Due Process Challenges in a COVID-19 World

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By Deborah Hopkins, April 7, 2020

When it comes to due process in federal sector employment law, the steps are as easy as 1-2-3. Let’s take a hypothetical where the employee has violated agency purchase card restrictions, and the agency is ready to propose his removal. Here are the three steps that provide Constitutional due process to the employee – mandatory steps if he is a career Title 5 or Title 42 employee and no longer a probationer:

  1. The agency provides the employee with a proposal notice containing the proposed action (removal), the charge (misuse of an agency purchase card), the penalty justification (Douglas factors worksheet), and boilerplate rights, plus any materials relied upon.
  2. The employee is given a minimum of seven days to respond orally or in writing, and to be represented.
  3. The Deciding Official issues an impartial decision based only on the information in the proposal, and the employee’s response.

This is all fairly straightforward, though by no means do all agencies do it perfectly. But now that we are living in a COVID-19 world, there are some new questions that agencies are facing as it relates to providing due process. Let’s take a look.

The employee is working from home and we usually hand-deliver proposal notices, but the employee is on telework. What are our options?

In this case you have two options:

    • You can hand-deliver the proposal to the employee at his home. This is currently not advised, as many of us are under social distancing and stay-at home orders. I suppose if you were pulled over by the police on your way to the employee’s house you’d have a pretty good argument that this delivery is mission-essential.

Here is the better option:

    • Mail the letter to the employee, email it to the employee, or both. When an employee is teleworking, there’s a presumption of receipt of an email sent by a supervisor. What’s more, the folks in IT can check and see exactly when the employee opened the email. And if you think emailing proposed discipline is frowned upon by MSPB, then check out Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016) (ID), where an MSPB supervisor emailed a proposed adverse action to an employee. You can also send the letter via U.S. mail, where there is a presumption of receipt after 5 days.

Watch the timelines here, because the clock on the notice and response period starts on the day the employee receives the notice. If you only use the mail, you’ll be waiting a few extra days to start the notice period.

The employee needs access to files at the agency in order to prepare his response, and the building is closed because of COVID-19. Do we have to wait until the building re-opens to issue the proposal?

No, you do not need to delay your action. At this point in the process, the employee is not entitled to any agency files to prepare his response – unless your union contract says otherwise. Once the removal is issued and the employee files an appeal, he can request relevant files through discovery and the agency must produce the information. At the proposal stage, however, there is no entitlement. Don’t take my word for it; check out Kinsey v. USPS, 12 MSPR 503 (1982), a foundational Board case that settled this question in the early days of the Civil Service Reform Act.

The employee has requested an in-person response but the Deciding Official is teleworking and does not want to risk being exposed to the virus. Does the agency have to grant the onsite response meeting?

Again, the answer is no. The employee is entitled to an oral response, not a face-to-face response. Telephone or video conferencing are routinely used for the oral response, even when a pandemic is not consuming the globe. As long as the deciding official is able to hear the employee’s response, the legal requirement in 5 USC § 7503 has been met.

The Deciding Official receives an email from the employee’s former supervisor, encouraging the DO to remove the employee. Must the Deciding Official tell the employee about this email?

If the DO considers the information in the email at all in making her decision, then the employee is entitled to notice of this information, commonly known as a Ward letter. The agency would then need to give the employee the statutory minimum of seven days to respond to the email before the DO could implement her decision.

If the DO does not notify the employee of this new information, and the employee or judge finds out, the agency will automatically lose the case on a due process procedural violation – even if the agency has 50 witnesses, a public confession, and a video recording of the entire act of misconduct. Regardless of the evidence, due process violations are losers for the agency every single time.

In fact, most agencies lose cases because of due process violations, rather than on evidence. It’s a tricky area so for that reason, we invite you to join us next week on April 16 for a 60-minute webinar Due Process Violations: How One Mistake Could Cost You the Case. Until then, be safe and take care. Hopkins@FELTG.com

Do You Believe These Myths About Leave?

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By Deborah Hopkins, March 19, 2020

If you are part of the FELTG Nation, you probably already know that federal employees have significant rights to various types of leave. In fact, starting this fall, most will receive even more leave entitlements, in the form of paid family leave. That said, leave is not always an entitlement. Today I want to discuss some of the myths surrounding federal employee leave.

Myth: Employees always have the right to dictate their leave status if they have leave on the books.

Here’s the scenario: Your employee doesn’t come in to work one day when she’s scheduled, and doesn’t request leave or otherwise notify the supervisor she won’t be in. The next day, she comes in and tells the supervisor to put her on annual leave for yesterday. She has 32 hours of annual leave on the books. Must the supervisor grant the annual leave?

No. Annual leave is not an entitlement, and the supervisor may deny the request so long as the denial is reasonable. Is it reasonable to deny a leave request after the fact, when there is no entitlement, and the employee did not follow proper leave procedures? You bet. The employee who doesn’t come to work when scheduled is not on approved annual leave, she is AWOL.

