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.

[email protected]

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]

Negligence and Federal Employees II

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By Barbara Haga, October 18, 2017

In the last column, I dealt with negligence in medical positions, where perhaps the life and death consequences are somewhat more apparent.  In this column, I will review cases of negligence or careless workmanship in other kinds of positions, including looking at the issue of being “in charge” when things go wrong.

Failing to Complete a Required Records Check

The heading for this case seems innocuous enough, but the consequences of the failure were tragic.  This case also makes another important point – that higher-level officials can be successfully disciplined for failures on the part of their subordinates.  The case is Velez v. Homeland Security, 101 MSPR 650 (2006), aff’d Fed. Cir. 06-3305 (2007).

Velez was disciplined on a charge of negligently performing his duties as a Supervisory Border Patrol Agent, GS-12, in New Mexico.  The following briefly summarizes the events that lead to the discipline.

A subordinate officer (Officer I) working for Velez arrested several illegal aliens and returned to the Border Patrol trailer for processing.  One of those arrested was identified as using another name. One of the names he used was Silerio-Esparza.  Another subordinate officer (Officer II) ran a criminal records check and found that there was an outstanding warrant in Oregon on Silerio-Esparza and there was also a notice to conduct a National Crime Information Center (NCIC) check using the FBI number it provided for the alien.  Officer I followed up with Oregon and determined that they would not extradite Silerio-Esparza; however, the NCIC check was not completed. The supervisor ordered the voluntary release of Silerio-Esparza back to Mexico without having ensured that the additional required check was completed.

The decision notes that within a few months after Silerio-Esparza’s voluntary return to Mexico, he reentered the United States and traveled to Oregon, where he raped two nuns and murdered one of them. The publicity which resulted reflected negatively on the agency and led to an 18-month investigation by the DOJ Inspector General. The OIG’s investigation proved that none of the Agents who processed Silerio-Esparza conducted a FBI NCIC check as required while he was in their custody, and, if they had they would have found that he had a criminal history in the U.S. for thefts, narcotics offenses, robbery, and kidnapping.  He also had two previous deportations from the U.S and a warrant for robbery in Los Angeles. Ostensibly with this information, Silerio-Esparza would not have been released.

The agency’s charge against Velez was negligent performance of his duties in that, contrary to agency policy, he failed to ensure that the Border Patrol Agents who processed Silerio-Esparza had run a FBI NCIC criminal records check on him before Velez granted him a voluntary return to Mexico.  Velez testified that Officer I told him that the records check had been run, but there were no records of radio calls or telephone calls to or from the trailer to request such a check.  Velez acknowledged his awareness of the policy that a FBI NCIC criminal records check must be run whenever a “red-line hit” or “lookout” was obtained from the agency’s criminal information system and of his duty to ensure that the NCIC records check has been run before making any decision on the disposition of an illegal alien.

The judge’s initial decision did not sustain the removal but the Board reinstated it and the Federal Circuit affirmed.  In this case, the supervisor did not have hands-on involvement in the initial situation, but was responsible for ensuring that subordinates acted within the policies established before he took the next step.

Excessive Radiation

This Navy case is an old case but establishes that not complying with safety requirements can still result in a stiff penalty, even if no serious injury actually occurred.  The case, Watkins v. Navy, 29 MSPR 146 (1985), involved a charge of endangering the safety of personnel through carelessness and resulted in a removal by the Agency.  The judge upheld the removal and the Board concurred, but the Federal Circuit reversed the Board’s decision insofar as it upheld the penalty of removal and remanded the case for mitigation of the penalty (Fed. Cir. No. 84-1409 (1985)).  Subsequently, the Board mitigated the penalty.

The facts in the case were that Watkins was charged with exposing himself and a co-worker to excessive radiation in the course of taking x-ray pictures of pipes and fittings on a Navy ship.  While the potential seriousness of the accident was clear, the amount of radiation received was established not to be “medically significant.”  The Board found in reviewing the Douglas factors that the offense was inadvertent and technical and was committed without any intent, malicious or otherwise. It was Watkins’ first offense on an otherwise spotless work and safety record. With regard to the effect of the offense on appellant’s ability to perform, appellant had spent twenty-five years doing this type of work, including five years with the Navy, and the Board found it unlikely that one incident of carelessness would significantly impact his future performance.

Watkins’ supervisor and assistant received only a reprimand and a five-day suspension, respectively, for their involvement in the incident. Watkins was “in charge” of the project at the time of the exposure, so the Board’s decision found that a higher disciplinary penalty than the other two received was appropriate.  However, the Board was not convinced by the agency’s arguments that they had lost confidence in his ability to perform in the future.  The Board wrote that the low penalties handed out to the other employees tended to weaken the Navy’s argument.  Based on this analysis, the Board found the maximum reasonable penalty to be a 60-day suspension.

