Last Chance Agreement Violation With a Side of Fries

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By Deborah J. Hopkins, January 30, 2023

A last chance agreement (LCA) is an alternative disciplinary option for an agency when an employee has engaged in misconduct that warrants a removal, but the agency gives the employee one final opportunity to keep her job. Typically, the LCA is offered after the employee’s response to the proposal and before the decision is due. An LCA generally includes the employee’s promise to follow all the agency’s rules and maintain successful performance for two years. In exchange, the agency agrees to purge the proposed removal from the file upon successful completion of the LCA. If the employee violates the agreement at any time within the two-year period, the agency can remove the employee as quickly as the day of the violation without requiring another proposal. (This is all written into the terms which we’ll discuss in more detail during MSPB Law Week March 27-31).

An LCA can be a marvelous tool for agencies when an employee engages in removable misconduct, but the agency wishes to give the employee one more chance to show she deserves to keep her job. There are multiple reasons why an agency would employ an LCA:

  • The employee engaged in misconduct the agency cannot ignore, but the employee is truly remorseful
  • The employee engaged in substance misuse and agrees to get treatment if the agency gives her another chance
  • The employee has a unique skillset and would be difficult to replace
  • The job exists in a geographic area where employees are difficult to recruit and a vacant position would be highly problematic for the agency
  • The supervisor has reason to believe the employee has learned her lesson

A recent MSPB case, Bollin v. VA, DA-3443-16-0106-I-2 (Jan. 19, 2023)(NP), involved a VA police officer whose removal was proposed based on two charges:

1.    Failure to follow a direct order, and

2.    Failure to follow supervisory instruction.

The deciding official agreed the evidence and penalty assessment supported removal. Prior to the effective date of the removal, the agency and appellant entered into an LCA. Under the terms of the LCA, “the agency agreed to hold the removal action in abeyance for a 2-year period … and purge the removal and agreement from the appellant’s agency file upon completion of the 2-year period … In exchange, the appellant served a 14-day suspension and agreed that, should he ‘engage[] in any substantiated misconduct’ or violate any other term of the agreement within the 2-year period, then the agency would reinstate the removal action and immediately remove him from his position.” Id. at 2.

Several months later, the appellant violated the LCA when he “was 20 minutes late in departing for firearms training and stopped at a McDonald’s drive-thru to purchase food on the way to the training, which constituted an unreasonable delay in carrying out instructions and an unauthorized use of a Government vehicle.” Id. at 3. The agency removed him for these two acts of misconduct. While seemingly minor, the conduct triggered the violation of the LCA.

As these cases go, the appellant filed an appeal to MSPB. The Board found no jurisdiction because the appellant violated the agreement, which had included a provision that he waived his MSPB appeal rights over the initial action. So in the end, Officer Bollin stayed fired.

Other types of misconduct that the Board has agreed violate an LCA include:

  • Referring to a co-worker as a “kiss-ass” in a group email (Reveles v. DHS, DA-0752-08-0306-I-1 (May 30, 2008)(ID)
  • Testing positive for alcohol and marijuana while on duty (Complainant v. USPS, EEOC No. 0120130190 (2014))
  • Possession of marijuana (Bruhn v. USDA, 2016 MSB 42)

Not every LCA violation involves French fries, but this is probably a lesson with details none of us will soon forget. Hopkins@FELTG.com

And Now A Word With … EEOC Chief AJ Regina Stephens

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By Dan Gephart, January 3, 2022

Regina Stephens was named EEOC’s Chief Administrative Judge in October 2022. It’s a full circle return. Her path to becoming Chief AJ began in Washington, DC, where she worked as an appellate attorney in the Office of Review and Appeals, now the Office of Federal Operations.

Looking back, Stephens (pictured, at right), can’t imagine a better way to start her Federal sector career.

“It was certainly helpful to begin from an appellate perspective – examining the work of federal agency investigations, the EEOC administrative judge and the federal agency’s final action – my introduction to this work presented various party perspectives from the start,” Stephens said. “I am grateful for such an introduction to employment law. In many ways, it shaped my career as an administrative judge.”

After several years in DC, Stephens moved to North Carolina where she became an administrative judge.

“The federal sector community was, essentially, my coworkers from other agencies,” she said. “The administrative process was created for all of us (federal government employees) to enjoy a model workplace free of discrimination. These roles, as well as other private sector roles, with their challenges and successes, have provided me with the tools to be an effective leader.”

We caught up with Stephens late last year.

DG: You mentioned model workplaces. Where do agencies need to improve most in order to reach that goal?

RS: Retaliation continues to plague both our private sector companies as well as the federal government. It remains prevalent because of lack of understanding and tolerance. This form of discrimination is an area where agencies should provide and mandate training. In addition, we must hold wrongdoers accountable for their actions and allow room for positive change in our work communities.

DG: What will your top priority be as Chief Administrative Judge?

RS: It is my forever top priority to continue to improve every aspect of this administrative process for our federal sector community. Careful attention has been made to continuous legal education for our staff as well as our stakeholders. Many of our administrative judges participate in outreach activities in this regard. In addition, we continue to adjust our case management systems in order to provide effective and efficient service to our federal employees and applicants.

DG: What needs to be done to ensure consistency in procedure and decision-making among the agency’s administrative judges? 

RS: For several years, the EEOC has worked diligently to require consistency with respect to procedure and processing with training and quality reviews. These efforts are apparent with our current staff and in our resolution of thousands of cases every year.

DG: What are the most common mistakes you see agencies or complainants make when presenting a case? 

