“Turn Out the Lights, the Party’s Over”

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By William Wiley, February 6, 2018

That old party-ending song by the Spaniels seems appropriate this week. In case you haven’t heard the death knell tolling, here’s the shot heard ’round the civil service last week. From the State of the Union address:

“Last year, the Congress passed, and I signed, the landmark VA Accountability Act.  Since its passage, my administration has already removed more than 1,500 VA employees who failed to give our veterans the care they deserve. … So tonight, I call on the Congress to empower every Cabinet Secretary with the authority to remove Federal employees who undermine the public trust or fail the American people.”

Media outlets on both sides of the political spectrum foresee this initiative, if it comes to pass, as making it easier to fire people from government as the President claims has happened at DVA this past year. Of course, some talking heads think this is great, and some think this is terrible. Here at FELTG, we take a step back and try to understand just what it means before we jump to judgment.

First, though, a prologue. If an initiative gets into a State of the Union address, you can bet your next paycheck that there is someone very important and powerful in the administration behind the idea and willing to make it happen. This is not some stray remark that will be forgotten after the next tweet storm. This idea has legs, it beat a lot of other ideas out to make it to the speech, and somebody is going to be pushing hard to make it law.

With that said, if the DVA procedures are implemented for the rest of government, let’s take a look at what will change. Read carefully because some of what I’ve seen in the media is not exactly accurate or is misleading. If you get it here from the employment law pros, you get it right.  All numbers refer to calendar days:

Removal Procedure Most of Government DVA New Law
Employee right to a PIP for poor performance Yes No
Proof necessary to support removal Preponderance Substantial
Days for employee response to proposed removal 7 10 (I think)
Days between proposal & removal 30 Usually 21
Days to file an appeal to MSPB 30 7
MSPB stay authority (to order agency to stop) Yes No
Days for AJ to rule 120 (flexible) 63 (firm)
AJ authority to reduce penalty Yes No
Days to appeal an AJ decision to Board 30 9
Days to appeal of Board decision to court 35 9

Grouping the changes allows us to consider their value in the real world (not to be confused with the World of Capitol Hill):

Shortened Time Frames – Reducing the response and decision periods while the employee is on salary makes sense. Let’s get this thing done and get the employee off the payroll. However, we have to admit that a nine-day reduction – with only five to seven of those days being in a pay status – isn’t the greatest salary savings we can imagine; it’s a mere drop in the bucket considering the agency’s overall payroll.

In comparison, shortening the appellate time frames, when the employee is no longer on the payroll, doesn’t seem to create much benefit for the agency, other than one big one that no one’s talking about. Shorten the time frames for an appeal, and we’ve reduced the employee’s opportunity to find a lawyer-representative, and for that representative to put together some sort of defense of the employee. Is it really fair to the employee to allow the agency unlimited time to build a case for removal, then restrict the employee’s time to prepare a defense for no good reason other than disadvantaging the employee? We’ll leave it up to the appellants’ bar to argue that one further.

Reduced Burden of Proof – A lot has been made of this aspect in the press. On paper, lowering the agency’s burden from “more likely than not” (preponderance) to only substantial evidence looks like a big deal. Substantial evidence is “more than a mere scintilla of evidence, but less than the weight of the evidence.” Jones v. HHS, 834 F.3d 1361, 1366 (Fed. Cir. 2016). That should be a major change when we consider that a scintilla is no more than a particle, iota, jot, whit, atom, speck, bit, trace, ounce, shred, crumb, fragment, grain, drop, spot, modicum, hint, touch, suggestion, whisper, or suspicion.

Unfortunately, reality doesn’t give us a lot of hope with this change. Since 1979, the burden of proof an agency must satisfy when firing someone for misconduct has been at the preponderance level. However, in 2015 the good folks at MSPB’s Office of Policy and Evaluation surveyed a bunch of federal managers and found out that 97% (97 freaking percent!) of front line supervisors think the burden is much higher than that. In fact, 90% thought we need just as much proof to fire someone from government as we need to send that same person to the electric chair. Congress could lower the evidence burden even further – to a jot, iota, or whisper – and it would do no good if the profession of civil service law doesn’t do a better job of explaining things to decision-makers.

No More Penalty Mitigation – Of the three areas of change, this one stands to be the greatest benefit to agency managers who are trying to hold employees accountable (and the greatest worry to our friends on the union side). Today, when an agency builds a removal case, half the effort goes into defending the penalty against mitigation; analysis and proof of the famous Douglas Factors. Here at FELTG, when we draft a proposed removal for a supervisor, the charge is usually no more than a page, and the Douglas Factor Worksheet is often three or four pages. Each worksheet page requires file evidence to prove each factual statement in the Douglas Factors. Little is more painful in our business than losing a removal – even though misconduct was proven – because the Board concluded that our penalty was too severe.

