Supporting the Deciding Official – Even if You Disagree With the Penalty

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By Deborah J. Hopkins, May 22, 2023

A recently issued non-precedential MSPB case caught my attention: an appeal involving a proposed removal that the Deciding Official (DO) mitigated to a demotion. In most cases, if a DO mitigates a proposed removal, it’s because the DO doesn’t sustain some of the charges or thinks a removal penalty is too severe in light of the misconduct and the aggravating factors. In this case, though, I think most FELTG readers would agree the misconduct the DO sustained is egregious – and yet the DO still decided removal was not appropriate. Ditch v. FDIC, DE-0752-15-0022-I-1 (Feb, 28, 2023)(NP).

The DO sustained ten specifications of conduct unbecoming a supervisor against the appellant, a GS-13 Supervisory Examiner:

  1. The appellant had sex with a subordinate female employee, off duty, on two occasions.
  2. The appellant, the subordinate female employee, and another employee whom the appellant supervised went to a bar and drank during duty hours.
  3. While at the bar, the appellant insisted that the subordinate female employee drink a shot of whiskey, saying, “drink it, come on, don’t be a p*ssy.”
  4. The appellant and the subordinate female employee kissed while at the bar.
  5. The appellant certified the subordinate female employee’s timesheet for that day as working her regular 8-hour shift, instead of accounting for the time she spent with him at the bar.
  6. Despite the subordinate female employee advising the appellant she was only interested in a professional relationship, on two occasions while they both were on duty, the appellant expressed his continued romantic feelings to her.
  7. The next day, the appellant sent the subordinate female employee a text message also saying that he had feelings for her.
  8. The appellant stated he was going to find a way to reassign the subordinate female employee.
  9. Two weeks later, the appellant instructed the subordinate female employee to meet with him during duty hours, at which time he asked her if they had a chance for a personal relationship and if she had feelings for him.
  10. The appellant, during duty hours, told another subordinate employee of his romantic feelings for the subordinate female employee and that he had slept with her.

According to the case, the DO considered the Douglas factors and found “the appellant’s misconduct very serious as it caused ‘significant disruption to the efficiency of the Denver’ office, particularly because as a supervisor the appellant was entrusted with significant responsibilities, including acting as a role model, demonstrating good judgment, developing members of his team, fostering a positive workplace culture, and promoting teamwork.” Id. at 10.

But the DO also found significant mitigating factors, including that the appellant had “no past disciplinary record, he had 25 years of service, he got along with fellow workers, he was dependable, and, due to his 25 years of satisfactory performance as a Bank Examiner, she believed that he had the ability to perform in that position.” Id.

If you’re like me, you might look at these facts and think the DO got it wrong, and that her view of holding a supervisor to a higher standard is different than yours. But if you, like me, are an advisor to supervisors in agency actions, then you also know that, according to 5 CFR § 752 (and most likely, your agency’s policy), it’s the supervisors and managers who make these decisions. Your role is limited to providing advice on legality and options, leaving the decision up to the DO. The Board found the penalty to be within the bounds of reasonableness and upheld the demotion.

I won’t get on a soapbox here, but I would be remiss if I didn’t mention the potential liability for a finding of a hostile work environment in this case if the suspension did not promptly correct this offensive behavior, but that’s a different article for a different day.

For more on this topic, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our brand-new five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com

Avoid Sanctions Before the EEOC

By FELTG Staff, May 8, 2023

One of the most dreaded circumstances in practice before the EEOC is for a party to be sanctioned. According to Black’s Law Dictionary, a sanction is “a penalty or punishment provided as a means of enforcing obedience to a law.”

EEOC Administrative Judges (AJs) have the authority to issue sanctions if a party fails or refuses to comply with an order or request. 29 C.F.R. § 1614.109(f). The Commission has said “that delegating to its Administrative Judges the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which effectuates the policies of the Commission.” Waller v. Dep’t. of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for reconsideration denied, EEOC Request No. 0520070689 (Feb. 26, 2009).

An AJ may also impose sanctions where a party fails to appear or to be prepared for a conference or a hearing. In addition, an AJ can sanction an agency that does not produce an approved witness who is a current Federal employee.

There are a host of potential sanctions an EEOC AJ might impose, including:

  • Drawing an adverse inference
  • Considering the issues to be in favor of the opposing party
  • Excluding evidence
  • Excluding a representative from a hearing
  • Entering a decision fully or partially in favor of the opposing party

What’s the best way to ensure you’re not on the receiving end of a sanction? Join FELTG and instructor Katherine Atkinson for the virtual program Discovery Done Right: Avoiding Sanctions Before the MSPB and EEOC on May 24, 2023.

Critical Case Update: Unacceptable Performance Removals in 2023 and Beyond

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By William Wiley, April 21, 2023

For more than 40 years, the procedures a supervisor should use when confronted with a non-performing employee have been well-established. The supervisor had to:

  1. Give the employee attainable performance standards (objectives, expectations, whatever you want to call them, usually in an annual performance plan),
  2. Allow the employee a reasonable period of time to work under those standards to get used to them (hardly ever more than a couple of months), then,
  3. Initiate a Performance Improvement Plan memo to tell the employee that he is performing unacceptably, specify that he has 30 days or so to improve, and tell the employee exactly what objectives he has to accomplish during that time to keep his job.

If the employee failed to accomplish the PIP objectives, the supervisor was then obligated by law to remove the employee from the position. Removal from the position could be through reassignment, demotion, or firing. Choosing among those three options was left to the unreviewable discretion of the supervisor. To be sustained on appeal, the agency would have to prove by substantial evidence that the employee’s performance during the PIP was unacceptable.

