Such a Fundamental Question

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By William Wiley, August 16, 2017

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

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

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

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

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

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

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By Deborah Hopkins, August 16, 2017

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

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

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

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

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

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

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

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

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

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

Procrastinators Beware: OFO Cracks Down on Granting Extension Requests

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By Deryn Sumner, August 16, 2017

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

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

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

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

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 [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]