Non-Pecuniary Compensatory Damages Awards in 2016: A Brief Overview of Trends

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By Deryn Sumner, May 17, 2017

Just as I did in the June 2016 edition of the newsletter, here are some facts and figures from 2016 decisions from the EEOC’s Office of Federal Operations awarding non-pecuniary compensatory damages.  I’ll repeat my caveat from last year: this is based on my review of all of the decisions issued by OFO in 2016, which I rely on Westlaw and Lexis to accurately upload and provide to me in my search results.  Although I briefly review every decision issued each year to identify the notable ones, it’s entirely possible and quite likely that I missed a few. 

And with that caveat established, on to the trends from 2016.  By my count, the EEOC issued 34 decisions addressing appeals of non-pecuniary compensatory damages last year, a few less than the 40 decisions issued in 2015.  Of those decisions, 10, or 29.4% of the overall number, dealt with awards between $0 and $5,000.  Two decisions involved awards between $5,001 and $10,000.  The highest percentage of decisions, 13, or 38.2% of the 34 decisions, concerned awards between $10,001 and $50,000.  For those of us who aren’t math wizards (raises hand), that means that about 73.5% of decisions issued by the Office of Federal Operations in 2016 concerned awards of less than $50,000.  To round out our survey, 5 cases concerned awards between $50,001 and $100,000, and four cases involved awards over $100,000.

Of these 34 decisions, 18 of them increased the award, 15 affirmed the current award, and one (which I talk about below) decreased the award of non-pecuniary compensatory damages.  Nineteen of these decisions were appeals from Final Agency Decisions, and 15 of them were from final actions implementing or rejecting decisions from administrative judges.

Now, is this to say that complainants very rarely recover significant awards of non-pecuniary compensatory damages?  Of course not.  When there’s liability, smart agencies settle early or choose not to appeal decisions issued by administrative judges.  But it is fair to say that even those complainants who establish liability are not guaranteed a significant payday unless they can provide evidence to show substantial emotional and/or physical harm that can be linked to the agency’s discriminatory actions.

And even if you establish substantial evidence of harm and grab that golden ring of an award of the statutory maximum of $300,000, it can still be grabbed away from you, as the complainant in Alene S. v. USPS, EEOC Appeal No. 0720150033 (April 6, 2016) learned.  There, the administrative judge had awarded that $300,000 maximum after the complainant established discrimination when the agency failed to take the complainant’s medical limitations seriously and failed to accommodate her, made comments about her disability, and retaliated against her. The administrative judge found that the complainant was an example of the “eggshell plaintiff” and as the agency’s actions rendered her unlikely to ever work again, found $300,000 to be appropriate.  The Commission agreed that substantial compensation was appropriate based on the evidence she presented herself, as well as from her psychiatrist, her psychologist, and her sister.  But the Commission agreed with the agency that the award should be reduced because the complainant had pre-existing medical conditions, and the administrative judge did not factor those in.  The Commission reduced the award to $200,000, still a large award, but not the most that could have been awarded.  Rest assured, I’m already hard at work reading the over one thousand decisions issued by OFO in 2017 and will bring the notable ones to the FELTG audience’s attention. [email protected]

What Do You Do with the Guy Caught Masturbating on Government Time?

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By Deborah Hopkins, May 17, 2017

Last week, Bill and I were in Denver providing training to a bunch of supervisors from agencies across the country. One of the things we regularly discuss during training classes is why so many agencies don’t take disciplinary action against people who deserve to be disciplined. A warning: the situation I’m about to describe is crass, so read at your own risk.

Let me give you an example of one such conversation; I’ll call it a hypothetical situation. Agency employee (let’s call him Jimmy) is retirement-eligible but hasn’t yet retired. A couple of times a day, Jimmy walks in to a closet, strips down completely naked, and masturbates during his normal work hours.

The closet is one that other agency employees commonly access for supplies. There have been several instances of employees going to the closet for paper, staples, etc., and opening the door to find Jimmy in the middle of his routine.

And the agency has done NOTHING to discipline Jimmy.

Jimmy is spending quantifiable government time, paid by the taxpayers (that’s you, and that’s me), to masturbate – and the agency doesn’t take action because the supervisors “hope” he will just decide to retire. Now, I don’t know Jimmy personally but I think it’s a pretty good bet that he’s not motivated to retire because he is getting paid to pleasure himself on the clock.

If you’ve been in this business longer than five minutes, then it is not a surprise to you that many agencies have dealt with employees masturbating on government time. Here’s the deal: masturbation at work, on government time, is a removable offense. If you want to read a case involving shock and awe related to this type of inappropriate sexual conduct in the workplace, check out Jardim v. Army, CH-0752-08-0147-I-2 (July 22, 2008)(ID). In Jardim, the appellant’s removal for “immoral, indecent, or disgraceful conduct” was affirmed after evidence showed he masturbated at work and in the process exposed himself to a coworker and got semen on her jacket.

