Starting to Lose “The Faith”

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By William Wiley

Here at FELTG, we are civil service systems people. We take the position that there’s little wrong with the system that cannot be fixed by the system. In other words, we may occasionally disagree with a decision issued by an oversight agency, but for the most part, we see the system as working.

And then I run into two decisions in the same week that give me pause and make me wonder if the system really is working.

First, a decision from the Federal Circuit Court of Appeals, the reviewing court that oversees the final orders issued by MSPB. It is rare that a decision issued by this court causes concern as most of its decisions affirm the Board, some years at a rate of 95% or so. That rate is to be expected, as it is built into the law that the court is to be deferential to the Board on matters of fact and most matters of law.

Unfortunately, that deference did not happen in a recent decision. The facts of the case are not in dispute. The appellant, a housekeeper, had a substance abuse problem. He was absent from work for six months. Most of that time, he was participating in a rehab program in a correctional facility. However, toward the end of that period, because he got in a fight with another program participant, he was excused from the rehab program and remained in jail for the last 38 days of the six-month period.

His employer, DVA, removed him in large part because of the six-month absence. Unfortunately, the judge concluded that the period of absence while the appellant was participating in the rehab program was an approved absence. That left only the last 38 days of unapproved absence. Although the judge felt this reduction warranted mitigation of the removal to a 40-day suspension, the Board set aside the judge’s decision and upheld the removal. Purifoy v. DVA, 2015-3196 (Fed. Cir. 2016).

Then things got screwy on appeal to the Federal Circuit.

First, the court agreed with the judge that the agency could not charge the appellant with AWOL for the time the appellant was in the rehab program. It reasoned that when the employee notified “one of his supervisors” (point of interest: federal employees have a single immediate supervisor when it comes to requesting leave) that he would be absent due to rehab, the supervisor’s response that the appellant should “take care of [himself]” was an approval of leave for the period of rehab. It reached this conclusion even though the official he spoke with told him, “You also need to see your supervisor and fill out the proper paperwork.”

Apparently, the Federal Circuit doesn’t know that a) employees have a single supervisor for leave purposes, not several; b) employees request leave, they don’t just notify of an absence; and c) “paperwork” is often required to determine the type of leave being requested, the justification for the absence, and the expected duration of absence. It is not some bureaucratic follow-up of no importance to the determination about whether the employee’s leave request will be approved.

Secondly, the court noted that the MSPB judge had found that the entire six-month absence was not supported by “substantial” evidence. Every practitioner in this business knows that the proper evidentiary standard is a “preponderance” of the evidence. Apparently, the court does not.

Third, the court agreed with the judge that a significant mitigating factor was the fact that the sustained period of 38 days of AWOL was for less time than the originally charged six-month period. Apparently, it is engaged in the fallacy that if a big charge is reduced to a smaller charge, the big penalty of removal should be reduced to a smaller penalty. That makes no sense. Charge a criminal with killing ten people, and prove that he actually killed only one still warrants a murder conviction. The reasonableness of the penalty should be based on the sustained charges without reference to the charges that were brought, but not sustained.

Fourth, the court is concerned that the appellant was not put “on clear notice that his absence would result in severe discipline.” Well, what difference does that make? We are concerned generally about clarity of notice so that an employee knows exactly what misconduct to avoid. Here, the dude was in jail. He could not have avoided the AWOL even if he was given exceedingly clear repeated notice of possible severe discipline BECAUSE HE WAS INCARCERATED! If given clear notice, would he have not become incarcerated? Perhaps staged a prison break so he would not be AWOL? Ridiculous.

Fifth, the court faulted the Board for its failure to discuss the adequacy of a penalty less than removal for the sustained 38 days of AWOL. In other words, why not suspend the employee instead of firing him? Well, if we suspend him we lose his services for some period of time without any guarantee that he will not be AWOL again. And the harm he is causing the agency by his AWOL is that it loses the benefit of his services. Therefore, if it were to suspend the employee, it would be doubling up on the harm caused by his misconduct. It’s either remove or take no adverse action at all. Given the harm to the coworkers caused by their having to do this guy’s work while he was AWOL 38 days, removal is reasonable. And keep in mind, the agency’s penalty selection has to only be reasonable, not perfect.

Finally, the court goes out of its way to note that the appellant represented himself in his appeal and conducted an “extensive pro se cross-examination of the government’s witnesses.” It reasons that due to his “credibility and demeanor as both a witness and an advocate at hearing,” the Board should give “special deference” to its judge’s conclusion that the appellant has rehabilitation potential.

Look. We teach trial advocacy here at FELTG (next offered in DC October 23-27, 2017) and we know how challenging it can be to conduct a cross-examination. At the same time, we know that conducting a cross-examination is in no way related to the ability of someone to avoid going AWOL in the future or to otherwise perform housekeeping duties.

It is the deciding official’s responsibility to assess the Douglas Factor for rehabilitation potential. At the time the decision was made to fire this individual, he had not yet acted his own advocate, even if that were to be relevant. This point is huge: Should the agency’s penalty assessment when made at the time to remove receive deference when all of the charges are sustained as was the case here (Payne v. USPS, 72 MSPR 646 (1996))? Or, should the Board reconsider the penalty selection factors at the time of appeal based not only on the Douglas Factors before the deciding official, but also based on factors that occurred post-removal through the hearing?

I feel sorry for this appellant. Addiction is a terrible burden to bear and a tough diagnosis to beat. At the same time, I feel sorry for his coworkers who had to pick up the slack when this guy did not report to work for an extended period of time. I feel sorry for the vet patients who might not have received the degree of housekeeping services that were warranted because whoever was doing this appellant’s job was too busy to do all that really should have been done. And I feel sorry for the agency that is trying to hold this individual accountable for his unapproved absence, and who correctly considered the penalty factors when it made the decision to remove the employee.

Our civil service system is being attacked by those running for political office and by those already on Capitol Hill for making it too difficult to remove federal employees. Interventionist second-guessing decisions like this one from the Federal Circuit feed into that attack, and perhaps actually do indicate that it is the system that is the problem.

