Can an Agency Constrain Official Time for EEO Complainants?

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By Deborah J. Hopkins, April 17, 2023

A few years ago, a client asked me what to do in this scenario: The employee did not show up to work for two weeks and did not respond to her supervisor’s phone calls, text messages, or emails. On the day the employee returned to work, the supervisor asked the employee where she had been. The employee said she had “been taking official time for my EEO complaints.”

EEOC’s regs at 29 CFR § 1614.605 establish that if the complainant “is an employee of the agency, she is entitled to a reasonable amount of official time, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information … The agency is not obligated to change work schedules, incur overtime wages, or pay travel expenses to facilitate the choice of a specific representative or to allow the complainant and representative to confer.” [bold added]

There has been much litigation over what amount of official time is considered reasonable, and also over how much control an agency has over the complainant’s use of official time. EEOC recently addressed official time in Aline A. v. USDA/ARS, EEOC Appeal No. 2022003111 (Mar. 8, 2023). The case discusses EEOC’s long-held position that there’s not a set amount of official time designated for an EEO complaint. Also, the number of hours to which a complainant is entitled will vary based on factors including the complexity of the complaint, the agency’s mission, and the agency’s need to have its employees available to perform their normal duties on a regular basis.

Regardless of the details surrounding the complaint, “the Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed, so an agency may restrict the overall hours of official time afforded.” Referring to my client’s scenario above, we know reasonable does not include an AWOL employee claiming 80 hours after the fact, without making a request.

In Aline A., the complainant alleged the agency violated the law by denying her a reasonable amount of official time for her EEO complaint when:

  • On Aug. 5, 2019, she was denied six hours of overtime pay, for official time.
  • On Oct. 25, 2019, she requested three hours of official time and was denied.
  • On Dec. 19, 2019, management denied her sufficient time (six hours) to meet with her designated representative regarding her pending EEO complaint.

The agency’s position was that it did not violate the complainant’s right to official time because:

  • On Aug. 5, 2019, the supervisor stated the complainant claimed six hours of overtime for her EEO activity (premium pay) without pre-approval. The supervisor disapproved the overtime pay but provided the complainant with six hours of credit time.
  • On Oct. 25, 2019, the supervisor had already scheduled the complainant’s performance evaluation. He denied her request due to the conflict but approved three hours of official time for Oct. 30, 2019. (The complainant was scheduled for leave on Oct. 28 and 29, 2019.)
  • On Dec. 19, 2019, the complainant’s request for six hours of official time included four hours of driving and two hours for the meeting with the representative. The agency did not think it was reasonable to provide official time for all the travel, but still granted four hours of official time, to include one leg of travel.

The Commission sided with the agency on all three official time claims and found the complainant “did not establish that the Agency improperly denied her official time for her EEO activity.” Specifically on the Oct. 25 denial, the commission ruled: “[T]he Agency reasonably delayed Complainant’s request for three hours of official time to balance her need with business reasons,” namely the performance evaluation.

Other recent cases have discussed official time including:

  • Complainants are not entitled to unlimited officialEEO time, just because they request it. Jeanie G. v. USDA/ARS, EEOC No. 2021003820 (Feb. 28, 2023).
  • A supervisor requiring a complainant to obtain approval prior to every official timerequest does not violate 29 CFR Part 1614. Angela R. v. DOD/NGA, EEOC No. 2022002317 (Feb. 21, 2023).
  • A supervisor requiring advance requests of EEO meetings related to official time, when the supervisor does not ask details about where the complainant was specifically going and with whom the complainant was meeting, does not violate 29 CFR Part 1614. Bryan F. v. Army, EEOC No. 2022002206 (Feb. 16, 2023).

Hope this helps. Hopkins@FELTG.com

Pay Attention: Avoid These Compensation Issues That Derail Settlement Agreements

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By Barbara Haga, April 17, 2023

I’m wrapping up this series on settlement agreements with a couple of cases where the agency agreed to a condition regarding a pay matter that could not be legally done.

You can find my settlement agreement article from last month’s FELTG Newsletter here.

[Editor’s note: Did you miss the recent Drafting Enforceable and Legally Sufficient Settlement Agreements earlier this month? Then mark down this date – August 23 when it will be held again. You can register now.]

Overtime pay. In Farrell v. Interior, 86 MSPR 384 (MSPB 2000), the Board found that a mutual mistake regarding the rate of overtime pay rendered the settlement agreement unenforceable. Farrell, an employee of the Park Police, was downgraded from the position of lieutenant to a sergeant under 752 procedures.

The underlying issue in the case was Farrell’s authorship of a “parody” entitled “The Quest: The Final Passage Home.” This document insinuated that certain female officers were lesbians, identified some employees as “Moorish,” and contained sexually explicit passages. A copy of the document was placed in the inbox of one of the senior officers. An investigation by the Internal Affairs Office ensued. Farrell admitted he had written it at home, typed it on the computer at work, and distributed copies within the Police Department over several months.

To settle the case, the parties agreed that Farrell would receive back pay and benefits, the agency would pay $7,500 in attorney’s fees, and Farrell would retire at the end of his 27th year of service. Also, he would be retained in the sergeant position, but paid as a lieutenant for the remainder of his employment. The agency delivered on all provisions.

The sticking point was the settlement agreement also stated that he would be eligible for overtime pay. In the sergeant position, OT is be paid a rate of one and a half times his lieutenant pay, a difference of roughly $15 per hour.  While the number of hours, and thus the value of this difference, is not specifically identified in the decision, it must have been a considerable amount because this was the only issue raised in the enforcement proceedings.

Farrell argued before the Board that “he had entered into the settlement agreement only because he could replace the potential lost income from the demotion with overtime pay.”  Farrell also argued that the original representative who entered into the agreement understood the settlement to mean that overtime would be paid at one and a half times his lieutenant’s pay.

What went wrong? The agency was prohibited by law from paying the agreed-upon rate of overtime. The agency cited the section of the D.C. Code, which said that an individual paid at the rate of a lieutenant was only entitled to overtime at his basic hourly rate.

