Archive for category: News Flash

By William Wiley

If you know a bit about emergency room medicine (or, heart attacks), you may have heard of “the golden hour.” That’s the critical time period that begins with the onset of a heart attack. The decisions made and the care received during this first hour may determine the quality of all the remaining hours of the life of the patient.

Well, we may this week have begun to see the “golden hour” for the life of the Merit Systems Protection Board. On March 1, 2016, at midnight, Susan Tsui Grundmann completed her term of service as the Board’s Chairman, having begun this odyssey on November 12, 2009.

During that time, the Board endured one of the major challenges of its existence: the processing of thousands of (unnecessary) appeals of furloughs caused by the Stupid Sequestration in 2013. From my view, the credit for handling that mess flows directly to the regional directors and administrative judges who worked day and night to provide fair and expedient hearings and decisions for the individuals who appealed their furloughs. That hard work occurred under the leadership of Chairman Grundmann, and she deserves significant credit for that accomplishment.

However, with credit comes responsibility. And there are decisions for which Chairman Grundmann has responsibility that had, have had, or will have a significant (though unintended) adverse effect on the civil service far beyond the resolution of the sequestration furlough appeals:

• The Board has ruled, over the objection of the current Member Mark Robbins, that federal agencies must administer essentially identical discipline for similar misconduct throughout an agency throughout the world. The result has been that agencies today are more likely to remove employees rather than show mercy out of fear that implementing a penalty less than removal will lower the bar for all future similar misconduct within the agency. As importantly, the other major adverse result is that an appellant who otherwise may be guilty as sin will have his removal penalty reduced or set aside if anyone else anywhere in the agency has ever engaged in similar misconduct and was not removed. This philosophical change has been the singular most problematic series of decisions issued by the Board in my 40-year career. Woebcke v. DHS, 2010 MSPB 85, Lewis v. DVA, 2010 MSPB 98, and Villada v. USPS, 2010 MSPB 232, aka “The Terrible Trilogy.”

• Although recently overturned by the Federal Circuit Court of Appeals, the Board held for a period of time that a federal employee could not be reassigned geographically if she did not want to be reassigned. I know; I know. The holding was couched in the language of “the efficiency of the service,” but the result was the same. If an employee refused a reassignment, and it would cost the agency more to fire the employee for being insubordinate than it would to leave the employee in place, the “efficiency of the service” concept mandated that the employee be allowed to remain in the preferred position even though the agency had rightfully decided that the employee’s services could be better utilized in another location. In its reversal, the court stated that the Board “is not empowered to reject controlling law.” Further, “The Board erred as a matter of law in abandoning the two step approach” previously set forth by the court. Cobert [OPM] v. Miller, Fed. Cir. No. 2014 (September 2, 2015). Sadly, the rejection of controlling law has been a characteristic of a number of decisions issued under the leadership of the current Chairman.

• In reference to the selection of an appropriate penalty, in the seminal case of Curtis Douglas, MSPB ruled that “the Board’s function is not to displace management’s responsibility but to assure that managerial judgment has been properly exercised within tolerable limits of reasonableness.” Douglas v. Veterans Administration, 5 MSPR 280 (1981). In interpreting 38 U.S.C. § 713 (the new legislation that applies to SES removals at DVA), the Board concluded that the efficiency of the service standard and Douglas do not apply, and that the express statutory language creates a rebuttable presumption in favor of the agency’s discretion to select the appropriate penalty. 79 Fed. Reg. 63031, 63032 (October 22, 2014). In other words, it should be even harder for the Board to find a penalty to be unreasonable in a DVA SES removal/demotion action than it would be under the significantly deferential standard of Douglas.

Yeah, well tell that to Deputy Secretary Sloan Gibson of the Department of Veterans Affairs. In decisions issued this year, the Board’s judges, applying the recent precedence established by the Grundmann-Board, while sustaining the charge brought against the appellants, the senior judges assigned to these cases set aside the demotions and removals of three senior executives because the judges disagreed with the managerial judgment in the case: “I do not find these [distinctions made by Deputy Secretary Gibson] are meaningful distinctions.” Rubens v. DVA, PH-0752-16-0151-J-1 (February 1, 2016); “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016); “In his decision letter, Deputy Secretary Gibson indicated that he considered the appellant’s response to the charge. However, … Deputy Secretary Gibson’s decision letter did not [specifically enumerate the mitigating factors in the appellant’s response].”  “The record does not reflect as simple, obvious, or dire a situation as [Deputy Secretary Gibson] has presented. … I find that the facts and circumstances as presented by the record before me demonstrate that it is unreasonable to remove an employee who has very positively contributed to the agency for more than 42 years for this one offense.” Weiss v. DVA, NY-0707-16-1049-J-1 (February16, 2016).

