EEOC Issues New Guidance on Retaliation Claims

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By Deryn Sumner

Last month, the EEOC issued revised Enforcement Guidance on Retaliation and Related Issues.  The Commission last issued such guidance in 1998.  Since then, Congress passed the Americans with Disabilities Act Amendments Act, which came into effect on January 1, 2009, as well as the Genetic Information Nondiscrimination Act, the Lilly Ledbetter Fair Pay Act, and other laws which cross paths with claims of retaliation.  Additionally, the Supreme Court issued its decision in Burlington Northern v. White, 548 U.S. 53 (2006), which addressed claims of retaliation in the workplace and held that “context matters” in determining whether an employee’s rights have been chilled because of engagement in protected EEO activity.  So, it’s good to see that the Commission has updated Enforcement Guidance to address these changes.  Just as it did with the Enforcement Guidance issued regarding reasonable accommodation claims, the Commission concurrently issued a question and answer publication to accompany the Enforcement Guidance.

The press release issued by the Commission to announce the publication of this Enforcement Guidance includes a quote from the EEOC’s Chair, Jenny R. Yang, noting that retaliation is asserted in almost 45 percent of charges received by the EEOC, which makes it the most frequently alleged basis of retaliation.  Regarding the federal sector complaints process, the press release noted that retaliation has been the most frequent basis alleged since 2008, and that findings of discrimination on the basis of retaliation comprise between 42 and 53 percent of all findings from 2009 to 2015.  Speaking as someone who reviews the decisions issued by the Office of Federal Operations each year, this statistic does not surprise me.

As we teach during EEOC Law Week, managers often falter after receiving notice that an employee has filed an EEO complaint. Remember that protected activity includes serving as a witness for a co-worker’s complaint, filing your own complaint (including starting the informal counseling process), and requesting reasonable accommodation.  Even if the underlying activity is not found to have merit, an employee can still succeed on a subsequent complaint if he or she can show that agency management took actions to treat the employee differently after learning of the protected activity, or made comments that had the result or intent of chilling the employee’s engagement in protected activity.  When considering claims of retaliation, it’s important to remember two key points.  First, as I’ve discussed in this space in January of this year, what states a claim of retaliation under the Commission’s case law is broader than what states a claim of discrimination.  That is to say, a claim that could be dismissed for failure to state a claim under any other basis could feasibly state a claim of retaliation.

The updated Enforcement Guidance covers what protected activity is, the applicable legal analysis to use to analyze claims of retaliation, the remedies available to successful complainants who file claims of retaliation, and guidance regarding how interference with the exercising of rights under the ADA constitute retaliation.  The Enforcement Guidance also includes specific examples of what constitutes an adverse employment action. The complete Enforcement Guidance is available on the Commission’s website here: https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm.   [email protected]

Is it Just Me, or is Reasonable Accommodation Becoming Trickier?

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By Deborah Hopkins

September 12, 2016

At FELTG we love our webinars. As part of each webinar agenda, we take Q & A breaks to answer your questions. Sometime we get questions that come via email after the webinars end, and occasionally we’ll answer those in our newsletter so that all our readers can hopefully learn something. Today is just such a time.

After teaching a recent webinar on disability accommodation, I received the below scenario from a customer. I’ve changed a few of the details and some identifying information to make this a true “hypothetical,” but the essence of the scenario remains intact.

Dear FELTG Brilliant Minds,

I have a case and I was wondering if you could help.

An employee assigned to a job at Office B (about an hour from our main site, Office A) requested reasonable accommodation (RA) two years ago.  At that time, there was space for her to sit in Office A, which she thought would help, and I told her that she could as long as there was space, and that if she was getting her work done she could work from Office A.  I received a call from our RA rep who reviewed the information with me over the phone and said, “That sounds good.” I asked if there was something else needed, for example paperwork/forms, and he said no.

Fast forward one year, we were starting to run out of space at Office A, and I followed up with HR regarding what to do now. The employee’s position belongs in Office B, is stationed there and should be there.  The original RA rep is no longer working here and the employee’s file is incomplete. There aren’t even any medical records (so I understand).

I told the employee she needs to reconnect with the new RA rep, and again, as long as there is space, she could stay at Office A.  It took almost a full year to get things figured out. Finally, the employee was offered a different job at Office A, in a different department.  She declined.

Now I am a week from having new employees start work, and no desks for them to sit at in Office A, where they will be assigned. 

I prepared a memo for the union explaining that the employee needs to return to her duty station [at Office B], that she declined the RA offered [the reassignment to a different department in Office A], and that the interim accommodation [working at Office A] is no longer possible. 

I asked HR to review this plan, and they told me not to send it, because they employee is preparing another RA requesting telework. Her job is not approved for telework.

I think I am going to proceed with memo to union and request that she move back to her assigned duty station at Office B.

I believe this case has been mishandled, I believe she has a real medical need, but the job is not at Office A and the program really needs the position to be posted in Office B.

Any recommendations?

Thanks in advance.

Thanks for the question. This type of situation is fairly common: these types of “unofficial accommodations” work for a while until something needs to change, and there’s no paperwork to look at to know what the problem is or what other accommodations might work. The good news – or bad news, depending on how you look at it – is that background paperwork and medical records are not really necessary in your situation because the employee has been working at Office A and only now is this possibly starting to cause an undue hardship. No paperwork, no problem; it’s time for a reasonable accommodation reassessment anyway.

Just to be sure we’re coming from the same place, though, let’s review the law on reasonable accommodation.

When making an accommodation request, an employee must show that she is a qualified individual with a disability, and that she needs a reasonable accommodation in order to successfully perform the essential functions of her position without causing harm to herself or others. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

If the agency cannot provide a reasonable accommodation without causing an undue hardship, or no accommodation is available for that job, the agency must next consider reassignment as an accommodation by looking for a vacant, funded position for which the employee is qualified, all the way up to the department level (if the agency is part of a larger Department). If no vacant, funded position is available at the employee’s grade level, the agency should look for lower-graded positions for which the employee is qualified.  If the employee refuses to accept the reassignment, the employee in essence waives the reasonable accommodation right.

At first glance it seems like you have your bases covered, as you’ve already offered the employee another position near the physical location in Office A where she currently sits, and she has refused the reassignment. You mentioned that the position the employee currently holds is not telework eligible, and that HR informed you the employee is in the process of requesting telework as accommodation. There’s an aggressive option and a conservative option. The aggressive option is to tell the employee (and the union) that she needs to go back to Office B next week, and not to consider the telework option until you receive it – after all, you have no paperwork that even confirms the employee has a disability. Here’s where you need to be careful, though. The conservative option is to keep things as they are and allow the employee to work in Office A until you receive the telework request that you know is coming any day now.

