EEOC’s 2017 Performance and Accountability Report

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By Deryn Sumner, December 13, 2017

The Equal Employment Opportunity Commission recently issued its Performance and Accountability Report for Fiscal Year 2017. You can find the complete report here: https://www.eeoc.gov/eeoc/plan/upload/2017par.pdf

The bulk of the report focuses on the efforts made by the EEOC on obtaining relief for victims of discrimination in the private sector and before state and local governments. According to the report, the EEOC secured $484 million in monetary relief in fiscal year 2017, and $86 million in monetary relief for federal government employees and applicants. The report also referenced the reduction in pending private sector charges in what the Acting Chair of the EEOC diplomatically called a “resource-constrained environment.” The report also discusses advances in modernizing the private sector charge processing process by moving more aspects of the charge processing process to online. To that I can only offer my congratulations, and a hope that the EEOC will move towards modernizing more of the federal sector process in 2018 and beyond, including allowing complainants and their representatives access to the FedSEP (Federal Sector EEO Portal)system.

 

In terms of the federal sector process, the EEOC offers the following statistics for fiscal year 2017:

  • The EEOC resolved 4,284 appeals of agency decisions, including 85% of appeals that were more than 500 days old at the beginning of the fiscal year;
  • The age of those cases still pending at the Office of Federal Operations was reduced by 13.6%;
  • The EEOC categorized 100% of the pending appellate case inventory and 98.2% of new inventory into a new case management system;
  • With regards to cases pending at the hearing stage, the EEOC asserts that 70.1% of these cases had an initial status conference in FY 2017. The Commission noted that this metric will not reach 100% as not all cases require initial status conferences;
  • The Commission updated and released guidance including A Guide to Assist Federal Agencies to Provide Personal Assistance Services; Bathroom/Facility Access and Transgender Employees; and Proposed Enforcement Guidance on Harassment that Creates a Hostile Work Environment;
  • Finally, the EEOC issued 68 findings of discrimination (note, this refers to decisions from the Commission’s Office of Federal Operations, not initial decisions issued by administrative judges).

 

I appreciate the EEOC’s transparency to federal government employees and the federal taxpayer as to its progress on efforts to eradicate workplace discrimination.  [email protected]

FELTG Sues OPM

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By William Wiley, December 5, 2017

OK, OK. We haven’t really sued them YET. And it’s not REALLY a law suit. Instead, we’re going to go after something called a “writ of mandamus.”

For those of you who a) did not go to law school, or b) went to law school, and flushed your brain of things like this right after the bar exam, a mandamus is a judicial writ (something issued by a court) that commands another government entity to do something that the entity is required to do, but is not doing. See Marbury v. Madison, 5 US 137 (1803) (more or less).

So, what possibly could OPM have failed to do that would make the crew at FELTG do something that takes time and effort other than presenting training and providing consultation services? Easy. On December 23, 2016, the Administrative Leave Act of 2016 became law. Among other things (inter alia, if you’re feeling all lawyerly and Latin-esque), that piece of legislation created a new type of life-saving paid leave for use by federal agencies when confronted with a bad employee. Prior to the enactment of the act, OPM through regulation was directing federal agencies to keep employees in the workplace for 30 days even after their supervisor had decided that they should be fired.

Every reasonable person in the civil service knew that this was stupid. Individuals who have their removal proposed are under a great deal of stress and have the potential to become irrational or violent. In our society, just about anyone can own a gun. Sometimes violent people use guns to kill people. Therefore, keeping a federal employee noticed of a proposed removal in the workplace for a month where he can kill people is just freaking stupid. But that’s what OPM says should be done. 5 CFR 752.404(b)(3).

Thank goodness, the folks on Capitol Hill realized that this was not the way to handle potentially dangerous employees who have been notified of a proposed removal. In this new legislation, Congress said that federal agencies now have the option of placing such employees on a new type of paid leave: Notice Leave. Therefore, effective on December 23, 2016, agencies had this right and some began to use it. Hand the employee a proposed removal letter, and in that notice, tell that employee that he will be paid until a decision is made, but he is not to come to work and is to stay away from the federal facility where he is employed. Regular readers of the FELTG Newsletter might remember how we celebrated the passage of this bill as a Holiday Gift from Congress to the good people of our civil service. No longer would you have to unnecessarily risk your life to come to work when a coworker is notified of an impending removal.

