A Five-Rating Performance Rating Plan is Asking for Trouble

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By William Wiley, October 18, 2017

If your performance rating system has five levels, with a Marginal or Minimal (or Partially Achieved Expected results) rating level between Fully Successful and Unacceptable, you absolutely need to read this article.

Many years ago, MSPB started noticing an odd type of performance standard being used to fire poor performers. Some agencies were describing the worst sort of performance possible (e.g., “Never gets anything done on time”) and labeling it Marginal performance. When I would see those standards, I would think to myself, “That’s the job I want to have!” because I could never be fired for not doing anything. Marginally performing civil servants get to keep their jobs until retirement, although they would retire at Step One of their pay grade without receiving any within-grade step increases during their career. Still, not a bad retirement income.

For reasons I never quite understood, MSPB began referring to this kind of performance standard as a “backwards” standard. The Board reasoned that by stating the negative accomplishment as the Marginal level of performance, the agency was taking a “backwards” approach; that the Marginal level should state what the employee needs to do, not what he needs not to do. I always thought it made more sense to analyze these things as the agency writing an Unacceptable level description, but misnaming it the Marginal level. But who am I to tell the Board what to do?

This is an absolutely critical concept for the practitioner to grasp. Use a backwards performance standard to fire an employee and you will get your removal action overturned muy quick-o. Where a “less than fully successful” rating in a critical element allows a summary rating of “Marginal,” an agency fatally errs by not advising an appellant of what is required to reach the marginal level and thereby avoid a performance-based action. See Van Prichard v. DoD, 117 MSPR 88 (2011), aff’d 484 F. App’x 489 (Fed. Cir. 2012). A performance standard written at the minimally-satisfactory level that describes unacceptable performance in terms of what an employee should not do, but fails to inform her of what is necessary to obtain acceptable performance, is an invalid “backwards” standard. See, generally, Eibel v. Navy, 857 F.2d 1439 (Fed. Cir. 1988).

A Marginal performance standard is an invalid backwards standard because, although it is written at the “minimally successful” level, it fails to inform the appellant of what is necessary to obtain an acceptable level of performance, and instead describes what he should not do. Romero v. EEOC, 55 MSPR 527, 534 n. 5 (1992), aff’d, 22 F.3d 1104 (Fed. Cir. 1994) (Table). Because the Marginal standard does not define the minimal performance necessary for the appellant to remain employed in his position, the agency fails to distinguish between Marginal and Unacceptable performance as a practical matter. See Burroughs v. HHS, 49 MSPR 644 (1991).

For example, in Wilson v. HHS, 770 F.2d 1048 (Fed. Cir. 1985), the Court found that the following Marginal standard was almost a parody of a proper standard:

Coordinates controls, and directs activities of subordinate staff to insure adequate service to the public by appropriate management principles. Assignments and instructions to staff are hastily made and sometimes misunderstood. Direction of work activities is occasionally effective in achieving objectives.

Wilson, 770 F.2d at 1053.

Here’s another one:

Marginally acceptable; needs improvement; inconsistently meets Fully Successful performance requirements. The employee has difficulties in meeting expectations. Actions taken by the employee are sometimes inappropriate or marginally effective. Organizational goals and objectives are met only as a result of close supervision. This is the minimum level of acceptable performance for retention on the job. Improvement is necessary. Examples include:

  • Work assignments occasionally require major revisions or often require minor revisions;
  • Inconsistently applies technical knowledge to work assignments;
  • Employee shows a lack of adherence to required procedures, instructions, and/or formats on work assignments;
  • Employee is reluctant to adapt to changes in priorities, procedures or program direction which may contribute to the negative impact on program performance, productivity, morale, organizational effectiveness and/or customer satisfaction needs improvement.

Sommer v. HHS, MSPB No. SF-0432-16-0063-I-1 (February 22, 2016) (ID)

A number of agencies have modified their appraisal systems to do away with a Marginal rating, in part because of this problem. If you are in a policy position within your agency, you might well want to follow that example. Hey, who wants to go to The Hill and tell their oversight committee how proud the agency is that all of its employees are at least Marginal civil servants?

If you cannot change things from a policy position, be sure to watch out for backwards standards whenever you’re putting together a performance case. A backwards standard is void ab initio and cannot be “fleshed out” or otherwise explained in the PIP initiation letter. If you find one, you need to start all over, fix it with a rewritten standard, then give the employee a warm-up period of a few weeks to get used to it before you initiate a PIP.