Whether you go aggressive or conservative, though, remember this: when telework is requested as a reasonable accommodation, the general rules and policies for telework do not apply, and the reasonable accommodation rules take over.

For example, if a new employee requests telework and the agency telework policy states that all employees must work full-time for a year before being telework-eligible, the agency would be correct to refuse the new employee’s request. However, if that new employee requests telework as accommodation for a disability, the agency cannot unilaterally use the telework policy as a reason to deny the request. See Dahlman v. Consumer Product Safety Commission, EEOC No. 0120073190 (2010). If the new employee has a disability and makes that telework request, the agency is obligated to engage in the interactive reasonable accommodation process and must consider whether telework would be a reasonable accommodation for this employee. If it is, the agency must grant telework if no other accommodation is available. See Kubik v. Department of Transportation, EEOC No. 01973801 (2001). If there is another effective accommodation besides telework, though, the agency has a right to choose that accommodation instead.

You mentioned there are no medical records. Now is a good time to ask your employee for new medical documentation, because but even though it sounds as if you have no questions about the employee’s medical situation, you at the very least need to know what the employee’s limitations are so you can consider which accommodation(s) might work.

Once you know the employee’s medical limitations, you’ll need to look at the essential functions of her position to consider whether telework is a reasonable accommodation. In addition, while you say the program needs someone to be present at Office B, the fact that the employee has been working from Office A for several years might work against you. It is not insurmountable; perhaps having the employee work from another location is now causing an undue hardship at Office B; we just want to make sure you have all your bases covered.

So, assuming the employee has a qualified medical condition, you must now consider whether the employee could do her job from home. As we said above, the analysis for telework as a reasonable accommodation varies from case to case, and the fact that the job is not telework-eligible under the agency policy is not good enough. Because this is a request for RA, you need to consider whether any of the employee’s work can be performed from home. See Ellis v. Department of Education, EEOC No. 01A42966 (2006). Perhaps it is not possible for this job to be performed at home; for example, jobs that require patient contact, or access to secure information available only on the agency network, may not be able to be performed from home. See Humphries v. Navy, EEOC No. 0120113552 (2013); Petzer v. Department of Defense, EEOC No. 01A50812 (2006).

Each of these situations is unique and requires participation in the interactive process. Talk with the employee and the RA coordinator to determine whether telework – whether on a permanent or intermittent basis – might be the best option.

I know it’s not an easy answer, but I hope this helps. Good luck! [email protected]

Yes, But Who?

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By William Wiley

Here’s another article in our series of advisories to the new incoming President. Hey, you may know a lot about building golf courses or flying around the globe acting all “Stately,” but here at FELTG, we bet you don’t know diddly about federal employment law. Fortunately, we do, so here’s another recommendation for you.

Dear New President:

Ask “who.”

Now that you’re in charge of the Executive Branch, about once a month or so you’re going to read some article about gross malfeasance in the way that one of your federal agencies is being run. The media loves to make us civil servants look bad, and goodness knows those fellows on the other side of the aisle on Capitol Hill absolutely revel in the thought of dragging one of your secretaries before an oversight committee where she can be asked brilliant questions such as [implementing Southern drawl], “Madam Sek-e-tary, are you saying – for the record – that you fully support government waste, fraud, and abuse at the highest levels of your administration? My goodness, how do you stand to look at your sweet self in the mirror? Bless your little heart.”

Case in point: September 1, 2016, Washington Post, A-2: Patent examiners – Nearly 300,000 hours found to be fraudulently billed amid case backlog. The article discusses a recent Inspector General (IG) report which found that for part of 2014 and all of 2015, U.S. Patent and Trademark Office (PTO) employees cheated the government out of $18.3 million in salary (and possibly up to $36 million) by claiming time worked which was not. The report points to an abuse of flexiplace/flextime policies as a source of the lost time, plus employees who “gamed” the system while supposedly reporting to the PTO main office in Alexandria.

Assuming that this report is in general close-to-correct, as President you will be interested in fixing thigs, won’t you. Therefore, you will want to know the cause of this problem so you can address the cause. What follows are a couple of possible causes alluded to in the article (followed by our usual snarky FELTG comments):

  • “There may be other [legitimate] reasons for the lack of a digital footprint.” Yeah, and when I was in college, I subscribed to Playboy to read the in-depth articles. If there were other legitimate reasons for the discrepancies, don’t you think those brilliant, well-trained IG investigators would have noticed them?
  • The union contract has limitations on a supervisor’s ability to hold flexiplace employees accountable. Hey, guess what? Collective bargaining agreements can be changed! Management can make proposals and bargain. If a compromise cannot be reached, four Presidential appointees decide what the CBA will say. When confronted with a management proposal that would increase accountability, supported by a very public IG report that finds there is limited accountability, my money is on those Presidential appointees coming down on the side of efficient government.
  • “Eight years ago, the agency stopped requiring employees to swipe their badges when they leave the headquarters building. This is only required when they go into work.” Then change the darned policy. Sounds like an internal security matter for PTO, and internal security policies do not have to be bargained with the union (although the impact of the policy change does). For employees who are not in the bargaining unit, the policy change can be effective tomorrow. Same answer for allegedly outdated low performance standards. Changes to performance standards also do not have to be bargained.

Somehow poor employee accountability procedures managed to be put in place at PTO. Mister/Madam President, the “who” question is, “Who is responsible for this happening?” There are two potential groups of culprits:

Line Management

  1. It is possible that the leadership at PTO is generous on purpose; that the folks in charge intentionally put into place policies that allow employees to game the system and avoid accountability. Maybe they think that federal employees are underpaid and that by allowing abuse of the pay system, good people will remain employed at PTO rather than go work for some high paying patent law firm. If this is the case, that the slack policies were intentional, then you as El Presidente need to consider who you appoint to these positions and whether this is how you want your appointees to manage.
  2. Alternatively, it is possible that the PTO leadership came to believe that it had no choice but to reduce the oversight of the agency’s employees, that it had to sign a CBA that reduced accountability, that it could not fire employees who abuse leave, that it had to have loose accountability procedures. If this is the case, then somebody on your behalf should be looking into how PTO leadership came to believe these things.
  3. Or, it is possible that the individuals who have been appointed to leadership positions in PTO are just stupid. For a solution if this is the case, see “A.” above.

