The $505 Alternative to Filing a PFR to the [Nonexistent] MSPB

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By Deborah Hopkins, May 15, 2019

Everyone who reads this newsletter knows by now that we don’t have a fully functioning Merit Systems Protection Board (MSPB or Board). Each of the three positions at the top of the agency, reserved for political appointees, has been vacant for more than two months, but there have been no decisions issued at all for over 28 months because, from early January 2017 through the end of February 2019, there was only one Board member – and one member is not a quorum. No quorum = no MSPB decisions.

Three nominees have been named; two have already cleared committee, and the final nominee needs to be voted on in committee. Then, if he passes muster, all three nominees will be brought to the Senate floor for a confirmation vote.

As it stands today, the administrative judges (AJs) are still issuing initial decisions (IDs) based on agency actions. If either party does not like the outcome of an ID, the typical process is for that party to file a Petition for Review (PFR) with the three Board Members – a process that usually renders a decision within about six months or so. But because at the Board level the MSPB is defunct, any PFR that is filed goes into a pile on top of more than 2,100 other PFRs, and there it sits for who-knows-how-long. Talk about discouraging.

There is a lesser-known alternative to filing a PFR that it appears more appellants are taking: filing PFRs directly with the Federal Circuit. After 35 days, if no PFR is filed with the Board, the administrative judge’s ID becomes the final Board decision, after which parties have the right to file a PFR directly with the Federal Circuit. 28 USC § 1295(a)(9); 5 USC 7703(b)(1)(A); 5 CFR § 1201.113.

Typically, appellants file PFRs to the MSPB because it’s free, and filing in the Federal Circuit is not. Also, the PFRs from the Board can then be appealed to the Federal Circuit – so appellants who go the route of taking the PFR directly to the Federal Circuit are losing an entire step of review.

I can’t say I blame them, though; I wouldn’t want to wait 3+ years to get a decision on a PFR. Either way they go, MSPB or Federal Circuit, appellants who file PFRs don’t have very much success in getting agency discipline overturned or mitigated. The Federal Circuit’s scope of review in an appeal from the Board is limited by statute; it must affirm the Board’s decision unless the court finds the decision to be:

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 USC § 7703(c); see Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010).

Under the substantial evidence standard, this court reverses the Board’s decision only “if it is not supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (quoting Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).

Hairston v. VA, No. 2018-2053 (Fed. Cir. Mar. 8, 2019).

Here are some additional facts you may not know about the Federal Circuit:

  • Last year, the Federal Circuit upheld agency decisions 92% of the time.
  • It costs about $505 to file a PFR from an agency action in the Federal Circuit.
  • If an agency wants to take a case to the Federal Circuit, it can’t file unilaterally; OPM has to give approval and then the Department of Justice gets involved with the litigation.
  • The largest percentage of cases the court takes deals with patents.
  • The Federal Circuit may have a total of 12 active circuit judges sitting at any given time, and they are required to reside within 50 miles of the District of Columbia. 28 USC § 44. Judges on “senior status” are not subject to this residency restriction.
  • The Federal Circuit website lists 18 judges; only five are female.
  • In 2018, three of the judges sat by designation with other district or circuit courts, which is allowable under 28 USC 291.
  • Oral argument sessions are open to the public. If you’d like to attend, oral arguments are normally held the first full week of each month. You can find the oral argument calendar for the year on the court’s website: http://cafc.uscourts.gov/argument/upcoming-oral-arguments.
  • Total argument time (including rebuttal time) is limited to 15 minutes per side for panel hearings and 30 minutes per side for en banc.
  • An attorney who wishes to be admitted to practice before the Federal Circuit must fill out an application and pay a $231 nonrefundable fee.

Expect to see more Federal Circuit action in the coming months, as appellants are starting to realize that they’ll have a resolution much sooner if they skip the PFR to the Board. In fact, recent statistics on the MSPB’s website show that only half the usual number of PFRs are being filed at the MSPB.

It doesn’t have to be this way – so I beg you, if you know someone on the Senate Homeland Security and Government Affairs Committee, please ask them to vote quickly so we can get our MSPB back. Pretty please. Hopkins@FELTG.com

The Good News: I’m an Optimist, Even When It Comes to Dismantling OPM

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By Ann Boehm, May 15, 2019

I’m an optimist. I just am. Perhaps that’s why I write a monthly column called “The Good News.” Being optimistic does not always make me right about things, but somehow, I feel better trying to see the bright side.

What does this mean in the federal employment law world right now? It means I’m going to try to see the positive aspects of the President’s desire to abolish the Office of Personnel Management.