RS: It is essential for a party to understand their own case. Oftentimes, an individual believes that simply recounting what happened to them is sufficient to prevail. This is a frequent misstep. Individuals should be clear in their communications on what happened, but they must prove that event is discriminatory. To satisfy this proof, one must understand what is required. Resources are available on EEOC’s website. If the public has more questions or looking for more information, they can write us.

DG: Is it an effective tool to require offenders receive EEO training as part of a decision?

RS:  EEO training can be an effective tool if properly executed. Agencies should carefully review decisions and understand the behavior they are trying to correct. Secondly, staff should be trained by experienced and knowledgeable personnel.

[Editor’s note: FELTG provides EEO-ordered training, as well as numerous off-the-shelf training courses on Federal sector EEO topics. Email info@FELTG.com or check out the FELTG website for more information.] Gephart@FELTG.com

Year in Review: Top FELTG Newsletter Stories of 2022

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By Dan Gephart, December 13, 2022

Happy Holidays FELTG Nation! Welcome to the fourth annual year-end News Flash, where we unveil the most popular FELTG newsletter stories (based on the number of reads and forwards) of the previous 12 months.

The 2021 Year in Review was strewn with stories on vaccine mandates and other pandemic challenges. Even with my subpar math skills, I can figure out how many stories on those topics made it into this year’s top story list.

Zero.

That’s right. Pandemic-related issues haven’t disappeared. And our COVID-19 stories and guidance continued to receive a lot of eyeballs in recent months. However, pandemic-related stories were not among the top two most read and forwarded articles in any specific month this year. What were people reading then?

Considering this is the first time we’ve compiled the top story roundup with a full MSPB in place, it’s not surprising that a majority of the most-read stories involved new MSPB decisions. Since the MPSB returned to deciding cases, FELTG has been at the forefront of reading and interpreting them for Federal practitioners.

We continue to hold up our end of this bargain. Join FELTG President Deborah Hopkins on Feb. 14 for latest session of Back On Board: Keeping Up With the New MSPB, our quarterly two-hour review of the newest and most critical Board decisions.

Beyond new MSPB guidance, people read articles on harassment, union meetings, DEIA initiatives, and much more. Let’s take a look back month by month.

January

If you’ve ever been in a class taught by FELTG Instructor Ann Boehm, you’ve heard her refer to the Office of Folklore, or as it’s better known – OOF! OK, so it’s not a real office. Ann uses OOF to explain how bad information gets circulated as the truth. It happens a lot more than you’d think (or hope).

Here’s a specific example. We hear from many professionals who use the following equation to distinguish between performance and conduct cases: Can’t = performance and won’t = conduct. Ann tackles this federal employment law version of fake news in our most-read article of January. As Ann conveyed so clearly: Instead of can’t versus won’t, rely on the performance plan’s critical elements when deciding between a performance or misconduct action.

Speaking of performance, if your agency’s performance year coincides with the calendar year, you are likely working on performance narratives now. If that’s the case, FELTG Senior Instructor Barbara Haga has a clear message for you: It’s Time to Do Better. That message clearly resonated with readers.

February

According to a very unscientific poll (that means it’s my guess), February generated more shrieks of “WTF” in FELTG Nation than any other month.

People read about the ambulance company that failed to respond properly to a harassment allegation. Quick recap: An EMT was fired fewer than 24 hours after she received an unwelcome picture of a sexual nature from a coworker. Although it’s an older case that doesn’t involve a Federal agency, the story offers a lesson to Feds about the importance of investigations.

Meanwhile, Barbara’s tale of a staffing specialist hired AFTER recently facing a suspension AND being the subject of a sexual harassment investigation at his previous agency was the second most-read article.

March

So, you wonder: How did that staffing specialist get hired? It turns out, he lied on his SF-85Ps. You think that’s ridiculous? In Barbara’s March follow-up column, we find out why he lied.

Meanwhile, Ann Boehm provided some Good News for agencies when she answered thequestion: Does the union get to attend every meeting between me and an individual bargaining unit employee? Ann answers: “It depends, probably not as often as bargaining unit employees think.” She laid out specific guidance on when the union does have that right, per Weingarten meetings. No wonder it was most read story of the month.

April

It’s difficult to capture in writing the excitement at FELTG Headquarters in April. It wasn’t the
beginning of the baseball season or the arrival of spring. We had MSPB cases once again!

In this most-read article of April, Deb shared three lessons learned from the new MSPB’s decisions. Ann’s Good News: The Union Doesn’t Get to Attend Every Meeting, this time with the focus on formal meetings, was a close second.

May
If there is any theme running through this year’s top stories so far, it’s that 1) Barbara Haga writes a lot of stories about poor-performing or misbehaving officials who should really know better; and 2) you all love to read about them. You met the lying staff specialist in February and March and, in May, Barbara introduced you to a Chief Operating Officer who was removed for conduct unbecoming – the most-read story of May. [Hornsby v. FHFA is an important decision. Read Deb’s takeaways.]

On the flip side, we don’t hear much about supervisors being harassed by employees. Have you ever thought about filing an EEO complaint against an employee? Can you? In May’s second most popular story, Deb confirms that supervisors can file an EEO complaint. But it’s much quicker and more effective to handle the harassment as a conduct issue. In the particular case discussed in Deb’s story, a supervisor was harassed because of his sexual orientation.

June

Longtime residents of FELTG Nation are well aware of the trio of 2010 Board decisions on comparator employees that we dubbed the “Terrible Trilogy.” We preached again and again that these misguided decisions put too large of a burden on agencies to be consistent with agency-wide discipline. Twelve years later, the MSPB came around to the FELTG way with a decision that offered clear, specific, and reasoned guidance on who counts as a comparator employee in an adverse action under Douglas factor 6. Deb’s story on this important new case was our most-read article in June.

