Don’t Be Suspicious: Remember the Reasonable Suspicion Standard

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By Deryn Sumner, February 15, 2017

Federal employees have a very short statute of limitations to initiate EEO contact: the employee must make contact with an EEO counselor within 45 days from the date of the act thought to be discriminatory.

Luckily there are exceptions that prevent my job from being farmed out to robots.  One of those exceptions occurs when the employee forms a “reasonable suspicion” of discrimination after the 45 day window has elapsed.  Yes, the actual incident occurred past the 45 day timeframe, but the employee did not reasonably suspect that discrimination was afoot until afterwards.  Sometimes, when reviewing whether to accept or dismiss complaints for investigation, EEO specialists may not properly consider whether there’s a basis to extend the deadline to make EEO contact.

The Commission recently addressed such an instance in Leisa C. v. Department of Veterans Affairs, EEOC  No. 0120170391 (January 27, 2017).  There, the complainant made EEO contact on May 2, 2016 alleging that her non-selection for a position as a Nurse Practitioner was motivated by her age and participation in prior EEO activity.  The agency dismissed the formal complaint, noting that complainant learned of her non-selection on November 30, 2015 when she received an email informing her of the non-selection and thus her May 2, 2016 contact was untimely.

The complainant appealed and argued that although she knew of the non-selection back in November 2015, she only suspected discrimination when she learned the identity of the selectee in April 2016 after requesting, and not receiving an explanation for her non-selection several times.  Further, the complainant argued that she only formed a reasonable suspicion of retaliation “after hearing an Agency representative’s remarks in the context of mediation on June 28, 2016.”

The Commission determined that dismissal of the formal complaint was inappropriate because the agency delayed in providing the complainant an explanation for 4.5 months and she did not reasonably suspect discrimination until after receiving the explanation.

A word of caution to the complainant: if the claim of retaliation is based on representations made during mediation, you’re most likely out of luck getting that admitted as evidence.  But at least you can proceed with your case now.

And I will give credit where it is due.  Assuming the dates in the decision are correct, the EEOC addressed and remanded this complaint for processing relatively quickly.  The agency issued a final decision dismissing the complaint on September 22, 2016, and the Commission considered an appeal and issued a decision just about four months later, on January 27, 2017.  [email protected]

Is Performance Recognition Necessary or Beneficial?

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By Barbara Haga, February 15, 2017

I am going to jump out on a limb here and suggest that recognition tied to performance appraisals is at best benign and not achieving what it is intended to do, and possibly a detriment to performance management in Federal agencies.  For this piece, I am talking about cash awards and Quality Step Increases (QSIs). I would ask each reader to reflect on these questions.  Have you ever changed the amount of effort you put into your work or the techniques you used to complete your work based on the hope of getting some type of performance recognition?  If you got an award, was there a spike in your performance because you were pleased to be recognized or grateful for the extra money?  Did you do something extra beyond what you were normally going to do because you were recognized?  Did that spike in your performance last?

Intrinsic and Extrinsic Motivation

Taking a hugely oversimplified view of what motivates people, I would define intrinsic and extrinsic motivation for employees as follows.   Intrinsic motivation is what comes from inside – how you feel about the work, how it aligns with your values, whether it achieves an end you believe is worthwhile, etc.  Extrinsic motivation is external, in this case largely coming from your employer or possibly your peers.  These things encourage you to achieve in order to be rewarded or to avoid a negative consequence.  It could be a cash award, recognition in front of your peers, a promotion, etc.

I think many of us who work in the employee relations business do it because we believe that what we are doing is important and that the organization as a whole is better for it, if we do our jobs well.  In my experience, I have found that most HR practitioners in this line of work are more motivated by the intrinsic rather than the extrinsic factors.

I have been asked many times about why NASA ranks so highly in surveys like the Best Places to Work.  I believe it is because of intrinsic motivation.  Employees in the science and engineering disciplines grew up wanting to do this kind of work, wanting to be part of NASA.  In many areas, they are working on cutting edge science and making contributions that change the world.  You can’t buy that kind of motivation – it is intrinsic. It is also contagious.  Even the folks in contracting and budget seem to align themselves very easily with that view. Other agencies want to copy what NASA does to raise their scores on those surveys.  I don’t think it is what NASA does but rather who NASA employs.  I would suspect that if you looked at places like NIH, the CDC, and the EPA you would find a similar level of intrinsic motivation.  I am not sure that an agency can accomplish with external motivators what the employee doesn’t already bring with them.

