Ask FELTG: Does a Local CBA Trump an Agency’s Nationwide Policy?

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June 14, 2023

Here’s more context from the loyal FELTG reader who posed the question:

Let’s say, hypothetically, management at a regional outpost agrees to terms regarding office workspace with their local union, and then enters into a CBA articulating those provisions. Later, the national agency management team creates a policy on office workspace that is inconsistent with the local CBA.

Which policy controls at the outpost? Is it the local policy as stipulated in the CBA or the national policy? Can the actions of a manager at the local level essentially prevent the agency’s leaders from having a universal policy?

Here’s FELTG’s answer:

The union agreement always trumps an agency’s new policies with two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (DC Cir, 2009).
  2. The new policy is implementing a new law. (The incontrovertible law part of the new policy is effective right away. However, the agency still must bargain I&I and any flexible parts of the law).

So, let’s say local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

Here’s an example we like to discuss during FLRA Law Week (next held September 18-22). Years ago, the Secretary of HHS declared through a new policy that the work places within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Very reasonable reason for a new policy, we tend to think.

However, it conflicted with several local CBAs, including at NIH, which had old provisions allowing designated smoking areas.

There was a huge welcome sign as you entered the main campus of an HHS sub-agency that states it is a “totally smoke-free environment.”

Several times, we had to plead with FELTG Past President Bill Wiley to not add a comment to the sign, stating “unless you’re in certain bargaining units.”

Have a question, Ask FELTG.

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

And Now a Word With … OFO Director Carlton Hadden

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It can be quite easily argued that Carlton Hadden is the face of the Equal Employment Opportunity Commission’s Federal business. He recently took time to answer our questions. Learn more.

Read more

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

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By Deborah J. Hopkins, May 22, 2023

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

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

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

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

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

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

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

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

Don’t Become a Meme: Know What Is a Protected EEO Activity

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By Dan Gephart, May 16, 2023

Record scratch.

Freeze frame.

“Yep, that’s me. You’re probably wondering how I got here.”

I often think of this movie-cliche-turned-meme when I read or hear about EEO reprisal. I picture a supervisor, sitting in an EEOC-ordered training, explaining how an employee made claims about discrimination that had no basis, and were eventually dismissed. However, in a huff of frustration or anger, that supervisor said or did something rash that cost his agency and landed him in the training.

The EEOC defines reprisal, aka retaliation, as “treating employees badly because they complained about discrimination on the job, filed a discrimination charge or complaint, or participated in any manner in an employment discrimination proceeding.”

It’s human nature. A knee-jerk reaction. Someone has accused you either directly or indirectly of a violation of the law and, in the moment, you say or do something that is influenced by your emotional state. It’s no wonder reprisal claims make up such a big bulk of EEOC’s case load. And what we’ve seen trip up many supervisors is that you don’t have to be directly accused of discrimination for reprisal to be found. The employee doesn’t even have to file a complaint before the reprisal claim arises. Remember that definition in the previous paragraph and consider the key words: “or participated in any manner in an employment discrimination proceeding.”

The complainant in Green v. Secretary of Navy, EEOC Appeal No. 01964701 (1997) alleged he was subjected to discrimination in retaliation for prior EEO activity, naming the following incidents:

  • He was forced to assume duties and responsibilities without commensurate pay and adequate personnel.
  • He was forced to work in an unsafe environment.
  • The agency failed to remit documentation to him.
  • He was forced to work under “management personnel who commit waste, fraud and abuse.”
  • The agency threatened to eliminate his position.

The agency dismissed this portion of the appellant’s complaint for failure to state a claim. Basically, the agency’s response was: What EEO activity? Before this all went down, the employee had notified the agency of his intention to testify on behalf of other employees alleging discrimination. But he never actually testified.

Doesn’t matter, the EEOC ruled: Simply notifying the agency of his intention to provide testimony on behalf of other employees alleging discrimination was participation in protected EEO activity.