This SES/DVA series of agency-adverse decisions has had such a negative effect that the Secretary of DVA is in the process of asking Congress to exclude all of his SES discipline from review by MSPB. And as we have predicted here many times, soon it will be obvious that if it’s good enough for those DVA SESers to be exclude from the Board’s jurisdiction, it’ll be good enough for the non-SES contingency at DVA. And eventually, if it’s good enough for DVA, why not DoD? Or, DHS? Or, all the other federal agencies who do important government work as does DVA? The Board’s actions these past five years have pushed us to the brink of losing our civil service protections, the ones we’ve had since the Lloyd-La Follette Act of 1912.

There are other matters that define the past five years at the Board under Chairman Grundmann: appellate level backlog of cases at headquarters, the time and staff necessary to begin issuing non-precedential decisions, and the finding last year by an administrative law judge that top leadership at MSPB reprised against one of its own senior attorneys for whistleblowing. With that noted, the case law direction described above has the greater potential for causing long-lasting difficulties within the civil service, for civil service management and employees.

So how’s all of this related to having a heart attack? Simple, if you think about it. Digest these facts for a few minutes:

1. Chairman Grundmann’s term ended at midnight on March 1. She is now in a holdover position, able to remain as Board Chairman until March 1, 2017.
2. Prior to today, President Obama could not replace her. Now he can.
3. If the White House does not replace her, she becomes a political pumpkin this time next year, unable to remain at the Board.
4. MSPB has a vacancy. It today has only two Board members rather than the three envisioned by statute.
5. Assuming that the Republican Senate does not approve the currently nominated Democratic replacement to fill the Board’s vacancy, and assuming that Chairman Grundmann holds over to March 2017, our new President, ___________ (fill in the blank with your prediction), within not quite six weeks of taking office, will be confronted with a one-membered Board that cannot issue decisions because it lacks a quorum.

Hence, a “golden hour.” Actually, a golden year: a period of time in which the White House can act to replace Chairman Grundmann, thereby foreclosing the probable reality that MSPB will cease to function about this time next year, the federal agency equivalent of having a heart attack. And the way to do it, in case anyone at the White House needs advice on this, is to send a nominee to the Senate that has a good chance of being approved, someone who can serve as a healing force rather than as a divider of employees-against-management. As my friend and occasional protagonist, Peter Broida, has said, the Board was created to uphold management’s actions. That’s because agency managers should NEVER fire someone who doesn’t deserve it. If agencies always did it right, the Board would never set aside or mitigate a penalty.

But as recently reported by Chairman Grundmann, in her defense of the reversal of the DVA SES actions, MSPB affirms agency removals 75 to 80% of the time. Although put forth as an indicator of the Board’s neutrality, after 40 years of law-making, to an informed reader that statistic is instead an indicator of the very problem the Board is causing.

We are in desperate times (review the results of the Super Tuesday vote if you doubt me). We need a solid, consistent, deferential approach to the serious adverse actions taken by senior federal managers. MSPB is the only game in town that can take us in that direction. Hopefully, the White House and the Senate can see that and thereby act in cooperation to give us immediately new Board leadership that will take us in a positive direction, away from the brink of civil service collapse and toward a government workforce that is accountable to we, the people. Wiley@FELTG.com

By William Wiley

I’ve read them all. Yep, starting in 1979, I began to read Board decisions, and never stopped. Today, I lay claim to having read all of MSPB’s precedential decisions, having missed a few of those nasty little non-precedential decisions when they were first being issued in 2010. Otherwise, every one of them has travelled through my brain cells at least for a minute or two; some of them for hours. And if I ever saw the Board uphold an adverse action based on what you are about to read, I sure don’t remember it.

But first a little warm up hypothetical exercise before I push you down the old slippery slope. Pretend you are a second level supervisor. What would you do if one of your subordinate supervisors (S1) admitted to you that she “trusted fans of college basketball more than anyone else”? Would that cause you to take some action against S1? What if she told you that she “trusted Christians more than anyone else”? Has she crossed a line now, bringing religion into her thought processes? What if S1 told you she “trusted Eskimos more than any other race”? What if instead of Eskimos, her standard for trust was whether someone was African-American? Or, white? We’re certainly moving into some sensitive areas here. Does the same principle apply all the way down this slope? Or, is there a line in here – a legal line – that has been crossed and that requires you to do something?

