Q&A About the Douglas Factors Under the New MSPB

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By William Wiley and Deborah J. Hopkins, August 22, 2022

In a recent MSPB case law update (the next one is October 20, if you’re interested), we discussed the Douglas factors and the new comparator analysis the Board laid out in Singh v. USPS, 2022 MSPB 15 (May 31, 2022). This dramatic change in precedent inevitably led to questions, which we thought were worth sharing with FELTG Nation. So here goes.

Q: For the comparator analysis under Douglas, is it required that the Deciding Official (DO) in her decision letter specify or identify any comparable cases, or is it sufficient to state, for example, “in consultation with HR, I considered how the agency addressed similar misconduct in the past.” Wondering what evidence, if any, needs to be put forth in the decision letter regarding comparators.

A: The best practice is for the DO not to consult with anyone they don’t need to. The requirement is for the DO (and the Proposing Official, or PO) to consider misconduct cases they know about that have the characteristics of “same-or-similar misconduct” we discussed in the training. If the DO knows of any cases that fit that definition, or if she decides to ask HR for same-or-similar cases (even though she doesn’t have to), good appellant’s lawyer will grill her on appeal about what those cases involve, and why she felt that they were different. In detail. If the PO/DO were to reference asking HR for same-or-similar situations, and the HR advisor says that there were none, then that HR advisor becomes the appellant’s witness who will be expected to provide details of the cases surveyed.

Unlike expected testimony on appeal, a broad statement will suffice for the purpose of the Douglas factor analysis in the proposal and decision notices. The language we have recommended at FELTG for more than a decade, as long as it is true, is something like: “I know of no other situations in which an agency employee engaged in similar misconduct and was, thereafter, disciplined at a lesser level.”

On the other hand, if the DO/PO knows of similar cases that support the penalty selected, then something like: “In two misconduct cases similar to this situation, removal was determined to be the appropriate penalty.” And finally, if a similar case is known of in which removal was not the selected penalty, something like: “I know of one other case of AWOL in which the employee was not removed. However, in that case there was no significant harm caused by the unapproved absences. In this situation, the employee’s absences caused the agency to expend $5,000 to hire a contract replacement.” Or whatever the distinction may be.

Q: What is the rationale for separately attaching a Douglas factors worksheet instead of solely discussing it within the proposal notice?

A: We’ve seen numerous cases over the years in which the proposal or decision notice contained the Douglas factor considerations along with the misconduct charges. Unfortunately, doing so has the potential of confusing the Board as to which fact statements are relevant to the charge and which are relevant to the penalty. We have learned from history that the MSPB generally expects us to prove every factual assertion relative to the charge (due process requirement), but only most of the fact statements relative to the penalty, although proving everything is always ideal. Therefore, when the misconduct facts get mixed with the penalty facts, the Board has a problem weighing them. We don’t want the Board to get confused about anything we do.

Separately, using a Douglas factors worksheet forces the PO to go through each of the 12 factors, evaluating those that are relevant and noting which are not. We have seen many cases in which an agency lost the penalty because the PO or DO ignored or failed to adequately address one or more factor. A worksheet reduces the possibility of making this mistake. Administrative judges are trained to assess each of the 12 factors in order. A worksheet lays that out for them to the benefit of the agency.

That said, it is not a critical error to include the Douglas factor analysis in the body of the proposal notice. Clearly delineated and identified as penalty factors separate from the misconduct charge facts, encompassing all 12 Douglas factors would work. But there is no reason you would want to go to that extra trouble and accept that extra risk.

A separate worksheet attached to the proposal notice, as we noted in the recent caselaw in the training, helps the Board understand (and affirm) the agency’s action. It is a good idea without a downside.

One final thought. For goodness’ sake, DO NOT violate the employee’s Constitutional right to due process. The Board will automatically reverse a removal, without consideration as to whether there was any harm, if the DO considers Douglas Factors relied on by the PO, but not communicated by the PO to the employee. See Braxton v. VA, DC-0752-14-0997-A-1, August 12, 2022 (NP).

This really is easy, folks. Just have the PO do a Douglas Factor Worksheet, staple it to the Proposal Notice, and fuhgeddaboudit. Hopkins@FELTG.com

And Now a Word With … MSPB Acting Chair Cathy Harris

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By Dan Gephart, August 8, 2022

For five-plus years, we at FELTG and others have referred to the then-growing backlog of cases at the Merit Systems Protection Board with dread. So the enthusiasm with which MSPB Acting Chair Cathy Harris is approaching her new position, as evidenced by her appearance on the radio and here, is surprising. And refreshing. And very hopeful.

