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]

Tips from the Other Side, Part 2

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By Meghan Droste, February 14, 2018

Confession time—I’m a rule lover.  Now, I don’t just mean that I follow the rules; I mean that I really like when there are rules, I enjoy reading the rules, and I derive some not insignificant amount of joy from following the rules.  I think this explains my love of baking (the recipe is just a list of rules that need to be followed) and etiquette books (I have a collection).  Every Sunday morning, I start my day by reading The Ethicist column in The New York Times Magazine while eating a bagel.  Judge if you want, but we all have our own quirks.

One of the reasons I like having rules is that they set out parameters and expectations.  When I’m baking—whether it’s a new recipe or one that I have made dozens of times—I know what ingredients I need and in what order to mix them, and I know what the outcome will be.  Similarly, I know what I need to do as a litigator because there are often specific rules that set out the order of things to do and the deadlines for doing them.  I follow the rules because I like to, but also because I know that if I don’t follow them, there can be significant consequences.

I share all of this with you because it seems some agencies think that the rules can be bent just because it’s hard to follow them.  One of the rules that is so basic and yet so often ignored is the deadline to complete an investigation of a formal complaint.  As you know, agencies have 180 days from the date a complainant files a formal complaint to complete an investigation and issue a Report of Investigation.  This is in fact a deadline, not a suggestion.  When I find that an agency has missed the 180-day deadline, I always file a motion for sanctions.

When reviewing a motion for sanctions, the Commission is unlikely to be moved by any excuses the agency might offer.  Understaffed?  You still have to follow the rules.  See Lomax v. Dep’t of Veterans Affairs, EEOC App. No. 0720070039 (October 2, 2007) (“The agency’s internal situation cannot be used as a defense to its failure to comply with the Commission’s regulations.”).  In a budget crunch?  You still have to follow the rules.  See Royal v. Dep’t of Veterans Affairs, EEOC Req. No. 0520080052 (September 25, 2009) (“[W]hen considering whether an agency has the fiscal resources to comply with the requirements of the EEO process, it is appropriate to look to the agency as a whole . . . the agency cannot expect to evade the consequences of its funding decisions.”).  Using a contractor?  You still have to follow the rules.  See Adkins v. FDIC, EEOC App. No. 0720080052 (January 13, 2012) (“Even when agencies contract with other organizations to conduct investigations, the agencies remain responsible for the content and timeliness of the investigations.”).

The Commission has sanctioned agencies many, many times for the failure to meet this deadline.  The severity of the sanctions can vary, but default judgment is common.  Why risk the ultimate sanction—a finding that the agency discriminated against a complainant—when the rules are so clear?  Make sure you hold the people in your agency accountable for timely completing investigations of EEO complaints.  Trust me, it’s fun to follow the rules.

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]

 

But, What if I Want to Go Performance-Rating Crazy?

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By William Wiley, February 14, 2018

Let’s say that you’ve drunk the Kool-Aid and think that there just must be more than this to holding employees accountable for performance. You want not three levels of ratings, but five. Maybe some of your important tasks are more important than others. What if you’re willing to be more forgiving of an employee, rather than requiring that he perform all the tasks in his position before you will fire him? Can you still use the FELTG Method©?

Sure, you can. You just have to do a little creative tweaking (not “creative twerking”; Deb always corrects me on that one).

More Than Three Levels of Rating.

Let’s say that your agency requires five levels of rating:  Outstanding, Exceeds Successful, Successful, Minimally Successful, and Unacceptable. In addition to the three levels defined above, you can define the two additional levels like this:

First, change the definition above for Outstanding to the definition for Exceeds Successful. Then add the new definition for Outstanding to be:

Outstanding – Performs at the Exceeds Successful level, and in addition develops creative solutions for difficult challenges that arise during the appraisal period.

Then modify the Unacceptable level so that it comports with the Minimally Successful level like this:

Minimally Successful – Performs any single task in a manner inconsistent with the expectation set for the Fully Successful level.

Unacceptable – Performs two or more tasks in a manner inconsistent with the expectations set for the Fully Successful level.

A Desire to Distinguish Among Important Tasks

Let’s say that after you review your list of important tasks, you conclude that although all of them are important, some are REALLY important; more important than the others. If you want to address this, it’s easy. Just sort the tasks into two groups, like this:

Major Tasks

  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.