Keep in mind, these hypotheticals involve only S1’s thoughts and her expression of those thoughts to you. As a federal manager, should you be taking action based on someone’s beliefs, even though there is no corresponding action based on those beliefs? Should a federal employee be punished for her thoughts?

Well, according to MSPB, the answer to this one is “yes.” In a recent decision, the Board upheld a two-grade demotion of a second-level supervisor out of supervision because, among other things, she did not take a strong enough action when one of her subordinate supervisors admitted to having one of these hypothetical biases (you get to guess which one). Spicer v. SSA, DC-0752-14-0996-I-1 (2016)(NP).

And that, my friends, makes this decision the first of its kind. At no other time in history has the Board blessed discipline based on an individual’s thoughts. Actions, yes. But an expression of thought in and of itself, I know of none. In affirming this specification, the Board stated that “it is completely unacceptable for Federal supervisors to harbor such sentiments.” “Harboring sentiments” is just another way of saying “believing” something. So is the test of what makes for an acceptable Federal supervisor what they believe, or more appropriately, what they do?

If the test is a person’s beliefs, how does one control what one believes? If my experience has shown me that tall people are more fun at parties, how do I change that belief? Can I will myself not to believe something experience has taught me? A psychologist will tell a person who has hallucinations that the road to normality is based on not acting on those hallucinations, that you recognize that they are not real, only manifestations of your mind, and act accordingly. We all have biases and those biases are not necessarily the same as those held by others. I may be biased towards people with whom I share a religious belief, country of birth (USA! USA! USA!), or favorite basketball team fan base. A civilized society recognizes that different people have different biases, and accepts those biases AS LONG AS individuals don’t act on those biases to the detriment of others.

By comparison, in an uncivilized society, those with the power tend to kill those with different beliefs. Go read a history book or watch the evening news if you need affirmation of this comparative concept.

Which brings us back to the demoted supervisor in this case. When S1 admitted a particular bias relative to trust, the appellant acknowledged to S1 that she might have a bias, but warned her not to act on that bias in the workplace. Not enough of a response, according to MSPB and the employing agency. Specifically, the Board ruled that the appellant “should have known that verbal warnings were wholly ineffective under the circumstances.” And because she apparently did not know this was, in part, one of the reasons she was demoted out of supervision.

Wow, “wholly ineffective.” Even worse than just plain old “ineffective.” Unfortunately, the Board’s decision doesn’t lead us to exactly what would have been an “effective” response on the part of the appellant when informed by S1 of her trustworthiness bias. If counseling (a verbal warning) isn’t enough, what is? MSPB’s decision notes that the appellant didn’t document S1’s disclosure. Perhaps a Letter of Reprimand: “By this letter I am reprimanding you because you expressed a bias in favor of [fill in the blank].” Written documentation, more than an oral warning … maybe that’s what the Board would accept. But is it really an act of misconduct to believe something that is an unpopular belief, a belief that it would be illegal to act on, but is still just a belief? Somewhere I got the idea in some civics class along the way that in our great country, we don’t punish people for their beliefs like governments do in other countries. Maybe the Board members had a different civics instructor.

In support of its decision to uphold discipline in this situation, the Board cites to Curry v. Navy, 13 MSPR 327 (1982). Board Practice Strategy: Always be suspect of authority relied on by MSPB if it goes back three and a half decades with no intervening case citations. Somebody was really digging to justify this disciplined-for-thoughts outcome. And when your suspicion leads you to read Curry, you’ll find that in that case, Supervisor Curry made sexist remarks about women to a female apprentice in a “coercive and disparaging” manner, to my read a significantly different situation than this unique case. Also, you’ll find that even though the parenthetical statement contained in Spicer summarizing the Curry holding says that Supervisor Curry’s statements were found to be “discriminatory,” the Curry decision itself reverses the judge’s discrimination finding as “clearly erroneous.” So what we are left with for bias-discipline authority is a sole contemporary citation in Spicer to a prior Board decision from 35 years ago that involved a supervisor making degrading remarks about women to a young non-supervisory woman, that is incorrectly characterized as discriminatory.

And the Board calls this Spicer decision “non- precedential.”