The Acting Chair said she was “honored and humbled to be nominated” by President Biden. “I am committed to doing the very best I can to protect the merit systems and achieve justice,” she told us. “What an incredible opportunity!”

Harris says “opportunity.” Others see challenge, to put it lightly. The new Board inherited a 3,500-case backlog, at which they’ve been dutifully whittling away. But there are some anxious employees and agencies, who have been waiting a long time for resolution of their cases. And new cases are coming in every day.

DG: What would you say to someone who has a Petition for Review and is wondering when the Board is going to get to it?

CH: We are diligently working to get to your case. The good news is that the career staff has done the work to prepare the Board members to be able to make efficient and thoughtful decisions, so we are not starting from scratch. That said, it is going to take time for us to consider and get to all the decisions that are awaiting our review. We don’t yet have an estimate as to when we will be able to project when we will get through the case inventory but am hoping we should be able to do that before too long.

DG: What are your thoughts about Federal Circuit decisions on issues that the Board didn’t have an opportunity to address (given the lack of a quorum) and their impact on future MSPB decisions?

CH: Appellants may take their cases directly to the Federal Circuit after a decision from an administrative judge. During the lack of a quorum, this enabled appellants to get appellate review of their cases. But appellants have this right even in the presence of a quorum, so the Board is accustomed to situations where it may not have had an opportunity to opine on certain issues.

DG: Is there any extra effort given to encourage settlement on backlogged cases?

CH: Yes. We are actively exploring ways in which we can identify cases that might be appropriate for settlement. We encourage parties to contact the PFR Settlement Program if they feel their case would be appropriate for mediation at this juncture. As time has passed and circumstances have changed, we understand it may be easier for parties to achieve a resolution now. Interested parties may contact the PFR Settlement Program at (800) 209-8960.

DG: Is the Board considering shortening decisions to speed up the backlog reduction?

CH: Yes. The Board will be issuing shorter decisions where appropriate.

DG: Is there a mechanism in place for giving feedback to administrative judges regarding the quality of their decisions?

CH: Yes. Internally, administrative judges receive instructive guidance through Board decisions. Further, pursuant to MSPB’s Judges’ Handbook, Chapter 12, Chief Administrative Judges review initial decisions written by administrative judges below the GS-15 grade level prior to issuance.

Chief Administrative Judges also review initial decisions for complex cases written by administrative judges at the GS-15 grade level prior to issuance. Other initial decisions are reviewed after issuance. Chief Administrative Judges and Regional Directors provide direct feedback to administrative judges regarding whether initial decisions sufficiently adhered to authorities such as the Judges’ Handbook, MSPB regulations, and relevant statutes and case law.

My message to all federal employees, not just supervisors, is: The Board is fully back, and we are committed to protecting the merit systems. Employees and supervisors would do well to educate themselves as to merit system principles and prohibited personnel practices. There is more information on these topics on our website.

[Editor’s note: See our previous interviews with Member Tristan Levitt and then-Acting-Chair Raymond Limon, and register for the MSPB and EEOC Case Law Update on August 31 from 3-4:15 pm ET, part of FELTG’s annual Federal Workplace 2022: Accountability, Challenges and Trends event, or MSPB Law Week September 12-16.] Gephart@FELTG.com

Affirmative Defenses: This One is for the Self-proclaimed MSPB Nerds 

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By Deborah Hopkins, July 25, 2022

Did you happen to catch the latest precedent-altering MSPB decision related to affirmative defenses? This one’s a little weedy, but interesting nonetheless, especially to MSPB nerds like myself.

The appellant, a custodial laborer for the USPS, was removed on a charge of improper conduct with specifications including:

  • Telling a coworker that if his [the appellant’s] vehicle was towed from the agency parking lot again, he “would come into work and end up shooting someone out of revenge and anger.”
  • Telling the same coworker that he was having law enforcement follow her because of a verbal dispute the two had a year earlier and that the “only reason [he] didn’t have anything ‘bad’ happen to her was because she has children.”
  • Telling the same coworker, the following day, he was having law enforcement follow and harass a supervisor’s son in retaliation for his vehicle being towed from the agency parking lot and that he would make sure that the supervisor’s son was “booked” for “Driving Under the Influence … and other traffic violations.”

The appellant challenged his removal. In addition to claiming he did not engage in the activity leading to the charges, he also raised an affirmative defense of reprisal for prior protected activity – he had filed an MSPB appeal over an “emergency suspension” he received after the aforementioned misconduct occurred. (If you don’t know what an affirmative defense is, please join us for MSPB Law Week September 12-16 for all you need to know.)

The Administrative Judge (AJ) upheld the removal. However, his decision did not reference the affirmative defense, as that had not come up in any prehearing conference. On petition for review to the Board, the appellant challenged his removal, but did not challenge the fact that the AJ never addressed the affirmative defense.

