Tips from the Other Side, Part 4

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By Meghan Droste, April 18, 2018

I just returned from a three-day FELTG training program with a fantastic group of EEO counselors and officers at an agency in Atlanta.  The course focused on various types of EEO writing, including acceptance and dismissal letters.  During the class we had a great discussion about timeliness and when it is ok to dismiss a claim as untimely.  Although all of my students seemed to be on top of the various intricacies of determining timeliness, one area in which I have seen confusion is the timeliness of claims regarding the denial of reasonable accommodations.  Too often agencies improperly dismiss reasonable accommodation claims as untimely because they fail to consider the ongoing nature of a need for an accommodation.

In many federal courts, the denial of an accommodation is a discrete act—it happens on one specific day and the clock starts ticking as soon as the employer notifies the employee of the denial.  The Commission takes a different approach.  In its Compliance Manual, the Commission explains that “because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it.”  See EEOC Compliance Manual, Section 2, “Threshold Issues,” EEOC Notice 915.003 (July 21, 2005).  As a denial of an accommodation is a recurring violation, the Commission has repeatedly reversed dismissals of claims when agencies have treated the specific denials as discrete acts.

An employee does not need to request an accommodation every day or every time the accommodation is needed to establish a continuing violation.  It is enough for the employee to allege an ongoing need for the accommodation that continues after the denial.  For example, in

Hunter v. Social Security Administration, the complainant requested the agency purchase a space heater as an accommodation after it removed her personal heater because it was not compliant with the agency’s electrical requirements.  See EEOC App. No. 0720070053 (February 16, 2012).  The agency denied the request, but the complainant continued to need the heater to address the symptoms of multiple conditions.  The agency then dismissed the failure to accommodate claim as untimely because the complainant contacted a counselor more than 45 days after the agency denied the request.  The Commission reversed the agency’s dismissal, finding that because the complainant expressed an ongoing need for the heater to the EEO counselor, there was sufficient information in the record to establish a potential continuing violation.

As I reminded my students this week, no one wants to have a case remanded.  It doesn’t look good for the agency, it can be a waste of resources, and it negatively impacts the complainant who has to wait even longer for a decision on the merits of her claim.  When reviewing formal complaints and drafting acceptance letters, be sure to keep in mind the ongoing nature of requests for accommodation. If you want more on this join FELTG in Washington, DC May 8-10 for the class Writing for the Win: Legal Writing in Federal Sector EEO Cases. [email protected]

Another Reason They Want to Take Away the Civil Service

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By William Wiley, April 18, 2018

I hate this case.

Not because of the outcome, necessarily. No, it’s because of the path it took, a path open to every federal employee who believes his supervisor has mistreated him. As you read through the following, ask yourself: “If I was a policy maker, would I want the government’s time and money spent this way?”

  1. January 2000, the employee was demoted from the SES to a GS-15 for poor performance. Her supervisor had recommended the demotion and the agency’s Performance Review Board (PRB) for SESers agreed. Remember January 2000? We were all celebrating the millennium and waiting for our computers to crash because we were told that they could not count that high. If you had given birth to a child that month, he’d be heading off to college this year, breaking your heart and your bank account, all at the same time. The Clinton years were almost over (or so we thought).
  2. February 2000, the employee filed an EEO complaint alleging that the demotion was sex discrimination. Another SESer, a male, had also been recommended for demotion at the same time, but was not demoted because the PRB concluded that he was not informed of a critical element of his position.
  3. February 2007 (keep up here, folks; these dates can be withering), the agency concluded its internal investigation and issued a “final agency decision” upholding the demotion. Remember that kid you had back in 2000? He’s in the second grade. After this, the employee appealed the agency’s decision to EEOC.
  4. August 2013, the employee’s case went to a jury in a federal district court and your son or daughter has entered the Terrible Teens. It’s not clear to me what happened between her filing with EEOC and her going to federal court, but one way or the other, she got there. The jury found the agency to be liable for sex discrimination, reasoning that its evidence that it would have demoted the employee even if she were a man was not persuasive. The jury awarded her $100,000 in damages plus a retroactive promotion back into the SES, with what I assume would be accompanied by back pay with interest and attorney’s fees and costs.
  5. January 2018, the district court judge denied the agency’s motion to set aside the jury’s verdict as a matter of law, thereby affirming the jury’s finding of sex discrimination. That might be good information for your now-adult child as he or she heads off to the university, to give her a good reason get a degree in civil rights law.

According to the court, there were two grounds on which the jury appears to have disbelieved the agency’s evidence:

  • The employee had rebuttable argument for each performance deficiency the agency identified. The jury was free to believe either the employee or the agency.
  • Remember that male member of the SES who was recommended for demotion at the same time as the employee, but who was not demoted because the PRB believed his argument that he was unaware which of his performance elements was critical rather than non-critical (a legally significant distinction)? The jury was free not to believe him.