If you need more of this mundane-but-critical insight into performance accountability, consider signing up for the next FELTG MSPB Law Week open-enrollment seminar in Washington, DC March 12-16 or Denver, CO June 4-8 (assuming, of course, that we still have an MSPB by then). But don’t do that if you work for Navy, because we’ll be coming to you with a full week of MSPB Law Week in late January, in lovely Silverdale, Washington. What’s that you say? Why don’t we come to YOUR agency with all this good stuff? Well, we’d be just delighted and honored to do so. Give us a call to make your 2018 the best year ever for winning MSPB appeals and holding your employees accountable for performance and conduct: 844-at-FELTG. [email protected]

An Open Letter to OPM

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By William Wiley, October 12, 2017

If you regularly read the Washington Post or some other big city newspaper, you no doubt have noticed this: about once a month or so, some self-righteous, opinionated, backwater organization will spend a bucket of money to buy an entire page of advertisement to display an “open letter” imploring some powerful individual or organization to do whatever it is that the open-letter author thinks is important. As our little FELTG training group is nothing if not self-righteous, opinionated, and deep, deep backwater, here’s our full page ad for the month. In the spirit of Martin Luther, we plan to nail it to the door of OPM over on E Street NW, just as soon as we figure out how to nail to plate glass:

Dear OPM,

Late this past summer, you issued a proposed instruction that would place significant burdens on agency officials who need to implement Notice Leave to get an individual out of a government workplace during the 30-day pendency of a proposed removal. Although you promised a final regulation by late September, you decided to indefinitely delay issuing the final version of that instruction for reasons unexplained to the general public.

Hopefully, you made that decision because you got lots of thoughtful comments from readers of this here newsletter and other experienced souls that your proposed regulation was ill-conceived and most likely will get people killed. Well, just in case you’re still thinking about what to do, we offer a single name for your consideration:

Stephen Paddock

Mr. Paddock was the Las Vegas shooter. With no history of violence, no police record, and no documented mental disabilities, he took it upon himself to kill 58 of our fellow citizens, and wound nearly 500 more by shooting at them from an upper floor of a Las Vegas hotel. As of this writing, none of the smart guys has discovered a motive for the shootings. Until we get more information, the best guess is that he just snapped; methodically stock-piling enough guns and ammunition to arm a platoon of soldiers before taking aim and firing at a field of innocents.

We now know that Mr. Paddock had previously been a federal employee for about a decade. He worked at IRS, USPS, and the Defense Contracting Agency, according to media reports. Before you issue your final rule relative to Notice Leave, stop and think for a moment what might have happened if Mr. Paddock had gotten himself in trouble with one of those agencies, perhaps repeatedly coming to work late or failing a performance improvement plan. If nothing else worked to correct his behavior, his supervisor would eventually have proposed his termination, because that’s what we ask our supervisors to do regarding employee accountability.

If your stupid proposed regulation had been in place when that happened, Mr. Paddock’s supervisor most likely would have kept him at work, either in his original workplace in a government building, or perhaps at home on telework where he would still have access to the agency’s computerized data files, maybe even retaining his government credentials that allow him to enter government property. For 30 days. That’s because your proposed Notice Leave rule makes it so difficult for front line supervisors to place an employee in a paid non-duty status, most would not take the trouble to do it. Hey, why should they? Mr. Paddock hasn’t displayed any signs of potential violence. Yes, he’s a grumpy old man, but there are lots of grumpy old men around these days. When you’re putting together the paperwork to fire someone, the last thing you want to do is go through additional paperwork and obtain higher level approval in invoke Notice Leave, as your proposed rule would have required.

Mr. Paddock lived in Nevada, a state with some of the loosest gun laws in the country; e.g., no limit on the number of guns that can be owned and no requirement to have a gun permit to buy a gun. I wonder how many guns and how much ammunition a Nevada resident can amass in a 30-day Notice Period preceding a removal for a government position? And I wonder how much stress a government employee feels when issued a proposed removal notice?

Look, OPM, are you still with us? We implore you. Act like one of the smart guys. You cannot possibly be thinking that 30 days of salary is somehow more important than the lives of our civil servants and the public they serve. You really aren’t interested in denying an agency the ability to use 30 days of paid non-duty time if it saves a civil servant life; you’re interested in curtailing the abuse of this flexibility. So please, rewrite your rule so that, categorically, front line supervisors have the unrestrained authority to place an employee on Notice Leave for 30 days any time a removal is proposed. If you’re concerned about abuse, require all the levels of approval and additional documentation for Notice Leave beyond 30 days as you now have in your proposed rule. Not only might that save lives, as a bonus, it also gives the agency a strong incentive to make decisions on proposed removals promptly.

Come on, come on, come on. Help make America great. Do it for the children. Have a big heart. Get smart. Go green. Take guidance from how the White House fires people. Listen to those of us who have been around a while. Make it easy to invoke Notice Leave and FELTG will personally buy lunch for whoever it is over there that gives the final approval for the rewritten regulation. Heck, we’ll even buy lunch for the whole darned rewrite team, if the change goes through to make Notice Leave easily available.

We have skin in this game, as well, because our speakers work in Federal work spaces throughout government. We don’t want to have to explain to their grandkids that grandpa is not coming home from his last onsite training seminar because of some short-sighted OPM regulation.

And for what it’s worth, you have skin in this game, as well. The next Stephen Paddock could be working right down the hall from you, right now on E Street NW. See him? That guy with the funny mustache and smirk on his face? The one with the Bullets and Bombs magazine in his desk drawer? How’d you feel handing that moron a proposed removal letter?

Yeah, us too.