Staff Advisors

  1. Perhaps the PTO accountability staff advisors (the Office of General Law and Office of Human Resources primarily) have advised line management on good procedures for holding employees accountable, and line management has rejected that sage advice (see A. and C. above). For example, when the PTO union proposed that employees who work at home part-time not be required to log onto their computers and have 24 hours to respond to a phone call or email from their supervisor, maybe the staff advisor to the management bargaining committee gave solid accountability advice: “That’s just plain crazy. We’ll have no way of documenting whether people do their work when they say they did. There’s no way we should agree to that.” If senior management chooses to ignore this recommendation, there’s not much the LR advisor can do, but agree to the proposal and sign the CBA.
  2. Alternatively, maybe it wasn’t line management who made these sorts of decisions. Perhaps the staff advisors were the “who” that made these calls, that implemented low production standards based on how work was being done in the pre-computer days of 1976 (don’t get upset with us; we’re just reading from the Post article) and did not recommend charging people AWOL and reprimanding or firing employees who cheat. If this is the case, did the staff advisors act this way because they are evil intentional wasters of tax payer dollars, or are they just ignorant?

Here at FELTG, many times all we know is what we read in the newspapers. And that is all we know about this situation. The bottom line given the facts as reported by the IG are these. When it comes to who is responsible, it is either:

  1. Ignorance, or
  2. Evilness.

Madam/Mister President, we have to leave the evilness up to your ability to select good appointees. As for the ignorance, we aren’t a training company for nothing. You want your people to learn how to bargain a contract with your union? We teach that. Discipline employees who lie about their use of government time? We can show you how to fire them quickly and fairly until the cows come home. Manage absence and leave? We present an entire week of training on that singular topic twice a year, at a cost to the government of much less than $18,300,000.

And finally, here at FELTG, we are absolutely bewildered by the following little tidbit from the article:

“Investigators did not recommend that patent officials pursue administrative or criminal action against any individual examiner because the inspector general is prohibited under federal privacy laws from disclosing their names.”

You’re telling us that we have created an entity in government to investigate criminal activity and employee misconduct, but that agency cannot release the names of employees for the purpose of criminal prosecution or discipline for misconduct? Oh, Mx President, the problem is even worse than we thought. [email protected]

Fox News Could Have Used This Report a Few Months Ago

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By Deryn Sumner

My colleagues and I are never going to see settlements in the range of $20 million dollars, as Fox News agreed to pay out a few days ago, after being hit with a sexual harassment lawsuit filed by Gretchen Carlson and others.  But harassment in the federal workplace does exist, even if we’re not dealing with such high numbers in settlements.  As I mentioned in one of my other newsletter articles this month, the EEOC issued revised Enforcement Guidance on Retaliation in August 2016.  The Commission has had a busy summer, as it also issued a report of the “Select Task Force on the Study of Harassment in the Workplace” in June 2016.  The report was issued by two of the EEOC’s Commissioners, Chai R. Feldblum and Victoria A. Lipnic.  (Hat tip to one of my Firm’s law clerks, Chauna Pervis, who clerked for Commissioner Feldblum this summer and alerted me to the report).

The report is extensive, totaling more than 150 pages, and walks through two main topics: “What We Know About Harassment in the Workplace” and “Preventing Harassment in The Workplace.”  The Commissioners end the report by providing a summary of recommendations and checklists for employers.  Although this space is too limited to delve into all of this report, I did want to highlight some points that I think are most useful for our FELTG audience.

The report notes that it focused on a broad view of harassment, that is, claims of being treated poorly in the workplace because of membership in a protected class.  The report is careful to note that under the legal framework, not all of these allegations examined would constitute actionable harassment.  That is, that some of the allegations would not be sufficiently severe or pervasive to state successful claims.

The report notes that during fiscal year 2015, federal employees filed 6,741 complaints alleging harassment, which constituted 43% of all complaints filed by federal employees.  (Careful readers may wonder how the Commission can represent that formal complaints alleging retaliation constitute the most frequent basis alleged.)  To that I have two words: retaliatory harassment.  Okay, a few more words for those in the back: retaliation is a basis and harassment is a legal theory under which you have to establish treatment motivated by membership in a protected class, i.e. basis.

Some more fun statistics, straight from the report. Of the total number of complaints, filed in FY2015 by federal employees alleging harassment, approximately:

  • 36% alleged harassment on the basis of race,
  • 34% alleged harassment on the basis of disability,
  • 26% alleged harassment on the basis of age,
  • 12% alleged harassment on the basis of national origin,
  • 7% alleged harassment on the basis of sex, and
  • 5% alleged harassment on the basis of religion

The report focuses on the business case for addressing claims of harassment, including the cost of resolving the viable claims (and, let’s be honest, the nuisance ones as well), as well as the costs to productivity and morale caused by harassment, the desire to promote retention of good employees, and the harm to a company’s reputation when claims of harassment go public.

The report even cites to a 1994 MSPB report on Sexual Harassment in the Federal Workplace to illustrate the point of lost productivity:

Imagine an employee who’s being bothered by a coworker who leers at her or makes comments full of innuendo or double entendres, or who tells jokes that are simply inappropriate in a work setting. The time this employee spends worrying about the coworker, the time she spends confiding in her office mate about the latest off-color remark, the time she spends walking the long way to the photocopier to avoid passing his desk, is all time that sexual harassment steals from all of us who pay taxes.

Adding up those minutes and multiplying by weeks and months begins to paint a picture of how costly sexual harassment is. Increase this one individual’s lost time by the thousands of cases like this in a year, and the waste begins to look enormous. And this may well be a case that doesn’t even come close to being considered illegal discrimination by the courts. Whether or not they’re illegal, these situations are expensive.

No report of a taskforce would be complete without recommendations and this one has many, including suggestions for revising training (noting that many training programs are focused on allowing employers to assert affirmative defenses to claims and not to prevent harassment), changing a culture of a workplace from the top down to be clear that harassment is not tolerated (although it includes an admonition against “zero tolerance” policies, noting that they are often ineffective), and tips to address conduct carried out through social media.

The complete report is available here: https://www.eeoc.gov/eeoc/task_force/harassment/index.cfm. [email protected]  

Making EAP Referrals

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By Barbara Haga

This month we are exploring what a referral to an Employee Assistance Program (EAP) looks like.

Referral in Daily Practice

Years ago OPM had a film that I often used in supervisory training on EAP.  In fact, I used it so many times I can practically quote the script.  Unfortunately, it was quite dated.  The manager in the video was wearing a plaid sports coat right out of the ’70s and, at one point during the employee’s downward spiral, you saw a scene where the manager was in his office bemoaning his fate while emptying his pipe into an ash tray.  Obviously an update was needed and OPM released one, but I never thought that the updated one did as good a job of showing the actual referral.