For what it’s worth, there still are two remaining levels of review of this case in federal court: the DC Circuit Court of Appeals and the US Supreme Court. If the agency and DoJ choose to press this case forward, we may have even more decisions to consider.

Ignoring that possibility for a moment, just consider what you see above. Without taking any position on the righteousness or wrongness of the sex-discrimination outcome, is this really how we want our government to work? The fundamental issue here was the routine evaluation of this individual’s performance. As an SESer, one would imagine that there’s a relatively high degree of subjectivity in the performance of a senior manager at that level. Before the case got to a jury, think of all the government officials who were involved in making the decision that the demotion was warranted: at the employing agency, at EEOC, and at DoJ. Think of the different types of individuals involved in reaffirming the demotion: senior line managers, coworkers at the SES level (PRB), perhaps political appointees, attorneys, civil rights specialists. Were all those people wrong about this case?

Well, according to the jury, yes. Banks v. Agriculture, U.S. District Court, District of Columbia, 07-cv-01807 (APM) (February 22, 2018).

If the jury is correct, that this lady was mistreated because of her sex, I feel terrible for her. Not only is that simply unjust in our society, it also breaks federal laws in place since at least 1964. At the same time, I feel terrible for our civil service system, that decisions like this – right or wrong – have to go through 18 years of review to get even close to closure.

Congress is so fed up with drawn-out outcomes like this that some members are considering abolishing the civil service protections altogether. Maybe employment at-will should be the new way we try to run an efficient government. At the beginning of this article, we asked you to think of yourself as a policy maker for a moment. If you actually could make a policy to replace the one that allowed the above to happen, what would it be?

Operators are standing by: 202-456-1111. [email protected]

We Bet You Never Thought of Doing This Simple Thing

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By William Wiley, April 10, 2018

Last week, we encouraged you to think outside the box a bit when it comes to a non-disciplinary removal. We described how HHS has come up with an option called a Terminal Detail. Instead of initiating a removal action, in the right situation the supervisor will offer to fund the employee’s salary for the employee to work in a different organization for several months. That way, the new organization can try out the employee without having to pay his salary, and offer the employee a permanent position at the end of the detail if it has an opening in which he can perform. The benefit to the “losing” supervisor is that he a) doesn’t have to go through the resource-intense processing of firing the guy, b) relief is immediate, and c) the employee has to agree not to return at the end of the detail as part of the contract.

Several readers commented that this was a TERRIFIC idea and could work in their organizations to avoid removals. On the other hand, a few determined just-say-no readers thought this option to be either unwise or illegal, or both.

Wanting to provide more fodder for outside-the-box thought, here’s another “crazy” option that came to me in the dark of the night while I was lying in bed sleepless, worrying about the potential loss of our civil service due to nay-sayers. If you think that a Terminal Detail is a whack-a-doodle idea, wait until you catch a load of this one.

But, first, a couple of facts to work with:

  1. A common mistake that agencies make when firing an employee is having the Deciding Official (DO) say something in her decision memo that is different from what the proposing Official (PO, usually a subordinate to the DO) has said in his Proposal Notice. Allowing the DO to consider a fact of which the employee was not notified in the Proposal Notice is almost always a violation of due process. As a due process violation is per se harmful, the agency automatically loses, and the employee and his lawyer get a whole big bucket of money, with the employee entitled to reinstatement to the position from which he was unfairly fired. If you don’t already know that this is a HUGE problem for agencies, you need to read more MSPB reversals of removals. It may be THE most common reason we lose appeals.
  2. The Civil Service Reform Act of 1978 set up the removal procedures 40 years ago this year. Although most agencies use two officials to fire an employee – a PO and a separate, superior DO – the law has never required that two individuals be involved in deciding a misconduct removal (two are required by law, in comparison, in a performance removal). For whatever reasons, most all agencies have a policy that says that two management officials will be involved in a misconduct removal, but this has never been a legal requirement.

When teaching the basics in our famous FELTG MSPB Law Week seminar (next offered in Denver June 4-8) , we strongly suggest that a way around this problem is to a) have the PO do an extensive evaluation of the Douglas Factors as an attachment to the Proposal Notice, then b) have the DO simply adopt that analysis, assuming of course that complete adoption is actually what the DO is doing. This avoids the mistake that agencies sometimes make of having the DO complete a separate fulsome Douglas Factor analysis as part of the decision memo. Having the DO do a separate analysis is a great way to include additional facts into the case, thereby violating the employee’s due process rights, and causing reversal of the removal on appeal.

“But, Bill. What if the DO disagrees with the PO? What if the DO views the Douglas Factors differently from the PO or knows things about the employee that he wants to rely on in making the removal decision, but are not in the PO’s Douglas factor worksheet? What then?”

For years, our response has been to take the safety route. Have the DO send the employee a memo that says how he views things differently, and then give the employee at least seven days (or whatever your local CBA or policy says) to provide a response to the new information. Legally, this is nice and tidy, but practically, it may delay the removal beyond 30 days. And nobody wants to delay a removal decision more than necessary.