Under the DVA’s new procedures, prove the misconduct that is charged, and we’re done. No need to muster evidence to defend against mitigation on appeal. Woo hoo! But think how this could work out. The 20+ year employee with no prior discipline and outstanding performance ratings comes to work 15 minutes tardy one day. If the agency fires him and proves the tardy charge, under DVA’s new law, it appears that we’re done. The Board and the courts have no authority to lower the penalty. If they uphold the charge, they uphold the removal, even though most of us would consider the misconduct to be trivial. Is this really what we want for our federal employees? Is this what we would call an efficient civil service?

Lots of speculation in this situation, folks. And I defer to anyone who has a better handle than do I on DVA’s new law and the direction we’re going with this whole thing. Until we start getting some case law, and until Congress decides whether it will follow the lead of the President, your guess as to how things will look this time next year is just as good as anyone else’s. Wiley@FELTG.com

What a New MSPB Board Member Nominee Should Know

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By William Wiley, January 30, 2018

Finally, after all those political donations and fund raisers, your name pops up as a candidate for a political appointment in the current administration. When you get The Call from White House personnel, your little heart starts to flutter. Will it be the ambassadorship to Ireland? The Under Secretary of State assigned to Europe, Japan, and (interestingly) Honolulu? Or, maybe you’re going to be asked if you’d like to be on the short list for the next vacancy at the Supreme Court. You can hardly wait to find out what they’re considering you for. Your mom has the hometown newspaper holding a space on Page One for the big news.

And then the shoe drops. The President is thinking you’d be of great service as a member of the MSPB. There goes the front-page article. Having no idea what those initials stand for, you quickly Google for more information while you’re telling the caller how honored you are and how you’ve always dreamed of serving the President in his still-new administration. Trying to find out what you might be getting yourself into, you hastily type into the browser’s search field www.mspb.gov. And suddenly you come to believe that you are going to be appointed to a mental hospital located just south of Bordeaux, France.

Fortunately, you soon see your error. The correct site is www.mspb.gov. Whew. Learning French was going to be hard, especially those medical terms.

OK, so you’re being nominated to be a Board member. And after a bit of reading, you find out that this is what a Board member’s life is like:

  1. The Board’s judges do the heavy lifting by conducting a hearing, weighing the evidence, then issuing an “Initial Decision” resolving the appeal of some poor fired civil servant or some other matter within MSPB’s jurisdiction.
  2. When an appeal of the judge’s decision is filed with the Board members, the case is worked by the career staff at HQ, then forwarded to the three Board members for their consideration of a draft decision.
    • If a member agrees with the career staff’s recommendation, he signs his name as adopting.
    • If a member disagrees with the career staff’s recommendation, he drafts a memo to his two colleagues about why he is disagreeing and arguing for a different outcome and a rewritten decision.
    • The other two members then review the appeal file and can either a) concur with the staff’s recommendation, b) concur with the other member’s proposed rewrite, or c) come up with their own proposal for rewrite.
  3. The case then circulates among the three members until at least two of them agree as to how the decision should be written.
    • If there is agreement that the staff’s recommendation is correct, the members sign a vote sheet indicating their agreement, and within a day or two the recommended decision is issued as the Board’s final opinion and order.
    • If there is agreement that the staff’s recommendation is incorrect, the case is returned to the staff for a rewrite.
    • When the rewritten decision is forwarded to the three members, it’s subject to the same rotation for voting and argument as before, although it’s unlikely much argument will happen as the members have already spoken as to the outcome they will adopt.
  4. If all three members agree, the final decision is issued after the original or rewritten opinion and order is adopted by all three members.
    • However, if one of the members disagrees with the other two, that member is given the opportunity to write a dissenting opinion.
    • Then that Dissent is circulated to the other two members to give them an opportunity to respond to the Dissent in the Majority Opinion.
    • Then the dissenting member is given an opportunity to respond to the changes made to the Majority Opinion by modifying the Dissent.
    • And thus, the case goes ’round and ’round until all three members have said all they want to say, and then the final opinion and order is issued.

While you’re on hold with the White House, waiting to talk directly to the President and accept the honor of a nomination to be a Board member, you think about this work that you’ll be doing. You moved paper before, thought about things, and made hard legal decisions. You can do this. When, you retrieve the Board’s annual report, you realize that about five appeals enter the Board every workday. That means that on your end, you’ll have to vote a final decision out on five cases a day to stay even with the incoming workload. OK, that’s a lot of adjudicating to do. But you’re a can-do sort of person, and by really leaning in, eating lunch at your desk, and forgoing long vacations, you can make this happen.

And then you read the FELTG newsletter. There you find out that because the Board has lacked a quorum for over a year, your caseload is not five decisions a day to adjudicate, but 800 pending appeals PLUS five new ones that come in every day.

The automated announcement on the phone says that you’re now being taken off hold:

President Trump: “Hello, this is the President. I’m delighted that you’ve agreed to take a position in my administration!”

You:  CLICK.

Lordy, we hope that somebody out there will accept an appointment to be a Board member given the current situation. Perhaps someone with no family, no friends, and a fondness for working indefinitely beyond the point of mental and physical exhaustion. Our country will be forever grateful.

