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]

The Future of the Civil Service?

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By William Wiley, November 15, 2017

Here’s how we learn to do things in the federal civil service:

  1. Congress passes civil-service-related legislation that the President signs into law.
  2. Agencies read the law, take their best guess at what the details are, then start doing stuff (e.g., firing bad employees, if that’s what the law is about).
  3. The employee appeals the agency’s action (e.g., the firing) and the US Merit Systems Protection Board, then the courts, tell us whether the agency did the right thing, or misinterpreted the law.

If you are a regular reader of our fabulously free FELTG newsletter, you might remember that the President earlier this year signed into law a major revamping of the disciplinary procedures that apply to most DVA employees, 38 USC 714. The purpose of the legislation was to make it easier for supervisors at DVA to hold employees accountable for misconduct by making it easier to discipline them.

Our hard-working friends at DVA then began working on how to implement the new procedures. That’s Step 2, above. Just recently, we started getting elucidating decisions from MSPB (Step 3), and they look awfully good if you’re a fan of employee accountability. Here’s what we now know about the new law that applies to most DVA employees:

  • No Douglas Factor Analysis Required – Experienced practitioners know that in most all other agencies since the early ’80s, when an agency fires an employee for misconduct, it has to prove by a preponderance of the evidence that the penalty is not overly severe. To do this, the deciding official has to evaluate and document the 12 Douglas Factors that are relevant to a penalty decision, plus consider any other mitigating factors that the employee might provide in response to the proposed removal. In the cases we help agencies with here at FELTG, half of the time and effort in a removal action goes into developing this part of the agency’s defense. As importantly, penalty defense is an area of the removal that is fraught with the potential for due process violations. In the first initial decision issued by an AJ at the Board applying the new law, although DVA conservatively included a Douglas Factor analysis in its removal, the judge effectively ignored it. She noted that since 38 USC 714(d)(2)(B) prohibits the judge’s mitigation of the penalty, a Douglas-defense was irrelevant to upholding the removal once misconduct was proven. Akinpelu v. DVA, DA-0714-17-0474-I-1 (October 31, 2017)(ID).

 

  • Need Prove Only One Charge – For almost 40 years, agencies have had the burden of proving all the charges brought or risk losing the removal penalty. Multiple charges demonstrate the seriousness of what the employee has done and why removal is warranted. As we’ve taught in our FELTG seminars for nearly 20 years, it is paramount that the agency in defense of its removal prove by a preponderance of the evidence that the employee’s misconduct is serious enough to justify the firing. In the second initial decision issued by the Board under DVA’s new law, we learn that is no longer the situation in that agency. In that case, DVA brought seven charges against the employee ranging from having unauthorized guns, to failing to follow instructions, to engaging in hostile behavior. The judge reasoned that because DVA’s burden of proof is the substantial level rather than the higher preponderance level, “if the agency is able to meet its burden of proof with respect to any one charge in a multi-charge disciplinary action, that will be sufficient to affirm the removal.” The judge then picked two of the charges (one for back-up, I guess), adjudicated them, and affirmed the removal. Again, no Douglas Factor analysis. Kneipp v. DVA, PH-0714-17-0405-I-1 (November 2, 2017)(ID).

 

  • Decisions Under this Law are SHORT – Four pages and each of these judges was done. Compare that to the last initial decision you got under 5 USC Chapter 75.

 

Oh, I can just hear those wimpy weak-kneed practitioners now; “But Bill, these are just a couple of decisions from two judges of the many judges at MSPB. They have no precedential value, so why should we get all excited for DVA?” Well, Potato Head, if you had been an MSPB insider as I was for nearly a decade, you would know that no Board judge issues a decision in cases this important without the draft decision being reviewed and approved by the Chief Judge for the region. MSPB AJs are not statutorily-delegated independent adjudicatory authority as are ALJs. The Chief Judge of the region (aka the Regional Director) has the authority and responsibility to make certain that AJ decisions are “correct” before they are issued. These two decisions are from two different regions under the auspices of two separate chief judges. In my opinion, they speak for more than just the two judges involved.

