EEOC Seeks Public Input on Revising Enforcement Guidance on Harassment Complaints

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By Deryn Sumner, January 18, 2017

Following up on the report issued in 2016 by the EEOC’s Select Task Force on the Study of Harassment in the Workplace, on January 10, 2017, the EEOC announced that it was seeking feedback on a proposed Enforcement Guidance on Unlawful Harassment.  The Commission last issued guidance on harassment claims in June 1999, with its issuance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.  Although the Supreme Court’s decision in Vance v. Ball State, 133 S.Ct. 2434 (2013) narrowed the definition of who is a supervisor for purposes of establishing liability, the Commission’s 1999 Guidance was only updated with a small text box at the top noting what the Supreme Court held in its decision.  This is the same tactic the Commission has taken with its guidance on disability discrimination, which was issued years prior to the passage of the ADA Amendments Act of 2008.

The EEOC seeks public comment on the proposed enforcement guidance, which is intended to replace all the current enforcement guidance on harassment issued by the Commission.  The proposed guidance refers to the EEOC’s Select Task Force in the introduction section and sets out the applicable and most recent case law regarding harassment in the workplace.  The proposed guidance clearly states the EEOC’s position that claims of gender identity discrimination, including discrimination based on transgender status, as well as claims of sexual orientation discrimination state claims of sex discrimination.

The proposed guidance sets forth examples of how claims of actionable harassment must be linked to an employee’s membership in a protected class.  For example, derogatory comments about an employee’s national origin could help make an actionable claim of harassment. A workplace altercation because an employee’s girlfriend broke up with him to date someone else in the workplace is not.  As the proposed guidance states, “Although an employee’s protected status need not be the only basis for the harassment, the EEO statutes do not prohibit harassment unless it is based, at least in part, on a protected characteristic.”

The proposed guidance also includes a section on liability standards, guidance that is needed after the Supreme Court’s decision in Vance. It also includes four sub-sections under the heading of “Promising Practices,” to discuss how to avoid complaints of harassment in the first place.  These include “Leadership and Accountability,” “Comprehensive and Effective Harassment Policy,” “Effective and Accessible Harassment Complaint System,” and “Effective Harassment Training.”  These compliment the recommendations of the EEOC’s Select Task Force in the report issued last year, and it is heartening to see the Commission continue to work to update its Guidance.

If you’d like to submit your own comments, you have until February 9, 2017 to do so here: https://www.regulations.gov/docket?D=EEOC-2016-0009. [email protected]

[Editor’s note: if this topic interests you, join FELTG for a very timely webinar on hostile work environment harassment on Thursday, February 2.]

Another Reason to Do Away with Letters of Counseling

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By Deborah Hopkins, January 18, 2017

Within the first few minutes of our FELTG onsite class UnCivil Servant: Holding Employees Accountable for Performance and Conduct, Bill and I ask a question of the attendees:

Which of the following are “disciplinary” actions?

  1. Letter of Caution
  2. Letter of Warning
  3. Admonishment
  4. Letter of Counseling
  5. Letter of Expectation
  6. Reprimand
  7. Suspension
  8. Demotion
  9. Removal
  10. Reassignment
  11. Placement on a PIP
  12. Denial of a WIGI

The answers we get often make us cringe. We’ll give you ten points if you can pick them out without error. Go ahead, take a look…we’ll wait…and the answer is…there are only FOUR disciplinary actions on that list: Reprimand, Suspension, Demotion and Removal. That’s it. Everything else on the list is NOT a disciplinary action, which means it holds ZERO significance in progressive discipline.

Items 1-5 have no legal value and often create problems for the agency that might not exist were they not implemented. Consider the recent EEOC case Meaghan F. v. SSA, EEOC Appeal No. 0120152932 (November 2, 2016). Here’s what happened: SSA employee Meaghan F. suffered from migraine headaches and had exhausted all of her annual leave and sick leave and had used more than 240 hours of Leave without Pay (LWOP). She provided a doctor’s note that said she might be absent “from time to time” in the future if her migraines worsened.

Not very specific medical documentation, is it? The supervisor didn’t think so either, so he held a counseling session about her attendance and told her the medical information she provided was insufficient. We don’t have a problem yet; a good supervisor should talk to an employee about her attendance if it’s becoming a problem. But the supervisor took it a step further and issued a Letter of Counseling about the problem, which he placed in her personnel file. So, what did the employee do? She filed an EEO complaint and said the letter was discriminatory because she had a disability (migraine headaches) that caused her leave issues.

You’ll be happy to know that the agency prevailed on this, as the EEOC held that a letter of counseling is not discipline and that the supervisor had a legitimate, nondiscriminatory reason for asking for more specific medical information. But, that didn’t stop the agency from having to go through the lengthy EEO process, which now takes a good two to three years on average.

