A New Priority: Equal Dignity and Respect Replaces DEIA

By Deborah J. Hopkins, January 28, 2025

Quick facts:

  • A new Executive Order requires agencies to eliminate DEIA programs.
  • “Equal dignity and respect” is the stated workplace priority of the new administration.
  • FELTG will keep you posted on all the latest developments.

It’s been a busy few days since the Trump Administration came to DC, and there have been a flurry of Executive Orders (EOs). We at FELTG are planning an overview of the Federal workplace-related EOs during the Making Sense of the Trump 2025 Federal Workforce Executive Orders training taking place on February 11, something you won’t want to miss.

But in the meantime, one of the questions we’ve received the most is: What now for DEIA?

According to Executive Order 14151, Ending Radical and Wasteful Government DEI Programs and Preferencing, President Trump has ordered Executive Branch agencies to terminate any “DEI and ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.”

That said, the EO also highlights a new priority: “Americans deserve a government committed to serving every person with equal dignity and respect.” From our read here at FELTG, the replacement for DEIA is “equal dignity and respect,” a topic that comes up in classes from accountability for misconduct to hostile work environment harassment, and everything in between.

Additional EO language requires agencies to assist in providing the administration with information about past DEIA efforts in order to “formulate appropriate and effective civil-rights policies for the Executive Branch” and “identify potential areas for additional Presidential or legislative action to advance the policy of equal dignity and respect.” Civil rights is another way of referring to EEO laws, some of which have been around since the 1960s.

Every four or eight years, we see priorities and policies shift. And at FELTG, all of our programs, as always, will be up to date with the latest law, regulations, cases, and Executive Orders to ensure your agency stays compliant. [email protected]

Related training:

Complaint Doesn’t Fly, Thanks to a Swift and Effective Reply

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By Dan Gephart, October 15, 2024

Quick facts:

  • An air traffic control specialist and an agency operations supervisor entered a consensual sexual relationship.
  • The specialist alleged sexual harassment and discrimination on the bases of sex (female) and reprisal for prior protected EEO activity.
  • An EEOC AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant.

When faced with an allegation of sexual misconduct, there are two words you must remember as you contemplate action — swift and effective. While reacting wildly is not condoned, hesitation is imprudent and ill-advised. It could open up liability to the agency, and, even worse, leave an employee in a dangerous situation.

The recent EEOC decision Annice F. v. Buttigieg, EEOC App. No. 2022004327 (Aug. 22, 2024), underscores the importance of the aforementioned advice.

An air traffic control specialist filed a formal EEO complaint alleging the agency subjected her to sexual harassment and discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity. It started when an agency operations supervisor (AOS) was assigned to work alongside the complainant’s team. The AOS was not the complainant’s supervisor. However, due to the nature of his training and staff shortages, AOS sometimes provided operational instructions to the complainant and others on her team.

Soon after the AOS started working with the complainant, they began a consensual sexual relationship. However, that relationship ended abruptly when the complainant learned the AOS lived with his girlfriend and had multiple other sexual partners.

Later that year, the complainant told two supervisors of her intention to file a discrimination claim. She provided details of the relationship, explained the difficulty of working alongside the AOS, and shared concerns for her safety.

Now, imagine you’re one of these two supervisors, what would you do?

The supervisors told the complainant to contact local law enforcement, and advised her the agency would conduct an immediate investigation. That very same day, one of the supervisors reported the complainant’s allegations and prior relationship with the AOS to the agency’s Accountability Board in order to initiate a prompt investigation about sexual misconduct, potential gun violence, and involvement by local law enforcement for the safety of all parties.

Meanwhile, that same supervisor instructed management officials to immediately limit interactions and work projects between the AOS and the complainant. Soon after, the AOS was moved to a different team.

The supervisor also investigated the complainant’s claim that the AOS had guns in his vehicle on Federal property. No guns were found in the AOS’ vehicle, and the complainant admitted she never saw guns in his vehicle at work, just that he owned guns and stated he kept them in his vehicle.

Several days later, the complaint contacted a crisis hotline. She told her supervisors, who then sought guidance from the agency’s medical division. Citing the high pressure and national security implications of the air traffic control specialist position, the agency’s flight surgeon temporarily terminated the complainant’s medical clearance. A medical diagnosis is not needed to terminate clearance, only a concern that the employee’s physical or mental state could impact the performance of their job. Shortly after the complainant’s clearance was reinstated, she filed the claim.

