Room for Improvement at MSPB

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By William Wiley, May 16, 2018

As many of you readers know, MSPB has been under a heavy workload for many years, with decisions sometimes taking too many months (and even years) to get out. We’ve written in this space before as to how the Board could streamline its final Opinions and Orders. Today we take a look at a typical administrative judge’s Initial Decision, one that could benefit from some trimming and focus.

First, you might want to read the initial decision: Avila v. Agriculture, MSPB No. SF-0752-17-0488-I-1 (February 26, 2018).  If you do, you’ll find that it took the judge 24 substantive pages to do what we’ve done below in two. You’ll find some paragraphs in the decision to be over two pages long, with all kinds of extraneous information thrown in; e.g., the color of the trellises on which the marijuana plants were growing, the cost of the overflights, and the suggestion that a “criminal disruption” had been contemplated. Most distractingly, you’ll have to get to page nine before the judge bothers to tell you what the charge is.

Lengthy decisions like this take a lot of time to write and review on appeal. By cutting to the chase, the Board’s judges could save time, get these things issued more expediently, and still provide the appellant fair treatment. As importantly, it helps us all capture the big issues without being distracted. For example, in the original decision, you’ll see a lot of grand citations to grand principles of law, and a reasonable conclusion. However, what you’ll find missing is an analysis of the gravamen of the appellant’s argument: should she be held responsible for marijuana in her home if it was not her marijuana? Focused writing might have surfaced that issue for resolution.

So, here’s our FELTG Initial Decision, if we were in charge of how these things are written:

On May 12, 2017, the Forest Service removed Catherine A. Avila (appellant) from her position as Forestry Technician, GS-462-9 based on a single charge of “Conduct Unbecoming a Federal Employee.” The specification on which this charge was based describes the uncontested fact that marijuana was being grown on her property.  This appeal followed her removal. As explained below, I AFFIRM the removal.

ANALYSIS AND FINDINGS

Significant among the appellant’s duties was the requirement to work independently enforcing federal laws and regulations relative to the forest in which she worked. On April 29, 2015, Forest Supervisor Carlson issued a written reminder to the appellant and others that the possession of marijuana is illegal under federal law, and that law applies to all Forest Service employees regardless of contrary state laws. Subsequently, on July 19, 2016, Special Agent Mayo observed about a dozen marijuana plants in the backyard of the appellant’s home. In August 2016, Carlson again reminded employees that Forest Service employees cannot grow marijuana at home even if the employee’s spouse has a medical marijuana prescription. Subsequently, on September 27, 2017, Special Agent Mayo again observed about a dozen marijuana plants growing in the appellant’s backyard.

Following the second observation, an agency investigator questioned the appellant. In this interview, the appellant admitted:

  • She jointly owned the home in which she lived with her husband.
  • She knew that marijuana was being grown there.
  • People came to her home to purchase marijuana.
  • Her husband processed the marijuana in their home and transported it in their shared car.
  • The money from the sale of the marijuana was kept in the home.

Throughout the interview, the appellant asserted that the marijuana was not hers, but her husband’s. At hearing, the appellant attempted to recant part of her statement, asserting that she did not know whether there was marijuana was on her property or how her husband transported it. I find the appellant’s hearing testimony to be wholly unpersuasive and improbable. Hillen v. Army, 35 MSPR 453 (1997). Therefore, I SUSTAIN the charge.

PENALTY

The appellant is known throughout the community as an employee of the Forest Service. Possession of marijuana at her home affects her status and reflects negatively on the agency. Her work requires her to work independently enforcing federal laws and regulations. The fact that she continued in her illegal activities after being warned twice demonstrates exceedingly poor judgment. She has been previously reprimanded and suspended. Her actions reflect that she does not have an appropriate sense of how federal law applies to her. Therefore, I conclude that the agency’s selection of the penalty of removal is reasonable.

AFFIRMATIVE DEFENSES

The appellant claims sex discrimination in that she was not offered the opportunity to enter into a Last Chance agreement as were three male coworkers. However, such differential treatment is justified in that none of the male coworkers had previously been disciplined. Separately, although the comparator male employees had been involved in marijuana-related offenses, none had engaged in the more serious aspects of the charge in this case of cultivation, distribution, and sale of marijuana from their homes. As the appellant has presented no other evidence of sex discrimination, I find she was not the subject of sex discrimination.

The appellant also claims age discrimination. However, as she has offered no evidence of such mistreatment, I find she has not proven that she was the subject of age discrimination.

The removal is AFFIRMED.

The very earliest Board decisions were very short; some just a page. Over the years, MSPB and its judges have added more and more legal and factual verbiage to decisions, without any commensurate benefit. If MSPB wants to be around another 40 years, perhaps it should consider going back to the writing style of the good old days. [email protected]

Final Agency WHAT?

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By Deborah Hopkins, May 16, 2018

Remember in grade school, learning about homonyms? In case you don’t remember, homonyms are words which sound alike or are spelled alike, but have different meanings. Think to, too, and two; or they’re, their and there. It’s not always a fatal error to use the wrong word, but it can make you look pretty silly.