Think these new principles through together. Hypothetically, DVA has an employee who breaks a rule; say, comes to work an hour late, and is thereby AWOL. DVA management decides to fire the employee for the hour of AWOL even though the employee has been a good employee for 20+ years, was under a lot of stress the morning he was tardy, and other employees under the supervision of the Deciding Official have come to work late without being fired. At any other agency in government, this kind of removal most likely would be reversed. At DVA under 38 USC 714, it’s a slam-dunk affirmed termination.

By the way, if you’re sitting there all smug thinking that this approach will never be found to satisfy due process by the courts, you would be mistaken. This lower burden of proof, requiring that only one “charge” be proven to be substantial evidence that removal is warranted, coupled with no-Douglas/no-mitigation has been the law for 40 years when you defend a Chapter 43 unacceptable performance removal.

What does all this mean for you? You don’t work at DVA. Why do you care that their ability to hold bad employees accountable just got humongous-ly easier for the supervisor? Well, my friends, think of it this way. If you’re the Secretary of any other agency in government, when you notice that your political-appointee buddies over at DVA are removing employees who do bad things left and right without the worries like you have concerning losing a big one and being embarrassed all over the Washington Post, how long would it take you to get to your oversight committees on Capitol Hill and ask for the same me-too authority? If you’re an employment law practitioner working nights and weekends to stay even with your case load, and you see your counterparts at DVA taking up golf and spending time with their kids, are you not as jealous as a person can be? Should we call around the agency car with the siren and red lights for you to go up to The Hill, or will you be helicoptering in instead?

Here at FELTG, we take no position as to whether this is the direction that our civil service should be going. Whether it likes it or not, DVA is the canary in the coal mine on this reduced-rights approach. If the new law continues to result in MSPB decisions that allow supervisors greater control over employees who do bad things, unless there’s a ground swell of objection other than from the usual suspects, we predict that someday this will be the extent of civil service protections. The future is now, at least over at DVA. Our FELTG-congratulations for this initial success and our ever-lasting thanks to the outstanding practitioner who flagged these decisions for us. We are, after all, in this together. [email protected]

Legalized Lying, Part II

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By William Wiley, November 6, 2017

Several months ago, we had an article in our FELTG newsletter about approved lying in an EEOC proceeding. Recently, I stumbled across a similar initial decision by an MSPB judge that gave me pause. Just how far can the requirement for medical record confidentiality be stretched?

The individual in this case applied for and held one of the most onerous jobs in the federal government. He was an FBI special agent assigned to Bureau’s hostage rescue team. Body armor, getting shot at, rappelling out of helicopters; all in a day’s work for those folks. You need to be trusted to have serious physical abilities and solid psychological credentials to provide that kind of important government service. To make sure that candidates for these positions possess all the necessary physical and mental characteristics necessary, the FBI requires individuals to undergo initial and periodic fitness for duty exams.

As part of that exam, our appellant in this case had been asked to list his current medications. In response, our appellant said, “None.” In fact, he said “None” a couple of times over a period of three years because he had a couple of medical exams during his employment.

Well, as it turns out, the answer “None” wasn’t exactly accurate. The appellant had in fact been medically prescribed and was taking anabolic steroids during the time of the exams. He did not disclose this fact in response to the “current medications” question because he believed it to be his “private medical information” and that the FBI did not have a legitimate need to know it. When the FBI eventually found out about the deception, it fired the steroid-taker for providing false or misleading information on the medical form, and lack of candor in the related investigation.

So, what do you think? Does it make for a better country if the FBI knows whether one of its hostage-rescue agents is taking steroids, a type of drug reported to sometimes cause increased aggressiveness? Should an agency be able to demand straightforwardness and candor from its employees during an investigation? Or, is America a brighter beacon if we allow special FBI agents to engage in deception about the drugs they are taking?