Although the discipline was more minor in the Watkins case, once again supervisors shared in the responsibility for the failure of the subordinate.  If you will permit me a Shakespearian reference, “Uneasy lies the head that wears the crown” (Henry IV, Part 2, Act 3, scene 1).  Federal supervisors have a right to be uneasy, for they do carry a heavy burden when it comes to the work that their subordinates perform or fail to perform.  [Editor’s Note: Compare Barbara’s cases to those in which the agency could not discipline a supervisor for the failings of subordinates because the supervisor lacked actual knowledge of the misconduct, e.g., Miller v. HHS, 8 MSPR 249 (1981) and Prouty & Weller v. GSA, 2014 MSPB 90.]

Are You a Bureaucrat or are You the Next Steve Jobs?

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By William Wiley, October 18, 2017

Here’s a little quiz to demonstrate the difference between the private sector world and the world of bureaucratic government employment:

When confronted with the question, can you do X, you look for:

  1. Some authority that says you can do X.
  2. Some prohibition that says you cannot do X.

We get this sort of question here at FELTG once or twice a month. An inquisitive practitioner who has been through one of our training programs will say something like, “In the webinar yesterday, you said we should do blah-blah-blah. Do you have a case on point that says that blah-blah-blah is legal?”

Many times, our response is, “No, there’s no authority that says specifically that you can do blah-blah-blah. However, blah-blah-blah is a logical extension of the current case law, and there’s nothing that says you cannot do blah-blah-blah.”

Even though we don’t always hear back, I bet this is what’s going on in some minds when they read our response:

Oh, Mr. Bill. I’m so afraid. You haven’t given me anything that says specifically I CAN do blah-blah-blah. What if I were to do it and it turns out I don’t have the authority to do it? I’m so scared.

Well, pucker up your frightened little lips and kiss my sweet advice. Textbooks that criticize government often point out that whereas in the private sector an individual gets rewarded for doing new and creative things (e.g., the iPhone), in a bureaucracy an individual gets rewarded for not making mistakes (where some government agencies might still be using rotary dial telephones if we let them). Rather than ask, “Where does it say I can do that?” the better question is, “Does it say anywhere that I cannot do that?”

Make this change to your approach in how to do your job, and your world will be more fun and creative, and just might be good for America. I can’t imagine my end coming and being post-mortem happy that they wrote on my tombstone, “At least he didn’t make many mistakes.”

If you’re not on the edge, you’re taking up too much room. Rather than look for guidance, look for opportunity. [email protected]

A Classic Reprisal Case

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By Deborah Hopkins, October 18, 2017

EEO activity isn’t fun for anyone involved – not for the complainant, not for the agency reps, and not for the supervisor named as a responding management official. But EEO laws exist to protect people from illegal reprisal for engaging in protected EEO activity, and a recent reprisal case from USGS shows us exactly what not to do.

The employee, a hydrologist for the U.S. Geological Survey, filed an EEO complaint based on age (51), sex (male), hostile work environment, and reprisal. The employee’s claims were:

  1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position;
  2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position;
  3. On September 10, 2013, his first level supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri;
  4. On August 20, 2013, the selecting official told him that the supervisory position was the Selectee’s position;
  5. On August 20, 2013, his first level supervisor instructed him not to apply for the Supervisory Hydrologist position in Rolla, Missouri;
  6. On an unspecified date in October 2010, he did not receive his promotion after being told that he had the director’s approval for the promotion, pending a letter of reference;
  7. On an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do;
  8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and
  9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment.

As is common in EEO cases filed, the complainant’s claims on age, race and harassment were found to have no merit, but the EEOC did find evidence of reprisal for prior EEO activity:

  • The supervisor offered the employee an incentive to withdraw his complaint, and told him that if management changed and the employee had a good performance evaluation, he would talk with senior management about a new job for the complainant.
  • The supervisor told the complainant he thought he had “pulled the trigger too soon” by contacting the EEO counselor.
  • The supervisor also told the complainant that the EEO process is not “the most enjoyable path for anyone involved.”

The EEOC found that the supervisor “engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity. We further find that [the Supervisor’s] comments would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and that the actions and comments by [the Supervisor] were clearly in violation of the anti-retaliation provisions of our regulations.”

As part of the order, EEOC required the USGS to provide “at least eight hours of in-person EEO training to [the Supervisor] regarding his responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees.” Octavio C. v. USGS, EEOC Appeal No. 0120150460 (August 16, 2017).

We try to get the word out to your supervisors that while EEO is not fun for anyone involved, making these types of statements is going to be reprisal, every single time. If you need to know more on this topic, Bill and I are holding a webinar called 50 Shades of Reprisal: The Differences between Whistleblower, EEO, Union & Veteran Reprisal on October 26.  [email protected]