PRO HINT: Here at FELTG, we have always taught that the supervisor should not just reassign or propose to demote the employee at the end of a failed PIP, but instead confront the employee with the reality that he could be terminated. Then, the supervisor should offer the employee the option of voluntarily requesting a demotion or reassignment (if those options are available), thereby avoiding the need for the supervisor to defend the action on appeal. If the employee were to decline the offer, the supervisor still retained all three options. There would be nothing to lose and much to gain by inviting the employee to initiate a voluntary action.

So why is 2023 an important time to step back and consider where we are with this procedure if it has been around for so long? Well, it’s important because we have a somewhat-new precedential court decision that has added a fourth step to the original procedure and two relatively new Board members who are applying that precedence for the first time to a number of cases.

First, the court-ordered added step. In Santos v. NASA, 990 F.3d 1355 (Fed. Cir. 2021), the court held for the first time that the 1978 law that created the unacceptable performance removal procedure actually required four steps, not three. According to the court, the procedures a supervisor should use when confronted with a non-performing employee are:

  1. Give the employee attainable performance standards (objectives, expectations, whatever you want to call them, usually in an annual performance plan),
  2. Allow the employee a reasonable time to work under those standards to get used to them (hardly ever more than a couple of months),
  3. Collect evidence that the employee is failing one or more specific performance standards, then,
  4. Initiate a Performance Improvement Plan memo to tell the employee that he is performing unacceptably, specify that he has 30 days or so to improve, and tell the employee exactly what objectives he has to accomplish during that time to keep his job.

Santos effectively doubled the evidentiary burden that agencies have when defending the removal of a non-performing employee. Pre-Santos, the supervisor needed only to present proof of unacceptable performance that occurred during the PIP. Post-Santos, the supervisor now has to prove incidents of unacceptable performance BOTH pre- and post-PIP initiation. Put another way, before the Santos decision, on appeal the supervisor did not have to defend initiation of the PIP with examples of poor performance. Today, now that we have Santos, the agency’s case file will need documentation to prove that the employee performed unacceptably prior to PIP initiation.

Although Santos was issued two years ago, we have only recently had Board members in place at MSPB to interpret exactly how the new Santos requirement is to be implemented at the front-line level. Now that we’ve had a few post-Santos Board opinions, we can say with a moderate degree of confidence what supervisors should be doing to prepare to defend their post-PIP removal decisions.

We can take a fair amount of instruction from the recent non-precedential order Gwynn v. Treasury, MSPB Docket No. DC-0432-16-0865-I-1 (Feb. 28, 2023) (NP). The facts of the case are in bold below, followed by our FELTG assessment of those facts:

  • In the 10-12 months preceding the initiation of a PIP, the supervisor issued the employee eight counseling memoranda. As far as we can tell, there is no requirement to notify the employee of these pre-PIP failures prior to initiation of the PIP to satisfy Santos. In addition, there’s no requirement that any unacceptable performance notifications be in the form of a counseling memorandum. The proof will have to be in the agency file should the employee fail the PIP and the supervisor subsequently proposes to remove the employee. But it’s good to know these memoranda are acceptable justification, if you already have them in the file.
  • The supervisor issued the employee a poor midyear progress review and simultaneously placed the employee on a 60-day PIP. The supervisor did not need to issue a midyear progress review to justify the initiation of a PIP. The previous eight memoranda are enough. As we have taught for years, the better practice is to NOT issue a midyear review (or annual summary performance rating) prior to initiating a PIP. By doing so, the supervisor has now given the employee a discrete act to challenge through the EEO complaint process. And that’s exactly what this employee did, thereby occupying the agency with an EEO complaint that might not be resolved for years into the future. POP QUIZ! Now that this employee has been removed from his position for failure of the PIP, and has lost his appeal to MSPB, what happens if EEOC eventually finds that the EEO complaint related to the poor midyear progress review was illegally discriminatory? ANSWER: We don’t know, but it’s probably not good.
  • The supervisor initiated a 60-day PIP. After a few weeks on the PIP, the employee underwent emergency surgery and was on approved leave for medical reasons for five months. Once the employee returned to duty, the supervisor allowed the employee two to three weeks to get back up to speed, then re-initiated the PIP for a 30-day period. Had the PIP initially been established for a shorter period, less than 60 days, the supervisor might have been able to complete his evaluation of the employee’s performance prior to the need for sick leave. Be that as it may, the supervisor was fully within his rights to continue with the evaluation of the employee’s performance with the remainder of the PIP after the medical issue was resolved. In other words, he did not “lose the PIP” because of the medical absence. He did not have to start over.
  • The supervisor denied the employee’s reasonable accommodation request to telecommute based on his unacceptable performance and the on-going PIP. This is a valuable point. Unacceptable performance can be a valid reason to deny certain disability accommodation requests as well as being a valid reason to deny requests for annual leave or LWOP. But, be sure to follow the RA process every time.
  • The supervisor used 13 examples of unacceptable performance to justify the PIP, all drawn from the eight counseling memos and the midyear review. This is the heart of the new Santos requirement. On appeal, the employee attempted to rebut the facts and the conclusions put forward for each of the 13 pre-PIP examples, and the Board evaluated and ruled on the evidence supporting all 13. Of the 13, the Board held that 11 supported a conclusion that the appellant had performed unacceptably and 2 did not. A difficult unanswered question is what if only 9 out of 13 were found to be valid examples, would the PIP still have been justified? What if it was 6 out of 13? Or only 4?