Though it’s speculation on my part, I can’t help but wonder, had the supervisor not issued the letter of counseling and put it in the OPF, whether the employee would have filed a discrimination complaint. I guess we’ll never know, but this case underscores what we’ve been telling supervisors for years: sometimes the less you do, the better off you’ll be. [email protected]

The Good News About the MSPB Chairman Quitting

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By William Wiley, January 18, 2017

Having worked inside of MSPB for nearly a decade, I know how this stuff works. As a Member’s departure gets closer, tough issues with significant impact that have been hanging around undecided get decided. It’s now or never when an adjudicator is about to turn out the lights, much like happens at the US Supreme Court in early summer as the Court’s term for the year draws to an end.

As you may have read about in other parts of this newsletter, MSPB’s Chairman resigned on January 7, leaving the Board without a quorum and unable to operate until the Senate confirms replacements. That means that if there were any contentious issues that had been sitting around, the members had to get them out before that date, or perhaps lose the opportunity to have their voices heard at all.

With that as background, here are decisions that came out the first week of January that, by my guess, were causing some heartburn within MSPB. A couple reverse major precedence in some aspect of federal employment law. Although their impacts are limited to relatively small groups of cases, the effects are significant in those situations, and undo years of precedence contra:

Firing Long-term Temporary Employees:  For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days’ break in service between appointments. That theory was known as a “Continuous Employment Contract.” See Roden v. TVA, 25 MSPR 363 (1984). Well, that’s no longer the rule. From now on, to be entitled to appeal a removal from a temporary appointment, the employee must have more than a year of continuous uninterrupted employment. Winn v. USPS, 2017 MSPB 1.

Settlement Enforcement:  For many years, MSPB would enforce settlement agreements only in cases in which it found that it had jurisdiction over the underlying action on appeal. That principle has now been reversed. The Board will enforce settlement agreements entered into even if it has not established that it has jurisdiction over the underlying matter. Delorme v. DoI, 2017 MSPB 2.

Appellant’s Right to a Hearing:  The Federal Circuit has long held that an appellant is entitled to a hearing, and that the Board may not issue a summary judgment decision without a hearing, even if there are no material issues of fact in dispute. Crispin v. Commerce, 732 F.2d 919 (Fed. Cir. 1984). While the Board’s precedent in this area has not always been consistent or clear, the clarified rule now is that an appellant is not entitled to a hearing when his discrimination claims are deficient as a matter of law. Sabio v. DVA, 2017 MSPB 4.

Sometimes it takes a while for things to happen. I remember a country and western song from my college days that said something like, “All the girls get prettier as closing-time comes around.” Well, the first week of this month was closing-time at the Board. Pretty or not, these are three important decisions that every practitioner needs to know. [email protected]

EEOC Issues its List of Notable Cases for Fiscal Year 2016

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By Deryn Sumner, January 18, 2017

A few weeks ago, someone stopped by my office and asked me to list what I considered the most important cases issued by the EEOC’s Office of Federal Operations in 2016.  And I’m pretty sure I looked up from the pile of work I was trying to complete before the holidays with a dazed expression on my face, until the person walked away not expecting an answer.  When I came back to the question a few days later, I still couldn’t come up with much a response.  Past years have seen groundbreaking decisions that expand the coverage of Title VII and grant standing to more employees, like Mia Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) (holding that claims of transgender discrimination state claims of sex discrimination) or David Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) (determining that sexual orientation claims should be processed as sex discrimination claims).

But looking back on 2016, I could not easily identify such notable cases.  Luckily, the EEOC did the work for me and a few days ago issued Fiscal Year 2017, Volume 1 of its Digest of Equal Employment Opportunity Law.  You can find the full digest here: https://www.eeoc.gov/federal/digest/vol_1_fy2017.cfm.  Since the cases were pulled from the Commission’s fiscal year, which runs from October 1, 2015 through September 30, 2016, it does include some 2015 cases.  But for our purposes (and since I did see fit in FELTG’s December 2015 newsletter to expound upon my list of notable OFO cases from 2015), I’ll focus on the 2016 cases the EEOC included.  We’ll call it the notable cases of the notable cases of 2016.

First up, in Candice B. v. Department of Homeland Security, EEOC Appeal No. 0120160714 (June 1, 2016), the EEOC certified a class action defined as “all women who were required to take PCE-1, PCE-2, and the FCS and failed to pass the push-up qualification standard at any stage.”  We discussed this case in more detail in the July issue of the newsletter.