With All Love and Affection,

FELTG

[email protected]

Painting Your House

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By William Wiley, October 4, 2017

I think that just about everyone at one time or another has painted a room, or perhaps hired someone to paint a room for them. Not as easy as it looks, if you’ve had this experience. And a mess to clean up if you make mistakes.

So let’s say you have a 10-bedroom house, a typical size home for you highly-paid civil servants. You’re busy running the government every day, so you jump on Task Rabbit or some other handyman service, and hire yourself a by-the-hour painter. The guy shows up, has the credentials and experience to do the job, so you turn him loose. You tell him how you want things done: No paint on anything, but the walls. The painter has brought the flat white paint you asked for, so you leave him to do the first room while you go to your highly important desk in that highly important federal agency.

When you return that evening, the painter has finished the work on the first room. He’s left a bill for eight hours of work, which is about what you expected. But the quality of the paint job is not. The face-plates are plastered to the wall with paint. The window glass has ragged edges. The floor has white speckles where it is not supposed to have any speckles. The guy did a bad job.

Pop Quiz No. 1: What will you do when the guy shows up tomorrow morning to start on the second room?

A. Fire him.

B. Give him a second chance.

Yeah, I’d fire the guy, too. Life’s short. Paint’s expensive. There are lots of potential painters on Task Rabbit. Find yourself a painter who can follow instructions.

But wait! Your roommate (husband, wife, whatever) is more forgiving than are you. She implores that you give the dude a second chance; an opportunity to demonstrate acceptable performance. As your roommate is paying for half of the paint job, and as it is her week to do the cooking, you decide to go along with her suggestion in the interest of peace and harmony, and edible dinners.

So when the guy shows up on Day Two for room number two, you reinforce your very specific instructions: face-plates removed from the electrical outlets, masking tape on the glass, and the entire floor covered in tarps. You tell him if he continues to mess up, to fail to demonstrate acceptable performance, you will fire him. Then, you take off for your spare bedroom as you are working flexiplace today.

At noon on your lunch break, you wander down the hall to see how he’s doing on room number two. Sadly, the outcome is no better than yesterday. One of the windows is completely obliterated with paint. The light switch as well as the face-plate is covered in paint. The speckles on the floor today are pink because he brought the wrong color paint. Pop Quiz Question No. 2: What will you do?

A. Fire him. End the misery. Save yourself four hours of pay. He has failed to demonstrate acceptable performance.

B. Let him finish painting room number two, then fire him.

C. Reconsider your original decision to have only one room in which to demonstrate acceptable performance, advise him he can have not one, but a three-room opportunity period, then wait to see how he does after three more rooms.

I have to believe that most rational people would have fired this guy after the first day. If convinced to give him another chance by a soft-hearted roommate, I have to believe that most people would have fired him at noon the second day. Why waste unnecessary money on somebody who cannot do his job? Why put yourself in a position of a) not getting work done that needs to be done, and b) giving yourself a bigger and bigger mess to clean up once it’s all over? Some may come to different conclusions, but I think that most readers would pick A. and A. for our two pop quizzes.

So why in the world do too many practitioners not take this same approach to PIPing a poorly performing federal employee? Here’s what the law has said for nearly 40 years about how a federal supervisor should deal with unacceptable performance:

5 USC 4302(b)(6): Reassign, reduce in grade, or remove employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.

The law is like your soft-hearted roommate. It won’t let you fire the employee the first time you find poor performance. Beyond that, though, it gives the supervisor significant flexibility to do what needs to be done during the demonstration period. Unfortunately, here at FELTG we run into practitioners all the time who advise supervisors to paint several rooms before firing the bad handyman (e.g., 60, 90, and 120-day PIPs) or insist that the supervisor allow the employee to complete the PIP even if they fail it early (e.g., finish painting everything in the room pink).

Folks, it is rare to find a federal law that doesn’t make sense. It is a nonsensical interpretation of this particular federal law if you believe it means that employees have to be given several months to demonstrate acceptable performance or given the opportunity to finish a PIP if they fail the PIP early. Interpret legal requirements rationally, as you would act in the real world outside the civil service workplace. Even you softies out there would not give a bad painter excessive opportunities to demonstrate acceptable painting ability. There is no excuse for not acting as rationally when you advise a supervisor who supervises a non-performer.

Be brave. Be rational. Advise supervisors to use 30 day PIPs and fire the guy if he demonstrates failure early. If you don’t, we’ll send one of our poorly-trained but highly-motivated FELTG handymen to your office and paint the place pink. That should remind you to be strong.

Of course, if your office already is painted pink, we are jealous. Because we think that pink is a just dandy color for some federal agencies. [email protected]

The Simplest Rule of All

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By William Wiley, September 19, 2017

We routinely invite participants in our FELTG webinars to email us with follow-up questions if we can be of further help. The fundamental question below came from a recent participant who had a head-hanging problem. Unfortunately, it is too late for us to help this time, but next time, she’ll be prepared:

Dear FELTG Sensei-

I struggled for four years with a deeply troublesome employee and I eventually left the job because of him. He was an older male and very crafty. My successors and I had no end of trouble with his behaviors, one of which was to hang his head and stare into his lap at meetings (and generally require us to work very hard to extract more verbal input), keeping his door shut, etc. Nonetheless I’m amazed to know that, as you have taught, I could have implemented a rule that he could no longer hang his head and stare at his lap in meetings, or that his door must remain open unless he’s in a meeting. I have no doubt that if I had issued a written reprimand for one thing, he would then comply, and implement some other troublesome/disruptive behavior. 

