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).

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]