Are Performance Awards Effective Extrinsic Motivators

Here’s a scary thought.  Should an agency really want to buy a person’s best performance?  If you are a manager, is that the person you want?  Or, do you want the person who sees the work as a challenge or that the goal is something valuable to the organization?  Would you feel more comfortable with the one who takes the assignment because it is important and will ensure that management’s interests are protected or an employee who says, “Yes, I’ll volunteer to do that training session, or I’ll take that grievance that covers fifty individual employees, or I’ll put together the template for adverse action letters on that charge we’ve had issues defending – if you pay me a little extra”?

I am sad to say that I don’t think performance awards are effective motivators.  First of all, in some organizations the awards are virtually automatic and everyone rated Fully Successful or higher gets one.  So, an employee comes to work and does what is expected and is rewarded.  I have worked in some places where the question wasn’t whether recognition would be granted, since essentially everyone got something, but rather when the payments were going to be processed.  There really wasn’t a question whether an employee would get one; people were already planning on the payments.

Because some unions have negotiated awards and/or award amounts, they have essentially become almost an entitlement.  I remember reading at the time of the 2013 furloughs that the IRS wanted to eliminate award payments in order to reduce the number of furlough days, but the union wouldn’t agree to eliminate them.  NTEU Chapter 67 (http://www.nteu67.org/) has a post on their website dated 11/22/2016 that echoes that thinking which is apparently still alive and well.  It says, “While you were working hard, NTEU was fighting hard to make sure you received your performance award.  In this tough budget environment, the IRS tried to cut the awards program, but we fought successfully to keep it.”  So, in the union’s view it is a good answer that in order to deal with budget constraints, it isn’t an option to reduce or eliminate award payments?

Secondly, we have that fundamental problem with what the employee must do to achieve one.  Is there a clear explanation of what is expected at various levels of performance in order to be recognized?  Or, are managers paraphrasing the famous definition of pornography and telling employees, “I can’t define what it takes to be Outstanding or Superior, but I’ll know it when I see it.” How are award decisions made in such an organization?  Is it favoritism as sometimes employees suggest, or is it the “halo” effect – those who have been viewed as achieving significant results in the past are always viewed that way?

Now, back to the questions I posed at the beginning.  How many of you were inspired to reach new levels of performance by a performance award you’ve received?  Is your organization more affective in meeting agency goals because you have an effective performance recognition program?  What I have observed in many organizations is that it may be a nice “thank you” but it is not an effective extrinsic motivator.

More on this topic next time.

[Editor’s Note: As the FELTG staff psychologist, I applauded Barbara’s common sense conclusions and add that they are routinely backed up by the scientists who study motivation. If you read the literature on awards as motivators, you find three bottom lines:

  • Annual awards programs such as those found routinely in the federal government have never (as in “not ever”) been proven to motivate increased performance.
  • In contrast, there is decent evidence that piecemeal awards (sometimes referred to as “performance contingency reward systems” by those trying to sound impressive) do indeed act to motive increased production. For example, workers who dig ditches who are paid by the foot as compared to being paid by the hour dig longer trenches.
  • However, piecemeal awards DO NOT seem to motivate increased quality or creativity. Also, individuals who have been given piecemeal awards for some period of time, and then who are denied future piecemeal awards, reduce their production levels below those employees who never received piecemeal awards.

Whether we like it or not, awarding federal employees to improve the quality of their work is not supported by science. And, it’s expensive.]

So, the Union Wants a Bunch of Information?

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By William Wiley, February 15, 2017

Questions, we get questions. Not a lot of questions are about union rights and corresponding management obligations, and this one is a good one:

From an inquiring mind among the FELTG newsletter readership:

Dear FELTG brilliant people. Here’s an LR Hypothetical for you:

The union makes an information request for certain emails from a recent former employee. The union says that it needs the emails because it needs to find out whether to file a grievance about the former employee putting a current bargaining unit employee in a reprisal environment.  The emails allegedly contain derogatory opinions expressed by the former employee, about the current employee, to the current employee’s clients.  Management says it was aware of the emails, and that it would release the emails if it still had them. However, the only component of the agency with access to the emails is the Information Technology staff, and the attorneys advising IT act like the emails are super-secret. Before IT will give management access to the emails so that management can respond to the union, the IT staff and its advisors want the union to demonstrate a “particularized need” for the information. How would you rule about the establishment of a particularized need?

Thanks, FELTG!