The agency argued they were in compliance because they had paid everything that they could, but the Board set aside the agreement. That led to an AJ decision in 2000, a Board decision in 2001, and finally a Federal Circuit decision in 2002 – all arising from what should have been a settled case.

While this was a Park Police case, the GS system has a similar limitation on rates of payment for overtime. An exempt employee who earns more than GS-10, step 1 may only be paid overtime at a rate the greater of:

  1. His or her hourly rate, or
  2. The hourly rate for a GS-10, step 1.

(This limitation does not apply to wage employees or non-exempt employees.)

Review OPM’s guidance on Title 5 overtime pay.

Pay retention. In Day v. Air Force, 78 MSPR 364 (MSPB 1998), the agency removed a GS-9 supervisory art specialist under 752 procedures. The settlement agreement cancelled the removal, provided back pay, and required withdrawal of the appeal. Then the agreement went off the rails. The agency agreed to assign the employee to a WG-7 position with GS-9 pay retention, step increases, and other adjustments at the GS-9 level.

There are so many problems here, it’s hard to know where to start.

First, the basics. Pay retention is paid under 5 CFR 536. 5 CFR 536.102(b) sets conditions when payment of grade or pay retention is prohibited. The first situation on the list is when the employee is reduced in grade or pay for personal cause or at the employee’s request. Given that Day was removed for cause and this alternative of a downgrade was reached to resolve the ensuing litigation, it would seem to me that pay retention was never appropriate to begin with. The Board didn’t dwell on this aspect of the case. There was another problem.

Under pay retention, an employee does not receive step increases. The individual’s pay is beyond the limit for the grade. It’s also important to note that an individual remains in pay retention basically until the pay scale catches up with them. They receive 50 percent of the annual cost of living increase each year. Again, contrary to the language in the agreement, Day could not receive “other adjustments at the GS-9 level.”

There was even discussion during the enforcement proceedings that, perhaps, the agency should give Day grade retention. Even if that were appropriate (it seems very clear it’s not appropriate, per OPM guidance), grade retention lasts only two years. Then the individual would go into pay retention, so the agency would be right back in the same conundrum then.

DoD has a useful plain language document on the ins and outs of grade and pay retention. 

Without understanding the fine points of how the wide variety of pay issues are handled, an advocate might be lured into agreeing to something that is contrary to the pay laws in Title 5 just as the representatives in Farrell and Day did. To avoid this problem, make sure HR practitioners are available to assist agency representatives with settlement details so the provisions agreed to can actually be implemented.

Haga@FELTG.com

The Good News: Here’s the Secret to Handling Problem Employees

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By Ann Boehm, April 17, 2023

As a FELTG instructor, I regularly hear comments from class participants. Supervisors often tell me they are frustrated by what they perceive as lack of support from the Human Resources (HR) professionals. But HR professionals often tell me that they aren’t psychic, and they cannot help supervisors who do not reach out to them and seek their help in dealing with a problem employee.

What we have here is a communication problem. Effective communication requires both talking and listening. And at its core, in the Federal personnel world, effective communication requires the supervisors and the HR professionals to listen and hear with the common goal of taking care of the agency’s mission by taking care of problem employees.

How do we improve the communication between managers and HR?

Let’s start with the talking. Supervisors need to reach out to HR when they first start realizing they have a problem employee.

Don’t delay – odds are that the problem is not going to go away. Allowing the situation to fester just leads to frustration, and even may complicate the process for handling the problem employee.

In addition, supervisors need to explain not just the issues with the employee, but how it impacts the supervisor’s job, their employees’ ability to perform their jobs, and – here’s that word again – MISSION. Supervisors, you cannot expect HR professionals to understand your workplace. They support people in very diverse areas of the agency. You need to educate them about the practical impact of the problem employee’s actions. And fundamentally, you need to ask them to help you.

Let’s now turn to listening. HR professionals, please listen to the supervisors and try your level best not to respond with, “You can’t do that.” You need to appreciate that when the supervisor comes to you, they are frustrated with the employee. You need to focus on how you can help them.

It’s highly likely that the supervisor will not understand the intricacies of discipline or performance in the Federal government, and their initial instincts may be a wee bit off base.

But HR professionals need to work with them to get them to a place of comporting with the law and still taking action to take care of the problem. Instead of “You can’t do that,” think about what steps can be taken to get on the path to successfully handling the problem employee. It’s your turn to educate them.

This sounds very simple, right? And in practice it should be. So, let’s review:

1) Supervisors, reach out to HR as soon as you realize you are having problems with the employee. Educate them on not just the employees’ problems, but the impact on your workplace.

2) HR professionals, use your skills to help the supervisor get on the right path to properly handling the problem employee. Appreciate the supervisor’s frustration and think creatively about the best way forward.

3) Supervisors and HR professionals, realize that the ultimate goal is to ensure the agency’s mission is fulfilled.

I know I’m an eternal optimist, but I truly believe that better communication is an easy way to handle problem employees.

And that’s Good News. Boehm@FELTG.com

Forecast Calls for Category 1-3 Harassment: What Will You Do?

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By Dan Gephart, April 17, 2023

It’s no secret the current administration wants the Federal workplace to be more inclusive. A key to achieving that goal is rooting out harassment. This is not a new concern. Several years ago, agencies started their own anti-harassment units, which don’t fall always under the auspices of its EEO Office. These anti-harassment teams are charged with limiting harassment of all types – even those that don’t result in legitimate claims of discrimination.

For years now, the EEOC has been emphasizing the need to address the broader range of harassment, noting time and again that without an exhaustive anti-harassment policy, agencies cannot be model EEO employers. You’d be hard-pressed to find an agency today that doesn’t have some type of anti-harassment policy.

Yet too many people still think harassment is solely an EEO issue. Not us here at FELTG. If you’ve attended any of our courses that address harassment, you’ve heard FELTG President Deborah Hopkins and other instructors say quite clearly: Harassment is misconduct. It must be addressed, whether it has led to an EEO complaint or not.

