Ten Ways to Provide Bad Training

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Here at FELTG, we are very fortunate to work with some of the best trainers in the business. The following guest article is written by one of them and is reprinted with the permission of the author.

By Michael Vandergriff, May 16, 2018

After training managers, supervisors, and employees for four decades, I think I may have seen it all.  This may not be the top ten tactics for delivering bad training, but they are contenders.

To provide bad training:

Do Not Parse Your Employees by Level or Function

Missile Shots and Garbage Disposals.  In a class on Project Management in the ’90s, a participant on the left said that my prescription was at the heart of the rescheduling of missile shots.  Five minutes later, a participant on the right expressed his challenges around gathering his tools to repair in-sink garbage disposals.

Contract with a “Memorex” Trainer

Rookie Mistake.  “Green” trainers lack breadth and depth of knowledge and experience.  A linear delivery can be highly polished, smoothly delivered, and have all the impact of a senior presentation in a business school.  Also, questions might be a problem.

Do Not Promote Your Training

How does it Play in Peoria?  About 20 years ago, I was contracted to deliver a day of training for the City of Peoria. Arriving for the training, I introduced myself to the new Director of Training.  He replied, “Who are you, and what training?”  The prior occupant of the job had left hastily to take an opportunity in Chicago, leaving a non-class in his wake.  No announcements.  I asked the new training director what he knew about training and he replied that he knew nothing.  Inviting him to take a seat, I delivered an overview of employee training and development.  When I am asked about the smallest class I have ever addressed, I reply, “Half a day for zero participants.”

Allow Critical Decisions to Be Made by the Powerful and Ignorant

Training Killer.  It was the early 1980s and I had developed a reputation as a competent multi-topic presenter at the California State Training Center in Sacramento.  The center was not in Sacramento, as such, but was across the Sacramento River, in Bryte.  A lot of residents were elderly Russian immigrants whose yards were being overrun by prostitutes the Sac Police officers were chasing out of downtown.  Also, the entry to the center was often blocked in the morning by someone sleeping it off.  My “halo effect” was not fueled by competence as much as adrenaline. To borrow from NASA, failure was not an option.  I was proud that, in my mid-twenties, I was invited to take the lead on the state’s newest $80,000 program: Planning Problem Solving, and Decision Making (and “situation evaluation” – a section not in the title).  The design was very intense with a heavy case focus, a lot of interaction, and a maximum number of ten students. I opened the door of the classroom to meet my first ten students and was greeted by thirty state analysts. Some doofus with the authority saw the class size and reasoned that adding twenty students was more cost-effective.  Four days later, I crawled out without a failure (never acceptable) and, within a year, was living in New Mexico.  California has not fared well in many ways since that time.

Build a Class Around Your Problem Employee

Get a Grip.  Years ago, I delivered a conflict class to an organization hoping they could fix their problem employee by placing him in a class. Essentially, all the coworkers were there as window dressing; a behavior change of Arnold (one might call him “Ahhnold”) was the goal. Arnold sat at the back table for the entire session and grimaced.  Proud of his physique, he would exercise his forearms under the table with a wrist grip. A quick read of Arnold led me to deliver “straight up” training, ignoring the barely audible noise of the grip.  The nonverbals indicated he needed a long-term relationship with someone in a helping role.  He also needed to know that his cheap exerciser would soon deliver him to carpal tunnel damage and the inability to pick up a pencil.

Send a Soon-to-Retire Employee to Class

Shameful Sendoff.  Over the years, I have interacted with seminar participants who have revealed they are within a month or two of retirement.  I try my best to hide my reaction.  With tuitions as high as $5,000, this allocation of training funds is wrong.  To get a return on the investment, I would recommend that the trainee be at least three to four years away from retirement, unless it is skill training that is essential to completion of work.

Allow a Small Segment of Your Organization to Burn All Your Training Funds

No Goofy Training.  A Director of Training, David, was under intense pressure to spend the years’ training budget for a specific level to train one person.  The generals’ secretary wanted to get customer service training from a vendor that was famous for their outstanding customer service program.  David labelled it “goofy” and held the line.  He had an entire organization to serve.

Get a Trainer Who Can’t Handle an Unhappy Participant

Unhappy Camper.  I entered a classroom early and spoke with the Program Director, John, who told me we had a malcontent in the seminar, Dobie, who hated every presenter.  Rookie presenters usually avoid the malcontent and work the other side of the room.  I looked at Dobie’s nameplate and was familiar with his organization.  When he entered, I spoke briefly with him, asking him if he knew the people I had met while speaking at his national conference.  He smiled, and we discussed our mutual contacts.  In an opening example, I walked up to Dobie and gave a hypothetical in which Dobie and I had experienced a disagreement. At the first break, Dobie approached John and said, “This guy is pretty good.”  He simply needed a bit of attention…

Don’t Prepare for the Upcoming Training

Totally Unprepared.  I delivered three years of training on Team Facilitation and Team Tools to a huge organization under intense pressure.  Unprecedented, I had two Friday cancellations for classes to begin the following Monday, within two months!  I gained more insight into this location when USA Today printed a two-page story about the mayhem at this facility.  After that, I travelled to a “flagship” location on the west coast to train.  Arriving early, I walked into the training room.  No tables.  No chairs.  No flipcharts.  No materials.  Wondering if I was in the wrong place, I walked back into the hallway to see that someone had placed a sticky flipchart page adjacent to the door.  In a very pale pastel, it announced, “Team Faccion.”  In contrast, I trained later at a sister facility in New Orleans.  In my four decades of training, I have rarely experienced a facility as prepared on all fronts. The training coordinator was boo-coo. The Boy Scout motto?  Be prepared.