I spent 26 years working for the Federal government. I do remember a time, early in my career, when I would call OPM experts for advice and guidance. I remember being very impressed with their knowledge and the legitimate wisdom they imparted. I will also tell you that in the latter of those 26 years, I was not finding the same to be true with OPM.

Don’t get me wrong. OPM still does many things right, but it is failing greatly in the area of hiring federal employees. When I teach Federal managers how to handle problem employees, we always discuss that helping an employee improve can be vastly easier than trying to hire a new employee in the current morass of a system.

I personally dealt with OPM on a hiring matter right before I left the government. I was having difficulty filling an Employee Relations Specialist position. I went to OPM’s website to see if there was anything there that could help me. I was drawn to OPM’s hiring reform concept. I thought this was an initiative that would help creative managers bring in good people for jobs without being stuck in bureaucracy. I thought I could be that manager OPM would work with to show others how to hire more effectively. Boy was I wrong.

I wrote an email to the address on OPM’s website. Instead of getting some legitimate guidance from OPM, the OPM contact forwarded my email to the Human Resources Director for the Agency and indicated that I needed help. What OPM did not only failed to help me, but also embarrassed me with my Agency, just for trying to think outside the box.

How does this story apply to my optimism and the President’s intention to do away with OPM?  OPM is not helping Federal agencies the way it could and should. Reform attempts continue to fail. Is possible that dismantling the agency will eliminate the inadequacies? I’m going to be hopeful.

If there is no OPM, will agencies finally have more autonomy in hiring Federal employees? Can KSAs become a thing of the past? Can restrictive job series requirements disappear? In other words, can the Federal government move into the 21st century?

According to the President’s plan, existing OPM employees and offices will be moved to the General Services Administration or the Office of Management and Budget (background investigations are already on their way to the Department of Defense). I want to believe that if fresh eyes from other parts of government oversee OPM, the destructive personnel folklore and unreasonably bureaucratic aspects of OPM’s mission will be questioned and hopefully changed. It’s certainly possible that nothing will really change. And things could certainly get worse (the devil you know …). But the optimist in me believes that maybe, just maybe, if leadership from outside of OPM examines its practices, new ideas may actually move forward.

I told you. I’m an optimist. Here’s hoping!! Boehm@FELTG.com

Amazon Versus the Sabbath: Religious Accommodations in the Workplace

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By Meghan Droste, May 15, 2019

When I think of a post office, there is one thing that definitely does not come to mind: a social gathering spot (unless you count standing in a long line because you waited far too long to mail a holiday package).

It turns out, however, that post offices use to be just that. Up until a combination of religious groups and the labor movement pushed to end Sunday mail delivery in the early 20th century, the post office was a Sunday gathering spot in many communities, acting as a substitute for the taverns that were closed. That all ended in 1921 when Congress declared that post offices would no longer be open for mail delivery on Sundays.

Other than helping out those of you who participate in trivia nights, why am I sharing this with you? Well, as you may have noticed, the U.S. Postal Service is back in the business of delivering packages on Sundays. USPS has a contract with Amazon to deliver our books, clothes, and whatever else we might order from the online retail giant seven days a week. This, of course, means someone has to work on Sundays to deliver all of things we order. That brings us to the Commission’s recent decision in Stanton S. v. U.S. Postal Serv., EEOC App. No. 0120172696 (Feb. 5, 2019), involving a request not to work on Sundays as an accommodation.

The complainant in Stanton S. worked as a PSE Sales and Services/Distribution Associate (PSE).  The Agency required all PSEs to receive training and to make themselves available for Amazon-related deliveries. The complainant submitted a written request for an exemption from working on Sundays as a religious accommodation. He explained that his religious beliefs prevented him from working on his sabbath. The complainant’s supervisor informed him that the scheduling portion would not be an issue because another employee volunteered to work on Sundays.  However, the complainant was required to receive the training on processing Amazon deliveries so that he could serve as a backup. The Agency then scheduled the complainant for training on a Sunday. The complainant did not attend the training. The Agency responded by scheduling the complainant for training on the following two Sundays. The complainant did not report on those days. The Agency then removed the complainant from his position, based on his failure to report on the three Sundays as well as on two days on which he used approved sick leave.

The complainant filed an EEO complaint regarding his removal and requested a Final Agency Decision. In the FAD, the Agency concluded that it accommodated the complainant because it did not schedule him to work on Sundays, and that the scheduled trainings were required because the complainant had to serve as a backup.

