The Good News: New MSPB’s Recent Whistleblower Decision Makes a Lot of Sense

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By Ann Boehm, July 18, 2022

The new, fully constituted three-member MSPB (HOORAY!) sure surprised the heck out of me with its recent decision in Skarada v. Department of Veterans Affairs, 2022 MSPB 17 (2022). Skarada filed an Individual Right of Action appeal claiming whistleblower retaliation, and he lost the appeal. Although he made a protected disclosure, he did not demonstrate by good ol’ “preponderant evidence” that he suffered a “covered personnel action.”

The MSPB tends to interpret “covered personnel action” quite broadly, but not in this case. In the decision, the MSPB reminds us that the employee has the burden to show a “significant change” in duties, responsibilities, or working conditions. Id. “[O]nly agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities, and are likely to have a chilling effect on whistleblowing . . . will be found to constitute a covered personnel action.” Id.

So, what, pray tell, did Skarada think was reprisal? He said his chain of command removed some of his previous duties and responsibilities. He was told to stop attending certain meetings and was excluded from the interview and hiring process for two new hires – not enough to be a significant change in his duties or responsibilities, according to the MSPB.

He also claimed his chain of command subjected him to a hostile work environment. (We see that allegation a whole heck of a lot!) The alleged offenses: “his supervisor avoided him or walked away from him on multiple occasions, often responded to his questions by stating he did not know the answer and failed to provide him adequate guidance.” Id.

In addition, he claimed his chain of command treated him in a “hostile manner.” His supervisor “yelled” at him that he needed to fix something. His supervisor “’grabbed [his] arm to pull [him] into a room’” and “yelled” at him about reporting improper patient care; and the Chief of Staff “yelled at him, accused him of ‘making up our service data,’ and told him to ‘shut up’ during a meeting. Id. Lots of “yelling,” eh?

He claimed the meeting exclusions were also part of the hostile work environment. Plus, apparently the agency “convened investigations against him.” Id.

But was any of this harassment? Not according to the MSPB. Skarada failed to show that the agency’s actions “constituted harassment to such a degree that his working conditions were significantly and practically impacted.” Id.

In my humble opinion, the way the MSPB explains these allegedly harassing working conditions is good for the Republic: “[h]is chain of command may have been unresponsive to his requests or untimely in providing guidance, but such deficiencies do not amount to harassment.” Id. (emphasis added). Also, three incidents of “yelling” were “spread out over the course of a year and, while unprofessional, were not sufficiently severe or pervasive to significantly impact the appellant’s working conditions.” Id. (emphasis added).

The investigations were only “inconvenient” and did not result in any action against Skarada. The “remaining allegations represent mere disagreements over workplace policy.” Id. (emphasis added). Even though the MSPB acknowledged that he may have had an “unpleasant and unsupportive work environment,” he did not demonstrate a “significant change in his working conditions” under the Whistleblower Protection Act.

There you have it, my friends. Being unhappy at work does not equate to a hostile work environment. I don’t recommend supervisors yell at and grab their employees, but this case shows that a hostile work environment, at least in the whistleblower context, is much more than an unpleasant work environment. And that’s Good News. Boehm@FELTG.com

Editor’s Note: Register now for the 60-minute webinar The Why, When, and How of Whistleblower Law Under the New MSPB on September 8.

She/Her/Hers, He/Him/His, They/Them/Theirs: Pronouns in 2022

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By Deborah Hopkins, July 18, 2022

There are many polarizing topics (abortion, gun control, COVID-19 vaccines, political affiliation) in this country. We’re going to address another topic that generates feelings almost as strongly in certain circles: pronoun use and gender identity.

Last month, the EEOC introduced a gender marker option X for non-binary individuals who wish to file complaints. The State Department allows gender X on passports and travel documents, and some agencies are considering requiring all employees to identify their preferred pronouns in their email signatures.

Pronouns are an important piece of the gender identity equation, including within the context of the workplace. Refusal to use an employee’s preferred pronoun, or name, has been problematic for agencies in recent years, not just from a liability perspective but because of the impact of the harassment on the complainants.

As more employees share their pronouns in email signatures, on social media, and in participant lists on Zoom sessions, it’s worth a review of the law on this topic.

