God Bless America and Charges That Avoid Intent

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By Dan Gephart, May 15, 2019

The Phillies were hitting the stuffing out of the ball, the Sixers were engaged in a physical playoff series with the Brooklyn Nets, and the Eagles were preparing for the NFL Draft. So when I turned on a Philadelphia sports radio station last month, I was shocked to hear fans talking about, um … Kate Smith.

The Songbird of the South was once a good luck charm for the Philadelphia Flyers hockey team. When Kate Smith sang “God Bless America” before games, the Flyers more likely than not won, especially during their back-to-back Stanley Cup seasons in the mid-1970s. Her final public performance was actually before a Flyers game — Game 2 of the 1985 Stanley Cup finals to be exact. Smith was so beloved that the Flyers organization built a statue of her outside their arena.

Kate Smith’s iconic mid-song figure was a fixture in South Philly for years, until the Flyers suddenly covered the statue last month. Days later, it was gone. The organization had “discovered” the racist lyrics to other tunes in the singer’s canon, songs like “Pickaninny Heaven” and the 1931 hit “That’s Why the Darkies Were Born.”  (It was actually the New York Yankees who first cut their connection to the deceased singer a day before the Flyers, announcing they would no longer play Smith’s version of “God Bless America” during the seventh inning stretch.)

Irate sports fans were shocked, and they called into sports radio stations en masse to share their displeasure with the Flyers’ decision. There were several arguments against removal of the Smith statue, but the one that took sway over most Smith supporters was that “Why the Darkies Were Born” wasn’t racist, but satirical. In other words, they argued, we didn’t understand Smith’s intent when she sang that song; she was making fun of racism.

Personally, I applauded the difficult decisions made by the Yankees and the Flyers. That said, there was something about the sports radio argument that struck a nerve. A decade-plus of hearing experts like William Wiley, Deborah Hopkins, and Barbara Haga teach disciplinary charges will make you wince when you hear an argument about intent.

If you’ve attended any FELTG training, whether as a federal HR professional, attorney, or supervisor, you know that it’s awfully hard to prove intent. Your decision to remove, suspend, or demote an employee could be the right one. However, using an intent-driven charge will unravel your case faster than Anthony Scaramucci’s tenure as White House Director of Communications.

The MSPB, in Boo v. Department of Homeland Security, made it clear: Whether intent has been proven must be resolved by considering the totality of the circumstances, including the appellant’s plausible explanation, if there is one. Basically, if the employee has a decent excuse, your charge is sunk.

Here are a few charges to avoid with case examples:

Falsification: The MSPB found that the Richard Leatherbury, an assistant operations manager, improperly submitted a claim for past overtime based entirely on an estimate, and that improperly indicated that the claim was based on a precise calculation of actual time worked. The board upheld the agency’s removal.

However, the Federal Circuit found that the employee’s good faith explanation in filing the travel expenses was disregarded. Areasonable good faith belief in the truth of a statement precludes a finding that the employee acted with deceptive intent. Leatherbury v. Army, 524 F.3d 1293 (Fed. Cir. 2008).

Insubordination: The agency claimed that registered nurse Irene Yetman’s failure to complete her work was evidence of insubordination. The administrative judge rejected these charges. Yetman’s intent was not to disobey orders. The orders were so onerous, she didn’t have time to complete them all. Yetman v. Department of the Army, 88 FMSR 5138 (MSPB 1988).

Theft: Cathryn Nazelrod, a correctional institute employee, admitted that she took $10 from an inmate’s envelope to buy herself lunch. Nazelrod put the $10 back into the inmate’s envelope the very next day. When the agency found out, it demoted Nazelrod on the charge of theft. Noting that the one of the elements of criminal theft was an intent to permanently deprive the owner of possession or use of the property, the MSPB concluded that the agency failed to prove the requisite intent because she returned the money. On appeal, the Federal Circuit agreed. King v. Nazelrod, 43 F.3d 663, 665-67 (Fed. Cir. 1994).

Taking a page out of the best-selling Eat This, Not That book, I share with you Charge This, Not That.

  • Charge Lack of Candor, not Falsification
  • Charge Failure to Follow Orders, not Insubordination
  • Charge Unauthorized Removal, not Theft

While I understand the Flyers’ decision to remove a statue of an artist whose successful career included racist songs, and I have made that case in the court of public opinion, I would not want to argue it before the MSPB. [email protected]

The Newest Federal Circuit Decision Offers a Surprising Interpretation of the VA Accountability Law

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By Deborah Hopkins, May 7, 2019

Most readers of our newsletter know that when a new law is passed, all we have to go by is the plain language of the statute, any accompanying regulations, and legislative history. After that, the edges of the law are tested through the courts, and the case law that develops teaches us how to interpret the law.

Just under two years ago, Congress passed, and the President signed into law, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act), 38 USC § 714. This law reduced the level of employment protections for federal employees. We have written about it before, but as a recap in how it differs from Title V Chapter 75 removals, here are some of the big takeaways:

  • Shortened notice periods,
  • A lower burden of proof (substantial evidence) for misconduct cases, and
  • The Board has no mitigation authority over the agency’s penalty selection.