I have another case that makes this same point, but it will need to wait for a separate article. In fact, here at FELTG, if indeed the system is the problem, we even have an earth-shaking alternative approach to removing individuals from government for our new President to consider. That recommendation will have to wait for an even later article. [email protected]

Arbitration – “It’s Just Not Fair”

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By Barbara Haga

About a year ago I wrote about a credit card misuse case where the disciplinary action was taken to arbitration.  The arbitrator did not find that a GS-13 (with prior discipline about card use) taking ATM advances on the card when not on travel was personal use of the card and did not sustain the removal.

I thought that was a blatant example of an arbitrator applying a different standard than the MSPB on a particular kind of charge, but that was nothing compared to the performance case that I am writing about today.  This case is American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs (2016).  The decision came out June 10.  I hope the DVA filed an exception.

Background

The grievant was a Vocational Rehabilitation Counselor, GS-12.  She had been in her position for over ten years and had previously passed the Skills Certification Test for her position.  She worked in an “out-based” location away from where her supervisor was located.

There is a current announcement out for a job like this on USAJOBS.  It’s an opening at GS-101-9 target GS-12. The duties described include the following: 1) Provides and coordinates a wide range of rehabilitation counseling and case management services to veterans with disabilities and other eligible individuals, 2) Performs initial evaluations, makes eligibility determinations, does rehabilitation planning and problem solving, and conducts counseling, 3) Coordinates and implements rehabilitation services, completes case documentation, employment services, and administration and interpretation of vocational testing, 4) Makes recommendations and referrals to other sources, which may assist the veteran.  Clearly these are functions that veterans are in desperate need of at this time (the Bureau of Labor Statistics shows an unemployment rate for veterans this summer of 4.9%).

The qualifications requirement for the GS-9 is a master’s in rehabilitation counseling.  It appears from the current announcement that specialized experience can be gained in other Federal, state, and local rehabilitation work, but that is only substitutable for an internship requirement and doesn’t meet basic qualifications. The grievant arrived as a GS-9 employee in 2001 and was promoted to GS-12 in 2002 according to testimony of the deciding official.  The grievant admitted in her testimony that there were issues with her meeting the required standards in FY 13 and FY 12.

The PIP

The supervisor testified in the hearing that in September 2014 she found that the employee was failing three critical elements:  Quality of Work, Timeliness, and Successful Closure or Production. These elements are measured by national, number-driven standards. The standards included numbers like 88% on Fiscal Accuracy, 96% on Entitlement Determination, 83% on Accuracy of Evaluation, Planning, and Rehabilitation, etc.  I don’t know about my readers, but 83% and 88% seem generous to me – 12-17% improper payments would be okay????

The grievant provided testimony about whether the numbers were applied equitably – that sometimes there were delays in receiving course certification from a school a veteran was attending, and there were issues about computer down time.  The account of the management testimony on these points recounted in the decision is not what I would have hoped to see – that these are national averages that take into account certain problems in system availability, leave time, and problems in obtaining records, but that hundreds of counselors are able to meet these standards across the country every year.  Testimony about how they were developed, how long they had been used, etc., would have been helpful.

The PIP notice was prepared with union participation.  There was an oral meeting where failings were discussed and after the meeting, the employee and the union were asked for input.  There were two extensions to the PIP to provide time for training where the employee (a GS-12 full performance level employee) was taking training in the Vocational Rehabilitation Counselor Fundamentals. Another extension was granted at the employee’s request.  During the PIP there were bi-weekly meetings by telephone and in person.  The arbitrator wrote that “… copies of the meetings were documented and provided to her.”  I am also assuming that there were notes from each of the meetings that were given to the employee.

During the PIP the employee reached Fully Successful on two elements but remained at unacceptable on Quality of Work.  If I am following the decision correctly it seems that the PIP was issued in September 2014 and ended in March 2015, so the grievant had a six-month opportunity period.  Because she was at Unacceptable in one of her elements at the end of the PIP, she was removed from her position.

The Arbitrator’s Conclusion

The arbitrator overturned the removal.  When I read this decision this summer I nearly fainted.  Here is the highlight from Findings and Discussion: “The testimony is clear that the grievant seriously endeavored to achieve acceptable work performance and was unsuccessful in Critical Element 3 of her Performance Appraisal.  The determination of successful performance of Critical Element 3 is undisputed.  It is unclear whether the performance level was of her own making or due to a combination of attributing [sic?] factors.”

The arbitrator credited the employee’s account about delays in processing actions because of computer issues.  Management did not refute that to the arbitrator’s satisfaction.  But that was just one aspect of the unacceptable performance.   The decision goes on:

The failure of the grievant to meet standard in relation to the Quality of Work Critical Element presents similar concerns of fairness.  Particularly noteworthy is the grievant’s outcry for supervisory assistance in constructing an acceptable report.  Here again, the evidence is clear that supervision did exactly what was called for by Article 27, Section 10 in relation to identifying specific performance-related problems and deficiencies … TMS training, extending the period of the PIP and others.  Missing however is the response to her persistent request of the grievant for guidance and discussion on how to present an acceptable write-up to her supervisor.

The employee wanted samples.  Apparently, the employee asked the supervisor and other employees for samples of a properly completed report.  The supervisor told her she should be able to create that herself.  In other words, it appears she couldn’t create an acceptable report on her own and needed a go-by.

The arbitration decision addressed Douglas Factors in discussing that the employee was not responsible for delays caused by system problems. “The same kind of delay has contributed here to the grievant’s separation as though she was at fault.  An employee without fault has been penalized.  Thus, the extent or degree of any impact on Douglas Factor consideration is improper and cannot be found that the agency acted within the meaning of fairness an objectivity of Article 27.…  (It does appear that a manager testified about Douglas factors, but the arbitrator should know better.) [Editor’s Note: Douglas Factors have NO PLACE in a 432 unacceptable performance removal because the penalty cannot be mitigated. This is the second DVA case in a matter of weeks that we’ve run across in which Douglas Factors were improperly considered in an Unacceptable Performance removal under 5 CFR 432, see Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)(infra). Somebody needs to come to our classes, learn our business, and get the word out.]