I will never forget the employee in the original version; her name was June, and she seemed to be having some family problems that were coming with her to work.  It appeared that she was a Management or Program Analyst or something similar.  Her performance had deteriorated.  She was missing deadlines and messing up on details, and when she was asked about a work issue by a senior manager she chewed him out!  The immediate supervisor was Charlie. In his initial meetings with her, June was very good at deflecting his focus on her performance issues. For example, when he talked to her about errors in a report where the sums didn’t tally properly, she came back at him with “I found those errors and I have corrected them and I will have the report on your desk by the end of the day.”  She even patted him on the shoulder and said, “Everything’s going to be okay, Charlie.”  After a few exchanges like that, the supervisor was at his wits’ end, and June’s mistakes and omissions and poor behavior were beginning to reflect on him.

Like most training films, the manager tries it on his own without “guidance” and doesn’t fare very well, and then he gets help in planning out the referral and delivers the message the way he should have. The EAP counselor helps him prepare for the meeting with June.  She tells him to focus on the deadlines and mistakes and to stop focusing on what he thought was going on outside of work.  That’s excellent advice even by today’s standards.

Written Referral

The portion of the film when the manager advised June that she was being referred to EAP was done very, very well, and it became the model I followed when I advised managers how to do this.  In the film, the manager put together a letter describing June’s failing performance giving specific examples of the errors and omissions.  The film did not depict it as a PIP notice but was instead a warning that her performance was below standard.

I still recommend today that managers do written referrals documenting what the issues are.  This accomplishes several things.  First, it makes it real for the manager; he or she has to write down the details of what was wrong and why it was wrong.  Secondly, it makes it real for the employee.  Being chastised by someone about mistakes verbally isn’t pleasant, but seeing a formal letter that recounts these things is quite a different experience for most people.  Finally, it can help the EAP counselor.  Sometimes employees agree to go but then do the “I have no idea why I am here” routine with the counselor.  The letter helps the counselor ask about specifics.  In June’s case it might have been, “You had a conversation with Mr. Smith last Friday about a problem with a budget report.  How did that conversation start?  What did Mr. Smith ask you?”  By asking these kinds of questions the EAP counselor may get the employee to open up about what led up to the outburst that was reported to her supervisor. [Editor’s Note: As we teach in our UnCivil Servant seminar for managers, contemporaneous notes like these are an excellent defense should the employee challenge the supervisor in a grievance or complaint.]

The letter delivered in the film included a referral to the EAP counselor that Charlie had worked with.  When June came in to his office for the meeting, attitude in tow of course, he handed her a copy of the letter.   He reviewed the letter, focusing on the performance deficiencies.  He told her that he was referring her to the EAP.  June became agitated and said, “This is an adverse action letter.  I’ll file a grievance.”  The manager responded that it wasn’t an adverse action; it was simply a referral to the program.  He went on to say that things had to change and that her performance problems could no longer be tolerated.  When she pushed back he said something like, “June, you have excuses for everything, but something has to be done about your performance.”

June finally started to relent a bit and said, “Things at home have been tough for me lately, but it’s not something I can’t handle on my own.”  Charlie wraps up the meeting by repeating that her performance has to change.  He goes on to say, “The choice is up to you whether you go to EAP or not.  But, whether you go or not will be very important to me.”  At the end of the film we didn’t know whether she went, but Charlie can show that he took reasonable steps to put her on notice about her performance and offered her a chance to take advantage of the EAP.

Preparing the Manager in Today’s World

The world Charlie lived in is likely very different than what most agencies experience today.  An actual on-site skilled EAP counselor is a luxury many agencies don’t have.  Instead they rely on Federal Occupational Health (FOH) or some other long distance service to take care of their counseling services.  While that may be the most efficient answer, especially for agencies with widely dispersed populations, it doesn’t take care of the problem of preparing the manager.  Sometimes it falls on the HR practitioners to help the managers get ready for conversations with employees on tough topics like what was described above.

Putting referral information in the letter is a good start, but even the most brilliantly written referral letter, warning notice, or proposed performance or disciplinary action will not achieve its goals if it is delivered poorly and the meeting goes off track. That means not just e-mailing letters but going over the content with the manager and anticipating what kinds of things could come up and giving the manager an opportunity to think through the possibilities and how he or she will respond.

We generally don’t see managers being hired because they have experience with this sort of thing.  They have experience in other areas like budget, forestry, or rocket science.  We expect them to learn these kinds of techniques on the job.  I wish I could tell you that there is a good OPM film or course available to help you help them.  I looked through the HR University website but I didn’t see a course that seemed to cover this type of topic.  But, it is something worth investigating or developing materials for your own use.  It will be worth the investment.

Agency Effectively Accommodated Employee with Sensitivity to Smells

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By Deryn Sumner

Sometimes during EEOC Law Week and webinars, we’ll get questions about if and how agencies can accommodate employees with chemical sensitivities.  EEOC’s Office of Federal Operations recently issued an interesting decision in Martina S. v. Department of Defense, Appeal No. 0120140227 (August 19, 2016) addressing allegations that the Agency failed to effectively accommodate an employee who was sensitive to scents.  Martina, who as we know because of EEOC’s naming convention is not actually named Martina [Editor’s Note: Or, is she? Hmmm.], worked as a Security Specialist in an office in Washington, D.C. that underwent construction.  She complained that the fumes and dust made her sick and requested to be able to work in another office space, but the Agency conducted tests and determined the space was safe and denied her request because of the sensitive nature of her job.  The Agency did ask the co-workers not to spray anything in the office. Also of note, Martina did not, at the time, respond to requests for medical documentation.

However, more than a year later, Martina did provide a medical note, stating she was “intolerant of stray perfumes or scents” and submitted her own list of items she was allergic to, which included cleaning supplies, markers, and Lysol. Her supervisor stated that if Martina provided medical documentation to support this list, she would send a message to staff members.  But again, Martina did not provide medical documentation.  Fast forward two years when a co-worker sprayed Lysol on her telephone, causing Martina to leave the building.  After that incident, Martina submitted a medical note saying she was “intolerant to strong fumes and odors” and “should not be exposed to aerosols.”

After another incident involving Lysol which caused Martina to go to the hospital, she submitted a request to be moved to another office location and included a letter from her doctor stating that she suffered from “reactive airway disease.”  The Agency, in coordination with the occupational health office, determined that Martina was not disabled as she only experienced symptoms in one location, and could work there if there were no strong perfumes or Lysol. Based on that, the Agency denied the request for relocation to another office space.

Martina filed an EEO complaint alleging harassment and failure to accommodate, and after an investigation, an administrative judge granted summary judgment in the Agency’s favor.  On appeal, the Office of Federal Operations agreed.  The Commission found that the initial medical documentation Martina submitted did not show that she was an individual with a disability because it did not state that she had an impairment or how she was substantially limited in a major life activity.  However, assuming for the sake of argument that Martina did provide sufficient medical documentation, the Commission found that the Agency did accommodate her by instructing employees not to use strong smelling products and Lysol, which included posting signs about the prohibition of their use.  The Commission, noting that Martina was only entitled to an effective accommodation and not the one of her choice, assuming she was entitled to an accommodation at all, found that the Agency was not liable for the claims raised in Martina’s formal complaint.