So how does one deal with an employee who constantly plays a game of complying with each successive rule and has a dozen other ways to be difficult? I would appreciate your thoughts on this. Many thanks!

And our always-enlightening FELTG counsel:

Dear Participant-

Yep, you really can tell them what to do. I once worked with a supervisor who required an employee to smile at everyone he spoke to at least once a day, and reprimanded him when he did not. The law is a powerful thing if you understand it. Employees really do have to obey their supervisors.

The trick to multi-jerkiness is progressive discipline. First head hanging after being told not to do it = Reprimand. Closing the door later after being told to keep it open = Suspension. A third offense of anything demonstrates that he does not respond to discipline, and a removal is usually warranted. Or, if you really want to be extra conservative, you could give a second, longer suspension. A fourth offense of anything has always been a removable offense. Always. He’s not going to get to a dozen other ways to be difficult because he’s going to be fired way before then.

Hope this helps. Take care out there-

Sometimes it’s the simplest things that drive us nuts. Grasping the concept that if an individual wants to be paid, he must do what his boss tells him is fundamental to being a federal supervisor. As we often say in our seminars, when a new employee raises her hand and takes the oath to be a civil servant, what she is really saying – by law – that “In exchange for getting paid every two weeks, I will:

  • Do what my government tells me to do,
  • Where my government tells me to do it,
  • When I am told it is to be done.”

If she doesn’t want to do any of these three things, that’s fine. They are always hiring at McDonald’s. [email protected]

Welcome to the Show

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By William Wiley, September 13, 2017

A few weeks ago, I was holding forth in a seminar of supervisors about one of the big secrets in our business. Learn the minimum and focus on that when confronted with a problem employee. With this philosophy of accountability, you’ll get the job done more quickly, with fewer grievances and complaints, and have less chance to mess things up. In application of that philosophy, the smart supervisor will avoid using legally useless tools like cautions, warnings, and admonishments. Instead, if you have a problem employee, and you’re ready to do anything, cut to the chase and issue a Reprimand to try to correct the misbehavior.

If you want to go from DC to Baltimore, you get on I-95 and drive north. You can also go from DC to Baltimore by leaving DC, driving to West Virginia, up through Pittsburgh, to Buffalo, back to Philadelphia, and then to Baltimore from the north. But why would you waste all that time, risk a lot more accidents, and spend a lot more money when you can just get on I-95 North? The same with accountability. When you’re ready to do something, move straight to a Reprimand, then a Suspension, and finally a Removal (Baltimore). Life’s too short to dilly-dally.

After explaining the principle of “avoiding the yellow donut” and going straight to the tools that work, I got a little push back from one of the class attendees. A lady in the front row – obviously smart and wanting to do a good job as a supervisor – asked why I would suggest avoiding letters of warning, caution, and admonishment. “Isn’t it our job to work with employees? To try to get them to be successful? Isn’t it a supervisor’s responsibility to take time develop his employees rather than just go straight toward removal if he isn’t working out?”

When she said that, I was reminded of little league baseball. If your son or daughter has participated in little league sports recently, you’re familiar with how they work. Everybody gets to play. Everybody gets a turn at bat. At the end of the season, everybody gets a certificate of accomplishment. The coach’s job is to help each player to rise to the level of his or her potential. Winning is not as important as playing.

Compare that to the big leagues, “The Show” as they sometimes call it in baseball. Players compete for the privilege of playing. Coaches coach, but they also are strong evaluators. If a player turns out not to be very good after being given a period of time to demonstrate performance, he’s cut from the team and another individual is given a chance to bat.

With all respect, the class participant who wanted to emphasize developmental efforts rather than accountability tools is taking the little league approach to federal supervision. Taking lots of time to work with individuals, holding their hand as they try to do their job, avoiding the tools of accountability … that’s all good when the goal of the endeavor is to develop individual kids to play the game as best they can. But that’s not the goal of a federal agency. Ours is not a place where people get hired so they can have a job (can play a position).

Ours is a workplace where people get hired and continue to be paid because they successfully contribute to the productivity of the government. At least it’s supposed to be run that way. Sure, you may want to coach employees so that they can do the best they can do. But if their best is not good enough, whether you coach them or not, remember that your primary responsibility as a federal manager is to run your part of the agency efficiently. If Congress had wanted it to be otherwise, there would be laws that say, “Removal is to be avoided,” or “Individuals should be retained as employees if they are working really hard and to the best of their ability.”

I checked. There are no laws that say that. In fact, the law that says what you are to do as a federal supervisor has been in place for 40 years. You are to 1) give the employee expectations (“Get a hit!”),  2) give the employee a chance to meet those expectations (“Wiley, you’re batting fourth.”), then 3) fire the employee if he strikes out. 5 USC 4302.(b)(1) and (6).

