A 75-cent Purchase Can Save Your Entire Case – and Help You Sleep at Night

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By Deborah Hopkins, June 12, 2019

In my travels across the globe teaching federal supervisors about the federal government’s accountability systems, one of the most-often-asked questions involves what supervisors can do to better their chances of defending their actions. Do they need more evidence? Witness statements? Video logs? A track record of poor performance a mile long?

All of that is fine, but I have an easier answer and it costs about 75 cents: an old-fashioned notebook. In the 40-plus years since the Civil Service Reform Act went into effect, we have seen case after case that hinged on contemporaneous note-taking – or the lack thereof – by agency supervisors or other management officials. I tell all the new supervisors I train that they need to go out to their nearest office supply store, and get a notebook pronto, since supervising in the federal government is a defensive practice.

While supervisors are generally given the benefit of the doubt in credibility determinations, the best way to supplement and enrich testimony is by producing contemporaneous notes. And the preference by administrative judges, still to this day, are hand-written notes as opposed to computer logs or even notes supervisors email themselves to document workplace events.

Let’s take a look at three types of cases where notes were the make-or-break point for the agency: Discipline, Whistleblower Reprisal, and EEO Complaints. We’ll look at a case the agency won (because of the notes) and a case the agency lost (because there were no notes, or there was a problem with the notes) in each category.

Discipline: Agency Winner

In our first case today, we have a removal case where the appellant engaged in multiple acts of misconduct, including failure to follow supervisory instructions. He disclosed the details of an ongoing agency investigation after his supervisor directly told him not to speak about it. The MSPB administrative judge (AJ) found that the agency failed to prove the charge of failure to follow supervisory instructions because the supervisor could not recall the exact words she used when giving an order to the employee. But the MSPB reversed the AJ’s finding and determined that the supervisor’s contemporaneous notes made shortly after the conversation with the employee, even though they were not a verbatim word-for-word recollection, supplemented her testimony. The charge was then sustained. Von Muller v. DOE, 101 MSPR 91 (Feb. 13, 2006).

Discipline: Agency Loser

In another failure to follow instructions case dealing with an agency investigation, the agency removed an employee for improper conduct because the employee failed to cooperate in an investigation, and failed to obey a supervisor’s order to leave the premises after his tour of duty had ended. At hearing, the supervisor’s testimony was different from what he had written in his contemporaneous notes about the situation, and that inconsistency led to a lack of credibility before the judge and, ultimately, before the MSPB. Because of the inconsistency in the notes, and the lack of any additional supporting evidence for the agency’s charge, the removal was mitigated to a 21-day suspension. Eichner v. USPS, 83 MSPR 202 (Aug. 6, 1999).

Whistleblowing: Agency Winner

When an agency takes an action against a whistleblower, the burden of proof rises from preponderance of the evidence or substantial evidence, depending on the type of case, to clear and convincing evidence. Clear and convincing evidence is a heavy burden, defined in the case law as “That measure of degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.” Schnell v. Army, 114 MSPR 83 (2010).

A whistleblower at DOJ was given a performance rating he did not agree with, and challenged the rating as an act of whistleblower reprisal. The agency was able to show clear and convincing evidence that the rating was warranted because, in addition to the supervisor’s specific testimony about the appellant’s performance issues, the supervisor had contemporaneous documentation that supported his observations. In addition, the agency was able to show that the appellant had performance problems prior to whistleblowing, and that documented complaints about the appellant’s performance came from outside chain of command. That, folks, is clear and convincing evidence. Rumsey v. DoJ, 2013 MSPB 82.

Whistleblowing: Agency Loser

The appellant blew the whistle on her supervisor, alleging harassment and intimidation and claiming that management and the EEO office had not taken any action. Shortly thereafter, she was informed that she was being reassigned. According to the appellant, when she questioned the reason for her reassignment she was informed by the VA hospital’s lead employee/labor relations specialist that the reassignment was due to her allegations of a hostile work environment involving her supervisor. The only evidence the agency presented in response to this allegation was two general statements, in affidavit form, denying that the reassignment was due to whistleblowing, but that it was because the appellant was unhappy with her supervisor. No additional evidence or documentation was provided, so the agency did not prove by clear and convincing evidence that the reassignment was not whistleblower reprisal. Moore v. DVA, DA-1221-13-0213-W-1 (March 10, 2015) (NP).