Well, if you voted for unidentified drug-taking and deception, you will like the rationale of the Board’s judge in this case. On appeal, the AJ reversed the removal and restored this individual to the agent-hood, reasoning that the FBI’s question about “current medications” was illegal. You see, the Americans with Disabilities Act limits an agency’s authority to demand medical information from its employees to only those medical facts that are consistent with a business necessity. To the judge in this case, that meant that the questions could not be as broad as asking for “current medications” and instead had to be narrowly tailored so that they were no more intrusive than necessary. As the question was illegal under the ADA, the employee cannot be faulted for falsifying his answer to it. Litton v. DoJ, DC-0752-14-1110-I-2 (September 22, 2017) (ID).

I am at a loss as to what the FBI could have done differently. A colleague with whom I was discussing this case suggested that maybe the “narrow tailoring” that would have made the question ADA-compliant would have been to ask the employee if he was taking any “current medications that might affect job performance.” Well, that puts the question on the employee to assess which of his medications might affect his performance. Maybe this guy never heard of “steroid rage.” It doesn’t seem practical to leave it up to the employee to decide which of his drugs could cause problems at work. The FBI’s medical examiner is in the better position to make that determination.

To me, this is one of those wayward decisions that makes the public think poorly of the civil service. No wonder that there are people on Capitol Hill who would abolish MSPB and the civil service protections when they hear about cases like this. If the Board is going to interpret our laws to allow FBI agents to make false statements about their medications, there really is something wrong with our system.

Of course, this is the opinion of a single administrative judge of the Board. No doubt the FBI will file a petition for review and have President Trump’s new Board members (if any are ever appointed, that is) review this decision. Perhaps those appointees will see things differently, recognizing that individuals have rights to medical information privacy, but not to the extent of deceiving their employer who legitimately needs the information.

Until then, let’s look on the bright side. If you are a medical-marijuana card-carrying civil-servant of states like my home of California, if your agency asks you what medications you are taking, according to the rationale of this judge, you don’t have to tell them about the dope. If your agency gets all specific and asks you if you’re using marijuana, perhaps that question exceeds what is called for by “business necessity.”

But, what do we know here at FELTG. Best to get your own legal advice on that before you try it. We love to read interesting cases, but we don’t like to cause them. [email protected]

Are You Qualified to be a Congressman or Senator?

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By William Wiley, November 1, 2017

Let’s say that you’re a big Capitol Hill policy maker; Member of Congress, Senator … take your pick. Then, let’s say that you want to add extra protections for your beloved whistleblowers. You want to make it easier for management officials who mistreat whistleblowers to be suspended and fired from government. You don’t think that the management official’s employing agency has been doing enough, that upper management at the agency does not act to discipline individuals who have mistreated whistleblowers. So, what do you do?

An easy answer is that you find somebody other than the employing agency to do the disciplining. An outside agency, unlike upper management, does not have a dog in the fight. When you look around for another agency, you find one that routinely has to decide whether prohibited personnel practices (PPPs) have occurred. As whistleblower reprisal is an obvious prohibited personnel practice, you might consider having this agency do the disciplining.

But wait! You come to realize that just last month, that same agency had been ordered to cough up a half-million dollars in attorney fees in a PPP case that it had prosecuted. It had proposed the removal of a management official based on eight charges, each an incident in which this outside agency had believed that it had preponderant evidence that the PPP had occurred. On review, the judge ruled that this outside agency had failed to present ANY evidence that ANY of the charges could be affirmed. The judge went beyond simply ordering fees, and criticized the outside agency’s theory that it put forward in support of its prosecution:

  1. Guilty people usually deny their guilt,
  2. The manager being prosecuted denied her guilt,
  3. Therefore, she must be guilty.

Woof.

It might not be a good idea to put that outside agency in charge of proposing discipline of a manager for reprising against a whistleblower. That agency has demonstrated in a very public manner – and at least one judge has concluded – that it does not know how to prove a charge (something we have taught for 20 years in our FELTG seminars). Probably best to look elsewhere for a removal-initiator based on suspected whistleblower reprisal.

If you have reached this conclusion, then you now have one more reason that you will not fit in on Capitol Hill. In a bipartisan piece of legislation, Congress unanimously passed, and the President signed in to law, a bill that this outside agency – let’s call it the Office of Special Counsel – should have the authority to:

  1. Conclude whether whistleblower reprisal has occurred, and
  2. Order the employing agency to propose a suspension, then removal for a repeat offender.