38 U.S.C. § 714(d)(2)(A)-(B).

Well, now that several months have passed, the edges of this new law are coming into focus. An interesting issue was raised in a Federal Circuit decision that came out last week: While there is no penalty mitigation, the Board might actually have authority to review the VA’s penalty for reasonableness. Mogil v. Dep’t of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019).

Before we get into that, though, let me set out the facts of the case for you. I think you’ll enjoy them.

The respondent, Allyn Mogil, was an engineering technician at a VA Medical Center in Minneapolis. He shared an office with a coworker, Tony Horacek. Mogil and Horacek had an ongoing dispute about the lighting in their office. Mogil wanted all three lights to remain on, and Horacek wanted one or two lights off because the lights caused a glare on his computer screen and bothered his eyes. Mogil placed tape over the light switch, and even welded a metal plate over the light switch so that the lights couldn’t be turned off. Each time the switch was covered, though, Horacek removed the barriers and turned the lights off when Mogil left the office. On several occasions, Mogil asked his supervisor to intervene, and his supervisor eventually told them to leave the lights on and to get along.

The day after the supervisor’s directive, Mogil left the office for a while, and when he got back he saw that Horacek had turned the lights off. According to the case he “snapped.” He took a hammer from the electrical shop, and smashed the office light switch. Not only did this break the light switch and permanently disable the office lights, he also damaged the lighting in nearby rooms.

[Our tax dollars, hard at work, everyone.]

Mogil was removed for damaging government property, under 38 USC § 714. The VA did not do a traditional Douglas factors analysis. After all, it appeared a Douglas analysis was not required under the Act. However, the decision stated the agency removed Mogil because:

  • Mogil’s job “carrie[d] great responsibility,”
  • The VA entrusted him “to manage millions of dollars of allocated taxpayer funds,”
  • His actions showed he could no longer be trusted to carry out his responsibilities professionally,
  • Destroying government property in response to an officemate turning the lights off “is never an acceptable response to an interpersonal disagreement.”

The VA considered the fact that Mogil was seeing a counselor and that he apologized and expressed remorse, but that did not outweigh the damage done.

[Does that list still look like Douglas factors to anyone else?]

After the AJ’s decision affirming the removal became the final Board decision, Mogil filed a PFR to the Federal Circuit. (We can assume that was because there was no quorum at the Board.)

As I mentioned earlier, the parties in this case introduced a new question to the Federal Circuit: they disputed the effect the Act has on the Board’s ability to review a penalty’s reasonableness.

Here’s the core of Mogil’s argument:

  • Yes, the Act eliminated the Board’s ability to mitigate the penalty if the decision is supported by substantial evidence.
  • But, the Act’s requirement that the Board determine whether “the decision of the Secretary to remove . . . an employee under subsection (a) is supported by substantial evidence,” includes whether substantial evidence supports the reasonableness of the penalty [bold and emphasis added by FELTG].
  • So, not only does the agency have to prove by substantial evidence that the he committed the act of misconduct, but the agency also has to prove by substantial evidence that the penalty is reasonable.
  • The fact that the Board can no longer mitigate the penalty does not excuse the agency from considering the Douglas factors before arriving at a decision.

And the VA’s argument:

  • The Act was intended to make it quicker and easier to remove VA employees.
  • The Board can only review whether substantial evidence supports the VA’s finding that the misconduct occurred.
  • Because the Board can no longer mitigate the penalty and § 714 eliminated the efficiency-of-the-service requirement, the Board no longer reviews whether a penalty is reasonable and a Douglas factor analysis is irrelevant.
  • Requiring a Douglas factor analysis before removing an employee would undermine the purpose of § 714, which was to simplify and expedite the removal process.

And, the Federal Circuit’s decision on these arguments:

  • There is no dispute that Mogil intentionally destroyed government property.
  • Under the Act, the Federal Circuit may actually have the authority to review the agency’s penalty for reasonableness: “Assuming, without deciding, that we may review the VA’s penalty selection as we can the penalties imposed on federal employees generally, our review ‘is highly deferential,’ and penalties are considered reasonable unless ‘grossly disproportionate to the offense charged.'” (Citations omitted); [bold and emphasis again added by FELTG].
  • Mogil did not identify any Douglas factor that the agency did not consider and that would have been relevant in selecting a penalty, so the agency action was in accordance with law.
  • And the real kicker: “We leave for another day the statutory interpretation issue with constitutional implications.”
Holy moly. Are you still with me? The Federal Circuit appears to be saying that, contrary to what we’ve been thinking for the last two years, the Board has the authority to review the reasonableness of the penalty in cases brought under the new VA law. So if the Board doesn’t have the authority to mitigate the agency’s penalty, here’s my question: Is the Federal Circuit telling us that if there is substantial evidence a penalty is unreasonable, the entire action must be overturned? Only time will tell. [email protected]

We Might Get an MSPB After All

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By Deborah Hopkins, April 30, 2019

Did you hear the big news? Yesterday, President Trump nominated a third and final member to the Merit Systems Protection Board. After months of waiting and a lot of angst, B. Chad Bungard has been named to be the Vice Chairman for a term that will expire March 1, 2025.