In another case, an employee’s removal was sustained after he was seen by others masturbating in a government vehicle; at a different time he masturbated in front of a female coworker. The charge there? “Ejaculating or releasing bodily fluids in a government office, while on duty.” Ever have to charge someone with that? It works. Lee v. OPM, CH-844E-06-0525-I-1 (September 18, 2006)(ID).

Need more? I’ve got them. How about Venneri v. Navy, PH-0752-05-0389-I-1 (October 19, 2005)(ID), where the appellant exposed himself to a female coworker and started masturbating in front of her? Fired and removal upheld. What about the supervisor who ejaculated onto his employee’s desk after work hours and the next morning told her he had “left a present” on her desk? Charge him with “conduct unbecoming a supervisor” = see ya later, Supervisor Wagner. Wagner v. DOJ, DE-0752-03-0466-I-2 (September 14, 2004)(ID).

Plenty more still, but I think you get the idea. Masturbating at works is serious misconduct, particularly when others are exposed to the conduct.

It’s a problem too because, in addition to being a poor management decision, refusal to discipline this misconduct puts other employees at risk and creates the potential for an EEO claim of a hostile work environment. A hostile work environment is created when the victim is subjected to unwelcome conduct that is based on a protected category, and the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). An agency can absolve itself of liability only if it shows it took immediate corrective action and the complainant does not take advantage of any corrective measures. See Quinn v. U.S. Postal Service, EEOC Appeal No. 05900546 (1990).

In our non-hypothetical hypothetical above, we run into a liability problem because the agency is on notice of Jimmy’s conduct and has not done a darn thing to put a stop to it. There’s no question this is unwelcome conduct and there’s no question that it’s sexual, so the only thing we need to consider is whether the conduct is so severe or pervasive that it affects the terms, conditions or privileges of employment. How many times does another employee have to go to the closet in search of paper clips and discover a stark-naked Jimmy masturbating, in order for it to affect the terms or conditions of her employment? If every time I need office supplies, I hesitate before opening the closet door because of what I’m afraid I might find inside, I’m thinking that it doesn’t have to happen a whole lot of times to meet that legal standard of “severe or pervasive.” I guarantee you that if I see that once, I’m never ever going back for more paper clips.

Just one isolated instance of unwelcome sexual conduct can be found to be severe enough to create a hostile work environment – even if the agency does not discipline the conduct. See Weaver v. U.S. Postal Service, EEOC Appeal No. 0120065324 (2008) (a male employee ground his pelvis into a female coworker’s buttocks and EEOC found a hostile environment even though the agency did not discipline the male employee).

If you follow the news, you may have noticed last week that DOJ is in the process of making a $20 million settlement with a class of female corrections officers who were exposed to harassment based on sex for a number of years, and Bureau of Prisons officials did not do enough to correct and prevent the harassment from continuing. Among the conduct? You betcha, males masturbating in front of the women or in places they knew the women might be at any given time. See also Lemons v. BOP, EEOC Appeal No. Appeal No. 0120081287 (April 23, 2009); Wilson v. BOP, EEOC Appeal No. 01A23614 (February 3, 2004); EEOC v. Indiana Bell, No. 99-1155 (S.D. Ind. 2000).

There are times when agencies win the liability argument. In a recent case form the Federal Bureau of Prisons, a female corrections officer informed the agency of inappropriate sexual conduct by inmates (including inmates masturbating in her presence), on 17 occasions in a one-year period. The EEOC found that the inmates’ conduct did rise to the level of sexual harassment, but that the agency was not liable because it took immediate corrective action in 16 of the cases to sanction the inmates’ conduct and to protect the employee from further instances. Larae S. v. BOP, EEOC Appeal No. 0120143209 (March 9, 2017).

In another instance, employees at FAA would commonly take “dumpster breaks” at the agency facility; “dumpster breaks” were widely known among employees as code language for people masturbating behind the dumpster in back of the agency facility. Shalon C. v. FAA, EEOC Appeal No. 0120141603 (July 21, 2016). The agency won this one because employees never made management aware that the conduct was occurring and the “dumpster breaks” were routinely taken after the supervisors had left for the day – so the agency was not on notice and had no opportunity to investigate and correct it, until after the complaint was filed.

Let me be clear: even though the agencies were not liable because, as in Larae S., the BOP took immediate action, or like in Shalon C. the FAA was not aware of the conduct and could not have reasonably known it was occurring, this liability defense is NOT an excuse to allow this type of conduct at work. EEO cases are not the same as MSPB cases, and EEOC notes in most of the decisions that the conduct should be addressed in a separate forum. In Jimmy’s case, the agency leadership knows about the conduct, and has chosen not to charge anything. I hope someone from that agency reads this article and realizes it’s a situation that’s too dangerous to leave alone with the hope that Jimmy decides to finally retire.

Bottom line: why would you ever refuse to discipline someone for such serious misconduct when the conduct might create a hostile work environment for your other (good, hard-working) employees? I just don’t get it.