The complainant alleged:

  1. She was harassed and subjected to a hostile workplace environment, resulting in disparate treatment.
  2. She was seduced, lied to, and coerced into having sex with a manager, under the belief that she was going to have a romantic relationship with him. Instead, however, the AOS used his position to convince her to have sex in order to benefit his own work environment, including assaulting and raping her on several occasions.
  3. She saw guns in the AOS’ car at work; however, nothing was done, and the guns were not removed.
  4. She went to the police and was told that she was not in any imminent danger; thus, she was unable to file a restraining order; and the AOS had since been moved to another facility.
  5. The agency removed her medical clearance as a result of her filing this EEO claim.

The EEOC AJ issued a bench decision that found the evidence established the agency took appropriate, prompt, corrective action in response to the complainant’s reports of sexual misconduct by the AOS and a potential gun violation on Federal property. Regarding the allegations of rape, the complainant was directed to local law enforcement.

The evidence also reinforced that the AOS was not a supervisor who was empowered to hire, fire, reassign, or take any other employment action against the employee, or make any decision that would affect her benefits or terms and conditions of her employment.

The AJ specifically noted the supervisors’ “swift” actions to investigate the allegations and minimize harm to the complainant. The complainant appealed, and the EEOC concurred with the AJ.

But it was not only the swiftness of the supervisors’ actions, but also the effectiveness, that EEOC found appropriate. This is particularly critical when the allegations include firearms on workplace grounds and sexual assault. [email protected]

Related training:

 

FELTG Virtual Training Moderator Job Opening

February 21, 2023

The Federal Employment Law Training Group, LLC (FELTG) is seeking a part-time Virtual Training Moderator to assist with launching and moderate training sessions on Zoom. Candidate MUST have at least one year of telework experience and must be familiar with Zoom.

The candidate must be professional and courteous, highly organized and able to troubleshoot customer Zoom issues.

FELTG is an SBA-Certified Woman Owned Small Business that is dedicated to improving the quality and efficiency of the Federal government’s accountability systems, and promoting a diverse and inclusive civil service by providing high-quality and engaging training to the individuals who serve our country.

Job Duties:

  1. Moderate trainings on Zoom
    • Launch training event
    • Conduct audio/video check with presenter
    • Assist students who have questions as they log on to Zoom
    • Record training event
    • Provide support to presenter and students during event
    • Close event at end of session
  2. Conduct Zoom tests for customers as needed
  3. Review Zoom recordings for posting on website
  4. Assist with any other tasks as needed

Technical Skills Required:

  • Email
  • Microsoft Word, Excel, PowerPoint
  • Zoom Meetings and Webinars; WebEx, MS Teams, Adobe Connect and other virtual platforms preferred as well

Job Location:

This position is entirely remote. Because of the Zoom requirements of this position, the candidate must be equipped to work at home, and the work location must be quiet environment where web events will not be interrupted by external noises. Typical business hours may be anywhere from 8:30am eastern to 4:40pm eastern, with occasional trainings in central, mountain or pacific time zones.

Hours and schedule:

Flexible, as needed. Some weeks will have multiple events and others may not have any. FELTG will attempt to schedule training events with as much advance notice as possible.

Compensation:

$17-23 per hour, depending on experience level. Job is a 1099 contract position with the potential to become an employee.

Email resume to [email protected].

 

Now Hiring: Executive Assistant and Training Moderator

December 16, 2022

The Federal Employment Law Training Group, LLC (FELTG) is seeking a full-time Executive Assistant and Training Moderator to assist with processing registrations for training events, answering customer inquiries over telephone and email, and providing customer service assistance as needed. In addition, this individual will schedule, launch, and moderate training sessions on Zoom. The candidate must have at least one year of experience teleworking.

The candidate must be professional and courteous, as they will be the initial point of contact between customers and the company. In addition, the candidate must be highly organized and able to multi-task and prioritize projects in a fast-paced work environment.

FELTG is an SBA-Certified Woman Owned Small Business that is dedicated to improving the quality and efficiency of the Federal government’s accountability systems, and promoting a diverse and inclusive civil service by providing high-quality and engaging training to the individuals who serve our country.

