Solo Scriptura

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By William Wiley, September 13, 2017

A couple of things happened last month that caused me to do some personal psychoanalysis. In the first incident, I had just completed a training class for agency lawyers. As is my usual introduction to the seminar, I had said that I have 40 years of experience doing civil service law, much of it at the highest levels of government. I’ve personally been involved in nearly 10,000 adverse actions, either on the taking end or the adjudicating end. No brag – just fact: I have more experience in firing bad government employees than just about anyone you’re ever going to meet.

As the seminar broke up, one of the participants approached me to discuss a particular point. Although in the session I had said that the best approach was X (the issue doesn’t really matter), in her opinion the better approach was Y, the exact opposite. She had previously identified herself as being new to civil service law, having worked in her position less than 18 months.

In the other incident last month, I had provided advice to a client regarding a particular matter, and told him the correct answer was “red” (again, the issue is unimportant). When he consulted with a senior attorney within his agency, that attorney responded with a detailed brief that referenced several MSPB decisions for the proposition that the correct answer was red, but in his opinion, without reference to any authority, he concluded that the better answer was “blue.”

In both incidents, I was taken aback. In fact, I found myself feeling anger. How could these people disagree with me? Don’t they know who I am?? On recognizing those feelings, I became embarrassed at myself. How arrogant I must be to expect everyone to agree with what I say. What a jerk. Thank goodness, I didn’t say anything. They are entitled to their opinions, just like I’m entitled to mine.

But the more I thought about it, using my highly advanced self-analysis tools developed through a year and a half of graduate school in psychology, I came to the conclusion that my anger was not based on arrogance. Rather, it was based on the objective fact that these two agency lawyers, well-paid and held out to be civil service law experts, were ignoring the case law and substituting their own opinions as to what the correct answer should be. That X is the better approach than Y is not my opinion, it is the conclusion that anyone would reach who has read the case law extensively. That red is better than blue was borne out by the second attorney’s own research, which he promptly rejected because he believed personally that the correct answer should be blue.

And therewith is one of the problems in our profession. We are paid to give our opinions as to the proper courses our clients should consider. We are smart (more or less), and it is a real ego stroke to have another smart person ask for our opinion on something. But we breach the responsibility of our profession, whether we be lawyers or Human Resources specialists, when we give our personal opinions rather than legal opinions based on written decisions of the boards, commissions, authorities, and courts. It’s the individuals who inhabit those lofty institutions who are empowered to have opinions, not we lowly agency advisors.

If we say that the answer is X or red, we should be able to point to authority for that conclusion. Here at FELTG, we pride ourselves on being able to do that for everything we teach. Whether we rely on case law or science for a particular proposition, you can be sure it’s not just us spouting off what we think the answer should be. If anyone else tells you the answer is Y or blue, tell them to put up or shut up. Unless that advisor is a judge or a Presidential appointee empowered to oversee some aspect of the civil service, without a citation to a piece of paper somewhere for authority, his best guess is no better than chance. And perhaps, even worse.

This issue is the same as the issue that caused Martin Luther to break with the Christian church of that time. Up until the day in 1517 he nailed his theses to that door, the church upper hierarchy decided what Christianity should be. They read the book (in Latin, thereby limiting interpretation to the priestly Latin-speakers), told the believers what the book actually meant to say, and sometimes shaded their interpretation in exchange for a small contribution to the church building fund. Well, Martin Luther said that’s wrong. He believed that there was no need to place interpreters between the written word and the worshiper. Let the congregation read the pages for themselves, in English and German and other languages relevant to the people. His reform efforts got him uninvited to the church’s Christmas party, but his point was right-on.

Martin Luther’s call to arms was “solo scriptura!” The Bible didn’t need interpretation, it spoke for itself. In our world of civil service law, we might say something like “solo authority!” Our advice to our clients should come from published controlling authority, not from some internal opinion of how the world should be. Amen. [email protected]

Life Goes Better with a Plan

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By Deryn Sumner, September 13, 2017

Sometimes at work, we can feel like we’re simply jumping from one urgent matter to the other, without stopping to look at what’s coming ahead and plan for the next steps.  I’m certainly guilty of that myself.  As a litigator, work is often times about meeting deadlines, and if a case doesn’t have a deadline attached to it yet, such as when a case is waiting for assignment to an administrative judge, it’s easy to cast it aside in favor of more pressing matters.  But, if you do have a reprieve to focus on a case file before a deadline is looming, I encourage you to do so.  I know that’s not always possible.  Hey, you may not even receive a case assignment until the initial status conference is coming up (or has already been held, with or without you).