Congress realized that implementation of the Act would take some effort on the part of OPM to draft new leave regulations. Therefore, it wisely set a 270-day time limit for OPM to do so, perhaps knowing that sometimes OPM does not act promptly to update regulations (e.g., implementation of the Americans with Disabilities Act Amendments Act of 2008 still conflicts with outdated OPM regulations on medical exams).

That 270-day time limit expired on September 17, 2017. Today is the 347th day since the law became effective. We may not be too good with the math here at FELTG, but we think it’s fair to say that OPM has failed to comply with the requirements of the law.

So, who cares? Well, you should. A number of agencies have mistakenly concluded that the Notice Leave law cannot be implemented until OPM issues its regulations. That’s obviously wrong because every graduate of a high school civics class knows that laws become effective (unless specifically denoted in the bill otherwise) the day the President signs the legislation. If you work in an agency that is not taking advantage of Notice Leave to get potentially violent people out of the workplace because OPM has not issued regulations, your life is in danger.

So that brings us to this writ of mandamus. OPM was obligated by law to act by this past September. It has not. Therefore, the situation is ripe for a federal court to direct them to issue the darned regulations upon threat of a contempt of court order. All it takes is somebody to petition a federal court to make OPM do what it is required by law to do. Is your agency going to do it? No, OPM is your sister agency. We don’t (usually) have one federal agency challenging another federal agency in federal court. Are you going to do it? No, you’re too busy running the government. Are we here at FELTG going to do it?

Darned straight we are.

OPM, consider this your notice. You’ve got 30 days. Either issue the regulations that Congress directed you to issue by the end of the year, or we’re going to figure out how to petition our local federal district court for a writ of mandamus to order you to do it. And we do mean “figure out” because we have no idea how to do it. Fortunately, we have law books that have been sitting in boxes in the basement for years, and then there’s The Google.  It can’t be that hard. And if we can convince a judge of the harm so that we have standing, it should be a slam-dunk legal decision. The Notice Leave law is specific and not discretionary. It is hard to imagine that OPM could muster an argument that it is not bound by a specific law.

We don’t want to do this. We’d much prefer to see federal agencies follow the law. However, when that is not being done, and when the lives of civil servants are at stake, we spring into action. OK, OK; maybe “spring” is not exactly the verb we are looking for, but you get the idea. If we have to do this, if we can get a court to issue a mandate, then along with Marbury v. Madison, law students might someday have to study the historical case FELTG v. OPM.

And if a writ of mandamus works to get us some new OPM regulations, maybe it’ll also work to get us some new Board members over at MSPB. We are shameless when it comes to protecting the civil service.  [email protected]

Errata:  A few weeks ago, we published a little article about the impact of the new law that allows DVA to fire bad employees more easily than in other agencies. Within that article, we hypothesized that with the new law making it so much easier to hold bad employees accountable, the DVA employee relations practitioners might now have the opportunity to take up golf and spend time with their families. Well, man-o-man, did that light up the old in-box. We now stand informed that the staff at DVA is still working endless hours to hold employees accountable, declining hobbies, and ignoring their kids and spouses, just like before. The main difference is that they are now able to hold EVEN MORE employees accountable, and have yet to cut back on their time commitments. We stand corrected, and take our hats off to our DVA colleagues for your hard-working commitment to a greater civil service.

Collateral Attacks: Cooler Sounding Than They Actually Are

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By Deryn Sumner, November 20, 2017

Collateral attack.  Sounds pretty cool on its face, like a move you’d use to take down your opponent in a street fighting video game.  In reality, it’s just a basis for an agency to dismiss a formal EEO complaint because the complainant is attempting to use the EEO process to go after an entity outside of the jurisdiction of what’s covered by Title VII and the accompanying other civil rights statutes.

Okay, so not as cool as it sounds.  But what are examples of collateral attacks?  Well, as the EEOC recently, and precisely, stated, “[a] claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the unemployment compensation process, or the workers’ compensation process.”  Katherina A. v. United States Postal Service, EEOC Appeal No. 0120172007 (September 22, 2017).  In Katherina A., the complainant was trying to assert that her supervisors discriminated against her when they allegedly submitted inaccurate information to the Department of Labor regarding a workers’ compensation claim that the complainant filed.  The agency dismissed it as a collateral attack and the Commission agreed, noting its prior precedent that claims related to the merits of a workers’ compensation claim cannot be brought before the EEOC.