There are acts of misconduct in the Spicer case separate from the punishment-for-thoughts aspect discussed above that likely would support the demotion on appeal. On a personal level, I don’t like the thoughts expressed by S1. However, my personal liking or disliking someone else’s biases, and the fact that there was other disciplinable misconduct in this case, does not detract from the fact that the Board has now opened the gates for the disciplining of individuals based on their thoughts.

Good thing I’m not within the Board’s authority to discipline me any more. Because if they knew what I’m thinking …

OK, let’s see if I can end on an uplifting note. Here are a couple of teachable takeaways from this case that might be of use to you management officials out there:

• Sometimes we get a question in a class as to how far back can an agency go when disciplining for misconduct. Some of the critical supervisory conduct in this case preceded the proposed demotion by five years. That should bring you some comfort if you’re dealing with a situation involving old misconduct.
• The specifications in this case could easily have been the basis for initiating a 432-PIP, going down the other legal path for holding employees accountable. However, 432 removals are based on what happens in the future (during the PIP). This agency clearly wanted to 752-discipline the employee for things that had happened in the past without giving her a chance to show whether she could improve her performance. In a case like this, an agency has a choice of roads to take, the selection of which depends on the outcome desired.
• The charge in this case appears to have been “Negligent Performance of Duties.” In its decision, the Board reminds us of the elements of this performance-based charge: Failure to exercise the degree of care required under the particular circumstances, which a person of ordinary prudence in the same situation and with equal experience would not omit. Citing to Velez v. DHS, 101 MSPR 650 (2006).

And on that note of clarity, we rest our case. Wiley@FELTG.com

By William Wiley

Innocence. I seem to remember it vaguely. Many of us practiced it with our kids when they were young, telling them fun things like that if they were good a big fat guy in a red suit was going to come down the chimney and leave them presents once a year. Or, that an Easter Bunny had hidden colorful eggs around the house. Or, that if they put a recently-dislodged tooth under their pillow, a fairy would fly into their room when they were asleep and leave a quarter (although I guess now he has to leave a $20 to keep up with the times). Yes, sometimes we play little fantasy games with ourselves and with others, games that have good thoughts, but are not necessarily based on the hard facts of reality.

Although the more obvious fantasy games are usually played with children, we also play fantasy games with ourselves as adults. For example, a number of practitioners hang on every decision from EEOC as if they are each some sort of independent ex cathedra declaration of civil service law, bringing wisdom and justice to an otherwise discriminatory federal workplace. Well, if you’re in this group, start reading more EEOC decisions. Too many of them, like the following, contain a questionable evaluation of the evidence, Elbert H. v. DVA, EEOC No. 0120140032 (2015).

Relevant dates in order:

1. February (estimate) 2009 – Complainant is hired as a probationary employee.
2. June 30, 2009 – Supervisor rates complainant’s performance for the period from hiring until the rating is issued as Satisfactory.
3. Beginning in the “summer” of 2009, supervisor begins to note deficiencies in the employee’s performance:
4. July 19, 2009 – Employee complains to supervisor about a “hostile environment” caused by a coworker. Interestingly, nothing in the Commission’s decision references whether the employee claimed that the hostility was based on a protected civil rights category, or whether some coworker just didn’t like him and was therefore hostile.
   • Only hostility complaints based on race/sex/age/etc. are protected activity for the purpose of the filing of a reprisal discrimination complaint.
   • One would think that this would be an important evidentiary finding in EEOC’s decision.
5. January 4, 2010 – Supervisor terminated employee’s appointment during probation for poor performance. Specifically, the supervisor reported that the employee:
   • Failed to create purchase orders
   • Failed to establish purchase orders prior to services being rendered
   • Failed to provide adequate customer support to the medical center
   • Failed to support the transitioning of Network circuits
   • Ignored an environmental alarm
   • Failed to follow orders regarding work transfer
   • Failed to notify chain of command of system issues
6. Employee subsequently filed an EEO complaint claiming reprisal for the July 19, 2009 grumble. The EEOC judge found reprisal and awarded the employee:
   • Reinstatement
   • Back pay (est. $135,000)
   • Non-pecuniary damages of $23,750 (it appears that the employee did not request damages, but the judge awarded them anyway)
   • Attorney fees and expenses of $44,618.55.
7. Amazingly, the employee/complainant appealed the judge’s decision to EEOC. The rationale for the appeal is not given in EEOC’s final decision. However, that decision affirmed the judge’s findings and award.

