Hey, Deciding Officials: What Exactly Does Ex Parte Mean?

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By Deborah Hopkins, April 10, 2019

In federal sector employment law, we often use terms of art that carry very specific meaning. These terms may vary from a typical dictionary definition, or even from a black-letter law definition. Examples include discipline, due process, notice, response, representative, supervisor, and even employee.

A term of art that I want to highlight today is ex parte. This is a Latin term used in legal proceedings meaning “from one party.” The Legal Dictionary definition goes a little deeper: “An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney.”

That’s fine, but still not entirely helpful for the purposes of agency discipline and performance actions in the federal government. It needs some context. But before the context, let’s do a quick review of the required steps to taking a disciplinary or performance action:

  1. The Proposing Official (PO) gives the employee a proposal notice which includes the reasons for the proposed discipline (charges; Douglas factors) or performance removal (incidents of unacceptable performance during the PIP), and any relevant supporting documentation.
  2. The employee responds orally and/or in writing to the Deciding Official (DO), based on the information given in the proposal notice and any other information the employee thinks is relevant. The employee has the right to be represented in this response.
  3. The Deciding Official makes a decision based ONLY on what is contained in the proposal packet and what was contained in the employee’s response.

These are the due process steps required by law, for any Title 5 or Title 42 career employee who has satisfied the probationary period. So, where exactly does this ex parte concept fit in? Well, there are two primary types of ex parte violations that might arise:

  • An ex parte act occurs when an adjudicator considers evidence not available to one or more of the parties.
  • An ex parte discussion is one held by an adjudicator without allowing all of the parties to the controversy to be present.

The DO is a management official in the agency and as such makes decisions for the agency, she is also acting as the judge, because she is weighing the evidence to determine what penalty to dole out.

The employee legally is entitled to know all the reasons the PO relied upon, at the time he issues the proposal notice. So an ex parte violation occurs when, after the proposal is issued, the DO becomes aware of new information about the employee or the case, and the employee (and the representative, if he has one) is not made aware of the new information.

Let’s apply this scenario to the two types of ex parte violations above:

  • Ex parte act: A coworker of Ed Employee, whose removal has been proposed, sends an email to the DO, informing her that the Ed has been sending inappropriate text messages to her for months, even though she’s asked him to stop. The coworker attaches a PDF with copies of the purported text messages.
  • Ex parte discussion: The deputy director of the division sets up a meeting to talk with the DO about the risks of keeping Ed around, when there are unsubstantiated but potentially serious allegations of harassment against him. Ed is never told about this discussion.

Now you can see where the term ex parte comes in – only one side (the DO) gets the information, either intentionally or unintentionally, and Ed Employee does not have a chance to respond to it, because that new information was not in the proposal notice.

If such a violation occurs and the employee finds out about it, then it’s an automatic loser of a case for the agency – even if there is video evidence of the employee committing the charged act of misconduct, 15 sworn statements from credible witnesses, and a confession from the employee himself. It’s a procedural due process violation and that employee cannot be removed or otherwise disciplined.

One of the foundational ex parte cases involved a DOD employee who claimed credit for time not worked on six different days, and was removed for submitting false claims. After the proposal was issued, the Commanding Officer engaged in surveillance of the employee and provided this information, along with additional documents, to the DO – and the employee was not given any of this information. Due process violation, and we’re done; employee gets his job back. Sullivan v. Navy, 720 F.2d 1266 (Fed. Cir. 1983).

Additional cases show that ex parte information, whether it is relied upon or not, automatically violates due process. See Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011); Buchanan v. USPS, DA-0752-12-0008-I-1 (2013); Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007); Gray v. Department of Defense, 116 MSPR 461 (June 17, 2011). Be careful when doing legal research, though, because you will find cases where agencies got lucky and successfully argued that the new information was not considered, or did not influence the DO. See, e.g., Blank v. Army, 247 F.3d 1225 (Fed. Cir. 2001) (After receiving the employee’s response to the proposed termination, the DO conducted a further inquiry into the matter but there was no due process violation because the interviews only clarified and confirmed what was already in the record.).

You don’t want to hope to get lucky in one of these cases, though. Fortunately there’s a simple fix for an ex parte conundrum, and it will save your case. The DO can simply notify the employee of the new information and give the employee an opportunity to respond to it, before the DO makes a final decision. See Ward, above.

It may bump your timeline back a few days to allow the extra response time, but that’s waaaaaay better than losing a case on a due process violation and having to start from scratch. Hopkins@FELTG.com

 

 

How Far Back in Time Can I Go to Discipline an Employee?

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By Deborah Hopkins, March 26, 2019

Recently, we received a question from a reader about how far back in time an agency can go when it wants to discipline an employee.

We have a [hypothetical] case where we recently uncovered dozens of harassing comments (sexual) from an employee, spanning many years. How many years back can I reference specific examples in his proposed removal notice? The charge will be Conduct unbecoming a federal employee.

And here’s the FELTG response.

Thanks for the question. If you look at 5 USC § 7513 you’ll notice that in cases of adverse actions for misconduct there are no time limits for how far back an agency is allowed to reach, nor is there a requirement that an action be proposed within a particular time period. (Conversely, the law in performance cases under 5 USC § 4303 limits agencies to proposing removals for poor performance occurring during the one-year period prior to the proposal date.)