And whether alleged harassment goes through the EEO process or not, an investigation will likely be required. FELTG offers numerous opportunities to improve your investigations skillset over the next few months, beginning with the three-day virtual program Conducting Effective Harassment Investigations April 25-27. Workplace Investigations Week will be held August 14-18, and the two-hour training Misconduct Investigations: Get Them Right From the Start takes place on July 25. Also, be on the lookout for the official announcement soon of Bad Detective: The Mistakes That Hamper Agency Investigations with special guest presenter Roslyn Brown. That session will take place on Aug. 4, as part of FELTG’s annual Federal Workplace: Accountability, Challenges, and Trends event.

Let’s look at different categories of workplace harassment. The actual steps you need to take after each type of harassment are different. Regardless, take all harassment claims seriously and act promptly.

Category 1 – EEO harassment. An allegation has been made that someone has engaged in harassing behavior due to the complaining employee’s protected category. (To recap: Those protected categories are sex, race, color, national origin, religion, genetic information, disability, age, participation in protected activity). Could this be a legitimate complaint of EEO discrimination? It very well may be, but at this point, it’s still too early to tell. The person alleging harassment has 45 days to make contact with an EEO counselor. But you will need to investigate right away, whether they contact a counselor or not.

Category 2 – Actionable EEO harassment. Once the formal complaint is filed and the EEO office accepts the claim, the agency is on the clock. It’s time for a prompt, thorough investigation to determine the facts: was there unwelcome conduct, based on a protected category, so severe or pervasive it created a hostile, intimidating or abuse work environment?

Category 3 – Non-EEO harassment. Is it just me or does it just seem like bullies are pouring out of the woodwork lately? Mocking an individual’s work habits. Giving co-workers unflattering and unwanted nicknames. Pestering a peer repeatedly with requests to go on a date. Sometimes it’s hard to fathom the sheer gall of these bullies.

That’s not to say that these actions never meet the elements of proof for EEO harassment. They may. But smart bullies (there are a few) seem to know how to stop short of those requirements. Yet just because these actions may not lead to a legitimate EEO complaint doesn’t mean they should be overlooked.

Other examples of non-EEO actions to keep an eye on are conduct that is unprofessional, threatening, intimidating, violent, and disturbing.

Category 4 – Not harassment. The final category covers actions that are not harassment, despite what employees say. Several agency officials have told us of an increase in complaints lodged against supervisors for actions that are, quite frankly, what you’d expect a supervisor to do.

  • Assign work.
  • Set deadlines.
  • Create a work schedule.
  • Assess performance or providing feedback.
  • Manage work groups.
  • Set a dress code.

Just because an employee disagrees with his supervisor’s management style does not make a case of harassment. If the actions listed above are “exercised in a reasonable and professional manner,” they are not harassment. The same goes for any other actions supervisors have the right to take based on 5 USC 301-302. Deb Hopkins’ article from a few months ago addressed these faux claims.

Here’s the takeaway: Do whatever you can to prevent harassing conduct in the workplace. If you do that, harassment won’t happen, right? No, of course harassment is still going to happen from time to time. And when it does, know your options and responsibilities to correct the conduct before it happens again.

Also, it sure wouldn’t hurt to get to know your agency’s anti-harassment policy a little better. Gephart@FELTG.com

And Now a Word With … EEOC AJ Meghan Droste

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By Dan Gephart, April 11, 2023

Long-time members of FELTG Nation recall Meghan Droste as an engaging instructor and writer, who could break down difficult subjects into easy-to-understand guidance. At the same time, she’d often leave this FELTG Newsletter Editor with an earworm or two.

Ms. Droste, now an administrative judge with the Equal Employment Opportunity Commission, will kick off Day 1 of FELTG’s upcoming Emerging Issues in Federal Employment Law event, presenting Avoiding Pitfalls: Advice from an EEOC AJ on Tuesday, April 18, 2023, at 10:30 am ET.

[The theme for Day 1 is Lessons Learned and we’ll also have presentations from former MSPB Member Tristan Leavitt and FELTG’s own Joseph Schimansky. Check out the full agenda. Register for one session, one day, the whole event or any combination of sessions – it’s up to you.]

We recently caught up with Ms. Droste to discuss her career transition and what she plans to cover in her session on April 18.

DG: As a practicing attorney, you were very familiar with the EEO process. Did anything surprise you or was there anything about the process you didn’t realize until after you became an administrative judge?

MD: When I first started it was very interesting to see all of the work that is done “behind the scenes” — everything that AJs have to juggle that the parties don’t see. But I think the most surprising thing was the number of self-represented, or pro se, complainants who we see in the Washington Field Office. As a complainant’s representative I of course did not have any involvement in those types of cases, and even when I represented a Federal agency, I often encountered representatives on the other side. The process is meant to be accessible for self-represented complainants and it has been very interesting to see just how many there are.

DG: What is the most common misunderstanding about the EEO process?

MD: I think one of the most common misunderstandings, from both complainants and agencies, is an assumption that the hearings process is informal and not as serious as litigation in Federal court. AJs don’t wear robes or sit in courtrooms, but we still issue orders and set schedules that the parties have to abide by. It seems that some parties don’t understand that and think that deadlines are optional or that they can ignore their obligations that we set out in our orders or are in the EEOC’s Management Directive 110.

DG: What’s your advice to parties who are new to the EEO process on the importance of the initial conference?

MD: It is so important for the parties to be prepared for an initial conference (IC). By the time I hold an IC, I have reviewed the Report of Investigation, the parties’ Preliminary Case Information submissions, and anything else that they have uploaded to the Public Portal/FedSep; I expect the parties to have done the same and to be familiar with their case. The parties should be ready to address all of the topics outlined in the Acknowledgment Order and answer any questions I have for them about the record or their discovery needs. If they aren’t prepared, it slows down the IC and can result in a party waiving its right to raise an issue or object to something that I cover during the IC.

DG: You will be discussing the importance of civility in the EEO process at Emerging Issues in Federal Employment Law. Can you provide an example where lack of civility negatively impacted a party’s position in settlement or litigation?