In addition, there’s also a potential second disciplinary charge for failing to follow leave procedures. If you need good aggravating language, look no further than Yartzoff v. EPA, 38 MSPR 403 (1988). This case discusses how an agency is “doubly burdened” by an unscheduled absence; once for the loss of the employee’s services, and again for the loss of the opportunity to plan for the absence.

We’ve said it before, and we’ll say it again: Federal employees do not have the legal right to place themselves on leave. There is a three-step procedure that must be followed according to the law regardless of the type of leave requested, and if you’re not doing things this way, you are needlessly making your life more difficult.

  1. Employee submits a leave request according to agency procedures
  2. Supervisor considers the request
  3. Supervisor either grants or denies the request.
    • Sometimes the supervisor must grant the leave; other times it’s discretionary.

That’s the law.

Myth: If an employee is at work, she can’t be charged AWOL.

I think we all know that just because someone is at work, doesn’t mean she is actually working. Since the beginning of time – or at least since the beginning of the Civil Service Reform Act – employees who are on the clock but not doing government-related-work can be charged AWOL, or unauthorized absence if that’s what your agency calls it. A few cases to get you started:

  • An agency may charge an employee with AWOL for conducting personal business while on duty. Mitchell v. DoD, 22 MSPR 271 (1984)
  • Sleeping on the job; wasting time. Golden v. USPS, 60 MSPR 268, 273 (1994)
  • If an employee is insubordinate and is told to leave the work site until he agrees to follow directives, he is not on approved leave; he is AWOL. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Myth: An employee may only use sick leave if he, or a close family member, is incapacitated for duty.

Not long ago, I had a federal employee in my class whose sister had recently died. The employee requested sick leave to attend the funeral, and her supervisor denied the leave request. Well, that denial was absolutely wrong.

Under 5 CFR § 630.401(a)(4), an employee is entitled to use up to 104 hours (13 days) of sick leave each leave year for family care and bereavement, which includes making funeral arrangements or attending the funeral of a family member. The definition of family member in these instances covers a wide range including spouse; parents; parents-in-law; children; brothers; sisters; grandparents; grandchildren; step parents; step children; foster parents; foster children; guardianship relationships; same sex and opposite sex domestic partners; and spouses or domestic partners of the aforementioned, as applicable. Check out OPM’s full list of Definitions Related to Family Member and Immediate Relative for Leave Purposes.

The supervisor in this case could have legally denied the sick leave request only if the relative did not meet the definition of family member, if the employee had already used 104 hours of sick leave on family-related care that leave year, or if the employee did not have accrued sick leave. Otherwise, the leave was an entitlement and should have been granted.

There are also a few other areas where an employee may not be sick but has an entitlement to sick leave (e.g., routine dentist appointment), so you’ll want to be sure to read the regs if you’re not familiar with those.

Myth: The agency may dictate the employee’s pay status during FMLA.

A lot of supervisors miss this one, but the employee who is on FMLA gets to decide if the time off will be recorded as sick leave, annual leave, LWOP, or any combination of the three. Yes, that means an employee can
use LWOP during FMLA and keep all his annual leave and sick leave during FMLA, and save it for a rainy day. The agency has no choice in the matter, so don’t even try to force an employee to use accrued leave. The law is on the employee’s side.

If you like these leave topics, we have an entire training week on Absence, Leave Abuse and Medical Issues in Washington, DC, starting March 30 – or if you’d prefer to wait a few months to travel, September registration is also open. If you find this information helpful, you’re welcome to join us. We’d love to see you there.  Hopkins@FELTG.com

More on Probationers: FELTG Answers Your Follow-Up Questions

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By Deborah Hopkins, March 19, 2020

In a recent newsletter, I discussed the differences between initial appointment probationary periods and supervisory probationary periods. As a result of this discussion, FELTG received some follow-up questions, including requests for explanation of more complicated scenarios involving probationary periods. So here goes.

What happens if the agency wants to remove a probationary employee for pre-employment reasons?

If a probationer in the competitive service is removed for reasons occurring after they begin work, such as a performance or conduct issue, they have no MSPB appeal rights and no right to due process, with limited exceptions. However, if a probationer is being removed for a condition that arose before they started their job at a federal agency (for example, they lied on their job application), then they are entitled to a three-step procedure that mimics due process:

  1. Notice for the reasons why the agency is proposing the action;
  2. A reasonable amount of time to file a written response; and
  3. A written decision at the earliest practicable date, with notice of a right to appeal to MSPB.

See 5 CFR § 315.805.

Note: This three-step process does not follow the same 30-day notice timeline as a proposed removal actions for a fully vested career employee. These procedures are generally abbreviated by agency policy to be a few days at most.

Does a reinstated employee have to serve a new probationary period?

When an agency appoints an individual using reinstatement authority, the individual does not have to serve a probationary period if during any prior service that forms the basis for the reinstatement, the individual successfully completed probation. 5 CFR 315.401, 801(a); Aviles-Wynkoop v. DoD, DC-315H-16-0327-I-1 (2016)(NP).