But when time and circumstances allow, I recommend taking the following steps to familiarize yourself with the Report of Investigation and plan out your case strategy ahead of time.

So what should you do with that time?  Well, first, sit down (or stand up I guess, if you have one of those standing desks) and review the Report of Investigation (ROI) itself.  Check your agency’s internal system to see if there are other complaints pending from the same complainant.  What’s the procedural status of these other cases?  Are the cases appropriate for consolidation under 29 CFR 1614.606?

When reviewing a Report of Investigation, I often take notes highlighting three things as I go along.  First, what can I glean about events keyed to dates and key undisputed facts from the record?  That’s going to be the start of a timeline and a statement of facts for the case.  Make sure you include the citation to the ROI as you are drafting the timeline.  And avoid citing to the EEO Counselor’s Report or Investigator’s Summary.  You want to be making references to a statement in an affidavit or the source document (like a Letter of Reprimand itself).

The second thing I look for is documents that are not already included that I want to ask for in discovery or from the Agency’s witnesses, if I’m representing the Agency.  Is there sufficient evidence about damages?  Almost always the answer is going to be no.  Are there references to emails or meeting notes in affidavits that aren’t included?  Write the ideas down as you review the ROI, and you’re already on your way to having a draft of discovery requests set to go when you do get assigned to an administrative judge and given a deadline to initiate discovery.

The third thing I look for are the “cast of characters” involved in the case.  Sure, you know who provided an affidavit, but review the ROI with an eye towards identifying who else was involved or played a role so you know who you need to speak with.  Make a list, gather their contact information, figure out who may have left, and even start witness interviews if you have the time.

After you’ve reviewed the ROI, next think about what you would need to either file a successful motion for summary judgment or present the case at hearing.  If you are missing key pieces of information, that’s more fodder for your list of discovery requests.  If there are red flags – for example, you can’t quite figure out what the Agency’s legitimate, non-discriminatory reason actually is – examine that.  Is there information that needs to be gathered and added to the record?  Or do you need to be valuing the case and locating a settlement authority?

I have been saved many times by having a timeline already drafted when I need to draft a motion for summary judgment or proffer a stipulation of undisputed facts in preparation for filing a prehearing submission.  Going into a case with knowledge of the current record and an eye towards what’s missing will repay itself many times over, if you can make the time to do it.  [email protected]

The Dreaded Yellow Donut

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By William Wiley, September 5, 2017

Here at FELTG from the very beginning of our existence, we’ve taught that the best approach to discipline is to focus on the minimum steps that have to be done and to avoid doing things that have no legal value. The obvious reason we make this recommendation is that the more unnecessary things you do with a bad employee, the longer it will take you to be able to use the ultimate accountability tool: removal from federal service.

The other reason we make this recommendation is a bit more insidious, and a product of our protective civil service system. In reality, just about any personnel action you take with an employee can be challenged through one or more of the redress systems available to federal employees who feel that they have been mistreated. If you do something to an employee and he thinks it is because of his race/sex/age/etc., he can initiate an EEOC complaint against you, involving a big investigation and perhaps even an administrative hearing at which you’ll have to defend your action before a judge. If you do something to an employee and she thinks it is because she’s a whistleblower, gird your loins for an investigation by those tough investigators over at the US Office of Special Counsel. If you do something to an employee and he thinks it’s because he’s a union official, here comes the crew over at the Federal Labor Relations Authority, prosecuting you for committing an unfair labor practice.

If you decide to take formal steps to hold an employee accountable for misconduct or performance, you probably are going to have to defend yourself before one or more oversight agencies, no matter what. For your own sanity and the well-being of your children, you should avoid doing any more to an employee than necessary, because the minimum steps will keep you busy enough, and you don’t want to have to defend yourself any more than you have to.