Pronouns fall under the sex discrimination umbrella of Title VII workplace protections, within the sexual orientation and gender identity (SOGI) category, and violations of pronoun or name use could result in illegal discrimination or harassment. Complainant v. USPS, EEOC Appeal No. 0120122376 (February 19, 2013), request for reconsideration denied, EEOC Request No. 0520130241 (Jan.10, 2014). EEOC recently addressed a specific question in a Q & A document:

Q: Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?

A: Yes, in certain circumstances. Unlawful harassment includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive. In its decision in Lusardi v. Dep’t of the Army [EEOC Appeal No. 0120133395 (Apr. 1, 2015)], the Commission explained that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment. [bold added]. EEOC’s Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity, Q. 11. [bold added]

While intentional misuse can violate the law, accidental misuse of a transgender employee’s preferred name and pronouns does not generally violate Title VII. EEOC’s Sexual Orientation and Gender Identity (SOGI) Discrimination. Take, for example, Colleen M. v. USDA, EEOC Appeal No. 120130552 (May 25, 2016). In this case, the supervisor referred to the complainant, a trans female, as “Eric” even though the complainant no longer used that name.

There was no evidence the supervisor used that name intentionally, and “when it was brought to [the supervisor’s] attention that he made an error, he went to the union and explained to them that there was no malicious intent, and he apologized to Complainant.” This one instance followed by a prompt apology, did not state a claim.

A number of cases can help determine the point when pronoun misuse becomes severe or pervasive and creates a hostile environment. It’s a topic your agency is sure to deal with more frequently as the Administration continues its advancement of Diversity, Equity, Inclusion, and Accessibility (DEIA) in the Federal workplace. Training is a vital component to getting this right, so please bring your entire agency (supervisors, employees, and contractors) and join me on August 2 from 1 – 2pm ET for the webinar Promoting Inclusion: Pronoun Use and Gender Identity in the Workplace. Hopkins@FELTG.com

Supervisors Should Learn to Recognize Signs of Suicidal Ideation

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By Michael Rhoads, July 18, 2022

Shana Palmieri, LCSW and FELTG Instructor

For far too long, mental health services have carried a stigma. It’s important to know where to turn when you’re experiencing a mental health crisis or suicidal ideation.

The 988 Suicide & Crisis Lifeline came online last week, offering nationwide 24/7 access to mental health care. The Lifeline provides free and confidential support for people in distress, prevention and crisis resources, and best practices for professionals. This is a step forward and elevates mental health to the emergency service some desperately need. Of the many topics surrounding mental health, suicide is one of the most, if not the most, taboo.

According to the CDC’s website on suicide facts, an estimated 12.2 million American adults seriously thought about suicide in 2020. More than 3 million planned a suicide attempt, and 1.2 million attempted suicide. It affects all ages. In 2020, suicide was the second leading cause of death in people ages 10-14 and 25-34. It affects our friends, family, and our community at large.

The good news is suicide is preventable. Agencies can create policies that promote a protective environment and a culture of good mental health. It is important for supervisors to recognize the signs of those who might have suicidal ideations.   FELTG Instructor Shana Palmieri, LCSW will conduct a 75-minute session on Managing a Potentially Suicidal Employee on August 30 from 3 – 4:15 pm ET.

If you or someone you know is experiencing a mental health crisis or suicidal ideation, please seek help at your nearest hospital or crisis intervention center. Or dial 988. Be safe, and remember, we’re all in this together. Rhoads@FELTG.com

Post-Santos: Timing, Precedents, Retroactivity in Performance Cases

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By Deborah Hopkins, July 18, 2022

Most Federal employment law practitioners remember the day last year when the Federal Circuit issued Santos v. NASA. It set a new requirement for agencies to provide substantial evidence of unacceptable performance before implementing a performance improvement plan (PIP).

One of the questions that had lingered for more than a year was how the new MSPB would interpret and apply Santos to the performance-based removals and demotions in its PFR backlog. Would the ruling be retroactive or only apply to performance-based removals after March 11, 2021? Would MSPB reject Santos or try to find a way around it?

Well, because we have a functional MSPB, we now have an answer to those questions, and along with a new framework for agencies to follow in implementing removals or demotions under Chapter 43. Let’s look at the language of the case:

To defend an action under chapter 43, the agency must prove by substantial evidence that:

  • OPM approved its performance appraisal system and any significant changes thereto;
  • the agency communicated to the appellant the performance standards and critical elements of her position;
  • the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
  • the appellant’s performance during the appraisal period was unacceptable in one or more critical elements;
  • the agency warned the appellant of the inadequacies in her performance during the appraisal period and gave her an adequate opportunity to demonstrate acceptable performance; and
  • after an adequate improvement period, the appellant’s performance remained unacceptable in at least one critical element.