However, if you do get The Call, we couldn’t blame you one bit if you took a pass. Life’s short. It’s so much more fun casually reading the FELTG Newsletter and going early to happy hours than reviewing all those old boring legal briefs that will be shoved at you.

But if you do take The Call, don’t say we didn’t warn you. Wiley@FELTG.com

Tell Me This is Not Crazy

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By William Wiley, January 24, 2018

I don’t care which side of your bread is buttered, you have to admit that our current system of oversight is a pretty poor way to set up protections for federal civil servants. Consider the following:

  1. Congress so loves the civil servant and wants those individuals in federal employment to be protected from mistreatment by their managerial overlords that it has passed several laws to provide protections:
    • It is illegal for agency managers to mistreat employees because they have filed complaints alleging civil rights discrimination: 42 USC 2000e et seq.
    • It is illegal for agency managers to mistreat employees because they have filed grievances: 5 USC 2302(b)(9)(A).
    • It is illegal for agency managers to mistreat employees because they have engaged in union activity: 5 USC 7116(a)(1).
  1. Congress, in its wisdom or folly, has established at least three institutions to make sure that the above laws are not broken:
    • The US Equal Employment Opportunity Commission has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a discrimination complaint.
    • The US Office of Special Counsel (in collaboration with the US Merit Systems Protection Board) has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously filed a grievance.
    • The Federal Labor Relations Authority has the responsibility for resolving claims that an agency has mistreated an employee because that employee has previously engaged in union activity.

Let’s take a non-hypothetical employee who believes that his agency has mistreated him on 40 separate occasions.; e.g., Letters of Warning, failure to accommodate a disability, his supervisor laughed at him … the typical list of reprisal actions. He sees a big poster on the agency’s Official Bulletin Board advertising the rights employees have to file discrimination complaints, and so he does. He believes that he has been mistreated because he has previously filed complaints alleging civil rights discrimination.

As the discrimination process works, he gets to make his arguments to an investigator, then an EEOC judge, and then to the EEOC headquarters unit that oversees federal employee claims of reprisal. And after TEN YEARS, he gets his answer. Indeed, there was reprisal against him on the part of the agency. However, it was not because of his previously filing EEO complaints. Instead, the reprisal – according to EEOC – was because he:

  1. Previously filed a bunch of grievances, and
  2. Previously engaged in protected union activity.

No EEO discrimination here. Sean T. v. USPS, EEOC Appeal No. 0120150928 (December 5, 2017).

This individual (code named: “Sean T.” like some Irish rapper; “Hey, Big Sean T.! Hit me up with that ‘Irish Eyes are Smiling’ tune again. That thing’s dope!”) was employed by the U.S. Postal Service. Therefore, he did not have access to OSC or FLRA, as would a civil servant in another federal agency, but the result would have been the same if he did. EEOC does not have the authority to protect an employee who is mistreated by agency management, unless that mistreatment was motivated by the civil rights laws.

Poor Sean T. After a decade, he finally has an answer. He was not mistreated because he previously filed discrimination complaints. Oh, yes, my friend. He indeed was mistreated. But not because of civil rights discrimination. He just got himself into the wrong forum with his allegation, and thereby is back where he started in 2008 about the time Barack Obama first took the oath of the Presidency.

That seems like so long ago, doesn’t it.

Look. Here at FELTG, we’re not siding with Mr. Sean T. Frankly, he looks like someone who would be a pain to try to manage. Instead, we’re siding – as we always do – with the side of a fair and efficient government. This particular oversight scenario is neither fair nor efficient.

Somebody, please. Fix this. It’s not DACA, but it’s worth some amount of Congressional thought. Wiley@FELTG.com

Is It Time for These Changes?

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By William Wiley, January 9, 2018

Every now and then, someone will ask one of us here at FELTG, “Hey, you guys claim to be so smart. What would you change in the system if it was up to you?” Obviously, anyone who would say this is unfamiliar with who we really are because “smart” is not an adjective that comes up on the short list, at least not before “a bit silly.”

That still leaves us with the question, what would we change if we had any influence at all as to how the government holds it employees accountable without rewriting the underlying law? Good question. And to start off the new year, here are some hopefully-good suggestions for those who actually do hold The Power. With the stroke of a pen – or a very few key strokes on a computer – here are some simple, yet game-changing, ideas:

OPM

  1. Here’s what the Civil Service Reform Act says about firing bad performers. Agencies must remove employees from their position who have unacceptable performance “only after an opportunity to demonstrate acceptable performance.” 5 USC 4302(b)(6). Back in the very-early 80s, some bright mind at OPM decided that this language called for a “Performance Improvement Period.” That thought gave birth to regulations and case law calling for a structured PIP, complete with a formal notice of failure, the establishment of “firm benchmarks” of expectations during the PIP, and counseling and feedback for a month or more during the PIP.

Well, the law never required that, did it?