In cases involving high awards of non-pecuniary compensatory damages, the Commission affirmed an award of $192,500 to the complainant in Ervin B. v. USPS, EEOC Appeal No. 0720150029 (March 15, 2016).  There, the Commission found the award appropriate based on “the shock, embarrassment, and great upset in being placed in off-duty status, destroying his unblemished record of not getting in trouble with criminal law and what this did to his identity, the humiliation, despondency, extreme anxiety and ruminations resulting from the criminal action and being booked, having an invasive strip search, and being put in a holding cell; the damage to his reputation among neighbors, co-workers and customers on his route because of the criminal action, the worry, hysterical crying spells, and fear of being convicted and having his life destroyed as he knew it, the financial struggles from being put in off-duty status for an extended period, his loss of a sense of having a new start when shortly after returning to work he received a retaliatory seven day suspension, the loss of self-worth and self-esteem and going from jovial to withdrawn, the sleeplessness, nightmares, depression, damage to his marriage and PTSD stemming from the Agency’s actions, the lessening in control of his glucose levels partly as a result of the discrimination, not being able to work for extended periods, and the emotional damage which continues to this day.” This case is a prime example of how even awards at the higher end of the range fail to adequately compensate an employee for what they have experienced.

In Glynda S. v. Department of Justice, EEOC Appeal No. 0120133361 (February 23, 2016), the EEOC issued default judgment in the complainant’s failure because the agency waited over a year to file a Final Agency Decision which the Commission found created an “extreme delay [which] stranded Complainant in a procedural ‘no-man’s land’ wherein she had no recourse within the administrative EEO process until the Agency issued its final decision.”  The Commission has not consistently held agencies accountable for delays in timely completion of investigations, or issuing final agency decisions and final actions, but found it appropriate to grant default judgment in this case because, in part, the Commission had previously warned the Department of Justice that delays in issuing final decisions were concerning.  See Sylvester v. Department of Justice, EEOC Appeal No. 0120101890 (November 18, 2010).

And finally, in Ivan V. v. Department of Veterans Affairs, EEOC Appeal No. 0120141416 (June 9, 2016), the Commission found that a supervisor engaged in per se retaliation when he asked the complainant if he planned to “play the Latino card” while investigating a complaint from another employee.  The Commission found that these comments could have a chilling effect on the EEO process and constituted a per se violation of the anti-retaliation provisions of Title VII.

Watch this space to see what 2017 brings us from the Office of Federal Operations.

[email protected]

Civil Service Reform and Performance Recognition

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By Barbara Haga, January 18, 2017

I am following up with another article regarding another recommendation included in the report Governing for Results: A Transition and Management Agenda to Lead Policy Change in a New Administration, issued on October 17.  This time I want to talk about performance recognition for Federal employees.

Taking Authority Away from Agencies  

The report notes that previous performance systems have not lived up to their potential, and the private sector seems to be moving away from traditional performance reviews.  The Transition Group acknowledges that there was no clear consensus in the group about what a new system should look like.  However, on page 25 of the report they list some options in a section entitled “Expand Employee Rewards and Pay-for-Performance Systems”:

Non-Financial Reward Systems: As an alternative to or companion to performance evaluation systems for all employees, create a robust employee recognition and reward initiative. 

Financial Reward Systems: If financial rewards are used, the Administration may want to take decisions for those rewards outside of the agency and provide for a third-party validation entity. To buffer criticism that bonuses are being given out at taxpayer expense, consider partnering with foundations in each mission area of government who could pledge funds to reward federal employees.

The first recommendation skips over the fact there is a merit principle that requires agencies to reward performance.  5 USC 2301(b)(3) states: “Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance (emphasis added).”  5 USC 4302(b)(4) requires agency appraisal systems to provide for “… recognizing and rewarding employees whose performance so warrants.”  If any of the performance recommendations included in the report are going to be implemented, then not only is 5 USC Chapter 43 going to need to be overhauled, but the merit principle is going to need to be changed, too.

The Transitions in Governance group is recommending non-financial rewards as an alternative or a companion to performance recognition. I am not sure what they have in mind.  It could be anything from the array of offerings under 5 CFR 451 from time off awards to career recognition awards to employee of the quarter programs.  It could be something entirely new.  Agencies actually have very broad latitude to create incentive award programs under the law and regulations as they exist today.  I agree with the transitions group that an incentive award program can be an effective management tool.  I think our best bet with getting a “bang for the buck” with recognition is to do it when something exceptional happens with an incentive award.

The group’s recommendation about taking award decision-making authority away from agencies is difficult to understand.   If we can’t have confidence in the decisions that managers make about that 1% or 1.5% of the personnel budget that most agencies are allowed to allocate for awards, how is it reasonable to count on them to manage huge programs, prepare regulations and defend agency policies to constituents?  If they can’t be trusted to effectively deal with decisions on rewards for good employees, how could we expect them to make tough decisions about discipline and firing and answering grievances and EEO complaints?