After all of this evidence and analysis regarding pre-PIP performance, MSPB finally got around to evaluating the credibility of the testimony and documents relative to the employee’s performance during the PIP. It concluded that the employee failed to achieve “numerous” PIP objectives. Therefore, the agency’s removal (demotion) action was affirmed.

We now know, without a doubt, that an agency that removes a non-performing employee using 5 USC 432 procedures will have to prove by substantial evidence that the employee was performing unacceptably both pre-PIP and during or after the PIP. As for the pre-PIP failures to meet objectives, we believe Santos is satisfied by informing the employee of these specific incidents of unacceptable performance if they are incorporated into the PIP initiation memo. Such notice would establish that the supervisor ”warned the appellant of the inadequacies in her performance during the appraisal period and gave the employee an adequate opportunity to demonstrate acceptable performance.” Santos, 990 F.3d at 1360-61.

There is one procedural aspect of this “warning” that is unclear. When must the agency come forward with its proof of the unacceptable pre-PIP performance? Is it obligated to present this evidence as an attachment to the PIP initiation memo given to the employee? If so, Santos doesn’t say that.

If the employee fails the PIP and the supervisor proposes the employee’s removal, should proof of the pre-PIP failures be attached to the proposal notice? It would seem necessary to do so to provide the employee a chance to defend himself prior to a decision being made regarding the proposal, e.g., to provide due process. However, in its remand orders implementing Santos, the Board says nothing about a due process concern that the agency did not provide the pre-PIP proof to the employee before making its decision. See Lee v. DVA, 2022 MSPB 11 (2022), paragraph 17: “On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable.”

Taking all these recent lessons together, our admittedly legally-conservative FELTG advice to Federal employment law practitioners has changed. When approached by a supervisor who has a non-performing employee, the supervisor should be advised to:

  1. Make sure that the employee has been given performance standards (with critical elements identified) and has had at least a couple of months to get used to them.
  2. Collect evidence of mistakes the employee has made recently that demonstrate he is performing unacceptably under at least one of his critical elements.
  3. Incorporate reference to these mistakes in the PIP initiation memo. The supervisor should retain evidence of the mistakes but does not have to provide that evidence to the employee at this time. However, if you want to give this list to the employee, we recommend attaching it to the end of the PIP initiation so as not to start off on a negative and put the employee on the defensive.

If the employee fails to accomplish the PIP objectives and the supervisor decides to fire the employee, the proposal notice should contain proof of each of these pre- and post-PIP mistakes. Yes, this may be more than necessary, but we would rather err on the side of caution than risk a due process violation before the Board.

Civil service law experts who have been around from the beginning say the Santos requirement to prove pre-PIP unacceptable performance is the most significant change to the 5 USC Chapter 43 unacceptable performance procedures in more than 40 years. It is imperative that all who advise management or represent employees be aware of how this change is being implemented by the current Board members. Wiley@FELTG.com

And Now a Word With … EEOC AJ Meghan Droste

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By Dan Gephart, April 11, 2023

Long-time members of FELTG Nation recall Meghan Droste as an engaging instructor and writer, who could break down difficult subjects into easy-to-understand guidance. At the same time, she’d often leave this FELTG Newsletter Editor with an earworm or two.

Ms. Droste, now an administrative judge with the Equal Employment Opportunity Commission, will kick off Day 1 of FELTG’s upcoming Emerging Issues in Federal Employment Law event, presenting Avoiding Pitfalls: Advice from an EEOC AJ on Tuesday, April 18, 2023, at 10:30 am ET.

[The theme for Day 1 is Lessons Learned and we’ll also have presentations from former MSPB Member Tristan Leavitt and FELTG’s own Joseph Schimansky. Check out the full agenda. Register for one session, one day, the whole event or any combination of sessions – it’s up to you.]

We recently caught up with Ms. Droste to discuss her career transition and what she plans to cover in her session on April 18.

DG: As a practicing attorney, you were very familiar with the EEO process. Did anything surprise you or was there anything about the process you didn’t realize until after you became an administrative judge?

MD: When I first started it was very interesting to see all of the work that is done “behind the scenes” — everything that AJs have to juggle that the parties don’t see. But I think the most surprising thing was the number of self-represented, or pro se, complainants who we see in the Washington Field Office. As a complainant’s representative I of course did not have any involvement in those types of cases, and even when I represented a Federal agency, I often encountered representatives on the other side. The process is meant to be accessible for self-represented complainants and it has been very interesting to see just how many there are.

DG: What is the most common misunderstanding about the EEO process?

MD: I think one of the most common misunderstandings, from both complainants and agencies, is an assumption that the hearings process is informal and not as serious as litigation in Federal court. AJs don’t wear robes or sit in courtrooms, but we still issue orders and set schedules that the parties have to abide by. It seems that some parties don’t understand that and think that deadlines are optional or that they can ignore their obligations that we set out in our orders or are in the EEOC’s Management Directive 110.

DG: What’s your advice to parties who are new to the EEO process on the importance of the initial conference?

MD: It is so important for the parties to be prepared for an initial conference (IC). By the time I hold an IC, I have reviewed the Report of Investigation, the parties’ Preliminary Case Information submissions, and anything else that they have uploaded to the Public Portal/FedSep; I expect the parties to have done the same and to be familiar with their case. The parties should be ready to address all of the topics outlined in the Acknowledgment Order and answer any questions I have for them about the record or their discovery needs. If they aren’t prepared, it slows down the IC and can result in a party waiving its right to raise an issue or object to something that I cover during the IC.

