You Aren’t Going to Like This

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By William Wiley, August 16, 2017

OK, kiddos. Everybody and their mother are re-considering the legal underpinnings of our civil service, and what can be done to make them better. Here at FELTG, we never shy away from giving out opinions, so here’s another one.

First, I need to premise the following by saying emphatically that I have no problems with unions in a government workplace. I believe that unions provide an important service for employees and overall make for a stronger government. I may have a bone to pick about certain union tactics or specific union cases, but as representatives of the interests of civil servants, I got no problem.

With that disclaimer, consider the following hypothetical. Let’s say that you’re the mayor of a small town. You have one stop sign. So you send your only law enforcement officer out to determine whether your citizens are obeying the law by coming to a complete stop at the stop sign, because you’re concerned about citizen adherence to the law.

After a couple of weeks, the cop reports good news to you. Apparently, all the citizens are law abiding. They all stop at the stop sign, and he hasn’t had to issue a single ticket to anybody. You are very pleased, you’re proud of your citizens, you tell the cop he has done a good job, and tell him to move on to other matters where he might not find as much law abidance. You need income for your town, but you clearly aren’t going to get it by issuing tickets for not coming to a full stop at a stop sign.

Now, let’s tweak things a bit. Let’s say that the only source of income for the town, and payment of the cop’s salary, is based on the income from tickets issued to people who disobey that stop sign. If you tell the cop this sad fact, that if he doesn’t issue any more tickets, he won’t get paid, what do you think the cop will do?

  1. Continue not to issue any more tickets. Or,
  2. Find some reason to issue tickets because his children are hungry and baby needs a new pair of shoes.

Well, if you picked 1, you are an idiot. Life doesn’t work like this. Humans act to preserve themselves. Survival of the fittest. Read Darwin if you didn’t pay attention in college. Or, Maslow if you skipped psychology class. We have no sympathy for you and wish you a speedy and painless exit from this world of federal employment law. Sad.

Now, take the correct answer of this hypothetical to the federal workplace in a unionized setting: 2. Management should never take a disciplinary action that is not warranted. That’s the law, just like stopping at the stop sign is the law. If management takes a disciplinary action and the reviewer of that action (the cop) has no incentive to find fault, then the action will be affirmed. However, if the cop knows that his salary depends on sometimes finding that management screwed up, the action on occasion is going to be reversed. No matter what, sometimes management is going to lose.

Take this hypothetical situation into a real federal workplace, where the employees are unionized, and in 1978, Congress said that they have the right to challenge serious discipline to either an MSPB judge or to an arbitrator. An MSPB judge gets paid no matter what she decides. There’s no quota of affirmance and reversal. When I was chief counsel to the Board chairman in the ’90s, we had a judge who affirmed agency removals 100% of the time, for at least 18 years of her career. She was seen as a good judge who got paid every two weeks, just like every other federal employee.

But what if the employee chooses an arbitrator? When an employee selects arbitration instead of an MSPB appeal, the union has an equal say in who the arbitrator will be.

Pop Quiz: Do you think that the union will agree to an arbitrator who always affirms management’s removal actions, or do you think that the union will only agree to an arbitrator who sometimes holds for the employee?

Again, if you believe that the union will agree to a cop who never issues tickets, you are an idiot. OF COURSE, when given a choice, as unions always are, the union will look to select an arbitrator who sometimes finds fault with an agency’s removal, even though agencies by law are required to always remove employees only for just cause.

Here’s our FELTG opinion, for what it’s worth, and remember you are paying nothing. Unions of government employees serve an important purpose in our society. However, the removal of federal civil servants for misconduct or performance should not be subjected to the oversight of individuals who are motivated to set aside removals. They should be reviewed only by individuals who have no vested interest in the result, such as MSPB judges. Any system otherwise, as is the current civil service labor law, should be modified to recognize this reality.

Until then, get used to it. [email protected]

Compensatory Damages Case Law Update: Sang G. v. Department of Homeland Security

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By Deryn Sumner, August 16, 2017

As part of our continuing discussion of recent decisions on compensatory damages from the EEOC’s Office of Federal Operations, I bring you Sang G. v. Department of Homeland Security, EEOC Appeal No. 0120151360 (July 28, 2017). This case addressed both an award of compensatory damages and of attorney’s fees to a complainant who was successful in bringing a claim of discrimination and received a FAD from the agency finding retaliation.  The complainant worked as an Immigration Enforcement Agent and had been terminated during his probationary period.  He filed an EEO complaint alleging discrimination on the basis of race, color, parental status, and reprisal. There were fourteen issues raised as part of his formal complaint, the most egregious being a claim that the Firing Range Instructor “freely used the word n**** on several occasions.” In the end, the Agency issued a Final Agency Decision finding the complainant established retaliation when he was placed on administrative leave, suspended of his authority to carry a firearm, and terminated during his probationary period.

The Agency reinstated the complainant and investigated the complainant’s entitlement to compensatory damages and attorneys’ fees.  After considering the evidence presented, the Agency issued a second FAD finding $15,000 in non-pecuniary compensatory damages was sufficient.

The complainant filed an appeal to OFO and the Commission agreed that $25,000 was more appropriate, given the circumstances at hand.  The complainant stated that after his termination, he was not able to afford mental health treatment and “his resultant inability to obtain new employment served as a constant reminder of the Agency’s actions and exacerbated his depression over an extended period of time.”  He also asserted that he experienced extreme anxiety and panic attacks, could not sleep, and drank to excess.

