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]

Tips from the Other Side: April 2019

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By Meghan Droste, April 10, 2019

This month’s tip regarding discovery comes from both my experience as an employee-side attorney and also from my previous life when I occasionally represented federal agencies. As anyone who has had to engage in discovery can tell you, interrogatories are served in nearly every case and can take up a large amount of time to respond to. I know from both sides of the table that trying to ensure your client/witness is on top of drafting the responses, the inevitable follow-up emails and calls when they are not, and the reviewing and editing for comprehension can be incredibly time-consuming. Although I have never done it — more on why not in just a bit — I can somewhat understand the appeal of cutting out the middle man (and all of the related work) and just drafting the responses yourself. No follow ups, no explanations for why they really do have to respond, no editing needed; it’s all taken care of on time and done correctly.

Sounds great, right? Well…. no, sorry. You really shouldn’t respond to the interrogatories yourself, no matter how many headaches it might save you.

Why shouldn’t an attorney/non-attorney representative draft the responses to interrogatories?

For starters, you are not the witness/ complainant/responsible or responding management official (and if you are a witness or responsible management official you should speak with someone about having the case reassigned because you may run into some serious issues of privilege if you participated directly in the issues in the complaint).

As the representative, you do not have any direct, personal knowledge of the allegations or what occurred. Just as you cannot testify in a deposition or hearing about your understanding of the facts, you should not testify to them in the interrogatory responses. You need to ask the people who know about the events what happened, and they should be the ones drafting the responses.

When I was on the agency side of cases, I would identify everyone who might have relevant knowledge and then send each person the requests that applied to them. That might mean nearly all of them, or it might be just one or two, whatever was appropriate for each person. If more than one witness had knowledge responsive to a request, I would include all of their responses, clearly indicating what information was from each witness. I strongly encourage you to do the same.

If my advice isn’t enough to convince you, consider the case law on this issue. The Federal Rules of Civil Procedure, which are not binding but do provide guidance, contemplate an attorney signing discovery responses only as to the objections, and not to the substantive responses. See Fed. R. Civ. P. 33(b)(5) (“The person who makes the answers [to the interrogatories] must sign them, and the attorney who objects must sign any objections.”); see also Sorrell v. District of Columbia, 252 F.R.D. 37, 43 (D.D.C. 2008) (holding a paralegal signing discovery responses to be improper because he would be attesting to the veracity of the answers and also making objections).

As one court has noted, the requirements under Rule 33(b)(5) are “critical because interrogatories serve not only as a discovery device but as a means of producing admissible evidence.” See Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C. 2008).

Your responses as a representative are not evidence; but the responses of the people with personal knowledge are. I know it may seem like a lot more work, but in the end it will be better for the agency, and it’s just the right thing to do. [email protected]

More Cases Based on Failure to Meet a Condition of Employment

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By Barbara Haga, April 10, 2019

Last month, I began a series of columns regarding failures to meet conditions of employment. There are a wide variety of cases out there on these types of conduct actions with a lot of authority for agencies to hold employees to these requirements. This month, we are focusing on licenses and qualifications.

No ‘Faculties’

Sometimes I learn something new working on these columns. This time it is a new use of the word “faculties.”  In the context of this case, it means a license or authorization from a church authority. Unfortunately for this Chaplain (Catholic priest), GS-0060-12, the one person with authority to give him faculties declined to do so.

Chaplain Ezeh was serving as a priest at Joint Base Anacostia Bolling in the Washington, DC, area and had been there for two years. The Archbishop of the Military Services is the sole endorser of Roman Catholic priests serving the Archdiocese of the Military Services, and by a letter dated December 14, 2011, the Archbishop informed the appellant that he had decided to terminate his faculties effective January 15, 2012.  The case did not include any reasons why the faculties were terminated nor was there any response from Chaplain recounted; however, it was stipulated in the initial decision that without these faculties Chaplain Ezeh could not say mass or administer sacraments. The AJ and the Board sustained the removal

Ezeh v. Navy, 114 FMSR 13 (NP) (Sept. 30, 2013).