But there are more types of collateral attacks than just those involving grievances, unemployment claims, or OWCP claims.  Collateral attacks can also take the form of claims involving application and approval for disability retirement.  For example, in Jae S. v. United States Postal Service, EEOC No. 0120171832 (July 14, 2017), the Commission affirmed a dismissal of a claim of race, sex, disability, and reprisal discrimination where the complainant alleged that management improperly stated he had performance and ethics issues in responding to OPM regarding his application for disability retirement.  The Commission agreed that it was inappropriate for the complainant to use the EEO process to collaterally attack something that took place before OPM.

An agency can also dismiss claims on the basis that they constitute a collateral attack on entitlement to FMLA.  For example, in Edmund L. v. United States Postal Service, EEOC Appeal No. 0120171050 (September 14, 2017), the Commission agreed with the agency that an allegation that the agency discriminated against the complainant when management failed to follow FMLA regulations was under Department of Labor’s jurisdiction.  The Commission affirmed the dismissal of that claim as a collateral attack and outside of the EEO process.

Finally, collateral attacks can also be used as a basis to dismiss claims involving internal agency investigations, such as in Nerissa S. v. Department of Army, EEOC Appeal No. 0120171616 (September 20, 2017). There, the complainant alleged that agency management officials interviewed during a criminal investigative division (CID) investigation, “intentionally provided false, misleading, and incomplete information to the CID investigator, and advocated bringing a False Claims Act lawsuit against her.” The Commission agreed that this constituted a collateral attack on the CID investigation and affirmed dismissal of the claim.

While collateral attacks may not be as cool in reality as they sound, they are a useful tool for agencies to ensure that claims raised in EEO complaints are properly within the EEOC’s jurisdiction.  [email protected]

Agency Shows It Would Have Been Undue Hardship to Grant Unpaid Leave to Employee as Religious Accommodation

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By Deryn Sumner, November 15, 2017

Although we see many more cases involving claims addressing the federal government’s obligation to accommodate employees with disabilities, the federal government also has an obligation to reasonably accommodate employees’ religion.  In both types of accommodation, an employer can assert that providing the requested accommodation would pose an undue hardship to the employer’s operations.  The definition of “undue hardship” when responding to requests to accommodate an employee’s religion is less onerous than when responding to requests to accommodate an employee’s disability.

The Commission’s regulation at 29 C.F.R. 1630.2(p)(1) defines “undue hardship,” in considering requests to accommodate disabilities, as “significant difficulty or expense incurred by a covered entity,” and lists five factors that should be considered, all of which consider the overall cost to the facility and the agency as a whole, and the impact on the operations and the other employees.

Looking at “undue hardship” under the lens of religious accommodations, the regulation at 29 C.F.R. 1605.2(e), an employer may assert that it cannot accommodate a need for accommodation if it would require “more than a de minimis cost” or if it would require a variance from a bona fide seniority system.

The Commission recently addressed a claim of religious discrimination in Allan F. v. United States Postal Service, EEOC Appeal No. 0120150643 (October 27, 2017).  The complainant, who was Muslim, worked as a full-time Mail Handler and submitted a leave form requesting 24 hours of LWOP from October 7-12, 2011 for “religious holiday season.” A few days later, the complainant submitted a second leave form requesting 40 hours of annual leave for a “choice vacation.”  The LWOP request was denied, but the annual leave request was granted.  The complainant filed an EEO complaint alleging religious discrimination when his request for 24 hours of LWOP was denied.  After receiving a Report of Investigation, the complainant requested a hearing. The Administrative Judge granted summary judgment in the agency’s favor, and the agency issued a final action adopting this decision, from which the complainant appealed to EEOC’s Office of Federal Operations.

On appeal, the complainant argued, in part, that the agency would have benefited financially by granting the request for LWOP instead of his request for annual leave, and that not being paid during this time was “part of the practice of his faith.”  You may be asking yourself, why didn’t the agency just grant the request for LWOP since then it wouldn’t have had to pay the employee?  Luckily, the agency articulated a legitimate, non-discriminatory reason for this. The agency denied the request for LWOP because of the needs of the service.  If the agency had approved the request for LWOP, it would have allowed another mail handler to be able to take annual leave, which “could have placed them over the maximum percentage of mail handlers off, leading to increased overtime and a financial burden on the Agency.” The agency also noted that LWOP is approved based on management discretion, while annual leave is granted in accordance with the collective bargaining agreement.