DG: You will be discussing the importance of civility in the EEO process at Emerging Issues in Federal Employment Law. Can you provide an example where lack of civility negatively impacted a party’s position in settlement or litigation?

MD: One way that this comes to my attention is when parties are filing a motion for an extension or a motion to compel. I generally do not see the parties’ interactions with each other, but when it comes time to file a motion that requires the party to note the opposing parties’ objections to the motion or to refer to the parties’ discussions about discovery, I see copies of correspondence between the parties as exhibits.

It’s easy to see when the parties are being civil to one another and when they are not. It’s also easy to see how, as the parties become more heated, they are less willing to work with each other to resolve routine issues. This impacts the issue they are filing the motion for and can make any later settlement discussions more difficult, if not impossible, as each side digs into their own positions and are unwilling to compromise.

DG: Agencies often miss the mark in their pleadings. What’s the most common problem with pleadings and how do you suggest that problem be fixed?

MD: Two things come to mind right away, and both are easy for agencies to fix. The first is exceeding the page limits for motions or otherwise failing to follow the requirements I set out in the Case Management Order (CMO). I remind the parties during every IC to review the CMO thoroughly because each AJ does things a little differently. Despite this, I can always tell when a party has failed to do so, and it can have a real impact for them. For example, if a party exceeds the page limit, I stop reading the motion at the last allowable page. I don’t give any consideration to any argument that comes after the page limit. The second common problem is allowing the agency’s arguments to creep into the statement of facts. The statement of facts should be, as it sounds, just the facts. An agency loses some credibility with me in the summary judgment process if it tries to spin the facts rather than presenting them without argument.

Have your own questions for Judge Droste? Register now for Emerging Issues in Federal Employment Law. Gephart@FELTG.com

EEOC Report Sparks Conversation About Offer of Resolution, Settlement

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By Bob Woods, April 4, 2023

The EEOC’s Office of Federal Operations (OFO) recently published an article discussing the “offer of resolution” (29 C.F.R. 1614.109(c)), which they refer to as an “often overlooked tool for agencies to settle EEO complaints.”
For those of you who are relatively new to practice before the EEOC, you may not realize that this “tool” has been available since 1999, when it replaced the “Offer of Full Relief” settlement option (previously available pursuant to then-29 C.F.R. 1614.107(h)).

The principal difference between these tools is that if an agency “offer of resolution” is rejected and the EEOC subsequently awards a lesser remedy than was offered, the agency is relieved of paying costs and attorney fees incurred after the offer acceptance period, whereas if an agency’s offer of “Full Relief” was rejected by a complainant, the agency could dismiss the complaint.

At that point, the complainant could seek review from the EEOC. If the EEOC agreed that the offer contained all of the remedies to which the complainant would have been entitled if the complainant prevailed on the allegations of discrimination, they would sustain the dismissal. See Henderson v. Navy, EEOC Appeal No. 01984538 (EEOC 1999).

The premise of this remedial provision was that it was unnecessary to adjudicate a complaint if the agency was willing to provide full relief. However, with the advent of compensatory damages, provided for by the Civil Rights Act of 1991, it became increasingly difficult to determine whether the Agency’s offer of compensatory damages would be considered enough to constitute “Full Relief.” As a result, the EEOC eliminated the “Offer of Full Relief” from the list of reasons for dismissal provided in 29 C.F.R. 1614.107 and amended the provisions of 29 C.F.R. 1614.109 to include the provision for “Offers of Resolution.”

Fast forward a quarter of a century. The OFO notes that this tool is underutilized and suggests that its use should be revisited by agencies. This suggestion provides an excellent opportunity to review the topic of settlements in EEO cases, something I’ll be covering in the April 12 virtual training Drafting Enforceable and Legally Sufficient Settlement Agreements.

My colleagues at FELTG asked me the below questions and my answers follow:

What are your thoughts about the use of the Offer of Resolution?

I agree the offer of resolution is probably underutilized, but I recognize it can be difficult to calculate and may involve more than an agency might be willing to offer. These offers, in particular, require a thorough analysis of the evidence and the existing EEOC awards of remedies provided in similar cases. This means the agency must ask the complainant for specific evidence to support their claim for compensatory damages and then use that evidence to try to determine its validity and how it will be assessed by the EEOC.

Offers of resolution should be made anytime the agency makes this thorough assessment and believes they are offering full relief or in situations where they believe they have offered full relief but the complainant and her/his attorney refuse to accept the offer and continue to demand additional compensation. In such cases, the agency has nothing to lose in making the offer or resolution. If the EEOC awards the same or lesser relief, the agency obtains some relief in the form of lower reimbursements for costs and attorney fees incurred after the rejection of the offer of resolution. Alternatively, if the EEOC awards greater relief, the agency is in no worse position with regard to reimbursements for costs and attorney fees than it would have been had it not made the offer of resolution. The OFO article describes the intent of the provision “ … is to encourage agencies to avoid costly EEO administrative litigation and to make complainants consider whether continuing with the EEO process would be in their best interests.”

Can you discuss the confidentiality aspect of settlement discussions?

It’s well settled by EEO law that settlement negotiations are confidential and privileged. In fact, the same holds true in the ADR process as well as in judicial proceedings and before many other adjudicative bodies. This includes settlement proposals made or discussed, as well as statements made during the course of negotiations. The reason for this policy is to enable the parties to speak freely when exploring potential options for resolution without fear of those discussions being used against them in future proceedings/litigation. MD-110, Chapter 2, Section IX(C).