Unless identified as a trainee position, we hire only qualified people into government positions. In theory, we hire only the best qualified and provide them a performance plan immediately after hiring. Therefore, they should be able to hit the ground running once in place. After that, several weeks to a couple of months should be adequate to meet the statutory requirement for an “opportunity to demonstrate acceptable performance” without the need of a formal PIP. OPM should rewrite its instructions as follows, consistent with the Reform Act and doing away with the requirement for a PIP:

5 CFR 432.104 Addressing unacceptable performance

The agency is required to provide the employee a periodic performance plan. Once the plan is in place, the employee must be provided an opportunity to demonstrate acceptable performance under the plan with assistance from the agency as necessary, a period generally lasting 30 to 60 days.  Any time after this period, if the agency determines that the employee is performing unacceptably in at least one critical element, the agency must initiate steps immediately to remove the employee from the position by either reassignment, reduction in grade, or removal from service.

For those of you faint at heart who think this approach might be un-American or otherwise un-Constitutional, it is effectively the new approach allowed for at DVA under 5 USC 7701. Congress wouldn’t pass an un-American law, would it? If it’s good enough for our DVA friends, it’s good enough for the rest of the federal agencies.

Alternatively, if OPM chooses to continue to insist that a formal PIP period be employed prior to removing an unacceptable performer, 5 CFR 432.104 should be amended by adding the following sentence at the end:

The opportunity to demonstrate acceptable performance period generally shall not exceed 30 days and can be ended at any time the employee demonstrates the inability to perform acceptably during the period.

  1. The Civil Service Reform Act creates an anomaly not easily explained. Once the agency provides an employee a notice of a proposed removal, the employee must be provided at least seven days to defend himself in a response. 5 USC 7513(b)(2). Once the employee exercises or waives that response right, the agency can effectuate the removal. However, for reasons unexplained in the law, the agency must continue to pay the employee for 30 days from the date of issuance of the notice even though it has already decided to fire him. 5 USC 7513(b)(1).

Unfortunately, a number of Federal managers do not understand the importance of making disciplinary decisions promptly. The flexibility in the law rarely makes for a more efficient accountable government. Therefore, OPM should modify its adverse action regulations as follows, appended to the end of the existing language:

5 CFR 752.404(c)(1) Procedures

Generally, agencies should provide an employee who has been issued a proposed action under this section a seven-day period to respond. Once the employee has either responded or waived the right to respond, the agency should make a decision on the proposal as soon as possible. In most cases, that decision should implemented as soon as the 30-day notice period has expired.

We have written separately and extensively that OPM should issue implementing regulations that make placement on Notice Leave automatic in cases of a proposed removal.   Additionally, we’ve argued that suspending employees is punitive and archaic, and should be avoided as being more helpful than harmful. No need to restate those suggestions here.

Agencies

Our experience here at FELTG is that within agencies, policies are often all over the map when it comes to implementing removals. If OPM does not make the above changes to government-wide policy, nothing prevents agency heads from doing essentially the same thing within agency policy:

  • Establish opportunity periods (PIPs) to be 30 days in length, terminable early if the employee demonstrates unacceptable performance during the period.
  • Mandate that decisions regarding unacceptable performance and discipline be made as soon as the notice time frames are completed.
  • Limit notice periods to seven days, routinely enforce Notice Leave during the notice period, and rarely grant extensions of time.

There are some great minds at work these days developing possible changes to our civil service system. Hopefully, those ideas – perhaps along with these – will encourage deep thought and appropriate policy action. Wiley@FELTG.com

This is Going to Blow Your Employment-Law Mind

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By William Wiley, January 3, 2018

Let’s talk burdens of proof for a few minutes, and along the way, we’ll test your knowledge. For you newcomers to this business, the burden of proof declares how much evidence an agency must have to discipline or fire someone from the federal government. The higher the burden of proof, the more work the agency must do, the longer it takes to prepare a decision, and the harder it is to defend the action on appeal. When given a choice, an agency will (or, should) pick the lower burden of proof every time.

Here are three proof-burdens that demonstrate the relativity of how much evidence is needed for a particular action. First is the official name followed in parentheses by the layperson’s way of saying the same thing:

  • Beyond a reasonable doubt (he certainly did it)
  • A preponderance of evidence (he probably did it)
  • Substantial evidence (he might have done it)

And here are three pop quiz questions to test your employment law knowledge. Get all three correct and you get a free annual subscription to the FELTG Newsletter plus free coffee at all of our open enrollment seminars for the year:

1. What is the agency’s statutory burden of proof when firing someone for unacceptable performance?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: C. Every employment law practitioner and federal supervisor should know that almost 40 years ago, Congress made it drop-dead easy to fire a poor performer. It gets no lower than the he-might-have-performed-unacceptably standard. If the choice is to fire a bad employee for performance or misconduct, pick performance as you’re less likely to lose for lack of proof. See 5 USC 7701(c)(1)(A).

2. What is the agency’s statutory burden of proof when firing someone for misconduct?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: B. Every employment law practitioner and federal supervisor should know this 51% standard. Unfortunately, most do not recognize how low this burden of proof is, even though bad federal employees are fired much more often for misconduct than for performance. See 5 USC 7701(c)(1)(B).