EEO: Agency Winner

In an interesting religious accommodation case, an employee requested to be allowed to wear a nine-inch ceremonial blade in the workplace, even though she worked in a federal building and the blade violated the security requirements. The agency could have simply said no because allowing the kirpan would have been more than a de minimis burden, but in an exercise of good faith, the agency also contemporaneously documented attempts to accommodate the employee including considering full-time telework and alternative work locations. Neither of these options worked with the employee’s job requirements, and the agency prevailed in showing that it did not engage in religious discrimination of the complainant because it documented the accommodation attempts. Tagore v. United States, 735 F.3d 324 (5th Cir. Tex. 2013).

EEO: Agency Loser

The complainant applied for a promotion and was not selected. She filed a complaint alleging discrimination based on race, sex, and reprisal for prior EEO activity. The four selection panel officials admitted the complainant was qualified but could not explain why she was not selected. There were no notes, scores or specific explanations of the scoring process in the record. One of the selection panel members asserted that he did not remember why she was not selected but that he “could only assume” her application did not show she had the skills needed to work at a higher level. That lack of contemporaneous documentation cost the agency the case. Hatcher-Capers v. USPS, EEOC No. 07A60008 (2006).

There are hundreds of other cases that show how contemporaneous documentation – or the lack thereof – is the deciding factor. Don’t let the next Loser case be yours; go buy a notebook today. Hopkins@FELTG.com

Don’t Be Like Ben – The Perils of English-only Rules

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By Meghan Droste, June 12, 2019

Benjamin Franklin, one of my high school’s most famous dropouts, is generally praised in our history books as a founding father, an inventor, and a printer. Did you know that he was also one of the first prominent voices in the English-only movement? Yep, that’s right, our very own Ben Franklin had a serious problem with … German speakers. He apparently took issue with signs being printed in both English and German in Pennsylvania. He also stated publicly that German immigrants were “of the most ignorant Stupid Sort” and their refusal to learn English made it impossible to reach them. While Franklin’s anti-German sentiment may seem like an interesting footnote more than two centuries later, the animus underlying it unfortunately has not faded from our country, although it is generally focused on other languages and countries of origin now.

Due to the connection between language and national origin, English-only rules can be a violation of Title VII. The Commission addressed this issue earlier this year in Eric S. v. Dep’t of Defense, EEOC App. No. 0120171646 (Feb. 8, 2019). In that case, the complainant, who is from Puerto Rico, greeted a temporary supervisor who entered the work area in Spanish. The complainant and the temporary supervisor then engaged in a conversation in Spanish about their families, when the complainant’s supervisor approached them and loudly said “English, English!”

In his affidavit, the supervisor stated that he directed the two employees to use English because “he need[s] to know and understand what’s going on.” He also asserted that the agency had “a policy to speak English during duty hours” and that he believed all federal agencies had the same policy. The agency’s EEO office confirmed to the EEO investigator that there was no such agency policy. Despite this, the agency issued a Final Agency Decision finding no discrimination.

On its review of the appeal, the Commission noted that English-only rules are permissible only when there is a “business necessity.” Employers may be able to show a business necessity for communications with customers, collaborative assignments with coworkers who only speak English, and when there may be a safety issue, among other situations. The fact that some coworkers may be uncomfortable when employees speak other languages is not itself a business necessity.

The Commission found in the specific instance, there was no evidence that the exchange of pleasantries in Spanish impacted the safety or efficiency of the workplace. The agency’s attempt to argue that the visiting supervisor’s presence in the work area was a safety risk was unavailing, as the complainant’s supervisor admitted recognizing him from another part of the facility. As a result, the Commission remanded the complaint to the agency and ordered an investigation into the complainant’s damages.