Because the law is silent on timeline, we have to look to the cases to see how the MSPB has viewed this issue. Excessive delays, especially those without explanation, can hurt the agency’s ability to successfully defend a disciplinary case and may result in the discipline being overturned. The longer an agency takes, the less convincing its stance that discipline was warranted. See Baldwin v. VA, 2008 MSPB 169 (if an agency’s delay in charging discipline is unreasonable, the charges may be dismissed). In these cases where there is not an explanation for the delay, the Board will consider how serious the agency actually considered the misconduct and may mitigate the penalty if it believes the delay undermines the argument for harm. Brown v. Treasury, 61 MSPR 484 (April 7, 1994). The Board will also consider whether the delay indicates an improper motivation to discipline the employee, such as reprisal for EEO or whistleblower activity. Id.

Sometimes agencies have good reason for delaying disciplinary action. The more detailed the explanation, the better for the agency; the discipline may be upheld even if a large amount of time has passed. The reasons for delay the Board has accepted (though not condoned) include management official waiting on receipt of an investigation report, and office restructuring and turnover that caused delays in all workplace actions. Cates v. USDA, 24 MSPR 468 (Nov. 20, 1984), aff’d, 776 F.2d 1065 (Fed. Cir. 1985). If criminal charges have been filed against an employee, this may also justify the agency choosing not to charge the conduct for some time. See Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (an eight-month delay after learning of the misconduct, which had occurred six years earlier, did not prevent the agency from disciplining the employee).

Not finding out about the conduct until recently is a darn good reason for not disciplining the employee until now; the key is not to wait too long, now that you know what happened.

An employee’s primary defense in one of these cases is an affirmative defense called laches. A party claiming laches must establish two elements: 1) the agency’s unreasonable delay in bringing a personnel action, and 2) resulting prejudice to the appellant. See Carr v. SSA, 185 F.3d 1318, (Fed. Cir. 1999). Prejudice to the appellant is shown if the appellant encounters increased and prejudicial difficulty in mounting a defense due to the delay, such as the loss of records, destruction of evidence, fading memories, and the unavailability of witnesses. Hoover v. Navy, 957 F.2d 861 (Fed. Cir. 1992).

While an employee may assert laches, you’ll want to look for evidence the employee actually remembers the misconduct which you’re charging. In Williams the appellant actually stipulated to the charge, which turned the light green for the agency to proceed with discipline. In Baldwin, the employee asserted he did not remember the conduct at issue, but other evidence including witness statements, indicated he did in fact know what the agency was talking about, and the Board said his assertions were “not…nonfrivilous.”

One other thing, on the “Conduct unbecoming a federal employee” charge: well done. It’s tempting in cases of egregious and harassing behavior, to charge an employee with Sexual Harassment. But that can be tough, because the bar to prove sexual harassment is quite high –  and if you don’t prove all the elements of sexual harassment, your discipline cannot stand even if you have 15 sworn witness statements, documentary evidence, a video of the harassing conduct, and a confession by the harasser.

At FELTG, we’d suggest using the charge listing out all the harassing behavior as specifications rather than running them all together in a list as part of the generic charge. It would look like this.

Charge: “Conduct unbecoming a federal employee”

Specification A: On February 5, 2019, you referred to Coworker X as “a hot piece of ass.”

Specification B: On November 16, 2018, you slapped Coworker X on the rear end in the break room at lunchtime and said, “I want some of this.”

Specification C: On October 1, 2018, you told Coworker Y that you wanted to get Coworker X alone in the stairwell and have your “way with her once and for all.”

Specification D: On August 5, 2018, you told Coworker X if she did not have sex with you, you would tell the Agency Director she was conducting personal business on government time.

Be specific. Use dates, times, the employee’s actual words, and his actions – even if it’s uncomfortable to see it in writing. Go back as far as you need to, without overdoing it. Resist the urge to “spank” the employee, as Bill Wiley puts it, by listing every single bad thing he has ever done. Instead, either focus on the most recent or most egregious incidents and list those. If you lose a couple of specifications, no problem, but if you list 20 and only two stand, the Board may decide to mitigate your penalty. If you list two and both stand, the Board doesn’t have the authority to mitigate unless your penalty was unreasonable. See, e.g., Payne v. USPS, 72 MSPR 646 (1996).

As we say at the end of each training day, good luck out there. Hopkins@FELTG.com

 

Cook-ing a Sick Employee

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By Deborah Hopkins, March 13, 2019

A few days ago I got a nice note from a FELTG customer, who had a question about an employee with excessive absences. Allow me to paraphrase a snippet that you might find interesting.

I recall learning in one of your courses that a supervisor who approves leave cannot then turn around and use the approved leave to support a disciplinary charge of excessive absence. Is this correct – and if so, are there any exceptions?

And here’s the answer: While there’s a fundamental principle that says an agency cannot discipline someone for being on approved leave, there are indeed exceptions. At FELTG, we like to highlight these kinds of exceptions, as they provide us with the coordinates of the outer boundaries of the law, for taking these kinds of actions.

The foundational case for excessive absence removals, one that every employment law practitioner should read, is Cook v. Army, 18 MSPR 610 (1984). This case sets out the elements required for an excessive absence removal, where an employee has been on approved leave for a period of time but the agency can no longer allow the absence to continue, and needs to remove the employee for not being able to work. Here they are:

  1. The employee was absent for reasons beyond her control;
    • For example, she was too sick to come in to work.
  2. The absences continued beyond a reasonable time;
    • For example, she was gone for 2 months out of 6 months after her FMLA ran out (see Gartner v. Army, 2007 MSPB 8; Savage v. Army, 2015 MSPB 51).
  3. The supervisor warned the employee that she would be removed if she did not report to work;
    • Send the employee a letter that tells her this.
  4. The agency showed that the position needed to be filled on a regular, full-time basis
    • Your Douglas analysis on the harm caused by the employee being gone is key here.