3. What is the agency’s statutory burden of proof when suspending someone for up to two weeks for misconduct?

A. He certainly did it

B. He probably did it

C. He might have done it

D. None of the above

Answer: D. “What?!? Wiley, you idiot. I’ve been working in federal employment law my whole career. I’ve attended your classes. I’ve read the book that you and Deb wrote. You teach that it’s a preponderance of the evidence, that the employee probably did it, that’s the burdent the agency needs to prove a short suspension. Are you saying that there’s no law that requires this burden?” Yes, Virginia, that’s right. There’s no Santa Claus and there’s no law that sets the standard of proof necessary to sustain a short suspension.

Well, then. It must be in an OPM regulation. Right? Wrong. Go read 5 CFR 752.202, the OPM regulations that lay out the standard for action for short suspensions. If you find a reference to a burden of proof there, your copy of the Code of Federal Regulations has been hacked.

So how did this epiphany come about after nearly 40 years of not seeing the obvious? Well, once again I have to give credit to a hard-working practitioner at DVA who, when trying to understand the limits of the new DVA law’s application, simply read the law and found this anomaly. We’re all in this together, and thanks goodness that DVA is sharing its experiences with the rest of us.

What can you do with this new information. assuming of course that you didn’t already know about it? Logic it through this way from an agency’s perspective:

  • Without the law or a regulation mandating a burden of proof, an agency would be free to establish its own proof burden for reprimands and suspensions up to 14 days.
  • DVA’s new law (38 USC 714(d)) tells us that there’s nothing fundamentally wrong with using the substantial burden of proof for disciplinary actions. If there were, Congress wouldn’t have passed the recent legislation.
  • Therefore, why would an agency NOT incorporate the substantial evidence burden into its own policy statements regarding adverse actions?

Here at FELTG, we try not to take issue with reasoned decisions by agency managers as to policy as long as those decisions are based on evidence and not just what some smarty pants “thinks” the evidence should be. If your agency’s head knows that legally the burden of proof for short suspensions can indeed be as low as substantial, and he or she still decides that the penalty burden should be at the preponderance level, so be it. Heck, make it the “clear and convincing” level of proof if that floats your boat. However, if you conclude that the proof burden for disciplinary actions must be “preponderance” without considering all the options, you are a baaaad employment law policy maker. Wiley@FELTG.com

FELTG Sues OPM

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By William Wiley, December 5, 2017

OK, OK. We haven’t really sued them YET. And it’s not REALLY a law suit. Instead, we’re going to go after something called a “writ of mandamus.”

For those of you who a) did not go to law school, or b) went to law school, and flushed your brain of things like this right after the bar exam, a mandamus is a judicial writ (something issued by a court) that commands another government entity to do something that the entity is required to do, but is not doing. See Marbury v. Madison, 5 US 137 (1803) (more or less).

So, what possibly could OPM have failed to do that would make the crew at FELTG do something that takes time and effort other than presenting training and providing consultation services? Easy. On December 23, 2016, the Administrative Leave Act of 2016 became law. Among other things (inter alia, if you’re feeling all lawyerly and Latin-esque), that piece of legislation created a new type of life-saving paid leave for use by federal agencies when confronted with a bad employee. Prior to the enactment of the act, OPM through regulation was directing federal agencies to keep employees in the workplace for 30 days even after their supervisor had decided that they should be fired.

Every reasonable person in the civil service knew that this was stupid. Individuals who have their removal proposed are under a great deal of stress and have the potential to become irrational or violent. In our society, just about anyone can own a gun. Sometimes violent people use guns to kill people. Therefore, keeping a federal employee noticed of a proposed removal in the workplace for a month where he can kill people is just freaking stupid. But that’s what OPM says should be done. 5 CFR 752.404(b)(3).

Thank goodness, the folks on Capitol Hill realized that this was not the way to handle potentially dangerous employees who have been notified of a proposed removal. In this new legislation, Congress said that federal agencies now have the option of placing such employees on a new type of paid leave: Notice Leave. Therefore, effective on December 23, 2016, agencies had this right and some began to use it. Hand the employee a proposed removal letter, and in that notice, tell that employee that he will be paid until a decision is made, but he is not to come to work and is to stay away from the federal facility where he is employed. Regular readers of the FELTG Newsletter might remember how we celebrated the passage of this bill as a Holiday Gift from Congress to the good people of our civil service. No longer would you have to unnecessarily risk your life to come to work when a coworker is notified of an impending removal.

Congress realized that implementation of the Act would take some effort on the part of OPM to draft new leave regulations. Therefore, it wisely set a 270-day time limit for OPM to do so, perhaps knowing that sometimes OPM does not act promptly to update regulations (e.g., implementation of the Americans with Disabilities Act Amendments Act of 2008 still conflicts with outdated OPM regulations on medical exams).

That 270-day time limit expired on September 17, 2017. Today is the 347th day since the law became effective. We may not be too good with the math here at FELTG, but we think it’s fair to say that OPM has failed to comply with the requirements of the law.

