Legal Analysis 101

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By William Wiley, April 19, 2017

All right all you brilliant legal-like minds out there. Work through this law with me. What do you think this means, and why did Congress say it?

5 U.S.C. 1214: (f) During any investigation initiated under this subchapter, no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation … without the approval of the Special Counsel.

If it’s of any help, the “subchapter” referenced in this language is Title 5 – Government Organization and Employees, Part II – Civil Service Functions and Responsibilities, Chapter 12 – Merit Systems Protection Board, Office of Special Counsel, and Employee Right of Action, Subchapter II – Office of Special Counsel. So, what we are talking about is that period of time that OSC has decided to come in to your agency and investigate the suspected reprisal against an alleged whistleblower by one or more of your management officials. OSC usually notifies you officially of its investigation when it has heard enough from the employee/complaint to conclude that maybe there is fire beneath the smoke of the claim. It contacts the agency, usually through the office of general counsel, when it is ready to demand documents and needs access to agency employees to depose. That’s when you know, often for the first time, that there is an OSC investigation afoot under this subchapter.

The statute prohibits an agency from disciplining “any employee” for “prohibited activity.” Well, the activity prohibited that OSC investigates is reprisal against a federal employee for whistleblowing. The “activities” that are prohibited are specifically enumerated at 5 USC 2302(a)(2)(A) and include most significant personnel actions such as disciplinary actions or performance ratings. The “prohibited” part refers to taking the action based on an improper motive, namely whistleblower reprisal. As for the “any employee” language, those who can be investigated for whistleblower reprisal are federal employees who have the “authority to take … personnel actions.” 5 USC 2302(b).

Wrap all this up and in lay terms, what the law says is that an agency must get OSC’s approval during an OSC investigation if it intends to discipline a management official for the misconduct of reprising against a whistleblower. This makes sense if you think about it. If an OSC investigation results in a conclusion that I have reprised against a whistleblower, OSC can file charges against me before MSPB and have the Board discipline me. However, during an investigation into whether I reprised against the whistleblower, if the agency were to discipline me for reprisal with – say – a one-day suspension, OSC would be precluded from subsequently disciplining me more seriously because I would have already been disciplined for the misconduct. No sir; no double jeopardy in our system of workplace justice, thank you very much Fifth Amendment (in analogy only, of course).

Did you notice the “…” above? For clarity, when quoting the law, I left out the phrase “or for any related activity.” That’s an awkward seemingly-unnecessary term, but it appears to me to refer again to the “any employee” with the authority to take a personnel action. Once more, we’re talking about needing OSC approval to discipline a management official.

Why all this detail? Because some agency officials have concluded that this language requires that it get approval from OSC prior to disciplining the employee who filed the reprisal complaint (for misconduct, not related to whistleblowing). In fact, even EEOC appears to believe that OSC approval is required prior to an agency disciplining an employee who has filed a whistleblower reprisal complaint. See Latricia P. v. USDA (Natural Resources Conservation Service), EEOC Appeal No. 0120152533 (February 16, 2017).

Where in the world might an agency as experienced as the Department of Agriculture get the idea that it needed OSC approval to discipline an employee who has filed a whistleblower reprisal complaint resulting in an investigation?  Well, I certainly do not have any specific inside information into this case, but in my experience, I have heard that incorrect interpretation of the law put forward by – are you ready? – OSC itself. Hey, if I’m OSC, my job is to protect whistleblowers from bad treatment. If you fire or otherwise discipline the whistleblower while I’m conducting an investigation, you’re going to mess up my investigation and interfere with my defense of that employee. If I can get you to believe that you need my approval to discipline a complainant, why would I not want you to believe that?

A number of you readers have had dealings with OSC in situations in which you have an intent during an investigation to discipline the complaint for misconduct or perhaps fire the complaint for poor performance. Even if you have not heard an OSC representative tell you affirmatively that you need OSC’s permission to go forward, have you ever heard an OSC representative say to you, “Hey, if you need to fire this complaint for reasons unrelated to whistleblowing, do what you need to do to hold him accountable. Our approval is required only if you’re going to discipline one of your managers for reprisal.”?

I am not worried about my email inbox becoming crammed with responses to this question.

OSC does not have the authority to require you to get its approval prior to disciplining a complainant during an investigation.  If it believes your discipline amounts to reprisal of some kind, it can file a motion for a stay of the discipline with MSPB. The Board can order you to hold off on disciplining the employee, but OSC cannot.

Know the law. Do not rely on OSC’s interpretation of it. They are many good people at OSC, some of which I have considered my friends for 35 years. Yet their job is different from your job. You need to run the government and hold misbehaving employees accountable; the Special Counsel does not. [email protected]

Seventh Circuit Court of Appeals Agrees with EEOC’s Position Regarding Sexual Orientation Claims

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By Deryn Sumner, April 19, 2017

As we’ve apprised the FELTG audience before, there has been a steady progression over the years regarding how claims of sexual orientation discrimination have been processed by the Commission.  Initially, such claims were outright dismissed for failure to state a claim.  Then, the Commission took the view that claims of sexual orientation discrimination really stated claims of sexual stereotyping, and thus ordered agencies to start processing these claims under that theory.  Then, in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission dispensed with such analyses and definitively held that claims of sexual orientation discrimination are inherently related to sex and therefore should simply be considered claims of sex discrimination.