The Commission noted that the complainant presented evidence to demonstrate he endured emotional distress that resulted in him separating from his wife and losing respect from his son.  This, coupled with the complainant’s inability to obtain health care, warranted an increase in the award from $15,000 to $25,000.

This award seems low, given the harm claimed by the complainant because of his termination from the Agency. I wonder if the fact that the complainant was unable to obtain mental health treatment due to his lack of health insurance impacted the amount of the award he received.

The decision also addressed the complainant’s appeal of the award of attorneys fees, which the Agency had reduced by 75%. The Commission found that this reduction was unwarranted and increased the amount from $6,379.35 to $25,517.39 to compensate the complainant for attorneys fees and costs.  [email protected]

“Just Quit”

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By William Wiley, August 8, 2017

If you’ve been around this business of civil service law very long, you’ve probably heard of the US Office of Special Counsel (not to be confused with Robert Mueller’s Office of Special Counsel over at DoJ). That tiny little agency (150+) has the awesome responsibility of investigating allegations of “prohibited personnel practices,” perhaps most importantly, allegations of the mistreatment of federal employees because they have blown the whistle. Congress loves this agency because whistleblowers make public Executive Branch malfeasance, waste, and law-breaking. Whistleblowers disclosed the possibility of significant harm to our veterans at certain DVA facilities because of employee misconduct. Whistleblowers also told us that some of the headstones at Arlington National Cemetery were misplaced, that TSA was allegedly reducing staffing levels to an unsafe level, and that the Department of Interior was dangerously reducing the amount of money devoted to protecting drivers on the Baltimore-Washington Parkway.

Here at FELTG, we often work with agencies who are undergoing an OSC investigation into possible whistleblower reprisal. If you are a repeat reader of this here newsletter, you know that we have previously expressed concern at some of the tactics we’ve seen investigators from that office use. Without rehashing those specifics, a couple of quotes from others might make the point from a different source. In our fantastic and fabulous seminar MSPB Law Week (next offered in DC September 11-15), we work with about 50 agency practitioners on many topics relevant to MSPB law, whistleblower reprisal investigations among them. Recently, we asked a group of attendees if any had ever been through an OSC investigation. Several attendees raised their hands. When we asked for take-aways from those investigations, a number of agency representatives volunteered their succinct perception and advice regarding the experience:

“Overreaching, intimidating, and scary.”

“One-sided and aggressive.”

“Just quit.”

For the un-initiated, OSC responds to claims of whistleblower reprisal from employees – if it believes that they may have merit – by contacting the responsible agency and asking for documents, phone records, emails, hard drives, privilege logs, contact information for former employees, schedules for witness depositions, and just about anything else it expects might be relevant to the reprisal claim. In our FELTG experience, the last response we helped an agency with required that we conduct document-by-document review of over 3,000 emails covering the past two years. (There went another of our Saturdays spent trying to help the civil service function with greater accountability.)

In the past as a practical matter, agency responses to OSC document requests were something of a dance; e.g., OSC would ask for five years of emails, we would offer two. OSC would demand emails that in any way mentioned the complainant, and we would offer only those relevant to the personnel action at issue. OSC would ask for emails between agency counsel and agency management, and we would refuse based on attorney-client privilege. Offer and counter-offer, threatening and responding to threats, sometimes cursing and spitting (among ourselves, of course … NEVER curse nor spit at an OSC investigator). Eventually OSC would get enough information on which to make a prosecution decision and the agency would retain some degree of confidentially in its records.

Well, my friends, that’s all about to be history. The Senate recently passed a bill, which the House will no doubt agree with, that will provide the following:

  • The Special Counsel will be authorized to have timely access to all records, data, reports, audits, reviews, documents, papers, recommendations, or other material available to the applicable agency that relate to an investigation, review, or inquiry.
  • The Special Counsel will be authorized to request from any agency the information or assistance that may be necessary for the Special Counsel to carry out its duties, and require the agency to provide to the Special Counsel any record or other information that relates to an investigation.
  • A claim of attorney client or attorney work product privilege by an agency, or an officer or employee of an agency, shall not prevent the Special Counsel from obtaining any material described above.

“Office of Special Counsel Reauthorization Act of 2017” S. 582

Hard to give OSC much broader authority than this. No requirement that an OSC investigator establish relevance for the information, so fishing is allowed. You can pack away that little JD behind your name if you thought it would allow you to engage in confidential communications with your employer. In fact, there’s no requirement that OSC tell the agency anything other than, “Here’s a list of the materials we need, and we would like them by COB today. Thank you very much.”

Woof.

There’s no clear enforcement authority within the legislation, so we don’t know exactly how OSC can go after any agency officials who refuse to comply with its materials demand. Historically, OSC has taken the position informally that a management official who does not obey its orders is committing a prohibited personnel practice, violating the merit systems principles. 5 USC 2302(b)(12). Unfortunately, we have no case law to direct you to for clarification as to exactly how all this works out and just where OSC’s ability to prosecute an offending management official starts and stops.

Hey, maybe this is the way that the civil service should be. If this bill becomes law, it will certainly free up my Saturdays for other things when I don’t have to be concerned about reviewing thousands of documents for privileged communications. If you are an agency lawyer and your blood begins to run cold when you read this legislation, chill. We have members of Congress today who believe that the civil service should be at-will employment. Turning over the keys and the codes to the agency’s files and communications is just another drip in the drip-drip-drip of civil service change.