MD: One way that this comes to my attention is when parties are filing a motion for an extension or a motion to compel. I generally do not see the parties’ interactions with each other, but when it comes time to file a motion that requires the party to note the opposing parties’ objections to the motion or to refer to the parties’ discussions about discovery, I see copies of correspondence between the parties as exhibits.

It’s easy to see when the parties are being civil to one another and when they are not. It’s also easy to see how, as the parties become more heated, they are less willing to work with each other to resolve routine issues. This impacts the issue they are filing the motion for and can make any later settlement discussions more difficult, if not impossible, as each side digs into their own positions and are unwilling to compromise.

DG: Agencies often miss the mark in their pleadings. What’s the most common problem with pleadings and how do you suggest that problem be fixed?

MD: Two things come to mind right away, and both are easy for agencies to fix. The first is exceeding the page limits for motions or otherwise failing to follow the requirements I set out in the Case Management Order (CMO). I remind the parties during every IC to review the CMO thoroughly because each AJ does things a little differently. Despite this, I can always tell when a party has failed to do so, and it can have a real impact for them. For example, if a party exceeds the page limit, I stop reading the motion at the last allowable page. I don’t give any consideration to any argument that comes after the page limit. The second common problem is allowing the agency’s arguments to creep into the statement of facts. The statement of facts should be, as it sounds, just the facts. An agency loses some credibility with me in the summary judgment process if it tries to spin the facts rather than presenting them without argument.

Have your own questions for Judge Droste? Register now for Emerging Issues in Federal Employment Law. Gephart@FELTG.com

EEOC Report Sparks Conversation About Offer of Resolution, Settlement

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By Bob Woods, April 4, 2023

The EEOC’s Office of Federal Operations (OFO) recently published an article discussing the “offer of resolution” (29 C.F.R. 1614.109(c)), which they refer to as an “often overlooked tool for agencies to settle EEO complaints.”
For those of you who are relatively new to practice before the EEOC, you may not realize that this “tool” has been available since 1999, when it replaced the “Offer of Full Relief” settlement option (previously available pursuant to then-29 C.F.R. 1614.107(h)).

The principal difference between these tools is that if an agency “offer of resolution” is rejected and the EEOC subsequently awards a lesser remedy than was offered, the agency is relieved of paying costs and attorney fees incurred after the offer acceptance period, whereas if an agency’s offer of “Full Relief” was rejected by a complainant, the agency could dismiss the complaint.

At that point, the complainant could seek review from the EEOC. If the EEOC agreed that the offer contained all of the remedies to which the complainant would have been entitled if the complainant prevailed on the allegations of discrimination, they would sustain the dismissal. See Henderson v. Navy, EEOC Appeal No. 01984538 (EEOC 1999).

The premise of this remedial provision was that it was unnecessary to adjudicate a complaint if the agency was willing to provide full relief. However, with the advent of compensatory damages, provided for by the Civil Rights Act of 1991, it became increasingly difficult to determine whether the Agency’s offer of compensatory damages would be considered enough to constitute “Full Relief.” As a result, the EEOC eliminated the “Offer of Full Relief” from the list of reasons for dismissal provided in 29 C.F.R. 1614.107 and amended the provisions of 29 C.F.R. 1614.109 to include the provision for “Offers of Resolution.”

Fast forward a quarter of a century. The OFO notes that this tool is underutilized and suggests that its use should be revisited by agencies. This suggestion provides an excellent opportunity to review the topic of settlements in EEO cases, something I’ll be covering in the April 12 virtual training Drafting Enforceable and Legally Sufficient Settlement Agreements.

My colleagues at FELTG asked me the below questions and my answers follow:

What are your thoughts about the use of the Offer of Resolution?

I agree the offer of resolution is probably underutilized, but I recognize it can be difficult to calculate and may involve more than an agency might be willing to offer. These offers, in particular, require a thorough analysis of the evidence and the existing EEOC awards of remedies provided in similar cases. This means the agency must ask the complainant for specific evidence to support their claim for compensatory damages and then use that evidence to try to determine its validity and how it will be assessed by the EEOC.

Offers of resolution should be made anytime the agency makes this thorough assessment and believes they are offering full relief or in situations where they believe they have offered full relief but the complainant and her/his attorney refuse to accept the offer and continue to demand additional compensation. In such cases, the agency has nothing to lose in making the offer or resolution. If the EEOC awards the same or lesser relief, the agency obtains some relief in the form of lower reimbursements for costs and attorney fees incurred after the rejection of the offer of resolution. Alternatively, if the EEOC awards greater relief, the agency is in no worse position with regard to reimbursements for costs and attorney fees than it would have been had it not made the offer of resolution. The OFO article describes the intent of the provision “ … is to encourage agencies to avoid costly EEO administrative litigation and to make complainants consider whether continuing with the EEO process would be in their best interests.”

Can you discuss the confidentiality aspect of settlement discussions?

It’s well settled by EEO law that settlement negotiations are confidential and privileged. In fact, the same holds true in the ADR process as well as in judicial proceedings and before many other adjudicative bodies. This includes settlement proposals made or discussed, as well as statements made during the course of negotiations. The reason for this policy is to enable the parties to speak freely when exploring potential options for resolution without fear of those discussions being used against them in future proceedings/litigation. MD-110, Chapter 2, Section IX(C).

Some Federal supervisors or leaders see settlement as indicating a flaw in a case, or as taking the easy way out. What would you like those people to know about settling Federal sector employment disputes?

While this sentiment is somewhat understandable, it often misses legitimate interests involved in settling a case. Every EEO complaint (starting at the pre-complaint phase) deserves an honest, open-minded assessment of the particular circumstances of the concerns/allegations presented. Supervisors and leaders need to be educated on the process generally and on the pros and cons of settlement of the particular case. It may be there is a “flaw in the case.” It may be there is evidence of discrimination or there may be weaknesses in the evidence supporting the management action, including issues of credibility of witnesses. In fact, if management did do something wrong, whether or not it constitutes discrimination, it needs to be corrected as quickly and as thoroughly as possible. Even in cases that don’t appear to have these “flaws,” there may be very good reasons to resolve the matter via settlement.