How are temporary appointments related to probationary status?

For many years, individuals employed in a series of temporary appointments accrued MSPB appeal rights even with a few days break in service between appointments. The reason for this was the theory of a Continuous Employment Contract. See Roden v. TVA, 25 MSPR 363 (1984).

A few years ago, though, MSPB changed its stance and said in order to gain MSPB appeal rights, temporary employees must have more than a year of continuous, uninterrupted employment with no break in service – not even a day or two. Winns v. USPS, 2017 MSPB 1. See also Bough v. DoI, Fed. Cir. 2018-1477, 1478 (April 5, 2019). This “current, continuous standard” for temporary employees allows them to count their work toward completion of probation when the prior service:

  • Is in the same agency,
  • Is in the same line of work (determined by the employee’s actual duties and responsibilities); and is
  • Continuous (without a service break).

5 CFR 315.802(b)

In the excepted service, prior intervals of permanent service that are separated at the time of removal by a period of temporary service do not count toward the two-year requirement, even if there is no break in service when one considers both temporary and permanent positions. Roy v. MSPB and DoJ, 672 F.3d 1378 (Fed. Cir. 2012) (employee who had 8 years permanent employment and 1.5 years permanent employment separated by an 18-month temporary appointment did not have MSPB appeal rights).

What if an employee voluntarily accepts a job with a probationary period?

There are some positions in the federal government that may require a probationary or trial period regardless of the employee’s employment history with the government. Employees have appeal rights, regardless of whether they are serving a probationary/trial period, if they have:

  • Current continuous employment (as defined above) of:
    • One year in the competitive service (excluding service in temporary positions with a duration of two years or less), or
    • Two years in the excepted service, and
    • For veterans: one year in either service.

Van Wersch v. HHS, 197 F.3d 1144 (Fed. Cir. 1999), Claiborne v. VA, 2012 MSPB 101 (August 30, 2012). 

This means that an employee in the competitive service who has completed a year of current, continuous service (not a temporary appointment) has full procedural and appeal rights even if that individual is serving a probationary period. 5 USC 7511(a)(1)(A). If the individual is in the excepted service then the full appeal rights vest after two years even if that individual is serving a probationary period. 5 USC 7511(a)(1)(C). A person eligible for veterans preference will receive full procedural and appeal rights after one year of “current continuous service in the same or similar positions” whether the veteran is in the competitive or excepted service. 5 USC 7511(a)(1)(B).

In summary, employees have two separate and distinct avenues to appeal rights:

  • Employees who have completed a probationary period have appeal rights.
  • Employees who have a year of current service prior to the termination have appeal rights.

A special note for DOD, the probationary period is two years instead of just one, so some of your timelines may have to be modified accordingly. Hopkins@FELTG.com

Using Progressive Discipline: How Many Strikes Before You’re Out?

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By Deborah Hopkins, March 10, 2020

I spend most of my days talking about discipline. It’s a topic that I find very interesting, as do a lot of you in the FELTG Nation. In our field, of course there are a lot of boring discipline cases about the guy who is late to work or doesn’t follow an SOP and is disciplined accordingly. There are also attention-grabbing cases about employees who view pornography on government computers, urinate in mop closets, take food off inspection lines to do vulgar things, destroy government property, and on and on. If you work in federal employment law, you never have to make anything up.

One of the topics worth focusing on (and hey, there’s a webinar about this next Thursday) is progressive discipline for employees who are multiple misconduct offenders. While reprimands usually correct misbehavior, in 15-20% of cases an employee re-offends with a subsequent act of misconduct. What’s more, in 2018 the Government Accountability Office issued a report that said 25% of the 10,000-12,000 people suspended in the federal government every year have been suspended at least once previously.

Misconduct is loosely defined as the violation of a workplace rule. Discipline for misconduct is a way to correct bad behavior, or to teach the employee a lesson. Some agencies even discipline to send a warning message to other employees in order to deter future misconduct. The underlying principle in determining the appropriate level of discipline is that the penalty is proportionate to the offense. Agencies determine what’s appropriate with the guidance of the Douglas factors.

But some employees just don’t (or won’t) learn their lesson even after being disciplined, and that’s where things typically escalate. Enter progressive discipline. The general principle is “Three Strikes and You’re Out” when it comes to breaking minor rules and being disciplined in the federal workplace. This has been a widely accepted approach for longer than most of us have been alive; indeed, it pre-dates the Civil Service Reform Act and was standard in cases when we still had the Civil Service Commission. Three strikes is not a mandatory requirement, of course. Some supervisors allow employees four, five, or six strikes – or even more.

However, if an agency chooses to rely on past discipline in the Douglas factors analysis, any past, unexpired discipline at all is an aggravating factor in determining the appropriate penalty. In 2018 President Trump issued Executive Order 13839 that clarified prior misconduct for any charged offense – not just the current offense – could be relied upon in using progressive discipline. For example, a previous Reprimand for disrespectful conduct would be just as aggravating when selecting discipline for the subsequent misconduct of AWOL, as would be a prior Reprimand for AWOL. This been the law for decades, but had been misunderstood in recent years.