Now what about the complainant’s argument that the agency should have accommodated him by not paying him during this timeframe?  The Commission found that the agency made a good faith effort to accommodate the complainant because it granted his request for annual leave during the same timeframe and provided an alternative to the requested accommodation.  The agency was able to show that granting the requested accommodation of LWOP would have created an undue hardship, since there could be an increase in overtime if another mail handler requested to use annual leave during this same timeframe.  So, there you have it — a case where the agency showed granting LWOP would have cost more than approving paid annual leave.  [email protected]

I’ve Earned My Grumpy

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By William Wiley, November 15, 2017

Questions, we get questions. Some make us laugh, some make us think, and some – like this one – just make us sad. I’ll bet that there are a lot of federal supervisors who can relate to this tale of woe from one of our loyal readers:

Dearest Beloved FELTG-

I really enjoy reading this newsletter and I often get re-energized thinking that if I’m following the law (I’m not a lawyer) and the rules, I should be able to discipline and remove poor performers.  But in the real world, in my experience anyway, the poor performer files EEO, hires an attorney, our HR staff takes forever to provide timely feedback (I know they are swamped, this is not intended to slam them), and then there is a settlement.  Upper management has determined it takes too much time to do it again when he knows we’ll lose again, despite how solid our case(s) have been.

Frustrated in Chicago

And our FELTG edgy response:

Dear Frustrated –

Ah, the challenges of running the federal government. Here’s an analogy that might help.

Suppose you’re playing basketball. The other team scores, and the referee gives you the ball. Do you stand frozen out of fear that the other team might try to block your in-bound pass? Once you get the ball in play, do you stay in your end of the court because if you go toward the other basket, one of those big mean players on the other team might try to get in your way, to steal the ball from you? Do you refuse to move because you’re thirsty and your team’s water-person is slow in getting you a drink?

NO! You throw the ball into play, move under the other basket as fast as you can, and take your lumps when you shoot a jump shot right in the face of the defensive player. There’ll be plenty of time to down some refreshments once the game is over. Perhaps you’ll want to think about getting yourself a new water-person because this one isn’t helping you out when you need it.

But you don’t play basketball; you supervise a chunk of the federal work force. In fact, you’re being paid extra money to perform that oversight function, to hold employees accountable for the work that they do (or, don’t do). So, do you hide under your desk when an employee files an EEO complaint against you? NO! Only 1.5 EEO complaints out of every 100 results in a finding of discrimination. Are you afraid of his attorney? NO! They might throw around a bunch of legalese and huff and puff, but the law is on your side. Always keep this in mind: Congress created the law way back in 1978 so that you could easily fire a bad performer. Your agency has its own huffing and puffing attorneys to defend you if there’s any lawyering that needs to be done. Common sense and the law almost always prevail.

What about your HR department taking a long time to get back to you? Well, if they did a decent job of training you, their desks wouldn’t be so swamped. If you have been around long enough to remember the government’s attempt to implement Total Quality Management back in the late ’80s, you might remember that TQM organizations save money by reducing inspections. They set up procedures to get it done properly the first time. Your HR staff would be highly functioning if they set up training and software to help you draft performance documents yourself. Then, you can initiate your own unacceptable performance removals, copying HR after the fact in case they see something they need to help you correct.

Separately, you might want to think about getting your HR and legal advice elsewhere (find a new water-person).  If they are not providing the timely assistance you need, that’s a management problem just waiting to be corrected, just as it would be if you had a non-performing contractor. Here at FELTG, we can knock out a PIP initiation letter in about 45 minutes; a proposed removal for failing a PIP in less than an hour. When you think how much money it is costing the government to pay someone who is a non-performer, you begin to appreciate the old adage “time is of the essence.”

And finally, if upper management knows that you’ll “lose again,” it is not basing that conclusion on facts. Yes, the other team will score every now and then, but that doesn’t mean we shouldn’t be playing the game. Managers who decline to hold employees accountable out of fear of EEO complaints should do us all a favor and quit. We need better managers in government, managers who understand the game of employee accountability. If you can’t get them to change their minds, the best advice I can give is to find another job, one where upper management appreciates the role you have as a front-line supervisor, and who isn’t afraid to do the job he’s being paid to do.

I realize that here at FELTG, we can get a little preachy. Sometimes when I write a piece or teach a class, after the fact I’ll realize that I come across as a grumpy old man. Well, I am both old and grumpy. I earned the old by having a lot of birthdays. And I’ve earned my grumpy by hearing stories like this from supervisors in government during my 40 years in the business.

Look. If you’re unhappy because “they” won’t let you do your job, then fix your happy. Work around them, ignore them, or find another job where you can get the support you need. Life’s too short to waste it complaining about how bad things are. Fix them or move on. [email protected]

How Much Workplace Violence Do I Have to Put Up With?