So, who cares? Well, you should. A number of agencies have mistakenly concluded that the Notice Leave law cannot be implemented until OPM issues its regulations. That’s obviously wrong because every graduate of a high school civics class knows that laws become effective (unless specifically denoted in the bill otherwise) the day the President signs the legislation. If you work in an agency that is not taking advantage of Notice Leave to get potentially violent people out of the workplace because OPM has not issued regulations, your life is in danger.

So that brings us to this writ of mandamus. OPM was obligated by law to act by this past September. It has not. Therefore, the situation is ripe for a federal court to direct them to issue the darned regulations upon threat of a contempt of court order. All it takes is somebody to petition a federal court to make OPM do what it is required by law to do. Is your agency going to do it? No, OPM is your sister agency. We don’t (usually) have one federal agency challenging another federal agency in federal court. Are you going to do it? No, you’re too busy running the government. Are we here at FELTG going to do it?

Darned straight we are.

OPM, consider this your notice. You’ve got 30 days. Either issue the regulations that Congress directed you to issue by the end of the year, or we’re going to figure out how to petition our local federal district court for a writ of mandamus to order you to do it. And we do mean “figure out” because we have no idea how to do it. Fortunately, we have law books that have been sitting in boxes in the basement for years, and then there’s The Google.  It can’t be that hard. And if we can convince a judge of the harm so that we have standing, it should be a slam-dunk legal decision. The Notice Leave law is specific and not discretionary. It is hard to imagine that OPM could muster an argument that it is not bound by a specific law.

We don’t want to do this. We’d much prefer to see federal agencies follow the law. However, when that is not being done, and when the lives of civil servants are at stake, we spring into action. OK, OK; maybe “spring” is not exactly the verb we are looking for, but you get the idea. If we have to do this, if we can get a court to issue a mandate, then along with Marbury v. Madison, law students might someday have to study the historical case FELTG v. OPM.

And if a writ of mandamus works to get us some new OPM regulations, maybe it’ll also work to get us some new Board members over at MSPB. We are shameless when it comes to protecting the civil service.  Wiley@FELTG.com

Errata:  A few weeks ago, we published a little article about the impact of the new law that allows DVA to fire bad employees more easily than in other agencies. Within that article, we hypothesized that with the new law making it so much easier to hold bad employees accountable, the DVA employee relations practitioners might now have the opportunity to take up golf and spend time with their families. Well, man-o-man, did that light up the old in-box. We now stand informed that the staff at DVA is still working endless hours to hold employees accountable, declining hobbies, and ignoring their kids and spouses, just like before. The main difference is that they are now able to hold EVEN MORE employees accountable, and have yet to cut back on their time commitments. We stand corrected, and take our hats off to our DVA colleagues for your hard-working commitment to a greater civil service.

Collateral Attacks: Cooler Sounding Than They Actually Are

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By Deryn Sumner, November 20, 2017

Collateral attack.  Sounds pretty cool on its face, like a move you’d use to take down your opponent in a street fighting video game.  In reality, it’s just a basis for an agency to dismiss a formal EEO complaint because the complainant is attempting to use the EEO process to go after an entity outside of the jurisdiction of what’s covered by Title VII and the accompanying other civil rights statutes.

Okay, so not as cool as it sounds.  But what are examples of collateral attacks?  Well, as the EEOC recently, and precisely, stated, “[a] claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the unemployment compensation process, or the workers’ compensation process.”  Katherina A. v. United States Postal Service, EEOC Appeal No. 0120172007 (September 22, 2017).  In Katherina A., the complainant was trying to assert that her supervisors discriminated against her when they allegedly submitted inaccurate information to the Department of Labor regarding a workers’ compensation claim that the complainant filed.  The agency dismissed it as a collateral attack and the Commission agreed, noting its prior precedent that claims related to the merits of a workers’ compensation claim cannot be brought before the EEOC.

But there are more types of collateral attacks than just those involving grievances, unemployment claims, or OWCP claims.  Collateral attacks can also take the form of claims involving application and approval for disability retirement.  For example, in Jae S. v. United States Postal Service, EEOC No. 0120171832 (July 14, 2017), the Commission affirmed a dismissal of a claim of race, sex, disability, and reprisal discrimination where the complainant alleged that management improperly stated he had performance and ethics issues in responding to OPM regarding his application for disability retirement.  The Commission agreed that it was inappropriate for the complainant to use the EEO process to collaterally attack something that took place before OPM.

An agency can also dismiss claims on the basis that they constitute a collateral attack on entitlement to FMLA.  For example, in Edmund L. v. United States Postal Service, EEOC Appeal No. 0120171050 (September 14, 2017), the Commission agreed with the agency that an allegation that the agency discriminated against the complainant when management failed to follow FMLA regulations was under Department of Labor’s jurisdiction.  The Commission affirmed the dismissal of that claim as a collateral attack and outside of the EEO process.