For those of you clinging to the belief that EEOC’s decisions are well-founded and fair, check out how the judge and the Commission rationalized that the supervisor reprised against the employee:

From the decision: “While the supervisor testified at the hearing that Complainant’s performance problems began in the summer of 2009, the supervisor had rated Complainant as ‘fully successful’ or better on June 30, 2009, and the ‘performance appraisal reflects no references to any of the alleged multiple performance problems that the supervisor now asserts as the basis for the Complainant’s termination.’”

• FELTG Analysis: Well OF COURSE the appraisal given on June 30 was satisfactory. The supervisor testified that the employee’s problems didn’t start until the “summer. According to The Google, summer begins in the northern hemisphere (the relevant hemisphere herewith) on June 21. The successful performance rating given the employee for the first six months of 2009 is irrelevant to the employee’s unsuccessful performance the last six months.

From the decision: “The AJ further noted that Complainant had received a Special Act Award from the Deputy Director during the period his performance was supposedly problematic.”

• FELTG Analysis: A Special Act award is based on an “act or service in the public interest in connection with or related to official employment.” 5 CFR 451.104(a)(2). It is defined as separate from an award based on an employee’s performance, 5 CFR 415.104(a)(3). Special Act awards are given for beneficial suggestions, acts of heroism, a reduction in paperwork, and other non-performance accomplishments that contribute to an efficient government. 5 CFR 41551.104(a). I once received a Special Act award because I helped a disabled employee down a stairway when there was a (minor) fire in the office. It is irrational to conclude that an employee who received a Special Act award necessarily is a successful performer.

From the decision: The AJ concluded that the supervisor’s statements regarding the employee’s failure to report to work during a snowstorm were false (“a sham,” “outright prevarication”).

• FELTG Analysis: Yielding to the judge’s conclusion that the supervisor was “prevaricating” about the snow storm incident, what about the other five or six incidents of unacceptable performance on which the probationary termination was based? Is the Commission drawing the conclusion that since the supervisor’s testimony about the snow storm incident is not to be believed, the other incidents also are not to be believed? If EEOC is going this way, that’s quite a stretch, and not one that they’ve specifically laid out as a conclusion. The decision is silent as to the other bases for the removal, without explanation.

Evidence is often in the eye of the beholder. But a rational explanation (or lack thereof) is something we all can appreciate. Without one, we all have trouble believing in EEOC’s decisions, even though without exception, we all wish that they were always rational and correct. Sadly, they are not.

And for those of you who are still believers, there’s no such thing as a tooth fairy, either. So get rid of those left over teeth and warn your managers that you’re going to lose some cases that go to EEOC, whether you deserve to, or not. Wiley@FELTG.com

 

By William Wiley

Why new glasses? Because the Board seems to have lost its focus. Let me tell you what I mean.

Way back in 1977, when yours-truly was but a babe in the world of “civil service personnel,” Congress was thinking up legislation that was destined to become The Civil Service Reform Act of 1978. In those primordial discussions, Congress began to develop the concept of a new federal agency, independent and given the responsibility to oversee all the major discipline in government (more or less). I remember clearly a couple of Senators referring to this still-conceptual embryonic oversight entity as the “Merit Board.” Nice tight name, I thought. “MB” works well as the acronym (certainly better than the unfortunately-named “Sam Houston Institute of Technology”). So we called it the Merit Board, at least for a few weeks.

Then, without a lot of fanfare, when the draft legislation began to take shape, the name appeared not as the Merit Board, but as the “Merit Systems Protection Board.” A couple of years later when former Civil Service Commissioner Scotty Campbell spoke at one of our earliest conferences, he related that the change was made to emphasize that this new agency had been created to protect the system itself, not to ensure some sort of individualized “merit” throughout government. The concept was that no single small agency could be responsible for every adverse personnel action within the two-million-plus government workforce. Rather, the most that could be hoped for was that the new MSPB would make sure that the merit-based systems were in place for use by the managers who run the various government agencies, and that the systems would provide the protection to the employees within those systems.

That’s why its named the “Merit Systems Protection Board,” not the “Federal Employee Protection Board.” If it were intended to be the FEPB, rather than the MSPB, it would be responsible for protecting the right of individual employees to be treated based on its definition of merit. In comparison, as the MSPB, it is designed to be responsible for protecting the system in which agency managers deal with agency employees, to make sure that those SYSTEMS are grounded in merit.

I know, I know. Sounds a lot like an angels-on-the-head-of-a-pin rumination, doesn’t it. Well, let me show you the distinction in practice.

Hypothetical Scenario: Agency fires employee because of theft.