Take a look at a few cases where agencies used progressive discipline, and MSPB upheld the removals:

  • Grubb v. DOI, 96 MSPR 361 (2004): Removal was warranted for two charges – making repeated unfounded and unsubstantiated allegations concerning her co-workers’ and supervisors’ alleged misconduct and failure to follow her supervisor’s instructions in violation of a direct order – because the appellant had received four suspensions within a two-year period. [Can I just mention that I cringe at how those charges are drafted…but that’s another article.]
  • Blank v. Army, 85 MSPR 443 (2000): A reprimand and two suspensions preceded a removal action, and the MSPB upheld the removal because the past discipline was an aggravating factor.
  • Alaniz v. USPS, 100 MSPR 105 (2005): In one year alone, the appellant received four suspensions, so a fifth offense in the same year warranted removal.

I think most FELTG readers would agree that these cases show egregious examples of repeated misconduct. I would even hazard a guess that removal could have been upheld a couple of suspensions sooner, had the agencies above chosen to go that route. However, they chose not to and under the law that is their right.

Believe it or not, though, removal is appropriate in cases of “minor misconduct” where employees have been disciplined in the past and continue to violate workplace rules. See Ferguson v. USPS, 19 MSPR 52 (1984) (When past disciplinary records indicate unreliability and a failure to comply with agency regulations, the penalty of removal does not exceed the limits of reasonableness even for cases involving minor misconduct such as “being out of the facility while on the clock without permission.”) Foundational MSPB case law tells us that the agency need not impose the minimum penalty possible so long as the penalty imposed is reasonable. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Of course, because progressive discipline is not mandatory, sometimes agencies employ the “One Strike and You’re Out” approach. Next month, we’ll look at cases where progressive discipline was not used, because it wasn’t necessary. See you then, if not before. Hopkins@FELTG.com

You Can’t Be Halfway Pregnant, and Informal Discipline is Not a Thing

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By Deborah Hopkins and William Wiley, February 19, 2020

Have you ever heard this saying: You can’t be halfway pregnant   — either you are, or you aren’t? There are a number of things in life that are all or nothing, with no halfway. Either it is, or it isn’t.

One of those things is discipline. An action taken against an employee who has committed misconduct in the federal workplace is either discipline, or it isn’t. There’s no halfway. I can’t tell you how many agency policies we have seen – yes, even recently — that list the items that constitute Formal Discipline, but then have other sections highlighted as “Informal Discipline” or “Other Discipline” or, perhaps most confusingly, just Discipline. Other policies list the steps of Progressive Discipline and include items such as Counseling and Oral Reprimands. That’s another mistake and isn’t legally accurate.

Here’s what we know about the requirements for an action to be considered discipline in the federal workplace, as laid out in Bolling v. Air Force, 9 MSPR 335 (Dec. 21, 1981):

Discipline must be in writing. If a supervisor yells and screams at an employee, calls the employee all kinds of nasty names , throws a chair, slams a door, threatens to fire the employee, or anything else along those lines, that supervisor might feel like she is disciplining the employee, and indeed, the employee may even feel disciplined from the sting of those words. However, under the law, the employee has not been disciplined. Those words and gestures matter not one iota under the law. If it isn’t in writing, it isn’t discipline. (It’s definitely bad management, but we’ll save that conversation for another article.)

Discipline must be grievable. As explained in Bolling, for an action to count as discipline, the employee must be “given an opportunity to dispute the action by having it reviewed, on merits, by an authority different from the one that took the action.” Just because an item is in writing, doesn’t make it grievable. An agency needs to look to its administrative grievance procedure or its union contract to see what types of written documents are grievable. Typically, items such as counseling memos, emails, letters of caution, or written expectations, do not meet these criteria and, therefore, are excluded from the definition of discipline.

The action must be made a matter of record. This requirement essentially means that there is official agency paperwork involved; the item belongs in the employee’s OPF. A lot of supervisors put notes and memos into the OPF, but the only things that truly belong there, for the purposes of counting as discipline, have an SF-50 attached. A reprimand does not have an SF-50 because it is not a pay action. However, it is commonly stored in the OPF in the temporary section (for those who remember OPFs before they were electronic, on the left side of the folder), where it does not remain in the file past its expiration date. A reprimand is considered discipline until its expiration date, because it meets all the legal requirements of discipline: It is written, grievable, and a matter of record.

All this brings us back to the confusion around “informal discipline,” or whatever your agency calls it. There is no accepted definition for informal discipline, and it does you more harm than help if you try to draw a distinction.

If a supervisor mistakenly issues three types of informal discipline against an employee, and on the fourth offense decides that it’s time for a removal under progressive discipline, she is going to be upset when she realizes the informal procedures she followed in her agency’s policy have carried exactly ZERO legal weight for the purposes of progressive discipline. At the very most, she might have some evidence for the Douglas factor on notice, but that’s about it. Here’s why this is important:

Efficiency: As we have taught in our FELTG seminars since the cooling of the Earth, the best practice is to do as little as required by law when dealing with a problem employee. The more you do, the longer it takes, the more you give the employee to grieve and complain about, and the greater your chances of making a mistake. If you create a category of actions unrecognized by law or otherwise unnecessary, you make it more difficult to efficiently correct behavior.