The Commission reversed the Agency’s decision and concluded that the Agency failed to accommodate the complainant. Requiring the complainant to be available as a backup on Sundays failed to accommodate his sincerely held religious beliefs. The Agency also failed to provide any indication that not scheduling the complainant as a backup was an undue hardship because there was no indication that other employees were not available.  The Commission ordered the Agency to reinstate the complainant with back pay, along with other remedies including training.

The next time you receive a package delivery on a Sunday, think about how much fun we miss out on by not getting to hang out at the post office and play cards like people did in 19th Century. Droste@FELTG.com

Failure to Meet a Medical-related Condition of Employment

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By Barbara Haga, May 15, 2019

This month, we look at cases where the condition needed to be met involves some sort of physical capability. Because the employees in these cases had previously performed at a fully successful or better level or the medical showed that they could perform at a fully successful level in the future, one might think there could be an issue in holding the employee to the medical standard. However, the MSPB and EEOC ruled otherwise in these situations.

Medically Unfit for Flying

Boulineau was a 51-year old GS-12 Army Helicopter Flight Instructor. His position had established medical standards. He was required to undergo annual flight examinations. During an examination conducted in 1989, it was discovered that he had an elevated coronary risk index. He underwent additional testing, including a treadmill test and a fluoroscopy. The latter test revealed a mild calcification of his coronary area. To confirm the existence of coronary artery disease, which was disqualifying for the appellant’s position, the Army asked that he undergo cardiac catheterization. Boulineau refused to do so and was removed consistent with the relevant Army Regulation (AR) 40-501.

Boulineau argued that the testing and evaluation program violated not only the Army regulation, but his civil rights. The Board found that AR 40-501 provided that a person is medically unfit for flying if he has suspected or proven to have coronary artery disease, and that a coronary risk index is presumptive evidence of such disease until further evaluation is done as needed. The Board also found that although Boulineau had performed his duties in an exemplary manner in the past, the Army reasonably suspected that he had coronary artery disease and that he was, therefore, medically unfit for flying. The Board did not concur that Boulineau’s civil rights had been violated and noted that medical examinations of the type in question were authorized by OPM. Boulineau v. Army, 57 MSPR 244 (1993).

Boulineau alleged age discrimination and that issue was ruled on by the EEOC in 1994.  Per the EEOC’s analysis, the reason for his removal was that he refused the heart catheterization procedure — not his age. Therefore, they did not find discrimination. Boulineau v. Dept of the Army, 1994 EEOPUB LEXIS 565.

Failure to Meet New Hearing Qualification

McAlexander was originally hired as a Police Officer in January 2002 by the Defense Protective Service (DPS). In response to the terrorist attack against the Pentagon on 9/11, DoD established the Pentagon Force Protection Agency. The new agency absorbed the Pentagon’s police force, formerly known as DPS, and its role of providing basic law enforcement and security for Pentagon and DoD interests in the National Capitol Region.

McAlexander had had no issues with qualifications prior to implementation of the new requirements. However, when he was tested subsequent to issuance of the new standards, he was found not qualified to hold the Police Office position.  According to the agency’s audiologist, McAlexander was “at risk for failure to recognize, discriminate, localize, and react appropriately to a variety of auditory stimuli.” The audiologist also found that the appellant would have “significant difficulty recognizing and discriminating speech as well as other auditory signals, particularly in the presence of background noise,” and stated further that he would be at a “greater than normal risk of being injured or of injuring others because of background noises he had missed or misunderstood in critical situations.” The audiologist stated that there were no hearing aids that could satisfactorily correct his hearing deficit.

DoD proposed removal, but offered another position. McAlexander was ultimately reassigned to a non-law enforcement position as a GS-07 Office Support Assistant, with retained pay, and the removal notice was rescinded.  The case was taken to arbitration where the agency’s action was upheld. The arbitrator found that the agency acted lawfully when it declined to waive its hearing requirement for McAlexander. The MSPB appeal was a request of a review of the arbitrator’s award and a claim that the reassignment was involuntary. The MSPB found that the agency’s auditory acuity qualification standard was job-related and consistent with business necessity and that McAlexander would pose a direct threat because of his lack of hearing acuity.  The Board also ruled that acceptance of the offered reassignment was not involuntary. McAlexander v. DoD, 2007 MSPB 103.

See also Holub v. Navy, PH-0752-03-0395-I-1, which has the same result for another Police Officer who failed to meet revised hearing acuity requirements.