So, if you don’t like it, close your eyes, think of England, and get used to it. Or, as the participant in our class suggested a couple of months ago, when you get that call from the friendly OSC investigator notifying you that a whistleblower reprisal investigation has begun, just quit.

Unemployment may well be the better option. [email protected]

Anthony Scaramucci and OPM’s Proposed Notice Leave Rule

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By William Wiley, August 2, 2017

You frequent readers of our newsletter know that here at FELTG we’ve been railing against OPM’s proposed rule regarding Notice Leave. That rule if implemented as drafted would require that federal supervisors retain federal employees in a work status after a decision has been made to fire them, except in the most unusual of situations, and only then after documenting the extensive consideration of other options and obtaining a variety of high level approvals. We argue that the rule should be rewritten to make it drop dead easy for managers to protect the federal workplace by removing fired employees from the worksite immediately, not several weeks after the decision to fire has been made.

Case in point: Anthony “The Mooch” Scaramucci. If you have been in a cave without wifi for the past several days, you’ll need to Google his name to find out what happened to this former federal employee. The bottom line is that, according to news reports, his supervisor decided that Mr. Scaramucci had engaged in conduct inconsistent with an efficient government, and relieved him of his duties. Hey, when there are 2.2 million workers, they can’t all be great like you and me.

Well, just think what the situation would be like if Mr. Scaramucci had been a career employee in whatever agency you work, instead of being employed at the White House. After making the decision to fire him, his supervisor would have had to find government work for Mr. Scaramucci to perform for a month because he does not fall into any of the categories of employees  that are covered by OPM’s proposed Notice Leave rule. He does not a) propose a threat, b) appear to need to destroy evidence, or c) seem inclined to destroy government property. According to OPM, employees like Mr. Scaramucci who’s removal has been decided should be retained in a work status so that the agency “can continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” (swear-to-god, they say that).

So what would be Mr. Scaramucci’ s skillset from which the government can benefit? Well, my goodness, that gentleman does know how to turn a colorful phrase, doesn’t he. Perhaps we could ask him during this post-firing employment phase to provide comment to OPM regarding its proposed Notice Leave Rule. If so, in a wonderful New York accent, he might say something like:

“Are you [freaking] kidding me? What [d-bag] bureaucrat over there thinks this is a good idea? They should go [anatomically impossible essential function] themselves.”

You have minutes left (by August 14) to tell OPM what you think about the proposed rule. Please, for the sake of our great country, tell them.  Email [email protected].  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.

And if you choose to use some of that delightful New York language in memory of The Mooch, who could blame you? [email protected]

It’s Not Too Late to Make a Difference

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By William Wiley, July 25, 2017

In last week’s newsletter, we described OPM’s lack of concern for your life and the lives of those with whom you work. It has demonstrated this insensitivity by issuing a proposed rule that would effectively require that an agency keep a fired employee in the workplace for up to three weeks after the decision to fire him has been made. Stressed out people sometimes become violent. We cannot ignore the fact that individuals who are fired are under significant stress. Requiring fired civil servants to continue to work after their removals have been proposed and even decided is an unnecessarily dangerous policy.

You can do something about this. Whoever you are wherever you are, if you can access an email account, you can tell OPM what you think: [email protected].  When submitting comments via this email address, place this in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section of the regulations on which you are providing comments. The proposed regulations can be found at  https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  You have until August 14 to act to save your life.

Here’s our latest FELTG comment, if you’re looking for a tone and format:

Dear OPM-

We have previously commented that this proposed rule should be modified so that agencies are encouraged to use Notice Leave in every case in which an employee’s removal is proposed, and that the regulations should be rewritten so that it is easy for this to be done. As drafted in the proposal, it would be exceedingly difficult for an agency to implement Notice Leave. The following rationale is in further support of my previous comment.

When drafting the Civil Service Reform Act of 1978, Congress expressed no intent that an employee whose removal is proposed be retained in a work status during the notice period. In fact, when considering the requirements of the law, it makes no sense. From the day that the supervisor notifies the employee that his removal is being proposed for misconduct, the employee need be given no more than seven days to respond. 5 USC 7513(b)(2).  That means that the deciding official can issue a decision on the proposed removal as early as day eight, after the close of the minimum response period.

It makes absolutely no sense that an agency be required to keep an employee in the workplace after a final decision has been made to fire him. These are individuals who have engaged in misconduct so bad that they deserve to be terminated. Or, they have such significant medical infirmities that they cannot perform the essential functions of their position. It defies any logic that individuals like this should be directed to report to work for 22 days after the decision has been made that they should not be employed. So why did Congress mandate a 30-day notice period if it makes no sense to keep someone in the workplace after the decision has been made to fire them?

I know the answer. And I know it because I am old. I was in the business of federal employment law when this legislation was being developed and debated in 1978. I heard Scotty Campbell, former Civil Service Commissioner and driving force behind the structure of the Reform Act, say that the extra 30 days of pay was to ease the transition of the employee out of government employment; i.e., to give him a chance to find another job. In other words, it was a way of providing something akin to severance pay to the employee as he was being removed. The purpose of the notice period is to provide money to the employee, not to try to get work from the employee.