Disbarred

De Maio was a GS-13 Estate Tax Attorney for the IRS. He was removed because he failed to meet a condition of employment. He was disbarred as a result of some reported unethical behavior which occurred during some private legal work. The Maryland Court of Appeals referred the complaint to a judge of the circuit court for hearing. DeMaio did not appear for the hearing. The circuit court judge concluded that De Maio had violated the Rules of Professional Conduct as charged. The Attorney Grievance Commission filed a recommendation for sanction, in which it urged the appellant’s disbarment. DeMaio filed a response to the recommendation. On February 17, 2004, by unanimous decision, the Maryland Court of Appeals adopted the recommendation and disbarred the appellant.

DeMaio did not notify the IRS. Instead they learned of the matter about a week later from a member of the private bar and referred the matter for internal investigation by the Treasury Inspector General for Tax Administration. The disbarment was confirmed, and the agency proposed his removal in December 2004. Initially, he argued during his oral reply that the charge of failing to maintain membership in a state bar could not be sustained because he was also admitted to practice before the U.S. District Court for the District of Columbia and was a member of the bar of the District of Columbia. He finally acknowledged, however, that his District of Columbia bar membership had been suspended based on his disbarment in Maryland. The agency subsequently confirmed that he was suspended from practicing by the District of Columbia Court of Appeals pending resolution of the issue of reciprocal discipline. The AJ sustained the removal and the Board declined to review it by decision dated January 4, 2006.

De Maio v. Treasury, PH-0752-05-0394-I-1 (August 18, 2005).

Loss of License to Practice Psychology

Cerwonka is an interesting variation in the line of condition of employment cases because it 1) is a very recent Federal Circuit decision, 2) involves a Title 38 issue, and 3) deals with a situation where there was an appeal of the license revocation ongoing when the removal was effected.

The decision in Cerwonka’s employment case was rendered by the Federal Circuit after the initial decision became final. Cerwonka’s license was revoked by the State of Louisiana in February 2017 because of “clear ethical violations” and repeatedly failing to follow the rules and regulations binding upon him as a psychologist. The decision does not provide any details about the underlying misconduct except that the misconduct arose in conjunction with his private practice.  The proposed removal letter noted that 38 USC.7402(f) provides that a person may not be employed as a psychologist with the VHA if his license has been terminated for cause – which had occurred. The VA removed him on  April 1, 2017.

In July 2017, Cerwonka’s appeal of the decision to revoke his license was decided and a Louisiana district court judge reinstated his license, pending further proceedings. The issuing office appealed the decision to the Louisiana First Circuit Court of Appeal. In an April 2018 decision, that court vacated the lower court’s decision and remanded the matter for further proceedings. At the time of the Federal Circuit’s decision, proceedings on the merits of the license revocation remained pending.

What did the Federal Circuit decide? They sustained the removal, finding that the Title  38 statutory provision took precedence over any Title 5 efficiency of the service arguments. The court noted that 38 USC.7402(f) prohibits the VA from employing any psychologist who had a license terminated for cause, without permitting any additional considerations or affording any discretion.  The decision stated that the VA had interpreted this to mean that the immediate removal of an employee who had a license terminated for cause was required and quoted the VA handbook which stated “[a]n employee who fails to meet or who fails to present evidence of meeting the statutory, e.g., 38 U.S.C. § 7402, or regulatory requirements for appointment will be separated.” 

Cerwonka v. VA, U.S. CAFC, 2018-1398 (Feb. 13, 2019).

Tune in next month for further discussion of conditions of employment tied to medical qualifications.

Hey, Deciding Officials: What Exactly Does Ex Parte Mean?