You with me so far?

Before this case came out, precedential MSPB caselaw required the Board to remand cases for consideration of an appellant’s affirmative defense if the AJ failed to comply with certain procedural requirements. Wynn v. USPS, 2010 MSPB 214. The Board overturned Wynn and other related cases, establishing new criteria for the Board to consider in determining whether an AJ erred in not addressing an appellant’s affirmative defense at the hearing stage. As MSPB’s case report said in its summary, a potential remand hinges on the “ultimate question of whether an appellant demonstrated his intent to continue pursuing his affirmative defense, and whether he conveyed that intent after filing the initial appeal.”

Below is the non-exhaustive list of factors the Board will consider in determining whether a remand is appropriate:

(1) the thoroughness and clarity with which the appellant raised an affirmative defense;

(2) the degree to which the appellant continued to pursue the affirmative defense in the proceedings below after initially raising it;

(3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear;

(4) whether the appellant raised the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review;

(5)  whether the appellant was represented during the course of the appeal before the administrative judge and on petition for review, and if not, the level of knowledge of Board proceedings possessed by the appellant; and

(6)  the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board.

Thurman v. USPS, 2022 MSPB 21 (Jul. 12, 2022).

In this case, the Board applied the above factors and determined that the appellant abandoned his affirmative defense, thus there was no basis for remand. As a result, the Board upheld the removal. We’ll discuss this one and others during September’s MSPB Law Week. Hopkins@FELTG.com

And Now a Word With … J. Bruce Stewart About Diversity & Inclusion

By Dan Gephart, July 12, 2022

As Federal agencies work to implement the President’s Executive Orders on diversity and inclusion, navigate requirements to offer relevant training, and seek to hire chief diversity officers, I can’t help but think of one person in particular: Dr. J. Bruce Stewart.

Stewart was responsible for coordinating implementation of President Barack Obama’s Executive Order on Diversity and Inclusion. At that time, Stewart was “Deputy Director, Training Compliance and Strategic Initiatives, Office of Diversity and Inclusion” at the Office of Personnel Management. His impact there was as deep as his title was long. It included several groundbreaking initiatives and the first-ever government-wide diversity and inclusion strategic plan, which came with a 47-page guidance document.

But I remember most Stewart’s role as the chief architect of The New IQ – a tool for measuring inclusion. The New IQ stands for the New Inclusion Quotient. It consists of the answers to 20 specific questions, identified through a rigorous factor analysis trial, on OPM’s Federal Employee Viewpoint Survey.

I asked Stewart how he would assess the current Federal workplace’s New IQ.

“I think it’s getting much better,” he said. “The New IQ is built upon the concept that individual behaviors, repeated over time, form the habits that create essential building blocks of an inclusive environment. These behaviors can be learned, practiced, and developed into habits of inclusiveness and subsequently improve the inclusive intelligence of organizational members. Basically, the New IQ argues that a type of intelligence called ‘inclusive intelligence’ is the real differentiating factor that distinguished good teams from great ones. And, in a general sense, inclusive intelligence is a person’s ability to bring out the best in other team or group members. Conversely, the Old IQ or individual intelligence measures how smart you are as an individual. The New IQ emphasizes how smart you make your team.”

Although it’s not the focus, the New IQ is covered in Stewart’s book – The Click Code: Why Some Teams Click and Others Don’t, which is getting its fair share of praise. He will also present a session on “The Power of an Inclusive Mentality” during FELTG’s Federal Workplace 2022: Accountability, Challenges, and Trends August 29 – September 1. ACT is an annual FELTG event offering short, engaging, and guidance-filled training sessions focused on helping you manage the employment challenges that are new, complicated, and critical to you and your agency’s success.

Stewart arrived at OPM after serving 23 years in the Air Force. He retired as Lt. Colonel. His last assignment was as the Air National Guard’s Director of Cultural Diversity Transformation. Here is some of our recent conversation:

DG: In The Click Code, you discuss psychological safety. Can you define that term and tell me why it’s important for 1) team success and 2) agency efforts to improve DEIA?

BS: Sure. Psychological safety is the ability of a person to feel safe in speaking up at work or in the community, especially if that person has a different perspective or viewpoint. Do they feel free from retaliation or retribution if they speak up with a dissenting opinion? Why the concept of psychological safety is so important for team and DEIA success is because the ability of people to honestly share their viewpoints or beliefs without fear is a concept that fuels both team and DEIA success.

DG: Everyone seems to have different definitions of diversity and/or inclusion. How do you define the terms?