When we make this point in our seminars, the graphic we use is a three-part bulls-eye target containing all the options a supervisor has when confronted with a bad employee. The outer blue ring symbolizes options we have to admit are options, but they are illegal: DON’T DO THEM. For example, you could spank the employee who doesn’t obey your orders. DON’T SPANK YOUR EMPLOYEES (but it is an option).

The middle of the target is the red bulls-eye. This is where you want to put your efforts: Reprimands, Suspension, and Removals. Those are the primary tools of discipline. We teach that they should be the exclusive tools that a supervisor uses.

That leaves us with options in the middle band, the circle of options around the red bulls-eye middle and inside of the purple illegal options area. These options are legal, but they have no legal value. You do not need to do them to hold employees accountable, and they help you in no way as far as defending yourself should you ever decide to fire the employee. In our seminars, this collection of options has come to be known as the dreaded “Yellow Donut.”

So what are some actions out there in the Yellow Donut that are to be avoided? Well, they are actions we see all the time, often memorialized in agency disciplinary policies: e.g., Admonishments, Letters of Caution, Letters of Warning, Letters of Counseling, and Letters of Expectation. When a supervisor gives one of these documents to a problem employee, it feels as if the supervisor is doing something worthwhile, but she really isn’t. These items do not meet the case law definition of “discipline” in most cases, and therefore cannot be used for the purpose of progressive discipline. Sometimes supervisors tell us that they have been advised by Human Resources or legal staff that these actions are a necessary precursor to issuing something actually worthwhile, like a Reprimand or Suspension. Well, unless your union contract says otherwise, they are not.

Not only are they a waste of time, they also give the employee something to challenge. Last month, I was involved in an OSC investigation in which one of the two personnel actions being challenged as whistleblower reprisal was a Letter of Admonishment. The settlement figure in that case – the amount the agency agreed to pay the employee to have it all go away –  approached a half-million dollars.

In part, for a freaking Yellow Donut.

Look. If you want to stop by Dunkin’ every couple of hours for a delicious glazed yummy, that’s between you and your waistline. But if you want to do this business like a pro, holding employees accountable expediently and fairly, then drop those Yellow Donuts from your disciplinary diet. As Deb always says, they aren’t anything but empty calories. [email protected]

I’ll Never Understand the Hatch Act

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By William Wiley, August 29, 2017

Oh, boy. It hit the fan a couple of weeks ago, didn’t it. “Postal Workers Campaign for Clinton on Government Time!” screamed one headline I saw. Several Congressman have expressed outrage and a couple of oversight chairmen have asked various agencies to produce information related to federal employees participating in “union-official political activity.” Other postal employees had to be paid overtime to cover for the employees out campaigning. The US Office of Special Counsel reportedly issue a finding that postal officials violated the Hatch Act by granting leave requests for employees to campaign for union-endorsed candidates. If you didn’t read closely, you might have concluded that the postal service actually hired individuals just so they could campaign for Democrats.

Well, I just don’t get it. According to OSC’s website, the Hatch Act says that federal employees, like these union folks at the postal service, cannot “engage in political activity while on duty or in the workplace. Federal employees are ‘on duty’ when they are in a pay status, other than paid leave, or are representing the government in an official capacity.” As for off-duty conduct, away from a federal worksite, “federal employees may express their opinions about a partisan group or candidate in a partisan race.”

As for the status of the postal service employees who were campaigning politically, every report I can find that gives any detail says that they were on leave without pay. As I read the Hatch Act and OSC’s guidance, if the individual is not “on duty,” then he is free to “express opinions about a partisan candidate” (e.g., campaign). I’ve been around a long time, and that’s always been the rule. Be careful and refrain from political activity:

  • When on the clock,
  • On government property, or
  • Using your governmental position in some way (sorry we didn’t get this article out sooner, Secretary Carson).