Not all cases can be groundbreaking, precedential decisions. But even relatively unremarkable, non-precedential MSPB decisions can teach or reaffirm best practices everyone should know, as FELTG Past President Bill Wiley discussed.

July

When it comes to whistleblowing cases, the MSPB has tended to interpret “covered personnel action” quite broadly. Not so anymore. Ann Boehm shares the Good News about a recent Board decision, reminding us that the employee has the burden to show a “significant change” in duties, responsibilities, or working conditions. It was the most-read story of July.

Meanwhile, Deb addressed the workplace struggle (for some) with pronouns – an important piece of the gender identity equation. Refusal to use an employee’s preferred pronoun, or name, has been problematic for agencies in recent years, not just from a liability perspective, but because of the impact of the harassment on the complainants.

August

Longtime Board observer Bill Wiley has been very impressed with the work of the new MSPB. Granted, like most practitioners, Bill was glad to see anything coming out of MSPB HQ after a five-year drought of decisions. Still, the occasionally cantankerous FELTG founder called the Board’s legal analyses “well-based and consistent with common sense, upholding much and modifying where necessary.”

But …

(You knew a but was coming.)

Bill found issue with one MSPB decision involving an employee initially removed for conduct unbecoming. The case gets much more complicated than that, and it involves a discussion of who gets to determine whether an employee is probationary. The most-read story of August definitely deserves another look.

As most of you know, FELTG not only offers open enrollment training, but we can come to your agency (onsite or virtually) to provide training for your team.

[I’m interrupting myself here to let you know: If you’re interested in this kind of training, contact me at Gephart@FELTG.com.]

We received a lot of inquiries for agency-specific training last year on the topic of harassment. But we received an interesting request along with many of those inquiries: Can you please also cover what is not harassment, especially when it comes to supervisory actions?

We’re talking setting deadlines. Creating a telework schedule. Enforcing a dress code. Providing performance feedback. As long as these supervisory actions are taken reasonably, they are not harassment. Can a supervisor cross the line from effectively supervising employees to creating a hostile work environment? Yes, it’s possible. Deb provides the clear distinction for what is and isn’t harassment.

September

Sleeping on the job. Conducting personal business while at work. Work remotely even though you’re required the employee to return to the physical workplace. Let me spell it out for you: A-W-O-L. Yes, it is possible to be Absent Without Leave even if you’re at work. And that includes working at a remote site.

Many of you worried when employees told you that they did not want to return to the physical workplace. It was a big enough concern to make this our top-read story of September.

Also in September, Deb shared an ugly case of harassment based on disability. A high-level supervisor mimicked an employee with a visible disability in a meeting with all of his coworkers. Here’s the takeaway for all agencies: Take prompt, corrective, and effective action against harassment.

October

During a training session, an attendee told Ann that her agency attorneys suggest “we always advise employees of their Weingarten right.” Ann was aghast. So, she wrote a Good News column explaining to readers the statutory language makes it crystal clear that the agency representative does not have any such obligation.

FELTG has been around for more than 20 years now. Since the beginning, we’ve told agency reps and supervisors that if you’re charging misconduct that begins with an F word (no, not F%@! for F%@! sake – we’re talking falsification, fraud, false ____, etc.), you better make sure you have evidence that the employee intentionally provided false information. There are numerous case law examples out there, and Deb shared a new case example from the MSPB in her popular October article.

November

Agencies have a right to expect a higher standard of conduct from officials who occupy positions of trust and responsibility. You know, supervisors, agency leaders, law enforcement officers, Senior Executive Service members. They should all know better, right? Well, you can add another category to that list — HR professionals.

In our top story of November, Deb wrote about an MSPB precedential decision involving a GS-9 supervisory specialist, who engaged in conduct, such as:

  • Calling subordinates “sexy” and “beautiful.”
  • Commenting on what a subordinate was wearing, including “you look nice,” and you “should wear dresses more often because [she] has nice legs.”
  • Leering.
  • Staring at a subordinate’s rear end.
  • Continuing to make comments even after the subordinates told him he had crossed a line.

An accident occurs at work, and the employee seeks workers’ compensation. But you (and others) think the employee was high or drunk when the accident occurred. An easy call, right – order a drug test, then decline the workers’ comp? Not so fast, guest columnist Frank Ferreri warns in our second most-read story of the month. Frank’s article is filled with case examples that provide a lot of insight.

December

When an agency loses a case, it’s more likely to be because of due process errors – and not the evidence. No wonder readers flocked to Deb’s story this month that offered due process lessons from three recent MSPB decisions.

FELTG Senior Instructor Barbara Haga has taught a lot of training sessions on the topic of reference checks, with a focus on making sure those doing the hiring have all the information they need from the applicants and previous employers. So, you can probably guess Barbara’s opinion on OPM’s newly released guidelines allowing agencies to use clean record agreements again. As Barbara said, you can use clean record agreements. But should you?

I’m not much of a prognosticator, but I’m sure MSPB decisions will make up a nice chunk of 2023’s Year in Review. But there will also be other issues that we can’t foresee. Regardless of the issue, we can guarantee that FELTG will be there to help you steer through any employment law challenges with the most up-to-date and engaging guidance – whether via web stories or in training classrooms.

Happy holidays and best wishes for a great 2023. Gephart@FELTG.com

Your Agency’s DEIA Strategy Should Address Workplace Antisemitism

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By Dan Gephart, December 6, 2022

Five years ago, it was young men carrying torches and shouting “Jews will not replace us” on the eve of the violent Unite the Right rally in Charlottesville. Four years ago, it was a 46-year-old man killing 11 and wounding six at the Tree of Life synagogue in Pittsburgh. More recently, celebrities, athletes, and news networks have thrust antisemitic tropes and conspiracy theories into the public consciousness.

