It Can Be Bad; It Can Be Good: Part II

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By William Wiley, March 14, 2018

Several weeks ago, we distributed an article explaining how an employee engaged in misconduct could be handled well, compared to a series of missteps that amounted to doing the wrong things. In response, we got an outpouring of requests (2) that we do the same bad-thing/good-thing comparisons for an employee who has not a misconduct problem, but rather is a poor performer. There are two different laws that come into play depending on the type of problem employee we have. For purposes of the comparison, we are relying on 5 USC Chapter 43 and 5 CFR Part 432 for the performance action.

So here’s our list of bad-choice/good-choice options. On the left, you’ll see a list of actions we have seen historically that supervisors think they have to take when faced with a poor performer. On the right, you’ll see our FELTG approach that cuts right to the chase and empowers the supervisor to respond much more efficiently when an employee is a non-performer:

Supervisor provides the employee a performance plan at the beginning of an appraisal year or when the employee enters a new position. Absolutely essential. We cannot use the unacceptable performance procedures to hold the employee accountable unless there is a current performance plan in place.
Training Not required. Employees are hired with the expectation that they can do their jobs. However, to be safe we do allow the employee around 30-45 days to get used to any new performance standards.
Counseling    Not required.
Written Warning        Not required and generally a bad idea because the employee can claim reprisal or discrimination.
Letter of Expectation Not required. Causes the process to be drawn out for no benefit.
Reprimand or Suspension No. These are tools for dealing with misconduct, not poor performance. They should never be used for poor performance under 5 USC Chapter 43.
Initiation of an Opportunity to Demonstrate Acceptable Performance (aka, a PIP) Absolutely correct. Once the employee has been on a plan for several weeks, and the supervisor determines (not proves) that performance is at the Unsatisfactory level on just one critical element, an opportunity period should be initiated.
The Opportunity Period is Set for 60-120 Days Never! These periods should be 30 days.
The employee files a traditional race/sex/age discrimination complaint, and the agency requires the supervisor to produce evidence that the initiation of the opportunity period was warranted. Wrong. EEOC has held for years that the implementation of an opportunity period is not an adverse employment action, and thereby it cannot be the basis of a discrete-act EEO complaint.
The supervisor leaves the employee alone during the opportunity period to give him an opportunity to perform. Wrong. The supervisor meets with the employee periodically during the 30-day period and gives the employee assistance by providing critical feedback.
The supervisor grants the employee’s annual leave request, thereby causing the period to be extended. Wrong. Any annual leave or LWOP request should be denied or canceled if previously approved. In comparison, sick leave must be granted if the employee is sick. The PIP period can be extended to make up for any sick leave used.
Because the employee presents evidence that he’s disabled and his disability caused the poor performance, the supervisor cancels the opportunity period. Wrong. Disability accommodation is relevant for the future, not the past. The correct approach is to pause the opportunity period, engage in a discussion with the employee to determine whether there’s an accommodation that will allow him to do his job, then provide the accommodation and re-start the demonstration period.
Because the employee’s medical documentation establishes that he cannot perform some essential function, the supervisor removes the function. Wrong. The supervisor does not need to remove the essential function. The supervisor now needs to terminate the employee for Medical Inability to Perform, if accommodation and reassignment are not possible.
If the employee performs successfully during the opportunity period, he’s off the hook. Wrong. The employee must maintain acceptable performance for the next 11 months after completion of the 30-day period. If the employee again becomes unacceptable, immediate removal is warranted without another opportunity period.
If the employee performs unsuccessfully, the supervisor gives the employee written notice that he has failed the demonstration period, and that a proposed removal will be issued soon. This is the stupidest thing I have ever heard, yet I know some practitioners who do this. If the demonstration period is failed, removal should be proposed within five days.
If the employee performs unsuccessfully, the supervisor proposes a removal or demotion. The much better strategy is to propose removal. If there is a demotion position available, the supervisor should offer it to the employee as a voluntary alternative to removal and get it in writing. That way, the demotion cannot be challenged on appeal.
Removal will be proposed only if there are boxes and boxes of documentation of non-performance during the opportunity period. Wrong. Removal can be proposed even if there is just a bit more than a speck of proof; a little more than a jot or a grain. This is called “substantial evidence” and it’s all that’s required to remove a poor performer.