[email protected]

How to Handle Controverted Oral Response Statements

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By William Wiley, May 17, 2017

Questions, we get questions. This one came to us after a recent webinar we presented involving due process rights:

My question involves an issue that can arise after the reply and involves due process/ex parte communication issues.  

The FELTG newsletter had some excellent articles on this topic in 2014-2015.  The scenario I find particularly troubling arose in 2013 in the Kolenc MSPB case.  To simplify a bit, part of Kolenc’s charged misconduct was failure to pay a parking/traffic ticket. In his reply, Kolenc asserted the ticket was cancelled.  The Deciding Official (D.O.) then called the Police Department to verify Kolenc’s bald assertion and learned the ticket had not been cancelled.  The D.O. then indicated in his Final Decision that he determined the ticket had indeed not been cancelled and the lack of credibility Kolenc demonstrated in his bald assertion in his reply influenced his decision to proceed with removal.

My question is in this scenario what option does a D.O. have when the employee makes a bald assertion like this (i.e. does not include proof other than his assertion) that the ticket was actually cancelled? I understand the riskless scenario is for the D.O. to inform Kolenc in a “Ward Letter” what he found and give him 10 days to respond.  

How much risk, however, would the D.O. and the Agency assume if they had not called the Police Department but declined to accept the employee’s bald assertion by itself, concluding that Kolenc needed to do more to establish the cancellation than offer his bald assertion in a written reply?

Our FELTG response follows. This questioner already knew the less-dangerous answer, but like most of us, is trying to find a way to be more efficient:

Dear Participant-

Thanks for your question. It’s conceivable that the police made a mistake when checking the employee’s records. It’s possible the employee has evidence that the ticket was cancelled. That’s why due process requires that we notify employees of facts on which we are relying prior to making a decision on a proposed removal, to give them a chance to defend themselves. In my world, an extra five days of pay is well-worth removing this potential due process violation from the case when it goes up on appeal.

When informing the employee of the new information in situations like this, I like to say something like, “In your oral response to the proposed removal, you claimed that the traffic ticket issued to you had been cancelled. Further investigation revealed that the XYZ police department’s records show that the ticket was not cancelled; see attached. You have seven days to respond to this evidence that the ticket was not cancelled and to the fact that you potentially made a significant error in your statement to me in your oral response.” Now the employee is on notice that a) there is evidence that the ticket was not cancelled, and b) that the DO will consider the employee’s lack of truthfulness when making his decision.

The alternative is for the DO to weigh the employee’s unsupported statement that the ticket was cancelled against whatever evidence there is already in the record that it was not cancelled. Perhaps there is no evidence that the ticket was not cancelled. Whatever the evidentiary balance, the supervisor could have said – without contacting the police department to verify one way or the other – “In your oral response, you claim that the traffic ticket was cancelled. However, you presented no evidence supporting your statement. Therefore, I have not considered your unsupported self-serving claim further.”

This latter approach saves you five days of pay. And it has to be based on the premise that the DO has no independent evidence of the non-cancellation of the ticket. However, it runs the risk of a judge disagreeing with the DO as to the evidentiary weight to be given to the employee’s possibly-uncontroverted statement. Separately, there is a possibility that on review, some judge may conclude that the assertion of a claim such as this in a response to a proposed removal requires that the DO investigate the claim prior to making a decision, see Whitmore v. DoL, 680 F.3d 1353 (Fed. Cir. 2012).

Were I making the decision between these two approaches, I would pay the extra salary and notify the employee of the new information. To me, the extra pay is well worth avoiding the possibilities of reversal on appeal by a judge who disagrees with my decision not to investigate and notify, plus it gives me the bonus misconduct to base the removal on, that the employee lied in his oral response.

Due process violations are dangerous. I am scared to death of them.  I take no chances if there is a way I can avoid them. A new notice and response time will cost the agency, but that cost is a price I feel is worth the expense. Hope this helps. [email protected]

Probationer no More?

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By Deborah Hopkins and William Wiley, May 17, 2017

If you’ve read anything we’ve ever written in this Newsletter, then you probably know we get lots of questions from readers and we use this forum as a place to post our answers. Here’s a relatively quick one that some of you might find helpful.

Good Afternoon FELTG Team:

I’m hoping you can answer a question that I’m getting conflicting answers on. A Pathway Employee (hired under Excepted Service) finishes two years and converts to a competitive position with no break in service, into the same position and grade. Would you consider this employee as having served a probationary period and therefore now has full appeal rights, or would you consider him a probationary employee with limited appeal rights after the conversion to competitive service?

My case law research shows me that this employee is no longer probationary (limited appeal rights). What do you think?

And here’s our response:

Thanks for the email, Loyal Reader.

Without doing any research (we’d have to charge you for that!), our understanding is that employees in these sorts of positions serve a “trial” period.” Effectively the same thing as a “probationary period,” but for some reason, it has a different name.

