Performance Isn’t About Can’t Do vs. Won’t Do

, , ,
By William Wiley, September 7, 2021

Below is an email we received from a FELTG student, lightly edited for space and context, followed by our FELTG answer.

Dear FELTG,

I attended your MSPB Law Week in person last year just before everything was shut down due to COVID. I recall your discussion about performance management, and you made a statement that I swear I wrote down but cannot find in my notes. I was wondering if you might be able to reiterate. You said something along the lines of “Performance vs. conduct is not a matter of can’t do and won’t do.” This can’t vs. won’t is something I was taught as a young ER practitioner some years ago. However, your explanation was MUCH better!

Thanks in advance.

And the response:

Ah, the old “can’t do vs. won’t do.” Has a nice ring to it. The reason that FELTG teaches that this is an incorrect concept is based in law and, unfortunately, the law doesn’t always have a nice catchy rhythm.

If we read the statute that lays out the procedures for taking a performance-based removal (codified at 5 USC 4303), we don’t see anything that speaks to volition. Therefore, the willfulness of an employee’s unacceptable performance is not a matter of law with which we need to be concerned when initiating a performance removal. We don’t have to care whether the employee says, “Boss, I refuse to work that hard” or “Boss, I can’t work that hard.” If the employee is not performing at a level that the supervisor sets as the minimum level of performance, we can initiate a 432-performance action.

Being able to initiate a 432-performance action without concern for can’t v. won’t is important for several reasons:

  • It’s one less case element we have to prove on appeal. It gives the employee one less thing to argue with us about. Reducing arguments is a very desirable outcome.
  • 432-performance actions are a fast, efficient procedure for dealing with a documented non-producing employee. We can initiate a 432 action today by giving the employee a notice that specifies the performance elements being failed, and then propose the employee’s removal 31 days from now if performance does not improve to the minimal level. In contrast, a 752-misconduct action (a reference to 5 USC Chapter 75 adverse action removal procedures) many times involves an initial Reprimand (which might be grieved), followed by a proposed-then-decided Suspension (which also might be grieved), and THEN by an eventual proposed Removal. Those steps invariably take more than 31 days.
  • Separately, performance-based removals need be supported by only substantial evidence, whereas misconduct-based removals must be proven by the higher burden of a preponderance of the evidence. And MSPB cannot mitigate a performance-based removal to something else. No Douglas Factors to worry about. 432-removals are the preferred procedure to deal with problem employees who can’t or don’t do what they are told to do performance-wise.

In addition to all of this, we have to acknowledge that there are exceptions to the concept that can’t-do problems are necessarily addressed via a 432-performance-based action. We routinely use 752-adverse-action procedures to remove employees who can’t do things, e.g.:

  • The employee who can’t come to work because of matters beyond the employee’s control where leave has been approved (Excessive Absence)
  • The employee who has a medical limitation and, thereby, can’t perform an essential job function (Medical Inability to Perform)

I hope you either read one of our earlier FELTG articles and/or attended our webinars that explained that the Federal Circuit recently changed what management is required to do when confronted with a non-performing employee. Previously, we had to prove that the employee was put on notice of on-going unacceptable performance (usually by the supervisor initiating a Demonstration Period, i.e., a DP), and then prove that the employee did not perform acceptably during the DP. Now, we also must prove that the employee was performing unacceptably BEFORE the DP was initiated.

Bottom Line: Assessing whether a problem with an employee is “can’t do or won’t do” is unnecessary and possibly misleading. It’s better just to focus on the outcome when dealing with a poor performer. When it comes to the concept of volition – can’t do vs. won’t do – Master Yoda said it most succinctly, “You must unlearn what you have learned. … Try not. Do, or do not. There is no try.” Hey, if we can’t rely on the wisdom of a little, old, green alien, who can we trust?

Best of luck out there. Wiley@FELTG.com

 

And Now a Word With … Ambassador Gina Abercrombie-Winstanley

, ,

By Dan Gephart, August 23, 2021

A year ago, the concept of “diversity training” was as welcome in the Federal workplace as a squirrel at a dog park.

But it’s now been almost seven months since President Joe Biden took office and immediately issued two Executive Orders aimed not just at bringing back diversity training, but also at improving the diversity, equity, inclusion, and accessibility of the Federal workplace – and the customers it serves.

This sudden about-face has left many agencies scrambling to figure out how to meet the goals laid out in those two Executive Orders, as well as the third diversity-related EO issued a couple months later.

We reached out to Ambassador Gina Abercrombie-Winstanley, who was recently named the first Chief Diversity and Inclusion Officer at the US Department of State. Ambassador Abercrombie-Winstanley’s 30-year diplomatic career includes stints advising the Commander of U.S. cyber forces on our foreign policy priorities, expanding State’s counterterrorism partners and programs, and coordinating the largest evacuation of American citizens from a war zone since WWII. She remains the longest serving U.S. Ambassador to the Republic of Malta.

Ambassador Abercrombie-Winstanley is not opposed to taking on another difficult challenge. After all, State is sometimes derided as too “male, pale and Yale.” Ambassador Abercrombie-Winstanley’s focus early on in her tenure as Chief Diversity and Inclusion Officers has been on getting the right data and finding the barriers to diversity.

DG: Everyone seems to have different definitions of diversity and/or inclusion. How do you define the terms?