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By Deborah Hopkins, November 15, 2017

Here’s a note a reader recently sent:

Dear FELTG,

I work in a federal agency but NOT in a federal building. We don’t have metal detectors – just a security person at a reception desk, who is sometimes there and sometimes not. I have never been bothered by working in a non-secure building until recent events in the media – most recently, a few days ago when a man shot and killed three coworkers, and injured two other, outside Baltimore. While we don’t know much yet about the shooter, I have to wonder if he had violent tendencies and whether this could have been stopped before it happened.

This leads me to my questions:

  1. Can a federal agency fire someone who shows violent tendencies in the workplace?
  2. If so, what should the charge be, and how much proof do we need?

Thanks for your help.

And here’s the FELTG response:

Thanks for your note. I’m sure you’ve heard us talk or write about the sad fact that over 400 people die at work every year at the hands of a co-worker. It’s a tough reality. Regarding your questions, let’s take them in order:

  1. Yes. If the employee has engaged in misconduct – broken a rule – you can propose removal if, in doing the Douglas analysis, you determine that the misconduct warrants removal. (If you’re at the VA, a new law means you don’t even have to do Douglas.)
  2. As far as proof, you’ll need a preponderance of the evidence – that it’s more likely than not – that the individual did whatever you charged him or her with. The charge you use will depend on the facts of the case. Is the individual assaulting people, threatening people, or destroying property? You want to make sure to select a charge that you can prove. (If you’re at the VA, you only need to prove the misconduct by substantial evidence.)

Here are a few case examples where removal for threatening or aggressive-type behavior was appropriate:

Charge: Unacceptable Conduct

A letter carrier’s removal was upheld after he used profanity toward a co-worker and punched the co-worker in the head. Davis v. USPS, 487 F. App’x 571 (Fed. Cir. 2012) (NP).

Charges: 1) Violation of the Code of Professional Responsibility; 2) Off-Duty Misconduct; 3) Unnecessary Display of a Weapon

A U.S. Deputy Marshal’s removal was upheld for an off-duty altercation. The Marshal had stopped his car in the middle of the street and was arguing with his girlfriend, and when two people he did not know told him to move his car so they could drive past, the Marshal “slapped” the driver’s car, and then pulled out his firearm and pointed it above the driver’s head. Rodriguez v. DOJ, NY-0752-10-0081-I-1 (2011) (NP)

Charges: 1) Creating a Disturbance, and 2) Insubordination

Removal was upheld where the appellant, a Legal Administrative Assistant, refused to comply with an agency police officer’s orders, started “flailing” his elbows, and injured two officers who were attempting to take him into custody. Sousa v. Army, 108 F.3d 1391 (February 11, 1997)

Charge: Threatening a Coworker with a Knife

Removal was upheld for an Army weapons explosives operator, who flipped out the blade of his pocket knife and told a coworker he would cut the buttons off her overalls. Despite his defense that he was joking, the coworker testified she felt threatened, and witnesses concurred. McGuire v. Army, 333 F. App’x 528 (Fed. Cir. 2009) (unpublished)

If an agency’s charge includes the word “threat,” it is wise to be sure a threat has actually been made. The MSPB looks to the Metz factors in analyzing charges of threat: 1) the listener’s reactions; 2) the listener’s apprehension of harm; 3) the speaker’s intent; 4) any conditional nature of the statements; 5) the attendant circumstances. Metz v. Treasury, 780 F.2d 1001 (Fed. Cir. 1986)

If any of the Metz factors are shaky, it’s probably best to frame the charge differently. Remember, too, if there’s an emergency situation, you can – and should – call 911.

If you need to know more about this all-too-important topic, join us for the 2018 webinar series Behavioral Health Issues in the Federal Workplace, or join us for the brand-new two-day program Handling Behavioral Health Issues and Threats of Violence in the Federal Workplace March 6-7 in Honolulu. [email protected]

What’s a “Factor Other Than Sex” in Equal Pay Act Claims?

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By Deryn Sumner, November 15, 2017

As we’ve discussed previously in this space, if an employee establishes a prima facie claim of sex discrimination under the Equal Pay Act, the agency can assert a defense by pointing to a factor “other than sex” that explains the difference in pay.  The agency was able to successfully make such an argument in Willa B. v. Department of Veterans Affairs, EEOC Appeal No. 0120152792 (October 26, 2017).  Ms Willa B. worked as a staff psychiatrist and filed an EEO complaint raising 14 issues and alleging race, national origin, color, disability, and sex discrimination, as well as retaliation for prior EEO activity.  For purposes of this discussion, we’ll just focus on her claim that she was denied equal pay for performing the duties of a GS-15 position, while her counterparts were paid at a higher salary when they had less experience.