Welcome to the big leagues, my friend. Yours is not a little league government agency. You’re in the pros now. Cuts are allowed here, even mandatory if you know the law. Everyone doesn’t get to be a federal civil servant. Only the best of the best are supposed to be playing in this game. As Slider said to Maverick and Goose in Top Gun, “Remember, boys, no points for second place.” [email protected]

Accommodating Sleepiness into the Future, But not the Past

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By Deryn Sumner, September 13, 2017

It was a hollow victory for the complainant in a recent case where the EEOC’s Office of Federal Operations found the Department of Transportation failed to accommodate him, but also found his termination during his probationary period was justified.  In issuing the decision, the EEOC overturned an administrative judge’s conclusion that no discrimination occurred in Lloyd E. v. Department of Transportation, EEOC Appeal No. 0120150325 (August 17, 2017). The EEOC reviews the decisions of its administrative judges using a substantial evidence standard of review, as compared to the de novo review given to Final Agency Decisions, which essentially means that decisions from administrative judges are given more deference.  However, here the EEOC found appropriate to modify the final order in part, based on a detailed examination of the timeline in the case, as I discuss in more detail below.  [Editor’s Note: In comparison, MSPB board members grant zero deference to the decisions of their judges, except for credibility determinations based on physical observation.]

The complainant worked as an Airway Transportation Systems Specialist and alleged the Department of Transportation failed to accommodate his depression and sleep apnea when it denied him a reasonable accommodation and terminated him during his probationary period.  The complainant’s work hours were 7:00 a.m. to 5:30 p.m. Monday through Thursday.  He had some issues arriving to work in the morning, once because he showed up at the wrong facility thinking he was supposed to attend a class there, once for oversleeping after getting into an argument with his roommate, and once when he overslept because he had run out of medication.  The complainant had recently relocated and was having issues getting his medication refilled at his new VA Medical Center.  After the complainant failed to show up to work on time the third time, his supervisor contacted HR to ask about disciplining him, and specifically asked about terminating him because he was still a probationary employee. The supervisor also sent out an email to the complainant and other employees reminding them that the morning shift started at 7:00 a.m. and employees needed to notify him if they were going to be late.

Now here’s where the timing becomes important.  The day after the supervisor sent the email reminding everyone to be on time, which was November 16, 2011, the complainant was 45 minutes late to work. In a conversation about the complainant’s tardiness, the complainant reported that he was late because he had problems sleeping and asked if he could switch to working eight-hour days with a start time of 8:00 a.m. The supervisor told the complainant that he could work eight-hour days, but would still need to start work at 7:00 a.m. The supervisor charged the complainant AWOL for being late to work that day.

The next day, November 17, 2011, the complainant spoke to the supervisor again and told him that he was a disabled veteran, what his medical conditions were, and said that he had been late to work because he was not able to get a prescribed medication that helped him sleep.  The complainant then asked again for later start time, this time to be switched to the 1:00 p.m. – 11:00 p.m. shift, which the supervisor denied, saying that instead, the complainant could arrive at 8:00 am and use an hour of leave each day.  Given the complainant’s limited leave balance, he did not agree to this proposed solution.

The complainant reported to work on time from November 17 through December 20, although the record later revealed that a handful of times he came to work in the middle of the night and slept at his desk to avoid being late.  More than a month later, on December 19, 2011, the supervisor asked the complainant if he had been seeking a reasonable accommodation back in November, and asked for medical documentation, as well as whether the complainant could safely perform his job duties, given his need for medication.  The complainant provided a doctor’s note the next day, December 20, 2011, but told his supervisor that he didn’t need accommodations because he had now been taking his medication and was showing up to work on time.

After the complainant requested leave at 8:30 a.m. the following day after not showing up to work, the supervisor terminated him on December 28, 2011 for “continued problems with tardiness.”

The complainant filed an EEO complaint and eventually the case wound its way to an administrative judge.  After holding a video teleconferencing (VTC) hearing, the administrative judge concluded that the agency did offer reasonable accommodation by allowing the complainant to use leave every day and show up by 8:00 a.m.  The administrative judge further found that the agency did not discriminate against the complainant when it terminated him because he did not identify employees outside of his protected class who were treated better, and that he didn’t tell the agency until November 17, 2011 that his tardiness was due to his medical condition.

On appeal, the Commission disagreed with the administrative judge that allowing the complainant to use leave to arrive to work late each day is providing accommodation, noting its prior precedent in Denese G. v. Department of Treasury, EEOC Appeal No. 0120141118 (December 29, 2016) that, “forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation.” The Commission further found that allowing the complainant to report to work at 8:00 a.m. did not pose an undue hardship, and that the agency should have accommodated the complainant by granting his request for a modified schedule.  However, the Commission defined the timeframe of the failure to accommodate as only from November 17, 2011 until December 20, 2011 (hence why the dates of the fact pattern are so important).