The arbitrator ended with this:

“Despite the lack of any procedural errors in relation to the grievance [sic] performance appraisal and PIP, the grievance [sic] removal remains contractually deficient.  The Master Agreement recognizes and affords employees the right to a fair and equitable performance appraisal to the maximum extent possible.  Refusing reasonable requests of an employee assiduously endeavoring to maintain employment is hardly fair or equitable…  In the effort to be procedurally or mechanically correct in separating the grievant, management apparently lost sight of the underlying substantive purpose of a performance appraisal and the role of supervision in relation to PIP’s.”

American Federation of Government Employees, Local 1923 and U.S. Department of Veterans Affairs, 116 LRP 25915 (June 10, 2016). If I were keeping a list of names to strike….

Seventh Circuit Grants Petition for En Banc Review in Sexual Orientation Case

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By Deryn Sumner

As we’ve discussed a few times in this space, in July 2015, the EEOC’s Office of Federal Operations made headlines when it declared in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) that claims of sexual orientation were simply claims of sex discrimination, stated claims under Title VII, and should be processed by federal agencies under existing procedures.  The EEOC made further headlines earlier this year when it filed two lawsuits against private sector employers alleging sex discrimination against gay employees and relying upon Baldwin to argue the cases had standing.  The plaintiff-side employment law community seized upon this, to varying degrees of success.

However, there was a recent victory in the form of the Court of Appeals for the Seventh Circuit’s grant of a request for a rehearing en banc in the case of Hively v. Ivy Tech Community College.  There, a part-time adjunct professor argued she was denied full-time employment and subsequent promotions because of her sexual orientation, and she filed a lawsuit under Title VII.  The District Court granted the College’s Motion to Dismiss, which the Court of Appeals affirmed in its July 28, 2016 decision.  See Hively, 830 F.3d 698 (7th Cir. 2016). That decision included extensive discussion of the surrounding law relating to sexual orientation claims, which up until recently had been focused on the idea of sexual stereotyping.  The Court noted that Congress had not included sexual orientation as a basis under Title VII, and recent attempts at amendment had been unsuccessful.

The decision concluded, “Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, (see Baldwin, 2015 WL 4397641 at **5, 10); many of the federal courts to consider the matter have stated that they do not condone it (see, e.g., Vickers, 453 F.3d at 764–65; Bibby, 260 F.3d at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene, 243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 Fed.Appx. at 51; Silva, 2000 WL 525573, at *1); and this court undoubtedly does not condone it (see Ulane, 742 F.2d at 1084). But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.” Id .at 718. 

Seems pretty final, huh.  However, the Court of Appeals just last week granted the appellant’s petition for an en banc rehearing.  Such requests are very rarely granted and this seems to signal that there’s more to come from the Seventh Circuit on this issue.  Oral argument has been scheduled for November 30, 2016 and we’ll keep you updated on this and other developments in Title VII case law.  [email protected]

Changing the Law Won’t Help

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By William Wiley

Dear Mr./Ms New President,

Sometimes I don’t know whether to scream or cry.

Last week was the 38th anniversary of the passage of the Civil Service Reform Act of 1978. In 1984, MPSB held that under the “new” Civil Service Reform Act, although it could mitigate unreasonable removals for misconduct taken under 5 USC Chapter 75, it had no similar authority to mitigate removals for unacceptable performance taken under 5 USC Chapter 43. Thus, one of the great gifts of the Reform Act came into existence: the ability to fire an unacceptable performer who failed a PIP (performance improvement plan) without having to defend not taking some lesser action, such as a demotion or reassignment. From the earliest days, we learned that we had to include a Douglas Factor analysis if we fired someone for misconduct, but not if we fired him for failing a PIP. Lisiecki v. Federal Home Loan Bank Board, 23 MSPR 633 (1984).

Some 30 years later, DVA fired a guy for failing a PIP, entitled the removal “Unsuccessful Performance,” and referenced 5 USC Chapter 43. However, it included in its appeal submissions a Douglas Factor analysis, which the Deciding Official referred to in justifying not taking a lesser action. MSPB reasoned that since the agency included a Douglas Factor analysis, it must REALLY have been taking a misconduct removal under 5 USC Chapter 75 regardless of its claims otherwise, required it to justify its penalty and applied the higher preponderance of evidence standard required in misconduct removals (rather than the lower “substantial evidence” burden of proof called for in performance actions).

In 1217, King John signed the second Magna Carta, thereby establishing for the first time in countries that base their laws on those of England (as we do here in the Colonies), that the government will treat its citizens fairly before taking away their property. In a subsequent Magna Carta in 1354, English law even came up with a name for this new requirement for fairness: due process. We brought due process into our country when our fore-parents drafted the Constitution. The Federal Circuit applied it in the world of federal employment law 30 years ago when it said that Deciding Officials violate due process if they rely on information unknown to the employee when deciding to fire the guy. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Some 800 years later, in 2013, a DVA Deciding Official (DO) listened to recordings of inappropriate customer phone calls involving the proposed-removal-employee. The DO then relied on those calls when deciding to fire the employee for taking too long on those calls. This little due process violation is what we in the business call a “two-fer”. Not only did the DO violate Sullivan by relying on secret information, she also upheld a charge other than the one that was brought; e.g., Inappropriate Calls vs. Too-Long Calls. Walls v. DVA, DE-0752-13-0278-I-1 (September 7, 2016)(NP)

Our friends at DVA have been in the media a lot the past year or two, for several reasons:

  • A whistleblower revealed what has been described as a wide-spread practice of juggling the appointment books so that it appeared that DVA was providing prompt medical care to our vets when in fact a number of them were waiting months and years for an appointment.
  • Congress brought pressure on DVA top leadership to punish those managers responsible for gaming the appointment system and thereby harming our vets.
  • In response, political appointees at DVA stated that it was hard to discipline bad federal employees because of the onerous civil service protections. In support of this claim, it pointed to two or three instances in which DVA had indeed disciplined senior managers, only to have those actions set aside on appeal by the mean old Merit Systems Protection Board.
  • In response to that response, Congress changed the law to reduce the period of time an SES employee at DVA has to defend himself before he can be fired (from 30 days to 7), and foreclosed review of the judge’s decision by the three politically-appointed members of the Board at MSPB. As of this writing, similar legislation has been proposed (or maybe even enacted; I lose track with end-of-year continuing resolutions) to extend these reduced protections to most all DVA employees.