First, given the type of position the complainant held, the complainant’s salary was determined by a panel. The panel consisted of a chief, another psychiatrist, and an HR employee. The Medical Center Director had the right to approve and change the salary amounts recommended by the panel. The salary was determined in two parts: base pay and market pay. The base pay was determined by prior experience and tenure, and the market pay was determined by the market demand for a psychiatrist of similar education and experience. The psychiatrist also received performance pay, which was an annual one-time payment based on meeting certain criteria during the performance year.

The complainant alleged that she should have been paid more, pointing to two male psychiatrists whom she stated earned more money but had less experience. After holding a hearing, the Administrative Judge found that the difference between the complainant’s salary and the two identified male comparators occurred because of factors other than sex.

The first comparator employee had a higher salary because he had been working at the Medical Center for 10 years longer than the complainant. The second comparator employee had been working for the agency since 1997, while the complainant had only worked there since 2006.  There was also evidence that five other psychiatrists received higher pay than the complainant, including another female psychiatrist, and that a male psychiatrist earned less pay than the complainant.  The Commission agreed with the Administrative Judge’s conclusions and affirmed the finding that the agency did not violate the Equal Pay Act with regards to its compensation of the complainant.  [email protected]

Nibbling in the Dark

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By William Wiley, November 15, 2017

Here’s one of the things wrong with Congress that affects you personally.

Recently, we’ve seen proposed legislation that would change the probationary period for new federal employees. During a probationary period, a bad civil servant can be fired with a snap of the fingers. No procedures, no burden of proof. It’s always a good idea for the supervisor to be able to articulate a reason in case the employee files a discrimination complaint. But otherwise, it is a relatively easy process to implement accountability during probation.

The probationary period in the federal service generally is a year long. I tried to do research to find out how long it has been that way, but I could not find when it started. At a minimum, we’ve had a one-year probationary period for at least 60 years. For what it’s worth, my research revealed that in the private sector, probationary periods are usually 30 days, maybe up to 90 days for some more senior positions.

The House Oversight and Government Reform Committee is now considering extending the probationary period from one year to two, The Ensuring a Qualified Civil Service Act (EQUALS). Sounds good, doesn’t it? Snappy acronym. Make it easier to fire bad government employees by delaying their property rights and appeal rights for an additional year after first hire.

Well, why the devil are they doing this? Seriously. Enacting legislation is hard. Subcommittees, committees, witnesses, reports, bicameral legislature so that it has to be done twice. If you’re going to go to all this trouble, shouldn’t it be for something really worthwhile?

Look. There’s nothing really wrong with extending the probationary period. Given this area of increased accountability in the civil service, this proposal would increase the pool of easy-to-fire federal employees. But we can’t really say that this particular pool of employees was causing us a problem anyway. If you look through MSPB’s decisions, you won’t find a whole bunch of employees who could not have been terminated during the first year of service because they were good employees, who then suddenly in the second year of employment became worthless dirt bags. MSPB’s data base supports the gut feeling that most of have in this business. If we’ve mistakenly hired an individual who demonstrates he is a bad employee, those shortcomings show up in the first year. If they do not, I know of no studies that show he is more likely to mess up in the second year than he is to mess up in a subsequent year.

Sure, some individuals get though probation and then demonstrate unacceptable performance the next year. However, my experience is that had the immediate supervisor been more careful, that unacceptable performance would have been detected during the first year. If it was, and the supervisor did not act proactively to terminate the employee during probation, it’s not the one-year law that’s a problem; it’s poor management that’s the problem.

Maybe we do need new laws to make it easier to fire bad government employees. Maybe we even need to do away with civil service protections altogether, allowing agencies without MSPB (or other) oversight to provide due process prior to termination. Perhaps it’s time to void the concept of a protected federal work place and shift completely to an employment at-will federal government workforce. Here at FELTG, we’re committed to an efficient accountable government. If that involves a protected civil service, that’s great. If it involves a different way of providing government services, we’re open to that, too.