Some Federal supervisors or leaders see settlement as indicating a flaw in a case, or as taking the easy way out. What would you like those people to know about settling Federal sector employment disputes?

While this sentiment is somewhat understandable, it often misses legitimate interests involved in settling a case. Every EEO complaint (starting at the pre-complaint phase) deserves an honest, open-minded assessment of the particular circumstances of the concerns/allegations presented. Supervisors and leaders need to be educated on the process generally and on the pros and cons of settlement of the particular case. It may be there is a “flaw in the case.” It may be there is evidence of discrimination or there may be weaknesses in the evidence supporting the management action, including issues of credibility of witnesses. In fact, if management did do something wrong, whether or not it constitutes discrimination, it needs to be corrected as quickly and as thoroughly as possible. Even in cases that don’t appear to have these “flaws,” there may be very good reasons to resolve the matter via settlement.

As we often teach, the best outcomes occur when resolution is freely arrived at by all parties. There are no guarantees in litigation. Early resolution often results in a more amicable return to the working relationship and returns the parties to where they can focus on mission/career. It also enables them to get an unpleasant experience over with before the case can swallow their lives. Settlements do not require any admission of fault. Additionally, the earlier the resolution, the lower the direct and indirect costs.

Are there certain types of cases you would recommend not settling. If so, why?

In my opinion, settlement should be seriously considered/explored in most (maybe even all) cases. Once the circumstances and evidence have been thoroughly reviewed, the main question will be what, if any, resolution terms short of litigation might satisfy the interests of both parties. Typically, agencies try to support the prerogatives of supervisors and will first explore alternatives that provide that support. Assuming a thorough review, I would not recommend settling any case where the evidence supports the agency position and the complainant refuses to compromise on their demands for relief that are disproportionate to the bounds of that analysis. Likewise, I would oppose settling on terms that exceed that to which the complainant would be entitled if they prevailed on the allegations of discrimination.

Instead of trying to capture the types of cases for which I would not recommend settlement, I’d prefer to identify some terms that I would argue are inappropriate. For example, there are times when a supervisor just wants to be rid of a “bad employee” and is willing to agree to terms that would make this employee someone else’s problem (e.g., a reassignment or accepting a “clean paper” resignation). If this is truly a “bad employee,” it is the supervisor’s responsibility to hold them accountable and not let them move on. To accept such terms would be a disservice to both the gaining supervisor/activity/agency and to the taxpayer. It also allows the “bad employee” to continue their misconduct or unacceptable performance in the new environment. Likewise, a settlement agreement should not be used to shield a bad management official. If the evidence suggests wrongdoing on the part of management, corrective action is appropriate. Failure to hold management accountable, like failure to hold the “bad employee” accountable, sends a bad message to the workforce, violates the agency’s legal obligations, and enables the manager to continue to engage in similar conduct.

What questions do you have for me? Join us on April 12 for the answers. Info@FELTG.com

And Now a Word With … FLRA CADRO’s Michael Wolf (Part II)

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By Dan Gephart, May 27, 2923

Michael Wolf, Director, Collaboration and Alternative Dispute Resolution (CADRO)

In the first of this two-part article, we talked to the Federal Labor Relations Authority’s Michael Wolf, who is director of the Authority’s Collaboration and Alternative Dispute Resolution (CADRO) program about that program’s success. [Editor’s note: Visit here to learn more about CADRO and its services.]

Wolf described CADRO’s style of mediation as “situational” as opposed to “facilitative or evaluative or some other label.” The key, per Wolf, was that the “parties define success.”

We wondered how CADRO’s approach applied to agencies trying to resolve disputes internally. [For more on settling disputes, join FELTG on April 12 for Drafting Enforceable and Legally Sufficient Settlement Agreements.] We caught up to Wolf in between mediations and picked his brain on this important topic.

DG: What do you think is the biggest obstacle to resolving disputes?

MW: It depends. I realize that is not really an answer, but there is no other simple response that is also accurate. Most disputes we see in CADRO erupt from a set of unique causes, characteristics, and obstacles to resolution. From the standpoint of a third party who has no stake in the outcome, we help party representatives identify their obstacles and then help them adopt what they believe to be the most effective way to overcome those obstacles. This approach tends to result in parties that are more invested in making the outcome successful when compared to an outcome imposed by an outside source of authority such as a judge or arbitrator.

DG: What physical environment best creates an atmosphere for successful mediation?

MW: With rare exception, it is best for the physical environment to enable the mediator and participants to be free of unnecessary distractions, engage with an appropriate level of confidentiality, communicate effectively, utilize joint and separate sessions, consult with sources of information and authority when necessary, and be able to fulfill external responsibilities when required.

  • The location should be reasonably available and accessible.
  • Cost should not be a factor in whether a party is adequately represented.
  • The space should not create a perception of favoritism or bias.
  • The need to work outside of “normal” business hours might be a factor.
  • No party should feel unfairly disadvantaged by the physical environment, and it should be compatible with the mediator’s style, methods, and skillset.

I’m sure there are other considerations, but these are what immediately come to mind. I view available options based on five potential methods of engagement:

  • Synchronous and in-person
  • Synchronous and remote
  • Asynchronous and in-person
  • Asynchronous and remote
  • Hybrid – a combination of synchronous and asynchronous, in-person and remote

Each of these methods of engagement give rise to a different set of considerations concerning the physical environment. For example, if one or more participants is expected to engage remotely, the impact of differential technology skills, equipment, support, and access could affect both process and outcome of the mediation.

DG: You’ve been an advocate for the appropriate use of technology in mediation.