Lots of terms that sound alike, but have different meanings, get used in our federal employment law world – and while people may be tempted to use these terms interchangeably, sometimes it’s a mistake to do so. Today, let’s clear up any potential confusion over these common EEO terms:

  • Final Agency Decision
  • Final Agency Order
  • Final Agency Determination
  • Final Agency Action

First up is the Final Agency Decision (FAD), which refers to a written decision on a complaint of discrimination that is made by the agency’s EEO Office, without a hearing before an Administrative Judge. The agency will issue findings based on the claims raised, and if discrimination is found, will issue a remedy. This may include agency decisions to dismiss claims, or agency decisions on the merits. A FAD is appealable, by the complainant, to the EEOC. Agencies are not permitted to appeal their own FADs (though some would like to!).

If complainant requests a FAD, fails to request a hearing, or files an untimely hearing request, the agency must issue Final Agency Decision within 60 days. 29 CFR § 1614.110(b).

On to the rest. EEOC Management Directive 110 clarifies these terms for us:

A Final Agency Order refers to a decision by an agency to implement or not implement an Administrative Judge’s decision, which is appealable to the Commission. That’s right, an agency can choose not to implement all – or any part – of an AJ’s decision if it disagrees with the finding, the amount of damages, or any other remedy therein. If the agency’s final order does not fully implement the AJ’s decision, the agency must simultaneously appeal to the Commission with its reasons explained.

A Final Agency Determination refers to an agency’s determination about whether there was a breach of a settlement agreement that is appealable to the Commission. For example, the agency may make a determination the complainant breached the settlement if, as part of the settlement the employee agreed to withdraw all pending EEO Complaints but then did not do so.

A Final Agency Action refers to an agency’s last and, unsurprisingly, final action on a complaint of employment discrimination. The final agency action may be in any of several forms:

  • a final agency decision,
  • a final agency order implementing an Administrative Judge’s decision, or
  • a final determination on a breach of settlement agreement claim.

Hope this helps curb some of the confusion around these similar, but non-interchangeable terms. [email protected]

He Said, She Said – But What Did They Say?

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By Meghan Droste, May 16, 2018

We all know people who are able to make a decision right away—they can pick what to order after a quick glance at a menu, they can buy the first item they see, and they can plan a vacation on the fly.  I am sure those people are lovely people; they are certainly lucky in my perspective.  But they are not me.  I will spend hours researching online before I buy something.  For an upcoming trip, I bought two guide books and a country-specific etiquette book, and I am working my way through them before making any plans.  I need a lot of information before I can make a decision.

The EEOC is at least somewhat like-minded.  Agencies are required to “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.”  See 29 C.F.R. § 1614.108(b).  This means that there must be enough information from which a reasonable factfinder can determine whether the agency violated the law.  See MD-110, Ch. 6, §IV(C).  Investigations may take different forms, but generally an agency must interview the relevant witnesses and collect the necessary documents.  The Commission’s recent decision in Mari R. v. U.S. Postal Service, EEOC App. No. 0120160377 (March 29, 2018), is a good example of why this is important.

In the Mari R. case, the complainant alleged that her first-line supervisor sexually harassed her over a period of at least three months.  The harassment included vulgar comments and sexual gestures.  The complainant testified that the union president warned her in advance that the supervisor had a history of sexually inappropriate behavior towards female employees.  She also testified that at least one other employee witnessed the supervisor’s remarks to her, and two other employees told her that the supervisor had increased the workload of the last female employee who turned down his sexual advances.  The supervisor denied the complainant’s allegations.

In its final agency decision, the agency concluded that the complainant did not prove that the agency had subjected her to discrimination.  On appeal, the Commission vacated the agency’s decision and remanded the complaint for a supplemental investigation.  The Commission noted that the investigator only interviewed the complainant, the responsible management officials, and other management witnesses.  The investigator failed to interview any of the six witnesses the complainant identified.  These employees either witnessed the supervisor’s comments and gestures towards the complainant or were previous victims of the supervisor.  There was no explanation for the decision not to interview the witnesses.  The Commission found that the investigator’s decision not to conduct these interviews “unfairly restricted [the complainant’s] ability to prove that she was subjected to discrimination . . .”  Without information from both sides, the Commission did not have enough information to determine whether the supervisor had actually acted as the complainant alleged.

Keep these lessons in mind as your agency investigates complaints, and make sure the factfinder has enough information to make an informed decision. [email protected]

[Wiley Note: The quality of agency investigations, or lack thereof, is becoming a bigger and bigger issue on appeal. The first case to hit us between the eyes was Whitmore v. Labor, 680 F.3d 1353 (Fed. Cir. 2012). If you attend our Workplace Investigations Week seminar, you’ll hear us talk about the mistake of using a biased investigator when investigating misconduct. More recently, in a 120-page initial decision, an MSPB administrative judge mitigated the removal of a highly-publicized employee (think 60 Minutes public) based in large part on perceived investigator inadequacies. Chen v. Commerce, CH-0752-17-0028-I-1, (April 23, 2018)(ID). If you are drifting along old-school, thinking that just about anybody who is upright and convenient is capable of conducting a workplace investigation that will withstand EEOC, MSPB, or federal court scrutiny, you absolutely must read these two decisions.]

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]