Oh, the misplaced effort. If Walls is an example of why agencies are losing cases before MSPB (and it is), the fault lies not in the law, the fault lies in the lack of knowledge of the laws that control the procedures we use in the federal workplace. Congress can reduce the darned notice period down to 15 minutes, and DVA is still going to lose cases if it hasn’t learned to apply legal principles that have been around since the Middle Ages (when we burned witches at the stake, all educated people communicated in Latin, and the top leadership positions for women in society were as either an abbess or a queen regnant).

There simply is no excuse for the procedural errors that were made in this case. FELTG phones are open every workday of the year. Our online registration is available 24/7. We work our trainers so hard that they beg for mercy (and an increased per diem allowance to cover their sizeable bar bills). If you are in a leadership position within your agency, and you’re tired of losing cases on appeal, go look in the mirror. The odds are awfully good that the problem is not in the civil service protections in law. If your lawyers and human resources professionals do not know how to handle these cases, the problem is in you.

With all due respect. [email protected]

OFO Awards $8,000 in Compensatory Damages Where Complainant Submitted Evidence of Substantial Harm but Failed to Link It to Agency’s Actions

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By Deryn Sumner

Successful claims for non-pecuniary compensatory damages need two things: evidence of harm and evidence of a connection between the harm and the agency’s actions.  Last month, the Office of Federal Operations issued a decision that clearly articulates the need for complainants to link the harm alleged to the agency’s actions found to be discriminatory.  In Kit R. v. Department of Army, Appeal No. 0120140952 (September 23, 2016), the complainant had great evidence of harm but failed to meet that second requirement.

After establishing that her performance appraisal had been downgraded in retaliation for her prior EEO activity, the complainant submitted statements from herself, her physician, and two of her children.  And on its face, it’s great evidence in support of a large award of compensatory damages.  The complainant stated that her supervisor’s actions caused her to feel angry, insecure, have lowered self-esteem, negatively impacted her sex life, and caused her not to be able to sleep at night but to sleep all day.  Her children, whose ages were not identified in the decision, stated that she did not speak to them for months at a time, that she would use profanity for no reason, her eating habits were impacted, and she would “sleep all day in a very dark house.” Her physician submitted a statement that the complainant slept for approximately four hours every night, experienced fatigue, and even had suicidal thoughts.

Based on this evidence, you may be thinking that the agency would be on the hook for somewhere between $45,000 to $100,000 in compensatory damages.  But the Commission awarded $8,000.  Although there was a lot of evidence of harm, the Commission concluded, “after reviewing these documents, we find that Complainant generally failed to link the retaliatory appraisal to the symptoms and conditions she reported.” Thus, the Commission found an award of $8,000 to be appropriate for the “generalized assertion that she was distressed because of the appraisal.”

It can be very hard to challenge allegations of harm raised by complainants and their friends, family members, and medical care providers.  However, agencies can often effectively argue for reduced awards where, as here, the complainant failed to establish a sufficient link between the harm and the agency’s actions found to be discriminatory and/or retaliatory. [email protected]

Making Yourself FELTG-Smart

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By William Wiley

Sometimes in one of our seminars, after we present an especially scintillating nugget of employment law advice, a participant will break down in tears saying something like this:

“How do you guys do it? You always seem to know what to do in most any employment law situation. Do you commune nightly with God? Do the Board, Commission, and Authority members vet their decisions through you for correction? Do your instructors have permanent cyberFEDS© connections blue-toothed into their cerebral cortexes?”

Yes, yes, yes … we do at times appear to be magical and unusually wired. And although our secret connections have to remain secret, we can share with you a trick that will help move you along the road toward FELTG Nirvana, gathering employment law wisdom as you progress, making you nearly as smart as our FELTG instructors (although, of course, never quite reaching that level of expertise).

Prepare to be enlightened, because the trick is:

  1. Read the case decisions.
  2. Draw practice conclusions.

Here’s how it works. Consider, if you will, the following analysis from a relatively routine MSPB opinion:

The evidence considered by the administrative judge consisted entirely of out-of-court witness statements, and she evaluated the probative value of that hearsay evidence, including but not limited to the deciding official’s sworn affidavit refuting the appellant’s claims, based on the factors set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981). Under Borninkhof, the following factors affect the weight to be accorded hearsay evidence: (1) the availability of persons with firsthand knowledge to testify at the hearing; (2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s explanation for failing to obtain signed or sworn statements; (4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made; (5) consistency of declarants’ accounts with other information in the case, internal consistency, and their consistency with each other; (6) whether corroboration for statements otherwise can be found in the agency record; (7) the absence of contradictory evidence; and (8) the credibility of declarant when she made the statement attributed to her.

The administrative judge found that the appellant withdrew her hearing request; accordingly, the witnesses could not provide hearing testimony. The administrative judge also found that all except one of the witnesses’ statements were signed and made under the penalty of perjury. The administrative judge found that the appellant and the deciding official were not disinterested witnesses and that their statements were contradictory. The administrative judge found that the appellant failed to prove her claim of race discrimination because it was based entirely on double hearsay, which lacked sufficient reliability to have real probative value, and that she submitted only “sparse ” evidence showing that her removal was motivated by her race or by her association with a race. The administrative judge also found it significant that the appellant failed to submit corroborating evidence consisting of statements from disinterested witnesses substantiating the alleged race discrimination or contemporaneous evidence in diary or journal entries reflecting the alleged discriminatory comments.