Job Duties:

  1. Answer incoming calls
    • Assist/answer customer phone inquiries, handle customer service issues (respond to all voice messages within 24 hours)

 

  1. Respond to customer email inquires (respond to email messages within 24 hours)

 

  1. Process class registrations and payments; send receipts; add and track participant information for each program

 

  1. Email participants training materials and dial-in information 24 hours before each webinar and virtual training

 

  1. Moderate webinars and virtual trainings

 

  1. Create virtual trainings, webinars and meetings using Zoom
  • Add participants for each virtual event in Zoom
  • Add Polls as needed
  • Save and/or delete recordings as necessary

 

  1. Set up and conduct any webinar tests for customers that request them

 

  1. Process book orders and payments
  • Ship book orders to customers

 

  1. Update the newsletter subscribers in Constant Contact weekly and update FELTG’s email subscriber records weekly (FELTG Contacts)
  • Add all participant emails to the FELTG Contacts list

 

  1. Create certificates of completion for webinars and virtual trainings

 

  1. Submit HRCI open enrollment trainings for approval

 

  1. Create tent cards, certificates, and sign-in sheets for open enrollment trainings (when necessary)
  • Ship training materials (when necessary)

 

  1. Fulfill DVD/USB recording orders – burning DVDs or adding classes to USB drives, shipping out orders

 

  1. Add and remove videos on Vimeo as necessary

 

  1. Review webinar recordings for posting on website

 

  1. Proofread training materials as needed

 

  1. Help with invoicing when needed

 

  1. Assist with any other tasks as needed or assigned

 

Technical Skills Required:

  • Email
  • Microsoft Word, Excel, PowerPoint
  • Adobe PDF Creator
  • Zoom Meetings and Webinars; WebEx, MS Teams, Adobe Connect and other virtual platforms preferred as well
  • Vimeo
  • Experience in social media platforms
  • Experience in organizational databases a bonus

Job Location:

This position is entirely remote, with the exception of occasional travel. The ideal candidate will live within 3 hours of the Washington, DC area.

Because of the telephone requirements of this position, the candidate must be equipped to work at home, and the work location must be quiet environment where phone calls and web events will not be interrupted by external noises.

Hours and schedule:

40 hours a week. Business hours are 8:30-5:00.

Compensation:

 

$17-20 per hour to start, depending on experience level.

 

Benefits:

 

Paid sick and vacation leave; 401(k) eligibility after one year of employment.

Willful and Intentional: Know When You’re Dealing With Insubordination

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By Dan Gephart, May 16, 2022

Have you ever had an employee challenge your order or refuse an assignment? Has an employee ever replied to an order with the question: What gives you the right to make me do this?

Regarding the latter, the answer is simple — 5 USC 301-302. Here’s what it says:

“The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business … and to [D]elegate to subordinate officials the authority vested in him … by law to take final action on matters pertaining to the employment, direction, and general administration of personnel under his agency.”

The willful and intentional refusal to obey an authorized order of a superior that the superior is entitled to have obeyed is called insubordination. With employees returning to the physical workplace and the vaccine mandate kicking back in at the end of the month, there’s a good chance you will come face-to-face with situations that look like insubordination in the upcoming weeks. For example, maybe you’ll have:

  • An employee who will not get vaccinated.
  • An employee who will not provide proof of vaccination.
  • An employee who won’t wear a mask where required, or won’t follow other safety protocols.

Or here’s another likely possibility: An employee wants to remain in telework status, and continues to stall the process, by not responding to questions.

These are all instances of misconduct. But is it insubordination? Knowing this in advance is critical to whether any action you take will succeed if challenged.

In a recent class of Insubordinate Employees? Don’t Mess With the Wrong Elements, FELTG President Deborah Hopkins explained what it takes for insubordinate charges to succeed, and she shared some alternative charges that may more appropriate. [Want to bring this 60-minute training to your agency? Contact me or send an email to [email protected].]

The important question you need to ask when faced with insubordinate-like actions is this: Is it a failure to comply or a refusal? When you charge an employee with insubordination, you must prove intent.

In the following two examples, one agency proved insubordination, and the other didn’t. This first decision is 20 years old, however, the topic is quite relevant.

Refusal to be Vaccinated

The Kilauea, a ship supplying ammunition to an aircraft carrier operating in the western Pacific Ocean, was headed toward Korea, a high-risk area for biological weapons. The Commander of the Military Sealift Command ordered that all members of the crew – civilian and military – receive vaccinations against anthrax.

Two Navy employees refused. The chief mate, their supervisor, ordered them to report to the Medical Services Officer to be vaccinated. Again, they refused to be vaccinated and the chief mate warned that they would be removed if they did not receive the vaccination. A week later, they were “signed off the ship.”