The lessons to be learned from this case include making sure that employees with similar allergies or sensitivities provide effective documentation and considering alternate accommodations that may be effective to accommodate such medical conditions. [email protected]

Time for FELTG to Start Advising our New President

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By William Wiley

It’s that time again. We’re about to get a new face in the White House and a fresh breed of political overlords in each agency. Even the folks on Capitol Hill appear to be ready for a shake up. Hopefully, the new folks will take a few minutes to listen to us old guys before they start making seismic changes to our civil service.

As we here at FELTG claim rights to the heritage of some of the oldest folks in this business, we also claim the right – on your behalf – to tell the new leadership what’s working and what’s not working in this game of running the government. So expect to see several upcoming articles, intended for our new President, based on decades of (good and bad) experience, designed to make the government more effective and efficient while simultaneously recognizing long-standing employee rights and responsibilities.

To kick off our series, let’s start with one of our favorite topics: accountability. If you’ve participated in our supervisory program UnCivil Servant, you know that the subtitle for our textbook is Holding Government Employees Accountable for Performance and Conduct. We are all about accountability here at FELTG, from the bottom to the top.

But today, our focus is not on employee accountability, it’s on agency accountability. We’re looking at a question of accountability and responsibility that bedevils us all and drags down our civil service and our government:

What agency is responsible for the abysmal success rate government managers have when they fire employees?

Yes, abysmal. As we’ve written about in this newsletter before, MSPB should be upholding 100% of removals that managers implement. That’s because MSPB sets aside removals only when it finds that the agency made a mistake, and agencies have no business making mistakes (and thereby violating an employee’s rights) in any cases at all, save for the occasional unexpected change in law that occurs subsequent to the removal.

So exactly what is this less-than-100% rate that deserves the adjective “abysmal?” Well, according to the latest statistics and public pronouncements by MSPB’s current leadership, the Board finds fault and sets aside adverse action removals in 25% of appeals. That’s right. After spending the past 40 years learning the foundational civil service removal law, agencies still screw up one out of four cases.

That’s just terrible. Think of all the taxpayer dollars wasted on back pay and attorney fees. Add to that the agency resources that are wasted when an appealed action is set aside. Think of all the hundreds of lives disrupted each year by an unjust removal. If one out of four appealed removals is unwarranted, extrapolate that failure rate to all those employees who were fired, and who didn’t have the money, stamina, or wherewithal to make it through the appellate process so that MSPB could reverse their firing. And think of all the employees who should have been fired who were not because management looked at a success rates of only 75% and decided that it wasn’t worth the risk to fire them.

Now that I think about it, “abysmal” might not be strong enough.

If you ran a company, what would you do if you realized you had a 25% failure rate? 25% of your cars fell apart? 25% of your airplanes didn’t land? 25% of your pizzas made people sick? Would you sit back and say to yourself, “Well, at least 75% of my clients didn’t die.” No, you’d put somebody in charge of fixing the situation and then hold them accountable for a fix.

So who is responsible for fixing the government’s horrible success rate before MSPB? Nobody, as far as we can tell. Oh, here at FELTG we do what we can, but we don’t really have the responsibility to do it. We do it because it’s the right thing to do, and because our wonderful clients keep inviting us to do it. But really, shouldn’t there be a government entity held responsible for doing whatever it takes to make sure agencies fire people properly, to improve that success rate from 75% to something close to 99%?

And that, Madam/Mister President-to-Be is our first major recommendation. Put somebody in charge of improving the government’s success rate in removal actions. Don’t leave it up to individual agencies to know what to do. As we’ve discussed previously, too many employment law practitioners are still making basic mistakes, even though we’ve known that they were mistakes for almost a quarter of a century (don’t make me talk about “conjunctive charges” again).

And whomever/whatever you put in charge, hold them accountable. If the government’s success rate goes up, then that’s good. But if it stays the same or (god forbid) gets worse, sack them and get someone else. Accountability is too important not to hold someone accountable for it. [email protected]

You Don’t Know Discipline

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By William Wiley

Whether you are a supervisor, attorney, human resources specialist, or union representative, many readers of this newsletter are in the business of employee accountability. Discipline is a major tool in the world of employee accountability. Yet, as much as we deal with it, and as important as it is in many ways, discipline is not an easy thing to define. And its definitions can be exceedingly important, varying from one forum to another. In this article, we here at FELTG try to sort them out for you.

MSPB: What is and is not discipline is tremendously important in the world of MSPB appeals. As every practitioner knows, when an agency is defending a removal penalty as being reasonable, the agency relies on the fabulous and famous Douglas Factors. Otherwise known as “penalty defense” factors, agencies who remove employees have had to analyze these 12 factors since 1981 to explain to the Board why the employee deserved to be fired rather than receive some lesser penalty.

Factor 3 in that list of mandatory factor consideration is the employee’s prior discipline history. The theory is that an employee who the supervisor has previously disciplined warrants a more severe penalty for a subsequent infraction than a similar employee who has not been given the benefit of discipline and a chance to learn from her mistakes. This theory of discipline is well established and often goes by the name “progressive discipline.”

To apply the theory of progressive discipline in support of a removal, it is critical to know what counts as discipline and what does not. In other words, we need a definition of a disciplinary act to distinguish “true” discipline from some lesser act on the part of the supervisor. Unfortunately, Congress did not see fit to define discipline in law. Fortunately, the Federal Circuit Court of Appeals early-on stepped into the breach and defined discipline for the purpose applying progressive discipline to defend a removal as having three mandatory characteristics:

  1. It must be in writing,
  2. It must be grievable, and
  3. It must be stored in an official employee file.

Bolling v. Air Force, 9 MSPR 335 (1981)

Universally throughout government, there are three documents that meet these criteria in support of a removal when applying the Douglas Factors. The Terrific Three are:

  1. Reprimand
  2. Suspension
  3. Demotion/Removal

By OPM regulations, these three documents are written, challengeable, and stored in an employee’s Official Personnel Folder, although somewhat briefly in the case of a reprimand. If these were the only supervisory actions used to correct behavior, the world would be a simpler and better place. In fact, that’s exactly what we teach in the FELTG supervisory training classes we present. Stay with these three, and your life will be simpler and your actions more defensible.

Unfortunately, some agency policy makers and discipline advisors have chosen to add other actions to the list of options that a supervisor has when trying to obtain employee compliance with a rule: warnings, counselings, admonishments, letters of expectation, letters of requirement, etc. I ran into a DoD agency many years ago that even had something officially called an “Oral Admonishment Reduced to Writing.” Sometimes one or more of these is listed in the agency’s Table of Penalties, sometimes in a collective bargaining agreement, and sometimes they have been used historically; therefore, they are still used today.