If these guys were in an LWOP status, where’s the Hatch Act prohibition on campaigning? And why in the world would it be the postal service’s management officials who approved the LWOP who have been found by OSC to have engaged in a “systematic violation” of the Hatch Act? If you have had experience with collective bargaining, you know that unions often bargain for time off for things; sometimes paid official time (e.g., to represent in Weingarten meetings) and sometimes unpaid time (e.g., to attend union conventions).

Is the violation of the act found in the fact that the agency knew that the LWOP was being used to campaign? Even if the agency knew of the purpose when it agreed to the excused time off, how does that make it a Hatch Act violation? Individuals are free to campaign as long as they are not on duty time. These individuals were not on duty time. They have a Constitutional right to express their political views (freedom of speech and association, as I remember my Constitutional law hornbook). Just because they earned the right to be on non-duty time through collective bargaining doesn’t seem to me to make this into a Hatch Act violation on the part of agency management. What if an employee had individually asked for LWOP (or annual leave) to campaign. Would it have been proper for agency management to deny that request? I don’t think so. Denying a leave request for political reasons seems a lot more like a Hatch Act violation than does what happened here.

I’ve never worked at OSC and been responsible for giving out Hatch Act advice. However, I have helped adjudicate a couple of charges of Hatch Act violations brought by OSC. Even so, I am the last person in the room to claim to be a Hatch Act expert. And with all those disclaimers, I have to admit ignorance. How this is a Hatch Act violation on the part of postal service management (or the individuals in the postal service union) has got me befuddled. I think I’ll take some leave without pay to consider it more deeply. [email protected]

Psychiatric Examinations: OPM, the MSPB, and the EEOC

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By Barbara Haga, August 16, 2017

This is the final installment of the review of the case of Ms. Doe, whose employer, the Pension Benefit Guaranty Corporation (PBGC), was concerned about her “unusual and inappropriate behavior.”  As recounted last time, this led to the PBGC sending her for a psychiatric fitness for duty exam which showed that she was not fit.  That determination resulted in an enforced leave action.  She appealed that action to the Board and filed another appeal about AWOL that resulted when she did not submit clarifying medical information to explain how her private physician had found her fit for duty.  After the two MSPB appeals, there was another case filed with the EEOC about whether the agency’s original order, sending her for a fitness for duty evaluation, constituted disability discrimination and/or reprisal.

MSPB Appeal I

Ms. Doe appealed the indefinite suspension action, which placed her in an enforced leave status.  She was on enforced leave for roughly thirty days.  The AJ overturned the action because of the OPM regulations, ruling that the agency didn’t have the authority to order the evaluation on which the suspension action was based.  In that appeal, she raised two affirmative defenses – harmful procedural error and disability discrimination.   The AJ found that she did not prove either of those defenses.

MSPB Appeal II

The second appeal covered the period of time that Ms. Doe was carried in an AWOL status, after she did not give permission for her doctor to talk directly to the agency’s psychologist or report for a psychiatric examination with Dr. Allen.   She appealed the AWOL period as a suspension, and in this appeal, she raised a number of defenses: harmful procedural error, “perceived” disability discrimination, retaliation for prior EEO activity and filing of grievances, and whistleblower reprisal.  The AJ again overturned the action because there was no authority to order the original examination and that since the action was tantamount to a suspension, she did not receive the necessary due process.

The 1984 Change to the OPM Regulations

The Board ruled on the two appeals in Doe v. Pension Benefit Guaranty Corporation, 117 MSPR 579 (2012). The decision includes a lengthy discussion of why the OPM regulations limit the use of ordered psychiatric examinations.  It’s a good history lesson if you are not familiar with the bad old days when agencies had authority to order psychiatric examinations.   I know I was abusing them like crazy.  I think I did three or four in my 20 years or so of working for the Navy – and one of them was almost a duplicate of the Doe situation, except that mine preceded the changes in the regulations.  The Board quotes from the Federal Register notice from January 1984, when the modified regulations were proposed.  OPM wrote, “The Part 339 regulations are explicitly intended to substantially constrain the number of situations where an agency may order an employee to undergo a medical examination.”  The Board’s decision also recounts that there was concern from Congress who had held hearings on the issue of ordered psychiatric FFD examinations, recommending statutory and regulation reforms to eliminate the potential for abuse of psychiatric FFD examinations.  (My emphasis.)