Secondly, and this is the point that confuses so many people, is that employees get MSPB/adverse-action appeal rights TWO different ways:

  1. If they have completed a probationary period, OR
  2. If they have current continuous employment of at least one year in the competitive service or two years in the excepted service. Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999)

The employee in your situation satisfies the two years in the excepted service test. Therefore, it is immaterial whether he is placed into a “probationary period.” That’s why the better practice is NOT to play games with using a new probationary period. He got rights when he was converted.

Keep in mind that the “OR” above is a typo in the law and was always supposed to be an “AND.” In fact, that’s how OPM regs interpreted it until Van Wersch was issued. That’s why so many people get confused on this point.

Hope this helps!

[email protected]

The Odds are in Complainants’ Favor When They Appeal Agency Awards of Compensatory Damages

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By Deryn Sumner, May 17, 2017

As I noted in another article discussing trends in cases awarding non-pecuniary compensatory damages in 2016, 18 of the 34 cases issued by the Commission increased the amount awarded.  Some of these increases were significant, and I will discuss a few here.

First, in Marguerite W. v. Dept. of Labor, EEOC Appeal No. 0120142727 (December 21, 2016), the agency issued a FAD awarding $4,500 in nonpecuniary compensatory damages in response to the Commission’s Order in EEOC Appeal No. 0120110728 (January 9, 2013).  The original case dealt with a complainant with a vision impairment who needed a flat screen monitor.  She got one, but when her supervisor, the Area Director, found out she had one, he took it away and gave it to the Assistant Area Director.

Although the complainant also raised other allegations of harassment and violations of the confidentiality of her medical information, the Commission only found discrimination with regard to the monitor being taken away and appropriate alternative accommodations not being provided and ordered the agency to investigate her entitlement to compensatory damages and issue a FAD.

The agency did so, finding $4,500 to be appropriate, and the complainant appealed.  The Commission increased the award to $30,000 and found that the agency failed “to address a situation that was inherently degrading and humiliating” and found persuasive testimony from the complainant and her husband that she suffered emotional harm and physical pain from the actions, which left her without accommodation for three months.  The Commission found it appropriate to increase the award by more than $25,000.

In what was I believe the largest increase in 2016, the Commission awarded an additional $105,000 to the complainant in Vaughn C. v. Dept. of Air Force, EEOC Appeal No. 0120151396 (April 15, 2016).  The agency had awarded $20,000 in response to an order from the Commission requiring the agency to investigate and issue a FAD on remedies after finding the complainant was subjected to racially motivated harassment, including use of the n-word, which caused his constructive discharge from employment.  The Commission said the following:

The Agency asserted that Complainant failed to provide adequate evidence of the harm. We disagree. In response to the Agency’s request for documentation, Complainant provided a statement detailing the physical and emotional toll taken on him due to the ongoing harassment that resulted in his resignation from his position with the Agency. In that statement, Complainant indicated he experienced increasing anxiety, difficulty concentrating, a loss of appetite, high blood pressure and severe headaches. He also noted that his physical and emotional relationship with his wife was negatively affected. Complainant also submitted documentation from his mental health counselor that indicated that he lost his motivation to work; felt anxious; developed insomnia; experienced a change in appetite and drinking resulting in a 15-20 pound weight gain; had difficulties with fatigue and focus; and had feelings of hopelessness. She also indicated that he became paranoid that the coworker would physically harm his family, even going to the extent of developing a ‘safety plan’ in that eventuality. The record also included statements from coworkers in support of Complainant’s claims.

Given all of that, the Commission found $20,000 was not enough to compensate the complainant and increased the award to $125,000. [email protected]

Call a Plumber!

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By William Wiley, May 17, 2017

Here’s how accountability works in the federal civil service. Bad employees get fired. They appeal to the US Merit Systems Protection Board. The Board assigns a judge to collect all the evidence, conduct a hearing, and rule on whether the employee stays fired or gets his job back. When that ruling is challenged, the Board members themselves review the judge’s initial decision, thereby becoming the final arbiters of who gets fired from government for poor performance or misconduct, and who gets reinstated with back pay and attorney fees.

MSPB’s headquarters workload has been relatively steady (save for the occasional Stupid Sequestration Furlough appeals). Every workday, the members receive five to six appeals challenging a judge’s decision. To stay even with this intake, each member must review the record evidence, consider a judge’s rationale, then vote to affirm or modify the initial decision in five to six cases each day. I worked at MSPB headquarters for nine years. Five to six decisions a day is a manageable workload for a Board member to accomplish.

There are three members’ seats on the Board. Each is designed to be occupied by a political appointee, nominated by the President and confirmed by the Senate, for a non-renewable term of up to seven years. Final Board decisions are by majority vote. Even when there is a vacancy at MSPB, the Board can still operate with two members. By accepted rule, two is a viable voting quorum of a three-member body such as is MSPB.