The supervisor’s comment might not seem like much, but it can certainly have an impact on how welcome, or not welcome, an employee feels in the workplace. Effective training on these issues will prevent similar situations in your agency and avoid harm to your employees and the time and expense of litigation. Viel Glück out there! Droste@FELTG.com

The Good News: Handling Problem Employees Really Is That Easy

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By Ann Boehm, June 12, 2019

I first attended FELTG’s MSPB Law Week, I excitedly returned to my agency hoping to spread the good word about how to handle problem employees. Instead, I was repeatedly told, “It’s not that easy.” I was reminded of this recently when a class attendee said, “We love your training, but when we talk to counsel and try to take action on a problem employee, they tell us, ‘It’s not that easy.’”

Folks, I get it. I was a supervisor, I oversaw discipline for an agency, and I litigated employment law cases for many years. I will agree that handling problem employees can be hard because, well, you are dealing with people. Firing someone, even someone who deserves it, is not easy.  But why is it important for you to dig in anyway and address the situation?

If you start handling a problem employee, it can wake that person up. He or she may turn things around.  Also, other employees will take notice and see they have to behave and do their jobs well, too. It’s like confronting a bully. You owe it to yourself and to your good employees.

And I feel your pain – litigating is hard work. Discovery can be exhausting, opposing counsel can be difficult, and there are crazy judges who make bad decisions. But winning lawsuits is fun, and it is vastly easier to win those lawsuits when managers handle problem employees the way Congress intended.

The processes for handling misconduct and performance really are easy. It’s only hard when counsel, HR specialists and supervisors overcomplicate things. And paralyzing fear of litigation is also a problem that makes proper management difficult. Don’t be afraid of litigation; be afraid of losing a lawsuit and let that motivate you to do the right thing for the right reason. Always remember, if you have a bona fide reason for what you do, you are very likely to win any litigation.

So, keep things simple.

In misconduct cases:

  • Employ progressive discipline: Reprimand, Suspension, Removal.
  • Don’t waste time with letters of caution/instruction/warning/admonish-ment.
  • Remember the burden of proof in misconduct cases is only preponderant evidence, or more likely than not. It’s not “beyond a reasonable doubt.”
  • Use the Douglas factors for penalty – they are helpful and they provide justification for how you address a particular employee’s misconduct.
  • Remember that due process requires only that the employee be given notice of the charged misconduct, an opportunity to reply orally and/or in writing, and a decision by an impartial decision maker. Don’t complicate it! Due process does not mean you have to treat all employees the same.

In performance cases:

  • Review the critical elements for your employees and make sure they are specific, measurable, and attainable.
  • Once an employee fails on any one critical element (after he or she has been on a performance plan for 60 days), start the employee on a Demonstration Period (formerly known as a PIP or Performance Improvement Plan).
  • Unless a collective bargaining agreement or agency policy says otherwise, use a 30-day Demonstration Period – not 60-, 90-, or 120-day!
  • Don’t waste time drafting a document that recites all instances of past performance issues – it’s not necessary and it will just annoy the problem employee.
  • Understand that the 30-day Demonstration Period is 30 days of your life you will never get back. You will be busy meeting with the employee regularly and consulting with your advisor. But at the end, if the employee fails, he or she can be removed. Poof!
  • Remember that the burden of proof in performance cases is very low – substantial evidence, which is about 40%. You can win these cases!

I hope my personnel pep talk has given you the confidence and resolve to deal with problem employees. Try it. You will see. It is that easy. Boehm@FELTG.com

Tips from the Other Side: June 2019

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By Meghan Droste, June 12, 2019

To close out our discussion of discovery tips, at least for now, I thought I would bring you a cautionary tale to illustrate just how important these points can be. As you know, any party that fails to meet its obligations in discovery — whether that’s the deadlines to initiate or respond to discovery, or the production of all relevant and responsive information — can find themselves on the receiving end of sanctions by an administrative judge (AJ). The sanctions will generally be relatively small, perhaps an adverse inference that someone said or did something that is at issue in the case. They can, however, be much more significant and result in the dismissal of the hearing request or the entry of default judgment.