After you read Cook, take a look at Curtis v. USPS, 2009 MSPB 134, in which a Cook removal was upheld when, over a 21-month period, the employee was absent for 77 days (on approved LWOP) due to PTSD and depression. That works out to about one day per week. If this kind of intermittent attendance happens for a couple of weeks, you don’t have a burden – but this went on for nearly two years and the agency was able to show a hardship in the absences.

You’ll want to be careful here. You can rely on approved annual leave, sick leave, and LWOP but you cannot count FMLA excused absences (these are an entitlement) or AWOL (which is an act of misconduct) when determining what constitutes excessive absence. See McCauley v. DoI, 116 MSPR 484 (2011); Savage, supra.

If you can’t meet even one of the Cook elements listed above, you can’t Cook an employee. Let’s look at a couple of cases that demonstrate this point.

First up is Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016). Miles had been out on approved leave for quite some time (1,000 hours, if I remember correctly) and the agency needed him to come back to work, so they sent him a letter telling him so. The warning letter told the employee that if he did not return to work, he would be disciplined – but it did NOT state that absence on approved leave would warrant dismissal. There was the agency’s first problem. Secondly, Miles’ medical documentation said he could return to work in six months, which was a foreseeable end to the absence. The agency had already granted 1,000 hours of approved leave, and the workload was actually getting done in the office despite his absence. The result: MSPB decided the agency did not meet the Cook burden, and Miles got his job back.

Another case to check out where the agency lost an excessive absence removal, is New v. DVA, 99 MSPR 404 (2005). In this case the employee had 12% absences over a five-year period but the MSPB reversed his termination because the Cook criteria were not met – being absent 12% of the time is not excessive enough.

One other approach to consider with an employee who is too sick to work, rather than Cook-ing him, is doing a non-disciplinary Medical Inability to Perform removal. I know it’s not easy on the conscience to fire someone who is in a bad medical place and is too sick to come to work; after all, you’re not dealing with someone who is breaking the rules for fun. But the good news is, these removals almost always help the employee’s case in an application for disability retirement. For information on this, and a whole lot more, join FELTG for Absence, Leave Abuse & Medical Issues Week, March 25-29 in Washington, DC. Hopkins@FELTG.com

Too Many Goose Eggs at MSPB

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By Deborah Hopkins, March 5, 2019

I’m sure by now you have heard that for the first time in its history, we have zero Members at the Merit Systems Protection Board. Acting Chairman Mark Robbins’ term expired March 1, leaving the front office at 1615 M Street NW completely dark.

On his last day at MSPB, Robbins released MSPB’s Annual Report for FY 2018. So while we don’t have a Board (and who knows how long that will last since nobody with decision-making authority on Capitol Hill seems worried about it), we do have some new information to share.

Let’s take a look at some of the impressive numbers out by MSPB last year:

Are you seeing a trend here? That’s a whole lot of goose eggs. (And yes, the term “impressive numbers” above was meant to be sarcastic.) Without a quorum, a huge chunk of the Board’s work cannot get done. In a normal year, those subtotals are usually upwards of 1,000, including approximately 800 Petitions for Review.

I share these numbers not to slam Robbins or any of the dedicated employees at MSPB, because none of this is their fault. In fact, we know they have worked hard every day, despite the lack of quorum. The responsibility for this lack of performance falls directly on the Administration and the Congress, which for over two years have refused to put Board Members in place. This inaction has left the MSPB with over 2,000 cases, sitting in a hallway in cardboard boxes, waiting to be adjudicated. To add insult to injury, all of Robbins’ work on those 2,000 cases became obsolete last week and cannot be used by future Board members.

If I come across as upset, it’s because I am. If you’re tired of reading about this, then maybe you shouldn’t finish this article because I have more. There is NO REASON things at MSPB have to be this way. And yet it’s continued, for 786 days. I have contacted everyone I know – and don’t know – on the Hill and in the White House to try to get the message across that while maybe this doesn’t play on TV as well as national security issues, hot-button committee hearings, or North Korean summits, real people are hurting every day, more people get hurt every day, and the fix is SO EASY. Others have joined in this plea, even testifying before congressional committees and pleading with Congress and the White House to do something. And nothing has changed.

This is one of those rare areas where the inaction hurts both sides involved – the agency and the employee. There now are up to 2,000 people waiting for years to find out if they will get their jobs back. There are agencies on the hook for potential back pay in these cases. I’m not a math scholar but I know that three years (and counting) of back pay for a GS-14 in Washington, DC, plus attorney fees, can easily exceed half a million dollars. And that’s just one case out of 2,000.

But all is not lost. There is some light in all this darkness. As of right now the MSPB is still open and operating, aside from the front office. MSPB’s General Counsel, Tristan Leavitt, is now the Acting Chief Executive and Administrative Officer, so fortunately the career staff in the headquarters, regional offices, and field offices are still at work.

Let’s look at some more numbers from the report that aren’t 0s. In FY 2018, the Administrative Judges issued initial decisions (IDs) on 5,134 appeals. Here are a few significant numbers from within these IDs:

2,267: IDs on disciplinary actions

142:     IDs on performance-based actions

416:     IDs on probationary removals

517:     IDs on Individual Right of Action (IRA) appeals [usually whistleblower reprisal appeals]

325:     IDs on USERRA and VEOA appeals

1,058:  Cases settled before hearing

83.2:    Percentage of agency actions upheld

14:       Percentage of agency actions overturned or requiring corrective action

3,077:  Cases dismissed

The agency with the most cases adjudicated was the VA (1,080), and the agency with the fewest cases adjudicated (excluding those that have no appeals pending) was actually a 13-way tie at one appeal each. You can read the full report to see which agencies those were.