The problem that Congress is causing you is that it does not take the time and effort to answer these fundamental questions as to how our federal government should be run; who should be employed to provide government services, and how they should be managed. Instead, it nibbles around the edges of our system. It thinks that increasing the probationary period by a year will make a difference. It reduces the notice period for a removal in DVA to 22 days compared to 30 days in all the other agencies. It empowers OSC to order agencies to propose the removal of whistleblower-reprising supervisors. These may or may not be decent ideas in isolation, but they do NOTHING to positively affect the structural design of our civil service.

Hey, Congress! Here’s a brilliant idea. Reserve a conference room somewhere, get a bunch of flip charts and coffee pots from the supply room, and stick the best and the brightest civil service scholars and practitioners in there with a lock on the door. Tell them that they won’t again see the light of day until they come up with a comprehensive plan for civil service over-haul. Over time, maybe they’ll decide that what we have now isn’t all that bad after all. Or, maybe they’ll decide that we need to scrap the whole system and just hire and fire civil servants like they hire and fire employees in the private sector: at will. Or, something in between. But at least we’d get a soup-to-nuts overview of what we want our government to be rather than this nickel-and-dime approach we’ve been seeing recently with these pitiful excuses for civil service reform.

Nibbling is bad if you’re on a diet trying to lose weight. It’s also a bad way to run the civil service. [email protected]

Carelessness in the Workplace

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By Barbara Haga, November 15, 2017

This month we are branching out from negligence to the larger issue of careless work performance by a Federal employee.

High Voltage 

We’re going to begin with the case of the very scary High Voltage Electrician. The case is Kaminski v. Navy, 56 MSPR 393 (1993).  High voltage basically means enough electrical energy that voltages high enough to inflict harm on living organisms.

The first important consideration in this case is the nature of the work of a High Voltage Electrician.  The OPM Job Grading Standard for WG-2810 describes the work of the High Voltage Electrician as “installing, testing, repairing, and maintaining high voltage electric power-controlling equipment and/or distribution lines. The work requires knowledge of electrical principles, procedures, materials, and safety standards governing electrical systems above 600 volts.”  The standard mentions that the typical work situation for this series is work in substations/power-generating facilities and on electrical distribution lines.  Clearly, the worker in this category is not installing outlets in a building or maintaining wiring on a ship.  This is a higher level of electrical work and the ramifications of mistakes are much more severe.

Careless Workmanship

Kaminski was a High Voltage Electrician at Port Hueneme, California.  He was removed for three charges, the first of which was careless workmanship.  The others were AWOL and failure to follow his supervisor’s orders.  In the initial decision, the AJ sustained all three charges.  The careless workmanship charge was supported by four specifications: (1) While operating a forklift, the appellant negligently severed a valve on a transformer, causing 50-200 gallons of dielectric fluid containing a toxic to spill into the San Diego Bay, (2) he spilled nuts and washers into a transformer that he was repairing, (3) while traveling from one building to another, he lost nine pairs of high voltage rubber gloves, and (4) he filled a diesel truck with unleaded gasoline.

Two of the specifications were sustained.  The agency proved that Kaminski spilled the nuts and bolts into the transformer.  The AJ found that the appellant, as a journeyman Electrician, should have been aware of the serious consequences of spilling small metal objects into a transformer, and sustained that specification.  The Board wrote,

Furthermore, the appellant was employed as a high voltage Electrician, and any mistakes made in such a position could be fatal to both the appellant and his co-workers. In this connection, we note that the appellant’s supervisor testified that the nuts and washers spilled into the transformer could have caused it to explode.

A co-worker testified that he did not want to work with Kaminski because he was afraid “to get killed.” The charge regarding putting the unleaded gasoline in the diesel engine was sustained.  I read about what happens when gasoline goes in a diesel engine.  The minimum requirement is draining the tank if the engine was never turned on. That’s an expensive repair by itself.  If the engine was started and the truck driven, then problems mount up which could result in very expensive engine repairs.

The other two charges were not sustained.  Just to be clear about the significance of the first charge, we would need to know about dielectric fluid. Dielectric fluid is used to prevent or rapidly quench electrical discharges.  It is used in high voltage applications such as transformers, capacitors and high voltage cables to provide electrical insulation and to serve as a coolant.  Dielectric fluids range from mineral oil to benzene.  In Kaminski’s case, the dielectric fluid that spilled into the bay contained a toxin.  But, Kaminski didn’t just spill the fluid, he was charged with hitting the transformer with a forklift which severed the valve and that allowed the dielectric fluid inside to go into the bay.  Unfortunately, the AJ wasn’t convinced that Kaminski was responsible, ruling that the Navy failed to prove by preponderant evidence that Kaminski was responsible for the severing of the transformer valve.