Confusion: If you create something called “informal discipline,” you confuse the poor front-line supervisor. When should the supervisor engage in informal discipline? Is there a requirement to use informal discipline before he uses the real thing? How is the employee supposed to view the administration of an informal disciplinary action? Most importantly, what is the judge or the arbitrator supposed to do with an informal discipline policy? Confusion does you no good when trying to manage workplace behavior.

Litigation: MSPB administrative judges closely review the removal of employees from federal service. If a judge discovers that you have mistakenly considered an act of “informal discipline” as a step in progressive discipline, then you stand a big fat chance of the removal being mitigated or even set aside on appeal. Litigation is hard. Don’t create the potential for mistakes that are unnecessary.

If you’re stuck with one of these policies and aren’t in a position to change it, don’t sweat it. Most of these policies do not require a supervisor to start with the informal before going the disciplinary route, so a supervisor should be free, to go right to the reprimand and skip the Letter of Whatever. Hopkins@FELTG.com

Takeaways from MSPB’s FY 2019 Annual Report: Agencies Continue to Win Appeals, but Don’t Litigate Very Many Cases

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By Deborah Hopkins, February 19, 2020

A couple of weeks ago, MSPB issued its Annual Report for FY 2019. This report is similar to a “State of the MSPB” document, which highlights the priorities, strategies, and numbers from the previous fiscal year. Because we have no sitting members of the MSPB for the first time in history – and it’s been almost a year since the Board has been vacant – the report is more abbreviated than it has been in years past. But there’s still some interesting information we at FELTG want to share with you, in case you haven’t had a chance to look at the report yet.

As of the end of FY 2019, MSPB had 2,378 Petitions for Review (PFRs) pending at HQ. That was the end of September, of course. As of last week, MSPB’s website showed more than 2,600 pending PFRs. The backlog has been growing for more than three years and will continue to grow until the Senate votes to confirm the nominees, who have been patiently waiting – two of the three for nearly two years.

The Administrative Judges (AJs) in the regional and field offices continue to hold hearings and review cases. Last FY, they issued 5,112 decisions. Of those, 4,893 were initial appeals, 190 were addendum cases, and 29 were stay requests. Let’s look at a further breakdown of these numbers:

  • 2,092 of the AJ decisions involved adverse actions.
  • 388 cases were probationer removals. (As most FELTG readers know, probationers have limited Board appeal rights. If you didn’t know that, attend MSPB Law Week in March and we’ll tell you all about it.)
  • 113 cases involved performance-related removals or demotions.
  • 490 were Individual Right of Action appeals – with most of those, if not all, undoubtedly being appeals of alleged whistleblower reprisal.
  • 61 appeals were related to suitability.
  • USERRA and VEOA appeals combined for 213 appeals.

Another interesting statistic involves settlement. In years past, around 60 percent of MSPB appeals government-wide were settled before they ever went to hearing. Of course, some agencies tend to settle more often, and others less frequently, but overall the majority of cases still settled. I often get asked what that looks like, and why agencies settle cases after the disciplinary action has already been decided. Well, it costs the government time and money to litigate a case in front of an MSPB AJ, and if the agency can offer the employee something (usually a sum of money) in order to resolve the appeal today, then it often will.

This decision to settle usually comes from someone further up the chain of command, and in many cases includes the employee’s agreement that they won’t apply for another job at the agency again. Whether you like it or not, that’s how the system works.

Well, last year we had the lowest number of post-appeal settlements I can ever recall seeing: only 47 percent of cases settled after the appeal was filed to MSPB. A likely reason for this is Executive Order 13839, which went into effect in 2018 and removed the agency’s authority to take discipline out of an employee’s official record. A clean record is often the determining factor in getting an employee to agree to withdraw an appeal and go away, so it’s not surprising to see this number decrease so significantly.

Of the 915 appeals that went to hearing (in other words, they weren’t settled, withdrawn, dismissed, or otherwise disposed of) and were adjudicated on the merits, agency actions were upheld 85% of the time — a 2% increase from FY2018. Only 2% of agency actions were mitigated and about 12% were overturned.