 

In summary, trained practitioners know how to deal with poor performers:

  1. Once the employee has demonstrated unacceptable performance on a critical element, the supervisor initiates an opportunity period to allow the employee to demonstrate whether he can perform.
  2. During the 30-day demonstration period, the supervisor provides the employee specific information as to how he is performing relative to the failed critical element. The supervisor collects evidence of unacceptable performance that is occurring during the period.
  3. The HR advisor or attorney works with the supervisor throughout the demonstration period to make sure that all the necessary evidence is being collected, and that the supervisor is aware of what he will be issuing once the period is completed.
  4. If the demonstration period is failed, the supervisor issues a proposed removal based on evidence a bit more than a scintilla. If the demonstration period is completed successfully, the supervisor issues a warning to the employee that his removal will be proposed immediately if his performance again becomes unacceptable during the remainder of the year.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system that is a problem as much as it is a lack of people who understand the system.

Come to our training. Learn the program. Be a Performance Management Superstar. We love this stuff. [email protected]

The “Reasonable” Aspect of Reasonable Accommodation: What Does Reasonable Really Mean?

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By Deborah Hopkins, March 14, 2018

There’s yet another recent EEO decision that makes me ask the question, “When it comes to providing reasonable accommodation to an individual with a disability, how far does an agency need to go?”

And the answer, based on this particular case: pretty darn far.

Here’s what happened. The complainant, a management and program analyst for the FBI, had exhibited some attendance issues and so the FBI issued a notice of proposed removal. In response to the notice, the employee disclosed that she suffered from major depressive disorder and anxiety disorder, and those disabilities were the cause of her attendance issues. She asked the FBI for an accommodation that would allow her a flexible amount of time (the language in the case is “daily variable schedule”) to complete her scheduled 80 hours of work per pay period. She even provided medical documentation that said she was “chronically sleep deprived” and a flexible schedule would provide her with a medical benefit.

The FBI supervisor, probably trying to be nice (because there is no legal requirement to cancel proposed discipline after the disclosure of a disability), held the removal in abeyance for 90 days and granted the complainant a “gliding schedule” that would allow her to report to work any time between 8:00 and 9:30 a.m. Despite this accommodation, the complainant was still late for work 21 times during the 90-day period. According to the agency, the complainant blamed several of her late arrivals on child care issues.

So, after the 90 days elapsed, the agency removed the complainant for AWOL and she filed a reasonable accommodation claim and requested a Final Agency Decision. The FAD found that Complainant was not denied a reasonable accommodation, and so she filed an appeal to the Office of Federal Operations.

The EEOC found that the FBI did not grant a reasonable accommodation and remanded the case (5 years later!), citing a few reasons:

  • The complainant contacted her supervisor on 18 of the days she was going to be late, and the agency did not consider granting the complainant leave as accommodation for her tardiness in those instances, instead marking her AWOL.
  • The child care issues were related to the underlying disability.
  • A maximum flexible schedule would have been an effective reasonable accommodation, and the agency did not demonstrate why the complainant needed to arrive to work by 9:30 a.m.
  • The agency did not demonstrate that granting a maximum flexible “gliding” schedule would be an undue hardship.

When I read the case, I don’t see anywhere that the employee requested a “maximum gliding schedule” for the agency to consider. She asked for a “daily variable schedule” which it appears the agency offered her, by allowing for a 90-minute window in which to arrive. But what do I know?

Yep. The EEOC said that the complainant’s oversleeping was a result of her disability and the underlying cause of her attendance issues, so therefore she was not AWOL when she didn’t get to work on time and didn’t call in, and the agency should not have expected her to arrive by 9:30 each day. Davina W. v. FBI, EEOC Appeal No. 0120152757 (December 8, 2017). [Editor’s note: The supervisor might have been able to defend his actions in this claim if he had kept notes of the harm that occurred each time the employee was late. That’s something we’ve been teaching for nearly 20 years. Contemporaneously document your reasons for doing something adverse to an employee, especially if it has the potential to show up as an issue in an appeal/complaint.]

I guess that’s what you get for being a nice supervisor and holding a removal in abeyance, huh? [email protected]

An Act of Smiling Insubordination

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By William Wiley, March 6, 2018

We get such good questions here at FELTG (because our readers are so smart, hardworking, and good looking). This one brought a big old smile to our faces:

Dear FELTG-Funny-People,

I’ve mentioned some of the topics covered in your newsletter to my boss, specifically the one about ordering an employee to smile and participate in meetings.  His perspective is that this would never work “in the real world.”  My perspective on his comment is that our agency solicitors wouldn’t support such an order or recommendation for removal.

Sad in Seattle

And our ever-thoughtful FELTG response:

Dear Sad-

Thank you for your nice note. It’s very kind of you to take the time to comment on one of our silly articles.