After investigating the employees’ claims that they were entitled to medical waivers, the agency removed both employees for “failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.” The decision was later affirmed by the Board and the Federal Circuit, who found the removals neither excessive nor unauthorized.

“The misconduct constituted insubordination, which this court defines as a willful and intentional refusal to obey an authorized order of a superior officer, which the officer is entitled to have obeyed.”

A Change of Heart

Remember, intent is the key. The Navy employees refused to get vaccinated. And they followed through on their commitment. But what if they changed their minds? They certainly had plenty of opportunity to do so.

That wasn’t the case with the employee in Milner v. Department of Justice, 77 MSPR 37 (1997). The DOJ employee was being questioned as a witness in an investigation. She was ordered to turn over documents to the investigator. She initially refused, citing concerns about her colleague’s confidentiality. But she went home, gave it some more thought, and brought in the information the next day.

The agency wasn’t pleased with the delay and removed the employee for insubordination.

It didn’t hold up. The MSPB found the agency failed to prove a “willful and intentional refusal” because she ultimately complied. The agency could have charged the employee with something else, but they struck out with insubordination. [email protected]

Ask FELTG: Can Agency Fire Employee Who Took Part in Capitol Siege? You Decide.

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By Deborah Hopkins, January 11, 2021

Unless you were living under a rock on a deserted island without Wi-Fi for the last week, you saw the horrifying sight of a mob of American citizens, in protest of the results of the Presidential election, rioting at the United States Capitol.

Dozens, if not hundreds, of individuals engaged in violence against law enforcement officers, broke into one of our country’s most sacred buildings, destroyed government and personal property, smoked marijuana, defaced statues, stole government property, and drove our elected Members of Congress and their staffs – dedicated federal employees – to evacuate the building in fear for their safety. At least 5 deaths have been reported.

So, what would, could, or should happen if one of the rioters turned out to be a federal employee? We know that private sector companies have issued terminations. Can a federal agency fire such an employee?

When asking and answering this age-old question, it’s important to remember the discipline framework, regardless of the nature of the conduct. Following the framework will bring you to the right answer every time. At FELTG, we call this framework the Five Elements of Discipline.

I’m not going to fill in the answers for you; instead I am intentionally leaving space so that you can do the work and come to your own conclusion, with the guidance of some helpful hints in italics and a few Notes that might be of interest.

Element 1. Did the employee violate a rule?

Hint: Rules can come from a variety of places — statute, regulation, policy, should-have-known, agency SOP, code of conduct, supervisor’s unique rule, common sense, etc.

What rule(s) did the employee violate?

 

 

Note on nexus. Keep in mind if the misconduct occurs off-duty, there must be a nexus between the misconduct and the efficiency of the service. Assaulting a Federal police officer or destroying Federal property, and other things of that nature, show a link between the misconduct and the efficiency of the service.

Element 2. Does the employee know the rule exists?

Hint: An agency can’t enforce secret rules, so it has to show the employee knew, or should have known, there was a rule prohibiting such conduct.

What notice does this employee have, based on the rule(s) identified in Element 1?

 

 

Element 3. What evidence do you have that the employee broke the rule?

Hint: News footage, social media posts, emails sent on a government computer, courtroom testimony, and more have all been used as evidence in administrative cases.

What evidence would you use – and is it evidence at the preponderant level?

 

 

 

Element 4. Is removal an appropriate penalty?

Hint: Use the Douglas factors to get to the outcome. If you need a reminder, a Douglas Factors Worksheet can be found here: https://feltg.com/douglas-factors-worksheet/.

 

 

Note: In egregious cases such as these, you’ll want to hit hard the Douglas factor of the harm or potential for harm, but don’t ignore other factors such as job level, the cost of the damage, your trust and confidence in the employee, the potential for rehabilitation, and the employee’s past misconduct, especially if it involves violence, insubordination, or similar.

Element 5. Will you provide due process?

Hint: As tempting as it might be to tell someone who assaulted a Capitol Police Officer with a lead pipe “You’re fired, effective immediately,” you’ll want to be sure to follow the due process requirements that most career employees enjoy. That’s right, this citizen who has attempted to overturn the Constitution, is still entitled to his own Constitutional employment protections.

List the three-step due process requirement you’ll provide.

 

1.

2.

3.