Use a Middleman to Acquire a Trainer

Not Worth a Dime.  Middlemen take a cut.  Sometimes they take an arm and a leg.  A prominent training vendor carves out 90% for overhead, leaving 10% for the trainer. I am relaxed about the opportunity for newcomers finding a path to break in. The question is, are you open to hiring a ten-percenter who owns a fresh diploma with wet ink?  The non-value-added aspect of the overhead is a topic for another day.  Also, piercing the veil to determine that your training dollars are well spent is problematic.  The only path may be more work for you as you seriously evaluate the presenter being offered.  It is important for you, though, to avoid being fleeced.  Some training-vendor emperors have no clothes. [email protected]

Tips from the Other Side: Developing a Record on Joint Employment

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By Meghan Droste, May 16, 2018

As the regular readers of this column know, I generally represent employees, both in the federal and private sector.  In my time I have also represented federal agencies, so I have seen how resources can be stretched thin at times.  Agencies often have too many cases and simply not enough time to handle them.  Faced with these circumstances, I can understand the temptation to dismiss complaints as early as possible.

As a complainant’s counsel, it seems that when there is a joint employer issue, agencies automatically dismiss the case as soon as they receive the formal complaint.  This means, of course, that I have to file an appeal.  When briefing the issue, there is very little to discuss because the agency has not created any record.  This makes it more difficult for me to support my position that the agency is a joint employer, but it makes it nearly impossible for the agency defend its position that it is not.

The question of whether the agency is a joint employer turns on an analysis of several factors that come from Ma & Zheng v. Department of Health & Human Services, EEOC App. No. 01962389 (May 29, 1998).  This is a very fact-specific inquiry, focused on factors such as who assigns work to the complainant, who approves leave requests, and who selected and/or removed the complainant from the position.  Too often, agencies look only to the language of the contract between the agency and contracting company—which inevitably states that there will not be an employee-employer relationship with the agency and the contractors—to support the position that the complainant was not an employee.  Agencies reach this conclusion without any investigation into the other factors.  The Commission then inevitably concludes that the record is insufficient and remands the complaint to the agency for investigation.  A search of Commission decisions reveals several appeals with this exact outcome.  See, e.g., Alan F. v. Dep’t of Agric., EEOC App. No. 0120161089 (March 5, 2018); Complainant v. Army, EEOC App. No. 0120150809 (June 12, 2015); Complainant v. Dep’t of State, EEOC App. No. 0120131112 (October 17, 2014); Tolbert v. Dep’t of Defense, EEOC App. NO. 0120113572 (January 24, 2013).

I recommend that agencies carefully consider whether to dismiss a complaint for failure to state a claim in potential joint employer cases.  While it may seem like a time saver, it will likely end up taking up unnecessary resources in an appeal the agency will not win.

If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me: [email protected].

Successful Management of Employees with PTSD in the Workplace

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By Shana Palmieri, May 16, 2018

With 8 million adults experiencing Post-Traumatic Stress Disorder (PTSD) in a given year, 7-8% of adults have PTSD at some point in their lifetime, and rates as high as 20% in a given year for veterans, chances are you have employees with PTSD – or at a minimum, employees who are suffering from symptoms of PTSD.

First, what is PTSD?

Post-Traumatic Stress Disorder is classified as an anxiety disorder which changes the body’s reaction to stress, affecting stress hormones and specific parts of the brain.  PTSD can develop in individuals that have experienced a life-threatening event (such as combat), a natural disaster, sexual assault, a car accident, or even witnessing a life-threatening event.

It is important to note that not all individuals who experience a life-threatening event will develop PTSD.  In fact, 70% of adults in the U.S. have experienced some type of traumatic experience in their lifetime; that is 223.4 million of us!  Of that 70%, only 20% will go on to develop PTSD, or approximately 44.7 million people in the U.S.  At any given time, around 8% of people in the U.S. have PTSD. That translates to 24.4 million people, roughly the population of Texas.

Individuals that develop PTSD as a result of experiencing life-threating events develop specific symptoms, to include the following:

  • Intrusive thoughts, nightmares, flashbacks, emotional distress to traumatic reminders, physical reactivity to traumatic reminders
  • Avoidance of trauma-related stimuli
  • Exaggerated self-blame, social isolation, difficulty connecting with others
  • Irritability, difficulty sleeping, fatigue, heightened startle reaction, difficulty concentrating, hypervigilance

What does PTSD in the Workplace Look Like?

PTSD is much more than an individual reacting to loud noises that sound like gun shots or bombs going off.  The interactions that trigger PTSD symptoms can be subtle and difficult to understand for individuals who have not had the experience themselves. It could be something as simple as someone putting their hand on a colleague’s shoulder.  What may be a non-threating gesture to one person, may trigger a strong emotional and physical reaction in another individual as a result of past experiences.  A supervisor that has a “strong tone” may come across aggressive or trigger an employee with a history of verbal and physical abuse.

It is important for supervisors, managers and human resources staff to listen and openly communicate with employees to ensure a work environment that creates a place where the employee feels safe and has the opportunity to be successful in their position.  

Is PTSD Real?

There is an unfortunate common misperception that PTSD is not a real disorder.  Research has demonstrated both through changes in the brain and changes in stress hormones that in fact, people with the diagnosis of PTSD have significant brain and hormone changes compared with individuals that do not have PTSD.  These changes are directly related to the symptoms individuals with PTSD experience. So yes, PTSD is very real and so are the symptoms individuals are experiencing as a result. An individual with PTSD has a disability and is legally entitled to the reasonable accommodation process.

How can Employers Create Opportunities for Success for Employees with PTSD?  

  • Ensure all supervisors, managers and human resources staff are educated on the symptoms of PTSD and the potential impact on the workplace.
  • Learn to recognize the warning signs that an employee is struggling and provide support and guidance to help them access treatment options.
  • Encourage and support employees in accessing EAP and appropriate mental health services.
  • Implement programs through HR or EAP that promote mental wellness and stress reduction.
  • Engage in the interactive process to determine what workplace accommodations need to be made for an individual with PTSD.