Keep in mind that OSC was created in large part to protect whistleblowers from reprisal. Therefore, it has a strong motivation to find whistleblower reprisal. By doing so, it makes Congress happy, and Congress tends to fund agencies that make it happy. With no impartial review, under this most recent bill OSC will have the authority to order an agency to propose a minimum three-day suspension for a first offense of mistreatment of a whistleblower, and termination for a second offense.

Are you thinking that this is crazy? Well, don’t stop me now because I’m just getting rolling.

In a rational world, if OSC found what it believed to be whistleblower reprisal, it would propose discipline to a judge at MSPB, and the judge would adjudicate whether the charge was affirmed and the penalty was reasonable. This is what OSC has been doing for four decades. Under this new legislation, instead of initiating proposed discipline and standing to win or lose when MSPB issues a decision on the proposal, OSC simply orders the employing agency to propose the suspension/removal. The decision regarding the proposal will then be made by a senior manager in the agency, an agency that may well not believe that whistleblower reprisal has occurred. If the agency’s deciding official does indeed conclude that removal is warranted, then it’s the agency – not OSC – that has to devote its resources to defending the removal before MSPB. As icing on the cake of judicial irrationality, it appears from a cold read of the bill that the burden in one of these removals is on the manager to prove he did not reprise, not on the agency to prove that he did.

Double-woof.

Here at FELTG, we sincerely regret that OSC lost a prosecution that resulted in it being ordered to pay a good chunk of its annual budget as attorney fees. Those are wasted tax dollars and a harmed management official that do nothing to help us have a better government. However, this legislative trick of having OSC order an agency to take the heat by directing the agency to do the disciplining, regardless of the agency’s independent view of whether discipline is warranted, is ridiculous.

Here are the details of this mess. The new legislation is named the “Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017” and empowers IGs, MSPB, and an assortment of judges to require that agencies propose the discipline of whistleblower reprisers. The decision that orders OSC to pay a whole bunch of money as attorney fees is Coffman v. OSC, CB-1215-14-0012-A-1 (September 29, 2017).

As they say in the poker business, “Read ‘em and weep.” [email protected]

What Do You Have to Do to Show that You are Incapacitated?

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By Deryn Sumner, October 24, 2017

As we discussed in August’s edition of the FELTG newsletter, the EEOC’s Office of Federal Operations is cracking down on granting extensions on deadlines to file appeal briefs.  In one canned response my office received, the EEOC made reference to a need to show that the party was incapacitated during the regulatory timeframe to file the brief.  Incapacitation is used as the standard for other issues of timeliness, including in determining whether there is a basis to extend the timeframe for making contact with an EEO counselor or filing a formal complaint.  So what does one have to do to show incapacitation before the Commission?  As the case law tells us, merely being stuck on your couch binge-watching TV while you fight off the flu is not going to cut it.

Historically, the EEOC has required the party, typically the complainant, to provide medical documentation to demonstrate the inability to meet a deadline because of a medical condition and to show that the medical condition was so severe so as to prevent the complainant from meeting the deadline.  Being taken to the emergency room will typically be sufficient to show incapacitation, as was the case in Zandra N. v. United States Postal Service, EEOC Appeal No. 0120161756 (July 15, 2016).  Being in a residential treatment program is also typically sufficient to show incapacitation, as shown in Complainant v. Department of Agriculture, EEOC Appeal No. 0120133092 (January 17, 2014).

However, medical documentation alone will not always meet that burden of proof.  For example, in a 2015 case, Refugia v. Department of Homeland Security, EEOC Appeal No. 0120151970 (October 3, 2015), req. for recon. denied, EEOC Request No. 0520160076 (June 8, 2016), the complainant submitted a medical certificate in support of her claim that she was under severe stress during the timeframe she had to file a formal complaint of discrimination, which caused her not to be able to timely file the complaint.  The Commission found that although the complainant submitted medical documentation, she did not demonstrate that she was so incapacitated that she could not meet the deadline.