The AJ also did not sustain the charge related to the loss of the nine pairs of high voltage gloves because there were a number of theories, including theft, to explain the disappearance of the gloves from the appellant’s truck.  I checked a vendor of safety and industrial equipment website today and found that they are selling high voltage gloves in $50 to $100 range, although there were some that were over $200.  In 1993 prices let’s say they were worth $50 a piece.  That charge is loss of material worth $450 dollars.  Compared to the other three charges in this case, that one was chicken feed.  I think the agency would have been better off leaving that one out.     

The Penalty

With three charges sustained, but half of the specifications of one of them not sustained, the AJ mitigated the removal to a ten-day suspension.  This took place in spite of the fact that Kaminski had already had a 30-day suspension for misuse of a government vehicle just a few years earlier, during his brief four-year career.  The Board overturned the AJ’s mitigation and reinstated the removal.

Their reasoning is interesting and is helpful for agencies considering misconduct that isn’t worthy of a removal in each instance but where there are several instances of careless work performance.  The Board wrote in the Kaminski decision that the two sustained specifications, spilling the nuts and bolts into the transformer and putting the gasoline in the diesel engine “… indicates that the appellant’s carelessness fits into a pattern of behavior that presents a safety risk to other employees.”   So, several specifications of not following instructions where there are safety concerns attached, or poor decisions that did not take into account agency requirements for completing work, or similar failures or omissions might add together to form a pattern of behavior that would support an adverse action.

[Editor’s Note: Two take-aways from this case. First, although it’s not supposed to, the Board sometimes reaches for mitigation when a number of specifications that are brought are not affirmed on appeal. MSPB’s caselaw establishes that it will independently consider whether mitigation is warranted if one or more CHARGES fail, but not SPECIFICATIONS. Unfortunately, the Board’s judges do not always see a distinction. As Barbara points out, sometimes it’s a good idea to consider reducing your case to the most serious specifications. Secondly, the Board’s decision to overturn its judge’s mitigation reaffirms that it is a rare case indeed in which a removal is mitigated to a suspension if there is a prior suspension in the record. Not always the case, but a good argument for building progressive discipline into a removal.]

Where to Begin When You Start to Calculate Back Pay

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By Deryn Sumner, November 15, 2017

We’ve discussed a few times how important it is to value a case, even if you represent the agency, and even if you think your case is a slam dunk.  Nothing is predictable with certainty in litigation, and you don’t want to have to inform your settlement authority or client that you don’t know how much the agency is liable for because the agency lost the case.  We typically discuss this in the context of requesting information about compensatory damages during discovery.  You don’t want to be caught unaware of the types of pecuniary and non-pecuniary damages a complainant intends to seek.

But another large source of monetary damages that the agency can be on the hook for is back pay.  Although an exact accounting of how much back pay would go to a complainant may be well beyond the wheelhouse of you as the agency representative, you should have a general idea of the overall amount.  And so how do you start with such calculations?

Well, of course, this is only going to apply in cases where pay is at issue, such as non-selections at a higher grade and terminations.  First, figure out what the relevant timeframe is and what the employee was earning at the time and what he or she would have earned if what is being claimed in the formal complaint is proven. The OPM website has salary scales for many years — don’t forget to account for locality pay!

The Commission’s Management Directive 110, Chapter 11 spells out aspects that should be considered in calculating back pay.  Remember the guiding principle: the goal of remedies is to place the complainant as closely as possible in the position he or she would have held but for the discrimination.  Thus, back pay calculations should consider any step increases, pay differentials, overtime that would have been earned if the employee had been in the position, and any other pay differential, such as premium pay.  Back pay also includes other benefits of employment, such as leave, health insurance contributions, and retirement contributions.

You should also consider whether subsequent events impact an award of back pay, such as subsequently receiving a higher paying job, being unable to work because of a medical condition, or voluntary retirement or resignation from a job.  Benefits such as unemployment compensation should not be deducted from back pay.  However, worker’s compensation benefits may be deductible, depending on the type.

If an employee has been terminated from employment, he or she must take efforts to mitigate damages before the EEOC (the same does not hold true before the MSPB).  Again, you should use the discovery process to find out about these efforts.

The goal here is to have a sense of how much the agency could be on the hook for should it not win its case.  Even if you don’t know down to the penny, having a general range can be essential for settlement discussions and accurately valuing your case.  [email protected]