So, OPM’s response was basically to eliminate psychiatric examinations, not to build in procedural protections to deal with potential abuse.  That’s all fine on paper, but what is an agency supposed to do when dealing with someone in Ms. Doe’s situation?  You have someone reporting to work who is engaging in bizarre behavior which is at best distracting others, and you can’t reason with the individual because she is not in touch with reality.  Yes, you could take progressive discipline on the underlying misconduct, but the agency would be trying to handle responses and grievances from an employee the agency has already concluded is not in a position to effectively deal with such matters.

The Board concurred with the AJ on the issue of the ordered examination, stating that the agency could have offered the appellant a psychiatric evaluation pursuant to 5 CFR 339.302, but that they did not have the authority to order it.  The Board also concurred with the AJ that the AWOL could not be sustained.

The Disability Discrimination Issues

MSPB remanded the disability discrimination issues back to the AJ, although there is lengthy discussion about the matter in the portion of the consolidated decision relating to the enforced leave action.  The AJ found on remand that the agency regarded her as disabled, but did not prove that the agency’s actions constituted disability discrimination.  The Board’s 2016 non-precedential decision supported the AJ’s determination.  Doe v. Pension Benefit Guaranty Corporation DC-0752-09-0881-B-2, DC-0752-10-0223-B-2 (2016).

We won’t spend a lot of print on what the MSPB said on this topic, because the EEOC’s decision on this case has been issued. Marya S. v. PBGC, Petition No. 0320160066 (2017).

Did the Ordered Exam Violate the ADA/Rehabilitation Act?

No.  What did the EEOC say on the topic?  That medical examinations and disability-related inquiries may only be made when it is job-related and consistent with business necessity per 29 CFR 1630.13(b), 1630.14(c).  What does that entail?  The employer must have a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform essential job functions will be impaired by a medical condition, or (2) an employee will pose a direct threat due to a medical condition.  What is objective evidence?  Reliable information, either directly observed or provided by a credible third party, that an employee may have or has a medical condition that will impair her ability to perform essential job functions or will pose a direct threat.  The employer has the burden of showing that the inquiry or exam is job-related and consistent with business-necessity.

The EEOC concurred with the MSPB finding of no unlawful discrimination.  Here’s the paragraph that sums it all up:

Upon review of the record, we find that the Agency lawfully required Petitioner to undergo the Fitness For Duty Exams (FFDEs) because it had a reasonable belief, based on objective evidence, that she would pose a direct threat due to a medical condition. Specifically, the record reflects that, in her February to May 2009 email and in-person interactions with Agency employees, Petitioner accused them of breaking into her home, providing information to a transit officer about her location on a train, orchestrating things to happen to her at work and outside of work, listening to her work conversations, communicating with each other at work via earpieces, observing her at work via hidden cameras, and having a hidden agenda towards her. In addition, the record reflects that, after reviewing those emails, an Agency medical professional determined that Petitioner exhibited paranoid behavior, could be a danger to herself or others, and should undergo a FFDE. Moreover, the record reflects that the Agency relied on that determination in ordering Petitioner to undergo a June 2009 FFDE. Further, the record reflects that the Agency ordered Petitioner to undergo a follow-up FFDE in October 2009 to resolve conflicting information between D2’s June 2009 FFDE report and D3’s September 2009 medical report. Finally, to the extent that Petitioner argues that the Agency’s actions related to the FFDEs constituted harassment on the basis of disability, we decline to make such a finding based on our determination that the FFDEs were lawful.

Where does that leave us?

Knock, knock.  OPM?  Is anybody home? Your 339 regulations prevent agencies from utilizing medical examinations that the EEOC has said are not a violation of the Rehabilitation Act.  We could use some help here.