MW: I’ve been an advocate for the appropriate use of technology in mediation since at least the late 1990s when I was the FMCS Director of Mediation Technology Services. Today, CADRO mediation and settlement conferences would not be possible without a very heavy reliance on technology and remote engagement, both synchronous and asynchronous. I am not a believer in the use of technology to repair fractured relationships, but I have found it highly effective when used appropriately to mediate labor disputes.

At the same time, I tend to be “old school.” I prefer in-person engagement for disputes that are complex, serious, and consequential. But I also recognize that in-person engagement can enable disputants to misunderstand each other as well as understand each other. At times, in-person engagement can cause a disputant to feel threatened and therefore become defensive, maybe misinterpret what is said and done, and become a barrier to success.

Sometimes mediators can control the physical environment. Other times, we have more control over the factors that impact and result from the physical environment. A skilled mediator should be able to spot the issues on the fly and make necessary adjustments when needed.

DG: Can you name a few steps that someone in a dispute can do to bring two sides together – even if they are on one of the sides?

MW: Let me start with a few of the things I suggest that person should not do. They should:

  • Not pretend to be neutral if they are linked to one of the disputants.
  • Not try to determine or shape outcome.
  • Do their best to not be influenced by judgements or assumptions about the disputants or their issues.
  • Avoid the urge to offer advice (except about process).
  • Not try to save either disputant from themselves.
  • Actively avoid shifting the balance of power between disputants.
  • Not try to shape the disputants’ “truth.”
  • Avoid becoming so frustrated that they feel compelled to adjudicate the matter.
  • Not reveal matters shared with them in confidence.

Above all else, “do no harm.”

Now a few ideas about what they might do to help. First and most importantly, listen actively! Second, help them agree on a problem statement that is in the form of a question to which they both seek the answer. If they can’t agree on the question, it is unlikely they will agree on an answer. Jointly attacking the question can also help them avoid attacking each other. Third, help each person first explore separately and then share jointly why they care so much about the answer to that question. Write down the reasons they care (bullet list, not long paragraphs). Help them compare and contrast what they care about to see what their lists have in common. Generally, they will find it easier to agree on solutions if they share a common list of reasons why they care about the answer to the question.

Fourth, facilitate joint brainstorming of possible answers to the question. Encourage both to offer at least several ideas. The more the better. Get them to think outside the box. Discourage criticism of each other’s ideas. Try to write down every idea, even the ones that seem wacky. Encourage them to build on each other‘s ideas. Then discover the ideas that rise to the top and help them explore whether one or possibly a combination of ideas might be worth trying.

If they seem to agree on one or more ideas as a path forward, help them develop an action plan to implement the ideas. Follow up in several days and then again in several weeks. Help with any operational issues. Refer the matter to someone with expertise and experience if necessary.

Gephart@FELTG.com

Three Costly Lessons on Reasonable Accommodation

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By Deborah J. Hopkins, March 6, 2023

There are always two sides to a reasonable accommodation (RA) case: the agency’s side and the complainant’s side. While a lot of our training programs at FELTG focus on avoiding agency liability, there’s another aspect to this that’s important to mention, and that’s doing the right thing for the employee who requests accommodation. We see too many instances where an agency handles an RA request improperly, and it exacerbates the employee’s medical condition, causing further harm.

The goal should always be to process RA requests according to the law. One way to ensure that happens is to look at cases to see what agencies did correctly, and also cases where they could have handled requests better. Today I want to highlight three important lessons from fairly recent RA cases.

1. If an accommodation is working, don’t change it. Every now and then we see a scenario where an employee is on a long-term RA, and a new supervisor comes in and revokes the RA, thus causing problems for the complainant and the agency. Once such case involved a technical editor who suffered from irritable bowel syndrome. She was on 100 percent telework with a flexible schedule for several years. She had been performing her duties, preparing manuscripts and various administrative oversight functions, at an acceptable level throughout this time.

A new supervisor took over the department and cancelled all existing telework agreements, including the complainant’s. The complainant notified the supervisor she needed telework to accommodate her disability and she requested the RA be granted back to her. The agency refused and, among other things, claimed the complainant’s job was not telework eligible, despite the fact that she’d been performing the work from home for several years. As a result of the accommodation denial, the complainant stopped coming to work. The EEOC found that the agency failed to provide an RA. It ordered the agency to offer the complainant a retroactive reinstatement, with appropriate back pay and benefits, and to investigate the complainant’s claim for damages. Sandra A. v. Navy, EEOC Appeal No. 2021002132 (Sept. 16, 2021), request for recon. denied, EEOC Request No. 202200276 (Mar. 7, 2022).

2. Don’t skip the interactive process. In this case, the complainant was a food inspector who developed asthma. The chemical sprays used to wash animal carcasses in his work area exacerbated his condition, so he provided a medical note to inform his agency of the issue. Rather than consider the medical note as an RA request, the agency considered the note as evidence the complainant could not work in his designated area and sent him home. The EEOC found this particular conclusion to be rational at the time.

From home, the complainant again requested an RA – specifically, the use of a certain type of respirator his physician recommended that would filter out the workplace chemicals that irritated his respiratory system. The agency denied this request, claiming “there is no evidence that demonstrates significant inhalation exposure to the employees at the establishment.” The complainant continued to make requests. After a few weeks, the agency informed him that he could use a different type of respirator than the one his doctor had ordered. However, this respirator did not filter out the chemicals that caused the complainant respiratory distress, so he again requested to use the respirator the physician recommended. He was denied because, according to the agency, it “would be an undue burden because it is a safety hazard while performing his animal slaughter duties as well as concerns with complying with OSHA’s regulatory requirements.”