As we often teach, the best outcomes occur when resolution is freely arrived at by all parties. There are no guarantees in litigation. Early resolution often results in a more amicable return to the working relationship and returns the parties to where they can focus on mission/career. It also enables them to get an unpleasant experience over with before the case can swallow their lives. Settlements do not require any admission of fault. Additionally, the earlier the resolution, the lower the direct and indirect costs.

Are there certain types of cases you would recommend not settling. If so, why?

In my opinion, settlement should be seriously considered/explored in most (maybe even all) cases. Once the circumstances and evidence have been thoroughly reviewed, the main question will be what, if any, resolution terms short of litigation might satisfy the interests of both parties. Typically, agencies try to support the prerogatives of supervisors and will first explore alternatives that provide that support. Assuming a thorough review, I would not recommend settling any case where the evidence supports the agency position and the complainant refuses to compromise on their demands for relief that are disproportionate to the bounds of that analysis. Likewise, I would oppose settling on terms that exceed that to which the complainant would be entitled if they prevailed on the allegations of discrimination.

Instead of trying to capture the types of cases for which I would not recommend settlement, I’d prefer to identify some terms that I would argue are inappropriate. For example, there are times when a supervisor just wants to be rid of a “bad employee” and is willing to agree to terms that would make this employee someone else’s problem (e.g., a reassignment or accepting a “clean paper” resignation). If this is truly a “bad employee,” it is the supervisor’s responsibility to hold them accountable and not let them move on. To accept such terms would be a disservice to both the gaining supervisor/activity/agency and to the taxpayer. It also allows the “bad employee” to continue their misconduct or unacceptable performance in the new environment. Likewise, a settlement agreement should not be used to shield a bad management official. If the evidence suggests wrongdoing on the part of management, corrective action is appropriate. Failure to hold management accountable, like failure to hold the “bad employee” accountable, sends a bad message to the workforce, violates the agency’s legal obligations, and enables the manager to continue to engage in similar conduct.

What questions do you have for me? Join us on April 12 for the answers. Info@FELTG.com

And Now a Word With … FLRA CADRO’s Michael Wolf (Part II)

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By Dan Gephart, May 27, 2923

Michael Wolf, Director, Collaboration and Alternative Dispute Resolution (CADRO)

In the first of this two-part article, we talked to the Federal Labor Relations Authority’s Michael Wolf, who is director of the Authority’s Collaboration and Alternative Dispute Resolution (CADRO) program about that program’s success. [Editor’s note: Visit here to learn more about CADRO and its services.]

Wolf described CADRO’s style of mediation as “situational” as opposed to “facilitative or evaluative or some other label.” The key, per Wolf, was that the “parties define success.”

We wondered how CADRO’s approach applied to agencies trying to resolve disputes internally. [For more on settling disputes, join FELTG on April 12 for Drafting Enforceable and Legally Sufficient Settlement Agreements.] We caught up to Wolf in between mediations and picked his brain on this important topic.

DG: What do you think is the biggest obstacle to resolving disputes?

MW: It depends. I realize that is not really an answer, but there is no other simple response that is also accurate. Most disputes we see in CADRO erupt from a set of unique causes, characteristics, and obstacles to resolution. From the standpoint of a third party who has no stake in the outcome, we help party representatives identify their obstacles and then help them adopt what they believe to be the most effective way to overcome those obstacles. This approach tends to result in parties that are more invested in making the outcome successful when compared to an outcome imposed by an outside source of authority such as a judge or arbitrator.

DG: What physical environment best creates an atmosphere for successful mediation?

MW: With rare exception, it is best for the physical environment to enable the mediator and participants to be free of unnecessary distractions, engage with an appropriate level of confidentiality, communicate effectively, utilize joint and separate sessions, consult with sources of information and authority when necessary, and be able to fulfill external responsibilities when required.

  • The location should be reasonably available and accessible.
  • Cost should not be a factor in whether a party is adequately represented.
  • The space should not create a perception of favoritism or bias.
  • The need to work outside of “normal” business hours might be a factor.
  • No party should feel unfairly disadvantaged by the physical environment, and it should be compatible with the mediator’s style, methods, and skillset.

I’m sure there are other considerations, but these are what immediately come to mind. I view available options based on five potential methods of engagement:

  • Synchronous and in-person
  • Synchronous and remote
  • Asynchronous and in-person
  • Asynchronous and remote
  • Hybrid – a combination of synchronous and asynchronous, in-person and remote

Each of these methods of engagement give rise to a different set of considerations concerning the physical environment. For example, if one or more participants is expected to engage remotely, the impact of differential technology skills, equipment, support, and access could affect both process and outcome of the mediation.

DG: You’ve been an advocate for the appropriate use of technology in mediation.

MW: I’ve been an advocate for the appropriate use of technology in mediation since at least the late 1990s when I was the FMCS Director of Mediation Technology Services. Today, CADRO mediation and settlement conferences would not be possible without a very heavy reliance on technology and remote engagement, both synchronous and asynchronous. I am not a believer in the use of technology to repair fractured relationships, but I have found it highly effective when used appropriately to mediate labor disputes.

At the same time, I tend to be “old school.” I prefer in-person engagement for disputes that are complex, serious, and consequential. But I also recognize that in-person engagement can enable disputants to misunderstand each other as well as understand each other. At times, in-person engagement can cause a disputant to feel threatened and therefore become defensive, maybe misinterpret what is said and done, and become a barrier to success.

Sometimes mediators can control the physical environment. Other times, we have more control over the factors that impact and result from the physical environment. A skilled mediator should be able to spot the issues on the fly and make necessary adjustments when needed.

DG: Can you name a few steps that someone in a dispute can do to bring two sides together – even if they are on one of the sides?

