By William Wiley

Think quickly. Which of the following would you prefer to buy?

  1. Hamburger that is 80% lean
  2. Hamburger that is 20% fat

Most humans, and we continue to believe that the majority of the FELTG readers are human despite occasional evidence contra, will pick the 80% lean. Of course, now that you’ve had a minute to think about it, you’ve done the math, and you know that these two descriptions are simply different ways to describe the same chunk of chuck. Yet, study after study shows that we pick the description that favors the lean. An often-used term to describe this behavior is “framing attribution” or more specifically “negative dominance,” see Levin and Gaeth (1988), Journal of Consumer Research. We prefer the characterization that favors the positive over a characterization that favors the negative.

Want another one? Assume you are an American interested in holding federal employees accountable for their performance and conduct. Which of these two characterizations suggests something positive?

  1. MSPB affirms agency removal decisions 75-80% of the time.
  2. MSPB rejects agency removal decisions 20-25% of the time.

Once more, these two phrases describe the same success rate. However, the former sounds better, especially if you are defending the Board against claims that it is not supporting management’s disciplinary actions enough. And in fact, that’s exactly how the Board’s Chairman lately has been characterizing MSPB’s review of agency removal decisions, emphasizing the “positive dominance,” just like social psychology studies would suggest be done.

Unfortunately, that defensive characterization of the Board’s affirmance rate of agency removal decisions detracts us from the HUGE elephant in the room: After nearly 40 years of agencies trying to do exactly what the Board says should be done, MSPB still rejects agency removal decisions 20-25% of the time.

Just think if we had a similar success rate for airline pilots landing an airplane safely. Or, baseball pitchers being able to get the ball to home plate. Or, what if for every three times your wife told you she loved you, a fourth time she told you that you were the worst thing that ever happened to her? Each of these situations is serious and in need of some very prompt and focused attention (and perhaps some emergency marriage counseling). Yet government agencies just keep on keeping on, accepting a “survival” rate that would be cringe-worthy in other situations. You would think that someone would try to figure out what’s going on, why all agency removals are not affirmed on appeal as they should be.

And of course, here at FELTG, we dare to go where no one with good sense will go. So here are the main possibilities that are resulting in 20-25% of agency removal actions being rejected:

  1. Agency attorneys and human resources specialists are ignorant, unable to properly construct a removal action.
  2. Agency managers are evil, bent on firing people who should not be fired.
  3. MSPB is overstepping its role, reversing agency decisions that should not be reversed.

Seriously. Can there be any other reasons? Assuming not, let’s think about each of these:

  1. Ignorant is not the same as stupid. Stupid is the thief killed by a vending machine that falls on him when he is trying to steal a soda from it. Ignorant is just not knowing something, as in “I am ignorant in the ways of the Eskimos.” In all humility, for over 15 years we here at FELTG have been trying to do something about any ignorance in the field of federal employment law. However, we can’t make folks come to the seminars and webinars. If Reason One is the cause of the high rejection rate, we are doing what we can, but we’re just one little training company.
  2. I’ll admit a bias here. In my life-long career in this business, I’ve run into some managers I did not like, who were a bit arrogant or self-centered, perhaps even kinda stupid (see above). However, I can count on two hands out of the thousands of federal supervisors I’ve met, worked with, or reviewed cases of, how many I think intentionally mistreated an employee because of civil rights status (sex, race, age, etc.), whistleblowing, union activity, or veterans’ status. However, if your experience is different, if you’ve run into a bunch of evil supervisors in your career, keep in mind how many supervisors are involved in the typical removal action, how many removal actions are taken each year, and that effectively 20-25% of the federal supervisory corps would have to be evil to explain the Board’s rejection rate. That’s a LOT of evil for a system based on merit.
  3. Which brings us to the Board. If we have educated attorneys and HR specialists assisting honest supervisors who are just trying to hold their employees accountable, then the only option left requires us to evaluate what MSPB is contributing to the dismissal rejection rate of 20-25%. And if you are a loyal reader of our newsletter, you are familiar with our concern that the “merit systems” protection board has become the “federal employee” protection board, supplanting the judgment and decision-making always intended to be left to managers accountable for the performance of their agency.

Let me give you an example of this last possibility. This is a judge’s decision, not a Board member opinion, so it’s not yet the final voice of the Board. But it is well-based in Board case law, so it still serves to show what can happen when an oversight adjudicator makes management decisions.

You know this lady. Feels overworked compared to her colleagues, complains about how the place is being run, ticks off a lot of her coworkers, then stops coming to work when people are not nice. For a year. Finally gets fired for medical inability to perform based on her claim that she cannot work anymore due to stress in the office. Files for workers’ comp: nothing. Files with OSC: nothing. Finally, files with MSPB. After a hearing, the judge rejected the removal and put her back to work after four years, based on the following:

  • One of her complaints had to do with a perceived safety violation. Therefore, she is a whistleblower.
  • The complaint occurred 1½ years prior to the decision to remove. Therefore, automatically a contributing factor in the removal.
  • When deciding to remove her because of her medical limitations, the deciding official gave no consideration to the fact that her medical condition and resulting one-year absence were caused by a “hostile environment”:
    • Inappropriate music in the workplace.
    • Her coworkers got longer breaks.
    • She had to work harder than some of her colleagues.
    • One day a coworker bumped into her.
    • Another day, a coworker said a vulgar word to her.
  • Although there were comparator employees who had been fired for medical reasons, none had medical problems caused by a similar hostile environment.

Social psychology is a fascinating science. Those who know how to use its secrets (some of which we teach in the FELTG negotiations seminars) can influence behavior and focus attention to obtain an advantage. But rather than focusing on the paltry number of removal actions affirmed by the Board, somebody somewhere should be looking at those that are rejected, and doing something about it. America could use an advantage.  [email protected]

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