make a determination as to who most likely took the laptop and whether discipline is warranted.” Sometimes a different result might be desired by the customer. If so, it should be stated clearly in the appointment memo: “If possible, you are to identify who you believe took the laptop without authorization, and the degree of proof you believe that you have regarding that determination.” Perhaps the customer wants the investigator to go even further: “In addition to identifying the probable perpetrator, you are to consider the facts that contribute to the relevant Douglas Factors and suggest a range of penalty.”

There’s no right or wrong when it comes to the scope of an investigation. It’s up to the customer to decide what the expectations are to be, to define the scope, and then to empower the investigator to collect all the evidence that’s required. In our investigations classes, we’ve found that some agency customers just want the investigator to collect facts without any consideration of the penalty factors, and other agency customers want the whole enchilada: facts, perpetrator, and penalty. That’s why it’s so critical that the scope be understood mutually from the very beginning. Otherwise, the investigator may not be satisfying the needs and expectations of the customer.

We teach the potential investigators who participate in our classes that they should protect themselves by clarifying the scope of the work with the customer. If the customer does not draft an appointment memo, we suggest that the investigator draft a memo to the customer before the investigation is initiated that describes what the investigator believes his responsibilities; e.g., “It is my understanding that I am to collect facts surrounding the disappearance of the laptop from the director’s office, but not recommend a penalty nor identify specifically who I would conclude took the property.” That allows the customer to clarify any misunderstandings from the beginning, in case the investigator misunderstands his role.

This simple, basic step would have saved both Barr and Mueller a lot of confusion. When the SC decided early on that DoJ policy prevented him from reaching a legal conclusion as to Presidential criminality, he should have notified his customer (the AG) of this limitation early on in the investigation. Since the DoJ policy is open to interpretation (as evidenced by two really smart people disagreeing as to its meaning), and since there is no automatic right or wrong, a question presented by the SC to the AG for clarification two years ago when the investigation began would have saved a lot of disagreement and confusion at this stage now that the SC office has been dissolved. On the other hand, there’s not necessarily any fault to be assigned when it comes to being confused. When you order your eggs over easy for breakfast, and the waiter brings you (the customer) eggs that are scrambled, you simply say, “Excuse me, but I ordered eggs over easy.” It doesn’t matter if you misspoke or the waiter misheard. Your eggs were not served the way you want them, and any waiter interested in a tip will remedy the situation without hesitation. That’s how life works. There are no bonus points for assigning blame.

And that was the AG’s mistake. When Mueller submitted his report, and it was clear that he did not reach the legal conclusion that Barr expected, the AG simply should have returned the report to the SC and clarified the expectation. No harm, no foul. When you get scrambled eggs instead of over easy, you don’t jump up, run to the kitchen, and start frying eggs. You just ask them to do it over. That’s what Barr should have said to Mueller, and would have if he had attended the FELTG investigations seminar. The goal is to get an acceptable report (or an acceptable breakfast) in spite of any confusion as to expectations.

Here at FELTG, we exist to help you ladies and gentlemen do a better job of running the government. We do that by offering seminars and consulting services at a reasonable fee. Operators are standing by. Discounts offered for political appointees nominated by the President and confirmed by the Senate. We may be just a small  training group, but apparently we know more about federal investigations than do some very important people. [email protected]

A 75-cent Purchase Can Save Your Entire Case – and Help You Sleep at Night

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By Deborah Hopkins, June 12, 2019

In my travels across the globe teaching federal supervisors about the federal government’s accountability systems, one of the most-often-asked questions involves what supervisors can do to better their chances of defending their actions. Do they need more evidence? Witness statements? Video logs? A track record of poor performance a mile long?

All of that is fine, but I have an easier answer and it costs about 75 cents: an old-fashioned notebook. In the 40-plus years since the Civil Service Reform Act went into effect, we have seen case after case that hinged on contemporaneous note-taking – or the lack thereof – by agency supervisors or other management officials. I tell all the new supervisors I train that they need to go out to their nearest office supply store, and get a notebook pronto, since supervising in the federal government is a defensive practice.

While supervisors are generally given the benefit of the doubt in credibility determinations, the best way to supplement and enrich testimony is by producing contemporaneous notes. And the preference by administrative judges, still to this day, are hand-written notes as opposed to computer logs or even notes supervisors email themselves to document workplace events.

Let’s take a look at three types of cases where notes were the make-or-break point for the agency: Discipline, Whistleblower Reprisal, and EEO Complaints. We’ll look at a case the agency won (because of the notes) and a case the agency lost (because there were no notes, or there was a problem with the notes) in each category.

Discipline: Agency Winner

In our first case today, we have a removal case where the appellant engaged in multiple acts of misconduct, including failure to follow supervisory instructions. He disclosed the details of an ongoing agency investigation after his supervisor directly told him not to speak about it. The MSPB administrative judge (AJ) found that the agency failed to prove the charge of failure to follow supervisory instructions because the supervisor could not recall the exact words she used when giving an order to the employee. But the MSPB reversed the AJ’s finding and determined that the supervisor’s contemporaneous notes made shortly after the conversation with the employee, even though they were not a verbatim word-for-word recollection, supplemented her testimony. The charge was then sustained. Von Muller v. DOE, 101 MSPR 91 (Feb. 13, 2006).

Discipline: Agency Loser

In another failure to follow instructions case dealing with an agency investigation, the agency removed an employee for improper conduct because the employee failed to cooperate in an investigation, and failed to obey a supervisor’s order to leave the premises after his tour of duty had ended. At hearing, the supervisor’s testimony was different from what he had written in his contemporaneous notes about the situation, and that inconsistency led to a lack of credibility before the judge and, ultimately, before the MSPB. Because of the inconsistency in the notes, and the lack of any additional supporting evidence for the agency’s charge, the removal was mitigated to a 21-day suspension. Eichner v. USPS, 83 MSPR 202 (Aug. 6, 1999).