The wing of the EEOC that conducts litigation to obtain relief for victims of employment discrimination followed by filing civil actions in U.S. District Court, as we discussed last year in this newsletter, applying the argument in Baldwin.  These and other cases are making their way through the federal district courts and courts of appeals.  Just recently, on April 4, 2017, the Court of Appeals for the Seventh Circuit issued a decision affirming the holding that claims of sexual orientation state claims of sex discrimination.  The case is Hively v. Ivy Tech Community College of Indiana and in it, the Court of Appeals vacated the district court’s dismissal of the complaint on the basis that a claim of sexual orientation didn’t state a claim under Title VII, and remanded it.

The Court of Appeals decision referred to much of the same precedent as the EEOC’s decision in Baldwin, tracing the evolution from the Supreme Court’s holdings in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).  Noting that it could not act to amend Title VII to include sexual orientation, the Court turned to whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.  There was substantial discussion of statutory interpretation, which I will leave for those of you fascinated by such discussion to read on your own.  And the EEOC got credit for the decision in Baldwin, when the Seventh Circuit Court of Appeals noted, “the agency most closely associated with this law, the Equal Employment Opportunity Commission, in 2015 announced that it now takes the position that Title VII’s prohibition against sex discrimination encompasses discrimination on the basis of sexual orientation. Our point here is not that we have a duty to defer to the EEOC’s position. We assume for present purposes that no such duty exists. But the Commission’s position may have caused some in Congress to think that legislation is needed to carve sexual orientation out of the statute, not to put it in.”

Raising another aspect to the analysis, the Court of Appeals also discussed an argument raised by Hively referencing the Supreme Court’s decision in Loving v. Virginia, 388 U.S. 1 (1967).  This is the case that held that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”  Ms Hively argued that her association with another woman was the cause of the discriminatory actions she experienced, which the Court credited in its decision.  As we see more of these decisions come out of Courts of Appeals, it becomes more and more likely that the Supreme Court will address whether Title VII includes sexual orientation claims as sex discrimination claims in the near future.  [email protected]

On a Related Note…

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By William Wiley, April 19, 2017

Over drinks and dinner the other night, our favorite time to pontificate on the fate of the civil service, Deb, Ernie Hadley, and I came up with the following fascinating facts:

  1. There are five Commissioners at EEOC. Each is appointed by the President, confirmed by the Senate, and serves a fixed term from which they essentially cannot be removed during the term. All five cannot be from the same political party.
  2. Currently, one of the five positions is vacant. The term of another expires in ten weeks. The term of yet another expires on July 1, next year. That means that within the next 15 months, President Trump will have the opportunity to name three new EEOC Commissioners, a voting majority.
  3. The President is free to select whomever he thinks would be a good Commissioner. If I were the President I would certainly want to appoint individuals as Commissioners who shared my view of civil rights law. For example, if I strongly felt that sexual orientation was a form of sex discrimination, as does the Seventh Circuit, then I would appoint individuals who hold the same view. On the other hand, if I felt that was not the case, as at least two other circuit courts have concluded, then I would appoint individuals with that view.
  4. EEOC has taken the position for many years that its only real controlling court is the US Supreme Court. In other words, it does not feel itself bound by the rulings of the individual circuit courts.
  5. As EEOC interprets the civil rights laws for the purpose of federal employee discrimination complaints, whatever it says about sexual orientation as a protected category applies to all federal agencies regardless of contrary rulings by the individual circuit courts.
  6. Until now, the Commission has held, as explained by Deryn above, that sexual orientation discrimination is a form of prohibited sex discrimination. However, nothing stops a bunch of new Commissioners from moving in the other direction.
  7. In fact, as far as I can tell, nothing requires the President to appoint a full complement of five Commissioners. He could appoint a Republican of his choosing, and if confirmed by the Senate, there would be a voting quorum even though the other two seats – seats that would have to be filled by members of another party – remain vacant.

Here at FELTG, we have our own strong opinions as to how this law should be interpreted. But none of us has been appointed to anything in a very long time, so our opinions are worth exactly what you are paying for them. The reality of our business, though, is that protections from sexual orientation discrimination in the federal civil service as a form of sex discrimination are in a precarious position.  Stay tuned to this space for any updates that come along. [email protected]

Bumping the Innocent Incumbent as a Remedy in Employment Discrimination Cases

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By Deryn Sumner, April 19, 2017

Our mantra for fashioning remedies in employment discrimination cases is that the victim of discrimination should be placed, as closely as possible, in the position he or she held prior to the discrimination.  In claims of discriminatory non-selection, this typically means giving the employee the position he or she applied for, or at least a substantially equivalent one, with the agency, along with the back pay and associated benefits, including any step increases or career ladder increases that would have been earned if the employee had received the position when she or he should have. So what happens when the position at issue is unique or one of a kind?  Well, since the goal is to get the complainant to where he or she should have been, this can sometimes mean bumping or removing the person who got the job, likely through no fault of their own, so that the complainant can have it.