(If you don’t know the process, then check out this article for a reminder: https://feltg.com/due-process-challenges-in-a-covid-19-world/)

Additional Considerations

A- If the employee was supposed to be working at the time they were breaking into the Capitol, the agency can charge the employee AWOL. In fact, that might be a streamlined way of getting to the removal, without having to rely on anything involving the violent behavior.

If the employee was arrested and didn’t show up to work the next day because they were in jail, the agency can also charge AWOL for that time. An employee’s annual leave request does NOT have to be approved because they are in jail.

OPM says annual leave requests may be denied if the agency’s denial is reasonable. You tell me: Is it reasonable to deny annual leave to someone who tried to overthrow Congress, assaulted federal LEOs, and destroyed government property in the process?

B – The agency can (and should) put the employee on Administrative Leave during the notice period, so they don’t come after you with a lead pipe because you’ve proposed their removal. Once regulations are issued on 5 U.S.C. 6329b the agency can use Notice Leave instead.

C – There are obviously criminal implications here. Because a removal is an administrative procedure, the agency does NOT need to wait for criminal charges to be brought, let alone a criminal conviction. Charge the underlying misconduct (for example, conduct unbecoming a Federal employee) and prove it by a preponderance of the evidence, and this employee could be off the payroll before investigators or police have paid him a single visit.

D – If you want to take the employee off the payroll even faster, you can invoke the Crime Provision under 5 U.S.C. 7513(b)(1).

We talk about all these things in upcoming training classes including UnCivil Servant: Holding Employees Accountable for Performance and Conduct (February 10-11) and MSPB Law Week (March 29-April 2). I hope you’ll join us. And please – stay safe out there. [email protected]

What Dave Wants, Dave Gets: Sexual Harassment is Misconduct

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By Deborah Hopkins, September 16, 2020

We discuss misconduct a lot during some FELTG training classes. And in other classes, we discuss sexual harassment in the workplace. Sometimes these two matters are discussed in the same class because rarely do workplace issues occur in a vacuum.

Among the worst types of misconduct to occur in the federal workplace is sexual harassment, particularly the egregious cases. It’s been almost three years since the #MeToo movement gained widespread traction, but cases of sexual misconduct, harassment, assault and more are still problems agencies face today.

Let’s look at an EEOC decision from last summer. The Complainant made allegations that her second-line supervisor subjected her to numerous incidents of sexual harassment for a period of approximately five months, including:

  • Continuously talking about his sex life.
  • Making sexually suggestive comments in the workplace.
  • When she was putting eye drops in her eyes, he said, “Let me do that for you. I am real good at putting things in.”
  • Discussing women he had affairs with, including his “high school sweetheart,” whom he said he got pregnant three times.
  • Talking about his ability to get sex whenever he wanted, stating, “What Dave wants, Dave gets.”
  • When the Complainant told him she was not feeling well and might go home, he stated that she might be pregnant and told her about his wife stating that she (the wife) needed a pregnancy test and said, “Well, if you hadn’t raped me, I wouldn’t be asking for the test.”
  • Refusing to clean the women’s restroom because “women are dirty and bleed all over the place and are smelly.”
  • Threatening to hit the Complainant with a cardboard roll.
  • Making comments to the Complainant such as said, “Why don’t you try smiling, darling?”
  • Physically touching her in a sexually suggestive or otherwise inappropriate way on multiple occasions.
  • Hitting her with a yardstick.
  • During her performance review, pulling her chair next to his desk, and, after the review, putting his hand on the inside of her thigh and saying, “See, it wasn’t that bad.”
  • Tousling her hair and poking her in the ribs, and after being told to stop, continuing to poke her and asking, “Oh, you are ticklish?”
  • Touching her on the back and shoulders several times, in front of co-workers.

These are just some of the events that were alleged, a number of which were witnessed by others, and many more are detailed in the case. Based on the factual record the EEOC found that the Complainant was subjected to a hostile work environment because of the unwelcome verbal and physical conduct based on sex, that was sufficiently severe or pervasive to create an abusive working environment.

The EEOC noted that a second-level supervisor placing his hand on Complainant’s leg at her thigh, in and of itself, was sufficiently severe to constitute a hostile work environment, because it was an unwelcome, intentional touching of an intimate body area. In addition, the EEOC found the agency liable. The Agency was ordered, among other things, to ensure that the Complainant was removed from the Store Manager’s supervisory/managerial authority. Terrie M. v. DOD, EEOC Appeal No. 0120181358 (Aug. 14, 2019).