Failure to Meet Requirements for Sea Duty Because of Prescribed Medication

Justice was a Utilityman in the civilian mariner pool with the Navy’s Military Sealift Command. This position required going to sea. Justice had previously experienced psychiatric and alcohol-related problems while on board a vessel. As a result, he was repatriated back to the U.S. for treatment.  He was diagnosed with Bipolar Affective Disorder. This condition was treatable with medication. Justice provided information from two treating physicians stating that he was being successfully treated with Depakote, a psychotropic drug. It was also noted that he would have to take this drug indefinitely, but he could resume his regular duties as long as he continued to take Depakote.

The agency medical officer found Justice disqualified for sea duty. He was removed, and he appealed that removal to the Board. The agency medical officer testified that she considered Bipolar Affective Disorder a disqualifying condition in itself under the agency regulations, and that the continued use of Depakote was a separate disqualifying factor under the agency regulations.  The agency medical officer stated “Depakote is a medication that requires some routine monitoring of blood levels to determine whether it’s a therapeutic level” and also noted that individuals taking psychotropic drugs are disqualified from sea duty because of the uncertainty such drugs present in terms of their effect on individuals who take them or who fail to take them, and because they could have some “rather significant side effects pertaining to alertness and judgment.” The medical officer also testified that the type of ships that Justice would be assigned to did not have the medical facilities to test the amounts of the drug in his system as would be required. She also noted that in a situation where the individual stopped complying with the medication, incidents requiring repatriation could occur again which could interrupt the mission of the ship, which could interrupt the mission of a battle group. The Board sustained the removal, although they overturned the construction suspension for the period prior to his removal. Justice v. Navy, 89 MSPR 379 (2001).

Next month we’ll look at cases involving security clearances and sensitivity determinations. Haga@FELTG.com.

See the first part of Barbara’s series on Conditions of Employment here and the second part here.

Tips from the Other Side: May 2019

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By Meghan Droste, May 15, 2019

I think it is fair to say that in a lot of ways, discovery is the heavy lifting portion of litigation. It is time-consuming and usually involves a lot of different moving pieces. It may also include some literal heavy lifting as you sort through, organize, and produce a significant number of documents. This installment of our discussion of discovery tips covers what to do (or not do) when responding to requests for production.

The first, and perhaps most important, tip is to actually produce documents and to do so on time.  I know that seems pretty obvious, but, unfortunately, I have had to remind agencies of this very basic point more times than I can count. All parties have an obligation to timely respond to discovery. The failure to do so, including the failure to produce responsive documents by the deadline, can result in a waiver of any objections to the requests.  See Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 619 (D. Kan. 2005). If you are unable to produce the documents by the deadline to respond to discovery, you must identify a specific date by which you will produce them.  (You should also check in with the other side and request their consent to informally extend the deadline or to file a motion to extend it if needed.)  Simply telling the complainant that you will produce the documents when possible is not enough, and may be considered a failure to respond.  See Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 656 (D. Md. 1997) (“[A] response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, is not a complete answer as required by Rule 34(b) [of the Federal Rules of Civil Procedure] and, therefore, pursuant to Rule 37(a)(3) is treated as a failure to answer or respond.”).

Producing the documents also means actually producing them. In the federal sector, it is generally insufficient to offer to let the other side come to your location to inspect the documents. See EEOC Handbook for Administrative Judges, Ch. 4, § II(B) (“As a practical matter, parties typically provide copies of the requested documents in lieu of inspection.”). (Yes, I have had an agency try to do this.  No, it did not go well for them on the motion to compel.)

The second tip is to ensure that you have an adequate privilege log if you withhold any documents, or portions of documents, pursuant to any privilege. If you redact or withhold anything, you have the burden of proving that doing so is appropriate and necessary. See Apple Inc. v. Samsung Elecs. Co., 306 F.R.D. 234, 237 (N.D. Cal. 2015) (“The party asserting the privilege bears the burden of establishing all necessary elements.”). Your privilege log should state the privilege you are asserting, identify each document or portion of a document that you are withholding, identify the individuals who created or sent and received the document if it is an email, and provide a description of the information you are withholding. Failing to produce a privilege log, or producing an insufficient one may result in the judge finding that the agency waived all asserted privileges.  See McNabb v. City of Overland Park, No. 12-CV-2331, 2014 WL 1152958, at *6 (D. Kan. Mar. 21, 2014). Finally, if you are redacting, avoid the mistakes Paul Manafort’s attorneys made, and make sure the text is actually redacted. Droste@FELTG.com

God Bless America and Charges That Avoid Intent

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By Dan Gephart, May 15, 2019

The Phillies were hitting the stuffing out of the ball, the Sixers were engaged in a physical playoff series with the Brooklyn Nets, and the Eagles were preparing for the NFL Draft. So when I turned on a Philadelphia sports radio station last month, I was shocked to hear fans talking about, um … Kate Smith.

