By William Wiley, July 15, 2020
For 20 years now, FELTG has been presenting teaching the how-to of civil service law. We start with the theory and the law, and then share the steps, tips, and tricks of applying the law. You leave a FELTG seminar with not only an understanding of the legal principles and requirements, but also the details of exactly how to do things, such as what to wear when negotiating, where to put the commas and periods in a disciplinary document, and when to offer a poorly performing employee the chance to accept a voluntary demotion.
Sometimes we have called what we teach strategies. Other times we talk about checklists or recipes. Whatever description we use, the objective is to point out that the best way to approach this business is by following certain pre-determined steps rather than by trying to reason through every situation every time. We’ve had the current fundamental civil service law for over 40 years. Most workplace situations have come up before, and to one degree or another, someone already has figured out how to handle them legally and efficiently. We learn from these prior successes and mistakes by reading case decisions, then incorporating those lessons into what we teach at FELTG.
Since your Most Humble Author has taken senior status with FELTG, I now have more spare time. One of the things Ihave done with that luxury, mainly to impress my whiz-kid grandson, is to learn how to solve a Rubik’s cube. Anyone can do it. There are how-to videos online that demonstrate the steps to resolution. While involved in this stimulating project, I have learned three important lessons:
- You can’t just peel off the little stickers and rearrange them so that the sides are all the same color.
- No human wi
th an IQ less than 165 has any hope of figuring out how to solve the darned thing.
- The only practical approach is to learn the solution steps figured out by someone who has gone before, then apply those steps in a very particular order. The smart kids call each of these steps an “algorithm.”
An algorithm, for all you Luddites out there, is simply a step-by-step procedure for solving a logic problem. The Google tells us that a good everyday example of an algorithm is a recipe. You use an algorithm to go from a state of chaos (e.g., a kitchen full of cooking supplies) to a predefined outcome (e.g., a pot of gumbo). An algorithm often is made up of several smaller algorithms (e.g., first, you make a roux) that eventually take us to the desired outcome. If you try to figure it all out on your own, or start taking un-algorithmic steps along the way, you stand a good chance of messing things up big time.
As I learned the algorithms for solving a Rubik’s cube, it dawned on me that what FELTG does in our seminars is to try to teach class participants the algorithms of civil service law practice. We learned the steps in the algorithms we teach by evaluating thousands and thousands of legal decisions from MSPB, FLRA, and EEOC – as well as from their reviewing courts – to tease out the tricks and tips of our business. We learn when practitioners make mistakes just as much as when practitioners do something correctly. By putting all this legal history into context, we try to demonstrate the safest, most efficient, legally-defensible strategies for dealing with problem employees while simultaneously honoring employee rights. Comply with the FELTG civil service law algorithms and we can guarantee that you will be successful. Start playing around with other approaches, or tweaking an algorithm in some manner that we don’t recommend, and you run the risk of making a HUGE mistake.
With that said, let’s take a look at a couple of semi-recent court decisions that reinforce several elements of the algorithms FELTG teaches relative to taking a disciplinary action against a federal employee. There’s no new law in these two decisions. In fact, they rely on principles we’ve been presenting since our very beginning. However, we feel the need to emphasize them because too many supposed “specialists” in our business don’t take the time to learn from history, to apply the algorithms, and instead try to figure out things for themselves. In no particular order, here are three FELTG-algorithm elements for your consideration:
Charges must be specific: When proposing to take an adverse action against an employee for disciplinary reasons, the employee’s supervisor issues a Proposal Notice to the employee. That notice should contain the “specific reasons” for the proposal, i.e., a description of the misconduct specific enough that the employee can defend himself should he choose to respond to the proposal. That description is usually labeled as a “Charge” and the Charge is often accompanied by one or more “Specifications” that give the details of the misconduct. If the supervisor crafts a Charge that is vague, the employee’s due process rights have been violated, and on appeal the adverse action will be reversed.
In a recent case bringing home this important part of the adverse action algorithm, the agency crafted the Charge as, “Possible misuse of protected information available to you as an EEO counselor.” The information that was supposedly misused was not specified. The manner in which it was alleged to have been misused was not spelled out. On appeal, the court had no problem at all in deciding that this Charge was “certainly” too vague to provide the specificity demanded by due process. “The employee must be given enough information to enable him or her to make a meaningful response to the agency’s proposed [adverse action].”