And then it dawned on me (literally “dawned” as the sun was starting to rise over my San Francisco home as the idea came to me a couple of mornings ago):

Why not have the PO and the DO collaborate on the Douglas Factor assessment attached to the Proposal Notice prior to it being given to the employee?

We’ve known for 40 years that it is not a violation of due process to have the same individual be both the PO and the DO. We know that the heart of due process is that the agency makes known to the employee everything that’s being thought about regarding the proposal to remove him. And we know that MSPB does not have a problem with the DO being involved in the proceedings leading up to the proposed removal. Lange v. DoJ, 119 MSPR 625 (2013). Why not simply have this pre-Notice joint-drafting of the Douglas Factor analysis done by the DO and PO, and of course with notice to the employee of its joint authorship? We satisfy due process while simultaneously reducing the likelihood that the DO will want to consider something not in the Proposal Notice. Yes, it takes more time up front to get a document created by two authors rather than one, but the pay-off is significant: a reduction in post-Notice time and a better chance that we will not inadvertently violate the employee’s due process rights.

Congress, OPM, and the White House are looking at ways to change the civil service laws. Smart usage of the laws we already have will reduce the need for drastic change. [email protected]

Another Way to Avoid Nasty Litigation

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By William Wiley, April 3, 2018

Experienced practitioners know that it’s almost always better to avoid litigating a termination case than going to a hearing and defending a removal action. That’s because a) litigation is time- consuming and expensive, and b) even if you have a good case, there’s always a chance you will lose. Last year, agencies lost about one-in-four to one-in-five removals that were appealed to MSPB. Discovery before the Board can involve thousands of pages of documents and several tedious depositions of senior managers. Why incur that risk and expense if you can get rid of the guy otherwise?

The term “discipline alternatives” was derived a few years ago to describe this class of options for supervisors who have a problem employee. The most common one of these is a “Last Rites” meeting in which we try to talk the employee into voluntarily quitting in exchange for some benefit. “Hey, Bill, if you’ll quit, I’ll let you work at home without any real duties other than finding yourself another job. Let’s say two months, and your dress code is your pajamas.” Write it up, get the employee to sign a contract promising to be gone, and you’ve done yourself and the country a great favor.

Another option is the similarly-named “Last Chance” agreement. In this case, you agree not to implement a decision to fire someone if he’ll promise to be good for the next couple of years. If he survives the agreement period, the removal goes away. If he screws up before the period is over, it’s an immediate removal with no appeal rights and no Douglas factors. If either of these “Lasts” is new to you, sign up for our training. Agencies that know what they’re doing have been using these for decades to avoid litigation and still remove bad employees from the federal workplace.

These two options are well-established in the case law. Easy to research, easy to see how effective they can be. However, not long ago, we ran across an option being used at HHS that we think can be very useful, in the right situation, and that doesn’t lend itself to case law research. As everybody knows, the sub-agencies within HHS – FDA, NIH, and CDC, among others – do a lot of research. That means that there are a lot of employees who work in labs and on projects doing specialized technical work for extended periods of time. When it develops that an employee is no longer meeting performance standards for a critical element, HHS management uses PIPs (now known as ODAPs for “Opportunity to Demonstrate Acceptable Performance” to emphasize that it is not an “improvement” period”), last rites and last chance agreements, just like everybody else.

However, they’ve also come up with another option that in the right situation is well worth consideration. It’s called a “Terminal Detail.” Employees in a research environment sometimes just don’t keep up with the science in a particular lab and are therefore not performing acceptably. Otherwise, they have decent work habits and might fit in somewhere else. As an alternative to implementing formal procedures, the supervisor explains the situation to the employee and invites the employee to find another workplace in the organization that could use some help and is willing to try out the employee. If the employee finds an alternative position, the current supervisor offers to continue to pay the employee’s salary from his organizational funding for six months or so while the individual works in the other component. The receiving organization gets free labor for the period and also gets to evaluate whether it has a permanent place for the employee long-term.

If the employee works out in the new location, and is picked up as a permanent employee, the personnel action is a reassignment, and everybody wins. However, the deal that’s struck requires the employee to understand that if he does not have other employment by the end of the Terminal Detail, he must leave voluntarily. He cannot return to his original job, and either quits or retires, whichever option is available to him. The implementing agreement waives the individual’s rights to file an appeal, grievance, or complaint regarding anything that leads up to the detail, so there’s no adjudication related to the action.

The price to the supervisor is six months (or so) salary, so this is not a freebie approach. However, many supervisors who have been through a removal action and appeal to MSPB would say that it is a reasonable price to pay to have the employee out of the workplace immediately, with no chance of being reversed on appeal. As for the employee, he is faced with either an involuntary removal effective within 30 days or so, or the alternative of trying to prove himself to another supervisor doing different work. The choice is not right for everyone, but when it’s a good fit, it can be life-changing for the better.