EEOC noted that by requesting use of the respirator, the complainant requested the interactive process: “This informal, interactive process should be a problem-solving approach that includes: an analysis of the job to determine its essential functions; consultations with the complainant; an assessment of the effectiveness of potential accommodations; and consideration of the complainant’s preferences. 29 C.F.R. pt.1630, app. § 1630.9.”

The EEOC held the agency failed to engage in the interactive process because it did not “participate in this necessary exchange of information, which resulted in the improper denial of a reasonable accommodation.” The EEOC ordered the agency to consider the complainant’s request for compensatory damages. Tyson A. v. USDA, EEOC Appeal No. 2020000972 (Aug. 16, 2021).

3. After receiving sufficient medical documentation, don’t ask for more. The complainant in this case was injured at work. As a result, she required surgery and reasonable accommodations. She provided sufficient medical documentation to substantiate her FMLA and RA requests, but the supervisor still contacted the complainant’s medical provider without the complainant’s permission to make further inquiries about the complainant’s medical restrictions.

The supervisor was unable to explain why she needed additional medical documentation, so the EEOC found the agency committed a per se violation of the Rehabilitation Act by conducting an unlawful disability-related inquiry. EEOC remanded the case for a back pay award and a compensatory damages assessment. Eleni M. v. Army, EEOC Appeal N. 2020001903 (Sept. 7, 2021), request for recon. denied, EEOC Request No. 2021005193 (Feb. 22, 2022).

We’ll be addressing these issues and more during EEOC Law Week next week, on June 14 in Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency, and as part of the updated Reasonable Accommodation in the Federal Workplace in 2023 webinar series, beginning July 20. Hopkins@FELTG.com

Ask FELTG: What’s the Best Way to Calculate Non-pecuniary Compensatory Damages in an EEO Case?

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February 28, 2023

Thanks for the question. The best way to determine appropriate compensatory damages in cases where agencies are found liable for discrimination, harassment, reprisal, or a failure to accommodate is to look at the harm the employee endured. It’s difficult to put a dollar value on non-tangible things like anxiety, fear, loss of sleep, and the like, so researching cases where the facts are similar will help you determine what amount of damages the Commission would consider appropriate.

According to instructor Bob Woods, “EEOC has provided that an award should reflect the nature and severity of the harm to the complainant and the duration or expected duration of the harm. They have specifically stated that they will attempt to make awards that are consistent with awards in similar cases.”

In addition, we’ve done training on the topic and a recording of the recent webinar Damages and Remedies in Federal Sector EEO Cases is available in the FELTG store. Or, join us during EEOC Law Week March 13-17 for a live discussion on this topic and more.

Have a question? Ask FELTG.

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

And Now a Word With … Michael Wolf of FLRA’s CADRO Program

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By Dan Gephart, February 21, 2023

Soon after the Administrative Dispute Resolution Action was amended in 1996, the Federal Labor Relations Authority established the Collaboration and Alternative Dispute Resolution (CADRO) program. CADRO provides mediation for negotiability petitions and arbitration exceptions pending before the Authority and offers training on building healthy workplace resolutions and resolving conflict.

The program developed a reputation (one well-backed by statistics) as a successful resource for resolving complex and sensitive cases. The goal, Director Michael Wolf said is “to improve mission performance, quality of work life, and labor-management engagement.”

This time two years ago, however, there was no CADRO. It was a victim of the previous administration’s strongly held positions on labor relations.

Then-FLRA Chairman Ernie DuBester reestablished the program in late February 2021 and brought Wolf back to the fold. That was followed several weeks later by the return of Merritt Weinstein to his former CADRO position as senior dispute resolution specialist. As Wolf says, he and Weinstein “are CADRO!”

Since CADRO was reestablished, parties requested or agreed to requests for assistance in 51 negotiability cases concerning 554 disputed proposals and disapproved provisions, according to Wolf. The parties resolved all but two of the 470 language disputes in cases that closed. They are currently working on 84 language disputes in nine other negotiability cases.

We caught up with a very busy Wolf to talk about the return of CADRO and its services and get his insight on how best to resolve workplace conflict and avoid grievances. We cover the former in today’s first of a two-part article. You can find Part II here.

DG: What has been the biggest shift or change you’ve seen in cases that come your way compared to the previous iteration of CADRO?

MW: The biggest change has been the volume of ULP [Unfair Labor Practice] cases in which we are conducting settlement conferences. To help expedite clearing a backlog of more than 450 ULP charges that the FLRA Office of General Counsel deemed meritorious and queued for issuing a complaint, the FLRA Chief Judge has ordered the parties in virtually every case to participate in a settlement conference before the case can be heard by an ALJ. [Editor’s note: Due to the absence of a GC at the Authority during the previous administration, the FLRA built up a backlog of ULP cases.]

Parties appear to have done a great job settling backlogged cases before they entered the Settlement Judge Program. By this summer, CADRO staff expect to conduct settlement conferences in the last of almost 300 backlogged ULP complaints that have entered the Settlement Judge Program, plus dozens more pre-complaint ULP cases.

DG: How long did it take to get the program up-and-running again at full speed?

MW: Merritt and I found ourselves running at top speed almost immediately. During our first 12 weeks back in CADRO, we were actively involved in 15 negotiability cases containing 147 language disputes. Parties successfully resolved 145 of those language disputes during our mediation process, as other unions and agencies submitted additional requests for CADRO assistance in negotiability cases.