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By Deborah Hopkins, April 10, 2019

In federal sector employment law, we often use terms of art that carry very specific meaning. These terms may vary from a typical dictionary definition, or even from a black-letter law definition. Examples include discipline, due process, notice, response, representative, supervisor, and even employee.

A term of art that I want to highlight today is ex parte. This is a Latin term used in legal proceedings meaning “from one party.” The Legal Dictionary definition goes a little deeper: “An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney.”

That’s fine, but still not entirely helpful for the purposes of agency discipline and performance actions in the federal government. It needs some context. But before the context, let’s do a quick review of the required steps to taking a disciplinary or performance action:

  1. The Proposing Official (PO) gives the employee a proposal notice which includes the reasons for the proposed discipline (charges; Douglas factors) or performance removal (incidents of unacceptable performance during the PIP), and any relevant supporting documentation.
  2. The employee responds orally and/or in writing to the Deciding Official (DO), based on the information given in the proposal notice and any other information the employee thinks is relevant. The employee has the right to be represented in this response.
  3. The Deciding Official makes a decision based ONLY on what is contained in the proposal packet and what was contained in the employee’s response.

These are the due process steps required by law, for any Title 5 or Title 42 career employee who has satisfied the probationary period. So, where exactly does this ex parte concept fit in? Well, there are two primary types of ex parte violations that might arise:

  • An ex parte act occurs when an adjudicator considers evidence not available to one or more of the parties.
  • An ex parte discussion is one held by an adjudicator without allowing all of the parties to the controversy to be present.

The DO is a management official in the agency and as such makes decisions for the agency, she is also acting as the judge, because she is weighing the evidence to determine what penalty to dole out.

The employee legally is entitled to know all the reasons the PO relied upon, at the time he issues the proposal notice. So an ex parte violation occurs when, after the proposal is issued, the DO becomes aware of new information about the employee or the case, and the employee (and the representative, if he has one) is not made aware of the new information.

Let’s apply this scenario to the two types of ex parte violations above:

  • Ex parte act: A coworker of Ed Employee, whose removal has been proposed, sends an email to the DO, informing her that the Ed has been sending inappropriate text messages to her for months, even though she’s asked him to stop. The coworker attaches a PDF with copies of the purported text messages.
  • Ex parte discussion: The deputy director of the division sets up a meeting to talk with the DO about the risks of keeping Ed around, when there are unsubstantiated but potentially serious allegations of harassment against him. Ed is never told about this discussion.

Now you can see where the term ex parte comes in – only one side (the DO) gets the information, either intentionally or unintentionally, and Ed Employee does not have a chance to respond to it, because that new information was not in the proposal notice.

If such a violation occurs and the employee finds out about it, then it’s an automatic loser of a case for the agency – even if there is video evidence of the employee committing the charged act of misconduct, 15 sworn statements from credible witnesses, and a confession from the employee himself. It’s a procedural due process violation and that employee cannot be removed or otherwise disciplined.

One of the foundational ex parte cases involved a DOD employee who claimed credit for time not worked on six different days, and was removed for submitting false claims. After the proposal was issued, the Commanding Officer engaged in surveillance of the employee and provided this information, along with additional documents, to the DO – and the employee was not given any of this information. Due process violation, and we’re done; employee gets his job back. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Additional cases show that ex parte information, whether it is relied upon or not, automatically violates due process. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011); Buchanan v. USPS, DA-0752-12-0008-I-1 (2013); Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007); Gray v. Department of Defense, 116 MSPR 461 (June 17, 2011). Be careful when doing legal research, though, because you will find cases where agencies got lucky and successfully argued that the new information was not considered, or did not influence the DO. See, e.g., Blank v. Army, 247 F.3d 1225 (Fed. Cir. 2001) (After receiving the employee’s response to the proposed termination, the DO conducted a further inquiry into the matter but there was no due process violation because the interviews only clarified and confirmed what was already in the record.).