MSPB World:  MSPB decides whether Agency provided Employee the procedures required by the merit system. Did Agency give Employee clear notice of why his removal was proposed? Check. Did Agency allow Employee to defend himself? Check. Did Agency provide Employee the reasons for the removal, all based on the proposal? Check and done. The focus has been on the application of the system by Agency.

FEPB World:  FEPB decides whether it can protect the employee who is in a merit system from being fired. Did Employee steal from Agency? Did Employee get due process? Did Agency pick the best penalty? The focus has been on the protection of Employee from removal.

Non-hypothetical Scenario:  A supervisory employee responsible for keeping terrorists out of our airplanes lies in a report. Twice. The judge even found part of her defense of herself to be an unbelievable “convoluted” rationale. Who would want a convoluted liar to be responsible for life-and-death decisions? Agency fires her.

MSPB World:  She got notice, she defended herself, the agency made a decision based on all the facts. Done.

FEPB World:  Ah, ha! I, the FEPB, conclude Agency did not prove all charges. I, the FEPB, conclude that she’s really not that bad of an employee because she lied in only a single report, has decent performance ratings, there’s tension in the workplace, and she had no prior discipline. I, the FEPB, conclude that removal is beyond reasonable and that “her misconduct would not preclude her from providing efficient service in a non-supervisory” lower-graded position, plus a 30-day suspension should replace the removal. Brown v. DHS, SF-0752-14-0816-I-1 (2016) (NP).

Note that in the FEPB World, not only did that Board declare that removal was unreasonable, it also concluded that the agency needed someone in a lower-graded position, and even though it might need someone in a lower-graded position, it could spare that individual for a month while suspended. Sure feels a lot more like managing an agency than simply protecting a merit system, doesn’t it?

The scenario in which this loss of focus has become most publicized imvolves the recent reversals of adverse actions taken by DVA against three of its Senior Executives. Instead of MSPB ensuring that the systems that were in place were complied with, it interjected itself into those systems and made decisions that were always intended to be made by the line managers who run DVA. For example, as we noted recently last month, in one of those reversals the Board’s judge said, “Deputy Secretary Gibson … stated [a co-worker’s conduct] that would go to lacking sound judgment is different. I do not see it as different,” and “Deputy Secretary Gibson testified that he had no intent to discipline [appellant’s co-worker] because [the co-worker] did not receive [$274,019.12 in] relocation benefits. I do not find that these are meaningful distinctions. First, although the she did not relocate, [the co-worker] had a sizable pay raise to lose [of $18,000 per annum].” Graves v. DVA, CH-0707-16-0180-J-1 (January 29, 2016). This is a perfect example of the Board’s case law steering its judge toward the defense of the employee rather than the defense of the system, substituting its judgment for that of the line manager responsible for the operation of the agency.

Think of it this way. You’re ready to buy a new car. I go car shopping with you. We get to the point of considering two cars: a Ford and a Chevrolet. You conclude that the Chevrolet is the better car. I conclude that the Ford is the better car. Given that you are the one buying the car, responsible for driving it, and accountable should anything go wrong with it, who should make the buying decision: you or me? That’s right, you should, and so should it be the agency making judgment-call decisions like this within a merit-based system.

MSPB Chairman Grundmann was called upon earlier this month by several members of the US Senate to explain how the Board could possibly have not affirmed the demotions/removal in these DVA cases. In response, the Board stated that it was just following the law. Well, that’s just nonsense.  The Terrible Trilogy precedent (recent case law that calls for setting aside a penalty if anyone else in the agency who did anything remotely similar was not removed) exists solely as case law developed by the Board under Chairman Grundmann in 2010, and is not required by statute or regulation.  However wrong in its own right, the Board’s disparate penalty analysis was obviously designed for use in cases governed by Douglas, i.e., cases in which penalties can be mitigated.  That is the whole point of the Terrible Trilogy precedent — to justify mitigating a removal penalty to something less even though removal otherwise would be justified.  The Board was in no way required to apply this precedent to cases in which penalty mitigation was prohibited by law, as It is in the DVA/SES adverse actions.

MSPB should not be faulted for following the law, as it said in its response to the Senate inquiry. However, it certainly should be faulted for developing that law in the first place, for turning away from being the protector of our merit systems to being the protector of employees from what it believes IN ITS JUDGMENT to be unwarranted discipline.

By the way, since you’ve decided on the Chevrolet, may I suggest you consider the 2016 Corvette. That baby is wicked-cool and handles as if it was on rails. Of course, it’s your decision, not mine. Wiley@FELTG.com