GA: Diversity, of course, is a nice broad term that can mean any number of things. Our focus is on those who are underrepresented in the Department of State and part of protected classes as EEO lays them out. It’s a pretty specific definition on the one hand with how we’re going to be judged. In the department, we include a wide variety of aspects of human beings – backgrounds, perspectives, lived experiences brought about by visible differences, that is how we would define the diversity aspect of it.

The inclusion part and the accessibility part aren’t ensuring that everyone reaches same destination or same level because that’s impossible, but that everyone has ability to reach their potential within our organization. What we want not to do is waste talent. We don’t want to waste the money we spend on training, or on fellowships for people to join the State Department. The money from our budget is taxpayer money. If people are feeling stymied, unfairly disadvantaged, or discriminated against or dis-included, you’re wasting the talent, the resources. Our job is to make sure we make measurable improvements in those areas.

DG: What is your top priority or first goal as Chief Diversity and Inclusion Officer?

GA: Two things we started doing my first day as secretary were communication and messaging. We have talked about (the value of diversity) a long time, and there’s a high level of skepticism in our organization. Why is this going to be any different than last time? We have to combine not only giving the message in a consistent, clear, and measurable way, but we also have to build the trust. Building the trust means listen to what we say and watch what we do.

To measure our accomplishments, we have to know where we are right now. We have done some work. One of my colleagues said “Gina, nothing but the hard stuff left for you.” You have to get that baseline, as everybody knows.

We are grappling with the numbers. Many don’t self-report. We want to know why (they) didn’t. There are several reasons, (such as) they thought it wouldn’t make a difference. But that information goes into how much money we give, how much effort we give, and how much success we will have.

DG: In your experience, what are the challenges faced by members of historically underrepresented groups within the State Department?

GA: I hosted an extraordinary roundtable yesterday on the anniversary of the ADA — me interviewing four employees, two posted overseas and two domestic, who have disabilities of various sorts. They talked about what works, what has been helpful from managers and supervisors, and what can we do to ensure their inclusion and their success. I was taking notes as furiously as anyone at that table.

Of our four panelists, only two had self-identified themselves. I’m sure both will go in and do it in short order. We need people to understand that the data on race, gender, sexual orientation, disability that we need to collect … none of that is connected to names. It’s anonymous data. What percentage we have. It doesn’t come with names, just the categories of the protected classes.

People say, “I don’t want to identify, maybe someone will discriminate against me.” And then I talk about the intersectionality of it, that we are responsible for each other. There are women and people of color who can’t hide it. We need to demand our organization value us for who we are.”

DG: Is it harder to do this job being the first person to hold the title, or do you think that it provides you freedom in that you’re not beholden to doing things a certain way?

GA: I have to spend time building. I hope we don’t have to pass the baton too many times. Our plan is to make our changes systemic. It’s just how we do business. I’m the first diversity and inclusion officer, but the department has made some changes over time. Work has been done in different smaller subtexts. Our Office of Civil Rights has done work. We’re trying to consolidate some of that, so we’re not reinventing the wheel here.

We really have to scrub those numbers, get that data. Whatever we do in this organization is going to be data-based. We have a lot of anecdotal evidence, but I want black and white. We have women not getting to senior positions. We have 87 percent of European Americans in leadership positions – a proportion that does not reflect the ability of everyone within the organization. Why does that happen? What are the choke points?

We have to identify what the barriers are, determine whether we’re asking the wrong questions, or is something wrong with how we advertised the position. Barrier analysis is a major tool in what we have to get after. A little of that has been done already, but my office intends to do it in a robust fashion.

DG: Is there a measure or mark by which you will judge your success? In other words, what will success look and feel like to you once the State Department’s diversity and inclusion goals have been met?

GA: The long-term goal — no quotas, no numerical target, per se. Our organizations should look like America, but it’s very clear we’re not near that. We must make sure that we have everything in place so that if people enter in this career and they have the ability to do this career and they have the willingness to do this hard work because being a diplomat is hard work, but very gratifying … if people are willing to give themselves to public service, it’s incumbent on us to get the unnecessary barriers out of their way. And that’s what we’ll look at as success. Gephart@FELTG.com

FELTG Instructor Marcus Hill contributed to this article.

Undoing the Last Four Years: Federal Circuit Clarifies the Burden of Proof in VA Discipline

, , ,

By Deborah Hopkins, August 13, 2021

Over the last four years, the VA has enjoyed a lower burden of proof in taking disciplinary actions against employees covered by the VA Accountability and Whistleblower Protection Act, 38 USC 714. Indeed, Congress passed this law in 2017 to make it easier to fire bad employees at the VA.

Between then and today, we have learned that the law is not retroactive for actions that occurred prior to its enactment (Sayers v. VA, 954 F.3d 1370 (Mar. 31, 2020); Brenner v. VA, No. 2019-2032 (Mar. 9, 2021)) and that, while MSPB has no penalty mitigation authority in actions taken under this law, agencies must show by substantial evidence that their selected penalty is reasonable. Mogil v. VA, No. 2018-1673 (Fed. Cir. May 1, 2019). Ok, fine. We can live with that.

Now, get ready.