As for whether MSPB would uphold a removal for a failure to participate in meetings or smile, our job is to say what MSPB has done in the past so that we can predict what we can do in the future. And they have never said that this sort of misconduct (insubordination) would not support a removal. Our job is not to have an opinion on what should be done, but instead what can be done. That is my real world, and with all due respect, that is the real world of your supervisor as well as that of your solicitor.

We don’t need to guess at what MSPB would do. We just have to look and see what they’ve done in the past. When we do that, we find ZERO cases in which the Board has said that an employee is free to disregard a job-related order from a supervisor. In 40 years. Remember, I was the Chief Counsel to the Chairman at MSPB through most of the ’90s. I know this stuff. It is easy to imagine a job in which attending meetings would be job-related. Even smiling can be a job requirement; e.g., a supervisor might want employees who contact the public to smile for the benefit of presenting a better image of the agency. Your boss and your solicitor may not know this, but that doesn’t make them correct. Instead, it makes them uninformed.

Best of luck.

This is an important matter, not so much because we all want more smiling civil servants, but because it highlights a bedrock principle of the federal workplace. Supervisors get to decide what work is going to get done. Not some judge or political appointee on some board; the decision goes to front line supervisors. There are three and only three requirements for a supervisor’s order to be enforceable through discipline:

  1. There must be a nexus (relationship) between the order and the work of the agency,
  2. The order itself must not violate a law or require the employee to violate a law, and
  3. The order must be do-able (attainable).

Let’s say that you supervise a public contact Federal employee, perhaps a hypothetical screener for TSA. Your Customer Service surveys show that many members of the public who are screened by your employees find them to be gruff, uncaring, and rude (this is all hypothetical, of course). You decide that ordering your employees to smile might reduce the public’s negative perception of your crew. If you decide to order your employees to smile:

  1. There is a nexus between you order and the work of the agency,
  2. There is no law against smiling, and
  3. It is possible for employees to smile.

That’s all it takes. If Mr. Grumpy intentionally refuses your order for whatever reasons, you can reprimand him for insubordination. If he commits a second offense, you can suspend him, and if he commits another offense after he serves the suspension, you have the authority to consider firing him. You need not tolerate an insubordinate employee indefinitely.

“But, Bill. Won’t a judge overturn the removal on appeal?” Nope. The Board has long found fault with judges who insert themselves into the decision process regarding what work should be done. Supervisors decide what work should be done, enforceable through removal, if necessary. Even if a judge would never order her employees to smile and thinks it silly that any federal supervisor would give a smile-order, the judge has no authority to set aside the order. All she can do is review the order against the above three criteria, evaluate the penalty where she must give heavy weight to the repetitive intentional nature of the insubordination, and uphold the removal. If she did not, she would be affirming the power of federal employees to refuse to obey a supervisor’s order, and that’s just not going to happen. She cannot substitute her judgment relative to the wisdom of the order for that of the supervisor.

Tell employees what you want them to do, even if it’s something seemingly as minor as smiling. Apply progressive discipline to them when they don’t. Remove them if they become a three-striker. People can’t be forced to do what their supervisor tells them to do, but if they don’t, the supervisor has the authority to remove them from the civil service.

Remember that the next time your boss tells you to, “Have a nice day.” Better smile when he says that. [email protected]

It Can Be Bad; It Can Be Good

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By William Wiley, February 27, 2018

We love our questioners. Recently, we got an inquiry regarding an article written by one of our favorite authors. Here’s our response:

Dear Employment Law Gurus,

I read this article from Government Executive this morning. I would love to know your opinion of the premise of the article, basically it is too hard to fire federal employees, and the scenario the author provides.

http://www.govexec.com/excellence/management-matters/2018/02/low-rate-firing-government-employees-not-positive-sign/145763/?oref=govexec_today_nl

Thank you.

And here’s our guru-like response:

Thanks for your query. These are exactly the sorts of misunderstandings we love to address.

The author has expanded the scenario to make a valid point. As we have taught in our classes for years and provide as part of our consulting services, he is implementing, as is typical in many agencies, more actions than required by law. An FELTG-Certified practitioner would never do these things.

His list and our alternative:

Employee’s supervisor looks the other way First mistake. We teach supervisors to act immediately upon seeing misconduct.

 
Oral counseling Not required. Lehnerd v. OPM, 55 MSPR 170 (1992)

 
Written counseling   Not required and generally a bad idea because the employee will claim reprisal.

 
Written admonishment        Not required; potential reprisal claim same as above.