MW: Let me start with a few of the things I suggest that person should not do. They should:

  • Not pretend to be neutral if they are linked to one of the disputants.
  • Not try to determine or shape outcome.
  • Do their best to not be influenced by judgements or assumptions about the disputants or their issues.
  • Avoid the urge to offer advice (except about process).
  • Not try to save either disputant from themselves.
  • Actively avoid shifting the balance of power between disputants.
  • Not try to shape the disputants’ “truth.”
  • Avoid becoming so frustrated that they feel compelled to adjudicate the matter.
  • Not reveal matters shared with them in confidence.

Above all else, “do no harm.”

Now a few ideas about what they might do to help. First and most importantly, listen actively! Second, help them agree on a problem statement that is in the form of a question to which they both seek the answer. If they can’t agree on the question, it is unlikely they will agree on an answer. Jointly attacking the question can also help them avoid attacking each other. Third, help each person first explore separately and then share jointly why they care so much about the answer to that question. Write down the reasons they care (bullet list, not long paragraphs). Help them compare and contrast what they care about to see what their lists have in common. Generally, they will find it easier to agree on solutions if they share a common list of reasons why they care about the answer to the question.

Fourth, facilitate joint brainstorming of possible answers to the question. Encourage both to offer at least several ideas. The more the better. Get them to think outside the box. Discourage criticism of each other’s ideas. Try to write down every idea, even the ones that seem wacky. Encourage them to build on each other‘s ideas. Then discover the ideas that rise to the top and help them explore whether one or possibly a combination of ideas might be worth trying.

If they seem to agree on one or more ideas as a path forward, help them develop an action plan to implement the ideas. Follow up in several days and then again in several weeks. Help with any operational issues. Refer the matter to someone with expertise and experience if necessary.

Gephart@FELTG.com

Is Three-strikes Progressive Discipline a Thing of the Past?

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By Deborah J. Hopkins, March 15, 2023

A recent MSPB nonprecedential decision has me scratching my head, as the outcome appears to go against over 40 years of case precedent. I wrote about the facts of the case in a previous newsletter article, so if you’d like the specific details please check that out. A quick recap though: The agency removed an employee based on three charges: (1) lack of candor; (2) disregard of directive; and (3) unauthorized absence. The MSPB only sustained charge 2, disregard of directive, because the appellant did not follow appropriate leave request procedures.

Because the agency only proved one of three charges, the Board mitigated the removal to a 7-day suspension. That may not sound odd to you, but here’s where I’m stuck: if you look at Board’s view of the Douglas factors analysis on pages 9-10 in the case, the appellant “was previously reprimanded and served a 3-day suspension for failure to follow the agency’s leave procedures.”

A principle that has been around for longer than the Civil Service Reform Act, progressive discipline stands for the proposition that for minor misconduct, Federal employees are generally given a “three strikes and you’re out” opportunity to learn from conduct-based mistakes. Progressive discipline, which we’ll discuss in more detail during MSPB Law Week March 27-31, typically looks like this:

  • First offense of misconduct: Reprimand
  • Second offense of misconduct: Suspension of 1-14 calendar days
  • Third offense of misconduct: Removal

Progressive discipline is not mandatory, most recently confirmed during OPM’s discussion of its updated regulations at 5 CFR §752.202.

There are times agencies remove an employee for a first offense (see, e.g., Pinegar v. FEC, 2007 MSPB 140), and there are times they give more than three strikes – sometimes a lot more (see, e.g., Blank v. Army, 85 MSPR 443 (2000)). And that is absolutely up to the agency. But past discipline has almost always been a significant aggravating factor, and for over four decades the Board has generally upheld removals for a third offense of any misconduct. See, e.g., Grubb v. DOI, 96 MSPR 361 (2004).

If the Board were to follow its own precedent in the current case, the agency should have received penalty deference and the Board should have upheld the removal. Instead, the Board found other factors to be mitigating:

  • The appellant worked for the agency for six years and did not have any performance problems during that time.
  • The appellant was not a supervisor.
  • The appellant contacted the agency “to inform his supervisor that he would be absent, albeit not in the way in which he was instructed.”
  • The appellant claimed he and his wife were having relationship troubles.
  • The appellant claimed he was experiencing pain because of a disability.
  • The agency’s table of penalties recommended a “5-day suspension to removal for a third offense of failure to request leave according to established procedures.”

If removal was appropriate according to the table of penalties, why did the Board mitigate?

I will admit, proving only one specification of one charge does make one consider whether the penalty is unreasonable; in essence the agency only proved a third of its case. That said, because of the weight past discipline usually holds, I am a little surprised the Board did not defer to the agency’s penalty. I wonder if the outcome would have been different if there was language in the decision letter that any charge standing alone would warrant removal? See, e.g., Sheiman v. Treasury, SF-0752-15-0372-I-2 (May 24, 2022)(NP).

This is one of the few cases under this Board where a Member dissented from the majority; Tristan Leavitt noted a dissent but without opinion, so it’s anyone’s guess as to why. Perhaps it’s for the very reason outlined above. Ortiz v. USAF, DE-0752-22-0062-I-1 (Jan. 25, 2023)(NP).

At first I was thinking this might be an outlier, but two subsequent cases have seen the same mitigation despite of past progressive discipline: Spivey v. Treasury (IRS), CH-0752-16-0318-I-1 (Feb. 15, 2023 )(NP) and Williams v. HHS, DC-0752-16-0558-I-1 (Feb. 25, 2023)(NP). Read on for Bill Wiley’s take on these cases and on why agencies discipline at all. Hopkins@FELTG.com

Why, Oh Why, Do You Ever Discipline a Federal Employee?

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By William Wiley, March 15, 2023

So you just read FELTG President Deb Hopkins’ article about Ortiz v. Air Force, DE-0752-22-0062-I-1 (Jan. 25, 2023) (NP). The decision is significant only because it is very unusual (some might say “weird”) for the Board to impose a second suspension after a misbehaving employee has already been reprimanded and suspended without his learning to obey agency rules.