Standard Tasks

  1. Manages the Financial Accountability and-Risk Management Program.
  2. Administers lease adjudication and management functions.
  3. Conducts environmental reviews, analyses, and consultations for proposed activities.

Once that’s done, you can make all sorts of decisions as to what you will accept as satisfactory performance.  Perhaps you want the Successful level to be, “Performs all of the following Major Tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product. Performs the following Standard Tasks within established time limits, consistent with accepted practices in the field, and free of any errors in the final product, with no more than two exceptions during the year.” Maybe you decide that you want the Unacceptable – to be, “Performs any Major Task or three Standard Tasks in a manner inconsistent with the expectation set for the Fully Successful level.” You can mix and match Major and Standard Tasks all day long until you get just the right combination of task failures to define your expectations.

Remember our bias here at FELTG. We don’t see a lot of reason to get all wrapped up in distinguishing among the levels of performance above Unacceptable. Yes, there’s a lot of judgment left to the supervisor in the above FELTG-Method©, but there is going to be a lot of judgment any time you rate an employee’s performance (if you doubt that, watch the judging of the figure skating event at the Olympics). So, cut to the chase, focus on the demarcation between Unacceptable and whatever you call the performance level above that, and you’ll be an Accountability Sheriff, protecting the federal workforce from shoddy performers and defending our way of life here in The Greatest Country in the World. Go get ’em. [email protected]

“Turn Out the Lights, the Party’s Over”

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By William Wiley, February 6, 2018

That old party-ending song by the Spaniels seems appropriate this week. In case you haven’t heard the death knell tolling, here’s the shot heard ’round the civil service last week. From the State of the Union address:

“Last year, the Congress passed, and I signed, the landmark VA Accountability Act.  Since its passage, my administration has already removed more than 1,500 VA employees who failed to give our veterans the care they deserve. … So tonight, I call on the Congress to empower every Cabinet Secretary with the authority to remove Federal employees who undermine the public trust or fail the American people.”

Media outlets on both sides of the political spectrum foresee this initiative, if it comes to pass, as making it easier to fire people from government as the President claims has happened at DVA this past year. Of course, some talking heads think this is great, and some think this is terrible. Here at FELTG, we take a step back and try to understand just what it means before we jump to judgment.

First, though, a prologue. If an initiative gets into a State of the Union address, you can bet your next paycheck that there is someone very important and powerful in the administration behind the idea and willing to make it happen. This is not some stray remark that will be forgotten after the next tweet storm. This idea has legs, it beat a lot of other ideas out to make it to the speech, and somebody is going to be pushing hard to make it law.

With that said, if the DVA procedures are implemented for the rest of government, let’s take a look at what will change. Read carefully because some of what I’ve seen in the media is not exactly accurate or is misleading. If you get it here from the employment law pros, you get it right.  All numbers refer to calendar days:

Removal Procedure Most of Government DVA New Law
Employee right to a PIP for poor performance Yes No
Proof necessary to support removal Preponderance Substantial
Days for employee response to proposed removal 7 10 (I think)
Days between proposal & removal 30 Usually 21
Days to file an appeal to MSPB 30 7
MSPB stay authority (to order agency to stop) Yes No
Days for AJ to rule 120 (flexible) 63 (firm)
AJ authority to reduce penalty Yes No
Days to appeal an AJ decision to Board 30 9
Days to appeal of Board decision to court 35 9

Grouping the changes allows us to consider their value in the real world (not to be confused with the World of Capitol Hill):

Shortened Time Frames – Reducing the response and decision periods while the employee is on salary makes sense. Let’s get this thing done and get the employee off the payroll. However, we have to admit that a nine-day reduction – with only five to seven of those days being in a pay status – isn’t the greatest salary savings we can imagine; it’s a mere drop in the bucket considering the agency’s overall payroll.

In comparison, shortening the appellate time frames, when the employee is no longer on the payroll, doesn’t seem to create much benefit for the agency, other than one big one that no one’s talking about. Shorten the time frames for an appeal, and we’ve reduced the employee’s opportunity to find a lawyer-representative, and for that representative to put together some sort of defense of the employee. Is it really fair to the employee to allow the agency unlimited time to build a case for removal, then restrict the employee’s time to prepare a defense for no good reason other than disadvantaging the employee? We’ll leave it up to the appellants’ bar to argue that one further.