I think this recommendation buys into a perception that Federal managers don’t do a very good job of managing.  Surely there are examples of where there have been failures, but in a lot of cases, I think the awards system drives the bad decisions.  I don’t think that giving the authority to someone else is the answer.  Third-party validation to me would turn performance awards into a bureaucratic nightmare.  The award recommendations would be handed over to a group far away from where the accomplishments took place to people who would be outside of normal agency control.  Handing off important management decisions to folks outside of the chain of command is a scary proposition.  Folks who have a vested interest and have knowledge about the details of the work should be judging who warrants recognition.  We have seen problems with this handing off of authority before.  Anyone out there remember Merit Pay pools from the ’80s?  One could also ask the DoD employees who were under NSPS how well received the pay pool system was where managers many layers of supervision away from the recommending manager were deciding on whether the ratings and thus the pay rewards were warranted.

Get the Money from Somewhere Else

The second half of the recommendation says agencies should get some foundation to give money to use to reward Federal employees to combat the perception that taxpayers are footing the bill for the awards.  Taxpayers fund the salaries, and awards are just a small portion of that amount.  I frankly don’t think the average taxpayer cares until awards are handed out to those who don’t seem to deserve them – such as VA folks who are not taking care of patients as they should, or IT professionals whose programs don’t meet the requirements they were designed to address, or managers who don’t manage.  I don’t think it is an issue of using the taxpayer dollars, but making sure they are used where warranted.

The report takes a different tack.  To me, this is one of the stranger recommendations in this report.  Maybe NASA could find a group to give them award money – and maybe other agencies like NIH or CDC could do so.  But, I would think that a foundation would want to give their money in furtherance of some end that they want to foster.  For example, an aerospace group might give money to “reward” the entities within NASA that do aeronautical research but not to other parts of NASA engaged in climate research or space flight.  But, seriously, what about other agencies that don’t have that “draw’?  What foundation is going to sign up to give money for awards to the TSA, IRS, or SSA?  If a foundation is giving money, isn’t it reasonable to think that they are expecting something for it – some program achievements related to their areas of interest, some report back on what was achieved, some answers about who received award money?

A Better Idea?

I have an alternate solution.  I think the appraisal system would work much better if we got rid of performance recognition completely.   In next month’s column, I’ll explain why.

 

Deck Chairs on the Titanic

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By William Wiley, January 18, 2017

Here we go again. Congress is convinced that it is impossible to fire bad federal employees. In response to that belief, we’ve seen a bevy of bills, proposals, and actual legislation attempting to remedy this situation. Here are a few:

  • Reduce the notice period in a removal from 30 days to 10 days.
  • Reduce the number of days to file an appeal from 30 days to 7 days.
  • Make Reprimands a permanent part of an employee’s file rather than only temporary.
  • Extend the probationary period to five years.
  • Limit a removal appeal to a final decision by an MSPB career administrative judge rather than a decision by the politically appointed Board members.
  • Annotate a former employee’s file to reflect that after he left government, an investigation revealed that he did bad things while a federal employee.
  • Allow Congress to effectively fire individual civil servants without due process.

Talk about rearranging the deck chairs. Woof.

Look. None of this is going to make much of a dent in the challenges we have in fairly holding employees accountable in the civil service. You can reduce the notice period to a minute and a half, make the probationary period 20 years, and include embarrassing photos of the employee at the office New Year’s party in his OPF forever, and you still are going to have agencies that do not fire enough nonproductive employees.

You would think that before changing the system to correct problems, one might actually look to see what is causing the problems. If those who proposed the above had done that, they would have found out that the difficulty with accountability in the civil service is not going to be fixed by these nipping-at-the-edges changes to what we do. Instead of this “Ready! Fire! Aim!” approach to civil service reform, Congress and the White House should identify what it is that’s causing these systemic problems.

Fortunately, that study has already been done for them. The good folks at MSPB’s Office of Policy and Evaluation recently released the results of a survey that found that the two major reasons that more bad employees are not fired are:

  1. Lack of support from upper management, and
  2. Lack of knowledge on the part of human resources staff.

Here at FELTG, based on our many years of experience, we would add as third to that list:

3.  Lack of knowledge on the part of agency legal counsel.

When we conduct accountability training for management officials, when they bemoan the fact that it’s hard to remove bad employees, they don’t say anything like, “Gee, if I could just have kept his Reprimand in his file permanently, I’d have been able to fire him.” No, they say, “I won’t get any support if I do this. If I fire the guy, there’s no guarantee that I’ll be able to replace him. Besides, HR and legal won’t let me do it.”