Keep your options open. Stay flexible and creative. Yes, our business is firing people. However, if you can use other options to get you to the same place without all the lawyer-stuff, you almost always come out ahead in the end. [email protected]

The Backwards Approach to Civil Service Law

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By William Wiley, March 27, 2018

In one week, I heard some variation of this unfortunate concept three times:

What gives you the authority to do that?

An alternative of this is, “Where does it say we can do that?” I hear this phrase from attorneys, HR specialists, and supervisors, each of whom is trying to decide what to do in a particular employment law situation. For example, in one case an agency used one of its airplanes to observe the backyard of an employee who was suspected of growing marijuana there. “What gives the agency the authority to do that?” In another, the supervisor had contacted the local police and asked them to do a “welfare check” to see if a missing employee was injured or otherwise in trouble. “How do we have the right to call the police?” In another, a supervisor thought he saw a subordinate looking at porn on a personal laptop. When confronted, the employee said he was working on agency business. “Where is the agency policy that allows the supervisor to tell the employee to show him the computer screen?”

Folks, that’s exactly the kind of backwards, bureaucratic mindset that freezes supervisors and makes the agency appear to be impotent relative to holding employees accountable. The question should not be, “Where does it say we can do that?”, but rather, “Where does it say we cannot do that?”

Here’s how we know that this is the better approach:

  • 5 USC 301-302 gives the President the authority to make personnel decisions relative to the Executive Branch and to delegate that authority to subordinate management officials. Therefore, agency supervisors have the authority to run their workplace on behalf of the President.
  • Supervisors can take lawful actions with employees as long as there is a nexus (e.g., a business-related reason) for the action. The reverse, of course, is that if there is no nexus, the supervisor cannot take the action. The Lloyd-Lafollette Act of 1912 called this basing the action on the “efficiency of the service.”
  • Therefore, unless there is a law that says a supervisor cannot do something, as long as the motivation for the action is related to a bona fide business reason, the supervisor can do it.

Does an agency have a business reason for determining whether its employees are violating its marijuana policy? Sure, that’s why they have a policy, to ensure that employees are not violating federal law. How about a missing employee? Does a supervisor have a business reason for being concerned about the safety of an employee who does not show up for work? Of course. As members of society we all have that concern. As an employer, that concern is enhanced by the need to have someone at work doing the job. How about porn in a federal workplace on government time? Can a supervisor take steps to make sure that doesn’t occur? Lordy, I would hope so. If not, we have a drastically different federal workplace than the one our citizens expect (and that I used to be part of).

Of course, there are legal limits to what we can do. If that welfare check was motivated by a desire to harass an employee who had filed a bunch of EEO complaints, that’s illegal. The marijuana fly-over and the laptop viewing cannot run afoul of the Constitutional 4th amendment protections against the government conducting an “unreasonable search.” (They do not, by the way, as the fly-over is a plain-view observation and the personal laptop is fair game for the supervisor because the employee claimed to be doing government work on it.)

The civil service is routinely beat up by politicians and the media for letting bad things happen without our doing anything about it; e.g., workplace sexual harassment, employees on months of paid leave, and inefficient/rude service providers. We even had an OPM director years ago who complained about poorly dressed federal employees, saying that the government does not have a dress code; therefore, she could do nothing about workplace slovenliness. OF COURSE, we have a dress code. It’s what the supervisor says is appropriate for the work being assigned.

The attitude that something specific has to give us authority to act before we can act contributes mightily to the viewpoint that our civil service is not working. Instead of looking for the specific authority to do something, look to see if there’s something that says you cannot. In my experience, you will hardly ever find anything. [email protected]

Never Send to Know for Whom the Bell Tolls, Poopsie …

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By William Wiley, March 20, 2018

Oh, there’s just so much in the mainstream media these days about our business of civil service law. Sometimes we can go months without an article being published for general consumption about federal employees and their rights. These days, we’re everywhere. And if you care about your own personal future, maybe you’d better read some of those articles verrrry closely. For example:

Andrew McCabe. As most of the world must know by now, McCabe was the deputy director of the FBI until he was fired last week, just over 24 hours before his birthday that would have made him old enough to receive a law enforcement officer enhanced retirement from the federal government. If you’re like most federal employees, you probably have the date marked somewhere that is the earliest date you will have both age and years of service to claim a life-long pension for your work, including till-death-guaranteed access to reasonable health insurance, a significant rarity in the United States these days. Well, go dig up that calendar. Look at the date you have calculated. Now think what the rest of your life would be like after that, if the day before that date, you were fired. Based just on your boss’s opinion, without an appeal right to a neutral institution like the US Merit Systems Protection Board.