At FELTG, we’ll keep you posted on what’s next. And if you want to hear us rant about these injustices in person – while also teaching the law – join us at an upcoming MSPB Law Week in Washington, DC or Dallas, TX. Hopkins@FELTG.com

 

 

Why the Discipline Process Matters More Than Ever

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By Deborah Hopkins, February 19, 2019

If you’ve been in the federal employment law arena for more than five minutes, or if you’ve read this newsletter in the recent past, you know that we (the People) have been without a quorum at MSPB for more than two years now. In fact, next Friday marks the end of Mark Robbins’ tenure as the sole remaining Board member, at which time the MSPB will have ZERO members for the first time in its 40-year history.

Last week, the Senate Committee on Homeland Security and Governmental Affairs voted to advance two MSPB nominees (Dennis Dean Kirk and Julia Akins Clark) to the full Senate for a confirmation vote – but the vote won’t be held until a third nominee is named (the remaining nominee Andrew Maunz withdrew his name last week), and clears committee to join them for a Senate vote. In case you didn’t know this: It’s not a legal requirement to confirm all the members together. However, the Committee Chairman, Senator Ron Johnson (R-WI) indicated that would be the process used. (Read the full detail of the committee meeting here.)

So, what will happen next? It’s anybody’s guess. Will the MSPB have to shut down until they get some leadership — or will the General Counsel run the place in the interim? Arguments can be made for either option.

As of today, the Administrative Judges are still holding hearings and issuing decisions on agency removal actions, and your cases still need to be as tight as ever to ensure a favorable outcome. Because if anything is appealed from a judge’s decision, it goes into a stack of 2,000+ cases that are sitting in boxes in the hallways, waiting for Board members to read them and issue opinions. Wouldn’t you rather NOT have to appeal a judge’s decision? Me too.

So what’s the best way to have a judge agree with your choice of discipline? Follow the law. In order to discipline a federal employee for misconduct, there are five legally required elements:

  1. A reasonable rule exists
  2. The employee knew the rule
  3. A preponderance of the evidence (more likely than not) that the employee broke the rule
  4. Choose a defensible penalty
  5. Provide due process

If you miss even one element, you lose your entire case. Let’s look the elements in turn and see how easy they are to check off — and how easy they are to screw up, if you’re not paying attention.

1. A reasonable rule exists. You cannot discipline an employee for breaking a rule that does not exist. The very definition of misconduct is a violation of a rule. So, if you want to reprimand, suspend, or remove someone, you can only do it if they have indeed broken a rule. Also note: the rule must be related to the job; you cannot enforce rules that have nothing to do with the workplace. For example, you can set a rule that an employee to always fill up a GOV’s gas tank when it gets below ¼ tank, but you cannot require that rule for the employee when driving his personal vehicle.

Case example: Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009)

2. The employee knew the rule. An agency cannot enforce secret rules against employees – that would violate the fairness federal employees are guaranteed. If you have a rule that employees wear closed-toed shoes in the office but you’ve never bothered to tell them the rule, you cannot discipline them for wearing open-toed shoes. There are some “commonsense” rules where notice is a given (for example, you don’t need a rule that says employees are not permitted to have a campfire in the breakroom), but when in doubt, TELL the employee the rule. Don’t assume the employee knows it.

Case example for further reading: Tudor v. Treasury, 639 F.3d 1362 (Fed. Cir. 2011)

3. A preponderance of the evidence (more likely than not) that the employee broke the rule – unless you’re at the VA in which case you only have a substantial evidence requirement, that the employee might have broken the rule. Preponderant evidence is not a huge burden, but you do have to have some evidence. Whether you saw the misconduct happen, or witnesses saw it, or you have video evidence or a confession, you need something to show the employee broke the rule. This should not be difficult. The employee has a lunch break from 12-12:30 and you, the supervisor, see the employee come back to his desk with a Chipotle bag at 1:10 – that’s evidence. Don’t make this more difficult than it needs to be. But please have evidence.

Case example: Mott v. DVA, No. 2017-1222 (Fed. Cir. 2018)

4. Choose a defensible penalty. Unless you’re at the VA, you have to justify why you selected the penalty (suspension or removal) you did. This is done by looking at the Douglasfactors and explaining the effect of the misconduct. We consider things such as the harm caused or the potential for harm, the person’s job level and type, any notoriety or publicity, any past discipline the employee has received, what we’ve done with comparators who have engaged in the same type of misconduct, and a number of other factors. The penalty must be appropriate for the level or instance of misconduct the employee engaged in. You may not be able to justify a first-offense removal for a person who got to work five minutes late to a job where being on time doesn’t matter because there was no harm. However, if your employee is an ER surgeon and someone died in those five minutes, you have a completely different scenario and removal might very well be justified. Let the Douglas factors be your guide, and keep in mind, the MSPB is only going to mitigate (change to something less) your penalty if it exceeds the bounds of reasonableness.

Case examples for further reading: Jacoby v. USPS, 85 MSPR 554 (2000); Webster v. Army, 911 F.2d 679 (Fed. Cir. 1990); Mott, supra

5. Provide due process. Federal employees who have successfully completed their probationary periods are entitled to due process in disciplinary situations. Due process has three steps:

  1. Notice of the charged misconduct and the proposed penalty (given by a Proposing Official);
  2. An opportunity to respond to the charges, and to be represented; and
  3. An impartial decision based on the information given in the notice and the response (given by a Deciding Official).