We started sprinting at more than full speed when ULP complaints started to issue in mid-2021. Now that we are mediating arbitration exceptions again, we are not letting our foot off the gas. We try to resolve negotiability cases in eight to ten weeks. We try to resolve ULP complaints in about twelve weeks. Our settlement rate for negotiability cases since CADRO was restored is just over 90 percent. Our settlement rate for ULPs is about 85 percent.

DG: For those out there who have never used CADRO, why should they choose it?

MW: Workplace conflict is inevitable. If we manage conflict poorly, it is more likely to be costly and destructive. At CADRO, we utilize specialized knowledge, skills, and decades of experience helping representatives of management and unions prevent conflict from becoming destructive and, when it cannot be prevented, to manage and resolve it constructively. This can help improve mission performance, quality of work life, and labor-management engagement. Those are the three legs of a sustainable, labor-management relationship that is value-added rather than a cost of doing business.

DG: Describe CADRO’s approach to mediation?

MW: Our style of mediation is “situational” rather than facilitative or evaluative or some other label. Parties define success, which might not include settling the litigation pending before FLRA. We rely on problem-solving skills, listening skills, negotiation skills, organizational familiarity, and substantive familiarity to offer parties the best opportunity to satisfy their legitimate interests. We offer parties an opportunity to go beyond the legal questions that gave rise to their case, if both want to, and explore ways to resolve the underlying problems that triggered litigation in the first place. We strive to earn parties’ respect by being neutral, ethical, and patient yet persistent. We use an interest-based process that is collaborative, confidential, low-risk, relatively informal, and normally requires only one ground rule: treat each other with mutual respect.

Another important reason people choose to use CADRO is results. We have a track record of helping parties achieve what they identify as most important, and almost always far quicker than waiting for a litigated outcome.

[Editor’s note: Visit here to learn more about CADRO and its services. For more on settling disputes, join FELTG on April 12 for Drafting Enforceable and Legally Sufficient Settlement Agreements.] Gephart@FELTG.com

To Avoid the Kraken, Warn Without Threatening

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By William Wiley, February 6, 2023

If you have attended any FELTG training relative to handling misbehaving employees, you have no doubt heard our instructors caution that, from a legal standpoint, the less you do to a problem employee, the better. That’s because Federal employees have significant rights when it comes to challenging management actions, and some challenges can be much more serious than others. Therefore, the more you do, the more you will have to be ready to devote resources to defend, and the greater the odds that you might make a mistake.

Consider an employee’s right to file a complaint of whistleblower reprisal with the US Office of Special Counsel. If a supervisor takes – or even just threatens to take – a personnel action that negatively affects an employee, and that employee can convince OSC that the personnel action probably was motivated by a desire to punish the employee for whistleblowing (or filing a grievance or engaging in some other “protected activity”), then OSC will Release the Kraken! 5 USC 2302. If you have ever been on the receiving end of an OSC investigation and the subsequent threat of a stay or discipline of a management official, then you know that the OSC Kraken can be a very unpleasant Kraken indeed. [Editor’s note: Yes, the Kraken is a bit of hyperbole, but meant only to highlight the thoroughness and effectiveness of an OSC investigation.]

And don’t forget, once you’ve taken a personnel action against an employee who believes that whistleblower reprisal was the actual motivation, even if OSC decides not to prosecute, the employee can file an MSPB appeal: motions, depositions, discovery, hearings … all sorts of things that keep you from doing the real work of your agency. You just don’t want to go here if you can avoid it.

This doesn’t mean that an agency should refrain from dealing with a problem employee out of fear of an OSC investigation. Oh, no, that would be un-American. What it does mean is that a smart agency should figure out how to accomplish the objective with the employee that you want accomplished without unnecessarily triggering a possible complaint.

Here’s an example of how that works:

At FELTG, we teach that, as a general rule, supervisors should not issue letters of warning or counseling. That’s because neither is a required action and they are of little, if any, value relative to progressive discipline or eventual removal. If you’re going to put time and effort into drafting and issuing the employee some document to correct misbehavior, then issue a Reprimand, the traditional first step in progressive discipline.

However, there may arise a situation in which the supervisor wants to do something to get the employee’s attention, or simply to emphasize or clarify the workplace rule that the employee has been violating, without disciplining the employee. Someone in your office comes up with the idea of issuing a Letter of Warning and you get assigned the job of drafting it. What do you do?

Let’s say that Pat has been cooking fish for lunch in the break room microwave, making the office smell just awful. The supervisor wants to issue a Letter of Warning. Consider these two alternative drafts:

 

Letter of Warning (Option A)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave.

 

Letter of Warning (Option B)

To: Pat

From: The Boss

In the future, you are not to cook fish in the break room microwave, or you may be subjected to discipline.

 

Option A puts the employee on notice of the office rule, an essential element of holding an employee legally accountable for future misconduct. Option B does the same thing, AND ALSO OPENS THE DOOR TO AN OSC INVESTIGATION! MSPB has held that a letter of warning or counseling that does not contain a threat of discipline is NOT a personnel action for the purpose of OSC jurisdiction, but one that does threaten possible future discipline is. Campo v. Army, 93 MSPR 1 (2002); Agee-Long v. GSA, MSPB No. SF-0752-17-0518-I-1 (Jan. 20, 2023) (NP).

Federal employment law is difficult enough when just the minimum is done. Just like packing that bug-out bag for when you have to hike into the wilderness to escape some disaster, you don’t want to carry any more weight than necessary. Employ that same principle when deciding how to do this work. Almost always, the less done, the better. Wiley@FELTG.com