On August 12, the Federal Circuit hit us with a big one. In this case, a Supervisory Consumer Affairs Specialist named Ariel Rodriguez yelled and used profanity at a patient in a VA facility. The confrontation escalated and the police were called. The police had to escort Rodriguez to his office because he was so agitated. After that, Rodriguez returned to the reception area, where he again confronted the patient. During the investigation that followed, Rodriguez was dishonest in his account of the events that occurred. He also attempted to influence one of his employees to alter her testimony to the investigator.

Rodriguez was removed on three charges: (1) disruptive behavior toward a veteran patient; (2) conduct unbecoming a federal supervisor, and (3) lack of candor. The facts justified an easy removal for the VA – or so we all thought. Plenty of witnesses, police activity, a patient’s wellbeing in danger, clear nexus – no question there was substantial evidence of misconduct and substantial evidence to support removal.

But wait.

The Federal Circuit saw things differently. There are two huge new takeaways that every management official at the VA must be aware of, courtesy of this case, Rodriguez v. VA, No. 2019-2025 (Fed. Cir. Aug. 12, 2021).

  1. The standard of proof for a VA to take a disciplinary action is a PREPONDERANCE of the evidence; the substantial standard in the statute only refers to MSPB’s review of the action.
  2. The VA must complete a Douglas factors analysis for its disciplinary actions, even though the MSPB lacks authority to mitigate the agency’s penalty.

Let’s look at each in turn.

  1. Burden of Proof

For the past four years, just about everyone in this business has been under the impression that the language in 38 USC 714(d)(2)-(3) “if the decision is supported by substantial evidence” meant that the agency action also required the substantial evidence standard. It’s even in the VA’s Discipline policy.

But the Federal Circuit said otherwise:

The references to “substantial evidence” in section 714 are all explicitly directed to the standard of review to be applied by administrative judges and the Board. Those references do not address the standard of proof to be applied by the DVA in making disciplinary determinations, nor does the remaining text of section 714 explicitly address the standard of proof in proceedings before the DVA…[T]he language of section 714 implies that the proper standard is the preponderance of the evidence. Section 714 provides that an employee may be removed, demoted, or suspended “if the Secretary determines the performance or misconduct of the covered individual warrants” such action. In the case of a disciplinary action based on misconduct, the requirement that the Secretary “determine” that the misconduct in question warrants disciplinary action implies that the Secretary must find that it is likely, i.e., more likely than not, that the employee has engaged in the misconduct that justifies the proposed discipline. [bold added]

The court’s explanation included discussion that if substantial evidence was the standard used, a Deciding Official would be required to find against the employee with regard to the charged misconduct even if the Deciding Official did not personally agree with that conclusion, because when substantial evidence is applied, a reasonable person might disagree and yet the standard is still met. The court said in no uncertain terms that the VA Accountability and Whistleblower Protection Act does not contain “any language stating explicitly, or even implicitly, that the burden of proof in disciplinary actions should be substantial evidence.”

Because the agency applied the substantial evidence standard in this case, what we now know is an incorrect standard, it was remanded back to the MSPB.

  1. Douglas Factors

Because the VA Accountability and Whistleblower Protection Act explicitly states that the MSPB does not have the authority to mitigate the agency’s penalty (38 USC 714(d)(2)(B)), in the first year or two after the law’s enactment the VA was (and the rest of us were) under the impression that Douglas factors were not required. In other words, if a penalty could not be mitigated, then there was no need to justify the penalty – and penalty defense is the primary reason why agencies use the Douglas factors.

Starting in 2019, the Federal Circuit determined that there must be substantial evidence the agency’s penalty is reasonable, otherwise the MSPB could remand a case back to an agency to determine a more appropriate penalty. Mogil, above.

The court in Rodriguez takes things further and says, “this court has made clear that the absence of mitigation authority does not deprive the Board of the authority to review penalties for substantial evidence” and that mitigation authority is completely divorced from “the power to review and strike down the DVA’s imposition of penalties that are arbitrary, capricious, an abuse of discretion, or not in accordance with law.” To that end:

For a reviewing tribunal to find a decision not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, that decision must have been based “on a consideration of the relevant factors and whether there has been a clear error of judgment…” [citation omitted] Accordingly, because the Board must review the DVA’s penalty selection in a section 714 case, that review must ensure that the DVA considered the relevant factors bearing on the penalty determination.

The court emphasized this point by declaring the Deciding Official must “weigh the relevant factors bearing on the appropriateness of the penalty, including the relevant Douglas factors” in cases of misconduct. So, there it is.

There is a whole lot more to discuss from this decision, but we’ll tackle those issues another time. As for now, we are anticipating multiple years’ worth of cases will be remanded to determine whether the VA had a preponderance of the evidence, and not merely substantial evidence, in taking appealable disciplinary actions. The good news for the VA is, preponderance is not too difficult to show, and I would bet they can meet this burden in nearly every case. The bad news is there’s a whole lot more work ahead. Please let us know how we can help – and attend UnCivil Servant September 8-9 or MSPB Law Week September 13-17 for all the details on what happens now. Hopkins@FELTG.com

The Good News: If Feds Want to Force You to Discipline Them for Disobeying Mask, Testing, and Vaccine Rules, You May Do So

, ,

By Ann Boehm, August 18, 2021

I’m pretty sure that you, my FELTG friends, are aware that the Biden  administration issued some strong guidelines on vaccines, masks, and COVID-19 testing over the past few weeks. And along with this guidance has come direction from the administration that an employee’s failure to comply with the guidelines could result in disciplinary action or even criminal prosecution (for providing false information on the Certification of Vaccination form).