BS: Diversity is simply variations within groups. In other words, you can only be diverse in relation to someone or some other group. Inclusion is the perception that a person feels a sense of belonging and is valued for their unique strengths. People feel included when they feel welcome and believe their voice is being heard. This definition is based upon what is known as Brewer’s Optimal Distinctiveness Theory, which argues that human beings have core needs — the need to belong and the need to be valued as an individual.

DG: When pursuing DEIA, how does an agency get buy-in from reluctant staff, especially when anything related to diversity is being challenged as “PC culture,” “wokeism,” and “CRT?”

BS: Well, the first thing is not to call anyone a racist, bigot, or imply they are not very bright. Instead, different strands of research have shown that people are influenced to think differently and change their behaviors by repeated conversations with people already within their social circles. Most people change their belief systems and behaviors not by what someone says on television or on social media, but instead are strongly influenced by the social identity group they are a part of. Anything taken to an extreme, including DEIA, can become problematic and non-productive. Everything is relative, but from my perspective the most urgent challenge to our democracy, according to the Director of the FBI, is the growing influence of white nationalists advocating a white supremacist ideology.

DG: Per Executive Order, agencies are hiring Chief Diversity and Inclusion Officers. If you could give the individuals who hold this title only one piece of advice, what would that be?

BS: That fundamentally your primary focus should be to understand the science of change by applying insights from network science to find the right mix of social capital. In tomorrow’s world, the deciding factor won’t be the color of one’s skin but the diversity of their connections within a network of relationships.

Hear more from Stewart during his session “The Power of an Inclusive Mentality” on Wednesday, August 31 from 10:30 – 11:45 am ET. Register now for this and other sessions of FELTG’s Federal Workplace 2022: Accountability, Challenges, and Trends. Early bird pricing, daily and full event All Access discounts are available. Gephart@FELTG.com

Don’t Ignore the Reasonable Accommodation Framework: Basic Mistakes Can Cost Dearly

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By Deborah Hopkins, June 27, 2022

The reasonable accommodation process is an entitlement that every Federal employee has a right to pursue, regardless of the job. A recent EEO case, which originated back in 2010, caught my attention.

The case involved 10 complainants who all suffered from a medical condition called pseudofolliculitis barbae (PFB). According to the case, PFB is a chronic bacterial skin disorder that’s caused by shaving facial hair. PFB causes pain, skin irritation, pustules, rashes, sores, bleeding, scarring, and infection. Medically, PFB requires abstinence from being clean-shaven, and predominantly affects African American males.

The complainants worked as police officers, within the Pentagon Force Protection Agency. PFPA police officers are required to wear protective clothing and sometimes use personal protective equipment (PPE), as the job includes defending themselves and others against possible exposure to explosives, chemicals, or other weapons of mass destruction.

In 2010, the agency issued a new regulation that impacted police officers:

Supervisors shall ensure that all emergency response personnel are able to safely wear the Level C [Chemical-Biological-Radiological-Nuclear (CBRN)] PPE Ensemble at any time: facial hair that comes between the sealing surface of the face piece and the face or that interferes with the valve function is prohibited. Emergency response personnel who have a condition that interferes with the face-to-face piece seal or valve function shall not be permitted to wear the Level C CBRN PPE Ensemble. [bold added]

Practically speaking, this new regulation required PFPA Police Officers to be clean shaven because the CBRN ensemble would not seal properly if facial hair was present. The complainants, who up until that point had been permitted to have facial hair a quarter inch in length to accommodate their PFB, were now threatened with reassignment or removal if they did not shave their facial hair. They separately filed EEO complaints, alleging discrimination on the bases of race (African American), color (Black), and disability (PFB).

After a complicated procedural history including EEOC ordering supplemental investigations into the qualification standards for the jobs (which included the need for PPE), EEOC found the standard on facial hair was appropriate because it was job-related and consistent with business necessity to have PPE that sealed properly.

However, the EEOC also found that the agency failed to meet its requirements to consider effective accommodations, namely alternative PPE that would work properly even in the presence of facial hair, because the complainants had all “passed their annual mask fit tests, and there was no evidence that they were unable to perform the essential functions of their position with the waiver or that any incident occurred where they were in danger or risked danger to others due to a respirator mask failure in an emergency situation.”

In this request for reconsideration, the EEOC held to its decision in the original appeal:

In sum, the Commission found the Agency failed to meet its burden of proving that there was no reasonable accommodation that would enable Complainants to meet the existing standard or an alternative approach that would still allow the PFPA Officers to perform the essential functions of their position. The decision concluded the Agency’s imposition of a blanket policy requiring all PFPA Officers to be clean-shaven regardless of their medical condition violated the Rehabilitation Act.

Cleveland C. et al. v. DOD, EEOC Request No. 2020003894 et al. (Apr. 4, 2022).