So, Congress/White House, if you want to improve accountability in the civil service (aka “drain it”), take action based on the known causes of the current problems, not what you might speculate about in the dark of the night from the corner of your lonely cluttered room. We’ve said it before in this newspaper, and we say it again, just in case you haven’t been reading us for very long. Set the accountability tone from the top. President Trump, here’s your Executive Order:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, the Executive Branch will be built on employee accountability. If there are employees in government who are non-performers or who do not obey workplace rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, that supervisor will be able to replace that employee. All agency discipline and performance advisors will be trained, certified, and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

Separately, we once again put forth our FELTG belief that as long as there is a confrontational redress process available to employees, nothing is really going to change fundamentally until the concept of entitlement to a civil service position is re-evaluated. Last month, we put forward a proposal that we do away with the adversarial taking of an employee’s job via termination and replace it with a concept similar to that known as eminent domain, the right of a government or its agent to expropriate property for public use, with the payment of compensation. In our proposal, when a career employee reaches a point at which he is no longer performing acceptably, instead of firing him and dealing with the resulting appeals, complaints, and grievances, the agency could effectively buy back the job from the employee. The job would be valued based on grade level, years of service, and performance ratings; the agency would pay the employee that amount; and the entire process could not be challenged as it would be non-adversarial.

Some readers who commented on our suggestion thought it to be un-American, devoid of due process, and something Congress would never approve. Well, “Ha!” on you. Have you read the “Holman Rule” that the House of Representatives recently adopted? It makes our FELTG recommendation look downright wimpy in comparison. [email protected]

Practice Tip: Say What You Mean in Drafting Terms of Settlement Agreements

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By Deryn Sumner, January 18, 2017

In issuing one of its last decisions of 2016, the EEOC’s Office of Federal Operations left us with a nice reminder of the importance of being as specific as possible when drafting terms of settlement agreements.  Although everyone in the room might think they have the same understanding of what each side is promising to do, different interpretations can arise after the fact.  At the core, settlement agreements are contracts and are interpreted as such.  The complainant agrees to withdraw his or her EEO complaint with prejudice.  In some instances, he or she even agrees to do more than that, such as resign from the agency as of a specific date.  The agency may agree to a whole host of things (particularly if it is getting the employee to resign as part of the deal) including making monetary payment to the complainant, paying the complainant’s attorneys’ fees and costs, restoring leave, changing personnel files and performance evaluations, providing letters of reference, rescinding suspensions or other disciplinary actions, and even sometimes agreeing to reassign the complainant to a different position away from a specific supervisor.

That’s what the parties agreed to in the case of Ouida L. v. Department of Interior, EEOC Appeal No. 0120162588 (December 30, 2016).  Or at least that’s what the complainant thought she was receiving in exchange for agreeing to settle the case.  The language of the settlement agreement included the following language: “Reassign Complainant under the direct supervision of [the Senior Advisor for Hydropower (“S2”)] instead of [the PRO Manager (“S1”)] effective immediately.”

The decision notes that many of the issues which caused the complainant to file an EEO complaint stemmed from her interactions with her first-line supervisor “S1” and that during the processing of the EEO complaint, the complainant had been placed in a separate chain of command from S1.  After execution of the agreement, the Agency did as agreed and moved the complainant formally to reporting to the S2.  Who, of course, ends up retiring a year later only to be replaced by, you guessed it, S1 who assumes S2’s position.  The complainant contacts the Agency alleging a breach and the Agency finds that considering the plain language of the agreement, no breach occurred.  Which leads us to the appeal of that finding and the EEOC’s decision.

The complainant argued that the intent of the agreement was to place the complainant outside of the chain of command of S1.  The Agency argued that it did as it contracted to do when it reassigned the complainant to the direct supervision of S2, and that the language of the settlement agreement did not say that the complainant would not be in S1’s chain of command.

The Commission, after discussing the Plain Meaning Rule, agreed with the Agency.  It found that removal from S1’s chain of command was not one of the terms of the agreement and that there was no evidence that the settlement agreement was otherwise void, voidable, or that the complainant was misled into signing the agreement, particularly as she was represented by counsel.  The Commission cautioned, as we caution you, readers of the FELTG newsletter now, “if Complainant wanted such constraints imposed on the Agency employee, she should have included such a provision as part of the settlement agreement.”  (internal citations omitted).  Think about the result you want and draft the right language to achieve that result, lest you be stuck litigating enforcement matters forever and ever.  [Editor’s Note: Amen.] [email protected]

So, What Do You Do?

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By William Wiley, January 11, 2016

It’s a common question. One that most of us have a title-like elevator-answer for:

I’m an attorney.

I’m a human resources specialist.

Maybe even: I do labor relations for the XYZ Agency.