Reduced Burden of Proof – A lot has been made of this aspect in the press. On paper, lowering the agency’s burden from “more likely than not” (preponderance) to only substantial evidence looks like a big deal. Substantial evidence is “more than a mere scintilla of evidence, but less than the weight of the evidence.” Jones v. HHS, 834 F.3d 1361, 1366 (Fed. Cir. 2016). That should be a major change when we consider that a scintilla is no more than a particle, iota, jot, whit, atom, speck, bit, trace, ounce, shred, crumb, fragment, grain, drop, spot, modicum, hint, touch, suggestion, whisper, or suspicion.

Unfortunately, reality doesn’t give us a lot of hope with this change. Since 1979, the burden of proof an agency must satisfy when firing someone for misconduct has been at the preponderance level. However, in 2015 the good folks at MSPB’s Office of Policy and Evaluation surveyed a bunch of federal managers and found out that 97% (97 freaking percent!) of front line supervisors think the burden is much higher than that. In fact, 90% thought we need just as much proof to fire someone from government as we need to send that same person to the electric chair. Congress could lower the evidence burden even further – to a jot, iota, or whisper – and it would do no good if the profession of civil service law doesn’t do a better job of explaining things to decision-makers.

No More Penalty Mitigation – Of the three areas of change, this one stands to be the greatest benefit to agency managers who are trying to hold employees accountable (and the greatest worry to our friends on the union side). Today, when an agency builds a removal case, half the effort goes into defending the penalty against mitigation; analysis and proof of the famous Douglas Factors. Here at FELTG, when we draft a proposed removal for a supervisor, the charge is usually no more than a page, and the Douglas Factor Worksheet is often three or four pages. Each worksheet page requires file evidence to prove each factual statement in the Douglas Factors. Little is more painful in our business than losing a removal – even though misconduct was proven – because the Board concluded that our penalty was too severe.

Under the DVA’s new procedures, prove the misconduct that is charged, and we’re done. No need to muster evidence to defend against mitigation on appeal. Woo hoo! But think how this could work out. The 20+ year employee with no prior discipline and outstanding performance ratings comes to work 15 minutes tardy one day. If the agency fires him and proves the tardy charge, under DVA’s new law, it appears that we’re done. The Board and the courts have no authority to lower the penalty. If they uphold the charge, they uphold the removal, even though most of us would consider the misconduct to be trivial. Is this really what we want for our federal employees? Is this what we would call an efficient civil service?

Lots of speculation in this situation, folks. And I defer to anyone who has a better handle than do I on DVA’s new law and the direction we’re going with this whole thing. Until we start getting some case law, and until Congress decides whether it will follow the lead of the President, your guess as to how things will look this time next year is just as good as anyone else’s. [email protected]

What a New MSPB Board Member Nominee Should Know

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By William Wiley, January 30, 2018

Finally, after all those political donations and fund raisers, your name pops up as a candidate for a political appointment in the current administration. When you get The Call from White House personnel, your little heart starts to flutter. Will it be the ambassadorship to Ireland? The Under Secretary of State assigned to Europe, Japan, and (interestingly) Honolulu? Or, maybe you’re going to be asked if you’d like to be on the short list for the next vacancy at the Supreme Court. You can hardly wait to find out what they’re considering you for. Your mom has the hometown newspaper holding a space on Page One for the big news.

And then the shoe drops. The President is thinking you’d be of great service as a member of the MSPB. There goes the front-page article. Having no idea what those initials stand for, you quickly Google for more information while you’re telling the caller how honored you are and how you’ve always dreamed of serving the President in his still-new administration. Trying to find out what you might be getting yourself into, you hastily type into the browser’s search field www.mspb.gov. And suddenly you come to believe that you are going to be appointed to a mental hospital located just south of Bordeaux, France.

Fortunately, you soon see your error. The correct site is www.mspb.gov. Whew. Learning French was going to be hard, especially those medical terms.