You may be wondering why the EEOC only told the agency to separate the Complainant from the offending supervisor, instead of something more severe. That’s because the EEOC does not have the authority to require the agency to discipline federal employees who engage in misconduct. However, you can imagine the issues that arise if this level of misconduct goes undisciplined – issues we will discuss during the upcoming live virtual class Conducting Effective Harassment Investigations, October 6-8.

So, do you want to know what happened in the end? Well, “Dave” quit his job and left the country, so at least we know he isn’t currently doing this to another federal employee. Or, let’s hope he’s not. Dave worked for DOD and we know they have locations all over the world. And because this egregious sexual harassment isn’t in his disciplinary record (remember, he quit before he was disciplined), I sure hope a new employer bothers to call his former supervisor for a reference. [email protected]

ASK FELTG: In light of Van Wersh/ McCormick, do you have any suggested language for a waiver of appeal rights in exchange for a new appointment?

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September 24, 2019

Challenges to waiver language have not come up enough in caselaw since Van Wersh for us to have definitively worded notice language. However, the basic principle of waiver is that notice must be clear for any subsequent claim of waiver to be knowing. Many agencies provide a general statement in their offer letter.

Some may state something to the effect of:

“I understand I am required to serve a new probationary period in accordance with 5 CFR 315. My rights and entitlements for adverse and disciplinary actions will be processed in accordance with the provisions of the CFR, part 315.”

Here’s what’s going to happen when we try to get anyone who has signed the language above to testify that they knew what was happening:

Attorney: Did you see the reference to 5 CFR 315 when you signed the notice?

Appellant: Yes.

Attorney: What did you think it meant?

Appellant: Well, I thought it was referring to the Council of Foreign Relations in upstate New York, area code 315

Let’s start with a blank page. We prefer explicit language to clarify what is happening. Also, we take the approach that the employee is not waiving anything, but instead understands that he will have only probationary appeal rights in the new position. In other words, he’s not actually giving up any rights; he just won’t have any rights to begin with.

Here’s a statement you could use:

“I understand that for my first year of employment in this position, I will be serving in a probationary period, even though I have had prior federal service. As a probationer, I will have limited appeal rights and procedures available to me (Title 5 Code of Federal Regulations) rather than the more extensive rights of a career employee (Title 5 Code of Federal Regulations Part 752). I have had the opportunity to ask questions of a human resources specialist regarding service in a probationary period.”

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Hey, Deciding Officials: What Exactly Does Ex Parte Mean?

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By Deborah Hopkins, April 10, 2019

In federal sector employment law, we often use terms of art that carry very specific meaning. These terms may vary from a typical dictionary definition, or even from a black-letter law definition. Examples include discipline, due process, notice, response, representative, supervisor, and even employee.

A term of art that I want to highlight today is ex parte. This is a Latin term used in legal proceedings meaning “from one party.” The Legal Dictionary definition goes a little deeper: “An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney.”

That’s fine, but still not entirely helpful for the purposes of agency discipline and performance actions in the federal government. It needs some context. But before the context, let’s do a quick review of the required steps to taking a disciplinary or performance action:

  1. The Proposing Official (PO) gives the employee a proposal notice which includes the reasons for the proposed discipline (charges; Douglas factors) or performance removal (incidents of unacceptable performance during the PIP), and any relevant supporting documentation.
  2. The employee responds orally and/or in writing to the Deciding Official (DO), based on the information given in the proposal notice and any other information the employee thinks is relevant. The employee has the right to be represented in this response.
  3. The Deciding Official makes a decision based ONLY on what is contained in the proposal packet and what was contained in the employee’s response.

These are the due process steps required by law, for any Title 5 or Title 42 career employee who has satisfied the probationary period. So, where exactly does this ex parte concept fit in? Well, there are two primary types of ex parte violations that might arise:

  • An ex parte act occurs when an adjudicator considers evidence not available to one or more of the parties.
  • An ex parte discussion is one held by an adjudicator without allowing all of the parties to the controversy to be present.

The DO is a management official in the agency and as such makes decisions for the agency, she is also acting as the judge, because she is weighing the evidence to determine what penalty to dole out.

The employee legally is entitled to know all the reasons the PO relied upon, at the time he issues the proposal notice. So an ex parte violation occurs when, after the proposal is issued, the DO becomes aware of new information about the employee or the case, and the employee (and the representative, if he has one) is not made aware of the new information.