As of January 7, due to the then-Chairman’s premature resignation and another member’s term expiration, the Board has been reduced to a single member. Two seats remain vacant. MSPB cannot issue final decisions regarding the appeals of judges’ decisions with only one Presidential appointee member. It cannot affirm the judge, set aside the judge, or dismiss the appeals without any action at all. Some might compare a one-membered Board to a black hole in space, an entity in which once matter crosses the event horizon, it disappears forever. Others might prefer the analogy of a roach motel, where the guests check in, but they never check out. As for me, I’m most comfortable thinking of a non-function Board as the clog in the plumbing, not letting anything go out while backing up a smelly mess into the living room of federal employment.

Every day that the Board sits impotent, another five or so former-employees are added to the heap, denied resolution of their appeals. Perhaps they should be reinstated with back pay. Perhaps their removals should be affirmed so that they can either get on with their lives, or pursue even more challenges in federal court. The individual appellant suffers as well as do his family members.

The former employing agencies also are disadvantaged each day the Board is powerless. Back pay with interest continues to accumulate. Some agencies will not replace a fired employee until the Board appeal is finally resolved. Positions sit vacant or are filled on only a temporary basis until at least two Board members agree on what constitutes a proper outcome.

Compared to health care, tax reform, and FBI directors, this is the tiniest of government problems. Fortunately, it requires the tiniest of actions to fix it. The White House needs only to submit to the Senate a name of someone willing and competent to serve as an MSPB Board member. Go look in the mirror. If you’re a regular reader of the FELTG newsletter, you’re probably more qualified on Day One than were at least a couple of individuals who actually served as Board members in the past. You don’t need to be a lawyer. Heck, you don’t even need a college degree. Take your common sense, combine it with federal workplace experience, and if the President picks you, you can have your picture hung on the wall in MSPB’s front-office conference room right there along with the other 20 members who have served in history.

It breaks our little FELTG hearts that something so hurtful to the civil service could be fixed with something so easy to do. We understand that there are priorities in a new administration. We certainly defer to the greater minds at the higher pay grades when it comes to running the government. And at the same time, we hope that someone in a position to do something will see the service that will be done for America by clearing the pipes in the civil service accountability and oversight system, and cleaning up this mess before it gets so big that it cannot be easily undone.

To help us stay focused on this problem, every now and then in one of our periodic FELTG publications, we’ll print an update to the backlog situation using the graphic below.

Backlog Cases Sitting at MSPB due to Lack of another Member as of Today
440

When you see it, think of two things:

  1. This number would be zero if we had a quorum on the Board, and
  2. The poor soul who finally gets appointed to one of those vacant seats is going to need a helluva big in-basket.

[email protected] 

EEOC Issues Quarterly Digest of Equal Employment Opportunity Law Decisions

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By Deryn Sumner, May 17, 2017

The Commission issues several thousand decisions every year.  Many of these decisions are summary affirmations of agency decisions finding no discrimination without much useful analysis to those of us who practice before the EEOC.  Many others still are concerning procedural dismissals, either affirming the agency’s decision to dismiss a formal complaint for reasons such as untimely filing, failure to state a claim, or mootness, or remanding the case for investigation because the dismissal was improper.  So how do you as a busy practitioner stay up-to-date on the recent notable cases coming out of the Office of Federal Operations?  Well of course you’re already taking a great step by reading this newsletter and attending FELTG’s courses, where we provide you with the latest and greatest decisions you need to know.  And of course, if Bill will let me plug it, you can always get your agency to buy one of the fantastic publications from Dewey Publications such as the Consolidated Federal Sector EEO Update 2004-2017 (co-authored by yours truly and Gary M. Gilbert), which will be released later this summer and which summarizes all of the notable decisions every year from 2003 to 2016 (even though I’ve worked on this publication for over a decade, no, I can’t explain why the title doesn’t match up with the years) by category.

Supposing you work for one of the federal agencies with its budget on the chopping block and are looking for a free way to learn about the notable decisions issued by the Commission, the EEOC has you covered.  It just recently released its Quarterly Digest which provides decisions issued in the fourth quarter of 2016 and highlights those decisions addressing attorney fees, compensatory damages, findings on the merits, remedies, summary judgment, and all those other great topics you need to know in your practice.

As a bonus, this edition also includes an overview of the law on age discrimination cases (don’t forget that administrative exhaustion requirements and the remedies available are different in these types of cases) as well as the recent decisions from the EEOC addressing claims of age discrimination.

You can locate the digest here: https://www.eeoc.gov/federal/digest/vol_2_fy17.cfm.  Prior editions are available here: https://www.eeoc.gov/federal/digest/index.cfm

[email protected]

A Potentially Devastating Impending Change

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By William Wiley, May 9, 2017

Forever, it has been black letter law in the federal workplace that an employee has to do what his supervisor tells him to do. With exceedingly rare exception (involving safety, Constitutional rights, and illegality), if a supervisor tells an employee to do something, the employee has to do it. If he doesn’t, he can be disciplined for Insubordination, perhaps even be fired.