When reading this decision, you could scan through this language, appreciating that it’s foundational, then skip ahead to find out what happened to the appellant in the case. Or, if you were trying to become FELTG-smart, you could stop a second and consider whether there might be hints in here that you should use to tweak the way you do this business in practice, e.g.:

When relying on hearsay evidence in an appeal (as we all have to do on occasion), be sure to argue any of the following that are true statements:

  1. There was no one available who had first-hand knowledge of this evidence.
  2. The out-of-court written statements were made in affidavit form and co-signed by a witness.
  3. You could not get sworn statements for a very good reason (being stupid or not reading the FELTG newsletter are not very good reasons).
  4. The people making the statements are disinterested parties to the appeal.
  5. The statements are consistent with other evidence in the record.
  6. The statements can be corroborated by other evidence in the record; e.g., the individual who made the hearsay statement was keeping a contemporaneous log of events (tell your clients to keep contemporaneous notes as a case develops).
  7. There is no unbiased contradictory evidence in the record.
  8. The Hillen credibility factors support a conclusion that the person giving the statement is more likely than not telling the truth.
  9. Double hearsay (e.g., Bill’s out-of-court statement says that he heard Deb say that Ernie punched Peter, if offered to prove that Ernie indeed punched Peter) isn’t worth a bucket of warm spit.
  10. The other side’s evidence is “sparse,” a lovely subjective word that can be stretched to cover what might otherwise be characterized by the other side as “significant,” and done so with a litigator’s straight face.

There you have it. A trick to help you learn how to build a case for your side of the hearing room by applying practical lessons to implement a foundational principle in federal employment law. Now all you have to do is read all the other opinions issued by an oversight agency and draw similar practice conclusions. Or, alternatively, you can sign up for one of our fantastic FELTG seminars and learn from those of us who have gone before and have already done the leg work for you. [email protected]

What Do We Mean When We Talk About “Qualified Individuals with Disabilities”?

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By Deryn Sumner

A few weeks ago, I had the pleasure of teaching FELTG’s biannual EEOC Law Week alongside Ernie Hadley and Gary Gilbert.  On Wednesday, we covered disability discrimination law and focused much of our time on talking about when one is considered disabled, for purposes of making a claim of disability discrimination and the law surrounding requests for reasonable accommodations.  As Ernie likes to say, when analyzing disability discrimination claims, there are no points for creativity.  You should walk through each part of the analysis in order, starting with whether the employee in question is an individual with a disability.  After passage and implementation of the ADAAA more than seven years ago, that analysis has become rather perfunctory as the definition of what constitutes a major life activity was widely expanded, and Congress took great pains to highlight that the purpose of the Act was for broad coverage of those who need its protections.

The next step in the analysis is whether the employee in question is a qualified individual with a disability.  Because we received some questions about this part of the analysis during our training, I wanted to dedicate some space here to explain what we mean when we talk about “qualified.”

The Commission’s regulations at 29 CFR 1630.2(m) define qualified as “the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”

Most of this definition is straightforward.  An employee, or applicant for a position, must be qualified by way of having the right skillset, prior experience, and whatever educational requirements are needed.  The government has no obligation to place unqualified individuals into positions, even if they are protected by virtue of having a disability.

The part that trips up agencies is that an individual can be qualified if he or she can perform the position with accommodation.  “But wait!” you exclaim.  “We were told not to skip any steps in our analysis and now we’re focused on reasonable accommodation before we’ve determined if the employee is actually entitled to one!”  Yes, that’s true, and I don’t have a good response for you as to why “reasonable accommodation,” which isn’t actually defined until later in the sub-section, is used to define “qualified.” But it is part of the definition and must be considered in looking at whether the employee is a qualified individual with a disability.

The second part that can create trouble is the last phrase: “essential functions” of the position at issue.  What is an essential function?  Again, let’s look at the definition in the regulation at 29 CFR 1630.2(n):

(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(3) Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

Note that the definition contains a variety of factors, none of which are, “I dunno, whatever the employee’s position description says.”  The employer must actually think about what the individual does from day-to-day in his or her position.  Also note that the definition envisions employees holding the same position in different duty locations to have different essential functions. As we discuss, it’s a heck of a lot easier to determine a job duty is not essential if there are thousands of other employees in a facility who could perform the job duty than someone in a geographically-remote and sparsely-populated workspace.

Employers most often run into problems by failing to actually think about and define the essential job duties when reviewing accommodation requests.  Keep these definitions in mind to make sure your analysis is appropriate. [email protected]

A Love/Hate MSPB Decision

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By William Wiley

I think I’ve read maybe 10,000 MSPB initial decisions over the years. Most were good to very good, a real credit to the judges at the Board and their leadership. However, every now and then – perhaps 1 out of a 1000 – stands out as particularly well done. And recently, I ran across one of those.

The appellant’s situation is a sad one. After receiving a proposed 14-day suspension for possession of alcohol on agency premises and unauthorized use of government property, the employee entered into a Last Chance agreement (LCA) in which the agency agreed to hold the implementation of the suspension in abeyance to give the employee a chance to undergo rehabilitation related to his alcohol use. A condition of the agreement was that the employee would refrain from future misconduct for one year.

Very smart agency move – most likely implemented by one of our FELTG-certified MSPB Law Week practitioners.

Unfortunately, the employee just could not get his situation under control. So when the agency later found him under the influence of alcohol and living in an agency building (with his dog! Isn’t that some sort of mitigating factor under Douglas?), the agency notified the employee that he had violated the abeyance agreement, and imposed a 14-day suspension. A month later, it proposed the employee’s removal based on charges of alcohol impairment and misuse of government facilities. In selecting the removal penalty, the deciding official relied on the originally-abated 14-day suspension as a prior act of discipline, thereby applying the principle of “progressive discipline,” and fired the employee. Duffy v. DVA, SF-0752-15-0552-I-1 (June 15, 2016).

I’ve been waiting on resolution of this narrow point for a number of years. Suspensions that are held in abeyance are rare as compared to removals held in abeyance, so the issue does not come up often. On one hand, as the judge did here, I can see counting the suspension as a prior act of discipline because the employee engaged in previous misconduct and served his suspension prior to the proposal to removal. On the other hand, as a psychologist, I can argue that the suspension should not have been considered as a prior act of discipline because the employee has not had the “benefit” of the negative reinforcement that comes from serving a suspension. We punish (cause a little pain by suspending without pay) to motivate an employee to do better, to obey our rules. In this case, the employee was punished after he committed the misconduct that resulted in his removal. Therefore, he did not have the benefit of the pain of a suspension to motivate improved conduct. And arguably therefore, the suspension cannot be counted as a prior act of discipline for the purpose of an enhanced penalty based on progressive discipline.