The Commission did agree that the termination was not discriminatory because the complainant was tardy on five occasions, four of which occurred before he requested reasonable accommodation.  As we’ve previously discussed, an employer does not have to accommodate an employee by forgiving misconduct.  As I mentioned at the start, a hollow victory for the complainant.  What remedies would be appropriate for just a little over a month of not being accommodated?  The Commission remanded the case to the agency for an investigation to determine just that.  [email protected]

Do Supervisors Have Any Appeal Rights?

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By Deborah Hopkins, September 13, 2017

A couple of weeks ago, I was teaching a class to supervisors on holding employees accountable for performance and conduct. The day after the training ended, I received the following email from an attendee.

Thanks for the excellent presentation on holding employees accountable.  My concern is with the new changes that might be coming from Congress — it seems that there will be little to NO protection for Supervisors, regardless of tenure with the government.

What recourse does a supervisor have IF given a letter of Reprimand, and where can I find information as to the rights of a Supervisor within the Federal government, when I have no union for protection?

And here’s the quite-brief response to that question.

Dear FELTG attendee,

Thanks for the email. Though you’re not in a union, you do have a couple of options if you’d like to challenge the reprimand:

  1. You can file an internal administrative grievance with the agency. This is different from a union grievance in that the internal grievance generally goes to a higher-level official in the agency, instead of to an arbitrator, and of course you don’t have a union to represent you. I haven’t read your internal grievance policy so I don’t know the specific person you file with, but I imagine HR will be helpful in providing you with that info.
  2. You could contact an EEO counselor if you think the reprimand was motivated by your EEO category (age, sex, religion, etc.).
  3. You could contact the US Office of Special Counsel if you meet the definition of a whistleblower.
  4. If you are a veteran and feel you have been mistreated because of your military service, the Department of Labor (or OSC sometimes) can help you out.

And that’s about it. Please let me know if you have any questions at all. Take care. [email protected]

R U a Smart Employee Relations Specialist? Take the Test and Find Out.

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By William Wiley, September 13, 2017

If you have been to any of our FELTG accountability seminars, you know that we are big fans of performance-based removals. When it comes to firing bad employees, if the choice is between initiating the misconduct (5 CFR 752) approach or the performance (5 CFR 432) approach, with one exception, we recommend that the supervisor always choose the performance procedures.

Let’s start with the exception. If an employee engages in a single act of misconduct that’s so bad that it warrants removal, then fire the employee for misconduct. If an employee hits a coworker between the eyes with a two-by-four, it makes no sense to issue a PIP and give him a chance not to hit anyone else for the next 30 days. A singular act of first-offense serious misconduct warrants immediate use of the 752 procedures.

In comparison, lesser acts of bad behavior should always be screened to see if they can be dealt with by use of the 432 procedures instead. If the employee’s bad acts can fairly be considered as evidence of Unacceptable Performance on any critical element, the supervisor has a choice between 752 and 432. Here’s how the two options play out:

The Players

Pam is a wise, experienced employee relations specialist. She has seen most of it in her career, and reads MSPB decisions that address everything else. She’s comfortable using the 432 procedures, and almost always recommends them as a good option to supervisors who are dealing with a problem employee. Pam is decidedly attractive in a classy sort of way, exceedingly charming, and has a solid, calm personality.

Pat, on the other hand, has a couple of years in the business, but hasn’t found a need to do much case law research. She used the 752 procedures a couple of times and thinks that they are the only way to go. Someone once told her that the 432 procedures were “hard,” and she never bothered to learn much about them. Pat is known to skip bathing several times a week, spits when she talks, and is afraid of squirrels.

The Scenario

Sally Supervisor needs help. She has a problem employee, Ed, who is causing problems, not producing, and not obeying rules. As luck would have it, the employee’s latest screw-up is not bad enough to fire him, but probably justifies an Unacceptable rating on one of his critical elements.

Incident 1

  • Pat, being an old 752-aficionado, recommends a Reprimand. Discipline early, discipline often is his motto. Sally issues Ed a Reprimand, and Ed promptly files an EEO complaint claiming race, sex, and age discrimination as well as an administrative grievance claiming a violation of agency discipline procedures.
  • Pam, appreciating the advantages of a performance removal, recommends a PIP. “PIP ‘em early, PIP ‘em often” are her by-words. Sally issues Ed a PIP initiation memo. Ed soon learns that the initiation of a PIP cannot be the basis of a race/sex/age/etc. discrimination complaint and is excluded from the agency’s administrative grievance procedure, as well.

Incident 2

A couple of weeks later, Sally reports that Ed has engaged in a second incident of bad behavior.

  • Pat is all excited. She lives for progressive discipline. She recommends a three-day suspension. Sally dutifully proposes the suspension, Ed responds 24 hours later, and Margaret Manager imposes the suspension, to be served immediately. Ed then files a new EEO complaint as well as a second grievance.
  • Pam is all excited, as well. The PIP specified that Ed could make no mistakes during the 30-day PIP. Because of this incident, the PIP can be terminated and Ed’s removal can be proposed now. Already, the 432 procedures have given the supervisor the option of removing Ed today rather than waiting for a third incident that will be necessary for a 752 removal.