Now 12 years later, we finally have an outcome. The agency missed one of the basic pieces of the framework: Consider alternative accommodations that will still allow employees to perform essential functions within their medical restrictions. I can’t help but wonder what the damages will amount to in this case, given that 10 complainants were impacted for over a dozen years.

As employees are returning to the physical office and different workplace standards are being implemented in this post-pandemic world, agencies should remember that every reasonable accommodation request should be given an individualized assessment. This is but one of the many aspects of the process that we’ll be discussing in our upcoming Reasonable Accommodation in the Federal Workplace webinar series, which begins July 21. Hopkins@FELTG.com

Some of These Non-precedential Cases Seem Awfully Precedential to Me

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By Deborah Hopkins, June 13, 2022

The MSPB is operating on all levels once again, now that the third and final nominee, Cathy Harris, was sworn in at the beginning of the month. There have, as of this writing, only been 15 precedential decisions issued by the new Board, but we’ve seen dozens of non-precedential (NP) decisions in the past three months.

According to MSPB:

“A non-precedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite non-precedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law.” See 5 C.F.R. § 1201.117(c).

Despite their NP status, I have found some new lessons in these decisions. One such case that seems consequential to me is Purifoy v. VA, CH-0752-14-0185-M-1 (May 16, 2022)(NP). Take a look at this procedural history:

  • Employee was fired for AWOL (October 2013)
  • AJ mitigated the removal to a 40-day suspension (November 2014)
  • On PFR, the MSPB reinstated the removal (June 2015)
  • On appeal, the Federal Circuit remanded the case back to the MSPB for an independent Douglas analysis (October 2016)
  • Remand goes in the pile that would eventually become a 3,600+-case backlog, and eventually MSPB’s O & O reinstated the removal (May 2022)

If the second to last bullet point made you pause, you aren’t the only one. Ever since the MSPB started operating in 1979, the discipline process has worked like this:

  1. The agency drafts the charge and selects the penalty.
  2. The Board reviews the agency’s penalty determination for reasonableness.

I can’t recall a time when the Federal Circuit ordered the Board to do its own penalty assessment. (That’s not to say it hasn’t happened – but if it has, I don’t recall. And this is certainly a first for THIS Board.) As we have taught in MSPB Law Week for 20-plus years, the Board must give due weight to the agency’s discretion in exercising the managerial function of maintaining employee discipline and efficiency. The Board’s function is not to displace management’s responsibility but to assure that managerial judgment has been properly exercised within the tolerable limits of reasonableness.

So here we are. A bit more on the facts of this case. The employee, Lamonte Purifoy, was employed by DVA as a WG-2 Housekeeping Aid. He was jailed for six months due to drug use, and the VA fired him based on two charges:

  1. Two days of AWOL
  2. Six subsequent months of AWOL while in jail

On appeal, the AJ held that only 38 days of Charge 2 warranted AWOL. As the severity of the Charge 2 was reduced and because the AJ believed the employee showed a potential for rehabilitation, the AJ mitigated the removal to a 40-day suspension. On PFR the MSPB reversed the AJ’s mitigation and reinstated the removal, as it found the appellant did not demonstrate a high degree of rehabilitation potential.

Upon its review of the case the Federal Circuit decided that the Board members erred by not evaluating Douglas factor 12: “The adequacy and effectiveness of alternative sanctions to deter such conduct in the future,” although the AJ had done so, thus the basis of the remand.

In its assessment on remand, the Board looked at the Proposing Official’s testimony which said that he would object to the appellant returning to the workplace because of the negative precedent such an action would set. In addition, the Board was compelled by the Deciding Official’s testimony about deterring similar misconduct by other employees, and the message that imposing a lesser penalty would send. Therefore, this factor supported reinstating the removal penalty.

I talked with Bill Wiley, one of FELTG’s Founding Fathers, about this case and he had some insight about the Board’s decision and its assessment of Douglas factor 12: “When defending a removal penalty, be sure to state what harm would occur if the employee was returned to or remained in the workplace. Often, it can be said truthfully that anything less than removal would send a negative message to other employees. If the employee was disruptive in the workplace before removal, it would be reasonable to predict he would be disruptive if he was reinstated or retained.”

The Board also weighed in on the other Douglas factors. So, while Purifoy is an NP case, it gives us factor-by-factor information on how this new Board views the Douglas assessment. And if you understand the Board’s reasoning in Purifoy, you will be able to better defend the agency’s penalty selection for years into the future.