For more on this, attend FELTG’s seminar Federal Workplace Challenges: Behavioral Health Conditions, Threats of Violence, and Coworker Conflicts July 17-19 in Washington, DC. [email protected]

Bullied by the Union – What Can You Do?

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By Deborah Hopkins, May 16, 2018

Questions, we get wonderful questions from our wonderful class participants. This one combines the very contemporary issue of workplace bullying with the old-as-the-hills concept of union official robust debate:

Dear FELTG,

Where can I find information about addressing union reps’ rude, unprofessional, and hostile behavior in emails, in-person, and on the phone when performing day-to-day representation duties? I am aware of the robust debate exception to misconduct, but this behavior is not during negotiations, creates a hostile work environment and any non-union employee would be disciplined.  As an employee, I should not have to tolerate this, and it interferes with my work.  Agency LR staff says the union has the right to act the way it does.  I want the union to show me respect like I show them. I want their behavior to stop and the agency to stop allowing it. Please advise.

Thank you, Bullied by Union

Here’s the FELTG response.

Dear Bullied,

You may not like the FELTG answer, but based on the hypothetical you’ve described, your LR staff is correct. Robust debate is the term we use to describe the rough speech and raised voices that union representatives are allowed to exhibit when performing representational duties – not just during negotiations. This “uninhibited, robust, and wide-open debate,” is protected activity and may include profanity and shouting, according to the U.S. Supreme Court. National Association of Letter Carriers v. Austin, 418 U.S. 264 (1974).

Congress intended to permit union-related debate, even if it rose to the level of “unrestrained” or “uncivil.” Language used during union-related discussions may be “intemperate, abusive and insulting.” Old Dominion Branch, NALC v. Austin, 418 U.S. 264 (1974).

To help clarify this, here are a few examples of protected activity:

  • When the supervisor refused to make an overtime decision, the union president said, “Fuck you. I don’t give a fuck.” The supervisor had the employee removed from the workplace. FLRA held that the supervisor committed a ULP. FAA v. NATCC, 64 FLRA 419 (2010)
  • Calling management a “cheap son-of-a-bitch,” Groves Truck & Trailer, 281 NLRB 1194 (1986)
  • The statement, “Management is a bunch of assholes,” UPS, 241 NLRB 389 (1979)
  • Referring to an employee as an “Egotistical fucker and a fucking liar,” Union Carbide, 331 NLRB 356 (2000)

Pretty robust, wouldn’t you say?

There are some limits, though. A union rep may be disciplined for “robust debate,” but only in two circumstances:

  • If in doing so the union representative engages in flagrant misconduct, or
  • The behavior exceeds the bounds of protected activity.

5 USC 7102.

Here are a couple of examples of activity that is not protected and that is cause for discipline:

  1. A union officer interrupted an office birthday celebration and called the event a “blatant and ridiculous display of management’s power.”
    • She later complained about the dress code, called a district manager “ridiculous,” and shouted when talking about her supervisor.
    • The agency suspended her for two days for inappropriate, disrespectful, and disruptive behavior.
    • This was not robust debate because she was not acting in her union capacity.

AFGE, Local 1164 and SSA, 110 FLRR-1 128 (2010).

  1. A union steward was suspended for two incidents of improper behavior:
    • He spoke forcefully to an HR specialist with balled fists and referred to violence against her, making her feel “intimidated and threatened”
    • He called a supervisor “Uncle Tom” after the supervisor questioned his whereabouts.

He was not acting in his official capacity – and even if he were, robust debate does not include protection for racial slurs.

AFGE, Local 987 and U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga., 109 FLRR-1 79 (2009).

Factors to consider in determining whether language exceeds the bounds of protected status:

  • Does the union have a legitimate concern?
  • Was the workplace disrupted?
  • Who provoked the incident, supervisor or union rep?
  • Was the outburst spontaneous?
  • How extensive (and loud) was the profanity?
  • Who else overheard the exchange?

Defense Mapping Agency, 85 FLRR 1-1018 (1985).

There’s a different standard for acceptable conduct among employees and union reps engaging in union activity. The bottom line is, if the rude and disrespectful behavior occurs during representational duties, unless it’s racist or sexist, it’s probably protected and you can’t stop it from occurring. It’s unfortunate you’re dealing with such a tumultuous situation, but legally there is no recourse.

Good luck and keep your head down. [email protected]

How to Measure the Unmeasurable

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By William Wiley, May 1, 2018

Here’s a question that sometimes comes up in one of our performance management seminars:

How do I hold an employee accountable through the performance management process for performance expectations like respectfulness, professionalism, or team work? I know them when I see them, but I don’t know how to evaluate things like this.

Ah, life. If there was just some machine we could press against an employee’s forehead and get readings on things like this: “Wiley, you’re reading out at a 3.2 this morning on respectful attitude. Better work on that. And drop back by the office on the way home so I can take a close out reading for the day. Performance management is very important in our office.” Hey, Mark Zuckerberg. If you’re looking for something new to invent now that they’re closing down Facebook, maybe work on an Attitude-o-Meter.

Until we get some high-tech equipment involved, we’ll have to rely on another approach. And here it is.

When trying to hold an employee accountable for something difficult to measure – like “professionalism” – ask yourself, “How do I know when the employee is acting professionally?” In other words, what behaviors do you see (hear, smell, taste, or feel) that say to you that the employee is acting professionally? Does he participate in controversial meetings respectfully and cooperatively? Does he dress at a level commensurate with his job assignments? Is he on time for appointments and prepared for discussions? If these say “professional” to you, then you now have something you can observe. And if you can observe, you can count. And if you can count, you can hold the employee accountable (that’s why the word “count” is right in the middle of the word “accountable”).

Once you have the concept down, here’s how to use it. Let’s say you have a team supervisor who you want to hold accountable for demonstrating leadership skills. And then let’s say that you think an important demonstration of effective leadership is that each member of a team knows what the top three priorities are of the organization at any moment because priorities change so frequently. If you have an employee who you conclude is performing at the Unacceptable level of the Leadership critical element, you initiate a 30-day PIP with the following expectation:

Unacceptable Level: On two or more occasions during the PIP, a team member is unable to identify the top three priorities of the organization due to your failure to inform the team member of the most recent priorities.