OK, so you’re being nominated to be a Board member. And after a bit of reading, you find out that this is what a Board member’s life is like:

  1. The Board’s judges do the heavy lifting by conducting a hearing, weighing the evidence, then issuing an “Initial Decision” resolving the appeal of some poor fired civil servant or some other matter within MSPB’s jurisdiction.
  2. When an appeal of the judge’s decision is filed with the Board members, the case is worked by the career staff at HQ, then forwarded to the three Board members for their consideration of a draft decision.
    • If a member agrees with the career staff’s recommendation, he signs his name as adopting.
    • If a member disagrees with the career staff’s recommendation, he drafts a memo to his two colleagues about why he is disagreeing and arguing for a different outcome and a rewritten decision.
    • The other two members then review the appeal file and can either a) concur with the staff’s recommendation, b) concur with the other member’s proposed rewrite, or c) come up with their own proposal for rewrite.
  3. The case then circulates among the three members until at least two of them agree as to how the decision should be written.
    • If there is agreement that the staff’s recommendation is correct, the members sign a vote sheet indicating their agreement, and within a day or two the recommended decision is issued as the Board’s final opinion and order.
    • If there is agreement that the staff’s recommendation is incorrect, the case is returned to the staff for a rewrite.
    • When the rewritten decision is forwarded to the three members, it’s subject to the same rotation for voting and argument as before, although it’s unlikely much argument will happen as the members have already spoken as to the outcome they will adopt.
  4. If all three members agree, the final decision is issued after the original or rewritten opinion and order is adopted by all three members.
    • However, if one of the members disagrees with the other two, that member is given the opportunity to write a dissenting opinion.
    • Then that Dissent is circulated to the other two members to give them an opportunity to respond to the Dissent in the Majority Opinion.
    • Then the dissenting member is given an opportunity to respond to the changes made to the Majority Opinion by modifying the Dissent.
    • And thus, the case goes ’round and ’round until all three members have said all they want to say, and then the final opinion and order is issued.

While you’re on hold with the White House, waiting to talk directly to the President and accept the honor of a nomination to be a Board member, you think about this work that you’ll be doing. You moved paper before, thought about things, and made hard legal decisions. You can do this. When, you retrieve the Board’s annual report, you realize that about five appeals enter the Board every workday. That means that on your end, you’ll have to vote a final decision out on five cases a day to stay even with the incoming workload. OK, that’s a lot of adjudicating to do. But you’re a can-do sort of person, and by really leaning in, eating lunch at your desk, and forgoing long vacations, you can make this happen.

And then you read the FELTG newsletter. There you find out that because the Board has lacked a quorum for over a year, your caseload is not five decisions a day to adjudicate, but 800 pending appeals PLUS five new ones that come in every day.

The automated announcement on the phone says that you’re now being taken off hold:

President Trump: “Hello, this is the President. I’m delighted that you’ve agreed to take a position in my administration!”

You:  CLICK.

Lordy, we hope that somebody out there will accept an appointment to be a Board member given the current situation. Perhaps someone with no family, no friends, and a fondness for working indefinitely beyond the point of mental and physical exhaustion. Our country will be forever grateful.

However, if you do get The Call, we couldn’t blame you one bit if you took a pass. Life’s short. It’s so much more fun casually reading the FELTG Newsletter and going early to happy hours than reviewing all those old boring legal briefs that will be shoved at you.

But if you do take The Call, don’t say we didn’t warn you. [email protected]

Tell Me This is Not Crazy

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By William Wiley, January 24, 2018

I don’t care which side of your bread is buttered, you have to admit that our current system of oversight is a pretty poor way to set up protections for federal civil servants. Consider the following:

  1. Congress so loves the civil servant and wants those individuals in federal employment to be protected from mistreatment by their managerial overlords that it has passed several laws to provide protections:
    • It is illegal for agency managers to mistreat employees because they have filed complaints alleging civil rights discrimination: 42 USC 2000e et seq.
    • It is illegal for agency managers to mistreat employees because they have filed grievances: 5 USC 2302(b)(9)(A).
    • It is illegal for agency managers to mistreat employees because they have engaged in union activity: 5 USC 7116(a)(1).
  1. Congress, in its wisdom or folly, has established at least three institutions to make sure that the above laws are not broken:
    • The US Equal Employment Opportunity Commission has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a discrimination complaint.
    • The US Office of Special Counsel (in collaboration with the US Merit Systems Protection Board) has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a grievance.
    • The Federal Labor Relations Authority has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously engaged in union activity.