Something to Chew On: OFO Issues New Digest of Notable Cases

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By Deryn Sumner, August 16, 2017

On August 10, 2017, the EEOC’s Office of Federal Operations announced the issuance of its most recent digest of notable cases, constituting the third volume for fiscal year 2017.  The digest highlights and summarizes notable cases issued by the EEOC in recent months.  The cases are organized by subject area and this edition includes a special article on disparate treatment.  Disparate treatment is likely the most common theory of discrimination we see as federal sector practitioners and it is, at its core, the most logical theory of discrimination.  When you speak to an individual who believes they have been treated poorly in the workplace and you ask why they think it is discrimination, most often they will point to co-workers not of their protected class whom they believe are treated better by management, in support of their claims.  However, as we know, there are definitions that must be met to determine who is a proper comparator employee, for purposes of establishing disparate treatment, and this article highlights some recent cases on the subject.

The digest also addresses cases where the Office of Federal Operations reversed dismissals of claims and reinstated them for processing, awards of attorneys’ fees and costs, certification of class complaints, compensatory damages, and findings on the merits.  Of particular note is Dona A. v. SSA, EEOC Appeal No. 0120150376 (March 29, 2017), where the Commission found the Administrative Judge acted properly in dismissing the complainant’s hearing request because the complainant failed to respond to discovery requests.  Although the complainant argued that she was hospitalized due to a medical condition, the Commission found persuasive that neither the complainant nor her attorney notified the agency of her hospital stay for more than three weeks after the deadline to respond to the Agency’s discovery requests had passed.  The Commission addressed similar conduct by a complainant in Alfred S. v. Social Security Administration, EEOC Appeal No. 0120140900 (January 6, 2017), where the complainant failed to respond to discovery for more than a year and the administrative judge dismissed the hearing request as a sanction (which I assume is more of a function of the administrative judge being too overwhelmed with other cases to address a pending motion to compel than anything else).

The Commission also chose to highlight its decision in Jeremy S. v. Department of Veterans Affairs, EEOC Appeal No. 0120142917 (February 9, 2017), where the Commission found the agency’s failure to start an EEO investigation until 322 days after the formal complaint was filed, worthy of default judgment in the complainant’s favor.  The Commission noted that this particular agency had been subject to default judgments at least three times for the exact same conduct: failing to initiate an investigation within 180 days.

Turning to findings of discrimination, the Commission summarized its decision in Marine V. et al v. Social Security Administration, EEOC Appeal No. 0720170001 (March 20, 2017), which found the Agency discriminated against multiple employees on the basis of age by basing selections for a Claim Representative position solely on an exam score without taking into consideration qualifications, job performance, appraisals, or experience with the Agency.  The Commission also discussed three findings of disability discrimination, religious harassment, and sexual harassment and retaliation.

The digest is available here: https://www.eeoc.gov/federal/digest/vol_3_fy17.cfm.

[email protected]

Managing the Suicidal Employee in the Federal Workplace

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By Shana Palmieri, August 16, 2017

* Shana Palmieri is a Licensed Clinical Social Worker and a FELTG instructor who specializes in training agency employees and supervisors how to handle behavioral health issues and threats of violence in the federal workplace.

FELTG recently offered its first full-day training on the topic Handling Behavioral Health Issues & Instances of Violence in the Federal Workplace. A portion of the training covered how to react and steps to take if an employee has a psychiatric crisis in the workplace.  Numerous questions came up during and after the training about just exactly how to handle an employee disclosing direct or indirect suicidal threats. I felt it pertinent to offer some clarification and further guidance given that there is not one specific answer, and often the best way to react depends on the circumstances of the specific situation.

An employee directly or indirectly reporting suicidal ideation should always be taken seriously, but it is not always the case that an employee needs to be rushed off urgently to the emergency room for an emergent psychiatric assessment, or forced to take leave pending medical clearance in the instance of reported suicidal ideation.  Each instance should be evaluated independently to determine the best course of action in order ensure the safety of the employee.

Tips & Recommendations

  • Take all threats of suicide seriously.  Do not ignore threats or make assumptions that nothing bad will happen.
  • Supervisors & managers should work in collaboration with Human Resources Staff and EAP to determine the best course of action.
  • If the employee is in imminent danger (actively attempting to harm themselves in the workplace, or reports an imminent plan), call 911 for immediate assistance.
  • If the employee is not in imminent danger, work collaboratively with the employee to provide options for the employee to obtain the needed services (EAP, provide suicide hotline phone number, provide local mobile crisis hotline number, refer to mental health professional).
  • It is a case-by-case decision to determine if the employee will need a medical clearance to return to work.  This should be carefully evaluated based on the circumstances and the severity of the situation. Remember the purpose of an emergency department evaluation is to determine if an individual needs emergent inpatient psychiatric hospitalization, not to determine if the employee can return and complete the duties associated with their employment.
  • Develop an open culture and awareness in your organization to support the mental health of your employees.  Consider developing a mental health awareness program.