Or, perhaps you believe that meeting participation is an indicator of “Professionalism.” You set the 30-day PIP firm benchmark of performance expectation like this:

Acceptable Level:  No more than one incident of failing to attend a meeting in any 30-day period.

Then, you count. When it comes to defending an unacceptable performance removal, numbers are not essential, but they are very helpful. So, take all those subjective (but important) concepts, convert them to behaviors, and then count them. Rather than saying “occasionally,” “usually,” or “sometimes,” set the expectations for the PIP at one-sies, two-sies, or three-sies. A judge might want to argue with you as to what constitutes “pro-active,” but it’s much harder for the judge to argue numbers.

[email protected]

Firing a Leaker

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By William Wiley, April 24, 2018

Civil service law issues seem to be all over the media these days: negotiating a tough union contract at Education, easing the firing rules at DVA, Hatch Act violations on the White House lawn. Things that used to be known only to those of us inside the business are now being discussed round-table on CNN. For once, we Federal employment law practitioners actually have a seat at the table.

But we don’t always get invited to dinner. Although our business is more frequently reported in the media, it’s not always accurately reported. Sometimes an article will be published that describes part of a situation, but fails to give a complete picture because someone didn’t understand civil service law. And that hurts us all. Such limited coverage by the media can leave the wrong impression in the mind of the reader.

Take, for example, an A-2 article published in the Washington Post on April 5: “Education chief Betsy DeVos asked whether leakers could be prosecuted,” subtitled “Internal report says lack of clear rules makes criminal charges difficult.”

Look, I never claim to be a criminal lawyer. Heck, I hardly claim to be a lawyer at all on most occasions. But I do seem to remember that criminal prosecutions are based on violations of law, not violations of agency rules. Violations of agency rules can result in administrative sanctions (e.g., firing). If an agency has a rule that an employee is supposed to be at his desk by 8:00, the employee receives an administrative sanction (e.g., Reprimand) when he reports to work late. He does not go to jail.

Of course, some agency rules are based directly on federal law. When that happens, the employee can be both criminally prosecuted and administratively sanctioned for a single incident. But those are two different procedures, based on two separate theories and two different burdens of proof (beyond a reasonable doubt vs. a preponderance of the evidence). So before I even start reading the article, the subtitle gives me pause.

Once into the body of the article, I see that it’s about a referral that senior leadership of the agency made to its OIG. The question presented by the referral appears to be whether there could be criminal sanctions for an employee who leaks information to the press about internal budget matters. The OIG response was reported as being that there would be challenges to criminal prosecution or taking significant administrative action against an employee-leaker because the agency has little written policy on how such information is handled.

Well, that’s not completely accurate.

First, we have to divide that answer into two separate sub-responses: criminal prosecution and administrative sanction. Indeed, there may be a significant challenge to a criminal prosecution. We need to find a law that is somehow dependent on the existence of an effectuating agency policy. As I claim no mastery of criminal law, I can’t say whether such a statute exists. However, I do know enough criminal law to acknowledge that the burden of proof in a criminal prosecution is the highest we have: beyond a reasonable doubt. So, indeed, perhaps there is a significant challenge related to leakers regarding criminal prosecution.

Not so for the other half of the response, that it would be challenging to take a significant administrative sanction against a leaker if there are no written policies. I may not know criminal law, but my middle name is “Significant-Administrative-Sanction.” And it is this part of the response that stops short of where it should have gone.

It is fundamental to disciplining a federal employee that there be a rule in place. That’s because we define misconduct as violation of a rule. Rules can come from written agency policy, guidance, and instructions. However, it is not a REQUIREMENT that the rule be memorialized in writing. An enforceable rule can be as simple as a supervisor saying to the employee, “Lock the office door when you leave.” We don’t need a door-locking written policy to sanction (e.g. discipline) an employee who subsequently leaves the door unlocked. Therefore, that part of the OIG response as it was reported in the Post that suggests that the defense of an administrative sanction is weakened because there is no written policy regarding leaking, is off the mark. Yes, we might like to have a written policy, but we certainly don’t need a written policy to sanction a leaker. If he has been told orally or informally in writing to keep the budget information private, and he discloses it to the press anyway, he can be disciplined just as severely as if the agency’s no-leak policy was posted on every official bulletin board.

Separately, it is well-established that an agency can enforce rules that it may never have told the employee about, but the employee should have known them anyway. These are sometimes known as “common sense” rules. As Deb often speaks about in our seminars, an employee who strips down naked at work can be disciplined even if the agency does not have a “Mandatory Clothing” policy on the books. It’s just common sense that you can’t do that.

As for what constitutes a common-sense rule in the situation in the Post’s article, we are fortunate to have a court decision squarely on point. About a dozen years ago, the Department of Interior fired an SES manager because that manager disclosed internal budget information to a Post reporter. In appeal of her removal, she argued that she could not be fired for doing something that no one ever told her not to do; i.e., there was no written agency policy nor oral instruction to her not to disclose that sort of information. In rejecting that argument, the court said, “Oh, give me a break. You were a senior manager of the agency. You should have known that disclosing internal budget deliberations was a no-no and that you should keep your sweet mouth shut.” Of course, the court said it more delicately than that, but you get the point. Chambers v. Interior, 515 F.3d 1362 (Fed. Cir. 2008).

So, we have two approaches to a Significant Administrative Action that do not depend on whether there is a written agency policy regarding the handling of budget information. A more fulsome response should have covered these options and noted that a Significant Administrative Sanction need be supported by only a preponderance of the evidence, thereby easier to support than a criminal prosecution.

And, I’m not finished criticizing.