Antisemitism has been increasing steadily since 2016. Last year, the Anti-Defamation League recorded the most antisemitic incidents since it started tracking the data 40 years ago. It’s widely expected that 2022 numbers will be much higher.

It should come as no surprise that these hateful stereotypes have found their way into the workplace. Yet, the results of a recent survey by the company Resume Builder were still outright shocking and should make the message clear to anyone involved in their agency’s DIEA efforts: You must address “antisemitism and cultural competency on Jews and Jewish issues” as part of your workplace DEIA strategy.

Last month, Resume Builder surveyed 1,131 hiring managers and recruiters in the U.S. The results were alarming, to say the least.

  • 26 percent of hiring managers say they are less likely to move forward with Jewish applicants. The top reason is the belief that Jews have too much power and control.
  • 26 percent make assumptions about whether a candidate is Jewish based on their appearance.
  • 23 percent say they want fewer Jews in their industry.
  • 17 percent say leadership has told them not to hire Jews.
  • 33 percent say antisemitism is common in their workplace, and 29 percent say antisemitism is acceptable in their company.
  • 9 percent say they have a less favorable view of Jews than they did five years ago.

Last year, the EEOC commissioners unanimously approved a resolution condemning violence, harassment, and acts of bias against Jewish individuals.

Earlier this year, EEOC Commissioners Keith Sonderling and Andrea Lucas spoke during a webinar addressing the rise of antisemitism in work and education settings.

“Too often, incidents of antisemitism in the workplace go ignored, but we cannot dismiss them,” Lucas said. “These insidious acts can contribute to a culture of hate that may give rise to physical violence later.”

The ADL’s Stand Up Against Antisemitism noted the many ways that bias and discrimination against Jews can manifest in the workplace:

  • Microaggressions around Jewish culture or the way people look, such as one employee telling their Jewish coworker “Oh, you don’t look Jewish.”
  • Tensions and hostility around geopolitical issues. For example, Jewish coworkers being held accountable, demonized, and harassed during conflagrations in the Middle East, or Jewish employees being seen as indistinguishable from Israel.
  • Pervasive stereotypes about Jews that go unchecked, such as “Jews have too much power.”
  • Denial of advancement opportunities
  • Inequitable out-of-office policies and holiday observances
  • Philosemitic remarks intended to be complimentary. For example, “give this task to David since Jews are good negotiators.”

Agency leaders need to set an example, unlike these leaders:

  • The Philadelphia City Commerce Director who called the story of Schindler’s List mere moneymaking “propaganda.”
  • The Salt Lake City CEO who sent an email to other Utah-based tech leaders claiming the COVID-19 vaccine is part of a plot by “the Jews” to exterminate people.
  • The Google Global Diversity lead, who resigned after a blog post he wrote surfaced: “If I were a Jew I would be concerned about my insatiable appetite for war and killing in defense of myself.”

And then there was the supervisor in Lashawna C. v. Dep’t of Labor, EEOC Appeal No. 0720160020 (Feb. 10, 2017), who during an e-mail conversation about work hours and schedules, told a Jewish employee he (speaking about himself) had been working like “a Hebrew slave.” This supervisor’s actions proved costly to the agency, which was found liable for the harassment due to a lack of evidence that it exercised reasonable care to prevent and correct the harassment.

It’s not just leaders, though. All employees play a role in preventing and addressing these behaviors, Commissioner Sonderling said in the aforementioned webinar.

If you lead agency DEIA efforts take note: A workplace is not inclusive if any type of bias goes unchecked. As the ADL wrote: “This results in psychological harm, unhealthy interpersonal interactions, inequitable workplace policies and procedures, diminished employee productivity, and lack of accountability across the organization.” Gephart@FELTG.com

[Editor’s note: Keep up to date with DEIA articles and training opportunities via FELTG’s DEIA Guidance and Resources.]

So, Now Putin Can Claim Whistleblower Reprisal and Get an MSPB Hearing?

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By Deborah J. Hopkins, November 28, 2022

The MSPB’s most recent precedential decision deals with a Federal contractor (Abernathy) who made a protected disclosure in 2012 when he alerted the agency’s Inspector General that agency officials had misappropriated funds. A few weeks later, Abernathy applied and was not selected for a career position within the agency, so he contacted the U.S. Office of Special Counsel, and after exhausting that potential remedy, filed an Individual Right of Action appeal at the MSPB, claiming his nonselection was in reprisal for his whistleblowing activity under 5 USC 2302(b)(8).

As you might imagine, the agency argued there was no MSPB jurisdiction because Abernathy wasn’t an employee or applicant at the time he made the disclosure; the Administrative Judge (AJ) agreed and dismissed the appeal for lack of jurisdiction.

On Petition for Review the Board, saw it differently: “[The] appellant’s disclosures are not excluded from whistleblower protection simply because he was not a Federal employee or an applicant when he made a protected disclosure,” relying on Greenup v. USDA, 106 M.S.P.R. 202, ¶¶ 8-9 (2007), which said the statute does “not specify that the disclosure must have been made when the individual seeking protection was either an employee or an applicant for employment.” This principle was again iterated in Weed v. SSA, 113 M.S.P.R. 221, ¶¶ 8-12 (2010). Despite three nonprecedential decisions from the Federal Circuit which conflict with this reasoning, the Board chose to follow its own precedent and disregard the Federal Circuit, as its NP decisions are not binding on the Board.