In Dionne W. v. USAF, EEOC No. 0720150040 (Mar. 27, 2018) the AJ entered default judgment as a sanction against the agency. The Commission’s decision doesn’t list what the agency did, or did not do, in discovery, but it appears to have been significant. The complainant filed a motion for summary judgment based, at least on part, on the agency’s discovery failures and the AJ scheduled a status conference.

Prior to the status conference, the agency’s attorney withdrew his or her appearance due to leaving the agency, but the agency failed to notice the appearance of new counsel and no one appeared for the status conference on the agency’s behalf. Due to the issues with the agency’s discovery practice and its failure to appear for the conference, the administrative judge entered default judgment. As a result, the case moved directly to the damages phase, and the administrative judge awarded the complainant $185,000 in compensatory damages and $155,050 in attorney’s fees, and ordered the agency to place her in a new position.

The Commission upheld the administrative judge’s entry of default judgment on appeal and modified the award slightly. It appears from the Commission’s decision that the harassment and the resulting harm to the complainant were significant and severe, and as a result the agency might not have been able to prevail at a hearing on liability. Regardless, it lost out on that opportunity when it failed to meet its obligations. I may sound like a broken record on this, but be sure to take your discovery deadlines and obligations seriously.  If you don’t, you may end up having to explain why the agency did not have an opportunity to argue the merits of the case. Droste@FELTG.com

Knock, Knock. Who’s There? The Efficiency of the Service.

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By Dan Gephart, June 12, 2019

Since Father’s Day is this Sunday, I think it’s probably the safest time for me to come clean about an embarrassing habit.

I tell Dad jokes. I mean, I tell Dad jokes a lot. My sons were barely teenagers before they developed an instinctive ability to recognize an incoming Dad joke before the words even left my mouth. And once they sense a Dad joke coming, they plead for me to reconsider:

Me: Speaking of Benji …

Son 1: Dad, we’re not talking about the dog anymore.

Me: It reminded me that I saw your friend’s dog yesterday.

Son 2: Don’t do this.

Me: You won’t believe it, I saw him doing magic.

Son 1: Please no. Dad,

Me: I guess we all know what breed he is now.

Son 2: Seriously Dad, I’m begging you.

Me: He’s a Labracadabrador.

Son 1, Son 2: (Groans that sound as if they’re dying.)

Years of grumbles, sighs, and finger wagging haven’t stopped me. A dad and his bad jokes are like the Golden State Warriors in the NBA Finals; they’re always there. While my Dad jokes may lack taste, humor, or a single redeeming quality, at least they are rather anodyne. Not so, however, for jokes with sexual implications, especially when they’re told in the federal workplace — even if they don’t rise to the level of hostile workplace or harassment.

Here’s an example: David Lang, a GS-14 Deputy Security Officer at the Department of the Treasury, wandered into a conference room where his colleagues were preparing for a meeting with VIP guests. The meeting had nothing to do with Lang’s job. There was no real reason for him to be there. However, some of the attendees had arrived early, so the meeting host, who was not ready, told the crowd they could ask Lang about security. The meeting host assumed Lang would talk about security issues.

He was wrong.

With no agenda or prepared material, Lang started to adlib, which led to a sexually suggestive anecdote about a drunk person in a police station. Lang acted out the story, specifically mimicking the drunk. As he neared the end of the story, his boss walked in. Lang looked directly at her as he continued with his joke. This MSPB initial decision (Lang v. Treasury, DA-0752-04-0442-I-1, (MSPB AJ 2005)) didn’t go into any further detail, but I imagine Lang’s boss giving him the same look I’ve seen on my sons’ faces. With his boss glaring at him, Lang paused, then continued to the punchline: “The drunk man looked down and said: ‘Oh no, they stole my girlfriend, too.’”