Were this aspect of the case controlling of the outcome, the court would have ordered the removal set aside and the appellant reinstated with backpay. Fortunately for the agency, because it’s employee relations practitioners properly adopted another aspect of the FELTG adverse action algorithm, the removal was affirmed. See below:
Supporting documentation should be attached to the proposal notice: The law says that when proposing an adverse action, an agency must provide the supporting documentation to the employee “upon the employee’s request.” 5 U.S.C. 7513(e). A number of agency counsel we have had in our seminars over the years tell us that their offices take a minimalistic approach to this requirement and require that the employee actually request the supporting material rather than the supervisor simply providing it along with the Proposal Notice. Well, if you are familiar with the caselaw, you know that waiting for the employee to request the information is asking for trouble, and a risk easily avoided by just giving the employee the materials as an attachment to the Proposal Notice.
There are a number of reasons for using a supporting-materials attachment that we discuss in our classes. One of those reasons came into play in the recent case that is the subject of the above section. The agency got itself into big trouble by mistakenly drafting a vague charge. However, the court upheld the removal in spite of the charge-framing mistake because the documents attached to the Proposal Notice provided the critical specificity lacking in the charge itself. Had the practitioner who drafted the Proposal Notice NOT attached those documents, as we have recommended in the FELTG algorithm since the cooling of the Earth, the court would have reversed the removal for a failure of due process. Willingham v. Navy, No. 2019-2031 (Fed. Cir., Apr. 8, 2020).
The Douglas factor penalty-selection analysis should be a separate document. In my years as Chief Counsel to the Chairman of MSPB, I participated in the drafting and adjudication of thousands of Board opinions. Based on that experience, I can say with a high degree of certainty that if a court or the Board bothers to mention a fact in its decision, it was important to the adjudicators who decided the case. The fact may not have been determinative of the outcome. However, if the adjudicator goes to the trouble of mentioning it, the fact most likely had an effect on the adjudicator’s consideration of the arguments and issues.
In a recent decision issued by the Federal Circuit, the court went to the trouble of noting that the Proposal Notice contained a separate, detailed “written Douglas factor analysis.” The court stated that this document “provided [the appellant] with an opportunity to respond orally and in writing” to the Proposal Notice. To the inexperienced reader, this might seem like a routine throwaway line of legal chatter. However, it is significant to those who know the FELTG adverse action algorithm. That’s because a number of practitioners we’ve worked with over the years mistakenly believe that the Decision Notice rather than the Proposal Notice should contain the detailed Douglas analysis. Or, alternatively, an uninitiated HR specialist or attorney will cast the Douglas factor analysis as part of the body of the Proposal Notice, written in a run-on narrative format rather than the 12-part worksheet that we teach. Organize the factors in 1 through 12 format, keep the discussion of each factor specific to that particular factor, and do all of this on a separate document attached to the proposal. Your case may not be won or lost on this element, but doing so will tilt your case toward being more winnable than if you do it otherwise.
By the way, as a bonus, the court mentioned that the Proposal Notice got the employee out of the workplace immediately by placing her on paid leave during the 30-day notice period. That element, as well, is part of the FELTG algorithm. The practitioner who built this case for DoD did it the FELTG-Way© and we are honored if that is because of attendance in one of our programs. Noffke v. DoD, No. 2019-2183 (Fed. Cir. Apr. 8, 2020).
No matter how smart you are or the number of fancy degrees you have earned, please don’t try to figure this stuff out from scratch. Read the decisions, come to the FELTG classes, learn our algorithms. This is not always a commonsense business. Take advantage of those with more experience and you are most likely to come away from the appeal process with a winner rather than with a bill for back pay and a restored disgruntled employee.
Our next seminar that presents the adverse action (and unacceptable performance) algorithms will be offered virtually September 21-25. Hey, what the heck. Register for MSPB Law Week and who knows, maybe a FELTG instructor will demonstrate the Rubik’s Cube algorithm, just in case that you, too, have a smarty-pants teenager that needs to be taught that his parents are not quite as dimwitted as he might think. Wiley@FELTG.com