Finally, collateral attacks can also be used as a basis to dismiss claims involving internal agency investigations, such as in Nerissa S. v. Department of Army, EEOC Appeal No. 0120171616 (September 20, 2017). There, the complainant alleged that agency management officials interviewed during a criminal investigative division (CID) investigation, “intentionally provided false, misleading, and incomplete information to the CID investigator, and advocated bringing a False Claims Act lawsuit against her.” The Commission agreed that this constituted a collateral attack on the CID investigation and affirmed dismissal of the claim.

While collateral attacks may not be as cool in reality as they sound, they are a useful tool for agencies to ensure that claims raised in EEO complaints are properly within the EEOC’s jurisdiction.  Sumner@FELTG.com

FELTG Provides Training to Congress and the Legislative Branch on Sexual Harassment and other Discrimination

The Member and Employee Training and Oversight On (ME TOO) Congress Act was recently proposed, to help elected officials, employees, and staffers on Capitol Hill prevent and respond to sexual harassment in Congress.

If you’ve followed the news lately, you know there’s definitely a harassment problem on the Hill. “The system to address this problem is virtually unknown to most staffers, very confusing to navigate and tilted against victims,” said Sen. Kristin Gillibrand, D-NY.

According to one of the bill’s co-sponsors, Rep. Bruce Poliquin, R-Maine, “We need to make sure that everybody coming to work feels safe coming to work.”

Did you know that FELTG can provide training on EEO and sexual harassment to the legislative branch?

Our outstanding instructors are thoroughly familiar with the law and processes involving harassment complaints and the Office of Compliance, and can present training from one hour to multiple days on the topics you need most.

Check out our EEO program list, then call us (844.283.3584) or email info@feltg.com today for more information.

Legalized Lying, Part II

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By William Wiley, November 6, 2017

Several months ago, we had an article in our FELTG newsletter about approved lying in an EEOC proceeding. Recently, I stumbled across a similar initial decision by an MSPB judge that gave me pause. Just how far can the requirement for medical record confidentiality be stretched?

The individual in this case applied for and held one of the most onerous jobs in the federal government. He was an FBI special agent assigned to Bureau’s hostage rescue team. Body armor, getting shot at, rappelling out of helicopters; all in a day’s work for those folks. You need to be trusted to have serious physical abilities and solid psychological credentials to provide that kind of important government service. To make sure that candidates for these positions possess all the necessary physical and mental characteristics necessary, the FBI requires individuals to undergo initial and periodic fitness for duty exams.

As part of that exam, our appellant in this case had been asked to list his current medications. In response, our appellant said, “None.” In fact, he said “None” a couple of times over a period of three years because he had a couple of medical exams during his employment.

Well, as it turns out, the answer “None” wasn’t exactly accurate. The appellant had in fact been medically prescribed and was taking anabolic steroids during the time of the exams. He did not disclose this fact in response to the “current medications” question because he believed it to be his “private medical information” and that the FBI did not have a legitimate need to know it. When the FBI eventually found out about the deception, it fired the steroid-taker for providing false or misleading information on the medical form, and lack of candor in the related investigation.

So, what do you think? Does it make for a better country if the FBI knows whether one of its hostage-rescue agents is taking steroids, a type of drug reported to sometimes cause increased aggressiveness? Should an agency be able to demand straightforwardness and candor from its employees during an investigation? Or, is America a brighter beacon if we allow special FBI agents to engage in deception about the drugs they are taking?

Well, if you voted for unidentified drug-taking and deception, you will like the rationale of the Board’s judge in this case. On appeal, the AJ reversed the removal and restored this individual to the agent-hood, reasoning that the FBI’s question about “current medications” was illegal. You see, the Americans with Disabilities Act limits an agency’s authority to demand medical information from its employees to only those medical facts that are consistent with a business necessity. To the judge in this case, that meant that the questions could not be as broad as asking for “current medications” and instead had to be narrowly tailored so that they were no more intrusive than necessary. As the question was illegal under the ADA, the employee cannot be faulted for falsifying his answer to it. Litton v. DoJ, DC-0752-14-1110-I-2 (September 22, 2017) (ID).

I am at a loss as to what the FBI could have done differently. A colleague with whom I was discussing this case suggested that maybe the “narrow tailoring” that would have made the question ADA-compliant would have been to ask the employee if he was taking any “current medications that might affect job performance.” Well, that puts the question on the employee to assess which of his medications might affect his performance. Maybe this guy never heard of “steroid rage.” It doesn’t seem practical to leave it up to the employee to decide which of his drugs could cause problems at work. The FBI’s medical examiner is in the better position to make that determination.

To me, this is one of those wayward decisions that makes the public think poorly of the civil service. No wonder that there are people on Capitol Hill who would abolish MSPB and the civil service protections when they hear about cases like this. If the Board is going to interpret our laws to allow FBI agents to make false statements about their medications, there really is something wrong with our system.