In addition, the Board held, “This holding is not limited to Federal contractors, but applies to any individual who makes a whistleblowing disclosure at any time before becoming a Federal employee or applicant for employment.” Abernathy v. Army, 2022 MSPB 37 (Nov. 15, 2022). (bold added)

I was discussing this case with FELTG Founding Father Bill Wiley and he made an astute observation. “Abernathy has the potential to open up a big new world of whistleblower reprisal. A smart person (e.g., Vladimir Putin) could go public with a reasonable belief that some Federal manager has violated a law, then apply for a Federal job for which he ultimately is not selected, and THEN take advantage of the discovery procedures of his MSPB appeal to dispose all sorts of cool management officials.”

While we at FELTG aren’t sure exactly how far these protections might reach, and we hope it wouldn’t extend to someone like Putin, we can only wait to see this challenged in future litigation – perhaps the Federal Circuit will have something precedential to say one day. In the meantime, join us December 5-9, for MSPB Law Week where we’ll have a more in-depth discussion on this case plus all the new Board cases that matter most. Hopkins@FELTG.com

Lessons Reinforced: DOs Can Be Heavily Involved Early in Discipline Situations

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By William Wiley, November 7, 2022

As the new Merit Systems Protection Board (MSPB) members plow through the 3,000-plus pending PFRs, we keep an eye out for any new principles of law being developed by the issuance of precedential decisions. However, it is just as valuable to watch for the affirmation of existing Federal employment law principles in new opinions, regardless of whether new law is being created. We all need to know whether any current Board members have a different take on existing precedence or plans to change how we do things.

[Editor’s note: See Bill’s recent article on other principles affirmed in recent MSPB decisions.]

A recent Board decision reminds us that a Deciding Official (DO) can be involved significantly in a disciplinary case before the Proposing Official (PO) issues the proposal notice. In Dieter v. DVA, 2022 MSPB 32 (Sept. 14, 2022), the new Board had to address a claim by the appellant that the agency violated his Constitutional due process rights because, among other things, “the deciding official was biased against him and considered ex parte information in deciding to impose the removal,” Dieter, ¶7. In evaluating this argument, the Board relied on precedence that broadly reinforced that a DO can be significantly involved in the initiation of a disciplinary action.

This is an important issue. At FELTG, we frequently hear from agency DOs who have been told that they must remain isolated from any proposed disciplinary action for fear of violating the employee’s due process rights. This is often frustrating for the higher-level manager who is concerned about workplace misconduct or poor performance yet is supposed to remain above the fray until the lower-level supervisor issues a proposal notice. We all need to appreciate that such isolation of the DO is not required by Board law and is usually bad for workplace management.

In finding no due process violation relative to this issue in Dieter, the Board referenced solid existing precedence that tells us that a DO can be very active in a discipline case without violating due process, e.g.,

  • “A deciding official’s awareness of background information concerning the appellant, her concurrence in the desirability to take an adverse action, or her predisposition to impose a severe penalty does not disqualify her from serving as a deciding official on due process grounds.” Lange v. DoJ, 119 MSPR 625 (2013).
  • “A deciding official’s mere knowledge of an employee’s background does not rise to the level of a due process violation unless ‘that knowledge is a basis for the deciding official’s determination on either the merits of the underlying charge or the penalty to be imposed.’” , 675 F.3d 1349 (Fed. Cir. 2012).

The key to avoiding a due process violation is for the heavily involved DO to be able to testify truthfully something like this:

“Yes, I was deeply involved in this incidence of misconduct. Yes, I have known the appellant for many years and previously witnessed several similar dishonest acts. Yes, I spoke to the employee’s supervisor and told him that he should consider proposing that the employee be fired. And yes, I told the supervisor that I considered that Douglas Factor 1 in the Douglas Factor Worksheet should be specific as to the extent of the harm caused by the misconduct. However, when I made my decision I considered only the evidence file, the employee’s oral and written responses, and the Douglas Factors as assessed by the proposing official.”

The Dieter opinion and order reminds us: If the DO can truthfully deny considering anything outside of these sources, there will be no due process violation.

For this case law reaffirmation, we can say, “Thank you, new Board members.” This principle validates the reality of a typical workplace. Higher level managers are involved in serious personnel situations in the organization, and such involvement is OK. No need to isolate DOs from an incident so long as they know to make their final decision only on facts told to the employee in the proposal materials. We hope all readers of our newsletter understand this concept and work to implement it in real time in their respective roles in discipline and performance-based actions.

In fact, being the aggressive little devils we are at FELTG, we encourage you to go one step further. When drafting a proposed removal letter for misconduct, why not have the PO and the DO sit down together with staff support from legal or human resources, and jointly develop a Douglas Factor Worksheet to be attached to the proposal notice? That way, any predispositions and concerns can be fleshed out early by both management officials simultaneously, and the employee properly notified of those concerns in the proposal notice so he can have a fair chance to respond to them? That should make it easier for the DO to consider the employee’s focused defenses and preclude a need for the DO to bring into the decision-making process any facts or issues not in the proposal.

New decisions that reinforce old principles are good. New ways of doing things built on those old principles that make this business more efficient are even better. Come to our training at FELTG, specifically the upcoming MSPB Law Week December 5-9, and learn how to do this work as well as it can be done. Wiley@FELTG.com

How Do You Feel About This 2-1 MSPB Decision?

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By Deborah Hopkins, October 24, 2022

FELTG Nation, we have our first 2022 MSPB decision with a dissent! Let’s take a look.

The appellant was a GS-14 Security Specialist at DTRA. One morning, he put food from the cafeteria’s self-serve breakfast buffet in a container, paid for it, and put the container in a bag. He then returned to the breakfast buffet, removed the container from the bag, put more food in the container, and returned the container to the bag. He then left the cafeteria without paying for the additional food, which was valued at $5.