The unauthorized release of internal budget information could quite possibly be related to a critical element in an employee’s performance plan. Find out who leaked the budget information to the press, conclude that such action warranted an Unacceptable rating on a single critical element, and the agency can initiate a PIP, an opportunity for the employee to demonstrate whether the leaker can go a whole year without again performing Unacceptably. If he fails, he can be fired for that future unacceptable performance event; e.g., the next leak. And that removal doesn’t even need to be supported by a preponderance of the evidence. Substantial evidence will do, a mere grain more than a scintilla, the lowest proof burden of all:

To sustain an action based on substantial evidence, there must be “more than a mere scintilla of evidence,” but a quantum “less than the weight of evidence” is all that is required. See Jones v. Department of Health & Human Services, 834 F.3d 1361, 1366 (Fed. Cir. 2016).

I have the greatest respect for OIG offices throughout government. The work they do is hard and sometimes underappreciated. And we never really know what has happened in this situation by reading a single article published in the media. At the same time, the principles above are well-established in civil service law, and learned by every attorney and HR specialist tested and certified through participation in the FELTG MSPB Law Week seminar.

Learn the law. Work hard to tell managers how to do something rather than why not to do something. We’re going to lose our civil service if we don’t do the best job possible when it comes to employee accountability.

Do this, and I promise not to try to practice criminal law. [email protected]

A Hidden-in-Plain-Sight Management Tool: Reassignment

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By Deborah Hopkins, April 18, 2018

Reassignment is a management tool that often goes under-utilized in the federal civil service. Some people think it only applies to reasonable accommodation cases; others believe that it’s a way to punish bad employees. Bill and I had quite a lively discussion during MSPB Law Week last month (you can join us for the next round, in Denver June 4-8), so I thought I’d use this newsletter as a way to share some questions and answers that came up in class.

Question: What exactly is reassignment?

Answer: Reassignment is a permanent transfer of an employee to another job in the agency, anywhere in the world, to a job at the same grade level.  If you like fancy legal words, here’s the language about reassignment out of 5 CFR 210.102(b)(12): “A change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion.” This may include changes in pay based on locality, and it may include a different job series.

Question: When can a supervisor unilaterally and legally reassign an employee?

Answer: Basically, whenever she wants to – if she has a reason to.

Federal supervisors have authority under 5 USC 7106 to run the government and determine the day-to-day operations of the federal agencies in which they work. This includes hiring people, assigning work, directing employees how and where to work, and reassigning employees. 5 CFR 335.102.

If a supervisor has a legitimate, business-based reason for reassignment, then the supervisor can order the employee, with appropriate notice, to another job in the agency, anywhere in the world. Note: When an agency reassigns an employee outside her commuting area, that employee will generally get reimbursed for moving expenses.

One of the very first cases after the MSPB was founded tells us that the only limitation on a supervisor’s decision to reassign is that the reason is “bona fide and based upon legitimate management considerations in the interest of the service.” Ketterer v. USDA, 2 MSPB 459 (1980). Even better, once it is established that the reassignment was a proper business decision, the MSPB will not review the underlying reasons why management exercised its discretion in directing the reassignment. Id.

Reassignment is not limited to use only after an employee fails a PIP. It can be directed at any time, for any bona fide reason.

Question: So, a supervisor can reassign a really bad employee, or a really good employee?

Answer: You betcha. You can reassign your best employee to another office because you need the best employee you’ve got in that position, or you can reassign your worst employee to another job because she isn’t cutting it in her current place and you think she may do better elsewhere.

Either way, you have a bona fide reason. Pretty cool, huh?

Question: Is reassignment an entitlement?

Answer: No, unless your union contract says so (this is rare), or unless the reassignment is being used as a disability accommodation.

Question: What if the employee doesn’t want to be reassigned?

Answer: Too bad. He has to go, if you tell him to. In fact, removal is warranted for an employee who refuses to accept a directed reassignment. Foundational MSPB case law backs up the stance that removal is not “unreasonably harsh” for a refusal to go where he is ordered. Nalbandian v. DOI, 25 MSPR 691 (1985).

Here’s a bonus, too: to justify a removal, you don’t have to do Douglas factors if you charge Failure to Accept a Directed Reassignment. Instead, you just need to apply the two-prong test from Ketterer, above: (1) Show your bona fide reason for the management-directed reassignment, and (2) Show that removal will promote the efficiency of the service. Your burden in this disciplinary action is a preponderance of the evidence (unless you’re in the VA, in which case it’s a lower burden of substantial evidence).

Question: Can union contracts limit reassignment authority?

Answer: A collective bargaining agreement cannot prohibit management-directed reassignment, but it may dictate how the reassignment is implemented; for example, it may require the agency give the employee 120 days’ notice.

Question: Can an employee challenge a reassignment?

Answer: Yes, he can. Here are the various routes to challenge a management-directed reassignment:

  • Administrative grievance procedure
  • Negotiated grievance procedure, if he’s in the union
  • EEO complaint, if he thinks the reassignment was motivated by his protected class
  • Office of Special Counsel, if he thinks the reassignment was motivated by the fact that he’s a whistleblower
    • MSPB Individual Right of Action appeal, if OSC declines to investigate

Question: What about reassignment as reasonable accommodation?

Answer: Due to space restrictions, let’s tackle that in another article. See elsewhere in this newsletter for the article Reassignment as the Accommodation of Last Resort. [email protected]

Affirmative Defenses: Making the Complainant Whole

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By Meghan Droste, April 18, 2018

In the era of the #MeToo and #TimesUp movements, there has been a lot of discussion of what constitutes harassment, what we are no longer willing to tolerate or excuse, and who is experiencing harassment.  To a certain extent, we have also started discussing what should happen once an allegation is raised, but most of those conversations have centered around very prominent men either losing or quitting their jobs.  That can’t be the end of the conversation.  We need to continue talking about what employers are obligated to do once they learn that someone has been harassing a subordinate or a coworker.  From an agency’s perspective, this conversation is essential not only to ensuring that the victim of the harassment can go back to focusing on her work instead of being harassed, but also so the agency can ensure it has done everything it is required to by law.