For more on this and other lessons from the Board, join FELTG for the virtual training Back on Board: Keeping Up with the New MSPB, July 20. Hopkins@FELTG.com

And Now a Word With …. MSPB Member Tristan Leavitt

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By Dan Gephart, June 6, 2022

Tristan Leavitt, Member, Merit Systems Protection Board

When And Now a Word With … last talked with Tristan Leavitt, the word “corona” evoked visions of a weak mass-produced beer not a virus that would eventually take the lives of more than a million Americans. And the Merit Systems Protection Board was in the seventh month of sitting member-less, following the expiration of former Chair Mark Robbins’ term.

As then-General Counsel of the MSPB, Leavitt had assumed the responsibilities for the executive and administrative functions usually vested in the Chair. Over the next couple of years, Leavitt and a dedicated group of agency staff steered the MSPB through its most challenging period.

Three months ago, Leavitt and Raymond Limon were confirmed and sworn in as Members, ensuring a quorum for the first time in more than five years. And now, the backlog of Petitions for Review that we all watched steadily are being addressed. New MSPB Chair Cathy Harris was finally confirmed by the Senate late last month, so the MSPB is back at full strength for the first time in over half a decade.

Like Vice Chair Limon recently, Leavitt very graciously took time to answer our questions, giving us a peek into the new Board’s approach.

 DG: Are you satisfied with the current pace with which you and Acting Chair Limon are tackling the backlog of cases?

TL: I think we’ve made a decent start.  Both he and I have fantastic staff, and I’ve really appreciated how smoothly our two offices have been able to work together.  That said, no matter how fast we move, we recognize that the backlog represents over 3,000 appellants and their agencies awaiting finality, so I doubt we’ll ever shake the sense of urgency that we look for ways to be more efficient.

DG: It appears you are prioritizing whistleblower cases. Is that so and why?

TL: Way back in October 2019 I mentioned in this same forum that MSPB’s career staff had drawn up plans for dealing with the backlog.  Primarily, that consisted of identifying a “priority group” of 300 cases as a first group for an incoming Board to address.  The group included a mix of all types of cases: easy cases to help new Board members acclimatize, cases dismissed as settled, precedential cases on which a number of other cases hinge, extremely old cases, cases potentially involving large amounts of backpay, etc.  When Ray and I were confirmed, we adopted the recommendation of staff and began working through the priority group of cases.  Given that whistleblower reprisal allegations are raised in some 25 percent of all cases before the Board, it’s not surprising that the group has included a number of whistleblower cases, some of them precedential.

DG: Are you planning to prioritize any other types of cases? 

TL: Since the creation of the first priority group, MSPB staff have developed second and third priority groups that are also approximately 300 cases each.  Beyond those groups, we haven’t yet developed a comprehensive strategy for how we intend to deal with the rest of the approximately 2,700 cases in the backlog.  To some extent, I would say that’s because we’ve been in an acclimation period, particularly since Ray is new to MSPB, and to some extent it’s probably also because it’s unclear how close we might be to the confirmation of a third Board member. Nevertheless, by the time we’ve worked through the priority groups there will have to be decisions made about where to go next in the backlog, and I would imagine we’d be well equipped at that point to develop a strategy.

DG: You’ve decided to keep the non-precedential cases and while most are 1-2 pages, others are much longer. Can you explain your approach to NP cases? 

TL: As Ray noted here recently, MSPB staff have already drafted recommended decisions for approximately 3,400 of the 3,600-case backlog, and those were generally drafted under the procedures in use when last the Board had a quorum.  While Ray and I have exchanged proposed edits with one another in cases or sent a handful back to the career staff for particularly involved revisions, I think it’s fair to say that thus far we’ve mostly just worked with the case formats and lengths presented to us by the career staff.  As a general matter, I would say the most abbreviated non-precedential orders tend to come in cases where it seems very clear to us there is no jurisdiction or where the administrative judge adequately addressed in the initial decision all relevant issues.

DG: Why has the board talked about likely resuming reissuing short form decisions again?

TL: There has been discussion about how much time could be saved by reverting to true short form decisions, particularly for the types of cases I mentioned above that are only receiving abbreviated orders anyway.  On the other hand, drafting a very brief opinion doesn’t seem to be particularly arduous, especially since the shortest already tend to simply state the issue in question and articulate the Board’s standard for granting petitions for review.  As I mentioned before, there are a number of decisions to be made that we’ve postponed until we could get our feet wet by working through the priority groups, and my guess would be that this is one of those issues.  If we did decide to revert to short form decisions, I’d imagine it would be implemented with newer cases coming in for which recommended decisions haven’t yet been drafted.

DG: There was a lot of focus and attention on that backlog of cases, but how else has the presence of a quorum positively impacted the agency? 