If you miss a step, you lose your case EVEN IF you have 50 witnesses and video evidence of the employee stealing the laptop, punching a customer, sleeping on the job, whatever. A due process violation, sometimes referred to as “losing on a technicality,” is literally a loser every single time. While there are cases where agencies don’t give the employee notice of the charges, or don’t notify the employee of her right to respond, we see most cases lost under the third prong — where the deciding official relies on some bit of information that the employee is not privy to. This is why it is crucial to work with your Deciding Officials on their proper role and encourage them not to go looking for extra information about the employee.

Case example for further reading: Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007).

I hope this helps. If you want more – and trust me, you definitely want more – then come to our MSPB Law Week in Washington, DC or Dallas, TX, so we can show you how to win your case in front of the judge, and quickly get back to the business of fulfilling your agency’s mission. Hopkins@FELTG.com

Two MSPB Nominees Voted Out of Committee, but Uncertainty Still Looms

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By Deborah Hopkins, February 13, 2019

Committee meeting room, pre-vote

Here’s a quick update from today’s business meeting for the Senate Committee on Homeland Security and Governmental Affairs, which held a scheduled vote on the nominees to the Merit Systems Protection Board (MSPB). I was there, and I am still saying “wow.”

Last night, the Senate was informed that Andrew Maunz, the nominee for Vice Chairman, had withdrawn his nomination for unspecified reasons. This morning, the committee, which is made up of 8 Republicans and 6 Democrats, considered the remaining nominees: Dennis Dean Kirk (R) for Chairman, and Julia Akins Clark (D) for Member. When Committee Chairman Ron Johnson (R – WI) opened the floor for discussion, the only person to speak was Sen. Rand Paul (R – KY).

And boy, did Sen. Paul have a lot to say. He voiced the opinion that the MSPB is failing as an agency, saying that it has become a job protector for federal employees instead of a protector of the merit system. Citing facts from a couple of unnamed cases, he claimed that the MSPB thinks child pornographers and VA leadership who allow veterans to die in the hallways belong as federal employees. He said this type of behavior from employees would never be tolerated in the private sector, and if the government can’t fire people for such egregious acts, then the MSPB should cease to exist and Congress should go back to the drawing board to create an oversight agency that actually works.

Here’s the problem: Sen. Paul (along with countless others) doesn’t understand the system. He didn’t give citations for the cases he mentioned, but I believe I know the cases to which he was referring. And in those cases, the MSPB didn’t put employees back to work because they necessarily wanted to; the MSPB was following the law. In the child pornography case, the agency failed to establish a nexus (a connection) between the employee’s off-duty conduct and his government job. The law requires a nexus to exist. (By the way, come to MSPB Law Week and we will show you how to find nexus in a case like that; the agency did not, but it was most likely doable.) The MSPB never said, “Child pornographers are good people and should be working for every federal agency.” The MSPB found that the agency failed to establish nexus, and nexus is required by law.

Regarding the VA cases Sen. Paul mentioned, I believe those cases dealt with senior leadership who were removed, and the Board members (who are no longer there) mitigated the penalties based on Board leadership’s at-the-time view on comparator employees, which has since been walked back in pieces.

Can someone please tell Sen. Paul – and the rest of America – that the system works IF the agency handles the case correctly? Citing the few cases where terrible employees got their jobs back because of procedural defects, while ignoring the 7,000+ removals that stuck in the last FY, does a disservice to the country. I had a hard time sitting still while he was speaking. I wanted to jump up and tell him that he had it all wrong, but I didn’t think it would be a wise move to get kicked out of a Senate Committee meeting.

I digress (for now).

On to the nominees. Both Kirk and Clark were voted out of committee. Everyone on the committee, Rebublicans and Democrats, voted “yes” to send them to the full Senate for a vote, except for Senator Paul.

But – don’t get your hopes up on a quorum just yet. After the “ayes” had it, Chairman Johnson said it’s typical that all nominees get voted on together in the full Senate, so now Kirk and Clark will be waiting for a third nominee to be named and voted out of committee before they can be confirmed.

Hold up just a minute, Mr. Chairman. The MSPB members intentionally have staggered terms and to my knowledge, in the 40-plus years since the Civil Service Reform Act created the current MSPB, we have NEVER had all three nominees confirmed together (except, maybe the very first time members were appointed). Occasionally two go together, yes – but not three.

Whether this is intentional or a misunderstanding about how this part of the system works, I don’t know. But are you ready for the real heartbreak?

If Kirk and Clark were to get confirmed by the full Senate before a third nominee is named, they could vote on dozens or (if they put in some really long hours) even hundreds of the 2,000 Petitions for Review (PFRs) Acting Chairman Mark Robbins has voted on, before his term expires on February 28.

But this is not going to happen. So, all of Mr. Robbins’ work on the PFRs since January 8, 2017, will go to waste, as the Committee chose NOT to vote on an amendment that would have allowed for the holdover term for a sitting Board Member to be extended beyond the one year currently permitted under 5 USC § 1202.

To recap: Robbins’ term expires February 28. Nominees Kirk and Clark won’t be confirmed until the full Senate votes. And the full senate won’t vote until a third nominee is named and the committee votes that person to the Senate floor as well. And we don’t have a third nominee yet. For what it’s worth, Chairman Johnson said he is working with the White House to come up with a nominee soon.

Also heard on the Hill this morning: As long as there’s not a shutdown this weekend, the Senate will be in recess next week. So, push the timeline for the vote back until the final week of February, at the very soonest, only if there’s a third person nominated and voted out of committee before then. If all that doesn’t happen before March 1, the Board may have to shut down entirely until the Senate votes on the nominees.

While this may be considered slight progress, it’s not the kind of progress the civil service needs. We’ll keep you posted on what happens next. Hopkins@FELTG.com

Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?