You don’t want to hope to get lucky in one of these cases, though. Fortunately there’s a simple fix for an ex parte conundrum, and it will save your case. The DO can simply notify the employee of the new information and give the employee an opportunity to respond to it, before the DO makes a final decision. See Ward, above.

It may bump your timeline back a few days to allow the extra response time, but that’s waaaaaay better than losing a case on a due process violation and having to start from scratch. [email protected]

 

 

How Far Back in Time Can I Go to Discipline an Employee?

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By Deborah Hopkins, March 26, 2019

Recently, we received a question from a reader about how far back in time an agency can go when it wants to discipline an employee.

We have a [hypothetical] case where we recently uncovered dozens of harassing comments (sexual) from an employee, spanning many years. How many years back can I reference specific examples in his proposed removal notice? The charge will be Conduct unbecoming a federal employee.

And here’s the FELTG response.

Thanks for the question. If you look at 5 USC § 7513 you’ll notice that in cases of adverse actions for misconduct there are no time limits for how far back an agency is allowed to reach, nor is there a requirement that an action be proposed within a particular time period. (Conversely, the law in performance cases under 5 USC § 4303 limits agencies to proposing removals for poor performance occurring during the one-year period prior to the proposal date.)

Because the law is silent on timeline, we have to look to the cases to see how the MSPB has viewed this issue. Excessive delays, especially those without explanation, can hurt the agency’s ability to successfully defend a disciplinary case and may result in the discipline being overturned. The longer an agency takes, the less convincing its stance that discipline was warranted. See Baldwin v. VA, 2008 MSPB 169 (if an agency’s delay in charging discipline is unreasonable, the charges may be dismissed). In these cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm. Brown v. Treasury, 61 MSPR 484 (April 7, 1994). The Board will also consider whether the delay indicates an improper motivation to discipline the employee, such as reprisal for EEO or whistleblower activity. Id.

Sometimes agencies have good reason for delaying disciplinary action. The more detailed the explanation, the better for the agency; the discipline may be upheld even if a large amount of time has passed. The reasons for delay the Board has accepted (though not condoned) include management official waiting on receipt of an investigation report, and office restructuring and turnover that caused delays in all workplace actions. Cates v. USDA, 24 MSPR 468 (Nov. 20, 1984), aff’d, 776 F.2d 1065 (Fed. Cir. 1985). If criminal charges have been filed against an employee, this may also justify the agency choosing not to charge the conduct for some time. See Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (an eight-month delay after learning of the misconduct, which had occurred six years earlier, did not prevent the agency from disciplining the employee).

Not finding out about the conduct until recently is a darn good reason for not disciplining the employee until now; the key is not to wait too long, now that you know what happened.

An employee’s primary defense in one of these cases is an affirmative defense called laches. A party claiming laches must establish two elements: 1) the agency’s unreasonable delay in bringing a personnel action, and 2) resulting prejudice to the appellant. See Carr v. SSA, 185 F.3d 1318, (Fed. Cir. 1999). Prejudice to the appellant is shown if the appellant encounters increased and prejudicial difficulty in mounting a defense due to the delay, such as the loss of records, destruction of evidence, fading memories, and the unavailability of witnesses. Hoover v. Navy, 957 F.2d 861 (Fed. Cir. 1992).

While an employee may assert laches, you’ll want to look for evidence the employee actually remembers the misconduct which you’re charging. In Williams the appellant actually stipulated to the charge, which turned the light green for the agency to proceed with discipline. In Baldwin, the employee asserted he did not remember the conduct at issue, but other evidence including witness statements, indicated he did in fact know what the agency was talking about, and the Board said his assertions were “not…nonfrivilous.”

One other thing, on the “Conduct unbecoming a federal employee” charge: well done. It’s tempting in cases of egregious and harassing behavior, to charge an employee with Sexual Harassment. But that can be tough, because the bar to prove sexual harassment is quite high –  and if you don’t prove all the elements of sexual harassment, your discipline cannot stand even if you have 15 sworn witness statements, documentary evidence, a video of the harassing conduct, and a confession by the harasser.