In 2016, the Commission considered such a case and ordered that the agency must bump the incumbent in order to remedy the discriminatory act.  In Toney E. v. Department of Agriculture, EEOC Appeal No. 0420150019 (March 18, 2016), the petitioner worked as a GS-11 academic program manager at a Job Corps Center in Bristol, Tennessee and filed an EEO complaint alleging discrimination when the agency did not select him for any of four center director positions for Job Corps Centers located in Coeburn, Virginia; Bristol, Tennessee; Franklin, North Carolina; and Pisgah, North Carolina, respectively. The agency issued a Final Agency Decision (FAD) finding it failed to articulate a legitimate, non-discriminatory reason for not selecting the petitioner and ordered he be promoted.

There is a substantial procedural history here, but relevant to this discussion, the Commission issued direction in Request No. 0520140443 (February 6, 2015) that the petitioner “be awarded the position of Center Director, GS-0340-13, or a substantially equivalent position. The Commission has consistently held that a substantially equivalent position is one that is similar in duties, responsibilities, and location (reasonable commuting distance) to the position for which the complainant originally applied.”

The agency subsequently offered the complainant placement in center director positions in Swan, Washington; Ozark, Arkansas; Golconda, Illinois; or Laona, Wisconsin.  The agency argued that this action placed it in compliance and noted that several Federal circuit courts have found that displacing an innocent employee with one who would otherwise have had the position but for illegal discrimination is generally not an appropriate remedy.

The petitioner filed a petition for enforcement seeking placement into the center director position in Bristol, Tennessee. After consideration of this petition, the Commission concluded that the center director positions offered by the agency were not substantially equivalent because they “were not in geographic/commuting locations remotely close to the positions that Petitioner was discriminatorily denied…The Agency maintains that it is unable to offer Petitioner the Bristol, Tennessee position because it is no longer vacant and is currently occupied by an incumbent employee who apparently was selected over Petitioner.  Although there may be some disagreement among the Federal circuits, case law from federal courts and the Commission recognizes the bumping of an incumbent employee as a possible remedy for discrimination.  The Commission also has previously held that the bumping of an incumbent is a permissible remedy when, in the absence of bumping, the petitioner’s relief would be unjustly inadequate.”

The Commission found that the agency’s actions were not sufficient to remedy the discrimination and the only remedy would be to bump the incumbent and place the complainant there.  I’m sure showing up to take over someone else’s job, who is no longer there through anything he or she did, can make for an awkward first day of work. [email protected]

When to Use the New Notice Leave Law

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By William Wiley, April 19, 2017

Questions, we get wonderful questions. This one came after a recent webinar we presented in which we encouraged participants to get the employee out of the workplace once removal is proposed. First, our participant’s question:

The presenter, Mr. Wiley, made a sweeping statement yesterday that employees should be put on “notice” leave when issued a proposed removal.  The statement was very emphatic and left the impression that this should be a routine practice.  However, in researching the issue, the following is required to place employee on “notice” leave, essentially describing a situation where the employee is believed to pose a threat.  Can you forward a question to him to better explain how the routine use of “notice” leave is warranted in view of the strict criteria described in Administrative Leave Act of 2016. P.L. 114-328?

And here’s our always-helpful and enlightening (to us) FELTG response:

In response to the question about using Notice Leave, yes, in our opinion it should be a routine practice whenever an employee is put on notice that removal has been proposed. It is easy to reach the reasonable conclusion that an individual whose removal has been proposed is going to be under a lot of stress and be focused on his own well-being. Individuals in situations like that sometimes react in dangerous unexpected ways. News reports of workplace violence often state that the employee who was violent was previously seen as mild-mannered with no obvious psychological problems. According to the Bureau of Labor Statistics, about two people per workday are killed in our country by a co-worker.

Separately, it is reasonable to conclude that an individual who is confronted with the imminent loss of employment would consider ways to gain financially from his remaining days as a federal employee. Perhaps there is data in the agency’s computer system that, if downloaded, would be of value to criminals. Maybe there are office supplies and equipment that could be the basis for the start of self-employment, or simply for sale on the web or at a garage sale. I’ve even seen individuals who have been told that their removal is proposed suddenly suffer a job injury, thereby entitling them to workers’ compensation payments.

Finally, keep in mind that the proposing supervisor has said in the notice letter why the individual should no longer remain as a federal employee; e.g., there’s a loss of trust or he has failed his performance improvement plan. Keeping someone like that in the worksite doing his job after the supervisor has concluded that the employee can’t do his job makes no sense and might undermine some of the statements made in support of the removal penalty in the Douglas Factor analysis.

Once we grasp these disadvantages to allowing employees continued access to a federal workplace when their removal is proposed, it’s a straightforward manner to conclude that one or more of the criteria for enforcing Notice Leave has been met. At a minimum, we can categorically conclude in a removal action that keeping the individual in the workplace after his removal is proposed “jeopardizes the legitimate government interests” of maintaining a safe workplace, one of the four statutory criteria.

Separately, I consider the following:

  • The employee cannot directly challenge the placement on 30 days of Notice Leave. Why would I not do it?
  • Even if somehow after the fact a decision was made that the employee should not have been placed on Notice Leave, no harm – no foul. That finding, were it to occur, would not cause the removal to be set aside as it is not a harmful error. In fact, I can think of no remedy.
  • This isn’t some bureaucratic check-the-box issue. This can be a life and death situation. If I place the employee on Notice Leave and remove him from the workplace, I may have prevented some pretty bad things from happening. If I do not place the employee on Notice Leave, although it does not happen often, he just might kill someone.