The Songbird of the South was once a good luck charm for the Philadelphia Flyers hockey team. When Kate Smith sang “God Bless America” before games, the Flyers more likely than not won, especially during their back-to-back Stanley Cup seasons in the mid-1970s. Her final public performance was actually before a Flyers game — Game 2 of the 1985 Stanley Cup finals to be exact. Smith was so beloved that the Flyers organization built a statue of her outside their arena.

Kate Smith’s iconic mid-song figure was a fixture in South Philly for years, until the Flyers suddenly covered the statue last month. Days later, it was gone. The organization had “discovered” the racist lyrics to other tunes in the singer’s canon, songs like “Pickaninny Heaven” and the 1931 hit “That’s Why the Darkies Were Born.”  (It was actually the New York Yankees who first cut their connection to the deceased singer a day before the Flyers, announcing they would no longer play Smith’s version of “God Bless America” during the seventh inning stretch.)

Irate sports fans were shocked, and they called into sports radio stations en masse to share their displeasure with the Flyers’ decision. There were several arguments against removal of the Smith statue, but the one that took sway over most Smith supporters was that “Why the Darkies Were Born” wasn’t racist, but satirical. In other words, they argued, we didn’t understand Smith’s intent when she sang that song; she was making fun of racism.

Personally, I applauded the difficult decisions made by the Yankees and the Flyers. That said, there was something about the sports radio argument that struck a nerve. A decade-plus of hearing experts like William Wiley, Deborah Hopkins, and Barbara Haga teach disciplinary charges will make you wince when you hear an argument about intent.

If you’ve attended any FELTG training, whether as a federal HR professional, attorney, or supervisor, you know that it’s awfully hard to prove intent. Your decision to remove, suspend, or demote an employee could be the right one. However, using an intent-driven charge will unravel your case faster than Anthony Scaramucci’s tenure as White House Director of Communications.

The MSPB, in Boo v. Department of Homeland Security, made it clear: Whether intent has been proven must be resolved by considering the totality of the circumstances, including the appellant’s plausible explanation, if there is one. Basically, if the employee has a decent excuse, your charge is sunk.

Here are a few charges to avoid with case examples:

Falsification: The MSPB found that the Richard Leatherbury, an assistant operations manager, improperly submitted a claim for past overtime based entirely on an estimate, and that improperly indicated that the claim was based on a precise calculation of actual time worked. The board upheld the agency’s removal.

However, the Federal Circuit found that the employee’s good faith explanation in filing the travel expenses was disregarded. Areasonable good faith belief in the truth of a statement precludes a finding that the employee acted with deceptive intent. Leatherbury v. Army, 524 F.3d 1293 (Fed. Cir. 2008).

Insubordination: The agency claimed that registered nurse Irene Yetman’s failure to complete her work was evidence of insubordination. The administrative judge rejected these charges. Yetman’s intent was not to disobey orders. The orders were so onerous, she didn’t have time to complete them all. Yetman v. Department of the Army, 88 FMSR 5138 (MSPB 1988).

Theft: Cathryn Nazelrod, a correctional institute employee, admitted that she took $10 from an inmate’s envelope to buy herself lunch. Nazelrod put the $10 back into the inmate’s envelope the very next day. When the agency found out, it demoted Nazelrod on the charge of theft. Noting that the one of the elements of criminal theft was an intent to permanently deprive the owner of possession or use of the property, the MSPB concluded that the agency failed to prove the requisite intent because she returned the money. On appeal, the Federal Circuit agreed. King v. Nazelrod, 43 F.3d 663, 665-67 (Fed. Cir. 1994).

Taking a page out of the best-selling Eat This, Not That book, I share with you Charge This, Not That.

  • Charge Lack of Candor, not Falsification
  • Charge Failure to Follow Orders, not Insubordination
  • Charge Unauthorized Removal, not Theft

While I understand the Flyers’ decision to remove a statue of an artist whose successful career included racist songs, and I have made that case in the court of public opinion, I would not want to argue it before the MSPB. Gephart@FELTG.com

The Newest Federal Circuit Decision Offers a Surprising Interpretation of the VA Accountability Law

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By Deborah Hopkins, May 7, 2019

Most readers of our newsletter know that when a new law is passed, all we have to go by is the plain language of the statute, any accompanying regulations, and legislative history. After that, the edges of the law are tested through the courts, and the case law that develops teaches us how to interpret the law.