The Federal Circuit’s new precedent in Santos applies to all pending cases, regardless of when the events at issue took place.

Lee v. VA, 2022 MSPB 11 (May 12, 2022). [bold added]

The new element here is number 4, proof that the appellant’s performance at any point during the appraisal period (but before the PIP) was unacceptable. While most agencies pre-Santos likely did not make such information part of their removal cases, I imagine (or do I just hope?) that most agencies will be able to provide this information on remand. One of FELTG’s best practices has always been for agencies to keep documentation of the reasons why the supervisor implemented the PIP, even if that information wasn’t given to the employee. Anecdotally, I can tell you that most of the supervisors in my training classes have such documentation before they move to implement a PIP.

What does a remand look like in these cases? In Lee, MSPB ordered that “[o]n 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. The administrative judge shall hold a supplemental hearing if appropriate.”

Some of you might be wondering why this VA case discusses use of a PIP. Under the 2017 VA Accountability and Whistleblower Protection Act, a PIP isn’t required for the VA to remove an employee for unacceptable performance. That’s because the events in this case occurred before the implementation of the new VA law, and the MSPB agrees with the Federal Circuit “because it is based on performance that occurred several years before the Act went into effect. Accordingly, the appellant’s removal must be adjudicated under chapter 43 on remand.”

One case has provided us with a couple of very important answers to long-held questions. We at FELTG anxiously await the 3,300 remaining decisions yet to be issued. Hopkins@FELTG.com

No BS: Prepare Your Agency for Possible BA.5 Wave

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By Dan Gephart, July 18, 2022

Folks, it ain’t over yet.  Forget the crowds of unmasked frolickers you’ve seen on your summer adventures or the lack of above-the-fold headlines about death rates or hospitalizations. COVID is still very real. And there’s a chance we are in for some hard times ahead. How hard those times will be, though, is still not certain.

The BA.5, the most dominant variation of omicron, has residents across Europe and China bracing for a widespread wave and potential lockdowns. Here in the United States, however, we don’t really know what we’re dealing with. Some far-reaching areas of the web will have you believe the BA.5 variant is more contagious than strep throat at a high school party. But ask others about BA.5 and they might think you’re talking about a new boy band.

Since most people take COVID tests at home and others don’t test at all, the numbers being reported each day could be woefully underestimated. Or not. The mixture of conflicting information and COVID fatigue makes it hard to get an accurate sense of the situation – and to get people to care about it.

Regardless of its level of transmissibility, the BA.5 variant is poised to hamper efforts at bringing employees back to physical offices, endanger those who already work in those offices, and diminish agency productivity. Serious repercussions of BA.5 could happen in the next couple weeks. Or picture this: A COVID wave running through your agency as you and your colleagues are trying to put a wrap on the fiscal year. What can you do?

First, take care of yourself. Your best tools are still to avoid crowds, mask up when necessary, and get vaccinated.

As for your agency, you may decide to screen employees for COVID. Some agencies have temperature screening plans in place. As the EEOC notes in its guidance, measuring an employee’s body temperature is a medical examination, which is not permissible under the Rehabilitation Act, with a few exceptions. Because “the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.”

But temperature screens are not that useful. An ongoing UK study found fewer than one-third of the people who self-reported COVID symptoms included fever among them.

Requiring employees to take a COVID test before they return to the workplace is an option, although this is also tricky. The EEOC updated its guidance on COVID tests just this month. Like temperature screens, COVID tests are considered a medical examination, yet they can be used in certain situations.

The EEOC’s guidance:

A COVID-19 viral test is a medical examination within the meaning of the ADA. Therefore, if an employer implements screening protocols that include COVID-19 viral testing, the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing. Be aware that CDC and other public health authorities periodically update and revise their recommendations about COVID-19 testing, and FDA may revise its guidance or emergency use authorizations, based on new information and changing conditions.

When assessing whether you meet the “business necessity standard” to administer COVID tests, consider the following:

  • The level of community transmission.
  • The vaccination status of employees.
  • The degree to which breakthrough infections are possible for employees who are up to date on vaccinations.
  • The ease of transmissibility of the current variants.
  • The possible severity of illness from the current variant.
  • How much contact employees have with each other in the workplace.
  • Potential impact on operations if an employee enters the workplace with COVID.