TL: The restoration of a quorum is certainly beneficial to agency morale, as all of MSPB’s committed staff are eager to fulfill the full scope of the agency’s important mission.  The Office of Policy and Evaluation’s research agenda can now be finalized, and the full version of its studies issued moving forward.  MSPB can also update its regulations, which is long overdue in some instances.  Finally, while it only requires one Board member and not a full quorum, having gone from no Board members to two also reopens the door to issuing stays requested by the Office of Special Counsel in prohibited personnel practice cases.

DG: What is the status of the agency’s plans for returning employees to the physical workplace?

TL: I largely haven’t been involved on this topic since handing agency head responsibilities over to Ray. However, as far as I’m aware most employees have resumed reentering the workplace at least some days of the week.

Leavitt noted that even pre-pandemic, the MSPB had a relatively high telework rate compared to other agencies. Gephart@FELTG.com

[Editor’s note: How is the Board ruling in these decisions? Join FELTG President Deborah Hopkins for the two-hour virtual training Back on Board: Keeping up With the New MSPB on July 20, starting at 1 pm ET.]

How to Lose a Cook Case – Excessive Absence Removal Requirements Under the New MSPB

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By Deborah Hopkins, May 31, 2022

When an employee is too ill to come to work on a regular basis, it puts the agency in a difficult position: wanting to work with the employee and grant leave in hopes they will eventually recover, but also needing someone to complete the job tasks on a regular basis. In some cases, the amount of leave the agency grants becomes problematic and the agency needs the employee to return to duty.

Generally, an agency cannot take an adverse action for approved absences – and that makes sense. After all, the agency grants the leave, or else the employee has an entitlement to the leave. However, an agency may remove an employee for excessive absence if the agency proves the Cook criteria, as identified in Cook v. Army, 18 M.S.P.R. 610 (1984):

  1. The employee was absent for compelling reasons beyond his control;
  2. The absences continued beyond a reasonable time and the agency warned the employee that an adverse action would be taken unless the employee became available for duty on a regular basis; and
  3. The position needed to be filled by an employee available for duty on a regular basis.

A recent MSPB decision, Robinette v. Army, AT-0752-16-0633-I-1 (May 11, 2022)(NP), reminds us the Cook criteria are requirements, not suggestions. The decision reinforces that the Board cannot uphold a removal if the agency does not comply with all three elements in the Cook criteria.

In Robinette, the agency issued the appellant a Notice of Leave Restriction on Feb. 17, 2015, which informed him that his chronic, unscheduled absences were considered excessive and negatively affected the agency’s ability to accomplish its mission.

On May 18, 2016, the agency issued a Notice of Proposed Removal for “excessive absenteeism,” which specified that from Feb. 21, 2015, through April 16, 2016, he was absent 939.3 hours out of a total of 2103.7 available duty hours (almost 45%). The agency removed the employee on June 24, 2016, and he filed an appeal to the MSPB.

In the initial decision, the administrative judge (AJ) found the agency’s action was properly predicated upon approved leave, including annual leave, sick leave, and Leave Without Pay, but that the Leave Restriction Letter did not meet the second element of the Cook criteria; it did not inform the employee his approved absences could lead to removal if he did not become available on a regular basis. So, the AJ reversed the removal.

On Petition for Review, the agency argued that it had suspended the employee in November 2014 and April 2015 for “failure to follow proper leave procedures” and that the statement in the decision letters “[y]ou are cautioned [that] any repetition of this or similar offenses may result in more severe disciplinary action against you” met element 2 of the Cook criteria. Because neither decision letter was part of the record, the Board refused to consider anything except the February 2015 Leave Restriction Letter, which the Board also found did not meet the second Cook requirement.

Excessive absence removals are highly technical. Reading this case reminded me of a VA case from a few years ago where the agency’s removal was reversed because the warning letter told the employee that if he did not return to work, he would be disciplined, but it did not say that continued absence on approved leave would warrant his removal. Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016)(ID).

As we teach in all our classes, words matter. For more on this and other leave-related challenges, join us virtually for Absence, Leave Abuse & Medical Issues Week, June 13-17. Hopkins@FELTG.com

The New Board Offers a Lesson on Conduct Unbecoming

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By Deborah Hopkins, May 9, 2022

As new cases start coming out of the MSPB after its 5-year wait for a quorum, cases containing lessons with broad applicability to Federal agencies are still few and far between. But a recent decision, involving an appellant’s removal based on conduct unbecoming a Federal manager, caught my attention. The agency charged the employee with 18 specifications. After a 5-day hearing, the Administrative Judge (AJ) found that the agency failed to prove any of the specifications supporting the charge, and ordered the agency to reinstate the employee. The agency filed a PFR.