The law says, “at least 30 days’ advance written notice.” Had Congress intended that the notice period be completed while the employee was in the workplace after the decision was made to fire him, it would have said, “at least 30 days’ advance written notice, during which the employee will remain in the workplace.” It is my opinion that Congress did not add this language because it could not conceive that anyone would think it a good idea to retain a fired employee in a federal worksite for three weeks after the decision had been made to fire him.

Apparently, Congress was mistaken.

The draft rule should be rewritten to empower front line managers to protect the federal workplace once an employee’s removal has been proposed. The rule should be amended in part as follows:

5 CFR 630.1505 Administration of Notice Leave

Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Respectfully submitted for your consideration. [email protected]

Is OFO Trying to Cut Through its Backlog with Shorter Decisions?

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By Deryn Sumner, July 19, 2017

Our colleague and friend Ernie Hadley has preached for years that the EEOC’s Office of Federal Operations could get more decisions out in a timely manner if it stopped issuing multipage decisions that ultimately concluded with: we agree with the Agency that there’s no evidence of discrimination in this case. As someone who at least skims every one of the thousands of decisions issued by the Commission every year, I agree wholeheartedly with Ernie.

There are three main categories of Commission decisions: (1) cases where discrimination was actually found, and there’s a useful discussion of the facts as applied to the law and an analysis that assists us in our mission to figure out what constitutes evidence of discrimination and what remedies are available when it occurs; (2) cases where the agency messed up in dismissing a formal complaint that shouldn’t have been dismissed, and the Commission has to reinstate the case and remand it back to the agency for processing, and (3) cases where the EEOC is affirming a FAD or final action from the agency that no discrimination occurred.  (And of course, let’s not forget the hundreds of decisions every year denying requests for reconsideration filed by either side in an attempt to delay the inevitable.)

The vast majority of decisions issued by the EEOC fall into that third category.  Why?  Well, employment law is no different than any other area of civil litigation in that most cases settle, especially before getting to the appellate stage.  And yes, some employees who aren’t able to show that discrimination occurred file complaints.  At least as a parting gift, these employees received a five to seven page decision recapping the procedural history and facts of their cases, the appropriate legal standard, and a brief analysis of why they couldn’t prove their case.  Beneficial, perhaps, for the employee to understand what the Commission’s reasoning was, but a lot to slog through for the rest of us.

So imagine my surprise when I checked in on the latest OFO decisions to be published on Lexis, only to find a string of cases issued on June 16 (the latest date available as of my deadline to turn in my articles for the July edition of the FELTG newsletter) succinctly affirming final actions.

These decisions still identify the accepted issues, the procedural history, and the applicable legal standards.  Each of these take about a paragraph each.  But then, instead of a lengthy recitation of the facts or extensive discussion of why the administrative judge was correct in issuing summary judgment or in finding no discrimination after a hearing, the Commission simply states this:

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.

The decisions are about three or four pages shorter than we’re used to seeing.  I have no reason to think that the OFO attorneys who write these decisions are spending any less time considering the arguments on appeal and properly determining whether the case was appropriate for summary judgment.  I do hope that these summary decisions allow the Commission to focus more resources on the cases where there is evidence of discrimination.  I have the list of my cases for potential candidates, should anyone at the Commission be interested.   Oh, and if you’d like to see examples of these shorter decisions, see, e.g. Rosemarie G. v. FDIC, Appeal No. 0120151691 (June 16, 2017); Reginald B. v. Dept. of Commerce, Appeal No. 0120170496 (June 16, 2017); Monroe M. v. Dept. of Veterans Affairs, Appeal No. 0120151174 (June 16, 2017).  [email protected]  [Editor’s Note: Hopefully, once MSPB gets operating again, the new members will conspire to do something like this with those overly-long non-precedential decisions some bright mind over there came up with several years ago. Maybe even adopt FLRA’s style of putting all the citations to case law into footnotes where they don’t distract from reading the rationale. There’s just so much room to make our business better and America great again.]

The EEO Supervisor Who Never Heard of a Targeted Disability

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By Deborah Hopkins, July 19, 2017

A few weeks ago, I was talking shop with a colleague, and he mentioned that he’d recently run into an agency EEO supervisor who had never heard the term targeted disability.

“C’mon,” I said, “There’s no way that’s right.”

“Right or wrong, it’s the truth,” replied my colleague.

“Okay,” I said, “Maybe she is at least familiar with the term predictable assessment?”

“Nope,” my colleague said, “Not that either.”

“Ok, how about Schedule A?”

“Negative.”

Holy moly. If an EEO supervisor doesn’t know this stuff, then how many of our readers might not know it either? I think it’s time for a “read and learn” session.

Targeted disabilities are the most severe types of disabilities, and they include:

  • Blindness
  • Deafness
  • Partial and full paralysis
  • Missing extremities
  • Dwarfism
  • Epilepsy
  • Intellectual disabilities
  • Psychiatric disabilities

Individuals with these disabilities typically have the greatest difficulty finding employment, so the federal government places a special emphasis on recruiting, hiring, promoting and retaining people with targeted disabilities.

The related term predictable assessment comes out of 29 CFR § 1630.2(j)(3): the “inherent nature” of certain impairments will “virtually always be found to be a substantial limitation.” Thus, these conditions always rise to the level of disability under the ADA.