For those who manage people or for those responsible for advising those managers, this may seem like an enforcement nightmare. My job in this article is to give you an incentive to take action against the noncompliant, and to provide you the tools to reassure you that such actions are legally defensible.

So first, the incentive.

A few weeks ago, the VA issued a vaccine mandate for Title 38 VA employees. Soon after, articles about the mandate appeared with quotes from employees determined to resist the direction. Some employees plan to quit or retire. But one comment really got me (and here’s the incentive). One quoted employee said she was encouraging her colleagues not to retire or quit, and instead “force the department to fire them to maximize legal recourse.” Many VA Employees Apprehensive About Vaccine Mandate as Department Begins by Eric Katz, Government Executive (July 30, 2021).

If the employees want to force you to fire them, I think you should accept the challenge.

Now, the legal justification.

On July 29, the administration issued the guidelines that are binding on all Federal employees. Employees have two options. Certify that you are vaccinated (and possibly wear a mask in areas of substantial or high transmission areas) or wear a mask at all times, get tested, and physically distance. Employees do have options, at least. But they also have rules to follow. Break a rule, and you may be disciplined.

There’s precedent for enforcing these kind of rules. There’s even precedent for firing employees who do not comply with a vaccine requirement.

Let me give you a little history lesson. Way back in the 1990s, long before we could have imagined this past year’s pandemic experience, anthrax existed as a potential biological weapon. Anthrax can be deadly, but there is a vaccine for it.

In the early 1990s, the Department of Defense started vaccinating service members against biological warfare threats for which vaccines were available. By 1998, the anthrax vaccine immunization program included service members and civilian personnel who could be at high risk for biological weapons exposure.

Two civilian Navy employees being deployed on a ship bound for Korea were ordered to get the anthrax vaccine. They refused. The Navy removed them. They appealed their removals to the Merit Systems Protection Board. The MSPB Administrative Judge upheld their removals. They then appealed to the U.S. Court of Appeals for the Federal Circuit.

The Federal Circuit also upheld their removals. Mazares v. Dep’t of the Navy, 302 F.3d 1382 (Fed. Cir. 2002), cert. denied, 538 U.S. 960 (2003). The court expressly recognized the Navy’s authority to protect the health of civilian and military personnel.  Id. at 1385. The court also determined that removal was a reasonable penalty for the employees’ charged misconduct: “’failure to obey a direct order to receive mandatory injections of an anthrax immunization vaccine.’” Id. The employees tried to get the Supreme Court to consider their case, but the Court denied the petition for writ of certiorari. 538 U.S. 960 (2003)

Just like anthrax, COVID-19 presents a legitimate danger to the health of the Federal workforce. The guidelines issued by the administration are intended to minimize that danger.

I fully acknowledge that there is a vast divide among people all over the world regarding vaccine and mask mandates. Just a few minutes reading through Facebook, Twitter, neighborhood listservs, and a multitude of media articles, or even conversing with friends and family makes that patently clear. But Federal employees now have been given the instructions. They must comply. Agencies: If employees choose to disobey the guidelines, they are subject to discipline. And Mazares strongly suggests that removal may be the appropriate penalty.

Good luck out there! Boehm@FELTG.com

Averting Retaliation: Fear is OK, but Don’t Act on Anger

, ,

By Dan Gephart, August 18, 2021

I remember very little about second grade, but I can vividly recall sitting in class when my fellow classmate Teresa C. tapped me on the shoulder and very matter-of-factly said, “I know you did it.”

“Did what?” I replied.

“You murdered my father,” she said, “and I’m going to tell the teacher.”

Thanks to Catholic guilt, already deeply ingrained in me at seven years old, my first thought was: When did I do this horrible thing? I eventually realized the claim was ludicrous. I mean, my parents still weren’t letting me cross the avenue by myself. How the heck could I pull off a murder without leaving my side of Fitler Street? Yet, I was certain the teacher would believe Teresa and the police would storm into Room 202 (yes, that really was my second-grade classroom) at any moment. I was terrified.

Fear is a common reaction when an individual feels they’ve been unfairly accused, particularly if they have a lot to lose, such as a job or the respect of peers. Perceived injustice creates psychological discomfort – and the person instinctively tries to find a way out of that discomfort.

I never found a way out of my second-grade discomfort. I spent the next couple of days terrified that the police were going show up at school or my house and take me away. But then again, I was just a seven-year-old kid. For an adult supervisor in the Federal workplace, there is a more common, easier path out of the discomfort. And that’s anger. Unfortunately, while anger may make help you forget your pain for the moment, if can also lead to retaliation when unchecked, especially if:

  • The accusation is very serious.
  • The accusation will negatively impact relationships with others at work.
  • The accused feels that he/she/they are being judged.
  • The accused believes his/her/their job is in jeopardy.

It’s no surprise then that retaliation is asserted in almost 45 percent of EEO complaints, or that findings of discrimination based on retaliation comprised between 42 and 53 percent of all findings from 2009 to 2015. And in many of those findings of retaliation, the original claim under which the complaint was filed was dismissed.

It’s so counter-intuitive, but if you’re named in an EEO complaint — even if you are certain you are wrongly accused — you must find a way to deal with your anger. The other thing you can and, quite frankly, should do is be aware of what retaliation looks like so you know exactly what to avoid. For example, never publicly discuss EEO complaints, don’t make jokes about EEO, and don’t try to isolate the complainant. All of these actions have led to findings of discrimination on the basis of retaliation.