Whistleblowing: Agency Winner

When an agency takes an action against a whistleblower, the burden of proof rises from preponderance of the evidence or substantial evidence, depending on the type of case, to clear and convincing evidence. Clear and convincing evidence is a heavy burden, defined in the case law as “That measure of degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.” Schnell v. Army, 114 MSPR 83 (2010).

A whistleblower at DOJ was given a performance rating he did not agree with, and challenged the rating as an act of whistleblower reprisal. The agency was able to show clear and convincing evidence that the rating was warranted because, in addition to the supervisor’s specific testimony about the appellant’s performance issues, the supervisor had contemporaneous documentation that supported his observations. In addition, the agency was able to show that the appellant had performance problems prior to whistleblowing, and that documented complaints about the appellant’s performance came from outside chain of command. That, folks, is clear and convincing evidence. Rumsey v. DoJ, 2013 MSPB 82.

Whistleblowing: Agency Loser

The appellant blew the whistle on her supervisor, alleging harassment and intimidation and claiming that management and the EEO office had not taken any action. Shortly thereafter, she was informed that she was being reassigned. According to the appellant, when she questioned the reason for her reassignment she was informed by the VA hospital’s lead employee/labor relations specialist that the reassignment was due to her allegations of a hostile work environment involving her supervisor. The only evidence the agency presented in response to this allegation was two general statements, in affidavit form, denying that the reassignment was due to whistleblowing, but that it was because the appellant was unhappy with her supervisor. No additional evidence or documentation was provided, so the agency did not prove by clear and convincing evidence that the reassignment was not whistleblower reprisal. Moore v. DVA, DA-1221-13-0213-W-1 (March 10, 2015) (NP).

EEO: Agency Winner

In an interesting religious accommodation case, an employee requested to be allowed to wear a nine-inch ceremonial blade in the workplace, even though she worked in a federal building and the blade violated the security requirements. The agency could have simply said no because allowing the kirpan would have been more than a de minimis burden, but in an exercise of good faith, the agency also contemporaneously documented attempts to accommodate the employee including considering full-time telework and alternative work locations. Neither of these options worked with the employee’s job requirements, and the agency prevailed in showing that it did not engage in religious discrimination of the complainant because it documented the accommodation attempts. Tagore v. United States, 735 F.3d 324 (5th Cir. Tex. 2013).

EEO: Agency Loser

The complainant applied for a promotion and was not selected. She filed a complaint alleging discrimination based on race, sex, and reprisal for prior EEO activity. The four selection panel officials admitted the complainant was qualified but could not explain why she was not selected. There were no notes, scores or specific explanations of the scoring process in the record. One of the selection panel members asserted that he did not remember why she was not selected but that he “could only assume” her application did not show she had the skills needed to work at a higher level. That lack of contemporaneous documentation cost the agency the case. Hatcher-Capers v. USPS, EEOC No. 07A60008 (2006).

There are hundreds of other cases that show how contemporaneous documentation – or the lack thereof – is the deciding factor. Don’t let the next Loser case be yours; go buy a notebook today. [email protected]

Don’t Be Like Ben – The Perils of English-only Rules

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By Meghan Droste, June 12, 2019

Benjamin Franklin, one of my high school’s most famous dropouts, is generally praised in our history books as a founding father, an inventor, and a printer. Did you know that he was also one of the first prominent voices in the English-only movement? Yep, that’s right, our very own Ben Franklin had a serious problem with … German speakers. He apparently took issue with signs being printed in both English and German in Pennsylvania. He also stated publicly that German immigrants were “of the most ignorant Stupid Sort” and their refusal to learn English made it impossible to reach them. While Franklin’s anti-German sentiment may seem like an interesting footnote more than two centuries later, the animus underlying it unfortunately has not faded from our country, although it is generally focused on other languages and countries of origin now.

Due to the connection between language and national origin, English-only rules can be a violation of Title VII. The Commission addressed this issue earlier this year in Eric S. v. Dep’t of Defense, EEOC App. No. 0120171646 (Feb. 8, 2019). In that case, the complainant, who is from Puerto Rico, greeted a temporary supervisor who entered the work area in Spanish. The complainant and the temporary supervisor then engaged in a conversation in Spanish about their families, when the complainant’s supervisor approached them and loudly said “English, English!”

In his affidavit, the supervisor stated that he directed the two employees to use English because “he need[s] to know and understand what’s going on.” He also asserted that the agency had “a policy to speak English during duty hours” and that he believed all federal agencies had the same policy. The agency’s EEO office confirmed to the EEO investigator that there was no such agency policy. Despite this, the agency issued a Final Agency Decision finding no discrimination.

On its review of the appeal, the Commission noted that English-only rules are permissible only when there is a “business necessity.” Employers may be able to show a business necessity for communications with customers, collaborative assignments with coworkers who only speak English, and when there may be a safety issue, among other situations. The fact that some coworkers may be uncomfortable when employees speak other languages is not itself a business necessity.

The Commission found in the specific instance, there was no evidence that the exchange of pleasantries in Spanish impacted the safety or efficiency of the workplace. The agency’s attempt to argue that the visiting supervisor’s presence in the work area was a safety risk was unavailing, as the complainant’s supervisor admitted recognizing him from another part of the facility. As a result, the Commission remanded the complaint to the agency and ordered an investigation into the complainant’s damages.

The supervisor’s comment might not seem like much, but it can certainly have an impact on how welcome, or not welcome, an employee feels in the workplace. Effective training on these issues will prevent similar situations in your agency and avoid harm to your employees and the time and expense of litigation. Viel Glück out there! [email protected]