On a related note, a seminal case in this area is the Supreme Court decision Thompson v. Northern American Stainless, LP, 131 S. Ct. (2011). In Thompson, it wasn’t the employee who participated in an EEO activity – but the employee’s fiancée. Previous courts, including the District Court in this case,  had ruled that retaliation was limited to “persons who had personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation.”

The Supreme Court decided differently: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

So, add close relationship/association with individuals who file complaints as close enough to constitute protected activity. Just how close should that association be? Well, we don’t really know that. In Thompson, the Supreme Court declined to “identify a fixed class of relationships for which third-party reprisals are unlawful.”

What other activities are protected? Here are some activities that are a little more obvious, yet still too-often overlooked:

  • Contacting an EEO counselor.
  • Filing a formal EEO complaint, even if it’s a frivolous complaint.
  • Testifying at an investigation or hearing.
  • Representing a complainant.
  • Providing documents to a complainant.
  • Requesting a reasonable accommodation.

Look at all the different activities that are protected. It’s no wonder there are so many successful reprisal claims. If you want to avoid the being a meme, think before you talk, only take actions based on legitimate business reasons, and, oh yes, join Bob Woods this Thursday (May 18) at 1 pm ET for Avoid the Pitfalls of EEO Reprisal. (Register now.) Gephart@FELTG.com

The Board Saves the Deciding Official; Agency Prevails Despite DO Mistakes

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By Deborah J. Hopkins, May 16, 2023

As we work our way through all the cases coming out of MSPB’s backlog, some catch our attention more than others, including Lott v. Army, SF-0752-16-0490-I-1 (Apr. 10, 2023)(NP).

In this decision, the material facts were not in dispute. The appellant suspected that her husband was having an affair with a soldier in his unit. She improperly accessed agency databases containing Personally Identifiable Information (PII) to track down information on the soldier. She then passed along the PII to a colleague and asked the colleague to investigate whether the affair was occurring.

After a falling out with the appellant, the colleague reported the appellant’s conduct in accessing the PII. The agency investigated and removed the appellant for “unacceptable and inappropriate conduct from an HR employee.”

The Board upheld the appellant’s removal despite the Deciding Official making multiple mistakes:

  1. The DO inappropriately held the appellant to a higher standard based on perceived fiduciary responsibility. At the hearing, the DO “testified that she believed the appellant held fiduciary responsibilities, despite not being entrusted with anything related to the agency’s finances, by virtue of her access to employees’ personal information.” The Board clarified that fiduciary responsibilities under the Douglas factors only apply to an employee who has access or responsibility to an agency’s finances in some capacity – not PII.
  2. The DO wrongly concluded the agency’s Criminal Investigation Command (CID) determined the appellant had committed a crime. Both the PO and DO relied on information that CID determined the appellant committed a criminal offense. In reality, CID only found that it had probable cause to believe the appellant committed crime but did not have enough evidence to actually prosecute. Therefore, it was error to consider the appellant “actually committed” a criminal
  3. The DO improperly found the appellant’s remorsefulness was not mitigating because the appellant argued that similarly situated employees were not similarly disciplined. Among her defenses, the appellant attempted to blame the coworker who printed out the PII, as well as the colleague who took the envelope of PII to look into the information. According to the Board, “it is generally inappropriate to use an employee’s attempts to defend herself in disciplinary proceedings as an aggravating factor or an indication that she lacked remorse.” While the AJ found the DO did not view the appellant’s “finger pointing” as an aggravating factor but instead merely viewed it as a factor relevant to determining the degree of mitigation to warrant her remorsefulness, the Board disagreed and found “that the deciding official inappropriately viewed the appellant’s attempt to defend herself as an aggravating factor.”
  4. The DO failed to give considerable mitigating weight to the appellant’s mental health conditions. The appellant asserted that, at the time of her misconduct, she was “extremely distressed” and dealing with depression and insomnia, and that she made a “rash and impractical decision” as a result. The Board found that this medical condition could have played a part in the charged conduct, and that the DO did not give it considerable weight as a mitigating factor.