Another recent decision raised this same issue. The Board mitigated a removal to a 10-day suspension even though the agency had previously suspended the employee for five days for the same type of misconduct. Spivey v. Treasury (IRS), CH-0752-16-0318-I-1 (Feb. 15, 2023) (NP). Similar to Ortiz, one of the charges brought by the agency in Spivey failed on appeal and the agency “never stated that it desired that a lesser penalty be imposed if only one of the two charges was sustained.” By not stating in the decision memorandum what the penalty would be if fewer than all the charges were sustained, if one or more charges is not sustained on appeal, the deciding official, thereby, allows the Board to independently assess the Douglas Factors and select a penalty. See LaChance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).

This second-suspension mitigation highlights one of the great unanswered existential questions about the Federal workplace: Why do agencies discipline misbehaving employees? Suspending an employee for misconduct requires the agency to expend significant resources:

  • What happens to the employee’s work assignments during the suspension? Are they reassigned to hardworking coworkers who have to bear that extra burden? Must the supervisor bring in an outside contractor to do the work? Or does the employee’s work simply not get done during the duration of the suspension?
  • Separate from devoting resources to the suspended employee’s workload, there’s the cost of defending the disciplinary action. Career Federal employees have a plethora of ways to challenge a disciplinary action: administrative grievances, union grievances, EEO complaints, complaints to the US Office of Special Counsel, complaints to the Department of Labor related to veterans’ USERRA rights, MSPB appeals if the discipline is significant, etc.

Given that there can be a considerable cost to an agency when it suspends an employee, and given that an agency usually doesn’t expend resources without some gain in return, what is the benefit that the agency hopes to attain in exchange for a misconduct suspension? Two possibilities come to mind:

  • The agency hopes to motivate the employee to obey workplace rules. Behavioral psychologists call this technique for controlling behavior “negative reinforcement.” The theory is that by suffering pain (physical, mental, financial), the individual will learn to avoid that same pain in the future by refraining from engaging in the behavior that resulted in the pain. Cats sit on a hot stove only once. A child may learn acceptable social behavior as a result of the pain of isolation by being told to sit in a corner. In theory, a Federal employee deprived of part of a paycheck by a suspension will refrain from engaging in the misconduct that resulted in the monetary loss. It’s fair to say that the primary reason agencies suspend employees is to “correct behavior.”
  • Is there some element of just plain old retribution in workplace discipline? An eye for an eye, a tooth for a tooth. You stepped on my foot; I’m going to stomp on yours. You caused me to suffer (by breaking a workplace rule), I’m going to make you suffer (by suspending you without pay) in retribution. Frankly, I would hope that this punishment-for-the-sake-of-punishment, separate from a desire to correct behavior, is not a desired “benefit” for an agency when it suspends an employee. However, when I look at how agencies have handled disciplining employees over the years, and how MSPB has validated those actions, I’m left with a belief that there is something beyond correcting behavior that motivates agencies to suspend.

If we accept that the primary objective of an agency suspending an employee is to correct behavior, then the Board’s mitigation to a second suspension in Ortiz raises a series of fundamental questions:

  • If the agency’s initial suspension of three days did not motivate the employee to abide by workplace rules, what makes the Board think that a second suspension of seven days will teach the employee that breaking rules is to be avoided? In practice, a seven-day suspension is only five workdays, two workdays of lost pay more than the initial three-day suspension. Is the Board thinking that those extra two days of lost pay will cause the employee to begin to obey the agency’s rules even though the first suspension did not?
  • How long should an agency have to tolerate a disobedient employee in its workforce? If these extra two days of lost pay do not result in the employee becoming obedient to the agency’s rules, is MSPB suggesting that another incident of this employee disregarding a directive should result in a suspension of an additional two or three more workdays of pay? What evidence is there that incrementally increasing the length of a suspension might eventually get the employee to obey the agency’s rules?

Perhaps the agency could have done more to protect itself from a mitigation. Not only did the deciding official not testify as to the penalty that would have been imposed if only one of the three charges had been sustained, but the agency’s own table of penalties indicates that a suspension is within the range of appropriate penalties for a third offense — “five-day suspension to removal.”

In Spivery, the table of penalties also allows for a suspension for a third offense. Effectively, agencies that have suspensions within the range for a third offense in their penalty table are acknowledging that a Federal employee who violates workplace rules may remain a Federal employee indefinitely.

There is a significant philosophical question in all of this, one that has not clearly been addressed. Why should agencies discipline employees? I would offer three plausible reasons and encourage agencies to adopt one, then clearly incorporate that into agency discipline policies:

  1. Suspensions are intended to correct behavior. If this is the agency’s objective, then the discipline policy should state it clearly. If the agency uses a table of penalties, then it should incorporate the three-strikes rule for guidance: reprimand, suspend, then removal. If a single suspension does not correct the employee’s behavior, there’s no evidence that a second or third suspension will.
  2. Suspensions are intended to punish. If this is the agency’s objective, then the discipline policy should leave room for more than one suspension, state in what situations more than one suspension would be reasonable, and then be prepared to have any removal mitigated to another suspension. The agency also should be prepared to continue the employment of individuals who repeatedly do not obey workplace rules and expend the resources necessary to do that.
  3. Suspensions have no place in a modern Federal workplace. This is the philosophical position adopted by a number of private sector companies. It is based on the belief that in a mature workforce, employers should not have to inflict pain on employees to get them to obey rules (and the employer should not have to bear the expense and inconvenience of a suspension).

Here’s one way the third option works. The first time an employee engages in misconduct, the supervisor tells the employee in writing that he has violated a workplace rule and that he should adhere to all rules in the future. This notice would be analogous to a reprimand in the Federal system. After notification, if the employee again violates a rule, the supervisor informs the employee of the rule violation and sends the employee home with pay for a day to contemplate whether he is willing to adhere to the company’s rules. If after this opportunity for contemplation the employee again violates a workplace rule, the supervisor offers the employee the opportunity to resign. If he refuses, the supervisor fires the employee. No punishment of the employee, no suspension-harm caused to the employer. Just the civil no-fault resolution of an inability to correct behavior situation.