Section 501 of the Rehabilitation Act of 1973 charges federal agencies to promote the hiring and retention of individuals with disabilities in two ways:

  1. To be a model employer of individuals with disabilities through use of meaningful affirmative hiring, placement, and advancement opportunities; and
  2. To ensure employment non-discrimination and reasonable accommodation.

Schedule A hiring authority allows agencies to provide job opportunities to individuals with targeted disabilities by appointing qualified individuals to federal jobs non-competitively, thus eliminating the need to post a job opening or certify a certain number of candidates for an open position. Schedule A also allows for hiring readers, interpreters, and personal assistants for employees with severe disabilities as reasonable accommodations.

From a practical perspective, this means that if a candidate with a targeted disability appears to be qualified for a funded vacancy, and the supervisor wishes to hire this individual, the agency does not need to issue a job announcement. But, Schedule A applications can be accepted after the job announcement closes, up until the position is actually offered to someone.

Earlier this year, the EEOC released a final rule, “Affirmative Action for Individuals with Disabilities in Federal Employment.” Beginning in 2018, agencies will be required to incorporate affirmative action into hiring and advancement plans: 12 percent of employees should be people who have disabilities, and 2 percent of employees should have targeted disabilities. Agencies will be required to report their statistics to the EEOC, and will furnish copies of their hiring/promotion plans to EEOC for approval.

This is an important topic that some people seem to have missed. There’s a lot more that goes into Schedule A hiring, and FELTG is holding a webinar on this topic July 20 (that’s tomorrow!), so if you’re interested there’s still time to register. [email protected]

OPM Doesn’t Care if You are Killed

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By William Wiley, July 19, 2017

Regular readers of our newsletter will remember the celebration we had when Congress created a new type of paid leave status back in December: Notice Leave. The problem we’ve been having for several years has been a conflict between two competing interests:

  1. The interest of not paying employees to not work by putting them on administrative leave for months and years, and
  2. The interest in getting potentially dangerous employees out of the work place where they might kill somebody once their removals are proposed.

Here at FELTG, for nearly 20 years, we have come down on the side of the protection of the government’s workplace by using administrative leave during the 30-day notice period that precedes a removal for misconduct or performance. To us, reducing the opportunity for workplace violence is more important than a few days of administrative leave.

Unfortunately, we don’t get to make the rules. The rule makers at OPM and on Capitol Hill have come down on the side of theoretically protecting the federal fisc by ordering that the use of administrative leave be restricted even if it endangers the lives of federal workers and the public. Yes, you’re reading that correctly. OPM’s regulations for many years have said that normally an employee whose removal has been proposed will remain in his regular job during the notice period.

If we need to explain to you why this is foolish, you must be new. Does anyone REALLY think that the employee is going to produce usable work once notified of his impending removal? Is it REALLY a good idea to allow an about-to-be-fired individual to have 30 days of access to sensitive government documents and personal citizen data? Does anyone REALLY believe that a civil servant who is about to be terminated is not under the biggest stress of his life (and we all know what stress does to making sane decisions)?

Congress’s creation of Notice Leave, we wrote, was the best Christmas present any civil servant could have asked for. Finally, we had a method specifically designed to protect federal employees from getting killed by a stressed-out coworker who has a pending removal over his head. With no limitation on how long Notice Leave could be used, we could, for the first time in history, hand the employee a proposed termination, escort him out the front door and bar him from returning, and still protect his right to receive a salary for the duration of the notice period without using administrative leave.

Well, leave it up to OPM to screw up a perfectly fine opportunity. Rather than taking the new law, concluding that when an employee’s removal is proposed it categorically “jeopardizes the government’s interest” (statutory standard) to keep him in the workplace for 30 days, and issuing a regulation to put that into effect, OPM has taken just the opposite approach. Last week it proposed a regulation that will make it nearly impossible for an agency to protect itself by putting a failed employee on Notice Leave.

Here’s what OPM’s policy should say, according to FELTG:

5 CFR 630.1505 Administration of Notice Leave

  • Whenever an agency proposes the removal of an employee, normally it shall place the employee on Notice Leave. Retaining such an employee in a work status jeopardizes the government’s interest in the safety and integrity of the federal workplace. The authority for imposing Notice Leave should be delegated to the lowest reasonable level within the agency.

Here’s what OPM has proposed otherwise. We’ve restructured the requirements for clarity and emphasis on the ridiculous burden that OPM is creating:

5 CFR 630.1503 – 1506

Prior to placing an employee on notice leave the agency may not establish a categorical policy and must document the following for each incident of notice leave:

(1) The reasons for initial authorization of the notice leave, including the alleged

action(s) of the employee that required issuance of a notice of a proposed adverse action;

(2) The basis for the determination that the employee’s retention in a work status would:

(i) Pose a threat to the employee or others;

(ii) Result in the destruction of evidence relevant to an investigation;

(iii) Result in loss of or damage to Government property; or

(iv) Otherwise jeopardize legitimate Government interests.

(3) An explanation of why any of the following options are not appropriate:

(i) Keeping the employee in a duty status by assigning the employee to

duties in which the employee no longer poses a threat,

(ii) Allowing the employee to voluntarily take leave (paid or unpaid) or paid time off, as appropriate under the rules governing each category of leave or paid time off;

(iii) Carrying the employee in absent without leave status, if the employee is

absent from duty without approval; and

(iv) For an employee subject to a notice period, curtailing the notice period if there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, consistent with 5 CFR 752.404(d)(1).