That’s a lot of information. If you want to keep your employees healthy and productive, keep an eye on guidance from the CDC and EEOC. That’s what we’re doing at FELTG. Every session we offer provides the most up-to-date information available. These upcoming events can help make your return-to-workplace transitions smoother:

Gephart@FELTG.com

Ask FELTG: Can Discipline Be Used as a ‘Prior’ to Aggravate the Penalty?

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A FELTG reader shared the following hypothetical scenario:

An employee is issued a decision to suspend dated July 1. The dates of the suspension stated in the decision are August 3-7.  If any misconduct that happens between July 1 and August 7, can that be considered as a “prior” offense in a future disciplinary action? 

Also, how are paper suspensions implicated in this type of scenario?

And FELTG’s answer:

Discipline may not be relied upon as a prior until it has been fully served. In the example above, the discipline is not a considered a prior until after the suspension ends on August 7, regardless of the dates the proposal or decision letter are issued. See Fowler v. USPS, 77 MSPR 8 (1997), which discusses this concept in detail.

If the action is a paper suspension, where an employee is “suspended” on days they weren’t scheduled to work, then it doesn’t count as a suspension UNLESS the agency has an agreement with the employee (in writing), or a union contract says, that the paper suspension carries the weight of an X-day suspension for the purposes of discipline.  Otherwise, the law at 5 USC 7501.2 requires a loss of pay in order for an action to meet the definition of a suspension.

Good luck, and remember to always check the calendar when relying on past discipline.

Have a question? Ask FELTG.

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

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

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By Deborah Hopkins, June 27, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

Biggest MSPB Decision in Over a Decade: The Comparator Framework for 2022 and Beyond

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By Deborah Hopkins, June 21, 2022

We’ve had a quorum for more than three months and a full front office at the MSPB for about three weeks. And now, thanks to what might be the most significant case issued in over a decade, we have a clear, specific, and reasoned answer about who counts as a comparator employee in an adverse action under Douglas factor 6.

Why is this such a big case? In its first three decades when assessing appropriate comparators, the Board required there to be a close similarity in offenses, and generally that comparators worked in the same unit, and worked for the same supervisors. Anything further out was too far removed to be reasonable for the agency to consider. See Jackson v. Army, 99 MSPR 604, ¶ 7 (2005); Fearon v. Labor, 99 MSPR 428, ¶ 11 (2005); Rasmussen v. USDA, 44 M.S.P.R. 185, 191-92 (1990); Archuleta v. USAF, 16 MSPR 404, 407 (1983).

Those of you in the business in 2010 probably recall when the Board changed the comparator framework. It issued what we at FELTG started referring to as the Terrible Trilogy:

  • Woebcke v. DHS, 2010 MSPB 85
  • Lewis v. VA, 2010 MSPB 98
  • Villada v. USPS, 2010 MSPB 232

In case you weren’t around back then, or you’ve forgotten since it was a long time ago, we called those cases The Terrible Trilogy because they expanded the comparator analysis to include nearly anyone in the agency who engaged in broadly similar misconduct to the appellant.

This created a huge burden for agencies, particularly the large agencies, to determine which employees had been disciplined for misconduct and then to apply a consistent penalty to all employees who engaged in somewhat similar conduct, regardless of their location, their job duties, or their supervisors. It also caused potential problems for agencies when employees engaged in specific acts of misconduct but weren’t disciplined at all, which is a too-common occurrence in the Federal government.

At FELTG, we are all about fairness of penalty. However, we felt that this broad requirement was cumbersome and unnecessary to fulfill the intent of the Douglas factors. And, according to the new MSPB in this precedent-setting 2022 case, under the Terrible Trilogy standard “the universe for potential comparators was seemingly limitless” and broader than Douglas requires. Singh v. USPS, 2022 MSPB 15 (May 31, 2022).

The Board also said of the Trilogy framework: “[I]n some cases the consistency of the penalty has become not only more important than any of the other Douglas factors, it has become the sole outcome determinative factor. We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.”

Who is a comparator employee today under Douglas factor 6, consistency of penalty?

  • Employee in the same work unit,
  • With the same supervisor,
  • Who engaged in the same or similar misconduct as the appellant.

In most cases, employees from another work unit or supervisory chain will not be proper comparators. There is an exception when, in certain unique circumstances, an employee from another work unit or supervisory chain might be a comparator for penalty purposes – but only if there is an “unusually close connection” in the type of misconduct. And even still, comparator employees cover just one of the 12 Douglas factors.