I have absolutely no problem selecting the option that possibly could save a life. The law is worded to allow me to exercise my judgment to do that, and that’s what I would advise anyone in a proposed removal situation. To do otherwise would be short-sighted. And, deadly.

Hope this helps. [email protected]

Taking Advantage of the New Notice Leave Opportunity

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By William Wiley, April 12, 2017

We got a number of good questions following our famous FELTG Case Law Update webinar last week. A couple of them were about the new right that agencies have to avoid administrative leave and to place employees on Notice Leave once a removal is proposed. This is a terrific change, one we’ve campaigned for here at FELTG for nearly 20 years, and a flexibility that could save your life.

Seriously, it could save your life.

The new law empowers an agency to place an employee on paid Notice Leave for the duration of the notice period once a removal is proposed. Here are some related questions:

Hello FELTG Team:

Thank you very much for a wonderful training session this morning! I am very interested in the changes that are coming through the Administrative Leave Act of 2016 and have a few questions for you regarding the information presented.

Extension of Notice Period Beyond 30 Days

In the training, you addressed Notice Leave and indicated that the duration could be extend beyond 30 days. When I read the law, I interpreted it to be much more narrowly construed. The law defines notice period as “a period beginning on the date on which an employee is provided notice required under law of a proposed adverse action against the employee and ending on the date on which an agency may take the adverse action.” Generally, the first point at which an agency may take action under 5 CFR Sec. 752 is at the expiration of the 30 day notice period, which would indicate that the notice leave would expire at the 30 day mark. The interpretation seems to hinge on how “may” is defined. Is it defined as the earliest point when the action may legally be taken or is it defined as once the agency is ready to take action? I much prefer your interpretation that the notice period may be extended beyond 30 days and am interested to hear how you arrived at that conclusion.

Initial 10 Days of Investigative Leave

In the training, you spoke about the first 10 days of Investigative Leave. My understanding is that the first 10 days are considered administrative leave under Sec. 6329a(b)(1) and then the subsequent 30 day periods are Investigative Leave; is this in line with your interpretation of the law?

Employee Quits While on Investigative Leave

Do you have any insight into whether an investigation needs to be completed after an employee quits? The law seems to indicate that the employee has appeal rights if there is an eventual adverse finding. I’m unclear whether the investigation needs to be completed after the employee quits to determine whether there would have been an adverse finding or if you can cease efforts to determine if there was misconduct.

Any insights you can provide are much appreciated and thank you again for a great training session.

And, our FELTG response:

Thanks for your questions, oh wise and inquisitive participant. Of course, here at FELTG we do not claim to know the answers any better than you do as we are all working from the same cold language of the law. But here are my thoughts:

Extension of Notice Period Beyond 30 Days:  To me, the term “may take action” is ambiguous enough for me to interpret it to my benefit until I’m told otherwise. For example, although in most situations an agency “may” be able to take an action at the end of the 30-day notice period, in other situations it may not. For example, if the deciding official has conducted an independent investigation into the charges and plans to use the results of that investigation in making a decision, he may not make that decision until the employee has been given at least seven days to respond to the new information. Or, perhaps the CBA says that the employee will be given 45 days to respond instead of the 30-day statutory minimum. Depending on circumstances, then, the notice period might run beyond 30 days, and the DO may not make a decision until a response is made or waived. Separately, if Congress had intended that Notice Leave be only for 30 days because that is the minimum statutory period, it easily could have specifically limited Notice Leave to 30 days instead of leaving it open to the interpretation of “may.” Since it is to my benefit as the agency representative to have the employee on Notice Leave longer than 30 days in some situations, since the employee has no way to challenge the placement on Notice Leave, and since the employee is not procedurally harmed if I am wrong in using Notice Leave beyond 30 days, I interpret the law to allow me to use Notice Leave beyond 30 days until someone bigger than I am tells me to stop.

Initial 10 Days of Investigative Leave: I have no problem with your interpretation. Close enough for FELTG work.

Employee Quits While on Investigative Leave:  Nothing in this law nor any other law of which I’m aware requires an agency to continue an investigation beyond the separation of the employee. I’m not sure whether it came across in the webinar, but I think this whole record-annotation thing is misplaced effort and does little to improve our civil service while costing us the potential expense of a full blown MSPB appeal. The Latin term I am looking for is “stupid.” Therefore, unless a proverbial gun was placed to my head, I would do whatever is necessary to avoid any of this wasted effort, including discontinuing an investigation short of an adverse finding. Goodness knows we all have better things to do to help run the government.

And, another Notice leave related question:

Dear FELTG-Folk-

During the webinar when discussing Notice Leave, Mr. Wiley made a comment that only 2 sentences would need to be added to a proposal notice.  Unfortunately none of us attending the webinar caught what the 2 sentences were.  Would it be possible to get that information?

Our FELTG best-guess response:

It’s always risky interpreting a law before we’ve had any interpretative guidance from the courts, but here’s what I think we need to say in the proposal letter:

“Effective immediately, I am placing you in a paid leave status during the notice period of this proposed removal. I have considered reassigning you to other duties and allowing you to take other leave, but it is my determination that these alternatives would jeopardize legitimate government interests.”