For our purposes, it doesn’t really matter what McCabe did that resulted in his removal. Good guy or bad guy, until last week, he was a career federal employee, just like most of you readers. He wasn’t some political flake, appointed from the private sector for some political reason, with no real commitment to the civil service and no real expectation of continued employment. No, he was an individual just like you, who filled out an SF-171 to get his first job, competed for promotions, and underwent the annual embarrassment of a stupid performance appraisal that meant essentially nothing, but which empowered him to continue to do his job of providing service to the American people. He may have made mistakes toward the end of his career, but nobody died because of them. From what I read in the media, he arguably might simply have been mistaken about some of the things he allegedly did. Love him or hate him (and we take no FELTG position on your emotions), he was just like you in the sense of trying to do a decent job for a quarter of a century with the expectation of a government retirement annuity at the end of things, and now he doesn’t have that. By a day. With no appeal. Like it or not, this is how the FBI’s system works.

Department of Education and AFGE.  Unless you’re an inside-the-Beltway, labor-law-weenie (as we are proud to be at FELTG), this one might have slipped below your radar. Education and AFGE had been slogging along trying to negotiate a new labor-management agreement for about a year, making little if any progress. Nothing too unusual there. Some federal agencies and unions spend YEARS negotiating a new contract. So, the agency negotiators notified the union that they had a contract that they planned to implement if negotiations did not progress further, gave the union a time frame to respond, and when (according to the agency) there was no response, management implemented its version of a collective bargaining agreement.

Talk about hitting the fan. I’m still cleaning off the inside of my labor law news feed. All that cool stuff in the old labor agreement was gone: employee “rights,” including those addressing workplace health and safety, telework, and alternative work schedules, provisions on workplace discrimination, performance appraisals, compensation, child care and training were all deleted and replaced with nothing. If union representatives now want official time to represent employees in grievances and Weingarten meetings, they can do it on LWOP, not paid time as in the past. Need a union office space to discuss things or send an email? Better find a quiet corner in a hallway from which you can access a Wi-Fi hotspot on your personal smart phone.

Every union official I read about complained that the agency had somehow shoved the new contract down their throats, taking away employee and union rights Congress had intended. However, every practitioner who has attended FETG’s fabulous FLRA Law Week seminar who read about this scenario knew that they were seeing the Civil Service Reform Act playing out just the way it was written back in 1978:

  1. Management notifies the Union of an intended change to employee working conditions.
  2. Upon demand by the Union, Management enters into bargaining regarding those parts of the change that are negotiable.
  3. If Management and the Union cannot reach agreement (i.e., reach an impasse), Management notifies the Union of its final offer.
  4. If the Union does not respond by initiating the impasse resolution procedures provided for by law, Management has the right to implement the change without further bargaining.

We may think it’s terrible that the employees at Education lost the flexibility of alternative work schedules or that the AFGE reps now lose pay whenever they perform most representational duties. But those things are not Congressionally-mandated rights; they are the fruits of collective bargaining, sometimes won and sometimes lost. There may be good arguments that the union did not waive its right to the impasses procedures. If so, those arguments will be resolved through the unfair labor practice charge that AFGE has filed against Education. Like it or not, this is how the labor negotiations system works.

DVA.  Last summer, Congress created a law that allows DVA to fire employees with no more proof than a grain more than a scintilla (i.e., substantial evidence). In addition, unlike most all other agencies, DVA no longer has to defend deciding to fire someone rather than just suspending or reprimanding them. If the supervisor can prove that the employee engaged in a single act of misconduct (e.g., arrived tardy one day), he can be fired, even if he has worked for the government 30 years with no prior discipline and is an otherwise outstanding employee. In the language of civil service law, that means that there’s no penalty mitigation authority at MSPB or in arbitration and thereby no Douglas Factor analysis required.

So, what was in the papers last week? Congressmen on both sides exclaiming that they didn’t know that DVA would use these new authorities to remove housekeepers, veterans, and poor performers without necessarily giving them a chance to get better. Well, Congress. If you didn’t want DVA to do this stuff, why did you pass a law that specifically allows for them to do it? Why did the President say in his State of the Union address that this new DVA firing procedure should be applied to the entire federal government? Like it or not, this is how the DVA system that you created works.

Depending on your view of the federal workplace, you may be thinking that these are wonderful aspects of the civil service; that career individuals can be fired easily and that unions have to bargain rather than be provided benefits by legal right. Here at FELTG, we’re not trying to push your civil service protections in one direction or the other. That’s an effort worthy of a much higher pay grade. What we are suggesting is that before you break out the champagne, go look in the mirror. Mentally age yourself to what you think you will look like when that retirement date on your calendar finally arrives. Now picture that person standing in line to apply to work at Home Depot or CVS, two companies who have special programs to hire old coots individuals approaching their “Golden Years.” Some people might think that a cushy civil service job is for life, but now you know better. [email protected]

Settlement Agreements – The Devil is in the Details

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By Meghan Droste, March 14, 2018

Those of you who have read my previous articles will not be surprised to learn that I am fairly detailed-oriented.  Others may have a less flattering way of describing my occasionally obsessive interest in the details of things, but I like to think of it as a helpful trait.  It improves the outcome of my baking projects and can lead to some fun trivia about The West Wing, the history of the British monarchy, or the origins of the phrase “the devil is in the details” (apparently unknown).  It is also a good quality to have as a litigator.