A few other notable words from the Board in Singh: “In assessing an agency’s penalty determination, the relevant inquiry is whether the agency knowingly and unjustifiably treated employees differently…We hereby reiterate that the consistency of the penalty is just one of many relevant factors to be considered in determining an appropriate penalty.” [bold added]

Therefore, the Terrible Trilogy and their related cases are overruled, and the question that has been lingering for over half a decade (What will be the fate of the Trilogy under a new Board?) finally has an answer. We’ll be discussing this case, plus others, in much more detail on July 20 during the virtual class Back on Board: Keeping Up with the New MSPB. Hopkins@FELTG.com.

Two Discipline Best Practices Everyone Should Know

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By William Wiley, June 21, 2022

In a recent, relatively unremarkable, non-precedential decision from the Merit Systems Protection Board, I ran across this line:

After reviewing … the appellant’s written reply, as well as the information provided during the oral reply, the deciding official issued a decision … mitigating the proposed removal to a 30-day suspension.

We’ve been teaching the best practices of Federal civil service law for more than 20 years. Most of these best practices were not invented by us. They grew from a careful reading of the 20-plus years of MSPB case law that preceded our founding. The above quote tells us some agencies still don’t understand these basic best practices of civil service accountability. What do we see here that sticks out like a sore thumb? What best practices appear to have been violated here?

BEST PRACTICE No. 1: Do not suspend for more than 14 days.  If an agency suspends an employee for 14 days or fewer, the employee’s challenge to that action stays within the agency (except for affirmative claims that the employee will have to prove before EEOC or the US Office of Special Counsel). There are three good reasons for keeping suspensions short:

  1. An employee can challenge a longer suspension of more than 14 days to the MSPB. At the discretion of the employee, an appeal to MSPB will include an in-person hearing before an administrative judge (with all the related legal filings, official-time testimony, and untoward publicity), review and an opinion by the three Presidentially appointed Board members, review and a decision by at least three Federal judges on the Federal Circuit Court of Appeals, and even consideration by the nine Justices of the US Supreme Court. An employee’s challenge to a suspension of 14 days or fewer stays within agency management, usually just one step above the manager who implemented the suspension (unless the employee is in a union that agrees to hire an arbitrator to hear the grievance). You should not have to think about these two redress options to appreciate why a longer suspension is more resource-hungry and less certain of a righteous conclusion than 14 days or fewer.
  2. Suspending an employee adversely affects the agency. Either the employee’s work does not get done for the length of the suspension, coworkers must assume the extra burden of the employee’s workload, or the work is done by outside contractors ($$$). The longer the suspension, the greater the cost to the agency.
  3. Discipline should be corrective, not punitive. The government gains nothing by punishing employees unless that punishment acts to correct the employee’s misconduct. Although it may seem counterintuitive, there are no science-based studies that conclude that a longer suspension is more likely to dissuade the employee from future misconduct than is a shorter suspension. Look it up.
  • Do you really want to punish employees to get them to do their darned job? There’s good reason to never suspend an employee for disciplinary reasons, but if you must, at least keep it short. 

BEST PRACTICE No. 2:  Do not mitigate a proposed removal to lesser discipline. Hopefully, you know how adverse actions usually work in the Federal government. First, the immediate supervisor issues a proposal notice to the employee that specifies (a) the misconduct and (b) the level of discipline that the supervisor thinks is warranted. Then, a higher-level manager, the “deciding official”, hears the employee’s defense and decides whether the proposed level of discipline or some lesser discipline is warranted. It appears from the above statement that the DO concluded that the proposed discipline was excessive, and unilaterally mitigated the proposed removal to a suspension.

That’s all perfectly legal. However, there is a better way to approach this situation. When a DO concludes that a lesser penalty is warranted, the best approach is to have someone on behalf of the DO talk with the employee and his representative to see if the employee would be willing to voluntarily accept a lesser penalty than the one proposed: “Pat, the Director has considered the proposed removal and heard your response. She thinks that what you did is wrong and that your removal is warranted. However, the Director also believes that you might have learned your lesson and might be able to follow our rules in the future. If you would be willing to admit your mistake, acknowledge responsibility for your actions, and voluntarily accept a lesser disciplinary action, she would be willing to impose a 14-day suspension instead of a removal.”

