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]

Shall, Will, May, or Must?

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By Deborah Hopkins, January 17, 2018

It’s every legal writer’s conundrum: when writing a legal document, which word of the following is the strongest to use, imposing a mandatory requirement on the recipient of the document:

A. Shall

B. Will

C. May

D. Must

The answer? D.

The only word of obligation from the list above is must – and therefore, the only term connoting strict prohibition is must not. The interpretation of everything else is up for debate.

Don’t believe me? You don’t have to take my word for it. Just about every jurisdiction in this great country has held that the word shall, while the most often used of the above, is also the most confusing because it can mean may, will, or must. Our very own U.S. Supreme Court has interpreted the word to mean may. In fact, it’s so confusing that the Federal Rules of Civil Procedure no longer use the word at all.

We quote Bryan Garner, one of our favorite authors, quite a lot during our legal writing classes because the guy just gets it; he understands what it means to beat your head against a wall trying to get a legal document just right, and understands that sometimes one word can alter the meaning of an entire sentence, paragraph, or document. On the topic of today’s article, he says, “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.” Hahaha. Nothing like lawyers to make black and white seem like all the shades of gray. Isn’t this a fun business we’re in?

To be fair, it’s not really our fault that this confusion exists. We can blame our law school professors: until just a few years ago, even the top tier law schools were teaching students that the word shall means must. The Federal Plain Writing Act only clarified this in 2010, and clearly a lot of us didn’t get the note. Props to the FAA, though, as it was the first agency to bring this topic to our attention.

So, realizing that words that sound alike may have very different meanings, let’s look at an example from a hypothetical EEO settlement agreement:

A. The agency shall return the complainant to her previous position as a GS-4 File Clerk and the complainant shall withdraw her complaint.

B. The agency will return the complainant to her previous position as a GS-4 File Clerk and the complainant will withdraw her complaint.

C. The agency may return the complainant to her previous position as a GS-4 File Clerk and the complainant may withdraw her complaint.

D. The agency must return the complainant to her previous position as a GS-4 File Clerk and the complainant must withdraw her complaint.

Yep, I’m going with D. Remember, when you want something to be mandatory – like a settlement agreement that requires both sides to do something – use the word must instead of shall, and you’ll have a document that carries with it a firm legal obligation. For more on this topic see the Federal Plain Language Guidelines (page 25) and the Federal Register Document Drafting Handbook (Section 3).

And if you really can’t get enough of this stuff, join us for this upcoming writing workshop in Washington, DC: Writing for the Win: Legal Writing in Federal Sector EEO Cases (May 8-10).

And now, I must go. [email protected]

Who ARE Those People with Pending MSPB Appeals?

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By William Wiley, January 17, 2018

As most of us in this business know, the US Merit Systems Protection Board, our Supreme Court in the civil service, effectively has been shut down for over a year. There are three positions on the Board, we need at least two members to vote on a case for a decision to be issued, and since January 6, 2017, we have had only one Board member (due to the early resignation of the previous chairman).

There are two steps to an appeal to MSPB. After the agency takes an action – say, fires someone – the employee files an appeal with an MSPB judge. That judge conducts a hearing and issues a decision either upholding the removal, or setting it aside. That’s the first step.

The second step is that either the agency or the employee can appeal the judge’s decision to the three political appointees who sit as the Board. The members can either affirm the judge’s decision or change it any way they want. What comes out of all of this is that some removals are upheld and in others, the employee gets his job back with back pay.

Every work day of the year, three or four “petitions for review” are filed with MSPB HQ. Those PFRs are filed by either the agency or the employee; occasionally by both, arguing that the judge made a mistake. The effect of this lack of a quorum to review a judge’s decision is that PFRs go in, but no decisions on the PFRs come out. If you’ve ever had a backed-up drain pipe in your home, you have an appreciation for what this is like.

Talking about this mess in the abstract misses the point as to the magnitude of the harm caused by all of this. Utilizing the power of the Freedom of Information Act, we here at FELTG have obtained a profile of all those cases stuck in the pipe at MSPB since January 6, 2017. These are real people with real problems. These are agencies trying to maintain an effective workforce who might be on the hook for ever-increasing back pay and attorneys fees until these appeals are resolved. Keep that in mind as you think about the following select subsets of PFRs now pending for vote at MSPB:

Unacceptable Performers:  Of the approximately 750 cases pending a vote by the members as of today, 25 are appeals of the decisions of judges in Chapter 43 unacceptable performance removals. In this time of increased focus on performance accountability, the individuals in these cases deserve an answer, and we practitioners could use all the case law guidance we can get as to how to implement a performance-based removal.

General Misconduct:  Legally, these are called appealable “adverse actions.” These cases are almost always removals and involve bad behavior such as sexual harassment, falsification of government documents, theft, workplace violence, and just plain not coming to work. Many times, they involve claims by employees of mistreatment based on a disability or race. There are 345 former-employees awaiting a Board decision in these cases. Some appellants no doubt will be entitled to reinstatement with back pay, whereas others will remain fired, thereby allowing the agency to back-fill their positions. Add to these 20 former probationers who are appealing their removals, and you have about 365 removals that deserve to be decided (one for each day of 2017, if my math is correct).

Veterans:  Under two different laws, vets have a special right not to be mistreated because they served on active duty.  Because of a lack of a quorum, approximately 80 veterans are awaiting a decision as to whether they have been reprised against because of their service to our country. 