According to the White House press release, Mr. Bungard currently serves as the Deputy Commissioner for the Office of Analytics, Review, and Oversight (OARO) at the Social Security Administration (SSA). Mr. Bungard is responsible for providing executive leadership to more than 2,000 employees, including leading the Office of Anti-Fraud Programs and the Office of Appellate Operations, where SSA’s Administrative Appeals Judges adjudicate appeals from SSA’s Administrative Law Judges. Previously, Mr. Bungard served as the General Counsel for the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) and Chief Counsel to the SSA Inspector General. Mr. Bungard earlier served as the General Counsel for the United States Merit Systems Protection Board. He also spent several years on the Hill in leadership roles, where he focused on oversight and government reform. He started his career in private practice, where he primarily focused on Federal civil litigation. In addition to attaining his B.S., cum laude, from Liberty University and J.D. from Regent University School of Law, Mr. Bungard received an LL.M. in Law and Economics from George Mason University School of Law.

Earlier this year, the Senate Committee on Homeland Security and Governmental Affairs voted out of committee MSPB nominees Dennis Dean Kirk (R) for Chairman and Julia Akins Clark (D) for Member. Committee Chair Ron Johnson announced that the Senate would wait for the third nominee to be named and voted out of committee before the first two nominees would be confirmed.

Here’s to hoping the full Senate will vote on these nominees quickly, and we get a functioning MSPB by the time school’s out. FELTG will keep you posted. [email protected]

Sorting Things Out: Defining Discipline

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By William Wiley, April 30, 2019

Here in the United States, when trying to understand a complex problem with many parts, we say we are trying to “figure out” what to do. In Britain, the phrase that is more likely to be used is to “sort out” a problem. Well, it’s time for some “sorting out” of several terms that are routinely misunderstood by a number of people in our business.

Discipline: Not finding a definition of this word in statute or regulation, I resorted to good old Google. Discipline is defined as “using punishment to correct disobedience.” That aligns with what you often hear in human resources, that we use discipline to “correct behavior,” not to punish. Without getting into the niceties of whether we embrace or reject the word “punishment” as being related to discipline, I think it’s fair to say that we take a disciplinary action in the civil service in the hopes that the employee on the receiving end learns a lesson and does not engage in future misconduct.

With a definition this broad, we could call just about any action taken by a manager toward an employee with the intent to preclude future misconduct “discipline.” We could require the employee to wear a dunce cap or stand in the corner with his nose against the wall, or, perhaps, we could use medieval stocks or the rack. Yes, the mind boggles with options for delivering negative reinforcement (fancy psychology talk for “punishment”).

In federal employment law, we have to be very careful what we identify as “discipline.” That’s because an important tool for federal supervisors is the concept of “progressive discipline.” In broad terms, progressive discipline says that when it comes to correcting behavior, we often start out with a low level of discipline. If that works to correct behavior, everybody wins. However, if the employee engages in subsequent misconduct following a low level of discipline, the supervisor is justified in moving to a more severe disciplinary tool because the low-level discipline obviously did not work. In other words, the supervisor “progresses” up the levels of discipline trying to find something that works to correct behavior, or eventually the employee can be removed for failing to respond appropriately to discipline. As the Court of Claims said years ago, the government does not have to retain as an employee an individual who does not respond to discipline. The application of progressive discipline weeds out those who can be rehabilitated from those who cannot.

Although many actions can be defined as “discipline” using the broad definition above, it’s only a narrow selection of those actions that count as discipline for the purpose of using the concept of progressive discipline. For a supervisor to be able to use prior discipline as a basis for enhancing a penalty for subsequent misconduct without having to re-litigate the prior action, the disciplinary action must meet three criteria, see Bolling v. Department of Air Force, 9 MSPR 335 (1981):

1. The action must be given to the employee in writing;

2. It must be recorded in the Official Personnel Folder; and

3. It must be grievable to a higher-level supervisor.

There are only two government-wide disciplinary actions that meet these criteria: reprimands and suspensions. (Demotions and removals also are disciplinary actions, but not a part of the concept of “progressive” as they are not intended to correct behavior.) Therefore, when applying the concept of “progressive discipline” to justify an enhanced penalty, these are the only prior actions that are relevant in supporting that justification.

An agency has the authority to characterize other actions as “disciplinary,” either through agency policy or negotiations with a union. For example, I’ve seen collective bargaining agreements that state that an “admonishment” is a disciplinary action (also letters of caution, warning, and expectation). However, if that admonishment is not retained in the OPF or is not grievable, then it does not meet the Bolling criteria and should not be counted as prior discipline for the purpose of using progressive discipline. If you try to count one of these things as “discipline” for the purpose of an enhanced penalty, you have created a significant unnecessary burden for the agency, likely resulting in mitigation of the penalty.

Out there in the big wide world, “discipline” can take many forms, including an ice hockey player being stuck in a box or a basketball player being kicked out of a game for committing a couple of stupid technical violations. However, in our more limited world of federal employment law, the better practice is to use the term “disciplinary action” to refer only to those actions that meet the Bolling criteria as actions that can count toward progressive discipline. To do otherwise confuses and frustrates unnecessarily, and creates a potential pitfall for the unwary. [email protected]

The Seven Deadly Sins Employment Law Practitioners Commit

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By Deborah Hopkins, April 23, 2019

One thing I don’t understand is why people make their jobs (and as a result, their lives) more difficult than necessary. Aren’t the challenges that are out of our control already causing enough problems?