At FELTG, we’d suggest using the charge listing out all the harassing behavior as specifications rather than running them all together in a list as part of the generic charge. It would look like this.

Charge: “Conduct unbecoming a federal employee”

Specification A: On February 5, 2019, you referred to Coworker X as “a hot piece of ass.”

Specification B: On November 16, 2018, you slapped Coworker X on the rear end in the break room at lunchtime and said, “I want some of this.”

Specification C: On October 1, 2018, you told Coworker Y that you wanted to get Coworker X alone in the stairwell and have your “way with her once and for all.”

Specification D: On August 5, 2018, you told Coworker X if she did not have sex with you, you would tell the Agency Director she was conducting personal business on government time.

Be specific. Use dates, times, the employee’s actual words, and his actions – even if it’s uncomfortable to see it in writing. Go back as far as you need to, without overdoing it. Resist the urge to “spank” the employee, as Bill Wiley puts it, by listing every single bad thing he has ever done. Instead, either focus on the most recent or most egregious incidents and list those. If you lose a couple of specifications, no problem, but if you list 20 and only two stand, the Board may decide to mitigate your penalty. If you list two and both stand, the Board doesn’t have the authority to mitigate unless your penalty was unreasonable. See, e.g., Payne v. USPS, 72 MSPR 646 (1996).

As we say at the end of each training day, good luck out there. [email protected]

 

And Now a Word From … Susan Tsui Grundmann

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March 19, 2019

When former Merit Systems Protection Board Chair Susan Tsui Grundmann started her new job as Executive Director of the Office of Compliance, quite a few people didn’t know what the OOC was, or what it did.

That soon changed.

Grundmann barely had enough time to learn the best spot for coffee near the Capitol before the OOC found itself in the spotlight. The #MeToo Movement had broken out, and Congress was not immune to claims of sexual harassment. The OOC, which operates with a staff of attorneys and other professionals to ensure a fair, safe, and accessible workplace for 30,000 legislative branch employees, was suddenly very busy – and getting a lot of attention.

“During a five-month period, our tiny staff had been tested, weighed and found not to be lacking,” Grundmann said. “Since October 2017, our staff personally trained over 1,500 employees in the House and Senate alone, not all at once, but in ones, twos, and tens.”

And it’s no longer the Office of Compliance. The agency has since rebranded itself as the Office of Congressional Workplace Rights. Along with the new name, the OCWR received new mission and vision statements after the Congressional Accountability Act Reform Act was passed late last year and goes into effect in June. Per Grundmann, it “serves as the EEOC and the FLRA for the legislative branch. We also perform certain functions of the Department of Labor and the Department of Justice for the legislative community.”

Here’s more from our interview.

DG: New name, new mission and new vision statement. How else has the office changed?

SG: Our jurisdiction has been expanded to cover new employing offices, like certain congressional commissions, and additional categories of employees, such as unpaid staff, including interns, fellows, and detailees. Our ADR process no longer includes mandatory counseling, a mandatory “cooling off” period before the employee can proceed either to an ADR hearing or court, and mandatory mediation, although mediation remains optional if both parties agree. We have a new step in the ADR process, which involves preliminary review by a hearing officer within 30 days after a claim is filed.

All employing offices have new posting and training requirements. For the first time ever, we will conduct a climate survey of the entire legislative branch with specific focus on respondents’ attitudes toward sexual harassment. We also have new reporting requirements. Perhaps what has captured the greatest media attention is that Members of Congress and employing offices must reimburse the treasury account for certain types of awards and settlements.

DG: So what hasn’t changed?