So, who went to hearing the most? By the numbers, the VA far and away adjudicated the most MSPB appeals (161), more than doubling the number of its closest followers, Army and DHS. Not far off the podium were DOD, USPS, Navy, and Air Force, followed by  DoJ, USDA and Treasury. Considering the size of the top three agencies, this is not entirely surprising as one could assume the number of hearings is related to the size of the workforce. However, several decent-sized Departments only adjudicated appeals in the single or low-double digits:

  • Department of Health and Human Services: 15 appeals; 79,000 employees
  • Department of Transportation: 15 appeals, 58,000 employees
  • Department of Commerce: 14 appeals; 46,000 employees
  • Department of the Interior: 12 appeals; 70,000 employees
  • Department of Labor: 4 appeals; 17,000 employees
  • Department of Energy: 3 appeals; 14,000 civilian employees
  • Department of Housing and Urban Development: 3 appeals; 8,000 employees

The fact that some agencies adjudicated so few appeals is not necessarily directly related to the number of personnel actions taken. A number of Departments employ groups of people who do not fall under MSPB jurisdiction – for example, Department of Energy employs more than 100,000 contractors who do not have MSPB appeal rights. Some agencies have very high settlement rates, and other agencies see very few employees file an appeal of a removal. That said, it is true that some agencies just don’t take action against most employees who engage in misconduct or perform at an unacceptable level. I share these numbers not to point fingers, because these numbers standing alone don’t tell us the complete story, but as a way of starting the conversation about accountability in the federal government.

There’s lots more in the report including a statement on the lack of a quorum (or any members at all) and summaries of important Federal Circuit decisions. Hopkins@FELTG.com

What’ll It Be, Mack? The Easy Way, or the Hard Way?

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By Deborah Hopkins, January 21, 2020

My colleague Bill Wiley has long preached the value of taking the easy route vs. the hard route. An example he has often used in our Washington, DC classes goes something like this:

If you’re in Washington, DC, and you want to get to Baltimore, the fastest and most direct way to get there is to take I-95 north. Of course, there are other ways to get to Baltimore from DC. You could hop on I-66 and head out toward West Virginia, come up north across western Maryland and on into central Pennsylvania, then drive east on the Pennsylvania turnpike before heading to Baltimore south on I-95 via Philadelphia. But why would you take the long route and waste all that time and fuel, when you could be there in less than an hour by taking the quickest route?

I want to look at  a 2019 Federal Circuit decision with this easy-vs-hard approach in mind. The case involves a VA psychologist named Eric Cerwonka who was removed from his position as a Clinical Psychologist at a VA medical center in Alexandria, La. Cerwonka appealed his removal to the MSPB and ultimately petitioned for review by the Federal Circuit.

Here’s what happened: The state of Louisiana took away Cerwonka’s license to practice for “clear ethical violations and a repeated failure to follow the rules and regulations binding upon [him] as a psychologist.” Once the VA learned Cerwonka’s license had been revoked, it proposed his removal based on one charge: failure to maintain a current license, in violation of 38 U.S.C. § 7402(f). The statute provides that a psychologist “may not be employed” by the VA if even one of his licenses is terminated for cause.

Cerwonka appealed to Louisiana over the license revocation. The state temporarily reinstated his license, as is typical procedure in appeals of license revocations. Cerwonka appealed his removal to the MSPB and argued that the subsequent reinstatement of his license meant the VA did not have cause to remove him because he once again had his license to practice.

The Board’s role in these cases – and thus the Federal Circuit’s jurisdiction in appeals and PFRs – is limited to reviewing Federal agency personnel actions and determining whether those actions were proper at the time they were made. See 5 C.F.R. § 1201.4(f) (defining the term “appeal” to the Board as “[a] request for review of an agency action”).

In the initial decision, the AJ concluded that the agency action under review — Cerwonka’s removal — was proper at the time it was made. Because Cerwonka’s Louisiana license had been revoked, for cause, at the time the agency removed him from employment, he did not have a license on the day the agency issued his removal, and Cerwonka did not present any evidence to refute this fact. The express terms of the statute compels removal and does not permit the VA to consider subsequent events, such as the reinstatement of a license at a later date. The Federal Circuit put it this way:

To the extent Cerwonka is arguing that the Board must consider subsequent events or that there should be a waiting period prior to removal to give an opportunity for an appeal, those arguments find no support in the statute, and we decline Cerwonka’s invitation to read exceptions into the express terms of 38 U.S.C. § 7402(f).

Which brings me to the point of this article. The agency could have drafted up a fancy proposed removal with perhaps multiple charges revealing Cerwonka’s misconduct and how the ethical violations he engaged in caused harm to the agency. It could have proven the facts, and the elements of each charge, by a preponderance of the evidence. And it could have justified the removal penalty by showing that because Cerwonka’s ethics were called into question, he was no longer trustworthy in his role and, accordingly, the agency lost confidence is his ability to do his job. Then if Cerwonka had appealed to the MSPB, the agency could have defended its charges. As we teach in FELTG training classes, doing that is not nearly as difficult as you might think.

However, in this case, the agency made a smart call. Rather than try to build a case over misconduct, it took an even easier and more efficient route by proposing removal for failure to maintain a current license:

  1. A license is required to have this job today;
  2. Your license is revoked as of today;
  3. No license = you’re fired.

Get where you want to be the easiest way. Take I-95 to Baltimore – or better yet take the MARC or Amtrak – rather than go the circuitous route. Make your life easier, when you can. Hopkins@FELTG.com

The Great Debate: Douglas in the Proposal or Douglas in the Decision?