A cafeteria employee who witnessed the incident reported it to her supervisor, and the matter was referred to the OIG. Investigators interviewed the appellant and the cafeteria employee, reviewed the video surveillance footage, and concluded that the appellant “knowingly took food from the cafeteria without rendering payment.”

The agency proposed removal based on a charge of larceny in violation of 18 U.S.C. § 661. The Deciding Official (DO) upheld the removal.

On appeal, the appellant claimed his failure to pay for the second helping of food was inadvertent and occurred as a result of his Type 2 diabetes. He stated that he urgently needed to eat because his blood sugar level was low, and that his fixation on eating caused him to lose focus on paying for the additional food.

The Administrative Judge (AJ) assessed the appellant’s credibility and determined the blood sugar argument was not convincing. The judge also noted the appellant failed to exhibit a clear, direct, or straightforward demeanor during his testimony. In addition, his testimony was not consistent with the record evidence, including the cafeteria video footage.

On PFR, Members Harris and Limon held that the DO failed to appropriately consider all relevant Douglas factors in determining the penalty.

The de minimis nature of the theft. The DO said that “what matters is the action,” and someone who would steal “has a character flaw” and “should not be working as a senior security professional … with a security clearance in the Department of Defense.”

The appellant’s 30 years of discipline-free service and the appellant’s outstanding performance record.

The DO referenced these factors as “NEUTRAL” and at hearing that she considered these factors irrelevant because stealing “shows a character flaw.”

The Board majority said the DO should have considered those factors as mitigating, rather than neutral.

Another interesting piece of the case: Although not addressed by the DO or the AJ, the Board held that the appellant did not have custody or control over the stolen items as part of his official duties. The Board considered this a mitigating factor as well. The outcome: “A 90-day suspension recognizes the seriousness of the offense and its severity.”

Member Leavitt disagreed with his colleagues. In the dissent, he said the agency should have received penalty deference. His explanation relied on video evidence of the appellant that indicated he was hiding from a police officer in the cafeteria and, therefore, was aware of his actions. In addition, the appellant initially answered the OIG investigator’s question denying the conduct, then changed his story when shown the security video.

Member Leavitt also wrote that he believed the DO considered all the DFs, and properly determined that the mitigating factors were outweighed by “the level of responsibility, the fiduciary responsibilities, and the expectation of exemplary personal conduct.” His impression of the penalty: “To me, the deciding official clearly demonstrated that she considered all specific, relevant mitigating factors before determining the penalty and showed that the agency’s judgment to impose a removal did not clearly exceed the limits of reasonableness.”

Chin v. DOD/DTRA, 2022 MSPB 34 (Oct. 7, 2022).

In speaking with students and with other FELTG instructors about this case, I’ve concluded that not everyone will agree with the outcome.

  • Some of you will agree with the Board because a removal seems too severe for such a small amount of money.
  • Others of you might think that removal was warranted given that the conduct violated the law.
  • Some of you might personally disagree with the removal but acknowledge that the agency should receive deference on the penalty, as it was not outside the bounds of reasonableness.
  • And others might think a different penalty was appropriate.

Let’s continue the discussion December 5-9 during MSPB Law Week. Hopkins@FELTG.com

And Now a Word With … Former EEOC Commissioner Christine Griffin

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By Dan Gephart, September 26, 2022

When Christine Griffin (photo, right) started her tenure as a commissioner at the Equal Employment Opportunity Commission in 2005, she had a long list of things she wanted to work on. Despite her previous work with the Boston Disability Law Center, the Federal employment of people with disabilities was not at the top of that list.

That quickly changed.

“After learning early on that people with disabilities, and more specifically, targeted disabilities were not represented in the Federal workforce in any meaningful numbers, I decided that should be my focus,” Griffin said. “I always believed that government should live up to the ideals that it was telling everyone else to live up to.”

During her time at EEOC, Griffin and a team of attorneys that included Steve Zanowic and Jo Linda Johnson, developed the LEAD Initiative (Leadership for Employment of Americans with Disabilities) with two goals:

  • Increase awareness of the issue.
  • Increase the number of people with targeted disabilities working for the Federal government.

LEAD laid the groundwork, and numbers have steadily risen. The overall participation rate of individuals with targeted disabilities increased from 1.05 percent in 2003 to 1.80 percent in 2019. Meanwhile, 12 of 28 independent agencies, 11 out of 17 cabinet departments, and 34 out of 98 subcomponents of cabinet departments are meeting the 2 percent goal. In 2016, only 10 independent agencies and subcomponents reached that goal.

Griffin took that work to the Office of Personnel Management five years later when she became the agency’s Deputy Director. Her most memorable moment, she said, was sitting next to President Obama the day he signed Executive Order 13548, aimed at increasing the employment of individuals with disabilities.

“I think it has taken a long time,” Griffin said, “but the work we did at EEOC to create awareness coupled with the Executive Order from President Obama made Federal agencies more accountable. What is measured is treasured and having someone at the highest level ask for those measurements through EEOC and OPM makes a difference.”

At OPM, Griffin’s team created the first government-wide Diversity and Inclusion Work Group that led to the development of the first government-wide diversity and inclusion strategic plan. And there was another first. Griffin and then EEOC attorney Veronica Villalobos set up OPM’s Diversity and Inclusion Office at OPM. [Editor’s note: Another member of that team was J. Bruce Stewart, who will be presenting The Power of an Inclusive Mentality on November 8.]

Griffin is currently senior executive search consultant at Bender Consulting Services, Inc.