As the boss walked out, Lang told the audience: “Well, that was my boss, so be on the lookout for my resume.” Lang wasn’t terminated, but he was demoted to a GS-13. Of course, he appealed the demotion. In affirming the agency’s decision, the Merit Systems Protection Board administrative judge wrote:

“I find that the deciding official in this case properly considered the applicable Douglas factors and he adequately assessed the overall circumstances, including those that favored mitigation. He found that, under these circumstances, placing the appellant into a non-supervisory position with the least reduction in his pay was warranted and would best promote the efficiency of the service.”

Lang filed a petition for review, which the Board denied.

Inappropriate jokes also led to the demotion of the GS-13 Employee Relations specialist in Hatch v. Air Force, 40 MSPR 260 (1989). Hatch regularly told jokes with sexual connotations, often in meetings and, per the parlance of the day, “in mixed company.” The AJ found that the jokes adversely affected the efficiency of the service because of the number of subordinates who found them to be offensive.

The term “efficiency of the service” debuted in the Lloyd-La Follette Act of 1912, and was eventually folded into the Civil Rights Act of 1978. As long as there is a nexus between the misconduct and the federal job, the supervisor can take an action. It doesn’t matter that the actions don’t meet a legal definition of hostile work environment. As the Federal Circuit wrote in Carosella v. US Postal Service, 816 F.2d 638 (Fed. Cir. 1987):

“An employer is not required to tolerate the disruption and inefficiencies caused by a hostile workplace environment until the wrongdoer has so clearly violated the law that the victims are sure to prevail in a Title VII action.”

In 1994, the MSPB published a report on sexual harassment in the federal workplace, which clearly explained the costs of boorish behavior:

“Imagine an employee who’s being bothered by a coworker who leers at her or makes comments full of innuendo or double entendres, or who tells jokes that are simply inappropriate in a work setting. The time this employee spends worrying about the coworker, the time she spends confiding in her office mate about the latest off-color remark, the time she spends walking the long way to the photocopier to avoid passing his desk, is all time that sexual harassment steals from all of us who pay taxes.

Adding up those minutes and multiplying by weeks and months begins to paint a picture of how costly sexual harassment is. Increase this one individual’s lost time by the thousands of cases like this in a year, and the waste begins to look enormous. And this may well be a case that doesn’t even come close to being considered illegal discrimination by the courts. Whether or not they’re illegal, these situations are expensive.”

If you’re a supervisor who likes to tell jokes, think about your audience before you let the next one loose. And if you’re a supervisor of a Fed who fancies himself a cutting-edge comedian, take action before someone has to file an EEO claim.

I guess you could say that Dad jokes and inappropriate work jokes share one thing: Neither is a laughing matter. Gephart@FELTG.com

Drafting Unauthorized Absence Charges: How to Write the Specification(s)

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By Deborah Hopkins, June 12, 2019

One of the more common categories of questions we get at FELTG involves the exceedingly technical area of drafting disciplinary charges. Here’s a recent note that came to us:

I have an employee who is being charged with unauthorized absence for a period of time. The specification(s) read something to the effect “You were absent from duty beginning January 28, 2019 through March 22, 2019 without authorization.”

There is a debate as to whether each day the employee was absent should be listed as a separate specification versus how it’s written above. I believe either specification spells out the conduct the Agency can prove. Any recommendations?

And the FELTG response:

Thanks for the email. I can’t give legal advice on your specific situation, but I can speak to the principle of drafting charges in general. When you charge an employee with misconduct you have to prove every single word in the charge. If there’s one word you can’t prove, you lose the whole charge – even if you have mountains of evidence the employee did something wrong. Check out Parkinson v. DoJ, SF-0752-13-0032-I-1, (October 10, 2014) (NP); Thomas v. USPS, 116 MSPR 453 (2011); Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990); Brott v. GSA, 2011 MSPB 52.