In 1998, the Supreme Court decided a pair of cases—Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton—in which it addressed the concepts of vicarious and strict liability.  In these cases, the Court examined when an employer may be strictly liable for harassment by a supervisor, and when it may avoid liability by putting forward affirmative defenses.  The takeaway from these cases is that an agency will be strictly liable for supervisory harassment if the supervisor takes a tangible employment action (e.g. firing or demoting the employee).  If, however, the harassment stops short of a tangible employment action, the agency may avoid liability if it can show that it took prompt and effective corrective action as soon as it became aware of the harassment, or if the employee unreasonably failed to take advantage of a published reporting procedure.

All of this of course invites the question of what constitutes prompt and effective corrective action?  What must an agency do to take advantage of this affirmative defense?  The Commission recently addressed this in Jenna P. v. Department of Veterans Affairs, EEOC App. No. 0120150825 (March 9, 2018).  As the Commission explains, the complainant’s first line supervisor (“S1”) sexually harassed her for several months.  What began with comments about the complainant’s appearance and clothing quickly escalated to S1 asking the complainant to have sex with him and another management official.  S1 also exposed himself to the complainant several times and groped her on more than one occasion.  After more than seven months of harassment, the complainant’s fiancé, who was also an agency employee, reported the harassment to his supervisor.  Immediately after the report, the complainant’s second-line supervisor (“S2”) placed S1 on administrative leave pending an investigation.  Within two days of the report, S2 assumed direct supervision of all employees previously under S1, granted the complainant indefinite telework, and arranged for harassment training for all management officials.  S2 also met with S1 and then later that day accepted S1’s voluntary resignation.

As I started to read the Commission’s decision my first thought was how the agency appeared to do the right thing.  So often we see cases that make it to OFO because the agency fails to take the complaint seriously or takes corrective actions that only serve to punish the complainant rather than the harasser.  In Jenna P., the agency tried.  Unfortunately, it didn’t quite do everything it needed to do.  The complainant filed a formal complaint regarding the harassment as well as a subsequent delay in her career ladder promotion.  After the complainant withdrew her request for hearing, the agency issued a Final Agency Decision.  In it, the agency concluded that it was not liable for the harassment.  The agency relied on the steps S2 took immediately after he learned of the harassment and S1’s resignation, which prevented the agency from taking any further action against him.  In reviewing the complainant’s appeal, the Commission found that although the agency had taken several steps to address the harassment, it failed to make the complainant whole.  As a result of the harassment, the complainant had used sick leave and annual leave; the agency had not restored the leave or provided the complainant with the appropriate back pay.  The Commission concluded that because the agency had not made the complainant whole, it could not avail itself of the affirmative defense.  The agency therefore was liable for the harm the months of sexual harassment caused, even though the harassment did not include a tangible employment action and the agency was not aware of it until the very end.

This case is a good reminder to all of us that agencies are “under an obligation to do ‘whatever is necessary’ to end harassment, to make a victim whole, and to prevent the misconduct from recurring.”  As we continue to discuss how we can prevent and stop harassment, we also need to focus on what we must do to undo the significant harm that so often follows. [email protected]

Here’s How Not to Fix the Civil Service

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By William Wiley, April 18, 2018

Consider this hypothetical. Wife gets home one night and says to Hubby, “Honey, the car is broken.” Hubby, being something of a shade tree mechanic, jumps from his Barcalounger and heads for the garage. First, he replaces the car battery. Then, he tunes the engine. Finally, he replaces the fuel pump because he knows that this particular model of automobile often has fuel pump problems. Proudly, he tells Wife about all the good things that he has done to fix the car. And that’s when Wife says, “But Honey, the problem is the rear axle is busted.”

The approach that Hubby took, attempting to fix something before identifying what is wrong, is exactly what Congress is doing relative to improving our ability to hold employees accountable within the civil service. Our leaders have already extended the probationary period in DoD from one year to two and are considering a similar extension for the entire executive branch. Separately, the President recently signed a bill into law that applies only to the Department of Veterans Affairs (DVA) that reduces the evidence burden in misconduct removals from preponderance to substantial, shortens the notice and appeals periods so that removals move a bit more quickly through the system, and takes away the authority for judges and arbitrators to mitigate removals to some lesser penalty if a removal is seen as too severe. And finally, Congress has taken away most of the authority for an agency to offer an employee administrative leave in exchange for the employee quitting without the agency having to defend a removal through the litigation process.

Yet, I see no evidence that our leaders have taken the time to check the rear axle before making these changes. Personally, I’ve run into few situations in which a longer probationary period would make a significant difference in our ability to hold individuals accountable. Shortening the notice and appeal periods mostly disadvantages the slower employee who can’t get his act together to defend himself. Otherwise, that’s not of much help, either. We still have to defend the agency’s removal no matter how fast or slow the employee is in filing an appeal.

What our leaders should be doing is looking at situations in which agencies have a problem holding employees accountable, identifying the bumps in the road, then passing legislation to smooth out those bumps, to whatever degree Congress wants them smoothed. Since the folks on The Hill seem to be too busy right now to do this sort of background work, here at FELTG we’ll show them how it’s done, in case they ever get a little spare time. While Congress may prefer the “Fire, Ready, Aim!” approach, we’re big believers in “Ready, Aim, Fire!” when it comes to changing the civil service.

Here’s a somewhat typical case with a mid-level of complexity that might give us some ideas as to what is wrong with the civil service accountability system. The agency fired the employee based on three charges:

A. Failure to perform duties, 11 specifications.
B. Failure to perform supervisory duties, 5 specifications.
C. Failure to perform duties in a timely manner, 1 specification.