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By Deborah Hopkins, January 14, 2020

When Bill Wiley and I teach MSPB Law Week (next held in Washington, DC March 9-13), we get a lot of great questions.

And occasionally, we get pushback from an attendee on some of our practice methods. One hot topic that always generates discussion – and the occasional challenge – is where to use the Douglas Factors analysis in a removal case.

We have written about this topic multiple times, because it’s a topic people always have questions about. So it’s a fitting discussion for the first newsletter of the year, and the decade.

At FELTG, our approach is to attach a Douglas Factors Worksheet to the proposal notice. We don’t just do that because we think we’re smart; we do that because the law requires us to give the employee the reasons relied upon for the proposed action, and attaching said worksheet ensures we comply with the law, every single time.

Here’s a direct quote from Douglas v. VA, 5 MSPR 280 (1981):

[A]ggravating factors on which the agency intends to rely for imposition of an enhanced penalty, such as a prior disciplinary record, should be included in the advance notice of charges so that the employee will have a fair opportunity to respond to those alleged factors …

That’s right, all the way back in 1981 when the ink was barely dry on the Civil Service Reform Act, the famous Douglas decision laid out 12 factors to consider in determining a penalty for misconduct, and the aggravating factors (those factors which work against the employee and weigh in favor of a harsher penalty) must be included in the proposal notice.

And who is responsible for the proposal notice? The Proposing Official (PO), of course, usually in conjunction with an advisor from L/ER or OGC. The proposal letter, along with any attachments, such as a Douglas Factors Worksheet, is what gives the employee the “advance notice” required by the Douglas decision.

Sometimes a person in our class wants to get into a debate about why we include all 12 factors in the proposal when Douglas only requires the employee to be given notice of the aggravating factors.

It is true that the legal minimum is to give the employee only the aggravating factors, but at FELTG this is one of the few times we go beyond the legal minimum. We don’t want to get into a fight about whether a particular factor is aggravating or mitigating, so we include them all upfront.

One of the examples we use in class to illustrate this principle is length of service. Let’s say the employee has worked for your agency for nine years. Is that length of service aggravating or mitigating? The PO might think it’s mitigating, but if the Deciding Official (DO) thinks it’s aggravating and we haven’t given the employee the “Length of Service” factor in the proposal notice, we run the risk of a due process violation. In addition, the Federal Circuit has highlighted that the employee must be put on notice of any penalty factors on which the Board is going to rely in making its decision. Ward v. USPS, No. 2010-3021 (Fed. Cir. 2011).

If the Proposal Letter contains only three or four aggravating factors, and the Deciding Official does a full Douglas analysis and decides there’s a fifth aggravating factor and does not provide notice to the employee, that DO has committed a due process violation because the employee has now been denied his legal right to fully defend himself. That due process violation is an automatic loser, regardless of the evidence on the merits.

The safest thing to do is to include all the Douglas factors in the proposal. Then we don’t have to make the call on whether a factor that could go either way is more aggravating or mitigating. Makes sense, doesn’t it?

Here’s the process:

  1. Employee is given the proposal notice, an attached Douglas Factors Worksheet, and any evidence relied upon.
  2. Employee responds to the Deciding Official based on the proposal notice and its attachments.
  3. Deciding Official makes a decision based only on the proposal, which includes the Douglas Factors worksheet, and the employee’s response.

As discussed above, the Douglas decision says the employee gets notice of the factors relied upon when the proposal is made – not the decision. So, if the DO agrees with the Douglas analysis in the proposal, there’s no need to add a word to the penalty assessment. Her decision letter will just say: “I have considered the penalty assessment factor analysis contained in the Proposal Letter, and I concur.” No new information, no due process violation.

If the DO disagrees is some way with the Douglas analysis in the proposal, or comes across new information that was not in the proposal or the employee’s response (let’s say she gets an email from a former coworker, discussing how the employee always cheated on his time cards when they worked together), the safest thing to do is to send the employee what we call a Ward letter, describe the new information that was considered, and give the employee a chance to respond to that new information.

If the case ends up on appeal before the MSPB, the Administrative Judge will certainly be more interested in what the DO has to say, than what the PO has to say. This does not mean the DO has to do a separate Douglas Factors analysis, though; it just means that the DO should be intimately familiar with the PO’s Douglas analysis and be prepared to answer any questions about the content therein, since she is signing off on the analysis and agreeing with it.

I hope you agree that in the Great Debate of 2020 (and 2019, 2018, 2017, 2016….all the way back to 1981), the clear winner is Douglas in the proposal notice. We’ve even helped agencies rewrite their discipline policies to reflect this legal requirement. Let us know if you want help with yours; we’d be happy to assist. Hopkins@FELTG.com

The Fed Who Farted on His Coworkers: The Case is Not Always What it Seems

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By Deborah Hopkins, December 11, 2019

Last month, FELTG published an article about federal employees with hygiene issues, and whether agencies could justify taking disciplinary action against employees who do things like intentionally defecate themselves, urinate in closets, and bring in unwelcome critters on their clothing or hair, thus infesting the office.