To learn more, join Attorney Meghan Droste on August 24, for the 60-minute webinar EEO Reprisal, Handle It, Don’t Fear It. In this the penultimate session in our Supervising Federal Employees webinar series, Meghan will discuss specific cases involving retaliation and provide you with several steps you can take to ensure you avoid retaliation. Reprisal will also be discussed along with intentional discrimination and contractor complaints during Day three of FELTG’s EEOC Law Week September 20-24.

After a couple of days, I began forgetting to worry about my imminent arrest. When I eventually told my parents, they laughed. Oh, and before Teresa C. transferred to another school a couple of years later, I became aware that her father was very much alive. Gephart@FELTG.com

What A Long, Strange Trip It Has Been

, ,

By Meghan Droste, August 18, 2021

Litigation, even when it all goes according to plan, can end up being a long and winding road.  And when it doesn’t go quite as it should … well, a long, strange trip is one way to describe what can happen.

Randolph A. v. Department of Veterans Affairs, EEOC Pet. No. 2020004882 (June 23, 2021) is a journey filled with many twists and turns. The story starts in September 2010 when the complainant filed a formal complaint regarding a non-selection. The agency investigated the complaint and issued an ROI. The complainant requested a hearing and then subsequently appealed the administrative judge’s grant of summary judgment in favor of the agency. On appeal, the Commission found in favor of the complainant and awarded several remedies, including placement in a position and back pay, and ordered the agency to conduct a supplemental investigation regarding compensatory damages. The agency filed a request for reconsideration, which the Commission denied.

So far everything seems straightforward. But here’s where the journey gets a bit strange: Instead of implementing the Commission’s decision, the agency sent a letter in 2016 to the Commission, asking the Commission to vacate its decision based on a November 2010 global settlement agreement with the complainant. The complainant objected to this and filed a petition for enforcement. The Commission found that the agency’s arguments regarding the settlement agreement were untimely, and that the agency had waived them, having waited until after the investigation, hearing stage, and appellate process to first raise the existence of the agreement. In November 2017, the Commission ordered the agency to comply with the previous order.

Unsatisfied with this result, the agency wrote to the EEOC acting chair in January 2018 to seek review and reversal of the Commission’s decision.  A month later, the agency issued a final order awarding damages. The complainant appealed the award, which the Commission modified.  In response, the agency filed request for reconsideration and again raised the arguments regarding the settlement agreement.

As the Commission notes, “[d]espite repeatedly addressing the Agency’s assertion in prior decisions, the Commission nonetheless provided the Agency with further reasoning and explanation” as to why its very untimely arguments failed. The case then ended up before the Commission yet again because the agency refused to comply with the decision and instead sent its January 2018 letter to the compliance officer.

In its most recent decision, the Commission provided a lengthy discussion of why the agency’s arguments failed, drawing comparisons to the Federal Rules of Civil Procedure to highlight how the agency failed to act with due diligence in 1) keeping track of the 2010 settlement agreement, and 2) timely raising arguments regarding it. The Commission yet again ordered the agency to pay compensatory damages to the complainant. It also informed the agency that if it failed to do so, it might refer the matter to the Office of Special Counsel under the memorandum of understanding (MOU) between to the two agencies. Under the MOU, OSC could initiate disciplinary action.

It’s unclear where the agency will go from here, but hopefully the potential involvement of OSC will prompt the agency to finally follow the Commission’s order and pay the damages it was ordered to pay years ago.

One last thing — the title of this article isn’t just about the Randolph A. case. It’s also because, to borrow from another song and a completely different genre, it’s time for me to say so long, farewell, auf Wiedersehen, and goodbye to the wonderful FELTG community. Starting next month, I will be joining the ranks of many you as a Federal employee.  Thank you to all of you who have joined me in the classroom over the past four years.  I have learned so much from you and will take many fond memories with me.  To paraphrase my source material, what a (not) long (enough), (wonderful) trip it has been – I hope this is more of a see you later rather than a real goodbye. Droste@FELTG.com

Top 10 Tips From the Other Side

, ,

By Meghan Droste, August 18, 2021

The time has come, FELTG readers, for my final Tips from the Other Side.  It has been a pleasure providing you with insights on what to do, and what not to do, and how to do the best job possible when handling a variety of EEO-related issues. I hope you have enjoyed the journey and picked up some valuable lessons along the way.

Before I go, here is a top ten list of sorts. These are in no particular order and the list is not meant to be exhaustive, but I hope you can use this collection of final tips as a roadmap to avoid common pitfalls.

10 – Understand timeliness issues: The EEOC is pretty clear on how long complainants have to contact an EEO counselor, file a formal complaint, request a hearing, etc. While these issues can be confusing for complainants who are unfamiliar with the process, they shouldn’t be for agencies. Remember that harassment complaints include a series of events, so employees have 45 days from any of the events — not necessarily the first one — to contact a counselor. Failure to accommodate claims can also be timely after more than 45 days. Each time an employee needs an accommodation and the agency doesn’t provide it can be a new violation, it restarts the 45-day clock.