If the employee accepts the offer, you draft a nice agreement that says that the employee waives all appeal/grievance/complaint rights in exchange for the lesser discipline. If the employee says, “Heck, No! I’ll see you in court, you stinkin’ management goon!!” the DO can still mitigate the proposed removal to a suspension if that’s what’s warranted. Or even stick with the proposed removal, referencing the employee’s refusal to accept responsibility as an aggravating Douglas penalty-selection factor.

There are a lot of people in our field who provide advice to agency management officials. Some use the best practices that we teach at FELTG and do a good job. Others … well, let’s just say that for the sake of our great country, we hope they learn to do better. Wiley@FELTG.com

The Good News: Lack of Candor is Better than Falsification, So Use It!

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By Ann Boehm, June 21, 2022

In a misconduct case involving an employee providing false information, don’t charge “falsification” even if it’s for improperly filed time cards. I know — it isn’t logical but trust me on this one. In the office, you can call it “falsification of time cards,” but don’t use that terminology if you discipline the employee, and I wouldn’t even use it in an email. Use the kinder and gentler charge that we use in government speak – “lack of candor.” Don’t believe me? A recent MSPB case makes this crystal clear.

In Sheiman v. Department of the Treasury, SF-0752-15-0372-I-2 (May 24, 2022)(NP), a GS-13 senior appraiser for the Internal Revenue Service seemed to think he was entitled to play golf during work hours, and while on sick leave too. An investigation revealed that “between August 2006 and August 2013 the appellant ‘golfed during official IRS duty hours on at least 205 days for which he claimed no annual leave on his official IRS timesheets.’” Id., slip op. at 2.

Out of those 205 days, he claimed sick leave on 30 days, was on official travel for 5 days, and either he or his vehicle were observed at various Hawaii golf courses during official duty hours on 4 days.” Id.

You gotta feel for the guy. He lived in Hawaii. Golf was calling him. Ok, maybe not. Fire him!

The agency removed him based upon two charges: “168 specifications of providing false information regarding his official time and attendance records, and 29 specifications of providing misleading information regarding his official time and attendance records.” Id. He appealed his removal to the MSPB, and the administrative judge found the agency failed to prove the “providing false information” charge because it “failed to demonstrate that the [employee] had the intent to defraud or deceive necessary to prove a falsification charge.” Id., slip op. at 3 (emphasis added).

Aargghhh. We at FELTG warn agencies about such things. Properly charging misconduct in the Federal government is something of an art. There are two universal truths to charging: An agency must prove every word of a charge by a preponderance of the evidence; and when using certain labeled charges, the agency not only has to prove every word of the charge, but also the elements of the charge by a preponderance of the evidence.

“Falsification” (which includes “lying” and “misrepresentation”) is a labeled charge. It requires proof that the employee supplied incorrect information, provided with the intent to mislead, for private material gain. Boo v. DHS, 2014 MSPB 86.

It is very hard to prove intent. Agencies frequently lose cases because they use a labeled charge that they cannot prove. There’s not a good reason to use a labeled charge, like falsification. The rest of the Sheiman case explains why.

You see, the MSPB AJ did sustain the second charge—the “providing misleading information” charge that the AJ “interpreted as akin to a lack of candor, thus requiring a lesser showing of intent than falsification.” Sheiman, SF-0752-15-0372-I-2, slip op. at 4 (emphasis added). You get that? The agency won on the “lack of candor” charge.

Sadly, this case resulted in long drawn-out litigation. The AJ mitigated the removal to a 30-day suspension. When you fail to prove a charge, the MSPB can reweigh the penalty factors. When the AJ did that, he decided removal was not reasonable.

The agency appealed to the MSPB and waited years for a quorum. The MSPB agreed with the AJ’s findings on the charges – the agency failed to prove the “falsification” charge but proved the “lack of candor” charge. However, the MSPB disagreed with the AJ’s determination on penalty and reinstated the removal. Fortunately for the agency, the deciding official “stated in his decision letter that removal was an appropriate penalty for each charge independently.” Id., slip op. at 12. Hooray for the deciding official!! According to the MSPB, “the administrative judge erred in revisiting his penalty assessment on the basis that the agency only proved one of its two charges.” Id.

Phew! The right decision emerged from this mess. But the agency never should have put itself in this disastrous place.

Learn from this case. Don’t charge “falsification.” There’s simply no need to do so when “lack of candor” works just as well (removal was justified under that charge!!), and it’s easier to prove. Easier is better! And that’s Good News. Boehm@FELTG.com