When it comes to specifications for charges, you don’t always have to prove every word (though that’s the goal), but you do have to prove the “essence” of the specification. We know from the case law that this means you have to get it pretty close to perfect, but if you get a word or a number wrong you still might get to keep the specification. See, e.g., Russo v. USPS, 284 F.3d 1304 (Fed. Cir. 2002).

Also worth noting, if you have multiple specifications and lose some of those specifications, your charge will still stand – as long as at least one specification sticks. But the more specifications you lose, the more wiggle room it gives MSPB to mitigate your penalty, if the penalty starts to fall outside the bounds of reasonableness.

The danger in [hypothetically] charging something like “absent from duty beginning January 28, 2019 through March 22, 2019 without authorization” is that if during even one of those days the employee was entitled to be absent (let’s say he was incapacitated for duty because of the flu and he had sick leave on the books) then you could lose the entire charge if the adjudicator thinks you have lost the “essence” of the specification. If even a day within the entire span of absence was authorized, have you still proven the specification?

There’s a strong argument to be made that the “essence” is still there, but this is now moving into a gray area. What about the weekends that are included in the span of those dates, when the employee wasn’t supposed to be at work? Is that inclusion of weekends far enough away from the “essence” of the specification, for you to lose you the whole charge? I am not sure I’d want to take on that battle, especially when there is a much easier way to handle this kind of case.

The alternative way of drafting the charge is to list each day of absence as its own specification; that way even if it turns out that for a few of those days the employee would have been entitled to leave, the charge could still stand based on the remaining specifications.

Charge: Unauthorized Absence

Specification A: 8 hours on January 28, 2019

Specification B: 8 hours on January 29, 2019

Specification C: 8 hours on January 30, 2019

Specification D: 8 hours on January 31, 2019

Etc.

It seems like a bit more work to do things this way, but we have learned to be exceedingly conservative when drafting charges. MSPB has traditionally been technical on how it looks at charge drafting, and (if we ever get an MSPB again) we can assume that the new Board members will follow nearly 40 years of precedent in this area.

For more on charge drafting plus a whole lot more, join FELTG in Washington, DC for MSPB Law Week September 9-13. I hope we’ll see you there. Hopkins@FELTG.com

And Now a Word With … James Abbott

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By Dan Gephart, June 4, 2019

In a decision earlier this year, the Federal Labor Relation Authority, to the delight of labor relations practitioners government-wide, reaffirmed a seminal decision from 2018, emphasizing the statutory distinction between conditions of employment and working conditions.

Many people first saw the FLRA decision in DHS CPB El Paso, 71 FLRA No. 10, on the Authority’s web site, while others got the news first from FLRA Member James Abbott himself on LinkedIn. Member Abbott wrote:

The Authority found, as it did in DHS CBP El Paso, 70 FLRA 501 (2018), that neither workload increases attributable to “operational demand” or “mere variations” in normal duties do not constitute bargainable changes.

While board offices at the Merit Systems Protection Board continue to sit vacant, and the Equal Employment Opportunity Commission is just now emerging from its own lack of a quorum, the FLRA has kept plugging along, albeit without a General Counsel. Member Abbott has been a public face of the agency, as he has taken to social media to provide context and clarity to his decisions.

Member Abbott deferred when we asked to further explain this distinction between working conditions and conditions of employment, as the Authority is currently considering several cases that involve this question. “What I can say,” Abbott offered, “is that a number of cases will be issued in the very near future that will turn on this question and will serve to further explain the differences.”

Member Abbott also did not expand on comments related to the pending DC Court of Appeals decision on the Trump Executive Orders, but said: “We are awaiting the decision just as anxiously as the rest of the public and the labor-management relations community.”

Below are a few additional comments Member Abbott shared with FELTG.

DG: What was the reasoning behind your decision to be so active sharing cases on LinkedIn?

JA: Before, at, and after my confirmation hearing, I pledged that I would do everything I could to make FLRA decisions relevant and clear. I believe that it is important that FLRA decisions can be understood by laypersons and attorneys alike. To that end, one of the initiatives that I took upon myself was to summarize and highlight the significance of key decisions of the FLRA. My postings, of course, are not official iterations or citations.