Yes, but what do you actually do when you’re performing in these roles? If you are an employment law practitioner, did you think to say:

I help supervisors fire bad government employees.

For some of you readers, that should be Line Number One in your mental position description. But we don’t often articulate our roles that way. It sounds mean. It acknowledges that the government has some employees who do not do their jobs at a minimum level of performance or who violate workplace rules. However, in these times of clarity and transparency, perhaps we should acknowledge that this is a major responsibility that many of us have.

Although it’s our job, I don’t think any of us relish the idea of doing it. We wish that there were no bad civil servants who could not be rehabilitated. We would prefer if the darned process wasn’t so confrontational. We hope that supervisors figure out how to otherwise deal with problem employees, by motivating them to work better or encouraging them to leave government voluntarily through some bi-lateral agreement. But when push comes to shove, when the job is just not getting done and nothing else works, a supervisor is left with two options: either approve that a non-productive employee continues on the government payroll being paid tax payer dollars to which he is not entitled, or fire him. When the option is firing, we advisors are obligated to step up to the plate, put on our big-girl/big-boy pants, and do what needs to be done.

If we acknowledge that this is our job, we also acknowledge that we are not the action officials. It is the front-line supervisor at most every federal agency who is delegated the responsibility to make these decisions. We are but advisors, counselors, technicians of the law. When a supervisor comes to us with a bad employee, it is our job to say, “What do you want to do with this guy?” Instead, what we often hear in our FELTG supervisory training classes is that “HR won’t let me do that” or “That’ll never get past legal.” Well, those of us with JD and HRS after our names were not hired to make these decisions. It’s the line managers who decide the outcome and we technicians who help them get there. At least, that’s the way it’s supposed to work. Yet in too many agencies we advisors frustrate managers by telling them they can’t do something that they want to do that in their opinion, would allow them to manage the government better.

Play this mind game with me for a minute. What if you were a private company – law firm, HR consult, whatever – and you held yourself out as a service provider for dealing with problem employees. If a manager came to you for advice on how to fire someone, and your response was that they should not fire the person, then you wouldn’t be in business very long. Of course, if what they wanted to do was illegal, you could tell the potential client that it wasn’t legal, and that you wouldn’t be part of something that was illegal. That’s just fine. But if you gave your advice as to the pros and cons, and the client wanted to go through with the firing anyway, I would think that you would help them do that. It is their responsibility to make those decisions and they bear the blame or credit if their decision is a good one.

Here’s an example of what I see all too often. In a classroom of attorneys I was working with a few months ago, I gave some standard advice for how to handle an employee in a particular situation. One of the participants disagreed and said that if I did that, the employee might be able to claim that the agency had interfered with her rights in the future should criminal charges be brought. There was no question as to whether the approach I was suggesting be taken was best for the supervisor. It was. However, the agency attorney who disagreed felt it might not be best for the employee. And without any case law to back up that speculation: “It might happen.” Well, it MIGHT HAPPEN, and I MIGHT NOT CARE because the employee is not my client. The agency supervisor is.

We should think of ourselves as service providers. The services we provide are intended to help agency supervisors, managers, and executives run the government. Next time a supervisor asks you for assistance, say to yourself, “How can I help this supervisor do what she wants to do?”  If instead you find yourself saying, “No, you can’t do that,” then please go re-read your mental PD.

[email protected]

A Use-or-Lose Holiday Gift from MSPB

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By William Wiley, January 3, 2017

It’s that time of year: taking it easy, eating waaaay too much sugar, giving gifts. Even MSPB is not beneath recognizing the holiday spirit with a little gift of its own to all of us in the world of federal sector employment law.

Sometimes MSPB presents are not particularly desirable, like the crazy disparate-penalty approach to comparative penalties and the dark-road of diminished respect for prior acts of discipline when it comes to selecting an eventual removal. Those are some gifts we’d return if we could, but even Nordstrom’s won’t take back that stuff.

This year as the holidays approached, the Board’s insightful and productive Office of Policy and Evaluation (OPE) bestowed on us all a gift that hopefully will provide some needed insight for the new administration as it develops it plans for draining the civil service swamp. As do many on Capitol Hill, the incoming President has spoken loudly about the need for more accountability in government, for federal agencies to be run more like businesses than as governmental agencies. Well, that all feels good in the gut and sounds powerful out there on the campaign trail. However, here at FELTG we prefer data and information rather than feelings and campaign speeches. Fortunately, our end-of-year present from MSPB’s OPE is just the sort of meat we all need to chew on as decisions are being made about a “new” civil service.