Available Resources

Suicide Prevention Resource Center: www.sprc.org

The Role of Managers in Preventing Suicide in the Workplace: http://www.sprc.org/sites/default/files/resource-program/Managers.pdf

The Role of Co-Workers in Preventing Suicide in the Workplace: http://www.sprc.org/sites/default/files/resource-program/CoWorkers.pdf

Partnership for Workplace Mental Health: www.workplacementalhealth.org

ICU Awareness Campaign: http://www.workplacementalhealth.org/Employer-Resources/ICU

National Suicide Prevention Lifeline: 1-800-273-8255

County Crisis Hotlines & Services: Check in your county and identify the phone number for the crisis hotline number.  Most counties have a crisis hotline and often a mobile crisis team that can come out in the community to complete a crisis assessment and provide recommendations.

Employee Assistance Program: Ensure employees have easy access and awareness to the employee assistance program.

Comments may be directed to [email protected]

Such a Fundamental Question

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By William Wiley, August 16, 2017

These days, the very foundations of our civil service are being reconsidered. Are the rights of our citizens being served by the federal government greater or less than the rights of individual civil servants employed by that government?

For example, consider a hypothetical situation in which the individuals appointed and hired to run a government agency have decided that an employee of that agency is not doing his job, perhaps is even engaging in dangerous conduct. If they decide to fire that employee, should another government entity – one not responsible for the output of the government – be empowered to require the employing agency to keep the individual at work? Keep in mind that the agency who knows him best and is accountable for his actions has decided he should be fired. Should our system allow for that decision to be overridden, even if only temporarily?

Well, that’s what we have today. OPM, an agency that provides no services directly to the general public, has promulgated a draft rule requiring agencies to keep employees at work for three to four weeks after the decision to fire them has been made. OSC, an agency not responsible for government efficiency, accountability, or costs has the authority to stop the removal of a bad employee if it believes it is “probable” that the removal is not based on merit. The employing agency that is accountable for the employee’s conduct has already determined that it is at least “more likely than not” that the employee should be fired. OSC, who has no skin in the game, comes along and concludes that it is “probable” that the agency has acted unfairly.

Is this how government should work? Because if it’s not, then Congress should be addressing this issue legislatively. As the Secretary of the Department of Veterans Affairs has been quoted as saying recently, when confronted by a stay order obtained by OSC to block the removal of a senior manager, “No judge who has never run a hospital and never cared for our nation’s veterans will force me to put an employee back in a position when he allowed the facility to pose potential safety risks to our veterans.”

That’s EXACTLY the issue Congress needs to be addressing. Who should be running the government? Managers responsible for the work of government or adjudicators who are not? [email protected]

The Supervisor who Threatened to “Skull F*ck” His Employees

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By Deborah Hopkins, August 16, 2017

Lately, FELTG has begun offering classes on dealing with threats of violence in the federal workplace. It seems that there’s a workplace shooting just about every day, and if you can believe it, government workplaces (including state and local) experience about twice the amount of workplace violence as do private sector employment facilities.

Violence should be taken seriously and in my humble opinion, violence in the workplace is usually a first-strike-and-you’re-out offense. Even threats of violence should be taken seriously. It’s just not worth it to gamble with people’s lives.  Aaron Alexis, the contractor who committed the Navy Yard mass shooting in 2013, had a history of violent behavior in the Navy – violent behavior that went uncharged and therefore was under the radar when he applied for his contractor job.

Here are some recent cases where agencies removed employees for violent behavior, and the removals were upheld.

Removal for conduct unbecoming a supervisor was upheld when evidence showed the supervisor threatened multiple employees with the comment, “I’ll skull f*ck you.” Hamel v. DHS, DE-0752-15-0039-I-2 (July 31, 2017).