SG: The Reform Act maintains the OCWR’s essential functions and preserves our statutory mandates, which include statutory directive to provide an ADR process for legislative branch employees; to enforce the Occupational Safety and Health Act, Americans with Disabilities Act with regard to public accessibility, and the Federal Services Labor-Management Relations Act; to provide recommendations to Congress regarding changes to the CAA; and to educate and inform the legislative community and the public regarding the CAA and the Reform Act. Perhaps most importantly, the Reform Act maintains the impartial, non-partisan nature of our Office.

DG: How are you able to handle all the added responsibilities with such a small staff?

SG: While we have been allotted additional FTE and funding, we have a great team at OCWR.  We have identified statutory changes which require action and have in-house teams with timelines and deadlines, the most significant of which is to amend our current rules to reflect changes mandated in the Reform Act, such as adding the new step of the preliminary review by a hearing officer in the first 30 days.  We even have a single individual whose primary task is to keep track of every team, note every benchmark, and to ensure that we adhere to every deadline.  The limited timeframe is a challenge yet it is an exciting time for us as we have been given the rare opportunity to create a new structure and process.  We are looking forward to meeting this challenge.

DG: You were charged with providing widespread training on harassment to Congress. Through this process, did you have any revelations on harassment training?

SG: We saw a triple-digit percent increase in the number of requests for in-person anti-sexual harassment training; a triple-digit percent spike in the number of staffers enrolling in our online training modules; twice as many visits to the OCWR’s online information about how to report sexual harassment; a 12 percent surge in the number of people subscribing to OCWR social media platforms to receive updates on rights and responsibilities designed to protect workers against sexual harassment. And posters notifying employees of their rights under the CAA, which were, at the time, non-mandatory in the legislative branch, flying off our shelf.

DG: What do you think agencies in the Executive branch could or should do differently to get a handle on widespread harassment?  

SG: Training is only the floor. But running the same training over and over again cannot change culture. To remain relevant and fresh, training must be continually revised and tailored to the specific environment of each workplace. We have found that in-person training works the best, especially if we work directly with the employing office and develop scenarios that commonly occur in a particular office. 

There are other steps employers could take: Develop a zero-tolerance policy prohibiting discrimination, harassment, and retaliation that employees know and understand. That policy should describe procedures for reporting such behavior and designate a particular individual, and an alternative in the event the designee is the accused, who is charged with receiving complaints and providing a timely investigation of the allegations. Even if the allegations prove unfounded, the designee should contact the employee so that the employee will know that the claims were taken seriously and not brushed aside. If the allegations have merit, the accused must be given due process and held accountable. In the end, cultural change comes from the top, from both executive and senior leadership, and from management, who adopt and implement the organizational mission and vision.

DG: Hopefully, we’ll have a quorum soon at the MSPB. Do you have any advice for new MSPB members?

SG: Not having a quorum for over two years has done substantial damage to the MSPB’s ability to reach resolution and closure. Almost 2,000 PFRs await resolution. That number is certain to grow. In some cases, justice delayed can be viewed as justice denied. You have seen these stories in the media.

My advice to new members is to trust your instincts but be guided by the exemplary career staff at MSPB. There are many, many talented employees who have dedicated their careers to protecting and advancing the merit principles. Many have seen it all and know what works and doesn’t work in the long run. Be inclusive when it comes informational gathering, including external stakeholders. To the extent possible, be inclusive of decision-making so that there is a shared ownership of choices made. It is a great agency filled with those who model the merit principles in their ever day life. I wish the new Board members the best as they embark on this venture. They will garner great experience and satisfaction from their time with the agency.

How I Became a Zen Master of Civil Service Law

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By William Wiley, March 13, 2019

Way back in the early ’80s, when I was just a GS-12 ER puppy working for Navy, a brand new MSPB board member named Dennis Devaney spoke at a conference I had helped pull together. In his speech, he announced that the Board was about to issue a decision that would hold that if an employee was having performance problems, the relatively new Civil Service Reform Act of 1978 required that they be dealt with through the relatively new Chapter 43-PIP procedures rather than through the old school adverse action procedures. This issue had been hanging out there since 1978, with OPM providing advice that it was mandatory that agencies use the Chapter 43 procedures and avoid the Chapter 75 adverse action procedures when confronted with bad performance.