Let’s take a non-hypothetical employee who believes that his agency has mistreated him on 40 separate occasions.; e.g., Letters of Warning, failure to accommodate a disability, his supervisor laughed at him … the typical list of reprisal actions. He sees a big poster on the agency’s Official Bulletin Board advertising the rights employees have to file discrimination complaints, and so he does. He believes that he has been mistreated because he has previously filed complaints alleging civil rights discrimination.

As the discrimination process works, he gets to make his arguments to an investigator, then an EEOC judge, and then to the EEOC headquarters unit that oversees federal employee claims of reprisal. And after TEN YEARS, he gets his answer. Indeed, there was reprisal against him on the part of the agency. However, it was not because of his previously filing EEO complaints. Instead, the reprisal – according to EEOC – was because he:

  1. Previously filed a bunch of grievances, and
  2. Previously engaged in protected union activity.

No EEO discrimination here. Sean T. v. USPS, EEOC Appeal No. 0120150928 (December 5, 2017).

This individual (code named: “Sean T.” like some Irish rapper; “Hey, Big Sean T.! Hit me up with that ‘Irish Eyes are Smiling’ tune again. That thing’s dope!”) was employed by the U.S. Postal Service. Therefore, he did not have access to OSC or FLRA, as would a civil servant in another federal agency, but the result would have been the same if he did. EEOC does not have the authority to protect an employee who is mistreated by agency management, unless that mistreatment was motivated by the civil rights laws.

Poor Sean T. After a decade, he finally has an answer. He was not mistreated because he previously filed discrimination complaints. Oh, yes, my friend. He indeed was mistreated. But not because of civil rights discrimination. He just got himself into the wrong forum with his allegation, and thereby is back where he started in 2008 about the time Barack Obama first took the oath of the Presidency.

That seems like so long ago, doesn’t it.

Look. Here at FELTG, we’re not siding with Mr. Sean T. Frankly, he looks like someone who would be a pain to try to manage. Instead, we’re siding – as we always do – with the side of a fair and efficient government. This particular oversight scenario is neither fair nor efficient.

Somebody, please. Fix this. It’s not DACA, but it’s worth some amount of Congressional thought. [email protected]

Congressional Health Insurance and Your Children

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By “Just a Bill” Wiley, January 17, 2018

OK, Kiddies, here’s how government really works, and you won’t find a schematic of this in the back of your high school civics textbook (e.g., “I’m Just a Bill”).

  1. Way back in 2013, OPM granted an exemption to the requirements of Obamacare to members of Congress.
  2. A Senator thought that OPM’s actions were unjust, and demanded that OPM produce documents to support how it made the decision to grant the exemption.
  3. OPM did not comply. For years.
  4. In 2017, the White House nominated a new director of OPM, to replace the acting director.
  5. The disappointed Senator, seeing an opportunity to get the information he had been waiting on for since 2013, placed a hold on the OPM director’s nomination.
  6. About the same time, the White House decided that our great country had too many federal regulations. Therefore, it placed a semi-freeze on the issuance of new regulations by agencies. Agencies that don’t happen to have a current politically-appointed head in place had better be darned careful about issuing ANY new regulations by an acting director.
  7. Also about the same time, the statutory deadline for OPM to issue new regulations implementing the Notice Leave provisions of the Administrative Leave Act of 2016 came and went in September 2017.
    • Those new regulations, if implemented properly by OPM, will allow agencies to get potentially dangerous employees out of the workplace during the 30-day notice period of a proposed termination, thereby limiting their ability to kill people.

Which brings us to your children (or to the children you might conceivably have some day). A number of agencies have mistakenly concluded that Notice Leave cannot be used until OPM issues implementing regulations. Of course, that is wrong. As every student learns in that high school civics class we talked about earlier, a bill becomes a law when signed by the President. The effective date of the new law is NOT delayed until regulations are issued, unless the law itself so states. And the Administrative Leave Act of 2016 did not delay its implementation. Therefore, agencies have had the authority to use Notice Leave to get dangerous people out of the workplace since the President’s signing of the bill over a year ago.