 
Reprimand Yes! Finally, the supervisor does what we teach should be done on day one.

 
Short suspension Can do. However, we teach to bargain with the employee to accept a Reprimand in Lieu of Suspension. No grievance that way.

 
15-day suspension Never! Why do something the employee can appeal to MSPB? Besides, unnecessary and of unproven value.

 
Proposed removal Yes! Should have been done after the Reprimand in Lieu of Suspension.

 
Injury after removal proposed Not in the FELTG world. We put the employee on Notice Leave so he is not in the workplace. No workers’ comp 45 days there.

 
Demands to be retrained     No entitlement to be retrained.

 
Reassigned Should have issued the decision to remove that was proposed earlier.

 

I know and respect this author. His scenario does indeed happen way too often. However, trained individuals know how keep this from happening:

  1. Reprimand,
  2. Reprimand in Lieu of Suspension,
  3. Removal.

Yes, appeals, grievances, complaints, and ULPs happen, but that’s the price we pay for a protected civil service. If you know what you’re doing, you can keep them down to a minimum, and always win them. As we’ve been screaming at the tops of our little FELTG-voices for nearly 20 years, it’s not the system as much as it is a lack of people who understand the system that’s the problem.

Come to our training. Learn the program. Be a Systems Superstar. We love this stuff. [email protected]

 

Another Congressional Tiny Little Foray into the World of Civil Service Law

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By William Wiley, February 20, 2018

Each year, the National Defense Authorization Act turns out to be a great piece of legislation into which members of Congress can stick things that have nothing to do with the nation’s defense. The Act for fiscal year 2018, HR 2810-335, is no exception. Dig through many pages in the bill of this and that, and you’ll find the following tidbit:

Sec. 1097(b)(5), INFORMATION ON APPEAL RIGHTS. —

(A) IN GENERAL. —Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to—

i. The right of the employee to appeal an action brought under the applicable section;

ii. The forums in which the employee may file an appeal described in clause (i); and

iii. Any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal.

(B) DEVELOPMENT OF INFORMATION. —The information described in subparagraph (A) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

Context

To appreciate the relevance of this language, we need to know a couple of things:

Adverse Actions: To suspend, demote, or fire a Title V career federal employee, most agencies take what is known as an adverse action, 5 USC Chapter 75. Agencies must issue two separate documents to make an adverse action happen:

  • A proposal Notice that tells the employee why the action is being proposed, and explains the employee’s rights to defend himself, and
  • A Decision memo that takes into consideration the employee’s defense of himself, and notifies the employee of the outcome of the proposal; g., removal, demotion, suspension, or nothing.

Rights Notification:  Since the beginning of time (OK, maybe it was just since 1979), agencies have been required to include in the Decision memo an explanation of the employee’s rights to challenge the agency’s final action through appeal to MSPB. Historically, agencies have also included an explanation of the employee’s alternative rights to file a grievance under a collective bargaining agreement, a discrimination complaint to EEOC, and sometimes an explanation of the US Office of Special Counsel’s jurisdiction to consider claims of whistleblower reprisal.

About five years ago, MSPB decided that the various rights notifications used by different agencies were not uniformly informing to the employee of all the alternatives available to challenge the adverse action, and the implication of selecting one venue over the other. Therefore, by regulation, the Board mandated that agencies must provide a complete description of the various redress alternatives when issuing a decision in an adverse action appealable to MSPB.

However, for reasons unimaginable to the common mind, the Board did not say exactly what language should be used for the rights notification. That left agencies floundering around guessing what should be said in the rights notification to make the Board happy, and the Board reviewing those rights notifications judging some to be adequate and others not.

Here at good old FELTG, we did the best we could to sort all that out. As soon as the regulatory requirement was mandated, we offered draft language that we guessed the Board would accept. A few months later, we had to tweak that language because of an MSPB decision that pointed out the need for greater specificity of notice. Still, even with the second tweaked draft, we weren’t really sure that the MSPB was being appeased or whether it just had not gotten around to finding fault with what we had recommended. Lesser agencies who do not abide by our FELTG suggestions continued down whatever language rabbit hole they thought to be the better path. Quite frankly, we were all running backwards in the dark because of the lack of distinct and specific instruction.

Comes Now the NDFAA for Fiscal Year 2018:  Amazingly, somebody on Capitol Hill saw how foolish this was, and interjected the language you see above into a passing piece of legislation. No offense intended here, but I am awe-struck that someone up there appreciates the difficulty that this lack of guidance causes. Talk about civil service minutiae. Hats off to whoever saw the problem, and thanks for trying to fix a dilemma that should never have occurred.