Those four mistakes aside, the Board also held that removal was within the bounds of reasonableness. Because the nature and seriousness of the offense is the most important Douglas factor, the Board agreed with the AJ who “noted the deciding official’s testimony that she considered the appellant’s misconduct to be a serious offense that went to the core of her duties as an HR employee.”

In addition, the “appellant herself testified that, as an HR employee, she was responsible for protecting PII.”

The Board also identified several mitigating factors:

  • The appellant had 15 years of Federal service.
  • She consistently received the highest performance ratings.
  • She had never been disciplined.
  • Her depression may have played a part in the misconduct.
  • Difficulties in her marriage and personal life played a central role in her decision to engage in the misconduct.
  • She expressed remorse for the misconduct.

In addition, based in part upon demeanor evidence, the Board deferred to the AJ’s credibility assessment “that the appellant could not be trusted to maintain her professional judgment in the event she again suffered difficulties in her personal life.”

Therefore, the Board upheld the appellant’s removal despite the mitigating factors and the error made by the PO and DO.

For more on drafting legally sufficient disciplinary charges and making defensible penalty determinations, join me on Aug. 1 for Charges and Penalties Under the New MSPB, which is part of our five-day Federal Workplace 2023: Accountability, Challenges, and Trends event. Hopkins@FELTG.com

The Good News: Reassignment May Be the Best Thing for Everyone

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By Ann Boehm, May 16, 2023

Our FELTG classes on performance and misconduct emphasize that before supervisors take action against a problem employee, they try everything else first.

Reassignment is one of the suggested things to try.

I worked in the Federal government long enough to realize that, too often, reassignment means “dump the bad employees over there.” That’s not a good solution to a problem employee situation. But there can be reassignments that benefit the supervisor, the employee, and the agency! The key is being creative and flexible enough to figure out whether the right reassignment exists.

In my own career, I had bosses I liked more, and bosses I liked less than others. Sometimes, my personality did not mesh with the supervisor – and that’s OK. Recognizing personality differences, and the impact they have on workplace interactions, is a good thing. One thing I believe in strongly is that there is no way to change someone’s personality – yours or the employee’s. Finding a supervisor whose personality meshes better with the employee may turn a bad employee to a good one – or at least a better one.

Another thing that can impact on an employee’s job satisfaction is organizational change. It could be a change in leadership, mission focus, work schedule – you name it. I used to joke that any time I said I loved my job, something would change to make me dislike it. Agencies are constantly changing.

When I found myself in an unhappy workplace situation, I took it upon myself to seek out details or other reassignment options in the agency. During my career, those efforts worked well for me.

Not all employees will have the confidence to seek out their own reassignments, even when they are miserable in a job. Sometimes, it is because they fear they will be labeled as a complainer. Sometimes, it is because they do not like change. But if a supervisor encourages that change, it may result in the colloquial “win-win” situation.

How does one go about suggesting a reassignment without it seeming like an attack on an employee? Often it starts with a conversation asking the employee if they are content with their position. That can morph into questions about whether they have thought about any other jobs within the agency that interest them. And with the information gathered, the supervisor can start to explore options.

Agencies typically have many vacancies. The old saying, “Better the devil you know than the devil you don’t,” has some truth to it. Hiring someone brand new can be a roll of the dice — could be great, or, yikes, even worse. There may be a good fit for an existing employee somewhere else, and it may not require too much effort to find it.

Also, a reassignment does not have to be permanent. A temporary detail is a good way to find out if the employee will be happy in the new position, and if the receiving supervisor is happy with the new employee.

If you are dealing with a problem employee, do a thoughtful analysis of the root cause of the issues. Think about reassignment as a possibility. It may be the best thing for everyone. And that’s Good News! Boehm@FELTG.com

Applicant Failed Polygraph, But Agency Failed to Provide EEO Process Info

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By Deborah J. Hopkins, May 16, 2023

A new case from the EEOC reminds us it’s important to notify applicants about the EEO process. Lela B. v. DHS/USSS, EEOC Appeal No. 2023000348 (Apr. 20, 2023).