In my adventures traveling the country conducting federal employment law training, I’ve come across some suggestions that employment law practitioners offer as advice, that make things far more difficult than necessary for all parties involved. Not all advisors commit these sins; many do not. But in order to make the list, the Deadly Sin has to have been seen in multiple agencies, multiple times over the past year.

Here they are, with my bulleted responses following each:

  1. Inaccuracy. Advisors in L/ER or OGC tell supervisors they need a three- to six-month record of poor performance before they can put an employee on a PIP/ODAP/DP, or whatever the agency calls the period where the employee is given an opportunity to demonstrate acceptable performance.
  • That’s just wrong, and it’s bad advice. As soon as a supervisor can articulate why the employee’s performance is unacceptable, she can put the employee on a demonstration period, as long as the employee has been on her performance standards for a warm-up period of 60 days or so. The only thing that matters in a performance-based removal is what happens during the demonstration period. As long as the reason why the performance action was initiated was not illegal (e.g., based on race or sex or whistleblower status) and the performance is unacceptable now, the employee’s performance before that articulation of unacceptable performance has no bearing.
  1. Imprudence. There are some jobs that are so high-level, an employee needs more than 30 days to demonstrate acceptable performance; therefore, the demonstration period should be at least 60-90 days.
  • No can do. The MSPB has never found a 30-day demonstration period to be too short, regardless of an appellant’s job level or type. Even if the employee’s typical work cycle takes months or even years, there must be some amount of work the supervisor expects to be done within the next month or so. Break the projects down into smaller steps and you’ll find you have a nice 30-day demonstration period. If my suggestion isn’t enough, you may want to note that several agency policies, and even the President in Executive Order 13839, now say that 30-day demonstration period is sufficient. Unless you have a union contract that says you have to provide more than 30 days, you don’t. And you shouldn’t.
  1. Waste. If an employee fails the PIP/ODAP/DP before the end date, the agency should let the employee finish out the 30-day demonstration period anyway.
  • This makes no sense – and could actually cause a lot of harm. Picture this: a TSA security screener who is on a demonstration period, lets a bunch of cocaine and guns get on an airplane in the first couple of weeks of the demonstration period, and you’re going to let that screener continue working for the next several days? If so, I guess you think letting drugs and loaded weapons onto a plane are no big deal. Or what about the nurse who is putting patients’ lives in danger – you’re really going to let him continue to provide poor care after he shows you he cannot do the job acceptably? The same principle applies across the board, no matter the job or what the employee’s critical element is called.

It is a waste of time, taxpayer money, and supervisory resources to allow someone who fails an opportunity period before the end date to finish it out, and there is legal authority that says you can end it early due to error rate. See, e.g., Luscri v. Army, 39 MSPR 482 (1989). The primary issue the MSPB will look at is whether the employee was given an opportunity to demonstrate acceptable performance. We know from the case law that even 17 days is enough time for an employee to demonstrate whether he can do the job acceptably. Bare v. HHS, 30 MSPR 684 (1986). The only time you have to allow the full length of the demonstration period to run is if it is required by your collective bargaining agreement.

  1. Fallacy. If the supervisor saw an employee engage in misconduct, he can’t discipline the employee unless there is additional evidence to support the charge.
  • The standard of proof for misconduct is preponderance of the evidence – or substantial evidence if the employee is covered by the new VA law. If a supervisor saw the employee violate a workplace rule, that’s a preponderance of the evidence. 5 CFR 1201.56(c); 5 CFR 1201.4(q). If you have witnesses and video logs, that’s great – but if you don’t then you still have enough evidence. The only exception is if the employee is a whistleblower; in that case you’ll need clear and convincing evidence, so those extra witnesses and videos will come in handy.
  1. Risk. Don’t use Notice Leave except in extreme circumstances where you have determined an employee is a threat to safety.
  • Notice Leave is a paid leave status, created by the Administrative Leave Act of 2016, that allows the agency to send the employee home with no duties after a removal is proposed, for the duration of the 30-day notice period. In order to use Notice Leave the agency simply needs to document why retaining the employee at work jeopardizes a legitimate government interest, that reassignment is not appropriate, and inform the employee in the proposal that she will be placed in this pay status.

Why wouldn’t you use Notice Leave it every time you propose a removal? Congress created this category of leave exclusively for this situation. An employee whose removal is proposed will not do anything constructive during the notice period – and may even cause severe problems in the workplace. Don’t believe me? Come to our Emerging Issues Week class this July where we talk about people becoming violent in the workplace after proposed removals; even though there may be warning signs, you can’t always predict it. Plus, some people become violent with NO warning at all. Don’t gamble with your life or your agency resources. Use the gift called Notice Leave every time, and you won’t have to wonder who will become dangerous in the workplace after you’ve proposed their removal.