Incident 3

Just a couple of days after he returns from his suspension, poor Ed commits a third act of misconduct/performance.

  • Pat’s ploy to go with the 752-approach has finally paid off. Of course, had there not been a third offense, Ed would have dodged the bullet and remained an employee indefinitely. But the three-strike rule is activated and Sally proposes Ed’s removal. Margaret decides it, and Ed files his MSPB appeal.
  • Pam already had a removal case at Incident 2. However, now that she has another incident, she has twice as many as are needed to declare old Ed to be Unacceptable. Sally proposes removal, Margaret affirms the proposal, and Ed files an MSPB appeal.

The MSPB Appeal

  • Pat’s got some work to do. First, she has to prove that Incident 3 occurred. If she cannot, Ed gets his job back. Also, Margaret has to testify (with supporting evidence) that removal is the penalty warranted under a Douglas Factor analysis. If she fails here, MSPB can reduce the removal to a suspension. Pat’s burden of proof as to the charge and the penalty assessment is at the preponderant level; 51% of the evidence must support the agency’s conclusions.
  • Pam, on the other hand, is carrying a smaller brief case. She only has to prove that EITHER Incident 2 OR Incident 3 occurred to have the removal sustained. She does not have to present ANY Douglas Factor penalty analysis because the Board cannot mitigate a performance removal. And her burden as to either incident occurring is only at the substantial level, maybe 40% of the evidence has to support the agency’s conclusion.

Conclusion

Folks, if you are working with an employee relations specialist who reflexively recommends that a misconduct removal is always to be preferred to a performance removal, you are working with an idiot. I’m sorry if that last line is offensive to some of you idiots out there, but this is not an opinion issue. This is a fact-based conclusion. I am exhausted by practitioners in this business who make recommendations that are not supported by the case law. If you can read the above and still remain committed to a belief that the misconduct procedures are routinely better than the performance procedures, there is something wrong with your ability to analyze facts and draw conclusions. Leave us. Go work in classification where you can’t hurt anybody. [email protected]

Avoidable Conflicts in EEO Complaint Processing

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By Deryn Sumner, September 13, 2017

Conflict is a fact of life (of course, we seem to be experiencing a bit more than usual since January 2017).  And one type of conflict that sometimes can’t be avoided is a conflict of interest in processing EEO complaints.  These conflicts come in a few forms and the EEOC’s Management Directive 110, Chapter 1 (as last revised in August 2015), does an excellent job in explaining an agency’s obligations with regards to them.

The first conflict arises between an agency’s role in processing EEO complaints and preventing unlawful employment discrimination and the “fiduciary obligation to defend the agency against legal challenges.” The EEOC cautions agencies that agency representatives should not be involved in the processing of complaints, or do anything to prevent impartial processing.  Agencies also must ensure that EEO complaints programs are kept separate from personnel functions to avoid impermissible interference.

Now that type of conflict affects every EEO complaint. But there are some specific to particular employees who engage in the EEO complaints process.  MD-110 addresses those as well and explains how agencies should handle situations where the alleged responsible management official is the head of the agency, which may lead to a real or perceived conflict of interest, or where the alleged responsible management official is the EEO Director or supervises the EEO office.

EEOC’s MD-110 also speaks to the need for a clear separation of the complaints program from the agency’s role in defending against EEO complaints, noting, “Only  through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.” EEOC instructs agencies to institute a firewall between the EEO function and the defensive function, that agency representatives may not conduct legal sufficiency reviews, and that agencies should not rotate agency representatives between working with the EEO office and defending against claims filed by employees.

 

The integrity of the EEO complaints process is of utmost importance, and addressing conflicts of interest helps preserve this integrity.  Even if the conflict of interest may not be explicit, if there is even an appearance of conflict, as explained by the EEOC in MD-110, agencies are likely best served by either entering into a formal agreement to have the case processed by another agency or utilizing a private contractor to process and investigate the complaint.   [email protected]

Negligence and Federal Employees

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By Barbara Haga, September 13, 2017

Sometimes a particular charge is used in a case that really piques my interest.  Negligence is one of those charges, and this month I am writing about two cases where this charge was used.

Culpable negligence in performance of official duties is a failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit.  In reviewing the penalty, it may be determined that a more severe penalty is appropriate if an act of carelessness or negligence results, or could result, in serious injury.

The Drug Box Case

This 2016 initial decision involved a removed employee named Shannon Publicover, who was a Firefighter/Paramedic GS-081-9 at the Marine Corps Base in Quantico, Virginia.  All emergency vehicles at Quantico were outfitted with a drug box that was kept in a temperature controlled part of the vehicle and narcotics that were kept in another location in the vehicle. The events that led to the removal are outlined below.

Publicover reported for her 24-hour shift at 7:00 a.m. as scheduled.  She was assigned to a vehicle that day that responded to six calls beginning with a first call at 7:07 a.m.  It was not until her last call of the day at 6:47 p.m. that she needed to use drugs from the box, which is when she realized that the box on her vehicle could not be used because its seal had been broken.  She reported this to her supervisor at 7:00 p.m.