The complainant applied for a Uniformed Division Officer position at the U.S. Secret Service. As is mandatory for such a position, she was required to undergo a polygraph examination, which she failed on Nov. 8, 2021, “based on an inquiry regarding illegal drugs.” She was then notified she was no longer being considered for the position.

She contacted an EEO counselor on April 22, 2022. After an unsuccessful attempt at informal resolution, she filed a formal EEO complaint on June 7, 2022, alleging the agency discriminated on the bases of race (African American) and sex (female) when:

  1. On Nov. 8, 2021, the two agents who conducted the complainant’s polygraph hindered her from obtaining a job in her career field through coercion and deceitful tactics during her test that rendered a false result.
  2. On Nov. 8, 2021, the two agents who conducted Complainant’s polygraph coerced her into writing a false statement following her polygraph.
  3. The Assistant to the Special Agent in Charge released false information to a subsequent potential employer, a local Sheriff’s Office, regarding selling illegal drugs. Complainant stated, on April 21, 2022, the Sheriff’s Office informed her via email that she had “permanent disqualifiers” from employment with them, and suggested she resolve the matter with the agency.

Unsurprisingly, the agency dismissed claims (1) and (2) for untimely EEO contact, as the complainant contacted the EEO counselor months after the 45-day time limit. See 29 C.F.R. § 1614.105(a)(1). The agency also dismissed claim (3) for failure to state a claim.

The EEOC was compelled by the complainant’s argument she was not aware of the 45-day statutory timeframe because she was merely an applicant and not an employee, and “there is no evidence that she was aware of the 45-day time frame through training, posters and other information.”

Regarding claim 3, the EEOC found the agency erred in dismissing the claim, and that “the alleged actions render Complainant aggrieved” because she “alleged that the Agency manipulated the polygraph results and provided a negative reference to her potential employer because she is an African American woman.”

As a result, the EEOC remanded the case back to the agency. Properly accepting claims will save your agency countless time and resources over a remand like this  – and FELTG can help. In October, we’re holding the virtual training Get it Right the First Time: Accepting, Dismissing and Framing EEO Claims – but we can bring this to your agency sooner if you have any interest. Just let us know. Hopkins@FELTG.com

 

Making Sense of Excepted Service, Trial Periods, and Appeal Rights

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By Barbara Haga, May 16, 2023

Practitioners often ask me about when an excepted service employee has appeal rights. The answer to this question is not as simple as it might seem.

Let’s look at what excepted service is all about.

Depending on the agencies you have worked for, you may have a different view of what the excepted service covers. Some may be familiar with jobs such as intelligence specialist or attorneys, which are always excepted. Others may work in agencies where authorities to hire Veterans Readjustment Appointees are used frequently. If you work at your agency’s headquarters, you may be familiar with policy-making positions hired under excepted authorities.  Presidential Management Fellows and student appointments are also excepted.

Federal hiring around the time of the Civil War was largely accomplished through political patronage. That changed with the passage of the Pendleton Act in 1883, which created a merit-based hiring system known as the competitive service. Even at that time, there were exceptions established to the competitive process in what was identified as Schedules A and B. With passage of the Pendleton Act, only about 10 percent of the Federal jobs were competitive.  Over time that number increased, until by 1980 about 90 percent of Federal positions were competitive. According to the MSPB report Federal Appointment Authorities: Cutting through the Confusion, by 2005, only 28 percent of employees entering Federal service came in through a competitive appointment.

5 CFR 213.101 states that excepted service positions are those Executive Branch positions defined by statute, by the President, or by OPM which are not in the Senior Executive Service.  Excepted positions are identified as part of Schedules A, B, C, or D.  The “Excepted Schedules” are listed in Subpart C of Part 213 of the CFR.  As OPM makes adjustments to the jobs in those categories, they have to publish the list of new exceptions established and any that are revoked.