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By Deborah Hopkins, February 13, 2019

We know intentional marijuana use, even for medicinal purposes, is a no-no for federal employees (see my recent article here). But what happens to a federal employee who is fired for marijuana use after failing a drug test, when he challenges the removal by stating the intake of marijuana was accidental?

The Federal Circuit recently looked at that very issue in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). Hansen, an IT Specialist at the United States Customs and Border Protection, was subjected to a random drug test, and the results showed marijuana in his system. The agency proposed his removal for “positive test for illegal drug use— marijuana.” Regarding nexus, a portion of the proposal read “[t]he use of an illegal drug, such as marijuana, stands in direct conflict with the principles of law enforcement, the mission of the Agency, and the public’s trust.”

In his response to the proposal, Hansen said he had inadvertently consumed drug-laced brownies at a barbeque he had attended, which was hosted by someone he did not know. Hansen revealed that he wasn’t initially aware the brownies had marijuana in them, and though he felt no immediate effects from the brownies, later that evening he felt tired and suffered an upset stomach. He attributed the upset stomach to a bratwurst he had consumed at the party, and as a result he called in sick the day after the barbecue.

The Deciding Official gave Hansen’s response “significant consideration” but ultimately determined it was not convincing. In her explanation, the DO said the employee did not present “any evidence from either the person who purportedly brought the brownies, or from the host” or even “a statement from anyone else who either knew that the brownies contained marijuana or who did not know, but felt the effect of the drug.” The DO subsequently removed Hansen.

Hansen appealed his removal to the MSPB, where it was upheld. The Board said that inadvertent marijuana ingestion would be relevant to its decision, if shown, but it determined that Hansen, not the government, bore the “burden of showing such inadvertent ingestion” and he did not show any evidence to convince the Board. The decision from the Board also said Hansen relied on “thirdhand hearsay” to support his story about marijuana in the brownies, and had not supplied “statements from the hosts, other attendees who observed the presence of the brownies, or the individuals who brought the brownies,” or even any evidence confirming that he ate brownies at all.

The Board further noted that though Mr. Hansen claimed fatigue and upset stomach after consuming the brownies, he attributed those ailments to marijuana consumption only after the deciding official expressed skepticism regarding his lack of symptoms.

Hansen also argued that the removal should be reversed because the agency could not show his “intent” to use marijuana, but the Federal Circuit correctly said the charge as written did not have an intent element. The agency was not required to show intent; it was only required to show by preponderant evidence that the employee tested positive for marijuana. This highlights a fundamental principle we cover in MSPB Law Week and Developing and Defending Discipline: Words matter when drafting a disciplinary charge. Had the agency charged “intentional use of marijuana,” then Hansen might very well be back at work today.

Hansen also argued that the agency violated his Fourth Amendment right against unlawful search and seizure by conducting the drug test because the government failed to show that he occupied a testing designated position, This argument failed because the agency’s “Drug-Free Federal Workplace Program” handbook listed employees with “access to the Customs Law Enforcement Automated Systems” as testing designated, and IT Specialists fall under that designation. The Federal Circuit upheld the removal.

If you’re interested, you can read the full decision here. In the meantime, stay away from the brownies. Hopkins@FELTG.com

Performance Requirements and PIPs, Post-Shutdown

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By Deborah Hopkins, February 13, 2019

The longest shutdown in history is over, but there is a threat of yet another shutdown coming up in just a couple of days. At FELTG, we’ve gotten a LOT of questions about the shutdown, including a number on shutdown-related employee performance issues. So I think it makes sense to address some of the questions, and answers that have arisen over the last 7 weeks or so.

Do you need to alter performance requirements after a shutdown?

Yes, No, Maybe.

Yes. Of course, you can’t hold accountable any work that was not done during the shutdown; you essentially have to ignore the work that was not done and be reasonable in rating the employee’s performance after she gets back to work. For example, let’s say to be fully successful, one of the critical elements of the employee’s performance plan requires the employee to return all customer voicemails within 24 hours. Well, if the voicemails had been piling up for 35 days while the government was shut down, it’s completely unreasonable to require the employee to return every single call within 24 hours.

No. If the employee’s performance plan is broken down into daily requirements that haven’t been impacted by the shutdown, and the employee has not come back to a huge backlog, there may not be any need to alter the performance requirements. If an employee on the custodial staff is required to clean 10 offices each day, and those 10 offices have been empty for the last 35 days, you wouldn’t need to alter the performance requirement.

Maybe. Let’s use the example of custodial staff again, and those same 10 offices the employee is required to clean every day. If those offices had been used by essential personnel during the shutdown and after 35 days of not being cleaned they are atrocious and take 10 times as long to clean to the appropriate standard, then you may have to temporarily modify the performance requirements until things are back to normal.

The best idea is to communicate with your employees and set reasonable expectations for performance during this “dig out” period. When the backlog is cleared, let the employee know it’s back to business as usual. Oh, and follow up the discussion with an email as documentation of what you discussed.

What do you do if an employee’s Performance Improvement Plan was scheduled to start during the shutdown?

Oh, what a fun one. Remember, to put an employee on a PIP, you only need to be able to articulate a reason for doing so – that the employee fell below acceptable on at least one critical element of his performance plan. Therefore, you can put an employee on a PIP post-shutdown based on his performance leading up to December 21. If you had planned to launch a PIP January 2, but couldn’t because the employee was furloughed, then you can start it any time you want, as long as you can articulate the reason for the deficient performance.

The only time you might want to re-think it is if your poor performing employee came back post-shutdown and has been a rock star for the last couple of weeks, outperforming everybody.

What do you do if an employee’s Performance Improvement Plan was scheduled to end during the shutdown?