The Commission recently provided us with a reminder of why the details can be so important when crafting and implementing a settlement agreement.  In Nick N. v. Department of Labor, EEOC App. No. 0120171267 (January 26, 2018), the agency could have avoided the headache of a breach allegation and a subsequent appeal if it had paid attention to the details.  In December 2015, the parties entered into a settlement agreement that provided that the agency would permanently reassign the complainant to the position of Senior Compliance Manager.  In an attempt to implement the agreement, the agency initially placed the complainant in a temporary Special Assistant position.  Special Assistant of course is not the same as Senior Compliance Manager, so the complainant’s counsel contacted the agency to request compliance with the agreement.  The agency then placed the complainant in a Compliance Manager position.

The complainant filed a breach allegation with the agency because of its failure to place him in a Senior Compliance Manager position.  The agency found there was no breach, concluding that it substantially complied with the agreement.  On review, the Commission concluded that the agency had not substantially complied with the agreement.  It noted that the agency had not provided a “satisfactory explanation” for its refusal to title the complainant’s position as Senior Compliance Manager.  It went on to conclude that “[t]he Agency has, without explanation, decided to ignore the express language of the settlement agreement and limit Complainant’s official title to either ‘Compliance Manager’ or simply contrive another title for [c]omplainant’s position.”  The Commission ordered the agency to place the complainant in a Senior Compliance Manager position or to provide “a clear explanation for any determination” that caused the agency to title the position as Compliance Manager and allow the complainant to accept the position or reject it and reinstate his complaint.

The agency could have avoided the time and expenses of addressing this issue if it had followed the specific details of the settlement agreement.  While one word might not seem like much, it can make a big difference. [email protected]

What in the World is Going on at MSPB?

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By William Wiley, March 14, 2018

You have to understand the role and the operation of the US Merit Systems Protection Board plays in our country to fully appreciate what is happening there now. You experienced readers will have to forgive us for some basics before we can get to the meat:

  • The good citizens of our great country are served by its government. The government is made up of 2+ million civil servants who, to varying degrees, do the best they can to make government work.
  • When a federal employee breaks bad (unacceptable performance or serious misconduct), his supervisory chain has the right to fire him. Because he is protected by civil service laws from unfair treatment by his supervisors, that (now former) employee has the right to defend himself in an appeal to MSPB.
  • Usually, there are two levels of review at MSPB. First, a Board administrative judge conducts a hearing, then issues a decision based on the evidence and argument as to whether the appellant stays fired or gets his job back. Next, that judge’s decision can be reviewed, affirmed, or set aside by the three members who make up the Board itself.
  • The Board’s members are Presidential appointees, confirmed by the Senate, to serve specific seven-year terms. The terms are independent, and their expiration dates overlap. Once confirmed by the Senate to be a member, the President has the independent authority to designate a member as either the Chairman, Vice Chairman, or simply Member.
  • The most recent term expiration occurred a couple of weeks ago, on March 1, 2018. That term currently is occupied by Mark Robbins, an Obama appointee who continued to serve even after the change in administrations. Prior to the expiration of that term, Mr. Robbins effectively could not be replaced by the President. Once that term expired earlier this month, Mr. Robbins could “hold-over” and continue to serve as a Board member for another year. However, the President would now be free to replace him at any time after March 1.

We have had two vacancies at the Board since January 2017. With only one remaining member (Mr. Robbins), MSPB lacked a quorum and could not issue final orders regarding the appeals of judges’ decisions. As of today, there are about 875 appeals of judges’ decisions that are backlogged at the Board due to this year-long lack of a quorum. Were the White House to nominate just one more member to the Board, along with the 800+ internal votes already cast by Mr. Robbins, that new member could also vote on a case, affirming or setting aside a judge’s decision, thereby releasing that appeal from the case backlog.

With that as background, we serious Board watchers – and others who are concerned about an effective civil service – were delighted to see that last week the President announced the nomination of a new Board member, Andrew Maunz, an individual who is a solid career attorney with exceptionally high credentials, to become a final adjudicator of removals from the civil service. FINALLY, after all these months, we expected we could begin to see things start to move at the Board. Appellants would begin to find out if they were to stay fired or were to get their jobs back. Back pay would stop accruing against agencies who might be in a position of losing appeals to the Board. Whether we ultimately were to agree or disagree with the decisions that we expected to see begin to be issued, at least the backlog would start to be reduced, and justice finally would be done.