As a removal is an adverse action appealable to the US Merit Systems Protection Board, the employee appealed and received a decision from an MSPB administrative judge. The judge held:

A. Failure to perform duties, 11 specifications.
• Judge: Sustained 1, dismissed 10 specifications.
B. Failure to perform supervisory duties, 5 specifications.
• Judge: Sustained 0, dismissed all 5 specifications and thereby the charge.
C. Failure to perform duties in a timely manner, 1 specification.
• Judge: Sustained the 1 specification.

Given that the judge sustained only 2 of the original 3 charges, and only 2 of the original 17 specifications, he found removal to be too severe and mitigated the termination to a demotion.

On subsequent appeal to the three Presidentially-appointed Board members, the Board agreed with the judge: two out of three charges affirmed, and mitigation of the removal to a demotion.

On subsequent appeal to the Federal Circuit Court of Appeals, the court affirmed only one of the two charges sustained by the Board. Therefore, it remanded the case to the Board to reconsider an appropriate penalty. There, the case will rest indefinitely because the Board now lacks enough members to issue decisions due to two unfilled member vacancies. Mott v. DVA, No. 2017-1222 (January 26, 2018).

Let’s dissect the decisions made in this case and see if we can pick up any hints as to what’s wrong with the civil service accountability system.

1. The length of time involved here and the expense to the government and the employee to get a resolution of this matter is horrendous. The employee was fired in November 2013. As of today, the eventual resolution of the case remains undecided for over four years, with it likely being a total of FIVE YEARS before a reconstituted Board is able to issue a final decision. Geez, Louise. It takes only three years to get through law school. In the early 16th century, Magellan circumnavigated the globe in three and a half years. World War II ended with fewer than four years of United States involvement. Who could possibly argue that in comparison, it makes sense to take longer to resolve a civil service dispute?

2. The employee was removed in November 2013. Without holding a hearing, the judge ordered her restored to a lower-grade by his initial decision in April 2016. When I was Chief Counsel to the Chairman at MSPB, judges had to issue decisions within 120 days, including any time it took to hold a hearing. Why did this no-hearing case sit with the judge for over TWO YEARS? I’ve reviewed tens of thousands of judge’s decisions in my career, and I can find nothing in this one that explains the excessive length of the delay.

3. Of the 11 specifications brought under Charge A, 7 required the employee to meet a performance standard of at least 85% utilization. The agency’s evidence shows that she actually performed at the 91% utilization level. Congress recently changed the law so that DVA needs only substantial proof level to prove a charge, not the higher-level of a preponderance of the evidence. In this case, the proof is at the ZERO level. It does no good to lower a standard if the agency cannot produce ANY evidence at all.

4. The other three Charge A specifications that were not sustained by the judge were based on a similar finding, that the agency produced ZERO evidence to support the specifications. Folks, this is not a careful balancing of “some evidence goes this way and other evidence goes that way.” If it were, DVA would benefit from the lower burden of substantial evidence. However, when there is NO PROOF to support a specification, a lower substantial-evidence burden is irrelevant.

5. Regarding the five specifications the agency put forward to support Charge B, two of them did not make it beyond a telephonic status conference. That’s how badly they were framed; they were so non-specific that they violated due process. Woof. DVA sends some of its best and brightest practitioners to our FELTG training programs where we teach that specificity in charges is absolutely essential. What happened here? Are you guys letting non-FELTG-certified practitioners draft proposed removals? Law changes aren’t going to help that.

6. Two other Charge B specifications failed because even though the misconduct was described in the proposal notice, no witness testified to support the incident, nor did agency counsel argue the specifications in closing brief. That’s ZERO evidence if you’re counting. If you have been certified by FELTG to practice MSPB law, you might remember our “colorful bubbles” diagram. We use colorful bubbles to demonstrate graphically that the agency probably will lose if its arguments and evidence change as the action moves through the redress process. Here, the evidence and arguments changed between the proposal/decision notices and the case before the judge. This is a classic mistake not likely to be made by FELTG-certified practitioners.

7. In another Charge B specification, the agency alleged that the employee had a poor relationship with a subordinate. Again, the judge found that the agency presented ZERO evidence to support this claim.

8. The employee was fired from a GS-7 position. The judge ordered her restored (on an interim basis, pending the eventual outcome of her appeal) to a lower graded position, something less than a GS-7. Yet today, a web search shows someone with the appellant’s name at her original work location holding a GS-9 position. So, we are continuing to fight about …?

9. There are three steps in our civil service redress and accountability system if a removal is
involved:

I. Judge’s decision
II. Board’s decision
III. Court’s decision

In this case, the employee was successful at Step I. Two years ago, the judge ordered her restored to employment, albeit at a lower grade level than the level from which she was fired. However, the employee believed the mitigated demotion also to be unwarranted, so she (not DVA) pressed forward to Step II the Board, and Step III the Court (and now back to the Board), attempting to have the demotion reduced to some lesser penalty or set aside altogether. Of course, that is her right to challenge a penalty she believes to be too severe. But consider the taxpayer cost of this continued litigation.

10. The judge in this case is highly respected. By my reckoning, he is the most senior judge at MSPB today. He’s been a Board administrative judge for more than 30 years. Yet, the court found that he had made a freshman’s mistake when deciding the case (considering evidence outside of the record, aka “extra-record” evidence). If we have a civil service accountability oversight system so complex that even this judge might make a critical error, something indeed is wrong with the program.

These ten items alone give us focus regarding changes that need to be made, and changes that have little value. For example, most of the statutory changes being considered on The Hill today that would expand the DVA new procedures to the rest of the executive branch will do us little good. Lowering the burden of proof from preponderance to substantial is useless if an agency presents no evidence at all to support a charge. Shortening the notice period and the appeal timelines does not help if the employee manages to file an appeal anyway. Extending the probationary period from one to two years is irrelevant to firing a longer-term career employee as was the case here.