  1. Apathy. It’s too much work to go through with a misconduct or performance action, and the agency will probably just settle the case anyway, so supervisors should ignore conduct and performance issues unless they are especially harmful or egregious.
  • I cringe every time I hear something like this. This is completely disempowering to supervisors and just plain wrong. If a supervisor wants to take an action, the role of an advisor is to make the supervisor aware of the options and to point out potential legal issues – not to tell the supervisor to forget it. If a supervisor has reason to hold someone accountable, then we should support that supervisor.
  1. Avoidance. If an employee has EEO activity pending, the supervisor must hold off on any discipline until the complaint is resolved.
  • If I had a dollar for every time I heard this, I could have retired years ago. This statement is completely incorrect. EEO activity is not a shield for employees, though in reality it has become one in many agencies. Supervisors can discipline employees who happen to have EEO complaints pending, as long as the discipline is not motivated by, or because of, the person’s EEO activity. And here’s another note: It often takes between 3-5 years for an EEO complaint to be resolved, so you definitely shouldn’t wait to hold employees accountable.

I hope practitioners can understand why these pieces of advice are so detrimental to supervisors, and impact the efficiency of the government workplace. If there are other deadly sins you’ve heard about, feel free to share them and they may show up in a future article. In the meantime let’s all work together to make the federal government a better place to be employed. [email protected]

And Now a Word From … Mika Cross

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By Dan Gephart, April 16, 2019

Spurred on by the executive orders issued last year by President Trump, Health and Human Services resumed a once-stalled collective bargaining process with the National Treasury Employees Union. Those negotiations reached an impasse that resulted earlier this month in a Federal Service Impasses Panel ruling that could lead to HHS significantly rolling back its telework program, as well as policies on official time, office space, and leave.

For Labor Relations practitioners, this FSIP decision is a reminder of the power last May’s EOs has given them in the collective bargaining process. (Be sure to catch former FSIP Executive Director Joe Schimansky’s Significant Cases and Developments at the FLRA webinar on June 18).

For federal work/life experts, the FSIP’s decision created concern, but for a different reason. One of those alarmed work/life experts is Mika J. Cross, Federal Workplace Expert and VP of Employer Engagement and Strategic Initiatives at FlexJobs. Cross is worried not only about the impact of FSIP’s ruling on the nearly 20 percent of HHS employees who currently telework, but also on the government’s overall ability to recruit qualified young employees.

“Coming from a long career in public service, I know how very hard it is to even be able to attract the right candidates for open vacancies in government, let alone fill them in a timely and efficient manner,” Cross said. “The government at large already has a branding issue and coming off the heels of the latest shutdown, that’s not going to make the nation’s largest employer look any more appealing as a best place to work, especially for those younger workers getting ready to graduate this spring who are looking for the first step in their career.

“A cart blanche approach to restricting flexibility also restricts empowering first line managers and supervisors from making the best decisions for their workers,” Cross continued. “And studies show, year after year, the impact that work flexibility and remote work can have on productivity and performance. At this point, a move like this is laughable.”

If you’ve worked in the Federal government for even a little while, you know Mika Cross. The U.S. Army veteran and “Public Service Passionista” keeps very busy spreading the positive message of Workplace Transformation. You have likely watched her on Government Matters or seen her speak at a conference, or you may be one of her numerous followers on LinkedIn and Twitter (@Mika_Cross).

The most recent Federal Employee Viewpoint Survey (FEVS) offered some stark numbers about federal managers. Two examples: Only 28 percent of non-supervisory employees believe that steps are taken to deal with poor performers, and more than a third of employees believe that differences in work performance are not recognized in meaningful way. This seemed like a good place to start our conversation.

DG: What is the main message supervisors should learn from the most recent FEVS? 

MC: There is a very strong correlation between overall engagement and an employee’s propensity to stay in government. Those who indicated they intended to stay, are generally more engaged than their colleagues who aren’t. This will matter deeply in the coming year, especially when 27 percent of employees who took the FEVS, revealed they were planning to take another job (either within or outside of the Federal government) and 25 percent want to retire within the next five years.

OPM processed nearly 12,000 more federal retirements in 2018 compared to 2017, a five-year high, according to a Federal News Network analysis. If this continues to trend upwards, agencies could be faced with even more of a significant hurdle in mission operations.

DG:  What can front-line and second-line supervisors do to make their workplace more engaging and productive?

MC: Focus on organizational citizenship behaviors, meaning inspire, encourage, motivate and reward employees for their discretionary behavior and positive activities that help contribute to the overall welfare of the organization, and that go well beyond simple job duties and work requirements. Overall, supervisors can directly impact employee dedication, sense of purpose and their attachment to their mission and the organization.

DG: How do they do this? 

MC: Have a conversation, invite them to an interactive dialogue and check in regularly to learn how you can support your team’s personal and professional goals. Listening and responding to how Federal employees feel about their role within their organizations, and the work they do serving the American people, is something you can check in with them regularly about. No need to wait for the next FEVS cycle. You can:

  • Reinforce and explain the linkages between individual employee actions, workload, projects and activities to the organizational and business unit vision.
  • Re-design work to encourage more autonomy, creativity and innovation.
  • Enforce effective performance management practices that focus on early course correction, learning, growing and always strive to be supportive, not dismissive, or overly critical.
  • Offer and encourage using all the supportive employee and workplace resources that are available, such as onsite wellness programs, flexible work schedules, telework programs, employee advocacy and community affinity groups, financial literacy, continuing education and other workplace activities that help make your agency a better place to work, for all.
  • Encourage frequent and open communication with employees; model and reward appropriate co-worker relationships.