Unless there was only a day or two remaining in the PIP, you must extend the PIP by however many days were left in the PIP when the shutdown occurred, and you must ignore the period the government was shut down in the overall assessment of performance productivity. You will also need to look closely at the PIP requirements and make adjustments as necessary, to reflect the legal requirement that you allow the employee an opportunity to demonstrate acceptable performance.

For example, let’s say the employee had 15 days left on the PIP when the agency shut down. Now, you’re picking up with the remaining 15 days on the 30-day PIP and perhaps setting new deadlines and goals for the weekly assignments you’ve laid out. (If you haven’t done this, come to MSPB Law Week to learn why it’s so important). You can’t change or alter a performance standard, but you can clarify it. If the draft grant proposal was supposed to be completed by day 25 of the PIP, you’ll let the employee know he has 10 days to finish that proposal. Be specific, be clear, to let the employee know what exactly is expected.

If the PIP was all but over, and was supposed to end December 24 (Merry Christmas!), you probably have enough evidence to show whether or not the employee was successful. The shortest PIP on record, that the MSPB held was a reasonable amount of time to demonstrate performance, was 17 days. See Bare v. DHHS, 30 MSPR 684 (1986). 

Can you cancel an employee’s already approved leave once the shutdown ends due to performance workloads that now exist because of the shutdown?

Absolutely – you can always cancel previously-approved leave if you have a legitimate, business-based reason for doing so – as OPM puts it, for “project related deadlines or the workload of the agency.” And a 35-day backlog with all the related issues is most certainly related to the agency’s mission. So if you have to do it, go ahead and do it.

At FELTG we are keeping our fingers crossed that there is NOT another shutdown this weekend. But we’ll be here, either way. Hopkins@FELTG.com

 

The State of Civil Service: January 2019

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By Deborah Hopkins, January 23, 2019

We’re just over three weeks into the new year and it’s safe to say, the state of the civil service hasn’t seen darker days in quite some time – if ever. There has been a lot happening (and a lot NOT happening, unfortunately), and with the ever-shortened news cycles, there’s a chance that  blink-and-you-might-miss-it information may have passed you by.

Let’s take a look at where we are, and where we might be going, as it relates to our loyal FELTG readers.

The Longest Shutdown Ever

Supposedly only 25 percent of the federal government is shut down, but it sure feels like a lot more, doesn’t it? If you’re furloughed and about to miss your second paycheck, or if you’ve been working for a month without getting paid, you feel the pain more each day. Contractors are getting crushed from the lack of business, as are restaurants and other business owners who rely on federal employees to keep afloat. And those of you whose agencies have been operational have also had to deal with some headaches, including rumors of travel restrictions that end up being just rumors, cancelled conferences and events, and plummeting morale among federal employees.

It’s ugly and I hope it ends soon. I know more than a few federal employees who are done waiting on this to be resolved and have decided to seek employment in the private sector. That’s a shame because these are wonderful, brilliant, amazing people whose departures will be a huge loss to the government.

Congress

Despite the lack of meaningful movement on the aforementioned shutdown, the House recently passed a bill (originally introduced in 2017) that addresses discrimination and sexual harassment in federal agencies. The Federal Antidiscrimination Act amends the NO FEAR Act and clarifies that the role of agency EEO offices shall operate independently of HR and OGC. OK that’s fine, no big deal, right?

Just wait. Further on down, you’ll see that the law would require the EEOC to inform the U.S. Office of Special Counsel (OSC) of all findings of discrimination or retaliation in its appeals. OSC will then review the case for the purposes of seeking disciplinary action against the employee who engaged in discrimination or reprisal. From my read, it looks like agencies will not be allowed to discipline that employee once OSC gets involved, effectively leaving the decision on how to discipline up to OSC and not the agency.

This bill moves on to the Senate next, so we’ll see what those 100 folks on the hill have to say about it all.

MSPB

January 7 marked two full years since MSPB had a quorum. That’s two years of Petitions for Review stacking up, day after day, added to the pile that can’t be issued as Opinions & Orders because the sole member, Acting Chairman Mark Robbins, needs at least one other member to make a quorum and issue decisions. Our estimates are somewhere between 1,600 and 1,700 PFRs waiting to be addressed.

You might remember, late last November the Senate Committee had a scheduled vote on the nominees the President had put forward. Senator Rand Paul refused to cast the vote that would have advanced them out of the committee and to the full Senate for a vote.

Well, if the news couldn’t be any stranger, last week the President re-nominated the very same three people to be Board members: Dennis Dean Kirk, Andrew Maunz, and Julia Akins Clark. At FELTG, we were scratching our heads and wondering what the heck was going on because Senator Paul is still on the committee. While the committee is made up of 8 Republicans and 7 Democrats, a “no” vote by Senator Paul would result in a 7-7 tie and the nominees would not be advanced. If he decides to abstain, then the Republicans would have a one-vote advantage and the nominees would be advanced to the full Senate for a vote, where the Republicans have a 53-47 advantage. Or, maybe a Democrat or two on the committee plans to vote “yea” as was almost always the case in these types of bi-partisan boards and commissions until very recently.

Who knows? We can’t predict the future but we WILL keep you posted.

EEOC

Amid all the shutdown talk, did you happen to see that EEOC no longer has a quorum of Commissioners? That’s right, out of a five-member commission only two remain because Commissioner Chai Feldblum was not re-confirmed. (Look elsewhere in this newsletter for details about that.) Last week the President re-nominated one person, Janet Dhillon, to serve as Commissioner but as of this writing, no confirmation hearing was scheduled.