Our civilization has evolved beyond the indentured servitude and physical bondage of earlier generations of our work forces. We no longer publicly flog or use a pillory with indentured servants who do not work hard enough. We are no longer in the early days of the last century when blue collar employees were seen as a lower class of citizen, beholden to and under the absolute control of their upper-class employers. The modern workplace is an egalitarian organization of knowledge workers with many flexibilities and employment options that were unheard of just a few decades ago.

Our Federal civil servants are getting older. Over the next few years, we can expect a large number of retirements from government service, with those senior citizens being replaced by younger workers who expect to be treated with respect as human beings rather than being forced and coerced into performing their jobs.

Perhaps, it is time for our management approach in the Federal government to evolve beyond discipling and punishing by suspending misbehaving employees, and instead focus on filling the civil service with individuals who follow directives without the need for pain. Wiley@FELTG.com

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When Settlement Agreements Fall Apart: Leave Issues

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By Barbara Haga, March 13, 2023

I enjoyed putting together the columns on clean record agreements so much that I thought we should follow that thread. This month, we look at things agreed to in settlement agreements that were ruled to be illegal and resulted in the MSPB overturning the settlement. These types of provisions fall in the “mutual mistake” category. Sometimes, there is a lot more to these agreements than back pay and attorney fees. This time we are going to look at leave issues.

Crediting Leave. In Franchesca V. v. Department of Veterans Affairs, EEOC Appeal No. 0120170632 (Mar. 2017), the complainant filed an age discrimination and reprisal claim.  She retired while the complaint was being processed. A settlement agreement was ultimately executed to resolve the complaint. The agreement said, among other things: “The Agency will, within 60 days of execution of this Agreement initiate restoration of the necessary amount of sick leave (approximately 606 hours) so Complainant retires with a balance of one year [in addition to her other years of service].”

The agency immediately ran into problems executing this portion of the agreement. The payroll office (DFAS, outside of VA) said it was a violation to grant this amount of leave under these circumstances. The agency’s servicing HR office intervened. Finally, the payroll office processed it and submitted the corrected record to OPM.

This lengthy process resulted in the complainant alleging a breach of the agreement, which escalated the matter to the agency HQ. They requested review of the matter, which included the following:

Complainant retired with 29 years and 4 months in service. The OGC staff attorney wrote that the intent of the sick leave restoration provision was to round up Complainant’s service to the next full year for retirement purposes. She wrote that when she negotiated the settlement agreement, she did not know this type of provision was frowned upon and considered an inappropriate use of retirement benefits. The OGC staff attorney wrote that DFAS made it clear that since Complainant never used 606 hours of sick leave, the Agency was asking to credit her more sick leave than she earned, which was not possible. Referring to the settlement negotiations, she wrote that she thought everyone assumed that Complainant would have spoken up if the Agency was offering the “restoration” of leave she never took.

After reviewing the information and consulting with the Department of Justice, the VA’s benefits and leave administration expert determined the provision was not just frowned upon but a violation of the law. The agency could not credit sick leave in excess of what the employee would have earned during her career.

Administrative Leave. In McDavid v. Army, 46 MSPR 108 (MSPB 1990), the appellant was found to be medically disqualified from flying. He was removed from his supervisory pilot position effective July 23, 1987.  McDavid appealed the removal, and it was settled on Nov. 3, 1987. One of the settlement provisions stated the agency agreed to pay him his salary from the date of the agreement until his retirement on Sept. 30, 1988, meaning roughly ten months of administrative leave would be granted.

Here’s what the Board had to say when it reviewed the enforcement action:

In Miller v. Department of Defense, MSPB Docket No. DE07528810290 (MSPB 1990), the Board set aside a settlement agreement on the basis of mutual mistake on which the parties relied in reaching the agreement. In Miller, the parties had entered into an agreement in settlement of the appellant’s appeal from his removal. The agreement provided, among other things, that the appellant would be placed on administrative leave for one year and would thereafter resign. The Board sought an advisory opinion from the Comptroller General, who found that the administrative leave was unlawful. While not bound by the Comptroller General’s opinion, see Apple v. Department of Transportation, MSPB DE07528/C0653-1 (Sept. 14, 1988), the Board found persuasive the Comptroller General’s conclusion that, except for brief absences, unless there is specific statutory authority, the agency could not expend appropriated funds where it received no benefit in return. See Miller, slip op. at 7-8. The Board noted that the Comptroller General advised that the provision granting administrative leave was not in furtherance of the agency’s mission, because the agency had no authority to provide such benefits, even though it was granted in an agreement in settlement of a personnel action. See Id. at 8. Finding that the unlawful provision was central to the agreement, and numerous other provisions were dependent upon it, the Board set aside the agreement.

In today’s world, OPM would be answering compensation and leave claims not covered by negotiated grievance procedures, since responsibility for these matters was moved from GAO to OMB, who in turn delegated the responsibility for adjudication to OPM in 1996.  Given what we know about OPM’s posture on use of administrative leave in conjunction with disciplinary and performance actions as included in their current guidance, as well as the limitations on administrative leave that OPM included in the not-yet-finalized administrative leave regulations issued in July 2017, I would expect OPM would answer the same way today.

Unspecified Amount of LWOP. The settlement agreement in Garcia v. Air Force, 83 MSPR 277 (MSPB 1999), stated that Garcia would be carried in an LWOP status from the date of execution of the settlement agreement until the date he became eligible to retire from Federal service. That’s all it said. There was nothing about the type of retirement or what else the agency might do in relation to the retirement.

The problem was that at the time of the agreement, Garcia was not even close to being eligible to retire optionally. He was 45 years old with almost 25 years of service. Optional retirement would have required a minimum of 55 years of age with 30 years of service. Was the agency agreeing to 10 years of LWOP? (Of course, all that LWOP would have meant Garcia wouldn’t have been eligible to retire then either.)  Or was it as Garcia argued?  That he would be kept in LWOP for six months until he had 25 years or service and reached eligibility for discontinued service retirement – and then the agency would abolish his position?

The agency representative stated he had believed that the appellant would qualify for regular retirement at the end of six months. Unfortunately, that was not the case. The Board set aside the agreement. Haga@FELTG.com