DG: What kind of feedback have you gotten? 

JA: At a number of conferences, I have had the opportunity to speak to many union and agency officials. By far, most individuals have stated that they find the comments helpful and serve as a guide to seeing where our precedent is focused or refocused. I have also received many comments from both union and agency practitioners that the decisions of this FLRA cohort are quite clear and much more understandable than decisions of the past.

DG: There have obviously been major changes to prior FLRA case law over the last year. What changes do you find most significant and why? 

JA: Having served as a practitioner before the FLRA for many years, I always consider that every case that comes before us is significant to the parties involved.  Whereas past majorities of the FLRA have advocated for an “incremental extension” of collective-bargaining, I believe our return to and embrace of the plain language of the Statute is most significant.  

DG: What do you think is the appropriate role of a union in the federal government in 2019?

JA: The role of “labor organizations” in the Federal Government is the same in 2019 as it was in 1978.  Section 7114 of the FSLMRS clearly outlines the rights and responsibilities of “labor organizations” as that term is defined in 7103(a)(4).

Gephart@FELTG.com

Sorting Things Out: Defining Adverse Actions

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By William Wiley, May 21, 2019

In a previous article, I laid out the distinction between the general concept of “discipline” and what constitutes “discipline” relative to the application of “progressive discipline” in the federal workplace. In this piece, we take on an even more complex concept: adverse actions. Consider these interrelated (and somewhat confusing) truths:

  • Not all discipline is an adverse action, but most of it is.
  • All suspensions are adverse actions.
  • Most adverse actions are appealable, but not all of them are.
  • Not all adverse actions are discipline.

Unlike discipline, the term “adverse actions” has a nice legal definition. Turn to Chapter 75 of Title V of the United States code and you will see the title “Adverse Actions.” Within that chapter, you will find two subchapters: Subchapter I for suspensions of 14 days or fewer and Subchapter II for suspensions of more than 14 days, demotions, and removals. So right away, we know that suspensions, demotions, and removals enforced for disciplinary purposes are by statutory definition, “adverse actions.” In comparison, a reprimand, though disciplinary, is not an adverse action.

And here is where we find one of the common misconceptions in our business. Prior to the Civil Service Reform Act of 1978 (CSRA), the term “adverse action” was defined as applying to appealable (to the Civil Service Commission) long suspensions, demotions, and removals whereas the term “disciplinary action” was defined as applying to non-appealable short suspensions. Subsequent to the CSRA, shorter suspensions still are not appealable and longer suspensions/demotions/removals are (to MSPB). Unfortunately, post-CSRA there is a tendency among the uninformed to continue to use the old concept of “adverse action” as applying to “appealable” actions only.

That’s simply not what the law says. If you’re taking away an employee’s salary for disciplinary purposes by a suspension, demotion, or removal, that’s an adverse action and has been since October 13, 1978. The proper way to think of the distinction between Subchapter I and Subchapter II of Chapter 75 is to refer to “non-appealable adverse actions” (Subchapter I, short suspensions up to a pay period in length) and “appealable adverse actions” (Subchapter II, longer suspensions/demotions/removals).

So now we know why not all discipline is an adverse action (remember reprimands), all suspensions are adverse actions (the title of Chapter 75 of Title V of the USC), and not all adverse actions are appealable (the distinction between Subchapter I and Subchapter II). But what about the claim that not all adverse actions are discipline? There are two places that line is drawn for us:

Statutory: The full title of Subchapter II of Chapter 75 includes an additional personnel action within the definition of an appealable adverse action: furloughs for 30 days or less. I know, I know; the proper phrasing would be “thirty days or fewer,” but we’re stuck with what those folks in Congress have written, at least until they hire an eighth-grade English teacher to do a little editing for them. At any rate, as way too many agencies were forced to remember in the wake of government shutdowns, furlough an employee for 30 days or fewer and you have to use the adverse action procedures of Title II of Chapter 75 (30-day notice period, right to respond and representation, appealable to MSPB). However, a furlough is based on lack of funds, not misconduct. It does not meet the definition of “discipline.” And that’s an important distinction as you will see in a moment.