And now our FELTG fantastic response:

Dear Desperate Reader:

Thanks for your hypothetical question. As usual, we start with the law:

5 USC Section 7114:

(b)       The duty of an agency and a union to negotiate in good faith under subsection (a) of this section shall include the obligation —

…

(4)       in the case of an agency, to furnish to the union involved, or its authorized representative, upon request and, to the extent not prohibited by law, data –

  • Which is normally maintained by the agency in the regular course of business. It is management’s burden to establish that the material is not normally maintained or that its production would be unreasonably burdensome.

If you don’t have access to the emails, the information is not “normally maintained.” Therefore, you don’t have to provide it. See Navy and AFGE, 26 FLRA 324 (1987) (If the data or information does not exist, it need not be produced, but management should inform the union of that fact).

However, if the data exists anywhere within the agency (e.g., the bowels of IT), then you must cough it up if there is a particularized need. A union demonstrates a particularized need, in general, if it tells the agency:

  • Why it wants the information, and
  • What it intends to do with the information.

And the information is “within the scope of collective bargaining”:

  • Contract administration
  • Grievance and ULP processing
  • Employee representation

FAA, 55 FLRA 254 (1999)

The union must justify a request as to:

  • Geography
  • Time frame (e.g., “for the past 4 years”)

U.S. Customs, New Orleans, 53 FLRA 789 (1997)

In your case, the union has said that it wants the emails to consider whether to file a grievance relative to a particular employee whose rights might have been violated in a particular way. Can’t get much more particular than that.

If you don’t produce the emails, I’d say you have yourself a nice little ULP. But what do we know? If you deny the union’s request and they file a ULP, by the time it works its way through the system, Congress may have outlawed unions in federal agencies anyway.

Hope this helps. Take care- [email protected]

Commissioner Lipnic Named Acting Chair of EEOC

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By Deryn Sumner, February 15, 2017

As FELTG has kept you all apprised, the MSPB currently lacks a quorum, which means that it can’t actually issue any decisions on pending petitions for review.  Luckily the halls of the EEOC are not so empty.  The President appointed EEOC Commissioner Victoria A. Lipnic to serve as the Acting Chair of the EEOC on January 25, 2017.  Chair Lipnic has been a Commissioner with the EEOC since 2010 and is serving her second term which ends on July 1, 2020.

Prior to joining the Commission, Chair Lipnic worked as the U.S. Assistant Secretary of Labor for Employment Standards, as well as a committee staffer for the U.S. House of Representative’s Committee on Education and the Workforce.  She previously worked for the Washington, D.C. law office of Seyfarth Shaw LLP, as well as in-house counsel working on U.S. Postal Service cases.

The other currently-appointed Commissioners include Chai Feldblum, who has served as a Commissioner since 2010, Jenny Yang, who served as the Chair of the EEOC from September 1, 2014 through January 22, 2017, and Charlotte Burrows, who has been a Commissioner since December 3, 2014.  There is one vacancy on the Commission, and no one is currently serving as the General Counsel.

Presidents appoint the commissioners, who must be confirmed by the Senate to serve.  No more than three commissioners can be members of the same political party.  Chair Lipnic, unsurprisingly, served as a Republican Commissioner prior to her appointment as the Chair.

Notably, Chair Lipnic served as co-chair of the Select Task Force on the Study of Harassment in the Workforce, which I talked about a few months ago, along with Commissioner Feldblum.  According to a few pieces I read about her appointment, for which I won’t provide links, lest I be caught unaware perpetuating “fake news,” Chair Lipnic is expected to focus on age discrimination claims, equal pay act claims, and ways by which employers can create more jobs.  [email protected]

EEOC Publishes Quality Practices to Improve Federal Sector Complaints Processing

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By Deryn Sumner, February 15, 2017

For years, those of us here at FELTG have not been shy about identifying the ways in which the EEOC can improve its federal sector case processing.  Cases can languish for years before getting assigned to administrative judges. And even after one gets assigned, it can take a few more years to get a ruling on a pending motion for summary judgment, scheduled for a hearing, or receive a decision issued after a hearing.  Sometimes, administrative judges issue decisions relying on incorrect application of the law, or award remedies not allowed by the law, such as punitive damages or compensatory damages in age discrimination cases.  Appeals to the EEOC’s Office of Federal Operations can sit for years and inquiries about when a party can expect to receive a decision all receive the same boilerplate letter in response that essentially says, “we have a lot of appeals to deal with and your case is one of them, but we can provide no timeframe by which you can expect to receive a decision.”  I am not exaggerating when I share that a case I worked on as a law clerk while in law school is still pending a decision on an appeal of remedies before the Office of Federal Operations. Further, I am personally aware of decisions issued by the Office of Federal Operations that contained clear misstatements of the factual record.