Fortunately for DVA, this judge had no problem with counting the suspension as a prior for purposes of a Douglas analysis. And unless that finding is set aside on appeal, it will become a rule we can all apply. If so, I can see a future in which we never suspend anyone. If we can get the same bang for our buck by holding the suspension in abeyance and implementing it only when there is future misconduct warranting discipline, why in the world would we go through the hassle of a grievance, an arbitration in a union environment, an EEO complaint, or a complaint to the Office of Special Counsel? A smart agency (as here) would propose a suspension, then cut a deal with an employee to accept an abeyance agreement instead. Soooo much easier.

I love this decision for taking on this issue and stating an answer. At least now we have something to hang our litigation hats on should we choose to use an abeyance’d-suspension as a prior act of misconduct in a penalty analysis. But there’s so much more.

There were a number of other issues in this case:

  • Did the employee waive his rights in the LCA to challenge any eventual removal for misconduct?
  • Does a charge of “alcohol impairment” require an agency to prove that the employee was legally intoxicated?
  • What weight should be given to unsworn statements by law enforcement officers as to the indicia of the employee’s being under the influence; e.g. slurred speech, swaying, disorientation?
  • What is the best evidence that should be presented when using the results of a breathalyzer test to establish intoxication?
  • How valuable is a penalty-of-perjury-declaration when the deciding official swears that just one of the two charges proposed would warrant removal?
  • Why is it prudent to have the Proposing Official complete a Douglas Factor analysis as compared to a Deciding Official?

The reason I love this decision is that the judge to his great credit took on each issue (raised by highly competent appellant counsel, by the way), cited extensively to the record and the controlling precedence, and then reached a firm, defensible conclusion. The initial decision is 25 pages long with 17 footnotes. I encourage anyone who has any of these issues to review the well-written and well-supported judge’s decision. You will find rationale and case law to support exactly where the Board is today on each of these matters: 116 LRP 35609 if you have CyberFEDS©. Alternatively, you can come to the next FELTG seminar MSPB Law Week seminar (March 13-17, 2017 in Washington, DC) and we will be happy to explain this stuff to you.

Yet I also hate this decision. It took this very smart judge 25 pages and 17 footnotes to resolve this appeal. Yes, he has created a terrific learning tool for us practitioners. However, the expense of the creation of this learning tool is significant. In my practice, it takes me about an hour to write each page of a legal document like a decision. Given the workload that the current leadership at MSPB (soon to be gone in just over four months) has placed on itself and thereby its judges, one has to wonder whether the cost of this decision is worth the value it has provided to the appellant and to the agency. In other words, could a shorter decision have been written to provide the same value to the parties as this longer decision did, without taking so much legal time and effort to get there?

Of course, here at FELTG, we like to ask ourselves questions, and then answer them so that we look smart. We encourage you to read the judge’s decision in its entire 25-page glory, and then consider the following as an alternative way of resolving an appeal of a removal in a case that has many significant issues and is well-litigated:

Heading: [As usual]

Appellant Darrell Duffy has appealed removal from his position as a WG-4749-10 Maintenance Mechanic for misconduct at the Department of Veterans Affairs.

Charges (abbreviated):

  1. Alcohol impairment – On December 17, 2014, a breathalyzer revealed the appellant’s blood alcohol level to be 0.065.
  2. Misuse of Government Property – On December 17, 2014, the appellant was found to be storing approximately 40 boxes of personal property within agency facilities.

Issues:

  • Claim – The appellant waived rights to appeal this removal because of a “Last Chance Agreement” (LCA) that held a prior 14-day suspension in abeyance.

Holding – Although the LCA specifically waives the appellant’s rights to contest the 14-day suspension, it did not specifically address waiver of any appeal rights relative to a subsequent removal. Moreover, the agency treated the subsequent removal as a classic adverse action removal by basing the removal on new charges and by giving the appellant full Board appeal rights. If the agency believed that the appellant had waived his rights to a subsequent removal when he entered into the LCA, it would not have framed new charges and it would not have given MSPB appeal rights. Therefore, the appellant may challenge the validity of the removal on the merits as there is NO RIGHTS WAIVER.

  • Claim – A charge of “Alcohol Impaired” requires the agency to prove intoxication at a level defined in law as legally intoxicated.

Holding – A charge of impairment does not require proof of intoxication. The unsworn statements of the police officers (though better if sworn) that the employee’s speech was slurred, that he was disoriented, had bloodshot watery eyes, appeared nervous and standoffish, and smelled of alcohol coupled with the breathalyzer reading and the employee’s admission that he had been drinking the night before, established that it is more likely than not that he was alcohol-impaired while at work. Although I have credited the unsworn statements of the police officers relative to the breathalyzer results, better evidence would have been a contemporaneous photograph of the reading on the breathalyzer. Charge 1 is SUSTAINED.

  • Claim – Appellant’s decision to move personal items into the agency’s facility was caused by a lapse in judgment that resulted from his alcoholism.

Holding – Whether intentional or inadvertent due to his alcoholism, the photographic and testimonial evidence fully supports that the appellant stored personal items, including a dog, on agency premises without authorization. The appellant stated in deposition that his poor judgment was not related to his alcoholism. Charge 2 is SUSTAINED.

  • Claim– The agency committed three harmful errors: 1) double-punishment, 2) failure to conduct a proper investigation, and 3) the Proposing Official conducted a premature Douglas Factor analysis.

Holding – As for 1) the double-punishment claim, the 14-day suspension was for alcohol at work in November. Although the December alcohol event established a breach of the LCA and also formed the basis for the eventual removal, it was not the basis for the prior discipline that resulted from the November alcohol event. Separately, the Deciding Official testified that he would have removed the employee even if there had not been a prior disciplinary act based on alcohol. Therefore, no double punishment. As for the 2) proper investigation issue, although the appellant points to sections of the relevant collective bargaining agreement that arguably call for a management investigation separate from a police investigation, even if error, the appellant has not shown how he was harmed by the error. As for the 3) claim that it is agency policy for the Deciding Official to perform a Douglas analysis, not the Proposing Official, I am aware of no law, regulation, or policy that imposes such a limit. In fact, given the holding in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011), such an approach would appear to be prudent and act to ameliorate potential injustice. Therefore, I find the agency DID NOT COMMIT ANY HARMFUL ERRORS.