DG: How important is it that federal supervisors hold employees accountable and why?

MC: Although the five-year trend for FEVS responses, in general, indicates an uptick and continues to move in a positive direction, it’s clear that employee perception of performance management practices needs continued focus and attention. Some of the lowest scores came from questions dealing with the relationship between performance and rewards. If employees do not feel valued or acknowledged for a job well done, how do we imagine they will continue to feel dedicated and vested in the work they do every day?

Reinforce good behavior, ask your employees about the kinds of incentives that would be most meaningful to them, as they demonstrate quality and impactful work. You may be surprised to hear that an incentive for one employee may be a time off award, or ability to take a training course or attend a networking event during duty hours, rather than a monetary bonus; or additional flexibility in their work schedule or permission to telework more frequently; for others, taking on a new assignment or gaining permission to work on a project outside of their normal position description, may be a wonderful way to incentivize a job-well-done and inspire more creativity and innovation.

[email protected]

Losing Charges Can Sink Your Case – Unless You Work at the VA

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By Deborah Hopkins, April 10, 2019

One of the long-standing principles we teach during MSPB Law Week (next offered in Dallas, TX, June 2-6) deals with how important it is to be mindful of the words used in disciplinary charges. Historically, if all of an agency’s charges are sustained, then the MSPB grants deference to the agency’s penalty selection unless the penalty is outside the bounds of reasonableness. See, e.g., Payne v. USPS, 72 MSPR 646 (1996). But if the agency loses even one charge, the agency loses the presumption of penalty deference and the MSPB has more room to step in and mitigate the penalty. See LaChance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).

One of the tendencies we warn agencies against is what my colleague Bill Wiley calls “spanking the employee,” otherwise known as piling on charges. You might have an employee who has done a bunch of bad things, but the danger in piling on charges is that if you lose even one, you could lose your penalty. (Hint: One way to avoid this is to include in the decision letter a statement that says any one of the charges, standing alone, would be enough to warrant the selected penalty. See LaChance, above.) So, it’s important to be mindful of the charges and to choose your best two or three, rather than to charge 10 or 20 things and risk losing a few.

Unless you’re covered by the new VA law, that is.

Under the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (38 USC § 714), the MSPB does not have the authority to mitigate the VA’s penalty, as long as the agency can show the employee might have engaged in the misconduct. That’s right, might have. Under this law, the VA must only show substantial evidence (not preponderance like all the other agencies must show) that the employee engaged in misconduct in order to have a charge upheld. The regulatory definition for substantial evidence in federal personnel actions is “evidence a reasonable person might accept [not would accept] to support a conclusion even though others may disagree. [Emphasis added.] 5 CFR 1201.56(c)(1); 5 CFR 1201.4(p).

So if you work for the VA and you lose charges, you don’t have to worry. As long as even one charge stands, your penalty stands. To drive that point home, the U.S. Court of Appeals for the Federal Circuit just issued a non-precedential decision in what we believe is its very first decision under the new VA law, Hairston v. VA, No. 2018-2053 (Fed. Cir. Mar. 8, 2019).

In this case the appellant, a housekeeping aid, was removed for two acts of misconduct:

  • Charge 1: Conduct unbecoming of a federal employee (kissing a nurse without her permission)
  • Charge 2: Failure to follow instructions (for visiting a ward he was ordered to stay away from)

The MSPB AJ sustained Charge 1, but did not find substantial evidence on Charge 2. Normally, this is where an agency’s penalty determination would be scrutinized – but because the agency is the VA, the AJ did not have the authority to mitigate the penalty, so he upheld the removal. See 38 USC § 714(d)(2)(A)-(B).

The appellant in this case did not file a petition for review to the MSPB (probably because they lack a quorum and he didn’t want to wait at least three years to get a decision back). After a month, the administrative judge’s initial decision became the final decision, and then the appellant filed a petition for review with the Federal Circuit, which has jurisdiction under 28 USC § 1295(a)(9). (Did you even know that an appellant can skip the PFR process and go right to the Federal Circuit? It’s been happening more lately since the MSPB is currently non-functioning at the PFR level.)

The scope of review in an appeal from the Board is limited by statute and the Federal Circuit must affirm the Board’s decision unless they find it to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

The decision is unremarkable in the Federal Circuit upheld the MSPB’s decision and affirmed the removal, as it does over 90% of the time. But it’s noteworthy because it’s the first decision under the VA’s new law, and it tells us that our read of the law on penalty mitigation is absolutely what we thought it was. Whether you agree or disagree with the application of the law, you can fire an employee at the VA if he might have broken a rule – and the Federal Circuit can’t step in.

If you’re not covered under this VA law, though, you’ll want to be extra careful when drafting charges. Join me for a webinar on this very topic July 11 called Words Matter: Drafting Defensible Charges in Misconduct Cases. [email protected].