In deciding whether positions should be excepted from competitive service, there are two categories of jobs to be considered. The criteria are listed in 5 CFR 213.102(c).  The first group are those where OPM has determined that the positions are indefinitely removed from competitive service because the nature of the work precludes it from being included, for example, because it is impracticable to examine for the knowledge, skills, and abilities required for the job. This category includes positions such as attorneys and chaplains.

The other group are positions that are temporarily removed from the competitive service for the ease of hiring. However, they can convert to competitive service at a later date. That category covers Veterans Reemployment Act (VRA) appointments and appointments of individuals with severe disabilities.

Competitive service positions are subject to the civil service laws passed by Congress in Title 5. Excepted service positions are not covered by the appointment, pay, and classification rules in Title 5. Agencies have considerable latitude in designing personnel systems for excepted positions, although many tend to structure the excepted systems in very similar ways to the competitive processes. While I was researching material for this column, I found one agency’s document which briefly attempts to explain some of the differences between competitive and excepted positions.

There are some basic differences between the two services. One is an employee’s ability to move to another position. Employees with competitive status can move to any other competitive position; they can also voluntarily leave the competitive service and take an excepted service position. However, when this happens, an employee must be informed of the consequences of making the switch. 5 CFR 302.102(b) requires that the agency:

  1. Notify the individual that the position is excepted, and that acceptance of that position takes him/her/them out of competitive service while in that position; and
  2. Obtain a written statement from employees that they understand they are leaving voluntarily to accept that excepted appointment.

Assuming the employee held a competitive appointment that would confer reinstatement rights, he/she/they could apply for competitive positions as a reinstatement eligible. Aside from the excepted positions which allow the employee to move into the competitive service, like VRAs, excepted employees may only be appointed in other excepted positions they qualify for. Unless they held a competitive appointment at some other time, they do not have status to apply under merit promotion programs for internal promotions/reassignments.

An excepted employee trying to move to the competitive service would have to be reached through an external hiring mechanism such as an OPM certificate of eligibles or Delegated Examining.

Being an excepted employee also affects an employee’s status in a reduction-in-force (RIF).  Page 20 of OPM’s Workforce Reshaping Operations Handbook sums up what happens: “An employee with an excepted service appointment has no assignment rights under OPM’s RIF regulations. However, an agency may elect to provide its excepted service employees with RIF assignment rights.”

Competitive and excepted employees are listed in separate competitive levels based on the excepted authority that was used to hire them.  A displaced employee could not move into a competitive position unless he/she/they had personal competitive status from a prior appointment.

Excepted employees serve a trial period rather than a probationary period. The processes can be very different depending on the kind of excepted appointment. Haga@FELTG.com

Critical Case Update: Unacceptable Performance Removals in 2023 and Beyond

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By William Wiley, April 21, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One Way to Help Prevent Mass Murder in a Federal Workplace

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By William Wiley, April 17, 2023

Did you hear about the recent deadly mass shooting at a Louisville bank? According to stories in the media, the killer was a 25-year-old employee. He had worked at the bank for six years, first just in the summers, then full time beginning in 2021. No doubt, he knew most everyone who worked there. Had he been in the Federal civil service, we would say that he had completed probation and was on track to becoming a career employee.

He had a master’s degree in finance from the University of Alabama. Only about 13 percent of the adult population in the U.S. has an advanced degree, so he would be among the more highly educated in most any workforce. He participated in sports in high school.

Apparently, he had raised complaints, perhaps within his workplace. At one point he said, “They won’t listen to words or protests. Let’s see if they hear this.”

So far, there’s nothing unusual about the history of the shooter or the job he held. His description could easily parallel the history of many Federal civil servants: Start your career while young in college, stick to the same type of job for several years, get a good education to prepare yourself for advancement. In fact, that’s exactly how the writer of this article started working for the federal government. Nothing outstanding or exceptional to make this guy stand out.

And then, the twist. He found out that he was about to be fired. As of this writing, we don’t know the reason for that removal decision, but perhaps it was misconduct or unacceptable performance. Soon after, on Monday, April 10, he walked into his workplace with an AR-15 rifle and killed five coworkers, at least two of whom were management officials. He set up an ambush and shot a responding police officer in the head. It is clear he probably would have killed more people if not for the heroic response by law enforcement.