DG: What impact has the pandemic had on reasonable accommodation in the workplace?

CG: The most beneficial impact that the pandemic had was to prove to employers that employees can work from home and be productive. With the amazing technology we have access to, there are very few jobs that can’t be done remotely. I think that came as a shock to many who always thought working from home was a boondoggle. I believe that this will prove to continue to have a significant impact on the reasonable accommodation requests to work from home for people with disabilities. This request will be difficult for employers to deny going forward and hopefully difficult for judges to uphold those reasonable accommodation denials, since even they learned how to work remotely.

DG: Why is it important to revisit existing reasonable accommodations — and how often should that be done?

CG: It is important to revisit reasonable accommodations because of the rapid advances in technology that allow more people to enter and remain in the workforce. I can’t think of one disability that would prevent someone from becoming employed. We don’t need our limbs and senses for most jobs and if we think differently, that is usually a plus for employers. I think an annual review of accommodations would be useful for the employer and employees alike. Just an annual check in with an employee to see how the accommodation is working and if there is something that could be changed, tweaked, etc., to make the employee’s and the employer’s experience better.

DG: What should agencies be doing (or doing better) when recruiting employees with disabilities?

CG: The first thing agencies must do is establish a plan to increase the hiring of people with disabilities that is endorsed at the highest level. Schedule A makes it so easy for Federal agencies to hire people with disabilities without going through a lengthy competitive process. When I was at OPM, we developed the Shared List – a list of people with disabilities who were Schedule A eligible and ready to go to work. This list was populated by Bender Consulting, who found individuals with disabilities with the skills requested by the CHCOs. Agencies had access to the list and could search for the person with the skills they needed. OPM stopped funding that list, and Federal agency personnel are still calling and asking where it is. For now, agencies can contract with Joyce Bender, CEO of Bender Consulting, to help them find the candidates with the skills they need. Bender has been working with agencies for more than 20 years to help them recruit and hire individuals with disabilities.

DG: On the flip side, individuals with targeted disabilities are leaving the government at twice the rate as those without disabilities. Where do you think agencies are failing?

CG: I think some Federal agencies have failed to create the inclusiveness necessary to keep any employees who bring diversity to the workplace. People leave a workplace when they don’t feel valued, and that includes employees with disabilities. We used to say that they will hire you because you’re different (check off a box) and get rid of you for not being the same. I also think that people with disabilities in the Federal government don’t enjoy the same opportunities for advancement. If they can seek that advancement elsewhere, if they feel more valued elsewhere, they will leave.

[Editor’s note: Register for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency on November 17, starting at 1 pm ET.] Gephart@FELTG.com

WIGI Documentation Can Justify a PIP Under Santos

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By Deborah J. Hopkins, September 19, 2022

I don’t know about you, but I am still loving the fact that we have a fully functioning MSPB again. While you might be tempted to skip over the non-precedential (NP) cases, you should rethink that because we have found several jewels in NP cases over the past six months.

One of the the trends we’ve seen in 432 actions – performance-based removals and demotions – is that the MSPB has been remanding cases if the record doesn’t contain substantial evidence of unacceptable performance that justified the agency’s decision to place the employee on a PIP. And because that requirement didn’t exist until March 22, 2021 (Santos v. NASA, No. 2019-2345, Fed. Cir. Mar. 11, 2021; see also Singh v. USPS, 2022 MSPB 15 (May 31, 2022)), most of the 432 cases are being remanded on this point. Santos never explicitly stated what types of evidence agencies could use to justify the PIP, instead ruling, “we are not prescribing any particular evidentiary showing with respect to the employee’s pre-PIP performance. Performance failures can be documented or established in any number of ways.”

So, one of the items that jumped out at me in a brand-new case (Slama v. HHS, SF-531D-15-0266-I-4; SF-0432-16-0496-I-1 (Aug. 24, 2022)(NP)) is we now know at least one type of evidence the Board will consider in pre-PIP unacceptable performance determinations.

A bit of history first: In Slama, the appellant’s performance problems started in 2011. Bigger problems emerged in performance year 2013, and he received a Level 1 summary rating in 2014. His unacceptable performance that year led to the denial of a Within Grade Increase (WIGI), which he appealed to the MSPB. For reasons not explained in the case, the appellant was not put on a PIP until 2015 after he received yet another Level 1 summary rating. The appellant failed the PIP and the agency removed him later that year. He appealed … and into the backlog the new case went.

Fast forward to 2022, the return of the quorum, and the new Santos requirement. In Slama, the MSPB joined his two appeals (one over the WIGI denial and the other over the 432 action) and, among other things, decided that the material that forms the basis of a WIGI denial can also be used to justify a PIP and meet the Santos requirement. According to the case:

The administrative judge found that the agency demonstrated by substantial evidence that, before being placed on the PIP, the appellant’s performance in the critical elements of administrative requirements, communication, and technical competence was unacceptable [citation omitted]. The administrative judge based her finding largely on the same facts and analysis under which she had affirmed the agency’s [acceptable level of competence] determination in connection with the WIGI denial. ¶25

While WIGI denials are rare, it’s quite interesting (and time saving) that the Board will rely on that same content to show the agency can justify the PIP. It might be helpful for those of you handling the 432 remands to check the WIGI files and see if you have anything you can use. And then join me for Back on Board: Keeping Up with the New MSPB on October 20. Hopkins@FELTG.com

Mistakes to Avoid When Removing or Demoting the Poor Performer

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By William Wiley, August 30, 2022

Sometimes an MSPB decision that identifies itself as nonprecedential is still an important decision. That’s especially true in times like these when we have three relatively new members of the Board who are being called on to reconsider established practices of Federal employment law, practices that they have not personally been called on to address before.