Unfortunately, the law misses the point of a rights notification. An employee needs to know her rights to challenge an adverse action after the decision has been made to implement the action; e.g., in the Decision letter. The statutory language above requires that the rights notification be included in the Notice proposal. So now what will happen is that the poor employee likely will be confused and start filing appeals before the agency has made a decision as to whether an adverse action will be implemented at all, and if so, what it will be. If that happens, poor overworked MSPB will have to dismiss all those pre-decisional appeals as premature, and the confused employee will have to get good advice to know to refile once the final decision is issued. Groan.

MSPB, why in tarnation didn’t you just tell us what language to use as a rights notification in the first place? Why put it on us simpletons to guess at what you wanted? OPM, when you saw that MSPB wasn’t going to be helpful, why didn’t you have one of your senior people Uber over to M Street NW and talk with someone at the Board about a coordinated issuance of acceptable language? This is staff stuff. This is what staffs do. No big decision-making; that’s left to the politicals. Just normal people saying to normal people, “Hey, we got a procedural problem here. Can you help?” Geez, see what happens when you leave it up to Congress to fix something we should have fixed ourselves? Good try; just missed.

We’re all in this together: MSPB, OPM, EEOC, OSC, the other civil service movers and shakers; maybe even old FELTG, if you’ll allow us a guest pass. The goal is to make government work smoothly and fairly. Congress is going to continue to micromanage us until we learn to manage ourselves. This is not the best way to make government work well. [email protected]

Bug Bites: How Do You Handle an Employee Who Brings Bed Bugs in to the Office?

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By Deborah Hopkins, February 14, 2018

A few days ago, I got an interesting hypothetical question from a long-time FELTG reader, and it was such a good one I thought I’d share it with the rest of you. It’s something I hope is always hypothetical and you never have to deal with in real life. Here we go:

Hi FELTG,

I have attended many of your trainings and your instructors have even been out to my agency to train our lawyers and HR personnel.  I have a hypothetical strange case that I was hoping I could bounce off of you all.

Hypothetically, what should an agency do if it has an employee who is bringing bed bugs into the office? Let’s say the agency has already paid for an exterminator once and the exterminator confirmed that this employee’s office was the source of the infestation.  Let’s also say that the employee’s supervisor has talked with the employee to notify her of the problem (if she wasn’t already aware), and she told management that she would address it.

Now let’s say it’s a few weeks later and there are still bed bugs in the office, and it’s so bad that other employees are getting bit. Because coworkers getting bit by the bedbugs, this is hypothetically creating a massive morale issue in the office. What do you think a hypothetical agency should do in a case like this? Here are some thoughts:

  1. Do I give him an order and then discipline him if he doesn’t follow that order?  Is my order “Do not bring bed bugs into the office”?
  2. Do I indefinitely suspend him until such time as he can prove to the agency that he has addressed the problem at his home?
  3. Do I put him out on enforced leave (I don’t like this option)?
  4. Do I allow him to come to work but separate him from everyone else and force him to bring a change of clothes each day that is in a sealed plastic bag?

I’m assuming that someone must have dealt with something like this before.  Do you have any thoughts?

And here’s the FELTG response:

Dear well-thought-out FELTG reader,

What an interesting hypothetical you’ve presented to us. While this person’s behavior clearly involves employee safety and health, it’s also misconduct – and as you know from being a long-time FELTG reader, charging misconduct is fast, easy, and free. You give her an order, thereby making it her problem to resolve, and “Do not bring bed bugs into the office” is a clear, understandable order. Of course, you’ll document this conversation with her.

If you’re not going to fire her when she violates the order (if you determine the misconduct does not rise to the level of removable misconduct under Douglas) you can even do an indefinite suspension until she demonstrates medically she is free of the little critters, see, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unsanitary, conduct in the workplace.

No need to do enforced leave, and (not legal advice, just personal advice) I wouldn’t do Option 4 because the plastic bags might not work, and it would just drag out the inevitable.

Thanks for the note, and good luck if a case like this ever presents itself in real life! 😉

[email protected]

How to Write a Robust Critical Element

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By William Wiley, February 14, 2018

Few supervisory responsibilities are less clear than how to write a good critical element. Goodness knows it’s not for lack of “guidance.” The performance management world is full of important-sounding words and concepts: maximizing S.M.A.R.T. performance standards, GEPRA cascading goals, quality/quantity/timeliness. And then we have mandatory generic standards written by somebody in HQ who doesn’t know diddly about how things are done out here in the field and don’t really say anything worth saying: “empowering,” “transparency,” “learning-based approach,” “bottom-up buy-in,” “cascading goals,” and this season’s favorite useless phrase: “promoting engagement.” Aauugghh.