So given all that, it was heartening to see the EEOC acknowledge that federal sector case processing can improve.  On January 17, 2017, the EEOC announced the publication of Federal Sector Quality Practices.  In the Commission’s own words, the purpose is “to address the quality of the agency’s hearings and appeals in federal employee employment discrimination complaints.”  Given this, I was pretty excited to read the plan.  I allowed myself to dream that this publication would talk about increased refresher training for administrative judges to keep them up-to-date in developments in the law.  Perhaps the EEOC would be rolling out an e-file system like the one the MSPB has used for years?  Maybe the Office of Federal Operations would, as Ernie Hadley has preached for years, start issuing summary decisions on clear-cut cases to speed up the process?  But much like a Falcons fan on the night of the Super Bowl, my dreams were dashed.

The EEOC’s Federal Sector Quality Practices for Effective Hearings, Appeals and Oversight does lay out quality practices for the hearing stage, appeals, and oversight of federal agencies in EEO programs, but there’s nothing groundbreaking in the actual practices laid out.  You can find the Quality Practices here: https://www.eeoc.gov/federal/quality-practices.cfm

  • Administrative judges should oversee discovery and grant summary judgment when appropriate.
  • Administrative judges should also schedule hearings, make “accurate” rulings on evidentiary issues during the hearing, and issue a decision afterwards.
  • Appeals should be acknowledged, Commission staff should follow up on obtaining the record if the agency doesn’t provide it, and decisions on appeal should be accurate and supported by the record.

Sigh.  Yes, these are all good things, but this doesn’t represent much of anything in terms of new developments.  The most notable thing I found in my review was the codification of the requirement to hold initial status conferences that many administrative judges have been holding for years under the EEOC’s Pilot Program.  I do appreciate the efforts by the EEOC to focus on improvements in federal sector case processing; I just wish it went a little farther to set goalposts for change.  [email protected]

An Ugly Trend in Charge-Framing

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By William Wiley, February 15, 2017

In science, we say that if it only happened once, it could be an accident; if it has happened twice, perhaps it’s a coincidence; but if it has happened three times, we’re onto a trend. I’m afraid we’ve come to a point in MSPB mitigation law that in our training programs here at FELTG, we are going to declare a sad trend. Here’s the background.

There have been three major guiding principles in the world of charge-framing that we’ve taught for years, and they have been successful in many removals involving misconduct:

  1. Affirm all charges, get penalty deference – When all of the agency’s charges are sustained, but some of the underlying specifications are not sustained, the agency’s penalty determination is entitled to deference.  Payne v. USPS, 72 MSPR 646 (1996). Agencies love penalty deference. That means that a Board member can look at an agency’s removal penalty, conclude that if she were the deciding official, she would not have fired the guy, but still uphold the removal as within the bounds of reasonableness, thereby deferring to the agency’s decision. Without penalty deference, a Board member is more empowered and likely to select her own “reasonable” penalty.
  2. Affirm a single specification, affirm the charge – Where more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge.  Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990), Hicks v. Treasury, 62 MSPR 71 (1994).
  3. Determine a penalty even if all charges are not affirmed – When the Board sustains fewer than all of the agency’s charges, the Board may mitigate the agency’s penalty to the maximum reasonable penalty so long as the agency has not indicated in either its final decision or in proceedings before the Board that it desires that a lesser penalty not be imposed on fewer charges.  Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999).

Applying these three principles to the drafting of discipline documents, FELTG (along with others with expertise in this field) has been recommending that agencies:

  • Draft as few charges as possible, thereby reducing the chance that one of them will be not affirmed, thereby losing penalty deference.
  • List a bunch of specifications because you only need one to support the charge. If some are not affirmed on appeal, well, so what.
  • Have the decision letter say something like, “Although I have affirmed all three charges, any one of the charges, standing alone, would warrant your removal.” That Lachance-v-Devall-principle covers you on appeal if a charge or two is not affirmed.