  • Claim – The agency failed to accommodate the appellant’s disability of alcoholism and otherwise treated him disparately and harassed him because of his alcoholism.

Holding – The appellant presented neither direct nor circumstantial evidence that he was treated more harshly as compared to non-alcoholics who engaged in similar misconduct. In addition, even if alcoholism caused the employee’s misconduct, he is not immunized from discipline. The agency is free to hold him to the same conduct standards as a non-disabled employee. As for a failure to accommodate the appellant by refraining from disciplining him and allowing him to seek treatment for his alcoholism, an alcoholic is not entitled to such a “firm choice” accommodation. As for any claim of disparate impact, the appellant has not presented any statistical evidence to support such a claim. As for the claim of harassment based on his status as an alcoholic, the appellant has not presented any evidence that any treatment by the agency was motivated by his status as an alcoholic. Therefore, I find NO DISABILITY DISCRIMINATION.

  • Claim – The agency has failed to prove a nexus between the appellant’s misconduct and government efficiency because it has not proven that the appellant could not do his job satisfactorily even though he was under the influence of alcohol at work and stored personal possessions in the agency’s facility.

Holding – Proof of nexus is not restricted to demonstrating actual impediment to full job performance. Charges such as these implicate a palpable effect on management’s trust and confidence in an employee’s job performance. Therefore, I conclude that the agency HAS PROVEN A NEXUS between the charged misconduct and the efficiency of the service.

  • Claim – The penalty of removal is unreasonable.

Holding – The Deciding Official’s analysis of the Douglas Factors is complete and worthy of deference. He relied heavily on the original Douglas Factor analysis completed by the Proposing Official and found it holistic and compelling. Relevant aggravating factors included safety concerns raised by the appellant’s misconduct, the repeated nature of the misconduct within only a year, the public nature of his work, prior notice of his misconduct, the fact that this was a second disciplined offense, a lack of rehabilitation potential, and a lack of alternative sanctions. Therefore, I find that ANY MITIGATING FACTORS ARE OUTWEIGHED BY THESE AGGRAVATING FACTORS.

Decision: I AFFIRM the removal action.

[Standard petition for review rights.]

As we teach in the wonderful FELTG Legal Writing seminar, the author of a legal document should always keep in mind the purpose of the document. Therefore, we should ask, “What is the purpose of a judge’s decision?” Here at FELTG, we would argue that in a removal appeal the purposes of an Initial Decision are, in priority order:

  1. To resolve the question of whether the agency legally removed the appellant.
  2. To inform the parties as to what the judge concluded relative to the issues on appeal.
  3. To justify the judge’s decision to those who might review it on further review: Board members and federal judges.

While this decision is terrific for its well-reasoned and authoritatively-supported conclusions, it feels as if it is trying to address a purpose other than these three. Whether there are additional purposes, and whether they are worth the cost involved in drafting a 25-page decision, are questions that we hope the new leadership at the Board will address. Another little note for our new President. [email protected]

Learning from Our Mistakes

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By William Wiley

If you’ve never made a mistake in this business of federal employment law, you either just started work last week, or you are not being aggressive enough. We all make mistakes. The trick is to learn from them. Sadly, too many agencies make mistakes that have been made for over a quarter of a century without seeming to have learned that they were mistakes to be avoided. Let’s deconstruct a recent adverse MSPB decision and hope that we FELTGers can learn from it.

Rosario-Fabregas v. Army, NY-0752-13-0142-I-2 (2016)(NP)

Action on appeal: Removal, GS-12 Biologist

Judge’s decision: Mitigate to a 30-day suspension

Board’s decision: Affirm the judge’s mitigation

Charge 1. Conduct Unbecoming: The employee edited letters on behalf of outside organizations with interests contrary to those of the federal government (five specifications).

Board’s Decision: Although the agency proved that the appellant edited letters for outside organizations, for four of the five specifications it did not prove that those organizations maintained interests contrary to those of any federal agency; e.g., the deciding official did not identify any interests he believed were contrary to those of the federal government. Therefore, one specification (and thereby the charge) affirmed.

Charge 2.  Insubordination:  The agency determined that a private organization did not need a permit for some act within the agency’s jurisdiction. The appellant voiced his conclusion that indeed a permit was required. The second level supervisor reconsidered the no-permit determination and concluded that it was correct. The appellant maintained his disagreement with that conclusion. When directed to issue the no-permit finding, the appellant “still maintained his original position” and was “openly antagonistic and disregarded the decision-making authority of his chain of command.”

Board’s Decision:  A charge of insubordination requires the agency to prove that the employee willfully disobeyed an order. The appellant testified that he complied with the order to issue the no-permit-required letter to the private organization. The deciding official had no personal knowledge as to whether the letter was issued. The proposal letter suggested that it was not issued, but the proposing official did not testify. Therefore, the charge fails. Being antagonistic is not being insubordinate.

Charge 3:  Inappropriate use of official time (five specifications).

Board’s Decision:  The editing of the letters at issue were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Charge 4:  Inappropriate use of government property (five specifications)

Board’s Decision:  The editing of the letters at issue on a government computer were not a responsibility specified in the employee’s position description. Therefore, all five specifications were sustained.

Summary:

  • The removal was based on four charges, three which had five specifications (4C + 15S).
  • The Board affirmed five specifications to support each of two charges, one specification in the other multi-specification charge, and set aside the Insubordination charge that had no specifications (3C + 11S).