In its decision, the Board reiterated that a charge of conduct unbecoming has no specific elements of proof; the agency establishes the charge by proving the appellant committed the acts alleged under this broad label. Then it turned its attention to the specifications, a number of which the Board said did evidence conduct unbecoming, and several that did not. Let’s take a look.

The below specifications are conduct unbecoming.

  • During a meeting with another agency employee, the appellant held up a copy of an email the employee had sent him, which was seeking clarification about pay raises, and the appellant said, “[L]ooking at this email … I found it [expletive] offensive.” (FELTG’s best guess is that the expletive started with the letter “f” and rhymes with “trucking,” which we confirmed after reading the initial decision. And with that please, new MSPB, would you consider ending the practice of sanitizing expletives in your opinions? Let the words speak for themselves.)
  • In a meeting with a fellow manager about outsourcing information technology services, the appellant told the manager about a specific employee who had filed an EEO complaint in order to illustrate that one advantage of outsourcing is that the agency does not have to deal with personnel matters such as EEO complaints.
  • During a meeting with several colleagues, the appellant placed his hand over a Project Director’s mouth to prevent him from making further comments.
  • The appellant intimidated two attorneys who wrote a draft memo for the Director and told them that issuing the memo would be a “career ender.”
  • After he received a Level 3 performance rating, the appellant asked the HR Director to negotiate with the agency’s Acting Director on his behalf for a higher rating so that he would receive a bonus, “thus placing the HR Director in the untenable position of either refusing his supervisor’s request or negotiating with his former second-level supervisor for a better performance rating for his supervisor.”

These specifications are not conduct unbecoming.

  • During a meeting with the EEO Director, the HR Director, the HR Deputy Director, and agency attorneys about anonymous EEO complaints, the appellant commented that employees should not be allowed to make anonymous EEO complaints and that they should have more “skin in the game.”
  • The appellant told the agency’s EEO and Diversity Director and an EEO Counselor that he did not believe any of the complaints about the HR Deputy Director, and that if there were any more complaints about her there would be serious consequences. (While the Board found this behavior troubling, the agency’s lack of discipline of the employee when he made the comment several years earlier meant they failed to prove this specification, because the agency “merely [took] “the remedial step of advising the appellant of the legal and policy importance of allowing employees to file anonymous internal complaints.)
  • The appellant stated in front of a group of employees that a fellow senior-level employee should be put on a PIP.
  • The appellant told a fellow manager that the allegations in her grievance against the agency’s CIO would be reflected in the CIO’s performance evaluation.
  • The appellant “became agitated” when the Acting Director questioned him about a workplace matter.

Not all 18 specifications are listed; a number of specifications the AJ found the agency did not prove were left undisturbed because of the AJ’s credibility assessments of the evidence at hearing. Hornsby v. FHFA, DC-0752-15-0576-I-2 (Apr. 28, 2022)(NP).

Quite a lot in a non-precedential case, wouldn’t you say? We’ll be discussing a lot more takeaways at the July 20 virtual event Back on Board: Keeping Up with the New MSPB. Hopkins@FELTG.com

Ask FELTG: If an employee with a disability can perform his job at the worksite, why would telework as a reasonable accommodation be necessary?

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It wouldn’t be necessary, though the agency could still choose to grant telework as the accommodation if it wanted to. EEOC guidance suggests that the employee’s preference on accommodation should be considered, but ultimately the agency gets to choose the accommodation. See Complainant v. Army, EEOC Appeal No. 0120122847 (2014); Jordan v. Secretary of Navy, EEOC Appeal No. 0120110907 (2012)

The only time an agency must grant telework as an accommodation is if:

1. The essential functions of employee’s job can be performed from home,

2. There is no other effective accommodation that would allow the employee to perform the job within their medical restrictions, and

3. Granting telework is not an undue hardship on the agency.

EEOC Fact Sheet: Work at Home/Telework as a Reasonable Accommodation; see also Dahlman v. CPSC, EEOC Appeal No.0120073190 (2010); Lavern B. v. HUD, EEOC Appeal No. 0720130029 (2015).

There may be times when an agency chooses to grant telework even though there might be an effective accommodation available at the worksite. For example, let’s say an employee has irritable bowel syndrome. The agency could provide the employee with a workstation close to the restroom, which would be an effective accommodation.

However, taking into account the fact that the restroom is not single-use and the fact that the employee needing to use the facilities in front of the employee’s coworkers might cause embarrassment, the agency might choose to grant the employee telework instead.

For more guidance, join Attorney at Law/FELTG Instructor Ann Boehm on May 11 for Managing Post-pandemic Reasonable Accommodation Requests and Medical Documentation, the second part of our three-part webinar series Navigating the Return to the Post-pandemic Federal Workplace.

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.