Just under two years ago, Congress passed, and the President signed into law, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act), 38 USC § 714. This law reduced the level of employment protections for federal employees. We have written about it before, but as a recap in how it differs from Title V Chapter 75 removals, here are some of the big takeaways:

  • Shortened notice periods,
  • A lower burden of proof (substantial evidence) for misconduct cases, and
  • The Board has no mitigation authority over the agency’s penalty selection.

38 U.S.C. § 714(d)(2)(A)-(B).

Well, now that several months have passed, the edges of this new law are coming into focus. An interesting issue was raised in a Federal Circuit decision that came out last week: While there is no penalty mitigation, the Board might actually have authority to review the VA’s penalty for reasonableness. Mogil v. Dep’t of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019).

Before we get into that, though, let me set out the facts of the case for you. I think you’ll enjoy them.

The respondent, Allyn Mogil, was an engineering technician at a VA Medical Center in Minneapolis. He shared an office with a coworker, Tony Horacek. Mogil and Horacek had an ongoing dispute about the lighting in their office. Mogil wanted all three lights to remain on, and Horacek wanted one or two lights off because the lights caused a glare on his computer screen and bothered his eyes. Mogil placed tape over the light switch, and even welded a metal plate over the light switch so that the lights couldn’t be turned off. Each time the switch was covered, though, Horacek removed the barriers and turned the lights off when Mogil left the office. On several occasions, Mogil asked his supervisor to intervene, and his supervisor eventually told them to leave the lights on and to get along.

The day after the supervisor’s directive, Mogil left the office for a while, and when he got back he saw that Horacek had turned the lights off. According to the case he “snapped.” He took a hammer from the electrical shop, and smashed the office light switch. Not only did this break the light switch and permanently disable the office lights, he also damaged the lighting in nearby rooms.

[Our tax dollars, hard at work, everyone.]

Mogil was removed for damaging government property, under 38 USC § 714. The VA did not do a traditional Douglas factors analysis. After all, it appeared a Douglas analysis was not required under the Act. However, the decision stated the agency removed Mogil because:

  • Mogil’s job “carrie[d] great responsibility,”
  • The VA entrusted him “to manage millions of dollars of allocated taxpayer funds,”
  • His actions showed he could no longer be trusted to carry out his responsibilities professionally,
  • Destroying government property in response to an officemate turning the lights off “is never an acceptable response to an interpersonal disagreement.”

The VA considered the fact that Mogil was seeing a counselor and that he apologized and expressed remorse, but that did not outweigh the damage done.

[Does that list still look like Douglas factors to anyone else?]

After the AJ’s decision affirming the removal became the final Board decision, Mogil filed a PFR to the Federal Circuit. (We can assume that was because there was no quorum at the Board.)

As I mentioned earlier, the parties in this case introduced a new question to the Federal Circuit: they disputed the effect the Act has on the Board’s ability to review a penalty’s reasonableness.

Here’s the core of Mogil’s argument:

  • Yes, the Act eliminated the Board’s ability to mitigate the penalty if the decision is supported by substantial evidence.
  • But, the Act’s requirement that the Board determine whether “the decision of the Secretary to remove . . . an employee under subsection (a) is supported by substantial evidence,” includes whether substantial evidence supports the reasonableness of the penalty [bold and emphasis added by FELTG].
  • So, not only does the agency have to prove by substantial evidence that the he committed the act of misconduct, but the agency also has to prove by substantial evidence that the penalty is reasonable.
  • The fact that the Board can no longer mitigate the penalty does not excuse the agency from considering the Douglas factors before arriving at a decision.

And the VA’s argument:

  • The Act was intended to make it quicker and easier to remove VA employees.
  • The Board can only review whether substantial evidence supports the VA’s finding that the misconduct occurred.
  • Because the Board can no longer mitigate the penalty and § 714 eliminated the efficiency-of-the-service requirement, the Board no longer reviews whether a penalty is reasonable and a Douglas factor analysis is irrelevant.
  • Requiring a Douglas factor analysis before removing an employee would undermine the purpose of § 714, which was to simplify and expedite the removal process.