Unfortunately, you might work in one of those agencies that has not implemented Notice Leave because OPM has not yet issued the regulations it was required by law to issue no later than September. If that is the case, and you are keeping bad employees in the workplace during the 30-day notice period of a proposed removal, you are exposing yourself unnecessarily to a potential 30 days of violent behavior. In our great country, violent behavior sometimes involves guns, explosives, and death.

You can tell we feel strongly about this here at FELTG. We want everybody’s children to have a mom and dad to grow up with, to teach them how to live, and how to apply for good government jobs when that time comes. If you are the victim of workplace violence caused by your agency’s failure to implement Notice Leave (because we don’t have OPM regulations, because we don’t have an OPM director, because OPM granted an exemption to Congress relative to Obamacare), our heart breaks.

Government is supposed to work. This is not government working. When you get home tonight, be sure to hug someone close to you. Because you just never know when you’ll get the next chance. [email protected]

It’s Called a Deadline, not a Whenever-You-Get-to It-Line

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By Meghan Droste, January 17, 2018

Although I have represented both agencies and complainants, I spend most of my time on the employee side of things.  As anyone who regularly represents employees will tell you, at times it feels like the rules only apply to complainants.  There are numerous deadlines, including some that feel impossibly short, and if a complainant misses just one, it can be fatal to her complaint.  On the other side, agencies miss deadlines with some frequency and it seems like there are no consequences.  Fortunately, or unfortunately depending on your perspective, that perception is not (always) right.  The case discussed below highlights just how important it is for agencies to meet their deadlines as well.

In Selene M. v. Tennessee Valley Authority, the complainant worked for the agency as a contract General Foreman. In 2011, the agency involuntarily reassigned the complainant to a different work location, downgraded her position, and reduced her pay. One month later the agency removed the complainant and permanently banned her from employment with the agency as an employee or a contractor. The complainant filed a formal complaint alleging a hostile work environment and reprisal. Notably, the agency acknowledged in its letter accepting the complaint for investigation that it was a joint employer of complainant.

Following a hearing, the administrative judge entered a finding of sex discrimination and reprisal.  The judge ordered the agency, among other relief, to place the complainant in a permanent position with a salary equal to or greater than what she was earning at the time of the discriminatory events. The judge also ordered the agency pay the complainant back pay with related retirement benefits.

The agency attempted to appeal the administrative judge’s decision. Selene M. v. TVA., EEOC App. No. 0720150024 (October 18, 2016). I say attempted because although it appears the agency timely mailed its final order to the complainant, it failed to timely mail its final order and appeal to the Commission.  The agency explained its 13-day delay as an inadvertent error.  The Commission, however, was not moved by this explanation, rejected the agency’s appeal, and ordered the agency to take the same remedial actions the administrative judge previously ordered.

Unlike its appeal, the agency timely submitted its request for reconsideration.  Selene M. v. TVA, EEOC Req. No. 0520170121 (April 11, 2017).  In its request, the agency argued that the order to reinstate complainant in a permanent position and to pay related benefits was plainly an error because the complainant was a contractor and not entitled to this relief.  The Commission refused to address these arguments, rejecting the agency’s request because there was no error in its earlier the finding that the agency’s initial appeal was untimely.

The agency did not take no for an answer, as we learn from the complainant’s subsequent petition for enforcement.  Selene M. v. Tennessee Valley Auth., Pet. No. 0420170027 (December 15, 2017).  Although it implemented some of the relief previously ordered, the agency refused to reinstate the complainant or pay the full amount of back pay and benefits as required by the Commission’s orders.  In response to the complainant’s petition for enforcement, the agency again argued that the relief the Commission ordered was improper.  Unsurprisingly, the Commission was not persuaded.  It noted in its response to the complainant’s petition that the agency was attempting to undo the Commission’s decision and orders.  The Commission then went further and reminded the agency that its appeal and request for reconsideration were unsuccessful, and there is no further opportunity to litigate or relitigate the matter.

What can we learn from all of this?  Deadlines apply to both sides in a complaint, and agencies will be well-served to ensure that they meet them going forward. [email protected]