Even at that limited-experience point in my career, I already knew that was going to be a bad decision. I recently had been advising a supervisor about a pediatric nurse who was engaging in such bad performance that she was perhaps on the road to killing patients. She failed to give medications if the patient didn’t want to take it. She did not keep an eye on IV needles, thereby ignoring any that had perforated the vein and were infusing fluid into the surrounding tissue. When I asked OPM for advice, the response was that I had to PIP her and could not fire her using adverse action procedures. When I asked how many dead babies I should consider to be an indicator of unacceptable performance, they told me to assign one of my spare nurses to follow her around all day to make sure that didn’t happen. Like I got a closet full of spare RNs. Geez Louise.

Member Devaney and I happened to run into each other the evening after his speech (in the hotel’s bar, of course; I LIKE BEER!). Failing to have the good graces vested in a frog, I confronted Member Devaney about the idiocy of his pending decision, the one that would require that poor performers be given 30 PIP days or so to commit even greater harm to the government. Mr. Devaney graciously ignored my youthful arrogance, thanked me for my opinion, and that was that.

Several weeks later, I got a letter from Mr. Devaney. This is before email, children, a time when adults communicated using paper, ink and stamps. In his note, Dennis described how the more he thought about our discussion, the more he appreciated the problem that would be caused by mandating Chapter 43-PIP procedures for all performance problems. When he returned to his office from the conference, he discussed the issue with the other two Board members, and they decided NOT to limit agencies to using just PIPs when dealing with a poor performer. The decision recognized that since the beginning of our civil service, agencies had been able to use adverse action procedures to fire poor performers, and nothing in the Civil Service Reform Act did away with that option. That principle is still good law. When confronted with a poor performer, supervisors are not limited to Chapter 43 procedures and are free to use discipline/adverse action procedures whenever they see fit. In fact, the Board’s case law is chock-full of removal actions taken under Chapter 75 that are based on bad performance.

Unfortunately, that word didn’t get around very well. For example, maybe a dozen years after that decision, I was dealing with an OSC investigator/attorney. The agency I was representing had reassigned a poor performer to another position in which it thought the employee might succeed. The attorney from OSC argued with me that such a reassignment was illegal, that the employee was entitled to be PIPed instead. Holy moly. Am I the only one who has read the Board’s decisions? And has a smidgen of common sense?

That brings us to today; 35 years deep into Board case law. So, what do I see coming out of EEOC and echoed by some others who opine in this field? This:

“Work product errors and untimely completion of work assignments are not matters of misconduct; they are matters of performance.” EEOC reasoned that “measures designed to address performance problems, such as appraisals, remedial training, non-disciplinary counseling, and Performance Improvement Plans (PIPs)” be used. Marx H., Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency, Equal Employment Opportunity Commission-OFO Appeal No. 0120162333, Agency No. 14-00259-03453 (June 19, 2018)

EEOC appears to be saying that using adverse action procedures for bad performance is somehow “improper.” Well, that was an issue back in the early 80s. But it was resolved back then, and is just as wrong today as when OPM advised me to assign backup nurses to keep a PIPed coworker from harming babies and small children. When it comes to dealing with a poor performer, there are a number of tools available to the supervisor. With all due respect, EEOC should be making decisions based on the answers provided by case law, not what they think the answer should be. In any particular case, using a disciplinary or Chapter  75-type approach vs. using a “performance improvement” type of approach may be the more reasonable way to go, but both approaches remain available.

What does that have to do with my personal career? At the end of Mr. Devaney’s note, he told me that if I ever wanted to move to DC, he could use someone with front-line practical experience as an advisor on his staff.