9 – Reasonable accommodations must be effective: Speaking of accommodations, remember that agencies are required to provide effective accommodations to qualified individuals. That means that an agency’s obligations don’t end just with providing the accommodation. You need to follow up and make sure that it’s actually effective before you can consider your work done.

8 – Don’t cut corners or jump to conclusions: Far too often, agencies seem eager to dismiss complaints before they should. Don’t dismiss a complaint just because the complainant worked for a contractor; you need to gather enough information to actually do a joint employer analysis and determine whether the agency was an employer. Also, don’t look to the merits of a complaint in order to dismiss it; all you should be doing is determining whether or not the facts could state a claim for relief. Even if you don’t think the complainant will prevail, you still have to accept the complaint if it’s possible they could.  You might be trying to save time or agency resources by getting rid of complaints early, but you will likely create more work for the agency in defending the dismissal and then still have to investigate the complaint in the end.

7- Know what to do with medical information: Agencies may only request medical information from employees in very specific circumstances (when it’s job related and consistent with business necessity). Be sure you don’t ask for it when you’re not entitled to it, and if you do collect, make sure you know what to do with it. Don’t share it with anyone who doesn’t need to know it, and don’t commingle medical documentation with other, non-medical, information.

6 – Retain your documents: More on documents. Make sure you don’t destroy things before you’re allowed to. The Commission’s regulations require agencies to retain documents regarding personnel actions, such as selection and removal decisions, for one year following the action. This retention requirement is extended if there is litigation. If someone involved files an EEO complaint, you will need to keep all of the documents until the end of the litigation. If you destroy them before you should, the agency could face sanctions or find itself in a situation where it cannot adequately explain its actions.

5 – Make sure your investigators create an appropriate record: Agencies are responsible for the quality of the ROIs their investigators produce, even if those investigators are contractors. Be sure to review the ROIs before finalizing them—did the investigator interview all of the relevant witnesses and collect all of the relevant documents? If not, send it back for the investigator to do so. If you don’t, you might find your agency on the end of an unfavorable decision by the Commission.

4 – Meet your deadlines: Another way to end up on the wrong side of the Commission is to miss your deadlines. Agencies have 180 days to complete their investigations and issue ROIs. This is not a suggestion. You also need to be mindful of appeal deadlines, as missing those could result in the Commission rejecting your arguments on appeal without considering them at all.

3 – Take allegations of harassment and discrimination seriously: Agencies need to act promptly when they learn of discrimination or harassment. Don’t delay in separating the individuals, starting an investigation, or issuing discipline if appropriate. Failure to act promptly can result in a finding of liability, but it may also undermine the confidence your employees have in the agency.  Also, don’t forget to make the victim of harassment whole—even if you do everything else right, if you fail to address the harm they suffered, you can still be on the hook.

2 – Follow the Commission’s orders: Orders from the Commission, whether they come from an individual judge or from OFO, aren’t suggestions. Ignoring them can land your agency in (even more) hot water.

1 – Make sure your employees, supervisors, EEO staff (everyone!) is well trained: I promise I’m not saying this because I have been helping to provide that training to agencies for four years. It’s my top tip because I truly believe that if people receive the training they need, they will avoid so many of the common mistakes that end up before the Commission. I’ve been saying for years that in a perfect world I would train my way out of a job, because no one would ever violate the law again.  That hasn’t quite happened, but I hope the past few years have at least made some progress towards that.

As I say at the end of all my classes, good luck out there! Droste@FELTG.com

And Now a Word With … Marcus Hill, on Resolving Conflicts Before They Lead to Litigation

, ,

By Michael Rhoads, August 18, 2021

‘She hit me!’ ‘Don’t touch me!’ ‘I’m not touching youuu…’ ‘You’re so annoying!’

My children are now out of diapers and forming their own opinions and developing their own interests.  Among the three of them, they are a fun-loving, carefree bunch.  But no matter how much they love each other, the occasional argument over the new toy, or simply vying for mom and dad’s attention can get heated from time to time. My wife or I will step in to resolve these little spats, and then we move on with our day.

Conflict is unavoidable at any age. Even after we’ve grown up and start our careers, there will always be someone you work with who may pose a greater challenge than others. I recently spoke to Marcus Hill (pictured above), FELTG instructor and Principal of Hill Management Consultancy (HMC) LLC, about his experiences related to conflict management over his 37-year career in the Federal civil service.

MR: What is the most common type of conflict in the workplace?

MH:  In my experience, the most common type of conflict in the workplace relates to assignment or task interdependences in which employees must coordinate, interface or team to accomplish them. Think about it. If you are a part of a work unit in which your job responsibilities typically require you to perform independently, no problem. However, if what you do requires you to interface, coordinate, rely upon or team with others, that just might be a problem.

MR: How can you promote a more harmonious environment for all?

MH:  I will respond to this question from the standpoint of any employee within a working environment, whether non-supervisory or supervisory. I believe it is imperative to possess and demonstrate the ability to effectively lead oneself first, in the workplace. Let’s unpack that a little.  It starts with understanding yourself and how you relate to others. Being knowledgeable of and practicing emotional intelligence.  Also having an awareness of your personality type and sense for others in the workplace can also be beneficial to harmonizing employee engagements. By demonstrating behaviors you desire others to emulate, you have an opportunity to influence co-workers’ actions from wherever you are in the organization. Simply put, “walk the talk.” Typically, high-performing, harmonious organizations are saturated with employees that have invested in the organization’s vision, actively engaged in achieving its mission and aligned behaviorally with the business unit’s core values.