The good(ish) news for you is that the lack of quorum at EEOC doesn’t have much impact at all on federal employees. The Office of Federal Operations, which is responsible for issuing decisions on EEOC Appeals, is still functional and Administrative Judges are still issuing decisions. Well, except not really … they’re all furloughed for now. So, if the government re-opens, EEOC will be mostly business as usual, besides, of course, the calendar nightmare of a month’s worth of missed hearings, pre-hearing conferences, etc.

FLRA

Chairman Colleen Duffy Kiko, who heads up the Federal Labor Relations Authority, recently decertified the employee union at FLRA. She reasoned that by having a union at FLRA, the agency was actually violating the labor relations statute it was created to enforce; because employees at FLRA work with federal labor relations law they should be excluded from being in a union, per the language of the statute. How about that? Our friends over at FedSmith have written about this in detail, if you’re interested in the nitty gritty.

OPM

The federal government’s central HR office, while itself partially impacted by the furlough, has offered some guidance on this (ridiculous) shutdown, including topics such as what happens to leave accrual for furloughed employees (spoiler alert: it stops) and how healthcare and retirement benefits are impacted.

Late in December, you may have seen that OPM posted template letters for federal employees impacted by the shutdown – letters that requested landlords allow tenants to barter services such as painting and landscaping in exchange for reduced rent. As you can imagine, it did not go over well, and OPM quickly withdrew the letters, stating that they were posted by mistake.

OSC

The U.S. Office of Special Counsel (not to be confused with Special Counsel Robert Mueller’s team) is closed during the shutdown. Its website has still been accepting online complaints but a disclaimer states that the complaints likely won’t be reviewed until after OSC reopens. So, whistleblowers can file but they won’t see an investigation until this all ends.

Unions

The federal unions, including NTEU, NATCA, and AFGE, are keeping busy with a lot to challenge, most specifically the fact that nearly half a million federal employees have been required to work without pay for almost a month. I saw an argument in a district court filing that said the requirement to work without pay was akin to involuntary servitude, which is a violation of the Thirteenth Amendment’s prohibition against slavery. NTEU is also challenging the recalls to work that were more recently issued to more than 40,000 IRS employees who were not considered essential in December but are being required to work without pay now.

So, there you have it. People usually start a new year with excitement and hope, but this one is sure giving us all some challenges.

At FELTG, we are doing our best to stay positive and stay available to answer your questions, provide you with content, and even do some training while we wait for the world to right itself again.

Take care, my friends. Hopkins@FELTG.com

Irony and the EEOC: You Have to Read It to Believe It

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By Deborah Hopkins, January 23, 2019

The Equal Employment Opportunity Commission is now without a quorum. That’s right. As if no quorum at MSPB for more than two years wasn’t enough, and a multi-week government shutdown didn’t do it for you, EEOC is now helmed by only two out of a possible five Commissioners. Who’s left over there? Victoria Lipnic, a Republican, is the acting chair. Charlotte Burrows, a Democrat, is the only other remaining Commissioner.

But Deb, I thought the President reappointed Commissioner Chai Feldblum a year ago, to serve a third term?

Yes, In fact, he did. However, a few days ago, Commissioner Feldblum’s tenure at the EEOC ended. The reason? Senator Mike Lee (R-UT), has stated that he does not agree with Commissioner Feldblum’s positions on marriage and LGBTQ rights.

Nominations to EEOC are generally passed as a group by unanimous bipartisan consent, but Senator Lee made clear he would not vote yes to the confirmation.

The only other way Commissioner Feldblum could have been confirmed, then, would have been for Senate Majority leader Mitch McConnell (R-KY), to call for a full Senate vote – something he refused to do. The result? The nomination died.

Let me be clear: Senator Lee did not ever directly mention Commissioner Feldblum’s sexual orientation in his comments but rather focused his criticism on her views about same-sex marriage. But it is widely known that Commissioner Feldblum was the first open lesbian on the Commission, and spent a large part of her tenure advocating for workplace protections for LGBTQ individuals inside and outside the federal government.

While she served under the Obama administration, Commissioner Feldblum was involved in two groundbreaking cases: Macy v. Attorney General, EEOC Appeal No. 0120120821 (2012), which stated that a federal employee’s transgender status is protected under Title VII’s prohibition against sex discrimination; and Baldwin v. FAA, EEOC Appeal No. 0120133080 (2015), which stated that a federal employee’s sexual orientation is protected under Title VII. A number of federal district and appeals courts have ruled in the same manner for employees of private companies, though there is currently a circuit split on the issue.

Ironic, isn’t it, that more 2 million federal employees and countless private employees now have protections under the law for LGBTQ status – due in large part to Commissioner Feldblum’s tireless work – and now she has been essentially fired for the very same status she fought so hard to protect. And as a political appointee, she has no rights to appeal.

Commissioner Feldblum was also an advocate for disability rights, and co-chaired a bipartisan task force on sexual harassment at the EEOC. She also spoke at numerous EXCEL conferences and even worked with FELTG on a webinar discussing transgender discrimination and harassment. I can say without a doubt in my mind, that her voice on the Commission will be greatly missed.

So what now? Not only is Commissioner Feldblum out of a job (though not for long, I’d guess), EEOC now lacks a quorum. While AJ decisions are still being issued and federal sector EEO appeals are still able to be processed (after the shutdown, that is), some of the Commission’s work will be halted until there are at least three Commissioners seated. The EEOC may not be able to bring certain cases that would be costly, would have a broad reach or affect large numbers of people, or would consider a new question of the law or its interpretation. Other work may be delegated to the regional offices.

Though the impact of a lack of quorum is less significant on the day-to-day operations of federal workers, it’s still a source of frustration and not the way the agency was ever intended to operate.

What is happening in the world of federal employment law – and will the madness ever end? Hopkins@FELTG.com