In general, we continue to believe that this approach significantly reduces the agency’s chances of having its removal mitigated to a suspension. Unfortunately, we now must acknowledge that the bottom line is sometimes different from where these principles would otherwise take us. For example, in a decision last year in which the agency brought three charges, lost 10 of the 20 specifications, but managed to have at least one specification affirmed for each charge, the Board still mitigated the removal and put the employee back to work.  Brown v. DHS, SF-0752-14-0816-I-1 (2016)(NP). In a case this year, the agency proved two of three charges with four of eight specifications being affirmed. With a charge lost, we can expect mitigation. However, to his credit, the deciding official said he would have removed the employee even without the failed charge. We should see some Lachance-v-Devall deference because all the charges that matter were affirmed on appeal. Well, that didn’t happen. In spite of the deciding official’s statement, the Board mitigated the removal and returned the employee to duty. Leonard v. DVA, CH-0752-14-0301-I-3 (2017)(NP).

So where does this leave us? I’m afraid it leaves us with the conclusion that the Board members sometimes are going to decide the proper penalty, regardless of precedence dating back to Douglas that says it is the agency’s officials who should be selecting the penalty, not the lawyers at MSPB.

Having worked inside the Board for nearly a decade, I fully understand the temptation to step in and decide that a removal is too severe. It’s a lot easier to have sympathy when you are removed from the front lines where these decisions are being made. It’s hard to sit in your big Presidentially-Appointed Senate-Confirmed office and concede that you’re really not in the best position to determine a penalty. But that’s what Douglas says you’ll do.

As a real-life example of how misplaced it is for the Board to determine a penalty, look to Brown. There, the agency removed the employee from her supervisory position. In mitigation, the Board said she should have been demoted to a lower-graded position instead WITHOUT ANY EVIDENCE WHATSOEVER AS TO WHETHER THE AGENCY HAD NEED FOR A LOWER-GRADED POSITION.

Here’s an option the Board should try in cases like these, where a number of specifications and/or charges start to fall out on appeal. Once the judge reaches a conclusion that removal might not be warranted after considering all the evidence, the judge could remand the case to the agency with an order that says something like this:

The agency has brought three charges in this case. Each charge is supported by three specifications. It is my determination that Charge One fails in its entirety, Specification C of Charge Two fails, and Specification B of Charge Three fails. Based on the remaining affirmed charges and specifications, the agency has seven days from today to reconsider its penalty determination and submit argument in support of its new determination. Once the agency has reached a new penalty determination, the appellant will have seven days to respond. As the record is closed, I will take no further evidence.

There’s a new administration in town. How about we try out something new before we lose our civil service to history? [email protected]

Too Much Adjudication

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By William Wiley, February 7, 2017

As many of you readers know, here at FELTG in addition to providing open-enrollment, webinar and onsite training, we also have a number of agency legal clients to whom we provide advice and representation regarding employee conduct and performance problems. Recently, we were reviewing the judge’s decision in an unacceptable performance removal case which we had helped the agency construct. Claims of discrimination, unreasonably short PIP, hostile work environment based on age … the usual sorts of appellant claims. And of course, the claims all failed and the removal was upheld. Unacceptable performance actions are soooo easy IF you know what you’re doing.

But enough horn tooting.

The judge in this case did something that we see all too often. It seems innocuous, but it is bad for the overall jurisprudence in federal employment law. Part of the appellant’s argument that the removal was wrong was that his supervisor never counseled him prior to the PIP that his performance was unacceptable. As every graduate of our FELTG MSPB Law Week and UnCivil Servant seminars knows, there are four (and only four) requirements for firing a poor performer:

  1. The agency’s appraisal system has been approved by OPM.
  2. The supervisor has informed the employee of the critical elements of acceptable performance.
  3. The employee was PIPed after demonstrating unacceptable performance.
  4. At its conclusion, the supervisor determined that the employee’s performance was Unacceptable in at least one critical element during the PIP.

5 CFR 432.104, Belcher v. Air Force, 82 MSPR 230 (1999), and a million other cases.

Unfortunately, the judge in our case misread the regulation and the case law and added a fifth requirement: that the employee be warned PRIOR TO THE PIP that his performance was unacceptable.  We’ve learned here at FELTG, when we go through the steps to removing a poor performer that some supervisors cannot believe that a supervisor can PIP an employee without prior warning of poor performance. It just doesn’t seem right to them. Some will argue that a “good” supervisor gives constant feedback to an employee so that a PIP implementation will come as no surprise.