Not only were we impressed that the White House had selected a highly qualified and experienced individual to serve as a new Board member, the President’s respect for the math was also impressive. You see, had the President at the same time nominated TWO new members instead of one, that would have doubled the time necessary for cases to start being voted out and the backlog thereby reduced. It should be relatively obvious that two people take twice as long to consider and adjudicate an appeal as would one. In addition, three members are more likely to disagree than are two, thereby increasing the amount of time necessary to resolve those disagreements. Yes, many of us were doubly blown away by the move the White House was making to replenish the Board.

And then the fine print of the White House announcement started to seep in.

Thanks to the help of several astute readers of our newsletter, we now see that new member nominee Maunz had been identified to take over the term currently occupied by Mr. Robbins – the term that expired on March 1, 2018, set to expire March 1, 2025. With his confirmation, Mr. Maunz will become the Vice Chairman and displace Mr. Robbins, thereby voiding the internal votes Mr. Robbins has been casting since becoming the sole remaining member of the Board on January 6, 2017. Therefore, instead of us joyfully celebrating that soon we can expect to see final orders flying out of the Board’s backlog with two members voting, we started to believe that we would continue to have a one-member, no-quorum Board.

And THEN, late last week, we got another announcement by the President of an intent to nominate a second individual to the Board. If confirmed, Dennis Dean Kirk will become the Board’s new Chairman, taking over the vacancy left when the Board’s former chairman quit before her term expired in early 2017. That term is set to expire March 1, 2023. Fortunately for us all, Mr. Kirk has federal experience as an attorney and has previously represented before the Board while in private practice. Past presidents have not seen prior federal employment experience as a necessary prerequisite to be a Board member.

Interesting observations about where we are with all of this:

  1. Historically, the designations of Chairman and Vice Chairman have been awarded by the President to the two Board members who are members of his party. As the Board cannot be composed of three members from the same political party, the betting money is that the remaining Member’s position will be filled by a Democrat appointed by President Trump (although an Independent or some other non-Republican would serve just as well).
  2. The President has appointed the new Chairman to a term expiring in 2023. He had the option of appointing him to the term ending in 2025. One might think the President would have put the Board’s chief executive officer into the position with the longer term for the sake of continuity. But, one would be wrong.
  3. While appointments could have been made to the Board that allowed Mr. Robbins to continue to hold over and his previously-cast internal votes to count, the White House has selected terms to be filled that displace Mr. Robbins and cancels out all the work he has been doing since January 2017. Whether this was an intentional decision or an oversight, the effect is the same: soon we can expect to have a bevy of new members at MSPB starting to work away at 875+ cases with no voting assistance from any former members.

Gentlemen, on behalf of our little training company, we welcome you to the battle, and wish you the best of luck in helping the civil service protections once again become a reality. Just try not to think about how many pages of reading await you when you have to adjudicate 875 appeals, just to get started in your new job. [email protected]

Animal Kingdom Throwdown: Service Animals vs. Emotional Support Animals

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By Deborah Hopkins, originally published March 14, 2018; updated October 10, 2023

Do you remember the story where an emotional support dog bit a little girl in the face on a Southwest Airlines flight a few years back? Or, how a Spirit Airlines customer flushed her emotional support dwarf hamster down an airport toilet after being told she was not allowed to fly with the rodent? (FWIW, the hamster-bearing passenger claimed a Spirit Airlines employee told her to flush the hamster, but Spirit Airlines has denied this accusation.)

If you didn’t catch those stories, you probably at least saw the headline in 2018 when United Airlines denied boarding to a woman’s emotional support peacock at Newark’s Liberty Airport. United’s statement to the media explained that the peacock “did not meet guidelines for a number of reasons, including its weight and size,” a fact which the would-be passenger had been told three separate times before she got to the airport. Should you ever need a bit of trivia for a cocktail party or a game show, in order to accommodate emotional support animals, the airline requires medical documentation at least 48 hours in advance of the flight, at which time they evaluate unusual animals “on a case by case basis.” While federal guidelines require airlines to permit passengers with disabilities to board with trained service animals or emotional-support animals, airlines may exclude from flights animals that are too large or heavy to accommodate on board, or animals that could cause a significant disruption of service during the flight.

No doubt about it, emotional support animals are becoming more popular in this country, but they are NOT the same as service animals. According to the ADA National Network, a service animal is any dog (or in certain cases, a trained miniature horse) “that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

Let’s quickly set out some of the differences between service animals and emotional support animals:

Service Animals

Emotional Support Animals
  • Limited under the ADA to dogs (and in some cases, miniature horses)
  • Formally trained to assist people with disabilities
  • Do NOT bite or misbehave
  • May be certified by licensed medical providers
  • Perform physical tasks for disabled individuals with vision, hearing, mobility, and other impairments
  • Tasks may include pulling or pushing a wheelchair, retrieving dropped items, reminding a person to take medication, pressing an elevator button, alerting at the potential onset of seizures, and alerting at the arrival of visitors.
  • Also known as comfort or therapy animals
  • Can be any animal, really; we’ve seen various types of birds and fowl, snakes, monkeys, ponies, rodents, cats, even spiders
  • Do not undergo formal service animal training
  • May bite or misbehave
  • Are not certified by medical providers
  • Provide companionship
  • Help owners by providing emotional support for conditions such as depression, anxiety, PTSD, or mood disorders
  • Assist in relieving stress

 

There is no federal law that requires public organizations or businesses to accommodate emotional support pets, but sometimes people try to take advantage of the service animal stigma by bringing pets into public places and places of employment and hoping people are too afraid to ask if the animal is a trained service animal. It has gotten so bad, in fact, that some state and local laws have made it a crime to try to pass off an emotional support dog or pet as a legally-protected, disability-related service animal.