And, the Federal Circuit’s decision on these arguments:

  • There is no dispute that Mogil intentionally destroyed government property.
  • Under the Act, the Federal Circuit may actually have the authority to review the agency’s penalty for reasonableness: “Assuming, without deciding, that we may review the VA’s penalty selection as we can the penalties imposed on federal employees generally, our review ‘is highly deferential,’ and penalties are considered reasonable unless ‘grossly disproportionate to the offense charged.'” (Citations omitted); [bold and emphasis again added by FELTG].
  • Mogil did not identify any Douglas factor that the agency did not consider and that would have been relevant in selecting a penalty, so the agency action was in accordance with law.
  • And the real kicker: “We leave for another day the statutory interpretation issue with constitutional implications.”
Holy moly. Are you still with me? The Federal Circuit appears to be saying that, contrary to what we’ve been thinking for the last two years, the Board has the authority to review the reasonableness of the penalty in cases brought under the new VA law. So if the Board doesn’t have the authority to mitigate the agency’s penalty, here’s my question: Is the Federal Circuit telling us that if there is substantial evidence a penalty is unreasonable, the entire action must be overturned? Only time will tell. Hopkins@FELTG.com

We Might Get an MSPB After All

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By Deborah Hopkins, April 30, 2019

Did you hear the big news? Yesterday, President Trump nominated a third and final member to the Merit Systems Protection Board. After months of waiting and a lot of angst, B. Chad Bungard has been named to be the Vice Chairman for a term that will expire March 1, 2025.

According to the White House press release, Mr. Bungard currently serves as the Deputy Commissioner for the Office of Analytics, Review, and Oversight (OARO) at the Social Security Administration (SSA). Mr. Bungard is responsible for providing executive leadership to more than 2,000 employees, including leading the Office of Anti-Fraud Programs and the Office of Appellate Operations, where SSA’s Administrative Appeals Judges adjudicate appeals from SSA’s Administrative Law Judges. Previously, Mr. Bungard served as the General Counsel for the Special Inspector General for the Troubled Asset Relief Program (SIGTARP) and Chief Counsel to the SSA Inspector General. Mr. Bungard earlier served as the General Counsel for the United States Merit Systems Protection Board. He also spent several years on the Hill in leadership roles, where he focused on oversight and government reform. He started his career in private practice, where he primarily focused on Federal civil litigation. In addition to attaining his B.S., cum laude, from Liberty University and J.D. from Regent University School of Law, Mr. Bungard received an LL.M. in Law and Economics from George Mason University School of Law.

Earlier this year, the Senate Committee on Homeland Security and Governmental Affairs voted out of committee MSPB nominees Dennis Dean Kirk (R) for Chairman and Julia Akins Clark (D) for Member. Committee Chair Ron Johnson announced that the Senate would wait for the third nominee to be named and voted out of committee before the first two nominees would be confirmed.

Here’s to hoping the full Senate will vote on these nominees quickly, and we get a functioning MSPB by the time school’s out. FELTG will keep you posted. Hopkins@FELTG.com

Sorting Things Out: Defining Discipline

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By William Wiley, April 30, 2019

Here in the United States, when trying to understand a complex problem with many parts, we say we are trying to “figure out” what to do. In Britain, the phrase that is more likely to be used is to “sort out” a problem. Well, it’s time for some “sorting out” of several terms that are routinely misunderstood by a number of people in our business.

Discipline: Not finding a definition of this word in statute or regulation, I resorted to good old Google. Discipline is defined as “using punishment to correct disobedience.” That aligns with what you often hear in human resources, that we use discipline to “correct behavior,” not to punish. Without getting into the niceties of whether we embrace or reject the word “punishment” as being related to discipline, I think it’s fair to say that we take a disciplinary action in the civil service in the hopes that the employee on the receiving end learns a lesson and does not engage in future misconduct.

With a definition this broad, we could call just about any action taken by a manager toward an employee with the intent to preclude future misconduct “discipline.” We could require the employee to wear a dunce cap or stand in the corner with his nose against the wall, or, perhaps, we could use medieval stocks or the rack. Yes, the mind boggles with options for delivering negative reinforcement (fancy psychology talk for “punishment”).

In federal employment law, we have to be very careful what we identify as “discipline.” That’s because an important tool for federal supervisors is the concept of “progressive discipline.” In broad terms, progressive discipline says that when it comes to correcting behavior, we often start out with a low level of discipline. If that works to correct behavior, everybody wins. However, if the employee engages in subsequent misconduct following a low level of discipline, the supervisor is justified in moving to a more severe disciplinary tool because the low-level discipline obviously did not work. In other words, the supervisor “progresses” up the levels of discipline trying to find something that works to correct behavior, or eventually the employee can be removed for failing to respond appropriately to discipline. As the Court of Claims said years ago, the government does not have to retain as an employee an individual who does not respond to discipline. The application of progressive discipline weeds out those who can be rehabilitated from those who cannot.