Case Law: Appealable adverse action removals based on the employee’s misconduct are disciplinary, by definition. However, adverse action removals based on the employee’s medical inability to perform are not disciplinary as there is no misconduct involved, again relying on the definition of discipline. You won’t find this in the law, but you will find it developed as a concept in MSPB decisions over the years.

So we have adverse actions that are “disciplinary” and adverse actions that are “non-disciplinary.” The distinction is important because the Board’s case law related to disciplinary adverse actions does not necessarily apply to non-disciplinary adverse actions. The main precedent relevant to the day-to-day practice of our business and this disciplinary/non-disciplinary distinction is Douglas v. Veterans Administration, 5 MSPR 280 (1981). As every practitioner learns in the first week of employment, if an agency takes an appealable adverse action based on misconduct against an employee, it will live or die by its documentation and defense of its analysis of the famous 12 Douglas factors. However, if the appealable adverse action is not based on misconduct (e.g., a removal for the medical inability to perform), then the Douglas factors need not be analyzed in defense of the penalty. The MSPB will not mitigate a medical-inability removal or a furlough to a lesser level, so there’s no requirement to fire up the old Douglas Factor Worksheet to defend your penalty selection.

Now, if there is anything you need to sort out, join me and FELTG President Deborah Hopkins for MSPB Law Week in Dallas June 3-7, 2019. Wiley@FELTG.com.

Civil Service Status Update

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By Deborah Hopkins, May 21, 2019
    A lot has happened over the last few weeks as it pertains to the world of federal employment law. Here’s a recap, in case you missed anything.
    • MSPB: We finally have a third nominee for the MSPB. Chad Bungard was recently nominated by the President to be the Vice Chairman, for a term that expires in 2025. Among other positions, he previously served as General Counsel at MSPB for several years. As of today, there is no date for a committee vote on his nomination. When might we see the Board back at full capacity? Your guess is a good as ours.
    • Executive Orders: In early April, the Court of Appeals for the D.C. Circuit heard oral arguments in the case dealing with the legality of President Trump’s Executive Orders issued May 25, 2018. Most of the discussion dealt with jurisdictional issues and whether the court, or the FLRA, is the proper forum to discuss challenges to these EOs.
    • FLRA: Speaking of labor relations, the General Counsel seat at the FLRA has been empty for two years, but the President nominated Catherine Bird, who is currently Principal Deputy Assistant Secretary for Administration (ASA) at the Department of Health and Human Services.
    • EEOC: The EEOC has a quorum for the first time since January – and it has a new Chair as well. On May 15, nearly two years after she was first nominated, Janet Dhillon was sworn in as the EEOC’s 16th Chair for a term that expires July 1, 2022.
    • OPM: The Senate Committee on Homeland Security and Government Affairs recently voted to advance OPM Director nominee Dale Cabaniss to the Senate for a confirmation vote. If confirmed she will be the third person to hold this position in just over two years.
    • OPM’s demise: Last week, the administration unveiled the Administrative Services Merger Act, which would effectively eliminate OPM by reorganizing it into a subcomponent of GSA. Under the proposed structure, the person in charge of federal workforce policy would be a non-Senate-confirmed political appointee. As you can imagine, not everyone is happy about this potential change. Because this is a piece of proposed legislation, both the House and Senate will have to agree in order for it to be signed into law by the President.
    • LGBTQ employment protections: A few weeks ago, the Supreme Court agreed to look at whether Title VII’s prohibition against sex discrimination includes an employee’s LGBTQ status. Arguments are on the docket this fall. Also, last week the House passed the Equality Act, which among other things would make protections for LGBTQ federal employees a statutory right. The Senate and the President would need to sign off on this piece of legislation in order for it to become law.
    As you can see, there is a lot going on, and plenty more to come. Stick with FELTG and we’ll keep you posted. Hopkins@FELTG.com