This topic of emotional support animals, while making the news this year, is not new. In a decision from 2006, the EEOC agreed with the Navy after the Navy denied an employee the use of an emotional support dog in the workplace, because there was no connection between the dog’s presence and the employee’s disability. While the employee was substantially limited in the major life activity of interacting with others, and the dog helped curb her anxiety and stress when she dealt with crowds and strangers, the employee was unable to show that she had to interact with crowds or strangers at work because her job consisted mainly of data-entry tasks. Struthers v. Navy, EEOC No. 07A40043 (June 29, 2006).

In another case from several years ago, an agency allowed an employee’s emotional support bird to stay at the office, as long as the bird was caged and the cage was kept clean. The employee requested to give the bird free range to roam outside the cage because he thought the bird would be unhappy cooped up, but the agency properly denied this request. Mermen v. USPS, EEOC No. 01A13112 (September 25, 2002).

Though there are not a whole lot of legal cases on this topic, we have seen an increasing number of federal employees attempting to bring emotional support animals to the workplace. What does this all mean for you? Here’s what you need to know: the EEOC takes that stance that an emotional support animal may be a required reasonable accommodation for a qualified individual with a disability, even if it is not a trained service dog.  So, whether the animal is a trained service animal or an emotional support animal, your agency has a duty to engage in the interactive process to determine if allowing the animal in the workplace would permit the employee to perform the essential functions of her job without causing an undue hardship.

That’s right: even though public places like restaurants, bars, movie theaters, supermarkets, and hospitals are not legally required to provide access to their customers’ emotional support animals, federal agencies actually do have an obligation to consider options for applicants and employees who request emotional support animals or service animals in the workplace.

Hope this helps clear up some of the questions you might have. [email protected]

Tips from the Other Side, Part 3

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By Meghan Droste, March 14, 2018

As spring approaches, notwithstanding the snow that some of you were fortunate enough to get in recent weeks, the stores are filled with Easter-themed candy.  My personal favorite is the chocolate egg filled with peanut butter.  It is truly the perfect balance of two perfect flavors.  Don’t believe me?  I’ll wait while you compare those to the standard peanut butter-filled chocolate cups.  See what I mean?  (I’ll trust that you do.)

Seeing, and trying to avoid eating, too many of these Easter egg candies brought to my mind the other kind of Easter egg – an unexpected feature or item that you might find in a movie, video game, or other media.  If you would like an example, Google the word “askew.”  You’ll find that the results page is tilted.  An Easter egg in this context is just another type of treat that you might stumble upon.  What does all of this have to do with the federal sector EEO process, you might ask?  Well, sometimes in the course of an investigation or discovery, I stumble upon what we can think of as an Easter egg – an additional, unexpected cause of action that neither I nor my client had any knowledge of at the outset of the complaint.  One good, and unfortunately still common, example is improperly stored medical documentation.

Agencies are required to maintain the confidentiality of any and all medical documentation that they collect from their employees.  This means that supervisors, reasonable accommodation coordinators, anyone who touches an employee’s medical documentation, must keep that information in a separate, confidential file.  The medical documentation should not be stored in the same file as performance evaluations, counseling memos, examples of the employee’s work product or anything else that someone might maintain regarding that employee.  There is no room for interpretation on this one–the information must be stored separately.

I frequently request copies of personnel files, including unofficial supervisory files, during the course of litigation.  Often times, there isn’t anything that either helps or hurts the case in any real way.  But every once in a while, I find out that the supervisor has comingled my client’s medical documentation with his or her notes about my client, or with other unrelated information.  When I find that, I automatically seek to amend the complaint, because this is a separate cause of action.

These types of claims are rarely going to end well for the agency.  A complainant does not need to prove discriminatory intent or establish that someone who should not have had access to the documentation actually saw it.  It is enough to show that someone improperly comingled the records.  See Mayo v. Dep’t of Justice, EEOC App. No. 0720120004 (October 24, 2012) (holding that “[t]he Agency’s failure to maintain Complainant’s medical information in separate medical files constitutes a violation of the Rehabilitation Act, even in the absence of an unauthorized disclosure”).

You can keep me from stumbling upon this kind of Easter egg by establishing a clear procedure for the storage of medical documentation and ensuring that everyone receives regular training on the procedure.  Feel free to send the chocolate and peanut butter kind my way!

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].