Whistleblowers:  Woo-whee; Congress does love those who disclose waste, fraud, and abuse in the executive branch. There’s even a special legal channel Congress has created for MSPB appeals of individuals who believe they have been reprised against because of their whistleblowing. It’s called an Individual Right of Action. Even individuals who simply help someone blow the whistle are allowed to use this specialized process. According to the latest information we can get, approximately 140 of the 750 jammed-up appeals at Board HQ are IRAs. You might think that Congress would be upset that these folks are not getting a final resolution to their claims of mistreatment. Of course, you might also think that Congress would look for common ground and collegial decision-making, but you would be wrong about that, as well.

ALJs: And finally, we see that four of the PFRs currently pending for a vote are proposed disciplines of that unique band of federal employees: Administrative Law Judges. Unlike regular civil servants who cannot appeal until their employing agency fires them (or takes some other appealable action), agencies who employ ALJs have no authority to discipline their ALJ employees. They can only propose to MSPB that the ALJ be disciplined, and the Board decides whether a removal or suspension will occur. Unlike the other appeals, there’s no accumulating back pay here. HOWEVER, the employing agency has already decided through its own internal processing that these four very important individuals are bad federal employees, but they can’t do anything about it until the Board finally acts. Somewhere these four individuals are sitting around drawing a federal salary every two weeks even though their employer thinks they should not.

This number of 750 represents the number of PFRs that have been reviewed by the MSPB career staff and are literally sitting in the front office of MSPB, on pause until just one more Board member is available to sign his or her name to the vote sheet, thereby causing a final Board decision to be issued. If a miracle were to happen and a super-human individual were to be confirmed as a Board member today, and that person miraculously could vote on 750 appeals in 24 hours, then 750 final decisions could be issued the next 24 hours and we’d be back to normal.

But wait; there’s more! Separately from the 750 PFRs waiting for a vote before the Board’s members, there’s another batch of pending PFRs currently being worked on by the HQ Board’s career attorney staff; PFRs that could be voted on today if the staff were to present them to the members for vote. When you add that group in, the total number of PFRs pending at MSPB headquarters as of today, extrapolating from our recently-responded-to FOIA request is … (ready the drum roll) … 1,400! That’s a full year’s worth of cases!

Hopefully as you read through this list, you used your imagination to picture members of each group. These are real people with significant legal rights who were hired to do real work for the government. It’s unfair to them and it’s unfair to us citizens, who appreciate an effective government, that these appeals are not being decided. Hopefully, the White House will soon see the righteousness in nominating a new member to the Board, someone who can hit the ground running, deciding along with the current Acting-Chairman whether the judges who heard these appeals initially made the right or the wrong decision.

And White House, if you’re reading this here article, please immediately nominate ONE not TWO new members. ‘Cause if you name two, it’s going to take twice as long to get concurrence with Chairman Robbin’s existing votes. Nominate one new member now, clear the backlog, then name a second (and then a third to replace Mr. Robbins once his term expires at the end of next month). [email protected]

Tips from the Other Side

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By Meghan Droste, January 17, 2018

Welcome to the first edition of Tips from the Other Side—insight from a complainant’s counsel that I hope will help those of you who process complaints and represent agencies before the EEOC. In this column I will share some of the things that I look for when representing complainants, mistakes that I regularly see agencies make, and other tips that should make your jobs easier, even if it makes mine harder in the process.

For this month’s column, I am going to focus on the always riveting topic of document retention.  As anyone who attended my presentation during the fall 2017 EEOC Law Week can tell you, I get very excited when I have a non-selection case and I find out that the agency has destroyed the documents related to the selection process.  Why is that? Because I know two things: 1) the agency may have a difficult time articulating a non-discriminatory reason for its decision not to select my client, and 2) I have a chance of prevailing on a motion for sanctions.

Dear readers, this is such an easy one. Retain the documents. I’ll say it again, retain the documents.  Share this advice with everyone at your agency—retain the documents. This isn’t just good advice, it is a requirement.  Pursuant to 29 CFR § 1602.14, agencies are required to preserve selection records for at least one year after the selection decision is made, or, if an applicant files an EEO complaint, until that complaint is fully litigated.

If being required to do it is not enough to convince you, think of the consequences. EEO complaints can take years to litigate. It is not out of the realm of possibility for a complaint to go to hearing two years after the agency decides not to select the complainant.  It is also not out of the realm of possibility that by the time the hearing occurs, the selecting official, or anyone else involved in the selection, does not remember anything about the complainant, or the selectee, or even the position.  If the selection documents—resumes, scoring sheets, ranking lists, notes of any kind—still exist, these can help refresh the recollection of the agency’s key witnesses.  Without these documents, the agency may find itself in the position in which it cannot articulate a legitimate, non-discriminatory reason for not selecting the complainant.  For example, in Hollis v. Veterans Affairs, EEOC App. No. 01934600 (May 3, 1994), the agency destroyed the interview notes and the selecting officials testified that the complainant answered questions poorly but could not recall which ones. The administrative judge concluded that the agency was not able to articulate a non-discriminatory reason for its selection decision.

Another consequence may be sanctions. The specific sanction will depend on the facts of the case; it might be an inference that the complainant performed best in the interviews, or that the complainant provided certain information in his application. Although sanctions do not guarantee that a complainant will win, why take the risk of being disadvantaged with an adverse inference that could have been avoided?

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]