This concept is embodied in a term often heard in a unionized workplace, “Work now; grieve later.” If an employee is confronted with an order that she believes to be improper – perhaps the order requires her to forego a break that she believes she is entitled to under the collective bargaining agreement – the employee is supposed to obey the order, then challenge the order after the fact by filing a grievance. In that balanced approach, the supervisor still gets done what needs to be done, and the employee still gets redress to correct any harm that might have occurred because of the order if it is found to have been improper after the fact.

Think what it would be like otherwise. What if an employee could disobey an order he felt was wrong? The supervisor orders the employee to do something. If the employee believed that the order violated the union-management collective bargaining agreement or some other rule, the employee could refuse to obey the order without fear of discipline. Perhaps the order would have to be subjected to oversight in the grievance procedure, and once adjudicated as consistent with the CBA, the employee would then have to obey it. Can you imagine the disruption that this would cause in the federal workplace, if supervisory orders had to be adjudicated as proper before they could be enforced?

Add to this the reality that CBAs and regulations are subject to various interpretations, that one person’s honest belief in what the rule means is different from what another person believes in good faith the rule means. If a supervisor gives an order, in my experience the supervisor believes that it is a proper order. If the employee concludes that based on his own interpretation the order violates some policy, should we really delay obedience to the order until the disagreement is resolved by an arbitrator or a judge? Holy-moly. And the public thinks that the government is inefficient as it is. Just wait until they see all those civil servants waiting around until their boss’s orders are litigated as proper before they will be obeyed.

Well, buckle up. Congress is on a path to make this hellscape scenario a reality in the federal government. Recently, the House passed HR 657, the “Follow the Rules Act,” amending 5 USC 2302(b)(9). That legislation would make it illegal for an agency to discipline a disobedient employee who was insubordinate because the employee refused to obey an order that violated a “rule or regulation.”  Let’s think this change through for a minute, from the perspective of those of us with significant experience in the federal civil service:

  • The media buzz around the passage of this bill was that it would increase protections for whistleblowers. Wrong. Whistleblower rights are embedded in 2302(b)(8). This legislation would amend 2302(b)(9). If enacted, it will apply to EVERYONE, not just those federal employees who blow the whistle.
  • If an employee reads this amendment (if the Senate and the President make this bill into a law), she would be comfortable believing that she could refuse to obey an order that she believes violates a “rule or regulation.” Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?
  • The amendment is silent about the definition of the words “rule” and “regulation.” As we have something called the “Code of Federal Regulations,” it’s relatively easy to recognize “regulation” as referring to that body of guidance. But what is a “rule” exactly? Fortunately, the word “rule” has been in law since 1978. It can be found in the paragraph immediately above (b)(9), the paragraph that defines a whistleblower as someone who, among other things, discloses a violation of “law, rule, or regulation.” MSPB recently defined the word “rule” for this purpose as “established or authoritative standards for conduct or behavior.” In one case, it found that a simple agency memorandum could constitute a rule. See Chavez v. DVA, 120 MSPR 285 (2013); see also Raiszadeh v. DHS, DC-0752-12-0648-I-2 (2015)(NP).
  • If the Board were to use that same interpretation of “rule” for the purpose of enforcing the HR 657 amendment, just think of all the potential that an employee has for believing that a supervisor’s order violates a “rule.” Double holy-moly.
  • Again, looking to whistleblower protection law for guidance about how to interpret the proposed amendment to (b)(9), an employee is protected as a whistleblower if he discloses a violation of “law, rule, or regulation” even if he is mistaken as to whether there actually has been a violation of law, rule, or regulation! All the whistleblower needs is a “good-faith belief” that there has been a violation. See Herman v. DoJ, 115 MSPR 386 (2011). What if we were to apply that same principle to cases that arise under the proposed amendment? Do we really want to allow civil servants to disobey supervisory orders that conform with law, rule, and regulation simply because the employee has a good-faith belief that the order is improper?

Here at FELTG, we try our best not to do too much of that “The sky is falling!” stuff, raising concerns where there really are none to be raised. We hesitate to sound the alarm too many time. But this is one that might be worth your attention. Know any Senators? If so, please let them know that this thing is coming and that it has repercussions that are not being recognized. Buddies with The Big Guy? Next time you’re on the links, maybe mention that this might be a good one to veto. Because if this bill becomes law, it will legitimize and protect every federal employee who thinks his supervisor is an idiot.

And I hear that there are a lot of those around. [email protected]

Answering OMB’s April 2017 Directive

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By Barbara Haga, May 2, 2017

I am chalking this column up to doing my patriotic duty.  OMB Directive M-17-22, Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce, dated April 12, establishes a number of initiatives for changing what work is done and how work is done within the Federal government.  Agencies have a deadline of June 30, 2017 to prepare a plan to maximize employee performance.  Paragraph D.iii.1 requires that agencies review their procedures for dealing with poor performance and conduct and to “… specifically review whether their policies create unnecessary barriers for addressing poor performance.”  OMB is requiring agencies to remove steps not required in statute/regulation to streamline processes for dealing with poor performance and to establish clear guidance on the use of PIPs.