Since the employee cannot directly challenge being placed on Notice Leave, and since there would be no harmful error even if this language is subsequently found not to be correct, I’m standing by these two sentences until I hear differently.

Hope this helps.  [email protected]

From Confusion, Enlightenment

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By William Wiley, April 4, 2017

OK, so I messed up. Last month, some of you might have read an article we distributed that spoke highly of the value of Last Rites agreements, deals that supervisors can cut with employees so that the employee leaves voluntarily rather than getting fired. Unfortunately, when I drafted that piece, I was just coming off a high fever and a near-death medical experience, and my brain wasn’t working too good. Given that even when I’m healthy, my brain doesn’t work too good, I was in bad shape.

The Confusion

Although I intended for the entire article to be about a Last Rites agreement, I inadvertently used the term “Last Chance” agreement once or twice. Please reread the article, mentally substitute “Last Rites” for “Last Chance,” and you’ll get the meaning I was after.

The Enlightenment

A couple of readers who caught the gaffe noted that they could use an explanation of the two different agreements. Had I not made the mistake, I would not have gotten that feedback nor would I have realized a need for greater clarity. So here comes the enlightenment from my confusing article.

Usually, a Last Rites agreement is negotiated at that point that the supervisor has reached the conclusion that the employee needs to no longer be employed in his position. Many times, the supervisor has already collected enough evidence to propose a removal based on either misconduct or unacceptable performance. Here’s how it works in most cases:

  1. The supervisor or someone on her behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that he has a removal facing him soon, and is offered the chance to resign voluntarily rather than be fired. Some employees see a resignation to be an advantage to being fired because the employee’s Official Personnel File will record a voluntary quit rather than a forced removal.
  2. Supervisors see voluntary quits as an advantage to firing the employee because the quit is effective immediately at getting the employee out of the workplace, and the employee has waived appeal/grievance/complaint rights in a well-worded Last Rites agreement (sample in the back of your copy of the FELTG textbook UnCivil Servant).
  3. The employee has the choice between being fired and exercising appeal rights, or quitting and forgoing appeal rights in exchange for a “clean record.” Sometimes agencies will incorporate a little time off or attorney fees as an extra incentive to resign. MSPB has a perfect record at upholding agreements like these as long as the agency does not mislead the employee.

A Last Chance agreement, as its name suggests, is negotiated between management and the employee at the time that a decision has been made to fire the employee. Usually, it happens like this:

  1. The supervisor proposes the employee’s removal based on some specific act of misconduct or unacceptable performance.
  2. The employee responds and defends herself or asks for mercy from the deciding official.
  3. Then, the deciding official or someone on his behalf (attorney, human resources specialist, ombudsman … whomever) approaches the employee with the offer. The employee is told that the decision to remove her has been made, but that the deciding official is willing to hold the implementation of that decision in abeyance for some specific period of time: often one or two years. In exchange for not being fired immediately, the employee agrees to whatever the agency can get: promises to perform acceptably, to refrain from future misconduct, attend anger management training, apologize, etc. In addition, he agrees to waive rights to appeal/grieve/complain anything related to the removal action being held in abeyance.
  4. If during the abeyance period the employee violates the Last Chance agreement, the agency is free to remove him immediately based on the previous misconduct that was the basis for the agreement (not based on the misconduct that is the breach). The advantage to the agency if this happens is that.
    • The employee can appeal, but he has the burden of proving he did not breach the agreement. The agency does not have the burden of proving the charged misconduct nor does it have to prove that the agreement was breached.
    • The Douglas Factors are immaterial. The employee has effectively accepted the reasonableness of a removal penalty by entering into the agreement.
    • The Board loves these things. It hardly ever sets them aside based on fraud, mutual mistake, or bad faith. Although these are traditional bases for finding contracts to be void, we can count on one hand the number of times these agreements have been found by MSPB to be invalid.

In one of my favorite Last Chance Agreement removals, the Board upheld the termination of an employee who was on an LCA when the employee breached the no-misconduct part of the agreement by sending a single email referring to a coworker as a “kiss ass.” If you draft an LCA tight and broad, you can characterize almost any act of future misconduct as a breach, acts that would not have to independently warrant removal.

Don’t forget: If you’re dealing with a collective bargaining unit employee, you need to invite the union to any formal discussions you have when negotiating agreements like these. In my practice, I have found it useful to explain Last Rites and Last Chance agreements to union officials before I ever need to use them. A good union rep will do a little research and see the significant advantage for an employee to have these options to a removal. In fact, I’ve even had union officials do a little arm twisting on their own to try to get the CBU employee to understand the advantages of these sorts of deals.

If you need more details on tactics to use and language to employ in agreements like these, be sure to sign up for our next class in the art of the deal (civil service edition – otherwise known as Settlement Week) October 30-November 3 in Washington, DC. [email protected]

EEO Complaints and Last Rites Agreements

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By William Wiley, March 28, 2017

Oh, boy. Another great issue raised by a regular-reader who’s just trying to do the right thing:

Dear FELTG-

I am an L/ER specialist who provides advice and guidance to managers on disciplinary and adverse actions, including removals.  It seems like we put forth a lot of time and effort into removing federal employees who then file MSPB appeals. Then, management ends up settling for a few thousand dollars and a voluntary resignation with the employee.  There is also a misconception, in my opinion, that employees who are behaving badly cannot be touched if they file a claim of discrimination.  Managers seem to be gun shy once an employee claims discrimination.  There has got to be a better way!