When Per Se Violations Meet Eggshell Plaintiffs

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By Meghan Droste, April 10, 2019

Happy spring, everyone! As the weather turns nicer, at least in theory, my spring teaching schedule is picking up. I just finished teaching part of FELTG’s Absence, Leave Abuse & Medical Issues Week here in DC. The last day of the course focuses on medical documentation, including the confidentiality requirements and what happens when agencies fail to follow them.

The discussion of per se violations — when agencies are found liable for violations regardless of intent or excuse — and the resulting damages, is invariably an interesting one.

One thing I always remind my students is that although the damages awards are generally low in those cases, usually in the range of $1,000 to $2,500, there is a chance that they could be much higher depending on the circumstances.

The Commission’s relatively recent decision in Sanora S. v. Department of Health & Human Services, EEOC App. No. 0120171305 (Dec. 21, 2018), is an example of how per se violations can result in significant harm. In the underlying complaint, discussed in Zenia M. v. Department of Health & Human Services, EEOC App. No. 0120121845 (Dec. 18, 2015), the complainant alleged, in part, that the agency retaliated against her when an EEO Complaints Manager provided documents from her two pending EEO complaints to the Chief Executive Officer as part of an investigation into whether the complainant had violated the Privacy Act and HIPPA.

(Side note: If any of you work at the Commission, I implore you to use the same pseudonym for all the decisions regarding the same complainant. It will spare everyone a lot of confusion.)

The complainant also alleged retaliation when the agency accused her of violating the chain of command when she sent emails regarding her allegations of harassment and discrimination. The agency issued a Final Agency Decision (FAD) finding no discrimination or retaliation in any of the complainant’s allegations. In the Zenia M. decision, the Commission reversed with regard to the two allegations described above, finding them to be per se retaliatory, but affirmed the FAD with respect to the other allegations, and ordered the agency to conduct a supplemental investigation into the harm the complainant suffered as a result of the per se retaliation.

In its supplemental investigation and FAD, the agency awarded the complainant $1,500 in non-pecuniary compensatory damages and $50 in pecuniary damages. The complainant appealed, arguing that she was entitled to a higher award of non-pecuniary damages because of the significant harm she suffered as a result of the agency’s actions. As described in the Sanora S. decision, the complainant suffered from PTSD, anxiety disorder and major depressive disorder. In the supplemental investigation, she presented medical documentation, her own testimony, and statements from her sisters detailing the impact of the agency’s actions on her, including increased stress, and fear of further retaliation including losing her job. Her sisters’ statements described the complainant’s panic attacks, nightmares, and episodes of bed wetting.

The agency argued that these were all symptoms of pre-existing conditions and, as a result, could not be attributed to the per se retaliation.

In its decision, the Commission relied on the eggshell plaintiff theory, or “the principle that ‘a tortfeasor takes its victims as it finds them’” to find that the agency’s award of $1,500 was insufficient. Under this principle, an agency is only liable for the additional harm or aggravation of a pre-existing condition that its actions cause; this also means that it cannot escape liability by simply pointing to a pre-existing condition. After reviewing the significant harm outlined in the complainant’s evidence, the Commission increased the damages award to $20,000 — more than 13 times the amount in the agency’s FAD.

These decisions are an excellent illustration of the pitfalls of per se retaliation, and significant harm that can result. Be sure to also keep in mind that the eggshell plaintiff theory applies in other types of cases, so you should not discount potential liability based only on the employee’s prior health concerns. [email protected]

The Good News: Federal Law Enforcement Officers are Keeping Us Safe

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By Ann Boehm, April 10, 2019

I spent the majority of my 26-year federal career working for law enforcement agencies. I once had a relative ask me, “Ann, why do you like to work with bad a–es?”  (Law enforcement officers typically chuckle when I tell them that story.) I will tell you why. Going to work every day is much easier when you support people who run into gun fire instead of away from it. Too often, we forget about the value and valor of those who protect us on a daily basis.

I was inspired to write this month’s Good News on federal law enforcement officers after I read a Washington Post article about law enforcement efforts at the oft-maligned Department of Veterans Affairs (DVA). Yep, the DVA has law enforcement — apparently 4,700 sworn officers — as do many agencies other than the ones with the letters we typically recognized (you know, ATF, DEA, FBI, ICE, USMS). DVA law enforcement officers in Long Beach, Calif., are teaming with local law enforcement and social workers to help veterans on the brink. In response to emergency calls, an officer and social worker will respond to critical situations involving veterans. Instead of just arresting the troubled veteran, the officers try to get him or her the help needed to address the demons driving the behavior. They are having success, and the program may serve as a model to be implemented elsewhere.

Federal law enforcement officers do many things. A quick search of law enforcement jobs in USAJOBS revealed that the Bureau of Indian Affairs, Department of Labor, Environmental Protection Agency, IRS, Small Business Administration, and State Department are all hiring law enforcement officers right now. Who knew?

And these jobs are not easy. Anyone watch Narcos? It scares me to watch it, but real-life DEA special agents really worked in that world. I heard their stories. They talked casually about their work in Colombia. I once met with a DEA agent who had the newspaper front page of the shot-up Pablo Escobar behind his desk – let me tell you, it was gory – because he was there when DEA agents took Escobar down! Crazy stuff! And this kind of fearless crime fighting is happening every day, whether the American people know it or not.