I have seen many of these “unnecessary barriers” that are included in agency performance plans and union contracts in the past ten years, so I am making a list of what needs to be eliminated.  Of course, for some of you this will mean bargaining your way out of things that someone agreed to in the past.

Barbara’s Top Four

Being in this top four list is not a good thing.  These are things that either drag out the process, allow employees to get away with doing less, create extra hoops for managers, or give employees more things to challenge through the grievance process.  We don’t need any of that.

  1. Setting a time frame for a PIP. There is nothing in 5 USC 43 or 5 CFR 432 that establishes a minimum time frame for a PIP.  Why would an agency do so?  Should it not be what is reasonable for the position?  One agency I have worked with has established a five month improvement process – a 30-day pre-PIP and then 120 days of an actual opportunity period.

If it is a GS-6 Accounting Technician who is performing hundreds of transactions in a month is 30 days not enough?  If is a GS-14 Aerospace Engineer at NASA working on design of a new spacecraft, maybe we need 90 days to get enough results to be able to make a determination whether the level of performance has improved.  It depends on the complexity of the work.

What difference does it make if we HR practitioners are just overly cautious and make a PIP extra long?  The longer the PIP the more burdensome it is on the manager who is supervising the employee.  Believe me, I know.  I have done two of these actions on employees who worked for me.  Remember what a PIP is – the employee is performing normal work assignments in as normal a work situation as the manager can provide.  However, the manager has to review the work on the elements under which the employee is on notice, determine what is correct and what isn’t, document all of that, and burn up the copy machine keeping copies of all of that work – all while doing everything she would normally be doing, meeting frequently with the employee on the PIP and keeping notes about that, and not being obvious to the other subordinates about what is going on.  It takes its toll.  The employee is, and has been, paid to perform this work and he should be able to perform it.  The managers are not the bad guys in this process, so we shouldn’t put a more onerous requirement on them than what is necessary.

Recommendation:  Revise your performance plan to say what 5 CFR 432.104 says about the length of the PIP:  For each critical element in which the employee’s performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.

  1. Mandating extensive amounts of assistance. We should also remember that the PIP is not intended to train an employee on the work their position requires – they are supposed to have the ability to do the work already.  It is an opportunity for them to show that they can perform at an acceptable level with assistance.  Some agency PIP requirements include reviewing every single piece of work the employee performed, even when it is a higher grade position. I don’t view that as assistance; it essentially is taking on the employee’s responsibilities.  In other words, the work requirements are watered down so much that even if the employee meets the PIP requirements she isn’t performing at grade.

Other agencies include assignment of mentors to the employee in the PIP.  If the employee is already qualified to do the work of the position, why would he or she need a mentor?  If, because of the span of supervision, the manager is stretched too thin to be accessible to the employee and someone is covering that management capacity to give guidance and review results of work, I am not sure the term “mentor” is accurate – work leader sounds more like it.  Mentors aren’t usually supposed to judge – they offer guidance and suggestions.

Recommendation:  Make sure that the performance system does not require anything further than “The employee will be provided assistance, which will include regular feedback from the rater on the elements in question during the PIP period.”  Anything beyond that which the agency chooses to give is just whipped cream on top!

  1. Requiring that an Unacceptable rating be assigned. There is no requirement in law or regulation that an Unacceptable rating be assigned in order to take an unacceptable performance action.  In order to propose a downgrade or removal based on unacceptable performance 5 CFR 432.105(a)(4) requires that the notice contain “both the specific instances of unacceptable performance by the employee on which the proposed action is based and the critical element(s) of the employee’s position involved in each instance of unacceptable performance.”  Requiring assignment of a rating does a couple of things.  The worst is that it creates another grievable action (or at least a request for reconsideration depending on your appraisal system) that will be running at the same time that the adverse action is being proposed and decided, using the same evidence that will be reviewed in the 432 action.  No practitioner in his or her right mind should want that to happen.

To assign a rating, you must also meet the minimum appraisal period established in your performance plan.  That is typically 90 or 120 days.  If you were beginning an action near the beginning of a cycle, your PIP would have to be at least that long.

Recommendation:  Eliminate any requirement to assign of a rating of record of Unacceptable at the end of a PIP or in order to proceed to a performance-action.

  1. Using Minimally Successful ratings. If your agency includes a Minimally Successful level (Level 2) on the element (summary ratings don’t matter here), then it is time for it to go.   If you have Level 2 then the maximum amount of improvement you can require an employee to reach during a PIP is Level 2 (try reading these cases if you don’t believe me: Jackson-Francis v. OGE, 107 FMSR 73 (2006); Henderson v. NASA, 111 FMSR 173 (2011); and Van Pritchard v. DOD, 112 FMSR 27 (2011).  Your friends at agencies that don’t have a Level 2 rating on a critical element can demand that their employees reach Fully Successful (Level 3) performance to successfully complete their PIPs.

At a minimum, Federal agencies should be able to hold employees to Level 3.  Allowing an employee to hang out at Level 2, potentially for years, and losing just their within-grades and some of their retreat rights in RIF, is crazy. But if you have a Level 2, that’s all you can require.