Well, isn’t that just delightful. Maybe indeed a “good” supervisor should give constant feedback. Maybe there should be a requirement that employees be warned about bad performance before the initiation of a PIP. But that’s not the law. Congress in 1978 did not say that a warning was necessary; therefore, it is not. Oh, if you want to warn, if you think it’s good supervision to do so, have at it. Or, get yourself elected to Congress and amend the law. Just remember: all a PIP does is say to the employee, “Do your darned job.” Should you really have to warn an employee that he will no longer have a job if he doesn’t do his job? We leave that up to your good management sense to answer that question for yourself.

The problem in this case is that by

  1. Creating a requirement not found in law, and then
  2. Adjudicating whether this “alternative” requirement indeed is present in the case,
  3. An unsophisticated reader might conclude that in the next case, the agency had better satisfy this “alternative” requirement.

Folks. Our adjudicators should adjudicate the law. In this decision, instead of adjudicating the facts of the case, the judge should have said:

The appellant raises the claim that he was not warned of his poor performance prior to initiation of the PIP. As there is no requirement for a pre-PIP warning, I will not consider this claim further.

As Supreme-Court-Nominee Neil Gorsuch recently said, “A judge who likes every outcome he reaches is very likely a bad judge…” Perhaps a pre-PIP warning is a good idea. However, until Congress says it is, it’s not a requirement.  Decisions that mislead by adjudicating issues that are not really issues are bad for our business. [email protected]

What is This Ominous Picture All About?

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By William Wiley, January 31, 2017

No, this is not one of the inaugural crowd photos that was deleted from the National Park Service website. It is a photo of the big celebration on the Mall a couple weeks ago to celebrate the 38th anniversary of the effective date of the Civil Service Reform Act of 1978. Were you there? Well, although no one else was either, we here at FELTG certainly were (hey, somebody’s taking that picture) because we believe in the importance of federal workers and an efficient accountable government workforce. Plus, we never pass up an opportunity to celebrate anything if food and drink are involved. Be sure to mark your calendars for next year so that you, too, can participate in the big celebration.

Of course, next year the celebration may be even smaller than this picture shows we had this year. Why, you ask? Well, if you have been anywhere other than locked in the bowels of the Mount Weather underground emergency operations center, you will have heard by now that the new administration has declared a hiring freeze for large swaths of the federal government – covering some organizations, excluding others – with Congress considering bills to include/exclude their own favorite agencies.

If you’ve been around for previous hiring freezes, you know that they are a lot like other mistakes in judgment that one might exercise. When something especially good happens to you, for many of us it sounds like a good time to celebrate by having an extra glass or three of a favorite adult libation. Of course, the next morning we wake up and realize that tying one on in retrospect probably wasn’t the smartest thing we could have done the night before. Same result with a hiring freeze. It’s easy to declare one and it sounds like a good way to improve government by reducing the payroll, but in reality, the morning-after hangover tells us that there was probably a better way to get to the same result.

We all know how a hiring freeze works. When a person quits his government job, the frozen agency is not allowed to replace the employee one-for-one. Sometimes there’s a ratio of allowed replacements; sometimes none are allowed at all. According to a recent article in the Washington Post, about 10% of the federal workforce leaves government each year, almost all doing so voluntarily. We don’t have statistics regarding where they go next, but it would seem logical that those who do not retire move on to other jobs in the private sector.

Stay with me as we climb this logic tree. For the sake of having easy numbers, let’s say that 10 out of 100 federal employees (10% of the federal workforce) are toxic; e.g., are bad employees who are not earning their pay check. In a non-freeze year, 10 employees would quit, 10 new employees would be hired, and the percentage of bad employees would stay at 10%.

Now, let’s look at a freeze year. I think it’s fair to say that comparing great employees to toxic workers, the good employees are more likely to leave government than are the weak employees. Good employees get better offers; bad employees often know they are lucky to have a well-paying government job. The good leave. The bad stay put. Again, using easy numbers for illustration, if 10 employees leave the fed during a hiring freeze and are not replaced, we go from 10 bad employees out of 100 to 10 out of 90. That means that now 11% of the civil service is composed of bad employees. If we lose another 10 good employees the following freeze year, we now have 10 toxic employees for every 80 good employees, a bad-to-good ratio of 12.5%. And so on, and so on. Use your own numbers, time frames, and ratios if you prefer, but one thing is clear. If you accept the premise that good employees are more likely to leave government than are bad employees, eventually you will have a federal workforce with a higher percentage of non-performing employees than you would without a hiring freeze.

That’s what I call an unwise hangover.