(4) When making the decisions above, the agency must document its consideration of:

(i) The nature and severity of the employee’s exhibited or alleged behavior;

(ii) The nature of the agency’s or employee’s work and the ability of the agency to accomplish its mission; and

(iii) Other impacts of the employee’s continued presence in the workplace

detrimental to legitimate Government interests.

(5) When deciding whether an employee’s presence is detrimental to government interests, the agency must document consideration of whether the employee will pose an unacceptable risk to:

(i) The life, safety, or health of employees, contractors, vendors or visitors to a Federal facility;

(ii) The Government’s physical assets or information systems;

(iii) Personal property;

(iv) Records, including classified, privileged, proprietary, financial or medical records; or

(v) The privacy of the individuals whose data the Government holds in its

systems.

(6) And if documenting the rationale for each particular grant of Notice Leave isn’t enough, the agency also has to document:

(i) The length of the period of notice leave;

(ii) The amount of salary paid to the employee during the period of leave;

(iii) The reasons for authorizing the leave:

(iv) Whether the employee was required to telework under during the period of the investigation, including the reasons for requiring or not requiring the employee to telework; and

(v) The action taken by the agency at the end of the period of leave.

In its preamble to these proposed regulatory changes, OPM opines the reason it is requiring that all other conceivable options short of Notice Leave be exhausted and documented rather than simply implementing Notice Leave commensurate with the proposed removal: during the notice period by avoiding Notice Leave if possible, the agency can “continue to benefit from the employee’s skillset and abilities to further the agency’s mission.” Well, that’s just stupid. Think who these people are who have had their removals proposed. They are almost always civil servants who have:

  1. Already engaged in misconduct so bad that their supervisors have decided, after doing a Douglas factor analysis, that these bad hombres should be fired,
  2. Performed so poorly as to be determined to be unacceptable, given a month or better to improve their performance, and still continue to be unacceptable performers, or
  3. Have such bad medical infirmities that they cannot perform their job.

And OPM wants us to keep these people in the workplace “to continue to benefit from their skillset.” We think that somebody at OPM needs a better skillset if they’re going to be drafting regulations in this area.

Here’s another part of the preamble we just love. OPM says that prior to implementing a period of Notice Leave, the supervisor should consult with their human resources office or general counsel. Well, why? I have held each of those positions in my career. Here at FELTG, we have trained thousands of human resources specialists and agency attorneys over the years. And you know what? We have never, ever met anyone in one of these positions who has been trained in how to predict future violent behavior. I was a psychologist before I became an employment lawyer. Any trained mental health worker who claims that he can predict with certainty whether an individual will engage in future violent behavior is engaging in malpractice.

We know better. We read report after report of workplace killings and see that in many (if not most) of them, the perpetrator had no history of violence or mental disorder, and often was well liked by coworkers. Those of you who have lived around the Beltway might remember the workplace killing that happened several years ago at the Lululemon store in Bethesda. There were two young women involved. When Worker A told Worker B that Worker B’s theft of clothing had to be reported to management, Worker B began stabbing Worker A. While conducting the autopsy, the coroner reported over 300 stab wounds in Worker A’s body.  Without exception, Worker B was described by friends and coworkers as mild-mannered, polite and cheerful, with no history with the police or of violence.

OPM’s draft regulations, by referring the matter to untrained attorneys and human resources practitioners for advice, is taking the decision away from the person in the best position to make the decision: the immediate supervisor. That supervisor also happens to be in a position where she is most likely to be the victim of any workplace violence that results from a proposed removal. Years ago, I had a supervisor-client in an agency who called me in tears. I had advised her to put the employee on administrative leave once she issued the proposed removal. Unfortunately, when she tried to put that in the draft proposal letter, the human resources specialist advising her told her that he “would not let her do that,” that he “could tell who was going to be violent,” and then went back to the HR office where he was safe behind two locked doors.

I have never felt closer to whacking an HR specialist in my life.

We cannot imagine what public good is served by OPM’s placement of these significant limitations on an agency’s authority to impose Notice Leave. It cannot be the saving of tax dollars. The employee gets paid whether at work or on Notice Leave. So that isn’t it.

Maybe it’s the perceived value of having the employee’s work product during the notice period; work product from someone who is either a) medically unfit, b) a proven non-performer, or c) a rule-breaker. With that, let’s play a little mind game:

  • First, based on your experience in the civil service, place some dollar value on the work product you estimate you’re going to get from someone who falls into one of these three categories, after you’ve told him that he probably will be fired within 30 days. Put that number here and call it Value A: $__________.
  • Next, place some dollar value on your life. And the lives of the other employees in the immediate vicinity of your office. And the members of the public wandering around your facility. And the super-secret information maintained by your agency in your data files. And avoiding the disruption to government operations that might be caused by workplace violence. Place that number here: $___________. Now, multiple this last number by a percentage that represents the likelihood, in your opinion, of violence erupting from an employee who gets a proposed removal (e.g., 1%, 5%, 50% … whatever). Put that number here and call it Value B: ________.

If your Value B is larger than your Value A, you will agree with FELTG’s proposed optional regulation that would allow immediate supervisors to impose notice leave with the least constraints possible under the law.

If your Value A is larger than your Value B, you have an exceedingly unique view of life, and you should apply to work at OPM, if you do not already.