The Commission did recently credit submitted medical documentation in the case of Jutta A. v. Department of Veterans Affairs, EEOC Appeal No. 0120172048 (September 22, 2017) to excuse the untimely filing of a formal complaint.  There, the complainant received her notice of right to file a formal complaint on March 9, 2017, but did not file her formal complaint until March 28, 2017, 19 days after receiving it and 4 days after the deadline.  The Commission found persuasive that the complainant submitted medical documentation from two medical professionals noting that the complainant was experiencing “crippling anxiety associated with various physical symptoms” as well a respiratory tract infection developed during that time.  Given the short period of time that had elapsed between the deadline and the complainant’s submission, the Commission found fit to reinstate the formal complaint for processing.

So, if you plan on asserting that personal incapacitation kept you from meeting a deadline, be prepared to have the medical documentation to support your claim.

[email protected]

Do I Have to Pay My Disabled Employee’s Wife to Assist Him at Work?

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By Deborah Hopkins, October 18, 2017

The answer to this article’s title: maybe.

Earlier this year, EEOC amended the regulations on federal agency obligations to provide Personal Assistance Services (PAS) to employees who have targeted disabilities. (If you need a refresher on what a targeted disability is, check out this recent FELTG article). The amendments apply to Section 501 of the Rehabilitation Act of 1973, the law that prohibits the federal government from discriminating in employment on the basis of disability and requires it to engage in affirmative action for people with disabilities.

Some individuals with targeted disabilities cannot work unless PAS are provided to them in the workplace, so beginning January 3, 2018, federal agencies will be required by 29 CFR § 1614.203(d)(5) to provide PAS to individuals who need it. PAS are provided by humans, and help individuals who, because of their targeted disabilities, require assistance to perform basic activities of daily living, such as eating, walking, or getting out of a vehicle.

According to the regulations, PAS means “assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.” Keep in mind these are examples and the regulations do not list every activity that might constitute a need for PAS. For example, someone providing PAS might push a wheelchair or assist someone with getting into or out of their desk chair at work.

PAS provide functional assistance, not medical assistance. PAS do not include performing medical procedures (such as injecting insulin) or medical monitoring (such as monitoring heart rate, body temperature or blood sugar).

Here are some examples of Personal Assistances Services federal employees might need:

  • Pushing a wheelchair
  • Getting out of their vehicle when they get to work
  • Using the restroom
  • Walking across uneven surfaces
  • Assistance with prosthesis
  • Eating or drinking during a break
  • Reaching and retrieving items

As stated above, PAS allow individuals to perform activities of daily living that an individual would typically perform if he or she did not have a disability – but they do NOT perform the essential functions of the job FOR the individual. EEOC’s website gives an example: “PAS do not help individuals with disabilities perform their specific job functions, such as reviewing documents or answering questions that come through a call-in center. PAS differ from services that help an individual to perform job-related tasks, such as sign language interpreters who enable individuals who are deaf to communicate with coworkers, and readers who enable individuals who are blind or have learning disabilities to read printed text. Those services are required as reasonable accommodations, if the individual needs them because of a disability and providing them does not impose undue hardship on the agency. An agency’s obligation to provide reasonable accommodations is unaffected by the new regulations.”

Agencies are required to provide PAS to an individual if:

  1. The individual is an employee of the agency;
  2. The individual has a targeted disability;
  3. The individual requires the services because of his or her targeted disability;
  4. The individual will be able to perform the essential functions of the job, without posing a direct threat to safety, once PAS and any required reasonable accommodations have been provided; and
  5. Providing PAS will not impose undue hardship on the agency.

In addition to being available regularly scheduled work hours, PAS must be supplied during overtime hours and work-sponsored events such as special talks and holiday parties, as these are “benefits and privileges of employment,” PAS must also be provided to teleworkers who qualify.