Of course, this is the opinion of a single administrative judge of the Board. No doubt the FBI will file a petition for review and have President Trump’s new Board members (if any are ever appointed, that is) review this decision. Perhaps those appointees will see things differently, recognizing that individuals have rights to medical information privacy, but not to the extent of deceiving their employer who legitimately needs the information.

Until then, let’s look on the bright side. If you are a medical-marijuana card-carrying civil-servant of states like my home of California, if your agency asks you what medications you are taking, according to the rationale of this judge, you don’t have to tell them about the dope. If your agency gets all specific and asks you if you’re using marijuana, perhaps that question exceeds what is called for by “business necessity.”

But, what do we know here at FELTG. Best to get your own legal advice on that before you try it. We love to read interesting cases, but we don’t like to cause them. Wiley@FELTG.com

Are You Qualified to be a Congressman or Senator?

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By William Wiley, November 1, 2017

Let’s say that you’re a big Capitol Hill policy maker; Member of Congress, Senator … take your pick. Then, let’s say that you want to add extra protections for your beloved whistleblowers. You want to make it easier for management officials who mistreat whistleblowers to be suspended and fired from government. You don’t think that the management official’s employing agency has been doing enough, that upper management at the agency does not act to discipline individuals who have mistreated whistleblowers. So, what do you do?

An easy answer is that you find somebody other than the employing agency to do the disciplining. An outside agency, unlike upper management, does not have a dog in the fight. When you look around for another agency, you find one that routinely has to decide whether prohibited personnel practices (PPPs) have occurred. As whistleblower reprisal is an obvious prohibited personnel practice, you might consider having this agency do the disciplining.

But wait! You come to realize that just last month, that same agency had been ordered to cough up a half-million dollars in attorney fees in a PPP case that it had prosecuted. It had proposed the removal of a management official based on eight charges, each an incident in which this outside agency had believed that it had preponderant evidence that the PPP had occurred. On review, the judge ruled that this outside agency had failed to present ANY evidence that ANY of the charges could be affirmed. The judge went beyond simply ordering fees, and criticized the outside agency’s theory that it put forward in support of its prosecution:

  1. Guilty people usually deny their guilt,
  2. The manager being prosecuted denied her guilt,
  3. Therefore, she must be guilty.

Woof.

It might not be a good idea to put that outside agency in charge of proposing discipline of a manager for reprising against a whistleblower. That agency has demonstrated in a very public manner – and at least one judge has concluded – that it does not know how to prove a charge (something we have taught for 20 years in our FELTG seminars). Probably best to look elsewhere for a removal-initiator based on suspected whistleblower reprisal.

If you have reached this conclusion, then you now have one more reason that you will not fit in on Capitol Hill. In a bipartisan piece of legislation, Congress unanimously passed, and the President signed in to law, a bill that this outside agency – let’s call it the Office of Special Counsel – should have the authority to:

  1. Conclude whether whistleblower reprisal has occurred, and
  2. Order the employing agency to propose a suspension, then removal for a repeat offender.

Keep in mind that OSC was created in large part to protect whistleblowers from reprisal. Therefore, it has a strong motivation to find whistleblower reprisal. By doing so, it makes Congress happy, and Congress tends to fund agencies that make it happy. With no impartial review, under this most recent bill OSC will have the authority to order an agency to propose a minimum three-day suspension for a first offense of mistreatment of a whistleblower, and termination for a second offense.

Are you thinking that this is crazy? Well, don’t stop me now because I’m just getting rolling.

In a rational world, if OSC found what it believed to be whistleblower reprisal, it would propose discipline to a judge at MSPB, and the judge would adjudicate whether the charge was affirmed and the penalty was reasonable. This is what OSC has been doing for four decades. Under this new legislation, instead of initiating proposed discipline and standing to win or lose when MSPB issues a decision on the proposal, OSC simply orders the employing agency to propose the suspension/removal. The decision regarding the proposal will then be made by a senior manager in the agency, an agency that may well not believe that whistleblower reprisal has occurred. If the agency’s deciding official does indeed conclude that removal is warranted, then it’s the agency – not OSC – that has to devote its resources to defending the removal before MSPB. As icing on the cake of judicial irrationality, it appears from a cold read of the bill that the burden in one of these removals is on the manager to prove he did not reprise, not on the agency to prove that he did.

Double-woof.

Here at FELTG, we sincerely regret that OSC lost a prosecution that resulted in it being ordered to pay a good chunk of its annual budget as attorney fees. Those are wasted tax dollars and a harmed management official that do nothing to help us have a better government. However, this legislative trick of having OSC order an agency to take the heat by directing the agency to do the disciplining, regardless of the agency’s independent view of whether discipline is warranted, is ridiculous.

Here are the details of this mess. The new legislation is named the “Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017” and empowers IGs, MSPB, and an assortment of judges to require that agencies propose the discipline of whistleblower reprisers. The decision that orders OSC to pay a whole bunch of money as attorney fees is Coffman v. OSC, CB-1215-14-0012-A-1 (September 29, 2017).

As they say in the poker business, “Read ‘em and weep.” Wiley@FELTG.com