Another aspect of a hiring freeze that will resonate with readers who have attended any of Deb’s dynamite EEO law seminars regarding the accommodation of employees with disabilities. As all FELTG-trained practitioners know, when working with a disabled employee, an agency is first required to try to modify the employee’s current position so that she can perform its essential duties. If that is not possible, the disabled employee has two other entitlements. In priority order, they are:

  1. Placement into a vacant position for which the employee is qualified, at the same grade anywhere one is available within the agency.
  2. Placement into a vacant position for which the employee is qualified and for which the agency is recruiting at a lower grade.

With a hiring freeze, there are no vacant positions available at any grade. Therefore, the only option for the agency when confronted with a disabled employee who cannot perform an essential job function is removal. The two employee entitlements above become meaningless.

There may well be good reasons for a hiring freeze. Even so, there are also bad outcomes that result from a hiring freeze. One would hope that the decision to impose a freeze is reached only after serious consideration of the morning-after. [email protected]

A Message for DHS and Other Suspenseful Agencies

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By William Wiley, January 24, 2017

While reviewing Board decisions that closed out 2016, I ran across a couple of Opinions and Orders over at DHS that were issued on the same day:

  • 45-day suspension: Figueroa v. DHS, NY-0752-14-0203-I-1 (December 22, 2016)(NP)
  • 30-day suspension: Flournoy v. DHS, SF-0752-16-0411-I-1 (December 22, 2016)(NP)

DHS won both appeals with the Board affirming each suspension. Nothing to learn from MSPB’s analysis of the penalty and the evidence supporting charges. So why pay attention to these two actions? Well, for one simple reason:

Why, oh why, did DHS implement these two long suspensions rather than shorter suspensions that would not be within MSPB’s jurisdiction (i.e., 14-day suspensions)?

No agency in its right mind wants to have to defend a disciplinary action before the Board if it does not have to. GAO estimates that an agency defense at MSPB costs the government about $100,000 even if successful; more if the appeal is lost. The agency retains the unilateral right to set the length of a suspension. Why would it ever suspend an employee for more than 14 days and have to defend itself before MSPB when it could just as easily suspend for fewer than 14 days and at worst have to defend itself before an arbitrator, half of whose fee is paid by the union and where the grievant doesn’t have rights to discovery? In addition, if an agency suspends an employee for, say, 45 days, that’s 45 days that it is deprived of the employee’s services, causing coworkers to have to carry an extra load for the duration of the suspension. Given the loss of productivity in a long suspension, the significant resources required to defend in a Board appeal, and the rights that Board appellants have to subpoena documents, conduct depositions of agency managers, and utilize all the other tools of discovery not available in arbitration, why ever do a long suspension?

One could argue that a longer suspension is more likely to correct behavior than a shorter one. Well, one who argues that is doing so without any support in research (facts may not restrain some politicians, but they critical to those among us with a reasoned approach to life). There have never been any studies published in the history of the civil service that support the conclusion that longer suspensions are stronger motivators of correct workplace behavior. So this is not a good reason.

Or, one could argue that the employee “deserves” a longer suspension because of what he did. If he deserves a longer suspension, he probably deserves to be fired. Besides, we don’t discipline to punish for the sake of punishment. We discipline to correct behavior. Ours is not a system based on retribution.

Or, perhaps there’s a concern that the Board will find a removal to be an unreasonable penalty, but a long suspension to be within the bounds of reason. The agency might be trying to avoid a penalty mitigation on appeal by implementing a suspension rather than a removal. Although this rationale has more appeal than the first two, it still fails on analysis:

  1. There is an exceedingly fine line between an act of misconduct that warrants removal and an act of misconduct that warrants a 45-day suspension. Unfortunately, we don’t really know where that line is until at least two of the Board members agree where it should be. Maybe it’s time in the civil service to roll the dice a bit more. Hey, if Congress is going to beat us up for not firing enough people, at least if you have to take a mitigation of a removal to a suspension on appeal to the Board, you can blame MSPB instead of your agency. Who knows; if you do that maybe The Hill will pass some special laws to get your agency out from under those mean old Board members. Avoiding blame is an important part of political life, you might have noticed.
  1. Think strategically like a gambler:
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the employee staying fired, you have one less bad employee to worry about.
  • If you remove the guy instead of suspending him, if your roll of the Douglas-dice results in the penalty being mitigated to a suspension, you’re out maybe 100 days of back pay and perhaps some attorney fees.