Could this tragedy have been prevented? Could these five innocent lives have been spared? Although there are a number of hypotheticals that could have prevented these killings, the one most relevant to every reader of the FELTG Newsletter is this: Had the employee-shooter been barred from the workplace as soon as the tentative decision to fire him was made, he could not have accessed the workplace with his weapon and his murderous intent. This all happened in a bank, for goodness’ sake, probably one of the most secure workplaces around. Take away his employee hard-pass, instruct security not to let him through the door, and the chances are good he would not have been able to do this terrible thing. I don’t think it takes a great mind to see the advantage to keeping an individual away from the workplace once a tentative decision has been made to fire him. Even good people sometimes make bad decisions.

Now let’s look at the procedures relative to addressing the tentative removal of a Federal employee. Unlike in the private sector, a Federal employee is entitled to three important procedural steps relative here:

  • A written notice proposing removal and explaining the reasons for the tentative firing,
  • An opportunity to respond, and
  • 30 days of pay prior to the implementation of the proposal.

Nothing in law requires an employee be allowed to access the workplace during this 30-day notice period, not even for the response. It is completely consistent with the Federal statute that lays out the removal procedures for a civil servant for the proposal notice to tell the employee that he will be paid for 30 days, but he is barred from the worksite until a final decision is made. Given what happened in the Louisville mass shooting, one might think it prudent to do exactly that. Unfortunately, that is not what the government’s regulations require. Check this out, taken from 5 CFR § 752.404, with my comments in parentheses.

  1. Under ordinary circumstances, an employee whose removal has been proposed will remain in a duty status in his or her regular position. (That means IN THE WORKPLACE.)
  2. In the “rare” circumstances in which the agency determines that the employee’s presence in the workplace may pose a threat, the agency may:
  • A.  Assign the employee to other duties, (Elsewhere in the workplace?)
  • B. Allow the employee to take leave (Why would an employee use up accrued leave when there is a legal guarantee of full pay until a decision is made on his proposed removal?), or
  • C. Place the employee in a paid leave status, away from the workplace, e.g., bar the employee.

Although these procedures eventually allow the agency to bar the employee from the workplace, they do so only after stating that a barring should “rarely” be done.

As a prerequisite, the agency must somehow make the determination that it would be dangerous for this particular individual to remain at work.

Look back over the brief description of the Louisville shooter. Read more about his background if you can find it on the web. Do you see ANYTHING in his history as it was known to his supervisors that would have led them to conclude that his presence in the workplace might pose a threat? It’s fair to conclude that if the shooter had been a Federal employee whose removal had been proposed, he would have been retained in his regular position, in a Federal workplace, where he would be able to avoid the metal detectors at the entry to the worksite by waiving his employee credentials at the guard.

And if that guy happened to be a coworker of yours, where might you be today?

Folks, here at FELTG, we have big drums, medium-sized drums, and tiny little drums. We beat them on occasion because we have great respect for the good work done by most every Federal employee, and because we believe the civil service is a fair and efficient system for employing the career individuals who run our country. The inexcusable and obvious horrific situation potentially created by these regulations gets our loudest beats from our biggest drum. Why, oh why, these regulations are in place, given the clearly appalling potential outcomes and easy fixes, is simply beyond our understanding.

If you know who can change these regulations, or who can tweak your agency’s own interpretation of these regulations, please implore them to DO SOMETHING. What happened in that workplace in Louisville is going to happen again if we don’t act to stop it. Wiley@FELTG.com

[Editor’s note: The recording of Shana Palmieri’s recent virtual training event Assessing Risk and Taking Action is available for purchase. The session provides guidance on identifying signs of imminent violence, creating a risk assessment team, understanding personality traits and cognitive issues, responding to threats or violent acts, and much more. To bring this presentation live to your agency, email info@feltg.com.]