The overriding problem when we use these extra options is that there is no universal definition for them like there is for the Terrific Three. For example, when you give an Admonishment, can you use it for the purpose of applying the theory of Douglas Factor 3, progressive discipline? Well, we don’t know until we apply the Bolling criteria. In my experience, sometimes an Admonishment meets the criteria, but sometimes not. These extra options create a potential problem on appeal because, as every seasoned practitioner knows, the more opportunity you give yourself to make a mistake, the more likely it is that you will indeed make a mistake. There is a cost to using extra options that are not universally recognized when a case is challenged to a judge or to the Board. Every adverse thing you do to an employee can be challenged through the EEO complaint system. Why would you do more than necessary since the more you do, the more there is to become the subject of a complaint?

Costs aren’t necessarily to be avoided, however. One should always assess the potential benefits against the projected additional costs. So what’s the legal benefit of using any of these non-defined extra options?

There are none.

Oh, every now and then, someone in one of our classes will say that Letters of Warning and Letters of Counseling put the employee on notice of the rule, one of the Five Elements of Discipline. Yeah, well so does an email that states the rule, “Bill, be at your desk by 8:00 AM every morning.” And an email like this is not an “adverse action” that might have to be defended in a grievance or complaint, nor will it be confused with “prior discipline.” So the very best practice, by far, is to stick to the Terrific Three, avoid any creative other options, and your life will be much simpler and just as powerful. They are discipline.

OSC:  The US Office of Special Counsel is responsible for protecting whistleblowers against reprisal “personnel actions” taken by agency managers. We know that any of the Terrific Three counts as a personnel action for the purpose of this protection. But what about Admonishments? Letters of Counseling? If you give me a Letter of Warning, is it possible for OSC to conclude that you have reprised against me for whistleblowing? If OSC fails to act, might I convince an MSPB judge or the Board itself through an Individual Right of Action appeal that you are indeed a Whistleblower Repriser? And of course any failure to find reprisal by the Board can be challenged by me to any numbered federal circuit court of appeal in which I can establish jurisdiction, ultimately coming to rest on the desk of the Clerk at the US Supreme Court, if I have the patience and can figure out the forms. Yes, it is highly important to know what constitutes a disciplinary “personnel action” for the purpose of an OSC investigation and re-primal-claim resolution.

Unfortunately, the courts have come up with a different way of figuring this one out. Instead of relying on the Bolling criteria as an indicator of what counts as a disciplinary personnel action and what does not, the Federal Circuit has decided that it will look to the specific words of the contested document, whether it is called a Warning or Admonishment or something else. If the document a) accuses the employee of prior misconduct and b) threatens a suspension or removal in the future if the misconduct is repeated, then it is a “personnel action” for the purpose of allowing the employee to pursue a whistleblower reprisal claim. Ingram v. Army, Fed. Cir. No. 2015-3110 (August 10, 2015).

Here are two Letters of Admonishment:

A. “Bill, I admonish you to turn out the lights when you leave for the day.”

B. “Bill, I admonish you to turn out the lights when you leave for the day. If you don’t, next time I will reprimand you.”

Option B can take the employee through an OSC investigation, discovery and a hearing at MSPB, an appeal to the three Board members, to a federal circuit court, and finally to the Supremes. Option A takes him nowhere. These things, whatever you call them, have no value. Why in the world would an agency want to open up the possibility of this sort of confusion and extended litigation for something that is of no benefit and can be easily avoided? To paraphrase First Lady Nancy Reagan, “Just say no to extra options.” Focus on the Terrific Three. Learn to do what counts and what works.

EEOC:  The Commission uses yet another standard when assessing whether an agency has done something to an employee in reprisal for her EEO activity, or her membership in a protected category; race, sex, age, etc. Whereas MSPB is concerned with Bolling disciplinary actions, and OSC is concerned with the broader concept of “personnel actions,” EEOC stands up to protect federal employees from the super-broad “adverse employment actions.” See Medina v. Henderson, No. 98-5471, 1999 U.S. App. LEXIS 11042, 1999 WL 325497 (D.C. Cir. Apr. 30, 1999). Without doubt, EEOC considers reprimands, suspensions, and demotions to be adverse employment actions. But what about these Extra Options? If you give me a Letter of Counseling, can I file an EEO complaint against you? (Yes you can; e.g., Zenobia K., Complainant, v. DLA, EEOC No. 0120142873, July 15, 2016)

There is a surprising exception to the EEOC definition of adverse employment actions: PIP initiation letters. Many years ago, EEOC decided that since the initiation of a PIP is not itself adverse, but rather a preliminary act to a possible adverse employment action down the road, the initiation of a a performance Improvement Plan cannot be the subject of a discrimination complaint. A tip of our collective hats to the Commission for that good-sense ruling: e.g., Lopez v. Agriculture, EEOC No. 01A04897 (2000).

Bottom Line:  The minimum actions necessary to hold a federal civil servant accountable are significant in number and degree. Adding Extra Options to a collective bargaining agreement, agency policy, or individual counselor’s practice does the agency no good and carries with it the possibility wasted resources and appeal loss. Leonardo de Vinci once said, “Simplicity is the ultimate sophistication.” He would have fit in well here at FELTG.

[email protected]

 

What Should be Done About This Rating?

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By William Wiley

Many of us use TripAdvisor or Yelp when we’re trying to decide where to have dinner. If we find ratings of four- and five-stars, we feel comfortable that the place will have decent-to-better food. However, if you’re like me, you avoid like the plague (or botulism) any place that’s rated primarily one- or two-stars. An eating establishment that is rated only one- or two-stars by its customers must have something seriously wrong with it.

So what would you say about a federal agency that asks its customers to rate it on Courtesy and Results on a five-star scale with:

** = Dissatisfied

*    = Very Dissatisfied

And 87% of the ratings are only one- or two-stars? What would you say if you found out that nearly half of the ratings were only one-star, that just under 50% of the citizens who had gone to that agency for help during FY-2015 were Very Dissatisfied with the Courtesy and Results they received? Would you not want to find out what was causing the low ratings, so you could understand better if something could be done to improve the situation?

Of course you would. You wouldn’t be staying in business very long as a private company with abysmally low ratings like that. We certainly should not expect less from our government than we do from a private business, at least on things like courtesy.

Historical Note: Did you know that President Jimmy Carter thought that courtesy towards the public on behalf of a federal agency was so important that he even had “discourtesy” added to the Civil Service Reform Act of 1978 as a specific type of misconduct warranting a suspension? Did you know that discourtesy is the ONLY act of misconduct specified in the CSRA that warrants discipline? Check it out: 5 USC 7503(a).