In mid-December, MSPB issued a report entitled “Addressing Misconduct in the Federal Civil Service: Management Perspectives; Supervisors Report the Greatest Barriers to Addressing Employee Misconduct Come from Within Agencies.” Given that there’s a wide-spread belief that agencies don’t fire enough bad employees, it would be helpful to have some data about why that might be. Well, happy New Year to us: OPE’s research provides all those policy-makers to-be in the White House and on the Hill just that sort of information:

  • Finding: About half of all proposed removals result in the employee leaving voluntarily. This is great news for agency officials. Although we must put cases together in preparation for an eventual challenge in an appeal, the reality is that it is unusual for us to actually have to defend a removal before MSPB. To this half of proposed removals that are never consummated because the employee quits, our FELTG experience would add to it a large group of employees who are indeed terminated, but who never file an appeal (old OPM numbers estimate that at about half of all removals), 60% who settle without a hearing after filing an appeal, and another group of employees who are poor performers who are PIPed. Our experience is that 50-60% of those employees leave voluntarily before removal is even proposed, sometimes within days of the PIP being initiated. Bottom Line: Although we always need to be prepared to defend a removal on appeal, maybe one in ten removal actions that get started actually make it to review by MSPB.
  • Finding: Fewer than half of first-line supervisors said they were confident they would be allowed to replace an employee fired for misconduct. Interestingly, 60-70% of managers and executives believe that replacement employees will be approved if an employee is removed for misconduct. It’s a bit unclear whether these managers and executives are referring to their ability to replace their own subordinates who are fired for misconduct, or to the ability of all supervisors to replace fired subordinates. Perhaps the new administration should give consideration to this back-fill dilemma when it starts trying to drain the civil service swamp. If you can accept that supervisors are hesitant to get rid of bad performers now because of this fear of not being able to replace them, just think how hesitant they will be to fire bad employees with a hiring freeze in place. A poor performer often is seen as better than no performer. Bottom Line: Check with upper management before you initiate a removal if you are concerned about the ability to back-fill once the employee is gone.
  • Finding: The greatest perceived barrier to a front-line supervisor initiating a removal is the agency’s perceived culture against firing bad employees. This is another official finding that parallels what we here at FELTG have run into when we teach accountability. “Upper management at this place doesn’t want us to remove employees. Human resources and legal are afraid of discrimination complaints, claims of whistleblower reprisal and the dreaded OSC, the union and it’s unfair labor practice charges and grievances, etc.” Supervisors feeling that they would not be supported by senior management and their discipline advisors was the Number One reported reason that bad employees are kept on the payroll when they should be terminated. Bottom Line: Hey, you managers and advisors out there. Do your damned jobs. Change the culture; not into one where everybody gets fired, but one in which everyone gets held accountable. With fairness and gusto.
  • Finding: The second greatest barrier to firing bad employees was the low quality of service provided by the human resources office. Woo, doggies. You regular readers know how we feel about that here at good old FELTG. We have howled against the moon for 15 years about the low quality of service provided by some human resources offices around the government. Too many employment law practitioners don’t know the basics of our system, and worst of all, don’t know what they don’t know. Not only do they not know what to do, they sit in their offices and hope that no one asks them for advice so that they can focus on other things, like lunch. If you are a human resources employment law professional, and you want to know if you are a good service provider, simply ask yourself three questions. During 2016, did you:
  1. Attend any FELTG training?
  2. Call any supervisors and ask, “Do you have any bad employees I can help you fire today?”
  3. Read every issue of the FELTG Newsletter?

Bottom Line: Two yes’s out of three questions, we will consider you part of our family and a decent service provider.  Three out of three, we are honored that you move among us. Free coffee at all of our seminars for you.

This OPE gift is a wonderful holiday present. We encourage you to read it in detail because it is just full of gems of wisdom beyond the ones we’ve highlighted here: http://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1363799&version=1369157&application=ACROBAT. If you run into any newly-minted Trumpettes as the new administration unfolds, maybe be sure they get a copy of it, as well.

Easier still, here is language that if it were embodied in a single email from your agency’s new Presidential appointee could change the course of civil service history. FELTG copyright hereby released should you choose to use it:

To all front-line supervisors, managers, executives, human resources specialists, and legal advisors:

From today forward, ours will be an agency built on employee accountability. If there are employees at this agency who are non-performers or who do not obey our rules, they should be disciplined and removed from service, promptly and fairly, if they do not improve their behavior. If a supervisor removes an employee for misconduct or performance, I personally guarantee that suervisor will be able to replace that employee. All agency discipline and performance advisors will be trained and continually evaluated by the professionals at FELTG to ensure the adequacy of the service they provide and the possession of the knowledge necessary to hold civil servants accountable.