I was loading the U-Haul before the week was out, heading off to a career that gave me a chance to see civil service law from the inside out. And, what’s the professional-development lesson in here for all you youngsters out there?

Drink beer. [email protected]

Cook-ing a Sick Employee

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By Deborah Hopkins, March 13, 2019

A few days ago I got a nice note from a FELTG customer, who had a question about an employee with excessive absences. Allow me to paraphrase a snippet that you might find interesting.

I recall learning in one of your courses that a supervisor who approves leave cannot then turn around and use the approved leave to support a disciplinary charge of excessive absence. Is this correct – and if so, are there any exceptions?

And here’s the answer: While there’s a fundamental principle that says an agency cannot discipline someone for being on approved leave, there are indeed exceptions. At FELTG, we like to highlight these kinds of exceptions, as they provide us with the coordinates of the outer boundaries of the law, for taking these kinds of actions.

The foundational case for excessive absence removals, one that every employment law practitioner should read, is Cook v. Army, 18 MSPR 610 (1984). This case sets out the elements required for an excessive absence removal, where an employee has been on approved leave for a period of time but the agency can no longer allow the absence to continue, and needs to remove the employee for not being able to work. Here they are:

  1. The employee was absent for reasons beyond her control;
    • For example, she was too sick to come in to work.
  2. The absences continued beyond a reasonable time;
    • For example, she was gone for 2 months out of 6 months after her FMLA ran out (see Gartner v. Army, 2007 MSPB 8; Savage v. Army, 2015 MSPB 51).
  3. The supervisor warned the employee that she would be removed if she did not report to work;
    • Send the employee a letter that tells her this.
  4. The agency showed that the position needed to be filled on a regular, full-time basis
    • Your Douglas analysis on the harm caused by the employee being gone is key here.

After you read Cook, take a look at Curtis v. USPS, 2009 MSPB 134, in which a Cook removal was upheld when, over a 21-month period, the employee was absent for 77 days (on approved LWOP) due to PTSD and depression. That works out to about one day per week. If this kind of intermittent attendance happens for a couple of weeks, you don’t have a burden – but this went on for nearly two years and the agency was able to show a hardship in the absences.

You’ll want to be careful here. You can rely on approved annual leave, sick leave, and LWOP but you cannot count FMLA excused absences (these are an entitlement) or AWOL (which is an act of misconduct) when determining what constitutes excessive absence. See McCauley v. DoI, 116 MSPR 484 (2011); Savage, supra.

If you can’t meet even one of the Cook elements listed above, you can’t Cook an employee. Let’s look at a couple of cases that demonstrate this point.

First up is Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016). Miles had been out on approved leave for quite some time (1,000 hours, if I remember correctly) and the agency needed him to come back to work, so they sent him a letter telling him so. The warning letter told the employee that if he did not return to work, he would be disciplined – but it did NOT state that absence on approved leave would warrant dismissal. There was the agency’s first problem. Secondly, Miles’ medical documentation said he could return to work in six months, which was a foreseeable end to the absence. The agency had already granted 1,000 hours of approved leave, and the workload was actually getting done in the office despite his absence. The result: MSPB decided the agency did not meet the Cook burden, and Miles got his job back.

Another case to check out where the agency lost an excessive absence removal, is New v. DVA, 99 MSPR 404 (2005). In this case the employee had 12% absences over a five-year period but the MSPB reversed his termination because the Cook criteria were not met – being absent 12% of the time is not excessive enough.

One other approach to consider with an employee who is too sick to work, rather than Cook-ing him, is doing a non-disciplinary Medical Inability to Perform removal. I know it’s not easy on the conscience to fire someone who is in a bad medical place and is too sick to come to work; after all, you’re not dealing with someone who is breaking the rules for fun. But the good news is, these removals almost always help the employee’s case in an application for disability retirement. For information on this, and a whole lot more, join FELTG for Absence, Leave Abuse & Medical Issues Week, March 25-29 in Washington, DC. [email protected]