Well, the agency that has recently disclosed in its annual report to Congress that it was rated one-sies and two-sies by its Very Dissatisfied clientele last year is … drum roll, please … the US Office of Special Counsel. Yes, if you manage to dig through the first pages of its fascinating 52-page annual report (https://osc.gov/Resources/FINAL-FY-2015-Annual-Report.pdf) , way back at the bottom on page 44, you will find the results of the OSC client survey that contains these troublesome ratings.

It seems obvious that ratings like this are the result of either of two things:

  1. Discourteous behavior on the part of OSC employees, or
  2. An OSC clientele that is particularly sensitive to courtesy.

When dealing with OSC, each of us has limited personal experiences. About 350 clients participated in the 2015 survey. Each of those people had his own unique interactions with OSC staff. On a personal level, I’ve been dealing with OSC employees for over 35 years. Here at FELTG, one of the legal services we provide is representing agencies and individual managers in dealing with OSC. Without exception, although many times I do not agree with them, the representatives of OSC have been exceptionally courteous with me. Perhaps it’s my own internal charm that draws courtesy out of people (ha!) or perhaps I’ve just been lucky. Whatever it is, I cannot say I have ever experienced discourteous conduct on the part of OSC personnel.

Of course, perhaps others have. If we do a study and it turns out that OSC personnel are routinely being discourteous, then the solution to the ratings is to train those personnel in being courteous, and then hold them accountable for practicing what they have learned. There are a number of companies (e.g., Nordstrom) that teach customer courtesy. OSC could contract for training, and then impose discipline as specified in the CSRA for those who do not obey agency rules about courtesy. Alternatively, OSC management could implement Performance Improvement Plans for employees who fail a Courtesy critical element.

What’ that you say? OSC personnel don’t have any critical elements related to courtesy? Maybe that’s the start of the solution right there. [Special notice to OSC management: If you are unfamiliar with these two approaches to employee accountability, come to our MSPB Law Week seminar next scheduled for September 12-16, in Washington DC. Free coffee!]

OK, we do our little study and we find out that, for the most part, OSC personnel are just about as courteous as we would expect government employees to be, maybe even a bit better than some others. If that’s the case, then perhaps there’s something about the courtesy sensitivity of OSC clients. The people who go to OSC for help believe that they have been mistreated, that management officials within their employing agencies have committed prohibited personnel practices against them. In other words, they believe that they are right and others are wrong. Some might call them self-righteous; others might simply call them right. Whatever the case, if there’s a personality characteristic that makes OSC clientele more likely to feel that they’ve been treated in a discourteous manner, shouldn’t we acknowledge that in some way? And once acknowledged, maybe there are things we can do to reduce the feelings of discourtesy in this particularly sensitive group, sort of how we give anger management training to people who cannot control their anger. Sometimes folks need help.

When assessing any survey results, we have to keep in mind that there could be a problem with the data-gathering methodology. However, assuming that there’s no methodology problem in the survey that produced the results on page 44, and assuming that President Carter was right that courtesy in government is important, then it seems obvious to us here at FELTG that somebody should look into the cause for such low ratings. There are things that can be done to improve the situation whether the cause is discourteous OSC employees or courtesy-sensitive OSC clientele. Of course, we don’t get to run anything here at FELTG except ourselves, but SOMEBODY ought to be checking this out. [email protected]

A FELTG Offer You Should Consider Seriously

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By William Wiley

Our FELTG team of instructors presents seminars throughout government, interfacing with many agencies each year. One of the things we’ve come to notice is that agencies often tell us that they add layers of extra steps to labor/employee relations processes beyond what is required by law. Although the statutory minimum process required to fire a bad civil servant for misconduct involves a single supervisor and 30 days of pay, a large number of agencies greatly exceed these minimums; e.g.:

  • According to MSPB reports, 80% of agencies take more than 45 days to remove a bad employee.
  • Most agencies use at least two levels of supervision to terminate a misconduct-ing employee.
  • Some agencies use a multi-member board to propose or decide a tentative removal, plus all the layers of unofficial review that go on before the matter ever gets to the Board.
  • Lawyers are brought into the procedures at various levels and given the authority to block the tentative removal (denial authority is rarely official, but exercised anyway).
  • According to MSPB surveys, 97% (ninety-seven frigging percent!) of front-line supervisors mistakenly believe that it takes more proof to fire someone than the law has required for nearly 40 years.

Our civil service is routinely (and justifiably) criticized for our inability to promptly deal with misbehaving employees, both by Congress, and also by the hard-working employees who see that bad employees do not get fired and receive the same salary and benefits as they do. Yet rather than deal with these nasty realities, agencies continue to come up with convoluted, unnecessary, and inefficient ways to hold bad employees accountable for bad conduct.

Fortunately, we here at FELTG have come up with a challenge for you readers that just might fix this dismal situation. To see if you’re eligible to accept our challenge, consider the FELTG philosophy regarding civil service accountability:

  1. Managers – not lawyers nor human resources specialists – should make decisions regarding employee discipline. Most all formal agency policies, instituted by agency heads, say that line managers make discipline decisions based on the advice and counsel of HR and legal. However, the reality is far from this, in our experience. Routinely in our supervisor training classes, participants say things like, “That’s great, but HR won’t let us do that.” Or, “My draft proposal has been sitting in legal for six months waiting on them to approve the removal.” Well, that’s just terrible. It is a rare HR specialist or reviewing attorney who has been trained in how to manage an organization. We may know the law, but we have little actual real experience being held accountable for the functioning of an organization. Although we can advise, it is the front-line manager who most fully appreciates the harm caused by the non-performing employee and who has to suffer the loss of productivity and unnecessary salary expenditures that result from delayed removal actions. Therefore, the line manager should be making those decisions, not us.
  1. Supervisors should be trained, then held accountable for how well they discipline. Instead, what we’ve found is that upper management and staff advisors often think that because of their respective exalted positions, they are in the better position to make discipline decisions, that the front line supervisor should not be allowed to act because, darn it, they just aren’t as smart as we are.

You aren’t going to like this, but here’s the deal. If you have front line supervisors who do not know how to administer discipline, then it is YOUR FREAKING FAULT. You either hired the wrong person, failed to train that person, or declined to hold that person accountable when he did not properly discipline his workforce. We all learned this in the 80s when we were studying Japanese total quality management styles. Instead of checking production at each step of a process, you train individuals to do their job properly in the first place, then hold them accountable at the end of the process for quality and efficiency. By doing away with all those intermediate check points, things can get done much faster.