MR: Is there a one-size-fits-all approach to conflict management?

MH:  Based on the various natures and intricacies related to conflict, I don’t believe there is a one-size-fits-all approach managing them.  However, there are proven strategies, methodologies and processes that can be used to effectively address conflict.  I will be addressing some of these in my upcoming training delivery, Resolving Conflicts Before They Lead to Litigation!

MR: What is the best tool in your toolbox for managing conflict between employees?

MH:  Active listening is the most effective tool for managing conflict between employees. To quote Dr. Stephen Covey: “Seek to understand before being understood.” By exercising active listening during conflict, the parties have the best opportunity to identify and address the specific, not perceived, issue(s) at dispute. Many times, the parties are focused more on defensive posturing to justify their actions in response to what they perceive the problem to be, reacting on filtered information. The goal is to be cognizant of the symptoms stemming from the conflict but focus on identifying and addressing the root cause creating it.

MR: What role does management play in resolving disputes between co-workers?

MH:  Management plays a primary role in resolving disputes between co-workers. By creating a working environment that establishes an organizational culture, reflective of values, that promote harmony, managers can set the tone for healthy debate instead of unproductive disputes.

Be more effective in resolving conflict at your agency!   Join Marcus on Wednesday, September 30 from 11:15-12:30 PM ET for Resolving Conflicts Before They Lead to Litigation. Click here to view our other courses during Federal Workplace Week 2021: Accountability, Challenges and Trends.

Stay safe.  And remember, we’re all in this together. Rhoads@FELTG.com

Establishing Conduct Expectations: A Sample Policy

, ,

By Barbara Haga, August 18, 2021

After the last column was published, I heard from a practitioner from one of those agencies that didn’t have a lot of written guidance on conduct issues.  She was asking if I had a sample of such a set of expectations. I didn’t have a sample, but I have seen bits and pieces in various agency documents that I thought would be helpful. So, I decided to take a stab at putting a policy together.

I have started with work schedules, attendance, and related matters. Next month, I will work on other discipline-related topics. If you have some suggested topics or language you’ve developed, please feel free to e-mail me.

WORK AND CONDUCT EXPECTATIONS

This memorandum sets forth expectations regarding work behaviors and general procedures employees are expected to follow in our workplace. Establishing clear expectations is intended to ensure that employees are aware of basic requirements regarding attendance and work practices and also to ensure that consistent practices are followed throughout the organization.  Meeting these expectations will facilitate effective, timely, and accurate work outcomes which are the key to meeting our mission.

ATTENDANCE AND REPORTING. Employees are to be dependable and prepared to fulfill work requirements during scheduled duty hours, whether working on government premises or at an alternate worksite.

WORK SCHEDULES. Work schedules are set based on the needs of the organization. That doesn’t mean that employee preferences are not taken into account, but ultimately such decisions rest on the when the customers need our services, when organizations we typically deal with are open, and other factors that impact when our work needs to be performed.

The work schedules that are authorized include (fill in options here). Details on use of these schedules can be found here (insert link).

In the event that an employee wishes to request a change in work schedule, requests must be submitted to the supervisor in writing (in advance, or a set time frame in advance.)  Supervisors will respond to requests for schedule changes as soon as possible.

WORK LOCATION. Telework is authorized in the same manner as schedules are set.  The ability to work remotely depends on when and where our services are needed, what types of interactions must take place and how these can be effectively accomplished, the need for sharing information and coordination among work team members, and other similar factors.  We will consider employee preferences, but the demands of the work are always key in such determinations.

Telework is authorized (fill in options). Details on our telework policy are located here (insert link).

LUNCH PERIOD.  Daily work schedules include a ______ minute lunch period. The lunch period is a non-work period. Shifts without lunch periods are generally not authorized, meaning employees may not skip lunch and end their shifts earlier.

BREAKS. Formal breaks are not authorized. Employees are free to take reasonable short breaks to get a beverage or to take a restroom break.  Smoking breaks are authorized……  (Fill in if you have such a policy).

LEAVE SCHEDULING. Employees request leave from their immediate supervisors. Leave requests may be submitted by e-mail, in the timekeeping system, or by telephone (adjust this to fit your requirements). If requesting leave by telephone, the employee should speak to the supervisor directly. If the supervisor is not available, the employee should leave a message with a telephone number where he or she can be reached to be advised whether the leave has been approved. Procedures and time frames for various types of leave requests are outlined in the following paragraphs.  Failure to comply with the procedures may result in the leave not being approved.

Annual Leave.  Employee requests for annual leave are to be submitted in advance.  (Union contracts and leave policies may provide specifics regarding dates by which leave periods must be scheduled.)  Approval of annual leave is dependent on mission requirements.   In the rare event that previously approved leave must cancelled, employees are expected to cooperate in rescheduling.

Sick Leave. Employees are entitled to utilize sick leave for the six authorized uses contained in 5 CFR 630.401. (A reference to a directive or language in a union contract that lists the uses would be more informative). Employee requests for sick leave for anticipated absences such as planned surgery or scheduled treatment should be submitted in advance.  (Your policy may ask for a week or ten days’ notice, for example.) Certain sick leave uses and sick leave over three consecutive days may require written documentation. Details on sick leave usage requirements are found here. (insert link)

Emergency Annual and Sick Leave. The need for leave for annual leave emergencies, such as a car breaking down on the way to work or a plumbing emergency in the home, is to be reported to the supervisor within ____ hours of the beginning of the work shift. The same time frame applies for short notice sick leave requests for unexpected illnesses or medical appointments. As noted above, documentation may be required before leave can be finally approved. Supervisors will advise employees whether the emergency leave is approved as soon as possible.