And here’s our FELTG response to this excellent issue:

Dear Loyal Reader,

You have raised an issue that highlights a significant change in the business of federal employment law. In our early days under the Civil Service Reform Act of 1978, a successful practitioner was seen as someone who built a good case, then litigated the devil out of it by representing the agency (or union) in deposition, hearing, and appeal, never giving an inch and fighting to the bitter end to establish not only victory, but righteousness. Some went so far as to bully and threaten their opposite party, all while strictly following procedure, with the ultimate goal of eventually being declared the “winner.”

You would have thought we were trying to get a bill through Congress, or something. 🙂

Today, for the serious practitioner in federal employment law, whether Human Resources professional, union official, or attorney, we have come to figure out that we are all better off, and the country the stronger for it, when we resolve workplace disputes without going through litigation. When you consider the resource expenditure that is necessary to defend a management action through EEOC, MSPB, OSC, FLRA, or in arbitration (into six figures for a successful management defense before MSPB), you must admit that something that achieves the same result but costs you less is a better deal for America.

And as every seasoned attorney and Human Resources professional knows, that magical cheap tool, the one that guarantees success every time without the inherent risk of litigation, is called a “Last Chance Agreement” (LCA). I cut my first one in 1979 and helped set another one last fall. In between, I’ve seen hundreds, either personally or in cases on appeal to MSPB where I was Chief Counsel to the Chairman during the ’90s. Here’s how they work:

Step 1.  The supervisor initiates the removal process. Perhaps it’s placing the employee on a Performance Improvement Plan (PIP). Or, maybe it’s a proposed removal for serious or repeated misconduct. MSPB recently reported that only about one in five removals that are initiated ever work their way to a decision by MSPB on appeal. Over at EEOC, maybe 1 in 50 formal complaints ever sees a judge. That’s because smart agency practitioners have learned the benefit of cutting a deal, with the ultimate deal being a Last Rites Agreement.

Step 2.  The practitioner, acting on behalf of the agency, offers the employee something in exchange for the employee’s promise to leave voluntarily. You see, the reason we initiate PIPs and propose removals is to get bad employees out of the workplace. If we can accomplish that goal without litigation, the citizens and their government are the beneficiaries.

Step 3.  If the employee accepts the offer, or through negotiation develops an offer that is acceptable although different from the original offer, the parties draft and sign an agreement. Those of you with the greatest and most amazing textbook in our field, UnCivil Servant, will find a sample format in the back entitled “Agency Supported Job Search Agreement.” The agency wants to be sure that it gives something to the employee in exchange for the employee agreeing to leave voluntarily without an appeal. That exchange of consideration is how a contract is made. Agencies that do not give anything have a void contract, according to both EEOC and MSPB. A common ironclad consideration in a Last Chance Agreement is for the agency to place the employee on administrative leave for some period of time in exchange for the employee quitting.

And that’s it. Effective immediately, reversible only if the employee was confused (or lied to) about some underlying fact…an enforceable contract with low cost and immediate results. Unfortunately, I’ve run into some attendees in our FELTG seminars who never heard of this wonderful accountability tool. I once had an attorney tell me that administrative leave was not adequate consideration to form a binding contract. Grrrr. Apparently that individual did not pay attention in his Contracts class in law school.

Another time, a Human Resources specialist asked why such an agreement was not a “constructive discharge.” I was forgiving of the questioner as she had been in the business only a few months and had not had the opportunity to read the case law or be trained before she came to our seminar. A similar question from someone who claimed to be experienced in our work would give me serious pause. We’ve had case law since the ’60s (originally from the old Claims Court) that finds that it is perfectly legal to give a federal employee a difficult choice to make among distasteful options. A constructive discharge occurs only when the employee is given incorrect information, or no option but to resign at the time the agreement is signed.

Finally, on occasion I have run into an uninformed inexperienced practitioner who for some reason thinks that the only way to deal with a problem employee is through the standard regulations found in 5 CFR 752 or 432. “We’ve always done it that way. Why break with tradition? The old processes have worked before.” When I hear that, I picture the person wearing hundred-year-old clothing, standing on the street corner, grumbling to anyone who will listen about “those newfangled horseless carriages. What’s wrong with a horse and buggy? I don’t really mind how slow they are, or how expensive they are to care for – and stepping around all that horse poop is not as much of a problem as people say it is.”

Bonus inside scoop: EEOC and MSPB LOVE these sorts of agreements. Legally speaking, they will say in public how these resolutions support mutual dealing with each side realizing the value in giving and taking without litigation. Practically speaking, and perhaps not-so-in-public, the good folks at the oversight agencies realize that a complaint or appeal settled without adjudication is one less hearing they have to hold and at least one less decision they have to produce; in other words, one additional chance for them to get home in time to have dinner with the kids or watch The World Series of Cage Fighting. You will not find a case decision in any oversight forum that holds that the offer of a bona fide last chance agreement – one based on fact and with consideration – has been held to be reprisal.