It’s worth noting that many federal law enforcement officers were among those “essential” workers during the 35-day shutdown who worked as hard as they always do yet did not get paid. I personally believe that appearances on the national news by Tom O’Connor, President of the FBI Agents Association, helped end the shutdown. Congress and the public don’t like to hear that criminal investigations are being compromised and hard-working agents cannot pay for medical treatment for their families. The report summarizing these things is compelling.

Of course, law enforcement officers are also human beings, and sometimes they engage in misconduct.  Those who manage law enforcement officers may not realize that federal personnel law expects law enforcement officers to be held to a higher standard than the rank and file government employees when it comes to misconduct penalties. Also, great criminal investigators do not always know how to conduct a useful administrative misconduct investigation.

We at FELTG value our federal law enforcement friends, and we want to help them all be the best they can be. We offer a training course specifically for law enforcement personnel. Reach out to us if you’d like us to come to your agency. We want the good folks who protect us to work in an environment free of toxic co-workers. When it comes to public safety and people’s lives, there is no room for problem employees.

The Good News is that we have wonderful and dedicated law enforcement personnel in many, many federal agencies who are taking care of the American public. Thank you and stay safe! [email protected]

Fear the Mumps, Not the PIPs

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By Dan Gephart, April 10, 2019

Guess who made a long visit to my alma mater this year?

The Mumps. No, the obscure 1970s kitschy New York punk-pop band known for its outrageous live shows didn’t re-form for Temple University’s Spring Fling. I’m talking about the contagious, inflammation-spreading, gland-swelling, deafness-causing, we-already-had-it-eradicated mumps. And not just one or two mumps. There were more than 115 cases of the easily prevented virus on campus.

The anti-vaccination movement is as strong as ever. Meanwhile, the Flat Earth Society, which boasts thousands of dues-paying members, and climate change denial groups are just two of many thriving communities that take pride in turning their back on science, history, and, sometimes, facts.

Those of us who toil in and around the federal employment world know that we are not immune to overlooking the simple truth.

After all, that’s the only explanation for why there are still federal supervisors who would rather ignore poor performance than put an employee on a performance improvement plan, or as we now call it a FELTG – the demonstration period (DP).

Folks, this ain’t rocket science. This ain’t even whatever science makes those volcanoes erupt baking soda at junior high school science fairs.

The DP – or PIP, if you still call it that, or the ODAP, OP, or DO – is not even an adverse action that would render an employee aggrieved. It’s just a preliminary step to taking a personnel action. Lopez v. Agriculture, EEOC No. 01A04897 (2000), Jackson v. CIA, EEOC No. 059311779 (1994).

For this article, we’re focusing on this preliminary step that too many supervisors fear. Let’s assume that your agency has established critical elements under an OPM-approved plan, and that you have communicated those critical elements to the employee. And now, the employee is failing to meet those on one or more of those elements. Do NOT ignore the poor performance. Just follow these three steps:

Step one: Notify the employee. In a letter or email, identify the critical element, or elements, at issue, and explain to the employee that his performance is at the unacceptable level. Reiterate, based on the performance plan, what exactly warrants a rating of unacceptable. Go ahead and attach that employee performance plan.

Inform the employee that you are putting him on a performance improvement plan (or, again, whatever your agency calls this “opportunity” period), and that if he fails to raise his level of performance during the DP, you will initiate the steps that will lead to his removal. Identify specifically when the DP begins and ends. Clearly define for the employee what you will consider the “minimum retention level.”

Step two: Conduct the DP – and limit it to 30 days. There is no reason for a DP to go longer than 30 days. The MSPB has consistently affirmed that a 30-day DP satisfies an agency’s obligation to provide an employee with a reasonable opportunity to demonstrate acceptable performance. Lee v. EPA, 2010 MSPB 240; Towne v. Air Force, 2013 MSPB 81. In previous rulings, the Board has found that a DP as short as 17 days is OK. Bare v. DHHS, 30 MSPR 684 (1986). But don’t get too aggressive. Three days is not enough time, according to the Board. Hailey v. Agriculture, 26 MSPR 114 (1985).

And remember those Executive Orders President Trump issued last year? Well one of them requires agencies to limit the performance demonstration period “generally” to no more than 30 days.

As for conducting the DP, FELTG suggests you:

  • Meet weekly with the employee.
  • Give oral constructive criticism relative to the week’s work and the week’s assignments.
  • Follow up with an email to the employee that day or the next. Restate the criticism, make assignments for the next week, and send a copy of the email to your advisor.

Step three: Make your decision. Has the employee met that “minimum retention level” that you defined in your notification letter? If so, issue a performance warning letter. In that letter, inform the employee that you will still take steps to initiate a removal if the employee’s performance dips back to unacceptable within a year of the first day of the DP.

If the employee fails the DP, then you have three options. You can reassign the employee, offer last rites, or proposal the removal. There is a time, place, and reason for all three of these options, and you can find out more from FELTG President Deborah Hopkins and Bill Wiley, FELTG Professor Emeritus when FELTG hosts MPSB Law Week in Dallas from June 3-7.

But for now, I need to leave. I have a doctor’s appointment, and those leeches aren’t going to attach themselves. [email protected]