If you’re like most experienced Federal supervisors, you’ve probably come to the conclusion that this performance management stuff is just a bunch of B.S. dreamed up by some overly-intelligent Human Resources specialists to keep us worker bees busy. It all may sound good and worthwhile, but as a practical matter, it does you little good when it comes to actually managing employee productivity and getting the job of government done.

Well, we agree. To a point.

First, let’s start with the law. Whether we think that performance appraisal is worth a bucket of warm spit or not, we have to do it. The Civil Service Reform Act of 1978 mandated it throughout government, and there is little likelihood that Congress will be changing that aspect of the law any time soon.

Next, we come to the minimum you have to do. As a Federal supervisor, you are required to create at least one critical element (CE) in each performance plan you write. For each CE, you must create a performance standard by which you will rate the employee either Unacceptable or higher using one or more levels of rating above that. Drafting a usable CE and its standard is your primary responsibility because nothing else works in a performance management program without that.

And there’s the rub. I don’t know about you, but for every good CE I have seen in my career, I’ve seen a hundred that were miserably bad. Even with all those pages and pages of guidance put out by OPM and your own agency, nailing an effective CE is just about the hardest thing a supervisor has to draft each year.

Well, you’re in luck. Here at FELTG, we have devised a method for writing a power-packed, customized CE for every employee in government. It combines a fair amount of judgment with some hard lines in the sand for accountability. We can hardly wait to tell you about the FELTG-Method©, but first, you need to appreciate our bias:

Performance appraisal doesn’t work.

What? How can that be? Would Congress and OPM require federal agencies to spend millions of hours doing something that has not been proven to be an effective management tool? Yes, they would. As the lawyers say when something speaks for itself, res ips. The sad reality is that while annual performance ratings for employees sound like a good idea and are embedded in many organizations, you’ll be hard-pressed to find any academic research that finds that they are worth the effort. In fact, what you’ll find instead are studies that say that annual performance appraisals act to de-incentivize good performance. So, when we say we have a great way to write a CE, we’re not saying that because it’s a magic bullet to fix a non-functional performance appraisal program.

Instead, what we’ve done is come up with a terrific way to write a CE for the purpose for which they indeed are useful: to draw a line in the sand for employees either to keep their jobs or get fired. If you want something that helps you differentiate between Exceptional, Superior, Exceeds Expectations, Outstanding, or any of the other slices of acceptable performance, you’ll need to look elsewhere. However, if you want a CE that you can use easily to make it clear to the employee what she has to do to keep her job, then this approach is for you.

Now that you have the background, look for the other two articles in this edition of the FELTG Newsletter and learn the secrets of a super-duper CE. Once you’ve mastered the FELTG-Method© trick, promise us you’ll use your new powers only for good and not evil. [email protected]

EEO Contact: No Mind Reading Required

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By Meghan Droste, February 14, 2018

The federal sector process is made up of many steps with many deadlines.  Complainants must do several things, most of which involve filling out forms, before their cases go to hearing before an EEOC administrative judge.  Even one missed step can mean the end of a complaint.  Perhaps the most important of these steps is making initial contact with the EEO office (or someone reasonably connected with it—a topic for another article) within 45 days of the last discriminatory event.  It seems so simple from an agency’s perspective—if the agency took the alleged discriminatory action more than 45 days before the complainant contacts an EEO counselor, it’s all over for the complainant.  Of course, it’s not always that simple.

As the Commission reminds us most recently in Shayne K. v. Department of Defense, EEOC Appeal No. 0120180070 (January 4, 2018), the 45-day clock actually starts from when the complainant knew, or should have known, that the discriminatory act occurred.  In examining these issues, the Commission applies a “reasonable suspicion” standard.  This means that the 45-day time period does not start until the complainant reasonably suspects that he or she is the victim of discrimination.

This still seems pretty easy, right?  In a non-selection case, for example, a complainant must contact a counselor within 45 days of learning that the agency selected another candidate.  Well, not necessarily.  The Shayne K. case is a good example of how that clock does not always start ticking right after the complainant becomes aware of the personnel action.  The agency notified the complainant on February 16, 2017 that it had selected someone else for the position at issue.  The agency did not, however, tell the complainant who it had selected.  The complainant learned on June 20, 2017—through the results of a FOIA request he filed in February—that the selectee was outside of the complainant’s protected class.  The complainant then contacted an EEO counselor on June 26, 2017.