Other Leave Types.  There are a variety of types of leave for special circumstances such as court leave, leave without pay, Family and Medical Leave, etc. Information on these types of leave can be found at (insert link).

TIMEKEEPING SYSTEM. Employees must maintain accurate information about their work status in the timekeeping system. While timecards are approved biweekly, the best practice is to ensure that the information is input each day. This minimizes problems with omitting leave use or a late arrival from earlier in the pay period and also helps supervisors fill in information if an employee is unexpectedly out and not able to complete the timecard by the deadline.

It is the employee’s responsibility to ensure that leave is accurately input, including any special coding necessary for certain kinds of leave. For example, if you are using Family Care Sick Leave you must identify in the dropdown menu which category of leave you are using (customize this to the specifics of your leave system). If an employee is unsure about how to properly code an absence, it is his or her responsibility to do the necessary research or reach out to the appropriate timekeeping personnel to verify how to properly complete the entry.

MAINTAINING UP-TO-DATE CONTACT INFORMATION. Employees must provide contact information including addresses and telephone numbers and personal e-mail addresses to ensure that, should it be necessary to reach employees outside of work hours, this may be accomplished.

Providing contact information also extends to an employee’s location while on leave for potential recall should that become necessary in the event of an emergency.

Haga@FELTG.com

And Now a Word With … FedUpward Podcaster Love Rutledge

,

By Dan Gephart, August 3, 2021

It’s unanimous here at FELTG. The headquarters team and our instructors are beyond tired of hearing the hackneyed tropes about bad Federal employees running amok. That’s why we teach courses like our flagship UnCivil Servant: Holding Employees Accountable for Performance and Conduct, so that you can take direct action against the few misbehaving and poor-performing Feds who ruin the reputations of everyone else.

Federal employee Love Rutledge is also fed up with the “caricature.”

“We’re either lazy, dumb, and couldn’t find better jobs elsewhere; or we’re scheming deep-staters who plot to take down certain segments of the population,” she said. “Obviously, we’re neither. Most Federal employees work hard, serve the public and do the best they can every day.”

Love was so incensed with this mischaracterization she had to do something about it. She launched FedUpward, a podcast where Federal civil servants can find “inspiration, motivation and practical tips.” She dropped her first podcast in October 2019 and just surpassed the 100-episode mark last month. Recent podcast episodes have included interviews with FELTG President Deborah Hopkins (Performance Management and the Santos vs. NASA Ruling) and FELTG instructors Katherine Atkinson (Can My Manager Ask Me THAT When I Return to the Office), Marcus Hill (Network with Senior Executives and Work on Government’s Big Challenges) and Shana Palmieri (How Feds Can Maintain Mental Health and Help Others).

Finding free time isn’t easy for Love. She’s also a full-time Federal employee and the mother of two young children. But she took some time answer a few FELTG questions.

DG: What’s the best piece of advice for Feds you’ve learned over your 100-plus episodes?

LR: There’s rarely a challenge a Federal employee faces that hasn’t been faced by others. The more we collaborate across agency and department lines, the more efficient we can be.

DG: What is something you learned via your podcast that really surprised, saddened, or angered you?

LR: I’ve had several Feds reach out to me who’ve experienced truly toxic managers, retaliation for reporting bad behavior, and full-on discrimination. Those are the more frustrating messages I get. We cannot attract and retain talented public servants while treating folks badly.

DG: How was your work life changed by the pandemic?

LR: As a parent to two young children, the pandemic has been absolutely brutal. My husband and I are fortunate to have resources that gave us options, but few good options existed for childcare over the last year plus. Mama is TIRED. I think many Fed parents can relate to the sense of exhaustion and lack of control that we’ve faced during the COVID crisis. And we’re still facing it. For those of us with children under 12, our options for activities and childcare remain quite limited. I doubt you can find any parents who say they had a good work/life balance over the last 16 or so months.

DG: What should agencies do to improve the overall morale of their workforce? 

LR: Everyone wants to feel appreciated for what they do. Truly listening to employees to understand their concerns, supporting their growth, and providing flexibility where possibleall go a long way toward employee engagement and satisfaction.

DG: Say someone is reading about your podcast here for the first time. Why should that person listen to your podcast?

LR: People listen to my show to get first-person perspectives on current issues, to connect with Feds going through the same issues they face, and to learn about resources they might not otherwise discover. I hope your readers not only listen to the podcast at FedUpward.com or wherever they get their podcasts, but also reach out to tell me what they want to know.

In her very first episode, Love explained the reasons for launching the podcast. Besides looking for more good news about Feds, she wanted more information for younger and middle-aged Feds, and she’d like to see agencies do more to attract younger people.

“In most of the trade publications, you still see their advertisers are hearing aid companies and bath remodelers who support customers’ loss of mobility,” she said. “I’d love to see that shift and have professional organizations for federal employees support people of all ages — and not just Young Government Leaders, who provides those opportunities now.” Gephart@FELTG.com