The only worthwhile change currently in place at DVA and potentially in play for the rest of the agencies is the abolishment of the Board’s authority to reduce a penalty. Without mitigation authority in this case, once we have a single specification being upheld (with the court’s decision, we are now down to 1 out of 17 specifications), we are done. This removal would have been upheld by the judge (who affirmed 2 of 17 specifications), and there would be no court remand because there would be no need for MSPB to reconsider the penalty given that a specification failed due to judge error. That is a HUGE benefit to the agency.

If you believe that an agency should be able to fire a 15-year civil servant with no prior discipline because she failed to comply with a single supervisory instruction, you should be dancing in the streets. If you believe that our civil servants deserve a higher degree of protection, you are in for a big disappointment once the DVA procedures are enacted for your agency. The world, she is changing.

Speaking of changing, check this out. The court’s Mott decision has dropped a little bomb in our business of civil service law. Here are the well-established principles at issue:

  • •Bad employees can be fired for either unacceptable performance or misconduct.
  • If fired for misconduct, the agency’s burden of proof is “preponderance.” 5 CFR 1201.56(b)(1)(ii). The procedures are found at 5 USC Chapter 75.
  • If fired for poor performance, the agency’s burden of proof is “substantial.” 5 CFR 1201.56(b)(1)(i). The procedures are found at 5 USC Chapter 43.
  • An agency is free to take a performance-based removal using the procedures found at 5 USC Chapter 75. When doing so, it is bound to the “preponderance” burden of proof. Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985).

In this case, DVA chose to take the Lovshin approach with the employee, invoking 5 USC Chapter 75 procedures to fire the employee for bad performance. The judge and the Board adjudicated the decision as a Chapter 75 removal. However, here’s a direct quote from the Federal Circuit’s decision:

The VA bears the burden of proving its charge in an action based on unacceptable performance by substantial evidence. See 5 CFR 1201.56(b)(1)(i) (2015).

Oh, lordy. Where did this rule come from? Is the court trying to tell us that we need only substantial evidence if we use Chapter 75 for a performance removal? They’ve certainly never said that before. Or, is this law so confusing that the United States Court of Appeals for the Federal Circuit simply misread the facts of the case and applied the wrong statute? And their fact-checkers did not catch it before issuing the decision? Neither answer is a good answer, no matter which one is correct. They both tell us the accountability oversight procedures for the civil service need some serious tweaking to make them more usable while still being fair to the employee.

We’ve said it before here at FELTG, and we’ll say it again. What Congress needs to do is get together the smartest, most experienced people it can find who know the federal workforce. Lock them in a room, stock the place with Red Bull and pizza, and don’t let them see the light of day until they come up with a comprehensive, soup-to-nuts, reform plan for the civil service. Require this group to base their recommendations on facts, not speculation. Reconsider the philosophy of just how much protection federal workers really need balanced against the needs of agency management to run the place. Check to make certain that it is the back axel that needs repair, and don’t mess around with anything else. Do this and America will be a greater country for the effort. [email protected]

Reassignment as the Accommodation of Last Resort

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By Deborah Hopkins, April 18, 2018

Elsewhere in this newsletter, I discussed some of the questions that come up about management-directed reassignment for business-related reasons. We also often get questions about reassignment as reasonable accommodation (RA) for disabilities, so let’s tackle that topic here.

Question: Is reassignment an entitlement?

Answer: Yes, if all other accommodation options have been exhausted. Reassignment is designated as a type of reasonable accommodation under the Americans with Disabilities Act. Under 29 CFR 1630.2, reassignment is a legal obligation if the agency cannot make minor job modifications or otherwise find an accommodation that will allow the employee with a disability to perform the essential functions of her position without causing an undue hardship on agency operations. Reassignment is referred to as the accommodation of last resort, a final opportunity for the individual to retain employment.

Question: What counts as reassignment for RA purposes?

Answer: Reassignment is a non-competitive, permanent transfer of the employee to a vacant, funded job at the same grade level in the agency. The individual must be qualified for that position, both in terms of “on paper” (education, work experience, etc.) and as a practical matter (able to perform the essential functions of the job with or without accommodation). 29 CFR 1630, Appendix. There is no obligation that the agency search for a higher-graded position for reassignment, see Foley v. Transportation, EEOC No. 0120090235 (February 6, 2009), or that the agency should create a position for the employee, see Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997).

Question: Does the employee get to choose which position he prefers?

Answer: If there are multiple reassignment positions for which the employee is qualified, the agency should defer to the employee’s choice of position. We know that the agency gets to choose the accommodation, as long as it’s effective. See Birdie C. v. VA, EEOC No. 0120150115 (February 28, 2017). We know from the case law that if an employee identifies a vacant reassignment position, the agency is required to consider that, see Bowers v. DSS, EEOC No. 0720070012 (March 22, 2010). And when it comes down to two or more vacant positions to which the employee can be reassigned, I just don’t think an agency should want to pick a fight with the EEOC about which job the employee gets.

Question: What if there’s no position available at the employee’s grade?

Answer: The 29 CFR 1630 Appendix addresses this by stating the agency “may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation.”

Question: How many times does the agency have to look for a reassignment position?

Answer: Once is enough, if the search is thorough and reasonable. The key is that you have to be “reasonable.” One good-faith job search should be enough. If the agency has knowledge that a position will soon become vacant, though, the agency should reassign the individual once the job is open. 29 CFR 1614, Appendix. Also, if the employee is aware of a position to which she can be reassigned, and she is qualified, her proposal should be considered.

Question: What if the employee refuses to accept a reassignment?

Answer: If the employee refuses to accept a reassignment, and no other reassignments are available, the employee has ended the agency’s obligation in the RA process and may be removed for medical inability to perform or a similar non-disciplinary charge. See Clemens v. Army, EEOC No. 0320070044 (March 29, 2007).

Question: What if there are no reassignment positions available anywhere in the agency?

Answer: If no positions are available for which the employee is qualified, then the agency is free to remove the employee. See Acosta v. VA, EEOC No. 0320100028 (July 20, 2010).

Hope this answers some questions you may not have even known you had. [email protected]