The Commission held that the complainant’s EEO contact—130 days after he learned of the non-selection—was timely; because the complainant did not know the protected classes of the selectee until June, he could not have reasonably suspected that he was the victim of discrimination until then.  The very act of the non-selection was not enough to trigger the deadline—there had to be some reason for the complainant to suspect that the agency did not select him for discriminatory reasons. Ultimately, the EEO process requires reasonable suspicion, not mind reading.  [email protected]

More on the Dangers of Charging Intent: Threat and Willful Misconduct

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By Deborah Hopkins, February 14, 2018

Last month we discussed charges that carry an element of intent. If you didn’t get a chance to read it, check it out here: https://feltg.com/the-dangers-of-charging-intent/. As a reminder, if a charge includes an element of intent, the intent must be proven by a preponderance of the evidence. Usually we don’t have a confession showing intent, so we look at circumstantial evidence and consider the totality of the circumstances. Naekel v. Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986); Boo v. DHS, 122 MSPR 100 (2014).

This month we will be looking at two specific charges: threat and willful misconduct.

Threat

The lead case on threat is Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986). If you haven’t read it, you really should. As a quick summary, though, Mr. Metz was an instructor at the Federal Law Enforcement Training Center, and he was not happy with his performance evaluation: he received an annual rating of “excellent” but believed he deserved an “outstanding,” and he said he would harm himself and others. Two of Metz’s coworkers also reported that they heard Metz say he was going to kill his supervisors.

Threats of harm against a government supervisor are taken seriously, though sometimes it is difficult for an agency to determine if a threat actually has been made, or if a person is just talking out of frustration or anger. In reviewing removals based on threat charges, MSPB must use “the connotation which a reasonable person would give to the words.” Meehan v. USPS, 718 F.2d 1069, 1075 (Fed. Cir. 1983). In other words, look carefully at the circumstances.

Metz sets out five factors to help determine whether a threat has been made:

  1. The listener’s reaction;
  2. The listener’s apprehension of harm;
  3. The speaker’s intent;
  4. Any conditional nature of the statements; and
  5. The attendant circumstances.

Intent evidence shaky? Consider another charge for the misconduct. Discipline has been upheld for a charge of “Making statements that caused anxiety and disruption in the workplace,” McCarty v. Navy, 95 FMSR 5122 (1995), and charging “inappropriate conduct,” but bringing intent evidence into the Douglas analysis as justification of a more severe penalty, Brough v. Commerce, 119 MSPR 118 (2013).

Willful Misconduct

So, what the heck is this charge “willful misconduct”? It’s a deliberate and intentional (not careless or heedless) disobedience of a lawful order. So if you’ve got intent evidence that the disobedience was intentional, go forth and charge. However, as always when dealing with intent, proceed with caution.

The line between careless and willful should not be ignored.  We often see employee injuries and workers’ compensation claims in cases of willful misconduct, and when an employee’s willful misconduct leads to his injury, his actions take him out of the performance of duty. I.A. and USPS, No. 15-1913 (ECAB 2016). For example, a USPS employee drove a GOV without a seatbelt and entered an intersection with the vehicle’s passenger-side door open. These behaviors were not willful misconduct but rather were lapses of judgment, because they did not exhibit wanton or reckless disregard of probable injurious consequences. L.R. and USPS, No. 08-84 (ECAB 2008). Because there was no evidence of premeditation…or intentional wrongdoing, or that the employee knew his behavior was likely to result in serious injury, his claim was not precluded under workers’ comp. Id.

As we said last month, and will say a thousand more times, the bottom line in labeled charges that contain an intent element: be sure you have a preponderance of the evidence on intent, because if you don’t you will lose your whole case, and Mx Misconduct will be coming back to work for you. [email protected]

Surprise: We Start with the Position Description!

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By William Wiley, February 14, 2018

When we think about writing a performance plan, we don’t usually start with the employee’s position description. We read goals and objectives passed down to us from higher up, often from people with important ideas and responsibilities, but have little to do with front line performance and accountability. For example, the US Office of Special Counsel just got a law passed that says that every federal supervisor has to have a CE that measures how much they support the employee’s right to blow the whistle. The well-intended folks working on protecting employees from civil rights discrimination sometimes require a “diversity” CE. By the time we deal with special interest groups and generic CEs that say nothing, there’s precious little room left for CEs that are customized to the employee and the work the employee needs to perform.