Removal for conduct prejudicial to the best interests of the service was upheld where evidence showed that an employee: 1) Upset that her leave request was denied, pulled a gun from her car and showed it to the supervisor who had denied the request, and 2) Stood at the door to her supervisor’s office, pointed her finger at him and made a noise as if she were firing a gun. Hicks v. USDA, AT-0752-16-0105-I-1 (September 16, 2016) (NP).

Removal for patient abuse was upheld where the employee, a certified nursing assistant, slapped a patient in the face after he bit her finger. Mitchell v. VA, DC-0752-15-0645-I-1 (May 27, 2016) (NP)

Removal was upheld where the appellant, upset about unresolved leave and pay issues, wrote a letter to her Congressman complaining about the agency and asking “Must more blood [ ] be shed before changes occur?” The appellant also asked a high-level supervisor if she recalled the shootings at Camp Lejeune and Fort Hood and then told her that her first- and second-level supervisors should be careful and should leave [the appellant] alone. Jolly v. Army, AT-0752-15-0013-I-1 (April 15, 2016) (NP).

Violent behavior also creates potential EEO issues. A supervisor’s failure to take prompt and effective corrective action, when a coworker made racially discriminatory threats of violence against the complainant, created agency EEO liability amounting to $125,000, and created severe health problems for the complainant: anxiety, difficulty concentrating, a loss of appetite, high blood pressure, severe headaches, relationship problems, loss of motivation to work, insomnia, weight gain, and paranoia that the coworker would physically harm his family. Vaughn C. v. USAF, EEOC Appeal No. 0120151396 (April 15, 2016).

I have a bunch more, but you get the idea. There’s just no place for people like this in the federal civil service.

In case you’re interested in learning more, FELTG is offering a webinar on the topic: Handling Violence and Threats of Violence in the Federal Workplace on September 7. You really can’t afford to miss this one. [email protected]

Procrastinators Beware: OFO Cracks Down on Granting Extension Requests

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By Deryn Sumner, August 16, 2017

Sometimes we all just need a little more time, which is why requests for extension were created.  For years now, the EEOC’s Office of Federal Operations has made such requests a simple affair.  Email the designated email address ([email protected]) and plead your case for more time.  This would typically result in receipt of a form letter granting you an extension to get your appeal brief together (and maybe even come up with some cogent arguments while you’re at it).  I’d never heard of any request for a reasonable amount of time being denied until a few weeks ago, when someone in my office circulated the response they had received after requesting a few extra weeks to submit an appeal brief:

“To ensure that the Office of Federal Operations (OFO) is able to resolve federal sector appeals as efficiently as possible, we are only granting extensions of time to file a brief when the party can demonstrate that they were incapacitated during the regulatory time frame for doing so, or for some other serious intervening event. On the rare occasions that OFO deems that an extension is warranted, it will be limited to ten (10) business days.”

Now, I understand and appreciate that the Office of Federal Operations wants to expedite processing of appeals.  I’m all for it and as I mentioned in last month’s newsletter, I’m happy to provide the Office of Federal Operations with a list of appeals that have been pending for a while that still need a decision.  However, the move towards requiring such a strong showing in support of an extension request seems to fail to appreciate the nature of litigation and the all-consuming nature of hearing and trial work.  In reality, granting the parties with a reasonable extension of time, between 30 and 60 days, to submit an appeal brief will not substantively slow down the processing of these appeals.  Applying the standard of incapacitation, especially when most requests for extension are likely filed by attorneys, seems unnecessarily harsh.  Being in back-to-back hearings and depositions is not being incapacitated in the traditional sense, but it does prevent an attorney from being able to meet other deadlines to draft filings, such as appeal briefs.  Given the period of time that it takes between noticing an appeal and getting a decision, which in my experience has been more than two years, denying requests for a month or so of extra time is not going to expedite processing all that much, and does serve to discourage federal sector attorneys from being able to take on appeals when they have other cases pending.

I hope the Office of Federal Operations will revisit this policy and revise it to be more in line with the reality of litigation practice.  [email protected]