Is the chance of getting rid of a bad employee permanently worth the risk of having to pay out maybe $25,000 to $50,000 if the removal happens to be mitigated on appeal? Thank goodness that’s not a decision that those of who claim to be advisors have to make. In my career, I’ve certainly run into senior managers who would have happily risked that amount to get rid of an unproductive toxic individual.

Whether you work at DHS or some other agency, if you’re still looking for a New Year’s resolution, make it to avoid long suspensions. If the dude doesn’t deserve to be fired, suspend him for no more than 14 days. If he indeed deserves more than a 14-day suspension, fire him. In the long haul, you’ll be the happier for it.

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If it’s Good Enough for College Football Players…

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By William Wiley, January 18, 2017

If you watched many of the hundreds of college football bowl games recently, you might have noticed something I’ve not seen before. Apparently, there were at least a couple of senior superstars who chose not to play in their team’s bowl game to protect themselves from potential injury that would have reduced their respective values in the upcoming drafts for the pro teams. In other words, they sacrificed the benefit they would have provided to their team in the bowl for their own personal reasons.

There was banter among the talking head commentators as to whether such a self-centered non-team selfish decision was “good” or “bad,” whatever those relative terms mean in the world of college sports. “What about team spirit?” some said. “If it hadn’t been for his teammates and coaches, they guy might not even be going in the pro draft. He owes them.” Others took a different path. “He’s got to look out for himself. There are millions of dollars at stake, perhaps even an entire pro career. He’d be crazy to put that at risk for the sake of a team he’s about to leave.”

My vote count certainly isn’t scientific, perhaps clouded by a bit of guacamole and light beer, but I think that I counted more commentators opting for the “take care of yourself” approach over the “take care of the team that brought you here” option. It seems those former pro players who announce the college games learned the hard way that taking care of Number One should be a player’s Number One priority. The Spock/Kirk-view that “the needs of the many outweigh the needs of the one” is mainly for science fiction.

Apparently, the now-former Chairman of MSPB shares the opinion of the majority of the sports commentators. As you long-time readers of this here newsletter know, our profession has been concerned about the impending end of the Board Chairman’s appointment. MSPB is a three-membered board. Currently, it has a position that has been vacant for well over a year, leaving just two members. The good news is that even with only two members, MSPB has been able to issue final opinions and orders because it has a quorum. However, with only one member, the Board’s judges can continue to do their work, but MSPB cannot issue final orders without a quorum of Board members.

And as of January 7, we no longer have a quorum at MSPB. Effective that week, Chairman Grundmann cast her last vote as a Board member, then quit. Her term was set to expire on March 1, and most Board watchers expected her to serve to that date, as had her predecessors. However, Ms Grundmann decided to depart before the end of her term, leaving the Board unable to issue any final orders until President Trump’s replacement nominee is confirmed by the Senate.

Though unlikely given the notorious confirmation process, it is conceivable that President Trump could have a replacement Chairman ready to take over soon after March 1. If that were to occur and had Ms Grundmann served out her term, the no-quorum period of no-votes at MSPB might have been short if at all existent. Given the former-Chairman’s early departure, now the civil service is guaranteed a period of several weeks of an inoperative MSPB no matter how quickly the President and Senate work to appoint new members. In 2015, the Board issued about 60 final decisions per week. If it were at the same pace for this year, that would equate to about 300-350 final orders that could have been issued that will not be issued.

I leave it up to you, our wonderful readers, to decide if that’s “good” or “bad.” Here at FELTG, we certainly do not claim to know nearly as much about teamwork as do those guys who announced the bowl games, and we take no position on the former Chairman’s personal decision. If there is a fault here, it is that Congress did not foresee that Board members will be making personal career decisions, and that there should be a statutory mechanism in place to prevent the lights being turned off at MSPB (or FLRA or EEOC or NLRB) headquarters when something like this occurs. Officially, we wish Ms Grundmann the best in the future, wherever that might take her. People are entitled to make personal career decisions and to determine the value of teamwork.

At the same time, we feel sadness for those appellants and agencies represented in those 300 or so appeals who will have to wait extra weeks or months for a final decision in their cases. Football teams have backup players to replace those who choose not to play. As Congress assesses the future of oversight agencies like the Board, hopefully it will give consideration to developing a system to prevent this sort of delay from occurring again. Our country is too important to allow civil service accountability to be delayed when an appointee’s personal career decisions diminish the ability of the team to continue to function. [email protected]