PAS employees may be federal employees, independent contractors, or a combination of employees and contractors. While the agency has the final say on who provides PAS to the employee, the employee’s choice should be given deference whenever possible. This means if the employee’s spouse provides PAS when he is not in the workplace, and the employee needs assistance when in the workplace, the agency may employ his wife (as either an employee or contractor) as the PAS provider if the employee requests her. If the agency denies a request for a specific PAS, the agency must show providing it would be an undue hardship under the disability standard.
For more information see EEOC’s Questions and Answers: Federal Agencies’ Obligation to Provide Personal Assistance Services (PAS) under Section 501 of the Rehabilitation Act at https://www1.eeoc.gov//federal/directives/personal-assistance-services.cfm?renderforprint=1.

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Commission Reiterates Burden of Proof for Employees to Establish Joint Employment Relationship

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By Deryn Sumner, October 18, 2017

As we’ve discussed in this space before, federal government contractors can have standing to file formal complaints of discrimination against federal agencies, if they can demonstrate that they should be considered joint employees of both the contracting agency and the federal government.  The Commission utilizes the Ma test, named after one of its decisions, Ma v. Department of Health and Human Services, EEOC Appeal No’s. 01962389, 01962390 (May 29, 1998), which laid out a common law test with a number of factors to be examined with the goal of determining whether an employer-employee relationship existed between the employee and the government agency.  Note that this test does not require an employee to demonstrate that the federal government agency controls all aspects of employment, nor does it require an employee to demonstrate that the federal government agency should be considered the sole employer of the employee.  With regards to the individual factors, an employee does not have to demonstrate that the federal government exercises complete agency control in order to show joint employment.  Rather, the test looks at whether the federal government agency exerted sufficient control over the employee’s work such that the employee could raise claims of discrimination against the federal government agency, even though the employee is, on paper, not a federal government employee.

The Ma factors include reviewing the entity that provided the employee with day-to-day assignments, performance evaluations and feedback, tools, material and equipment needed to do the job, whether the agency’s communication that it no longer wants the employee’s services leads to the employee’s termination by the contractor, whether the employee’s position required substantive knowledge and expertise, whether the federal government approved leave requests and other schedule changes, and the entity that provided benefits to the employee.

In the years since the issuance of the decision in Ma, the Commission has addressed hundreds of appeals where an agency has dismissed claims brought by federal government contractors for lack of standing.  In some of these decisions, the Commission did find that the relationship was too tenuous such as to permit standing.  However, in my unscientific view, a majority of these decisions reinstated the complaints and remanded them for investigation.

In a recent decision, Corrina M. v. Department of Defense, EEOC Appeal No. 0120171798 (September 22, 2017), the Commission took the opportunity to note that agencies have not been properly applying the Ma test in making determinations on standing and too often rely on contracts between the federal government and the contractor as dispositive.  The Commission noted that the test had been “announced many times and in several formats, including Compliance Manual chapters, formal enforcement guidance, and federal-sector rulings.” The Commission also stated, “[i]n determining a worker’s status, EEOC looks to what actually occurs in the workplace, even if it contradicts the language in the contract between the staffing firm and the agency.”  Later in the decision, the Commission used the word “holistic” to describe its approach to the analysis.

In the case at hand, the Commission found the agency improperly dismissed the complainant’s complaint for lack of standing and found the agency sufficiently controlled the complainant’s work such that she could proceed with her EEO complaint.  The relevant factors in that case included that the complainant had worked for the agency for over eight years, worked in agency facilities using agency equipment, and the agency had constructive power to terminate the complainant.  The Commission further determined that the agency had the opportunity to gather additional evidence to support its determination that the complainant should not be considered a joint employee, but failed to do so in its decision.

As agencies continue to rely upon contractors to support the various missions of the federal government, it must properly determine whether these contractors have EEO protections.  [email protected]

Litigation Constipation

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By William Wiley, October 18, 2017

In the world of civil service law, we live and die by the works of our alphabetical oversight agencies: MSPB, EEOC, FLRA, OPM, FSIP, and OSC. When they shut down, some part of the federal employment system shuts down, as well.

Coming out of the Obama administration into the Trump administration, we were starting to hurt. A number of vacancies and early resignations or firings had left the senior-most political positions in those agencies barren. People had left, but none were being nominated or appointed to replace them.