A good example of this is the Board’s Final Order in Feesago v. DoD, SF-0432-16-0458-I-1 (August 10, 2022) (NP). When analyzing the appeal of that relatively straightforward 432 unacceptable performance action, the members applied an important principle we have taught here at FELTG for over two decades:

The supervisor MUST tell the employee EXACTLY what level of performance he must attain during the PIP to avoid removal from his position.

In Feesago, the PIP initiation memo told the employee that she would be held accountable for mistakes in her performance in each of four critical elements. However, it failed to tell her how many mistakes she would have to make to be deemed to have failed to meet the standards for two of the critical elements. Therefore, the PIP was invalid for those critical elements.

The cure for this removal-reversing defect that we have incorporated into every PIP initiation memo that we have ever written here at FELTG is this: “During the PIP, you must not make more than three errors relative to this critical element or I will consider you to be performing at the Unacceptable level and thereby subject to removal from your position.”

By the way, I once had an agency attorney try to tell me that the above is an invalid “backwards” standard because it tells the employee what he cannot do rather than what he must do to be performing acceptably. Well, that’s an attorney who has not read the case law very carefully and has not applied common sense to the situation.

A Minimal performance standard (Level 2) is backwards and invalid if it does not clarify where the Unacceptable performance level is, e.g., the agency will lose the appeal if the PIP initiation memo tells the employee that the Minimal standard is “must not make more than three errors.” However, it’s perfectly fine (and according to Feesago, EXPECTED) that you will tell the employee that the acceptable level of performance is “must not make more than three errors.”

Relatedly, several years ago I overheard an Employee Relations specialist tell a supervisor that she should NOT tell the employee how many errors he was making during the PIP that would be counted toward evaluating the minimal level of acceptable performance. I guess that the ER specialist was concerned that if the employee were to be told that he had already exceeded the maximum error level early in the PIP, it would somehow undermine the PIP as “predetermined,” or the employee’s morale would suffer, or whatever. Well, that’s just wrong and a reversible error under the same principle that caused the loss of two critical elements in Feesago.

Of course, the employee should be told how he is doing during the PIP. How can he otherwise know if he is improving or continuing to fail? If you tell the employee that the minimal level of performance is “no more than three errors,” and the employee makes one or two errors during the first week of the PIP and then another couple of errors during the second week, he should be told. If you don’t, the Board will conclude that he has not been given a “reasonable opportunity to improve.”

But what about “morale”? What about “predetermined”? Aren’t those valid concerns? No, they are not. Nothing in law or common sense says that the agency must continue a PIP beyond the point of demonstrated failure. Think about it for a minute. When the supervisor sets a minimum level of acceptable performance in the PIP memo, he is saying that an employee who fails to meet that level is unacceptable and should be removed from the position. If the employee has more than the maximum-allowable errors during the first couple of weeks of a PIP, and the supervisor continues to allow the employee to stay in the position where he can make even more errors after that, doing so undermines the supervisor’s PIP-initiating statement relative to what constitutes Unacceptable performance. The employee cannot undo the early PIP errors by acceptable performance after the point of unacceptability. In this situation, an in-the-know supervisor will end the PIP early and propose that the employee be removed from the position at the moment of failure rather than wait until the PIP expires.

Sadly, here at FELTG we know that there is a fair amount of incorrect advice out there relative to taking unacceptable performance actions. What if the employee has exceeded the maximum number of tolerable errors during the PIP, but the HR/legal advisor erroneously tells the supervisor that the PIP cannot be ended early? How should the supervisor respond if the employee says, “Hey, boss, I’ve already failed. Why should I keep trying? Why are you keeping me on the job?” Easy, if true; the supervisor can say, “Yes, it looks like I’ll have to initiate action to remove you from your position at the end of the PIP because you’ve already failed the performance standard. I’ll continue to observe your performance during the remainder of the PIP so I can decide whether the action I take will be a termination, demotion, or reassignment.” Of course, if demotion and reassignment are not options, the supervisor should not lie. And, of course, the advisor should not be giving bad advice. Federal workplace law is filled with rocks and corresponding hard places for the uninformed.

Although two of the critical elements in Feesago were dismissed as invalid, there were two other critical elements that also formed the basis for the action on appeal. Unfortunately, during the PIP the supervisor did not provide adequate feedback to the employee as to how she was performing under these two valid standards, thereby violating the employee’s right to “a reasonable opportunity to improve her performance.” In the PIP initiation memo, the supervisor (in over-simplification) told the employee, “You are making errors relative to the critical element of Customer Care by doing X.” Then, during the PIP, the supervisor considered Y and Z to be examples of deficient Customer Service performance but did not tell the employee. In finding this oversight to be a critical deficiency in the action, the Board said, “the record does not reflect that any of these issues were ever mentioned to the appellant in the PIP discussions.”

If you are an HR specialist, attorney, or supervisor (or union representative, because we love you guys, too) involved in performance-based actions with unacceptably performing employees, it will be well worth your time to read Feesago from beginning to end. The new Board’s analysis throughout that decision is replete with old-school hints and helpful takeaways relative to how to (or not to) craft a performance-based action. I particularly liked the section where the agency seemed to fault the employee for granting bereavement leave so that a subordinate could make funeral arrangements for his grandmother. Board members have grandmothers, too.

Or you could just sign up to attend FELTG’s next MSPB Law Week seminar September 12-16 or UnCivil Servant September 7-8 and learn about this and all the other principles and best practices to employee accountability. This stuff is not hard IF you’ve been to the training. Wiley@FELTG.com