Publicover explained to the Assistant Chief that she had been too busy during the day to check the drug box, and thus had not discovered it until the end of the shift.  The patient was not harmed because Publicover was able to retrieve a sealed, usable drug box from the fire engine that had accompanied her on the sixth call, and thus had been able to continue treating her patient without undue delay.

The Assistant Chief testified that it was standard practice of Emergency Medical Service providers everywhere to check one’s equipment when coming on duty.  When reporting to work, paramedics were required to insure their gear was ready and to perform vehicle checks.  The check of the equipment took between 45 minutes and an hour to complete.

Publicover agreed that this was standard practice unless “something impaired that action.”  She explained that the first call came in 7:07, so she had to discontinue the checks to respond.

The Assistant Chief agreed that, under the circumstances, she had to go on the call without completing the check and that six calls in a day was a busy day.  However, he also believed that there was ample time in between calls to complete the check. The Assistant Chief reviewed the records of calls and found that her vehicle was not on a call for a total of 5.5 hours.  The ambulance driver on Publicover’s crew that day gave a statement that since their first call came in seven minutes after the shift began, he had to truncate his own equipment check that morning, but he had completed his check later that morning while waiting at the hospital.

Publicover also argued that she was not completely responsible because the drug box had been unsealed and not replaced by the paramedic on the shift before hers.  The Assistant Chief testified that the employee on the prior shift had been “dealt with,” although his testimony did not specify what the penalty was. There was testimony that other individuals who had engaged in similar misconduct had also been disciplined.

The Assistant Chief viewed the failure to check the box before 12 hours into her shift as a serious lapse that could have meant the different between life and death for any of the patients she was called to treat.  That she was able to secure a drug box from another vehicle when she needed medication for the sixth patient was a case of good luck.

Her past record did not help Publicover because it showed that she had five prior short suspensions (none more than three workdays) in her eleven years of employment on charges of failure to follow proper procedures, inappropriate conduct, and negligent performance of duties.

The Administrative Judge (AJ) accepted management’s view of the seriousness of the situation, writing:

The appellant’s failure to complete her equipment check before 12 hours into her shift was a serious lapse that could have meant the difference between life and death for any of the patients she was called to treat. That she did not need the medications in the unusable drug box for five of the six patients she treated on the day in question was just a lucky occurrence. That she was able to secure a drug box from another vehicle when she needed medication for the sixth patient was, again, good luck. I note that even though the delay was slight, there was nevertheless a delay in the care she provided to that sixth patient, since medications were not available on her own vehicle but had to be purloined from another. That kind of delay could have caused death in other circumstances.

The Deciding Official testified that he did not believe the appellant took ownership of her actions because she blamed the incident on the paramedic on the shift before her and never apologized or admitted that her behavior was negligent. This led to his conclusion that there was little potential for her rehabilitation, and he had no confidence in her ability to perform her duties.  The AJ also agreed that the past disciplinary record warranted the next step in progressive discipline and upheld the removal. Publicover v. Navy, DC-0752-15-0003-I-1 (2016) (ID).

The Dirty Instruments Case

The issues of remorse and potential for rehabilitation were dealt with squarely by the MSPB in 1994 in the case of Mack Williams.  Williams was a Medical Supply Technician at the VA, GS-05, who was removed for careless and negligent workmanship on three occasions.  Williams was responsible for placing barrier filters in the lids of containers in which surgical instruments were sterilized, but on three occasions in a very short period of time, he did not correctly perform that function.  The AJ found that the instruments from the containers with improperly installed filters could not be used because they were considered contaminated, and that the errors could have caused surgical patients to become infected, if the errors had not been detected by medical personnel. In one instance, an improperly-sterilized container of surgical instruments was sent into a sterile field in an operating room prior to surgery; when the problem was noticed, the sterile field had to be reestablished, meaning that approximately $1,000 worth of medical supplies that were exposed to the surgical instruments had to be discarded unused, and surgery was delayed by 20 minutes.

The AJ found the errors to be serious breaches, but he found that Williams had shown remorse, that he had good potential for rehabilitation, that he had 22 years of satisfactory federal service, and that his disciplinary record consisted of only a 15-day suspension (the charge was unauthorized removal of government property and took place in 1992). In light of these considerations, the judge concluded that the maximum reasonable penalty under the circumstances was a 120-day suspension.

The Board took a very different view of Williams’ potential for rehabilitation and remorse, writing:

In any event, although an employee’s expression of remorse bears on the determination of an appropriate penalty for deliberate misconduct, whether the employee showed remorse is of little relevance where, as here, an adverse action is based on negligence. That the appellant is quite sorry that surgical instruments were contaminated does little to lessen the possibility of a recurrence of his negligence.

Moreover, we agree with the agency’s contention that there is no evidence to support a finding that the appellant has good potential for rehabilitation. The appellant was counselled about the importance of ensuring the proper placement of barrier filters on sterilization containers after the first incident, and yet, twice within the next 7 weeks, he failed to ensure proper placement of filters.

The Board reinstated the removal.  Williams v. VA, 94 FMSR 5623 (1994), affirmed without opinion (Fed. Cir. October 18, 1995).