Penalty factors warranting mitigation:

  • Not all specifications were affirmed.
  • The most serious charge, insubordination, was not affirmed.
  • The employee had not been informed of any specific rule that prohibited the editing of letters like the ones at issue here.
  • Letter editing was commonplace within the agency.
  • Although adverse notoriety was claimed by the deciding official to be possible, the actual notoriety relative to the letter editing was positive.
  • Although a lack of rehabilitation potential was claimed by the deciding official, the appellant was on record as saying, “I give my word of honor as a man that I would not correct any other letter for anybody else and that I would not argue about regulatory processes with my fellow staff. I would avoid any type of conflict, no matter its complexity.”

Learning points we have been making in our FELTG training for 15 years that, had the agency applied them, would have caused the removal to be upheld;

  • The fewer the charges and specifications, the better. We teach SHORT and SPECIFIC when it comes to discipline. That’s because, as happened here, the more the agency charges, the more the agency is required to prove. If the agency starts losing charges or specifications on appeal, the more likely it is that MSPB will set aside a removal.
  • Every element of a labeled end charge MUST be proven by a preponderance of the evidence. When the agency charged “Insubordination,” it obligated itself to prove that the order was not obeyed. Although it proved that it was mad at the employee for being cantankerous, it neglected to enter into evidence that the employee did not obey an order.
  • There are five elements to every removal action. The first one is that the agency must prove the existence of a rule, and the second one is that it must prove the employee was informed of the rule. Rules that are not enforced cease to be rules as an employee is reasonable to conclude that the agency did not intend to enforce its rule. Here, the agency failed to enter evidence to show that the employee had been told of a rule not to edit letters, and it was commonplace for letters to be edited.
  • Statements of fact in a Douglas factor analysis (the penalty defense explanation) MUST be proven by a preponderance of the evidence. When an agency claims potential bad publicity and a lack of rehabilitation in the face of good publicity and a positive indicator of rehabilitation, it is going to lose those claims for a lack of evidence.

Fun Facts:

  1. The Appellant won his appeal on his own, without a lawyer or other assistant.
  2. The Appellant won without requesting a second hearing, precluding the agency from introducing testimonial evidence.
  3. This decision was effectively a re-litigation of a prior appeal by this employee. The prior appeal was of a previous removal that was based essentially on the same charges that were the basis in this appeal. The really fun fact is that the judge in the first appeal upheld the removal.

Come to our classes. Learn the law. Do not assume that because you are smart and right, your removal will be upheld on appeal. [email protected]

 

 

Legalized Lying

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By William Wiley

Consider this scenario:

  • Jane writes a letter to the director of human resources at her agency (or files an Inspector General complaint, or blows the whistle with the Office of Special Counsel, or writes to her Congressman). In that letter, she accuses her supervisor of forcing her to have sex with him or be fired during probation. Above her signature she appends the old penalty-of-perjury statement and swears on all that is holy that she is telling the truth.
  • John writes a letter to the HR director saying he saw the incident occur. Same truthfulness attestation.
  • The supervisor denies the allegation. However, because it’s two witness to one, the agency believes Jane and John. It fires the supervisor.
  • The supervisor’s wife becomes aware of the charge and leaves him, taking both kids and the dog with her (not the dog!).
  • Both Jane and John testify under oath at the supervisor’s MSPB hearing that their original statements are true.
  • Subsequently, it’s determined that both Jane and John had acted in bad faith and lied, that they made up their story to get the supervisor in trouble because they did not like him.
  • The agency restores the supervisor to his old job, pays his back pay and attorney fees. The wife moves back in, but the couple needs months of marriage counseling to heal things. But the dog – the poor dog – just cannot put all of this behind him, and barks incessantly every time the supervisor comes home.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  Yes. Making false statements, lying under oath; that’s some serious stuff. Probably a felony; e.g. 18 USC 242, 1621, or 1622. Removal is no doubt a defensible penalty.

OK, similar scenario, except this time, instead of writing a letter to HR, Jane says the same thing in the filing of a sexual harassment discrimination complaint. John’s statement is given to the EEO investigator. Both testify before an EEOC judge.

Question: Can the agency now fire Jane and John for all the harm they caused?

Answer:  No, if the agency is located in Richmond or New Orleans. Yes, if the agency is located in Chicago. Probably not if the agency is located in DC. See Egel v. DHS, Slip op 15-434 (US District Court, District of Columbia) (June 24, 2016).

You see, there’s something at play in this second scenario called the Pettway Rule (Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969)). That rule is based on the analysis that since Title VII of the Civil Rights Act prohibits an agency from taking an adverse employment action because an employee has made a charge or testified in an EEO proceeding (the “opposition” and “participation” clauses), Jane and John cannot be fired because their false statements were made in that context. The Fifth and Fourth Circuit Courts of Appeal have adopted this rule (New Orleans and Richmond), but the Seventh Circuit has squarely rejected it (Chicago).  A single district court judge believes that the DC Circuit is in favor of it (Egel, above) and the rest of us court-watchers are waiting for an answer. EEOC appears to adopt it, but of course it’s the courts we care about if push comes to shove.

Those courts that have adopted the rule reason that to do otherwise would have a chilling effect on the rights of employees to file discrimination complaints. They conclude that statements made in EEO proceedings cannot be the basis for discipline even if those statements are false, malicious, or defamatory. The Seventh Circuit, on the other hand, concludes that only “reasonable” EEO complaint statements made “in good faith” are protected from discipline. Judge Posner from that circuit stated that he “can’t actually believe that forging documents and coercing witnesses to give false testimony are protected conduct.” See Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741 (7th Cir. 2010).

Wow. Talk about a clash of societal values. On one hand, we don’t want discriminated-against employees to be afraid to file EEO complaints. On the other hand, we don’t tolerate lying very much. Here at FELTG, if we were splitting this baby, we’d come down on the side of saying that conclusory statements in EEO complaints are protected (e.g., “He sexually harassed me.”), but false statements of fact are not (e.g., “He forced me to have sex with him.”). Of course, we don’t adjudge anything here and you know what you’re paying for our opinions.

So develop your own opinion on this issue, then write to your member of Congress. Or get elected yourself. Or appointed to the bench. These cases don’t come up very often, but the answer is of fundamental importance to who we are as a society of laws. Do we want federal employees to be able to attack their supervisors by lying about them in EEO complaints? You be the judge. [email protected]