And, Lordy, I hope I never see an email from an agency attorney or Human Resources professional that recommends that a bona fide Last Rites Agreement NOT be offered out of fear that the EEO-complaining-employee will file a reprisal complaint. Legally, that would be what we agency lawyers like to call “per se retaliation.” Euphemistically, that would be what our colleagues who work the other side of the table, the folks who represent employees, like to call “the smoking gun.”

In my experience, after they call “the smoking gun,” they next call the Tesla dealer and say, “I’ll be ordering the upgrade model with ludicrous speed.”

If you are not utilizing Last Rites Agreements in your practice, you are failing to deploy one of the most versatile, valuable and efficient tools we have in the field of federal employment law. If you do not know enough to appreciate their value, read the case law. Attend our seminars. Talk with others who have used them successfully. Buy the UnCivil Servant textbook that walks you through the process. There is no excuse for not understanding how to avoid the death-march of EEO litigation with this alternative.

Besides, eventually you’re going to get awfully tired of stepping around all those smelly old horse droppings.

Best of luck. [email protected]

Case Law Update: When Is an Employee “Regarded As” Disabled Post-ADAAA?

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By Deryn Sumner, March 15, 2017

The Americans With Disabilities Act Amendments Act (ADAAA) became effective on January 1, 2009 and did not apply to cases arising prior to that date.  The internet tells me that in 2009, we were aghast at Balloon Boy’s parents for tricking us into thinking a boy was floating away in a giant balloon, wondering how Tareq and Michaele Salahi managed to sneak into a White House State Dinner, and applauding Captain “Sully” Sullenberger for safely landing a plane on the Hudson River.

So, yeah, it’s been a long time since the ADAAA was enacted, but we are now finally seeing substantive decisions applying it from of the EEOC’s Office of Federal Operations.  A notable recent decision is Elden R. v. Department of Interior, EEOC Appeal No. 0120122672 (February 24, 2017).  The Commission addressed an appeal the complainant filed on June 11, 2012 (while the rest of us were readying for the 2012 Summer Olympics in London, remember those?) and found that his termination in January 2011 was discriminatory because the agency “regarded him” as having a disability.

The agency selected the complainant for a GS-05 Wildlife Refuge Specialist position, which required him to work collateral law enforcement duties.  While serving in the military, the complainant suffered neck and back injuries which prevented him from being able to sit on the floor with his legs straight in front of him and reach his fingers beyond his toes.  He passed his initial physical examination and the physician concluded he could perform the duties of the job.  However, he wasn’t able to successfully complete one part of the Physical Efficiency Battery examination (PEB) that was required in order to attend the Federal Law Enforcement Training Center in Glynco, Georgia.  That one part?  The sit-and-reach portion.

It was recommended that he be allowed to work out three times a week under the agency’s policy allowing certain employees to use work hours for exercise and try the test again in a few weeks. His requests were denied and after he informed his chain of command about his concerns about meeting the sit-and-reach requirements and requested a waiver, he received notification that the agency was going to terminate him from the job.  Notably, during a meeting to discuss the issue prior to his termination, the complainant’s supervisor told him that he was “highly disappointed” that complainant did not reveal his “disability” during his interview for the job.

The complainant filed an EEO complaint (after a brief sojourn to the MSPB where his appeal was dismissed for lack of standing as he was a probationary employee) and alleged that the agency unlawfully perceived him as an individual with a disability when it terminated him.  Citing legislative history, the Commission agreed and took this opportunity to provide a nice summary of the Congressional intent behind the expansion of coverage in the ADAAA: “[T]he ADA Amendments Act broadened the application of the ‘regarded as’ prong of the definition of disability. In doing so, Congress rejected court decisions that had required an individual to establish that a covered entity perceived him or her to have an impairment that substantially limited a major life activity. This provision is designed to restore Congress’s intent to allow individuals to establish coverage under the ‘regarded as’ prong by showing that they were treated adversely because of an impairment, without having to establish the covered entity’s beliefs concerning the severity of the impairment” (internal citations omitted).

As for Elden, the Commission found that he met all of the qualifications for the position except the requirement to “sit and reach,” and as such, he was qualified to hold the position.  The Commission then turned to whether or not there was a job-related and consistent with business necessity reason for Elden to be able to sit and reach, and found nothing in the record about how being able to reach over one’s toes with legs outstretched related to any job function of a Wildlife Refuge Specialist. Noting that the agency had provided waivers to the “sit and reach” requirement for other individuals in substantially similar positions, the Commission found the termination was discriminatory and awarded relief, including reinstatement and back pay from his termination more than six years prior.  [email protected]

[Editor’s Note:  It’s decisions like this that on occasion make me think I am just not smart enough to understand how EEOC approaches legal analysis. The Americans with Disabilities Act defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” Therefore, in my limited brain capacity, to be found to “regard” someone with a disability, it would seem that we need to find an agency action based on a “limitation on a major life activity.” The agency here acted based on this individual’s inability to sit on the floor with legs outstretched, and then reach with his fingers beyond the tips of his toes. If that action is a “major life activity” for any of you readers out there, you are living a much more exciting life than am I. The fact that an uninformed layperson calls a medical limitation a “disability” does not make it a “disability” under law.  I’m just saying …   – Wiley]

Performance Recognition – Worth the Costs?