OPM! For god’s sake, this is life and death stuff we’re talking about here!

Did you not hear about the coworker murders in the rampage at the Washington Navy Yard not long ago? Are you ignorant about the history of people like Nidal Hasan, the psychiatrist who shot 43 coworkers in a government workplace in 2009? Are you unaware that the Bureau of Labor Statistics says that every week day in America, two people kill a coworker?

These proposed regulations were drafted by someone who either:

  1. Has never spent any time in a federal workplace, or
  2. Doesn’t care that they are putting lives in danger for the sole benefit of … I have no freaking idea.

Here’s a reality check. In our FELTG seminars, this topic often comes up when we are working with a group of supervisors. We have never met a supervisor who thought it was a good idea to hand an employee a proposed removal, then keep the employee in the workplace for another 30 days. Certainly, that would not happen in a private sector company. OPM, if you care at all about the lives of federal employees and do not agree with what we’ve written here, check it out for yourself. Pull together a group of front-line supervisors from agencies throughout government. Ask them two simple questions: “How many of you think it is a good idea to keep an employee at work once his removal is proposed?” Then, “How many of you think that an employee should be removed from the workplace once she receives a proposed removal?” We guarantee you the answers you get will support what we’re saying here.

Here’s another reality check. Congress passes laws that control the civil service. Yet, very few members of Congress have ever worked as civil servants or really know much what it’s like to try to run a federal agency at the front lines. We can’t expect them to appreciate all the nuances of what we are trying to do and what life is really like out here in the trenches.

But we should expect that from OPM. As I understand government, that is the agency that is supposed to take laws passed by Congress and build regulations based on them that actually work, consistent with the flexibilities within the law. OPM has not done that here, and instead is in the process of creating a dangerous workplace that could never have been the intent of Congress when it created Notice Leave. We cannot move toward the goal of increasing the accountability of the civil service if OPM issues regulations that make supervisors fear for their lives when they try to fire a bad employee. That is EXACTLY what these proposed regulations will do.

Your comments are due to OPM by August 14, https://www.gpo.gov/fdsys/pkg/FR-2017-07-13/pdf/2017-14712.pdf.  Union folk, form the picket lines at 1900 E Street, NW; FELTG will march with you. Email: [email protected].  When submitting comments via this email address, place in the subject line:  RIN 3206-AN49: Proposed Rule Comments-Administrative Leave.  In the body of your message identify the section(s) of the regulations you are providing comments on.

It’s your life. Decide how much effort you want to put into defending it. [email protected]

Important Development from OFO Regarding Calculation of Compensatory Damages Awards

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By Deryn Sumner, July 19, 2017

The Civil Rights Act of 1991 amended Title VII to, in relevant part here, allow successful complainants to recover compensatory damages for the emotional and physical impacts of workplace discrimination.  The Act placed a cap on how much can be recovered, and employers with more than 500 employees face a maximum payout of $300,000 for compensatory damages.  Once the EEOC’s Office of Federal Operations began considering cases where compensatory damages were available as a remedy a few years later, the Commission developed the framework still in place today: consider the nature, duration, and severity of harm to determine the appropriate award of non-pecuniary compensatory damages, and then make sure that award is not “monstrously excessive” on its own and is consistent with the amount awarded in cases with similar harm.

This formula worked well until more and more time passed since the 1991 effective date and, with inflation, the statutory cap of $300,000 became worth less and less.  Also, those amounts awarded in similar cases started to become less appropriate over time, if the cases relied upon were issued more than a few years prior.  Sure, the complainant in a 2007 case had similar evidence of harm and got $50,000.  Shouldn’t my client in 2017 get more than that given that it’s ten years later?  That argument has been made for years by attorneys for complainants and it finally got a foothold in a decision issued on June 9, 2017.

The Commission exercised its authority to issue a sua sponte decision reopening and reconsidering a prior decision in Lara G. v. USPS, Request No. 0520130618 (June 9, 2017).  Way back in 2009, an administrative judge issued a decision finding the agency subjected the complainant to retaliatory harassment.  Along with other remedies, the administrative judge awarded $100,000 in non-pecuniary compensatory damages.  After the agency issued a final action accepting the finding of retaliation but rejecting the award of remedies, the case came to the Office of Federal Operations on appeal. The complainant argued that the award should be adjusted to reflect present-day dollar value of the precedent cited in support of the award.  In a 2011 decision, the Commission found the administrative judge acted appropriately in awarding $100,000. The complainant then requested reconsideration arguing, “the Commission’s policy of requiring [Administrative] Judges to issue awards consistent with prior Commission cases works an injustice to present-day complainants due to the inflationary devaluation of prior awards.”  In March 2012, the Commission denied the request for reconsideration.

However, after the complainant alleged that the agency failed to fully comply with the Commission’s Order, the case came back to the Office of Federal Operations as part of a Petition for Enforcement.  After that, the Commission notified the parties in October 2013 that it intended to reconsider the case on its own motion.  A mere three and a half years later, the Commission issued its decision and given the importance of its holding, I’m including a block quote of its analysis:

Some courts, when considering whether to reduce compensatory-damage awards, have considered the present-day value of awards in comparable cases. For example, in EEOC v. AIC Security Investigations, Inc., 55 F.3d 1276 (7th Cir. 1995), the court determined that a $50,000 compensatory-damage award was not excessive when compared to prior awards of $40,000 and $35,000. Noting “that those awards were several years ago, and thus the current value of those awards is considerably greater,” the court stated that the “[c]omparability of awards must be adjusted for the changing value of money over time.” Id. at 1286. See also Deloughery v. City of Chicago, 2004 WL 1125897 at 7 (N. D. Ill. 2004) (in decision reducing jury’s $ 250,000 compensatory-damage award to $175,000, court noted that older comparable award “should be converted to current dollars”), aff’d, 422 F.3d 611 (7th Cir. 2005) (district court acted within its discretion where remitted award was sufficiently comparable to awards in other cases in the circuit).