Recently, however, the White House seems to have recognized the important roles these agencies play in our government, and appointments began to flow: new commissioners at EEOC, two new nominees and a re-appointment at FLRA, a new director at OPM, seven new members of the Federal Service Impasses Panel, and a new Special Counsel over at OSC. Yes, White House personnel has been working overtime to get these civil service oversight agencies up and running and carrying their respective loads relative to federal employee rights and protections.

Except for one.

What in the world is going on with MSPB? The agency responsible for making sure that removals and other serious actions taken by agencies are implemented fairly has effectively been shut down since the first week in January when one of the two remaining members quit early. A single hold-over member of a three-member Board cannot issue decisions for the lack of a quorum. Therefore, for the past 35 weeks or so, approximately 750 challenges to decisions made by MSPB’s cadre of Administrative Judges have been added to the Board’s headquarters backlog with nothing coming out the other end. And every work day, another four or five appeals are added to the pile, appeals in which the future of some poor fired soul hangs in the balance, and agency back pay liability continues to stack up.

The word on the street is that the remaining member, Acting Chairman Mark Robbins (a Republican by persuasion), is hanging in there, doing a yeoman’s job of voting on four or five cases every day as they are presented to him. Of course, no Board opinions can be issued with just one vote. That means that somewhere within MSPB’s palatial office space there’s a room filled with about 750 case files with decisions already drafted by the career staff, and Chairman Robbin’s vote sheet attached to the top. I’ve been there. Some files are six inches think; some are six copy paper boxes in size. Some appeals are exceedingly easy to resolve, others are exceedingly hard. And they are just sitting there. Waiting.

So how will this tale of woe come to an end? Well, poopsie, I’m glad you asked. There are two likely optional outcomes:

  1. The President nominates and the Senate confirms a single new Board member. Hopefully, it would be someone like our colleagues, Peter Broida, Barbara Haga or Rock Rockenbach. Someone who already knows Board law cold and could begin immediately voting on cases relying on a deep well of previously-accumulated civil service law knowledge. That new member could be locked in the storeroom with all those pending cases, and fed red meat and Mountain Dew until he or she had voted on them all. Along with the prior concurring vote of Chairman Robbins, those appeals that now have votes from two members can be issued post haste, resolving issues some of which have been pending for a couple of years.
  2. Chairman Robbins cannot be replaced until his term expires at the end of February. The President could wait until that time to name two new Republican members (or three new members, if he has a Democrat he likes) thereby replacing Mr. Robbins and simultaneously voiding his 1000 votes that have accumulated over the previous 14 months. Then, we would lock the new members in that room full of pending cases, and hope to goodness that they are quick learners agreeable in their jurisprudence. If we end up with this option, we’re going to need a LOT of Mountain Dew.

Were it not for the activity with the other appointments, it would be easy to conclude that the White House just hadn’t begun to focus on staffing up the civil service oversight agencies. But they have indeed been focused in White House personnel, even needing to nominate a second OPM director when the first nominee withdrew. It’s starting to appear as if there is a method to their madness, a rationale for letting all these cases accumulate when one name for one Board position sent to the Hill early last spring would have avoided this litigation constipation.

What could that rationale be? Are they intentionally positioning themselves to void Chairman Robbins’ votes? Are they having trouble finding someone willing to be appointed to a job that has a ten-month backlog of work to be done? Do they mistakenly believe that by keeping the Board below quorum, the Administrative Judges cannot set aside agency removal actions?

Or, is there something bigger on the horizon? There would be no need to name members to a Board if the federal agency which housed that Board no longer existed. Recent changes to the law have made MSPB irrelevant to certain employees at DVA. More changes in the future could make it irrelevant to the entire civil service, reducing the due process required for removals from federal employment to decisions made within an agency. Next November will be the 40th anniversary of the law that created MSPB. Perhaps there will be no need for a 41st Board anniversary.

Well, here at FELTG, we don’t know the answers. All we do know is that there is an insidious continuing harm being done to the civil service system every day that MSPB is not functioning. Here’s hoping that if there is indeed a plan behind the madness, that the benefit of the delay in filling these positions is worth the cost of letting then sit vacant. [email protected]