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By Barbara Haga, March 15, 2017

This month I am continuing the discussion regarding whether performance recognition is a productive part of the performance management process.

Grievances and Reconsideration Requests

For some agencies, it seems that the design of appraisal systems, including in some cases the tying of awards to appraisals, is all about avoiding grievances.  It’s not whether it’s a good program, or accomplishes the goals of performance management, or meets the need for feedback, it’s whether all of the guesswork has been eliminated so that the appraisals can be defended if there are challenges.  Grievances and requests for reconsideration can be a huge drain on agency resources, so trying to avoid them is a reasonable response.

Grievances can run the gamut, from a challenge to one employee’s summary rating to an institutional grievance filed by the union about the entire rating system.  Depending on what your appraisal program and/or grievance system allows, there could be a grievance about an individual element rating in an employee’s appraisal, even though it wouldn’t change the overall rating.  Unless the matter is excluded, comments written in an appraisal may also be grievable.  Add in pay-for-performance and the ante goes way up and is likely to increase the number of grievances, because now paychecks and ultimately annuities are at issue.  If you tie awards directly to the level of appraisal (i.e., everyone rated Level 4 or 5 gets an award but not those rated Level 3), then you are likely to generate grievances because employees want a share of the pie.  The number of places where something could go wrong is mind-boggling.

An Illegal Appraisal System

Let’s take a look at a grievance about appraisals that had far reaching and also costly impact.  You can read about it at http://www.govexec.com/oversight/2007/09/arbitrator-rules-against-sec-pay-for-performance-system/25249/#.WKhpAb8NM3k.email and http://www.govexec.com/pay-benefits/2008/10/sec-union-settle-pay-for-performance-case/27829/#.WKho5xF4C2Y.email  The Securities and Exchange Commission (SEC) implemented a pay-for-performance system in 2003.  The system had 15 pay levels, with up to 31 steps in each level.  An employee with an Outstanding rating could move up three steps in a year, resulting in a 4.5% salary hike.  In impasse negotiations, the Federal Service Impasses Panel allowed SEC to implement because the Panel found that the system “reflects a pay structure that was well-researched, based on best practices from other agencies, meets the agency’s needs, and is comparable to those of other financial regulatory agencies.”  So, how did this well-designed system fall apart?  Apparently, the performance requirements were not specific to the jobs that employees performed.  According to NTEU, who represented the effected employees, the measures of performance were not specific to the jobs performed by the employees and thus employees had little way to know what the supervisors or the review board that gave the increases was looking for.

That was just part of the problem.  The union pointed out that these not-so-clear performance requirements had an adverse impact on African-American employees and employees 40 or older, who were statistically rated lower than their counterparts.  The matter was taken to arbitration.  Apparently, the agency was not able to substantiate that the ratings were legitimate, and the arbitrator ruled in 2007 that the system was illegal because it was discriminatory.  The end result was an award of $2.7 million that was to be divided among the African-American employees and older workers who were affected by the discrimination.

In addition to the settlement to correct the past discrimination, the SEC and NTEU came to an agreement about new performance criteria that they designed together.  The new system was based on private sector benchmarks, a review of each job to determine the measures that fit each one, and training for managers.  [Note:  I thought the content of performance appraisals was not subject to negotiation, but then I get confused some times.  It happens when you are old enough to remember what the huge issues were when the Civil Service Reform Act of 1978 was initially implemented.  See National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA No. 119 (1980) for starters.]

Anyway, negotiable or not, the agency and the union agreed on specific performance measures.  I am reading that to mean that the measures took out some of the subjectivity and replaced it with more objective measures.  It’s common that unions want that.  They generally like to see a system that limits the amount of discretion that the manager has – and objective measures do that.

Creating Measures that Remove Subjectivity

My union friends are probably not going to like this part of the column.  (And, yes, I do have some union friends).  While I understand what their interests are, I am concerned about what I consider a watering down of performance measures.  In organizations where unions tried to limit the judgment being applied and the discretion that the supervisor had to assess the work and replaced that with more “objective” measures (like SMART measures), the agency gave up assessing the higher level skills.

What does that look like?  Instead of measuring by things like “applies appropriate techniques within accepted guidelines in dealing with complex situations, employs technical knowledge and strong skills in persuasion to convince recipients of reviews/audits of the need for changes to obtain their commitment to make changes, or applies judgment in interpreting guidelines and advances reasonable alternatives to meet goals of the program” the measures become more like “completes 90% of audits on time and without the need for significant technical changes.  Three or fewer minor errors in an audit report are considered acceptable.  Any delays in meeting assigned deadlines must be approved in advance by the supervisor.”

Why would an organization want to measure by objective standards?  It makes it easier to defend the ratings, as apparently the SEC was unable to do.  And, when the awards are linked to the rating level without any independent recommendation whether an award is warranted, then more grief of explaining why one received an award and another didn’t is eliminated.  But, do awards in such systems really motivate people to do more and do better?  I don’t think so.  What I have seen is that it just becomes some extra dollars tied to the appraisal.  In the days when I started my career, performance awards were handed out in ceremonies in front of coworkers.  Now, in some organizations you just get your copy of the SF-50 with no fanfare – and sometimes you are given that SF-50 in the closet and sworn to secrecy in case anyone asks what you got.  We have come a long way, Baby, but I think we went the wrong way.