Recommendation:  Change your element rating scheme to eliminate Level 2 on a critical element.  Level 2 in the summary rating scheme also needs to go if you don’t have non-critical elements.

I wish I had more space.  I could have put together a longer list!

Attend a special program on this topic: Maximizing Accountability in Performance Management, July 25 in Washington, DC.

We Should Stop PIPing Bad Performers

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By William Wiley, April 25, 2017

Any of you readers who have been to any of our training sessions probably fell off of your bar stool when you read the title to this article. That’s because here at FELTG, we have sung the praises of Chapter 43 removals ever since we started presenting training sessions two decades ago. They are easy to do if you know what you’re doing and darned near bullet proof on appeal given the low standard of proof necessary to establish that removal is warranted.

Well, we are not abandoning that theme. We still believe that removals using the procedures found at 5 CFR 432 are preferable to starting a 5 CFR 752 misconduct action. What we are writing about today is the concept of a PIP. Perhaps it’s time for a change.

As we always do in our training, we begin with the law. Here’s what the statute has said since 1978 about firing poor performers from the civil service:

Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for … removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance. 5 USC 4302(b).

A PIP as it is used in most every federal agency is an action that notifies the employee of prior unacceptable performance, then establishes a period into the future during which the employee has to perform acceptably or be fired. Observe that the law says nothing specific about a “performance improvement plan.” If you think about it, an agency could give an employee the statutory “opportunity to demonstrate acceptable performance” simply by giving the employee performance standards, an adequate amount of time subsequently to demonstrate whether she can do the job, then remove her if she failed to perform acceptably. The law does not say you can fire a poor performer “only after notice and a subsequent opportunity to demonstrate acceptable performance.” One could argue, if one were into statutory construction, that had Congress intended that there be notice, Congress would have called for notice in the law.

Unfortunately, that’s not how OPM interpreted the law back in the day. Given its statutory authority to issue implementing regulations, OPM came up with the requirement for notice to proceed an “improvement period” prior to an agency being allowed to fire the poor performer. That’s where we got the acronym “PIP.” The first set of regulations that OPM issued to interpret this part of the Civil Service Reform Act called for a formal “performance improvement period” to proceed any removal for failure to perform acceptably. Subsequently, OPM spruced up its regs a bit and changed (without explanation) the name of this period into a “performance improvement plan” thereby retaining the acronym PIP. Today, OPM’s regulations use no term that fits the acronym PIP, and instead revert to the original statutory language that refers to “a reasonable opportunity to demonstrate acceptable performance.” 5 CFR 432.104. Although the regulatory language now tracks the law, the concept of notice – arguably not mandated by the law – remains in effect.

Even with all these regulatory name changes, most supervisors we work with here at FELTG still use the old acronym “PIP.” It’s short, sounds nice, and is reminiscent of the backup singers for Gladys Knight. 😉 In fact, in our FELTG seminars, we sometimes exhort supervisors who have a non-performing employee to “PIP ‘em early, PIP ‘em often” just like they vote in Chicago. Well, maybe it’s time for a change.

The acronym PIP, implies an “improvement” opportunity. However, the law calls for a “demonstration” opportunity. Think how these implications are importantly different. If you were to say to me, “Demonstrate whether you can play the piano,” I would sit at a keyboard, move my fingers, and demonstrate very quickly that I cannot play anything at all. However, if you were to say to me, “Improve your ability to play the piano,” I would sit at a keyboard, do some initial finger moving, and then do more finger moving in an attempt to improve my playing ability. In other words, the fact that initially I cannot play the piano is irrelevant to whether I can improve my playing with time.

We don’t get to make the laws here at FELTG, but we do see it as our responsibility to try to understand the law so we can help those of you who attend our seminars do your jobs better and more efficiently. This statute does not mandate that an agency provide prior notice nor does it require an improvement period. It calls for an “opportunity to demonstrate” acceptable performance. We think that the terms in use today – “PIP” and even “opportunity period” – attach the wrong focus to the obligations that come into play when the civil service has a poor performer. The law seems clear to us that the requirement is on the employee to demonstrate acceptable performance with the agency providing assistance.

If it were up to us, we would wave our magic regulatory wand and decree that if indeed we are going to require notice and a subsequent evaluation period, we should drop the acronym “PIP” and instead used the term “Demonstration Period,” maybe “DP” for short. That approach places the emphasis where the Reform Act intended it to be; on the individual employee to show us whether he can perform the job he is being paid to perform.

Here at FELTG, we obviously are not too good at creating pronounceable acronyms (res ips). We have to use a little creative pronunciation to tell people orally who we are. So for the sake of being able to orally reference this new DP, I think it would be OK if we pronounced it similar to a PIP. When speaking we can call it a “DiP,” thereby allowing us to continue our admonishment to supervisors of poor performers, “DiP ‘em early; DiP ‘em often.”

And if you think the urban term “dipwad” seems appropriate, who are we to judge? [email protected]