  1. The statutory legal minimums are fair to the employee. Yet we see agencies provide much more than is required when it comes to holding employees accountable, for reasons we cannot fathom. For example,
  • Before initiating a Performance Improvement Plan to assist a poor performer to improve, some agency policies mandate that the supervisor should place the employee into a pre-PIP mini-PIP, and then formally PIP her only after she fails the pre-period. Why? If the employee has already demonstrated unacceptable performance, why add the additional time to the improvement process? You sure don’t see the private sector doing something like this. Agencies were created to provide government services, not government employment.
  • If an employee presents a medical certificate from his physician that concludes he cannot do his job, if the employee cannot be accommodated, then the direct approach is to remove the employee based on a charge of Medical Inability to Perform. The employee’s medical certificate is preponderant proof that the removal is warranted. Yet, at least one large agency we know will instead delay the process and incur additional costs by sending the employee for a Fitness for Duty medical examination. Again, why? The employee’s doctor says he can’t do the job. You’re not helping the employee when he applies for disability retirement by sending him to a FFD (the fact of the medical inability removal does that by itself). Using the employee’s own self-generated medical documentation is just about the best medical evidence you can have on appeal.
  • Once a removal is proposed, the employee cannot be removed for 30 days. During this time, she has the right to defend herself by responding to the proposal. The minimum response period is seven days, but there’s no real problem if the agency extends the response period to 10 or 20 days, to accommodate the needs of the employee. Yet, way too many agencies cavalierly extend the response period beyond 30 days, many times to 60 days or more, at the request of the employee or his representative. “I’m a very busy and important employee-representing lawyer. I don’t have time in my tight schedule to prepare a response in less than 90 days.” Or, “As the employee’s union representative, we exercise our right to file for information related to the removal, and demand that you extend the proposal period to allow us to receive that information and analyze it.”

Well, isn’t that just absolutely unfortunate. In other words, these representatives are asking me, the agency representative, to donate good government money to pay the employee’s salary because the employee’s lawyer is too busy or the employee’s union wants to exercise a right to information. In my world, as agency counsel, I’m busy, as well. And by law we’ve already given the employee access to all the material relied upon in making the decision to propose removal. You’re requesting an extension beyond 30 days? Denied. If you don’t like that, take it up with MSPB (I say this knowing that MSPB has NEVER reversed a removal based on an agency’s refusal to extend the notice period).

On the rare occasion that I am feeling magnanimous or I’m working with a deciding official who took his nice-guy pills that day, I’d be willing to extend the notice period beyond 30 days, but only if the employee is willing to request LWOP for that extra time. You need more time than Congress said is necessary? You pay for it.

The Cure

Now that we’re clear regarding the problem, here’s our FELTG challenge to you.

Try something different.

And here’s the Different Something to try:

  • Establish a group of employees. Select a part of your organization that is relatively representative of the type of work you do. Best to start out with a non-union group to simplify implementation. The bigger, the better.
  • Divide the group in half so that you have a test group and a control group. Make the division as random as possible while maintaining the goal of having two similar groups.

For the control group, retain your current procedures. For the test group, establish new discipline policies as follows:

  1. Recognize only three types of discipline: reprimands, suspensions, and removals.
  2. Delegate discipline authority to first level supervisors. The first line supervisor would issue reprimands, and propose and decide suspensions and removals independently.
  3. HR specialists and legal counsel could be requested to advise at the request of the supervisor, but would have no authority to prevent or delay the supervisor from taking disciplinary action.
  4. The notice period for suspensions of up to 14 days would be 24 hours. For proposed removals, the notice period would be 30 days with no paid extensions granted. Suspensions beyond 14 days would not be allowed. Demotions would not be proposed, but could be implemented as settlement of a removal if the employee and supervisor agreed.

As for unacceptable performance procedures, the test group would implement the following:

  1. Although no proof is required to initiate a PIP, the immediate supervisor will make a list of all mistakes the unacceptable performer has made prior to being PIPed, related to each failed critical element.
  2. PIPs will be for 30 days.
  3. The supervisor will meet weekly with the PIPee to provide feedback on the week’s work.
  4. HR or legal will provide weekly feedback to the supervisor as to the quality of the PIP counseling sessions.
  5. Should the PIPee fail irretrievably prior to the end of the 30 days, the PIP will be terminated and the supervisor will propose the PIPee’s removal immediately. The decision regarding the proposed removal will be made by the second-level supervisor.

For both misconduct and unacceptable performance:

  1. The supervisor will place each employee for whom removal is proposed on administrative leave and deny the PIPee access to the workplace and to the agency’s intranet.
  2. Decisions regarding proposed removals normally will be made no later than the 31st day after the proposal.
  3. HR and/or legal would receive copies of all proposals and have the responsibility to notify the supervisor and higher-level management of any problems that are identified. Notice periods normally would not be extended to provide time for HR or legal notification.
  4. Higher-level management would provide monthly feedback to every supervisor as to that supervisor’s effectiveness regarding employee accountability through discipline and performance improvement.

“Oh, my goodness. Those folks at FELTG must have been smoking some funny tobacco if they think this makes any sense.” Well, don’t give us a hard time. What you see here is EXACTLY what was envisioned by the authors of the Civil Service Reform Act of 1978. The only tweak we’ve added is the mistake list for unacceptable performance. We had to do that because of the way the discrimination and whistleblower laws have developed over the years. Otherwise, you’re looking at a plan and approach envisioned by Jimmy Carter way back when the Bee Gees’s “Stayin’ Alive” was the number one song for the year.

Not a bad anthem for the project, now that I think about it.

Before you implement the project, engage an outside group to develop program indicators and to evaluate the success or failure of the Different Something as time progresses; maybe MSPB or OPM would be willing to provide an evaluation as they have an interest in an efficient government. Oversight by a neutral party would add legitimacy and reduce bias compared to internal evaluation.

FELTG’s No-Catch All-In Offer

For the first agency who is willing to give this approach a try, FELTG will donate at no cost to the agency initial training and on-going support for all of your supervisors who will be participating in the test group. Yes, we’ll have our expert trainers on-site and on-line to get your supervisors up to speed so that they can handle the responsibility of disciplining fairly and effectively. We believe that education is key to using effective government accountability procedures, and we’re willing to put our money where our mouth is. If your supervisors succeed, we succeed. If they screw up, we’ve wasted our time and tarnished our otherwise-sterling reputation.

So put on your big girl or big boy pants, realize that there just might be a better way to do things, and give the old school way a try. FELTG will be right there with you, for better or for worse. If you’re self-important and stubborn, set in your ways, and think that your supervisors are too stupid to handle discipline, then we don’t want to work with you. However, if you believe that employee accountability was always intended to be a front-line responsibility and that people can be educated to do something as straightforward as administering employee discipline, then give us a call: 844-at-FELTG.  Together, we can make the civil service great again. [email protected]