That’s why we need to get to the heart of the employee’s job as quickly and efficiently as possible. And the employee’s job starts with the PD. So, get that document onto your computer, preferably in Word or editable PDF. Be sure its accurate or this won’t work. If it’s not accurate, stop right now and make it accurate. Your agency’s classification office will be glad you did.

Step 1. Using the Position Description, list all significant tasks required to perform in the position.

This is easy if you know how to copy and paste. The Introductory section of a PD lists all the tasks that you expect the employee to perform; e.g., “Files all incoming correspondence,” “Plans and manages the regional XYZ Program,” “Serves as the agency’s contact point with community partners,” etc. Go through the first section and perhaps the Knowledge section of the PD sentence by sentence. If the sentence says nothing of importance and does not describe a task, skip it. If it does describe a task, but not an important one, skip that as well.

One of the good-news-secrets of a performance-based removal is that you will not have to defend your characterization of a task as important or not. If you say that it’s important, it is. A judge will not go behind that decision and ask you to prove it or to otherwise justify your judgment.

When you come to a task that you deem to be important, using your word processing program, select the sentence with your little mouse, copy the sentence out of the PD document, then paste it into a separate document. Continue through the PD, copying and pasting, putting each new task on a separate line in the new document. When you finish, you will have a list of 10-50 important tasks you expect the employee to perform in that position. Using a sample PD from one of our favorite FELTG clients, your list should look something like this:

  1. Provides access, as appropriate, to offshore energy and marine mineral resources.
  2. Oversees the environmentally sound development of these resources.
  3. Coordinates the review and analysis of offshore energy and marine mineral lease proposals.
  4. Manages the Financial Accountability and Risk Management Program.
  5. Administers lease adjudication and management functions.
  6. Conducts environmental reviews, analyses, and consultations for proposed activities.
  7. Etc.

Option:  Legally, you can use the entire list to develop a single CE. However, in your judgment, maybe some of the tasks group well with certain other tasks, and for whatever reasons, you would like to have more than one CE. If so, copy and paste the tasks from the overall list derived from the PD into whatever groupings seem to make the most sense to you. For example, maybe some of the tasks are more administrative and others are more technical. Therefore, you might choose to have two CEs, one for each grouping. Here, we’ll deal with just a single CE, for simplicity.

Step 2. Dig out your agency’s handy-dandy appraisal form, the one you’re required to use to develop the employee’s annual Performance Plan.

Find a place on the form where you are allowed to create a CE. Give your CE a nice general name; something like “Technical Expectations” should work. Depending on your agency, you may be required to develop from two to five performance standards, one for each rating level in your agency’s performance policy. Again, for the sake of simplicity, let’s say that you are required to have three rating levels: Outstanding, Successful, and Unacceptable.

Go to the Successful level and begin to define the CE as follows: “Performs all of the following tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product.” Below this introductory characterization of your expectation, cut and paste the task list you developed from the PD.

Critical Element No. X: Technical Expectations

Successful – Performs all of the following tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product.

  1. Provides access, as appropriate, to offshore energy and marine mineral resources.
  2. Oversees the environmentally sound development of these resources.
  3. Coordinates the review and analysis of offshore energy and marine mineral lease proposals.
  4. Manages the Financial Accountability and-Risk Management (FARM) Program.
  5. Administers lease adjudication and management functions.
  6. Conducts environmental reviews, analyses, and consultations for proposed activities.

“But, Bill, there’s a lot of subjectivity here. Aren’t employees entitled to know our specific expectations?” Yes, Virginia, they are. And we provide that subjectivity through the day-to-day feedback we provide employees as their supervisors. If we decide we must place the employee on a PIP, we will give this enlightening feedback through formal feedback sessions set up and documented weekly during the PIP. The language here is good enough to get the performance year rolling and can be built upon as necessary as the year develops.

Step 3. Define the other two levels of performance.

Outstanding – Performs all tasks as identified for the Fully Successful level, and in addition exhibits an overall degree of professionalism above that expected for the Fully Successful level.

Unacceptable – Performs any task in a manner inconsistent with the expectation set for the Fully Successful level, failing to perform one or more tasks at the Successful level.

There you have it. Room to rate above fully successful if you think that’s necessary. A bright line in the sand if you PIP the employee. Remember, you don’t have to prove that your standard is particularly reasonable, only that it was attainable and that you resolved any ambiguity in the standard by PIP counseling. Given that the level of proof necessary to uphold a performance removal is only substantial (more than a scintilla, but less than the weight of the evidence), you will not have a problem on appeal justifying a removal using this task standard. Now, get out there and hold somebody accountable. [email protected]