FELTG. Always thinking ahead of the civil service curve. [email protected]

Two Lumps of Coal from the Guys in the Black Robes

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By William Wiley, December 19, 2016

Just last week, we wrote about a decision from the federal circuit that we said reflected a lack of understanding as to how a federal agency operates. In case you’ve already forgotten due to excessive pre-Christmas festivating, the Federal Circuit faulted an agency because it did not notify the employee in a proposal-to-remove notice that a senior manager had told the proposing and deciding officials that if the employee had done what was alleged, “we need to try and terminate her.” Federal Education Association v. DoD Schools, Fed. Cir. No. 2015-3173 (November 18, 2016). There was no indication that this communication actually impacted the decision to remove the employee. No finding that the communication was otherwise improper. Just a ruling that such pre-decisional communication has to be disclosed to the employee because it “was likely to result in undue pressure on the Deciding Official.”

As we pointed out in our newsletter, these sorts of communications occur all the time in federal agencies. And one could argue that just about any affirmative communication from a senior manager might be likely to result in pressure on lower level supervisors. In fact, pressuring lower level supervisors into action could be argued to be the first sentence in a senior manager’s position description. Some might even call that “leadership.” And “undue”? Every reader of this article is about to get a new political overlord, henceforth known for all eternity as a “Trumpette”© (copyright FELTG 2016). So, when the Trumpettes© take control and start issuing missives that bad employees should be removed if they don’t improve, do we need to staple those to all the proposal notices that follow? Holy, moly, what a lack of appreciation for how managers run the government.

Well, now we find a second lump of coal in our Christmas stocking, Miller v. DoJ, slip op 2015-3149 (Fed. Cir., December 2, 2016). In that case, DoJ had to defend itself against the appellant’s claim that the agency had reprised against him because of his whistleblowing.

As everyone knows who has attended our festive and fantastic MSPB Law Week (next offered March 13-17 in DC, then June 12-16 in the always delightful and inspiring San Francisco), an agency defends itself from a claim of whistleblower reprisal by arguing that the three Carr factors support a no-reprisal conclusion:

  1. The agency’s evidence to support the action claimed to be in reprisal for whistleblowing is strong,
  2. The motive for the agency management officials to reprise is weak, and
  3. The agency treated other employees who are not whistleblowers just as harshly as it did the whistleblower. Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999).

In Miller, the alleged reprisal personnel action was a series of reassignments related to an OIG investigation. Regarding Factor 3 (similarly situated non-whistleblowers), the agency presented proof that there were no other employees similarly situated to the appellant at his facility who were not whistleblowers who were not reassigned; e.g. who were treated less harshly. The Board accepted this evidence and concluded that Carr Factor 3 carried no weight one way or the other. The fact that there were no non-whistleblowers under the control of the action official at the agency could not be an indicator of whether the action official considered the appellant’s whistleblowing in his reassignment decision-making. Makes sense to me.

Of course, the fact that it makes sense to me is just more proof I have no future as a federal judge. The court majority in Miller concluded that the agency’s evidence was deficient because the agency did not prove that non-whistleblowers elsewhere in the agency who were the subject of an OIG investigation also were reassigned. That’s right, the court reasoned that it is the “agency” that is required to prove similar treatment between whistleblowers and non-whistleblowers, even though it is a single, relatively low level manager who made the reassignment decision. Proof of no similarly-situated employees in the organization over which the action official has control is not enough.

With all due respect, this makes no sense. The agency here is the US Department of Justice, an organization of over 100,000 employees performing highly divergent functions. Here, a correctional officer is the appellant. The court is saying that the agency should have submitted proof of how it handles, perhaps, the reassignment of one of its tax lawyers who is the subject of an OIG investigation. Or, an administrative assistant over at the US Marshals Service, or maybe an environmental paralegal in the Environmental and Natural Resources Division. Why does it matter if some other supervisor did or did not reassign an employee associated to an OIG investigation? The action official in Miller is the warden of the local facility. That is who we should be assessing for whether he had an anti-whistleblower animus. A federal agency is not some monolithic Borg-like entity, controlled in thought by a single consciousness at the top who knows all and makes all the decisions. The warden in this case reassigned the appellant. Proof that a dozen other managers spread out among DEA, EOUSA, ATF and the War Division of DoJ reassigned OIG-targets who were NOT whistleblowers in no conceivable way goes to evidence as to what was in the brain of the local warden who did the whistleblower reassignment.

The Federal Circuit invented the Carr analysis. It now claims to be bound by it to consider agency-wide actions as low level as a reassignment when evaluating claims of whistleblower reprisal. It seems to expect that everyone in a federal agency knows everything that is happening within it, even things as minor as a reassignment. This approach is nonsensical and reflective of a lack of common sense when it comes to understanding how a federal agency is run. The law does not work without an appreciation for real-life application. [email protected]