Let’s apply this scenario to the two types of ex parte violations above:

  • Ex parte act: A coworker of Ed Employee, whose removal has been proposed, sends an email to the DO, informing her that the Ed has been sending inappropriate text messages to her for months, even though she’s asked him to stop. The coworker attaches a PDF with copies of the purported text messages.
  • Ex parte discussion: The deputy director of the division sets up a meeting to talk with the DO about the risks of keeping Ed around, when there are unsubstantiated but potentially serious allegations of harassment against him. Ed is never told about this discussion.

Now you can see where the term ex parte comes in – only one side (the DO) gets the information, either intentionally or unintentionally, and Ed Employee does not have a chance to respond to it, because that new information was not in the proposal notice.

If such a violation occurs and the employee finds out about it, then it’s an automatic loser of a case for the agency – even if there is video evidence of the employee committing the charged act of misconduct, 15 sworn statements from credible witnesses, and a confession from the employee himself. It’s a procedural due process violation and that employee cannot be removed or otherwise disciplined.

One of the foundational ex parte cases involved a DOD employee who claimed credit for time not worked on six different days, and was removed for submitting false claims. After the proposal was issued, the Commanding Officer engaged in surveillance of the employee and provided this information, along with additional documents, to the DO – and the employee was not given any of this information. Due process violation, and we’re done; employee gets his job back. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Additional cases show that ex parte information, whether it is relied upon or not, automatically violates due process. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011); Buchanan v. USPS, DA-0752-12-0008-I-1 (2013); Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007); Gray v. Department of Defense, 116 MSPR 461 (June 17, 2011). Be careful when doing legal research, though, because you will find cases where agencies got lucky and successfully argued that the new information was not considered, or did not influence the DO. See, e.g., Blank v. Army, 247 F.3d 1225 (Fed. Cir. 2001) (After receiving the employee’s response to the proposed termination, the DO conducted a further inquiry into the matter but there was no due process violation because the interviews only clarified and confirmed what was already in the record.).

You don’t want to hope to get lucky in one of these cases, though. Fortunately there’s a simple fix for an ex parte conundrum, and it will save your case. The DO can simply notify the employee of the new information and give the employee an opportunity to respond to it, before the DO makes a final decision. See Ward, above.

It may bump your timeline back a few days to allow the extra response time, but that’s waaaaaay better than losing a case on a due process violation and having to start from scratch. [email protected]

 

 

Is it “Fraud” or Is it Another F-Word?

By William Wiley

Questions, we get questions. And the answer for this one comes straight out of our famous “Charges” day in our equally famous MSPB Law Week seminar:

Dear FELTG Team-

We have an employee who has been charged with “fraud.” We are not sure that his misconduct should be labeled “fraud,” maybe negligence or false pretense. In your experiences, have you run across any alternative charges that can be substituted for the term “fraud?” Secondly, are there any legal implications to prove the specification of the charge?

Dear Loyal Reader-

The Merit Systems Protection Board equates “fraud” with “falsification.”  Here are the elements of proof of that charge, from Boo v. DHS, 2014 MSPB 86:

  1. Incorrect information
  2. Provided with the intent to mislead
  3. For private material gain

The trap in this proof burden is “intent.” It almost always has to be proven by circumstantial evidence, and that’s the hardest evidence to use. If the employee can show that he accidentally provided incorrect information, the charge fails. The better alternative that avoids this problem is “lack of candor.”  From our September 13, 2016 “Charges” training program:

Lack of candor and falsification are different forms of misconduct, and the latter is not a necessary element of the former;

  • Lack of candor is a more flexible charge that need not require proof of intent to deceive.

Ludlum v. DoJ, 278 F.3d 1280 (Fed. Cir. 2002)

  • Lack of candor is a serious charge that carries with it the possibility of severe penalties.

Wrocklage v. DHS, 2013-3159 (Fed. Cir. October 21, 2014)

  • Lack of candor must be “knowing.”

Parkinson v. DoJ, Fed. Cir. 2015-3066 (February 29, 2016)

In the eyes of MSPB, “false pretense” would equate to “fraudulent” and “falsification.” Alternatively, “negligence” would be closer to “lack of candor,” but a bit lower in severity. In “lack of candor” you can add “intentional” to the penalty analysis, but you cannot do that in a “negligence” charge.

Hope this helps. I realize this is sort of in the weeds, so let me know if you need more. [email protected]