As you can imagine, a lot of people clicked on that article. One of the cases cited dealt with a food inspector in a chicken processing plant who intentionally passed gas on and around his coworkers (Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID)). I know a lot of people had a chuckle about that one, probably because it sounds horrid. (And it was horrid, among other things.) We used the case to illustrate the principle that employees can be disciplined for intentionally doing gross things in the workplace.

Some cases can teach us multiple lessons, and thanks to a FELTG reader who urged us to look deeper, I re-read the entire case – something I hadn’t done in a long time. I suggest you do the same and if you do, you will see this is not a case involving an employee playing the class clown, but it’s a case involving something much darker.

Yes, there is a lot about farting in the case – including multiple instances of the appellant passing gas and then asking coworkers and others if they could smell it. But the more serious issues in the case were incidents of unwelcome sexual conduct over an extended time period, against females he worked with and around. Some of the sexual references, suggestions, gestures, and requests are so egregious that I can’t print them here for fear of your agency firewalls blocking this email – not to mention the things he did with the chicken parts in an attempt to make his coworkers uncomfortable. In addition, the unwelcome sexual conduct was also directed at the private employees in the establishment that the appellant was charged with helping regulate, so it went beyond an internal agency issue. Despite multiple requests to stop, the appellant continued to subject his victims to this conduct. In the end, the AJ sustained the appellant’s 30-day suspension. This was 2006, and if you read the facts I think you’d agree that the agency could probably have justified a removal, even in a pre-#MeToo world.

Why do we bother spending so much time discussing an initial decision that doesn’t carry any precedential value? Because the principles are important, and the victims in this case are just as important as the victims in cases that carry precedential value. Our reader put it better than I ever could:

Often people laugh at those who say crude things to strangers on the street – dismissing them as silly because they won’t likely result in romance. I routinely cite this case to explain – saying overtly sexual things to someone is not meant to try and get them on a date. It’s meant to degrade the female with the overall purpose of elevating the male at her expense.

Why fart? Because it’s about POWER. Why would the same person who said explicit sexual things and ask for dates also raise his hip, [fart], ask “Didja smell that?” and laugh? Because he was engaged in multiple forms of bullying behavior. See the ID page 6 in particular…it’s just stunning (a great summation of a horrible thing).

This case is a perfect illustration that sexual harassment cases are not always about sexual desire. There are multiple motivators for unwelcome behavior in the workplace, and your agency should not put up with it. Hopkins@FELTG.com

Old Man Winter and the Requirement to Telework When it’s a Snow Day

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By Deborah Hopkins, December 11, 2019

‘Tis the season. Yes, the holidays are upon us and there are lights and ornaments and Christmas trees everywhere you look. But it’s also the season of snow, sleet, and ice in many parts of the country. And with that, it’s a good time to review OPM’s newish guidance on weather and safety leave, last updated in its Governmentwide Dismissal and Closure Procedures in November 2018 and based on the Administrative Leave Act of 2016.

FELTG readers understand the federal government’s vital business must continue without compromising the safety of its employees and the general public. And while some agencies can shut down for a day or two with no real harm, other agencies absolutely must stay operational no matter what’s happening outside.

Read the procedures for yourself here, but below are some highlights and reminders:

  • First, make sure you know your agency’s procedures about what is expected of you when operating status announcements are issued. Also, be sure you know where to look for operating status alerts. Is it the OPM website, your agency’s website, your local Federal Executive Board, your email, or somewhere else?
  • It’s also important to understand which flexibilities are available to you during specific agency operating procedures, such as unscheduled telework, unscheduled leave, leave without pay, an alternative day off, etc.
  • An agency may grant paid weather and safety leave when it is determined that employees cannot safely travel to or from, or safely perform work at their normal worksite, a telework site, or another approved location because of severe weather or another emergency situation. The cause could be weather, an earthquake, a terrorist attack, or any other situation that causes a danger to employees. There is no annual limit to paid weather and safety leave – it’s all up to Mother Nature.
  • Employees who are set up to telework are generally excluded from receiving weather and safety leave. Because this leave is explicitly granted when travel is dangerous, and employees who telework do not have to travel, they are expected to work as regularly scheduled. There are exceptions if, in the agency’s judgment, the telework-capable employee could not have reasonably anticipated the severe weather or other emergency condition and, therefore, did not take home needed equipment or work.But in general, telework-eligible employees are expected to anticipate telework days if the forecast makes weather-related leave likely
  • Employees on preapproved leave may not receive weather and safety leave even if their colleagues were granted the leave. That means if you used 40 hours of annual leave to escape the cold and go on a cruise, and that same week there is a snowstorm where you live and work and your colleagues get 16 hours of weather and safety leave because the roads are snowed in, you still have to use all 40 hours of annual leave. If you’re on leave, whether in or out of town, you don’t get the benefit of the snow days.

The new OPM Director also issued a memo with more highlights. Be safe out there! Hopkins@FELTG.com.