Similarly, when determining an award of non-pecuniary compensatory damages, the Commission may consider the present-day value of comparable awards. Thus, an AJ who is awarding damages should consider the amounts that the Commission awarded in prior cases involving similar injuries and should determine whether circumstances justify a higher or lower award. The AJ should adjust the award upward or downward according to the relative severity of the complainant’s injury. The AJ may then take into consideration the age of the comparable awards and adjust the current award accordingly.

In this case, the AJ determined in October 2009 that Complainant’s injury was comparable to that of a complainant who was awarded $95,000 in September 2003. The AJ awarded Complainant $100,000, which is $5,000 more than the comparable award. It is not clear whether the AJ, in reaching her determination, took into consideration the time that had passed since the $95,000 award. Given the nearly six-year interval between the comparable award and Complainant’s award, we find it appropriate to increase Complainant’s award by an additional $10,000. Therefore, we find that Complainant should receive $110,000.00 in non-pecuniary compensatory damages. Accordingly, we will modify the ordered remedy to reflect this increased award.

So a mere 18 years later, the complainant received an additional $10,000 in non-pecuniary compensatory damages.  Was it worth it to the individual complainant?  Likely not.  However, expect to see this case heavily relied upon by complainants’ counsel in arguing for upward adjustments to compensatory damages awards. [email protected]

Learn to Avoid Unjustified Gambles

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By William Wiley, July 19, 2017

So many questions, there are. This month, we got a good one from a long-time reader about the use of Letters of Warning. The writer was being advised (accompanied by legal citations) that a Letter of Warning was considered as prior discipline by MSPB, although we teach in our fantastic FELTG seminars that it is not.  Here’s our response:

Dear Poorly-Advised FELTG-Constitute:

In each of the three cases cited by your advisor as evidence that a Warning is prior discipline, the letter of warning considered as prior discipline is a “letter of warning in lieu of suspension.” These are effectively suspensions, not simply administrative letters of some type. USPS is the defendant agency in these cases and has wisely bargained for this particular type of punishment in its national labor agreement. MSPB has found these letters to be prior discipline in other agencies besides USPS, but only IF they are developed through agreement with the employee and the employee specifically accepts them as alternative discipline constituting prior discipline for the purpose of progressive discipline. Otherwise, they are referenced in disciplinary letters for establishing notice (Douglas factor 9) and nothing else. They simply are not discipline.

Discipline was defined for us in Bolling v. Air Force, 9 MSPR 335 (1981). In that decision, the Board said that to be countable as discipline for progressive discipline purposes, the instrument must be in writing, stored in a system of agency records such as the OPF, and grievable. Back in 1981, the only widely accepted instrument that did that was the Reprimand. Letters of Caution, Letters of Warning, Letters of Expectation, etc., were used in varying ways by some agencies with many agency policies not allowing them to be grieved, and usually not storing them in the OPF. Therefore, the Reprimand developed universally as the first step in progressive discipline.

Of course, nothing stops an agency from coming up with an instrument, calling it anything it wants to call it (e.g., a Bad Day Memo), defining it as a disciplinary act in a policy statement, and ensuring that it meets the Bolling criteria. However, few if any have done that because there really is no legal benefit to adding to the list of disciplinary tools; Reprimand, Suspension, and then Removal are perfectly adequate for holding employees accountable and sooooo much simpler than trying to deal with poorly defined, confusing, additional discipline tools.

In a related arena, the courts have had to decide whether letters like Warnings and Cautions are “personnel actions” for an individual to be able to claim whistleblower reprisal. Well, sometimes yes and sometimes no, depending on the specific language, not the title of the document. They do not rise to the level of being a personnel action if they only admonish the employee to act in a particular manner, do not accuse her of anything wrong, and do not restrict her behavior. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015). Otherwise, they do. If a Letter of Warning accuses the employee of misconduct, it is a personnel action for a whistleblower reprisal claim. However, if there is no policy allowing it to be grieved or retained in a file system like the OPF, then it is not discipline.

Isn’t this crazy?

By far, the best approach is to stop doing Warnings, Cautions, Counselings, or anything else that smells like discipline, but may or may not be. They have NO value in progressive discipline and they confuse those who do not know our law. More dangerously, they may inadvertently become something we must defend against as a personnel action for reprisal purposes, all the way through MSPB (discovery, depositions, hearings, petitions for review) to federal court.

Here at FELTG we strongly recommend that you get the word out and stop doing warnings or cautions. They are an unjustified gamble. If you want to put the employee on notice of his misconduct (Douglas factor 9), do it in an email without calling it anything. Emails in general are not grievable nor do they have much potential to become “personnel actions” if there are no threats or accusations. If you want to discipline, use a Reprimand. Nothing less. Hope this helps. [email protected]