Although many actions can be defined as “discipline” using the broad definition above, it’s only a narrow selection of those actions that count as discipline for the purpose of using the concept of progressive discipline. For a supervisor to be able to use prior discipline as a basis for enhancing a penalty for subsequent misconduct without having to re-litigate the prior action, the disciplinary action must meet three criteria, see Bolling v. Department of Air Force, 9 MSPR 335 (1981):

1. The action must be given to the employee in writing;

2. It must be recorded in the Official Personnel Folder; and

3. It must be grievable to a higher-level supervisor.

There are only two government-wide disciplinary actions that meet these criteria: reprimands and suspensions. (Demotions and removals also are disciplinary actions, but not a part of the concept of “progressive” as they are not intended to correct behavior.) Therefore, when applying the concept of “progressive discipline” to justify an enhanced penalty, these are the only prior actions that are relevant in supporting that justification.

An agency has the authority to characterize other actions as “disciplinary,” either through agency policy or negotiations with a union. For example, I’ve seen collective bargaining agreements that state that an “admonishment” is a disciplinary action (also letters of caution, warning, and expectation). However, if that admonishment is not retained in the OPF or is not grievable, then it does not meet the Bolling criteria and should not be counted as prior discipline for the purpose of using progressive discipline. If you try to count one of these things as “discipline” for the purpose of an enhanced penalty, you have created a significant unnecessary burden for the agency, likely resulting in mitigation of the penalty.

Out there in the big wide world, “discipline” can take many forms, including an ice hockey player being stuck in a box or a basketball player being kicked out of a game for committing a couple of stupid technical violations. However, in our more limited world of federal employment law, the better practice is to use the term “disciplinary action” to refer only to those actions that meet the Bolling criteria as actions that can count toward progressive discipline. To do otherwise confuses and frustrates unnecessarily, and creates a potential pitfall for the unwary. Wiley@FELTG.com

The Seven Deadly Sins Employment Law Practitioners Commit

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By Deborah Hopkins, April 23, 2019

One thing I don’t understand is why people make their jobs (and as a result, their lives) more difficult than necessary. Aren’t the challenges that are out of our control already causing enough problems?

In my adventures traveling the country conducting federal employment law training, I’ve come across some suggestions that employment law practitioners offer as advice, that make things far more difficult than necessary for all parties involved. Not all advisors commit these sins; many do not. But in order to make the list, the Deadly Sin has to have been seen in multiple agencies, multiple times over the past year.

Here they are, with my bulleted responses following each:

  1. Inaccuracy. Advisors in L/ER or OGC tell supervisors they need a three- to six-month record of poor performance before they can put an employee on a PIP/ODAP/DP, or whatever the agency calls the period where the employee is given an opportunity to demonstrate acceptable performance.
  • That’s just wrong, and it’s bad advice. As soon as a supervisor can articulate why the employee’s performance is unacceptable, she can put the employee on a demonstration period, as long as the employee has been on her performance standards for a warm-up period of 60 days or so. The only thing that matters in a performance-based removal is what happens during the demonstration period. As long as the reason why the performance action was initiated was not illegal (e.g., based on race or sex or whistleblower status) and the performance is unacceptable now, the employee’s performance before that articulation of unacceptable performance has no bearing.
  1. Imprudence. There are some jobs that are so high-level, an employee needs more than 30 days to demonstrate acceptable performance; therefore, the demonstration period should be at least 60-90 days.
  • No can do. The MSPB has never found a 30-day demonstration period to be too short, regardless of an appellant’s job level or type. Even if the employee’s typical work cycle takes months or even years, there must be some amount of work the supervisor expects to be done within the next month or so. Break the projects down into smaller steps and you’ll find you have a nice 30-day demonstration period. If my suggestion isn’t enough, you may want to note that several agency policies, and even the President in Executive Order 13839, now say that 30-day demonstration period is sufficient. Unless you have a union contract that says you have to provide more than 30 days, you don’t. And you shouldn’t.
  1. Waste. If an employee fails the PIP/ODAP/DP before the end date, the agency should let the employee finish out the 30-day demonstration period anyway.
  • This makes no sense – and could actually cause a lot of harm. Picture this: a TSA security screener who is on a demonstration period, lets a bunch of cocaine and guns get on an airplane in the first couple of weeks of the demonstration period, and you’re going to let that screener continue working for the next several days? If so, I guess you think letting drugs and loaded weapons onto a plane are no big deal. Or what about the nurse who is putting patients’ lives in danger – you’re really going to let him continue to provide poor care after he shows you he cannot do the job acceptably? The same principle applies across the board, no matter the job or what the employee’s critical element is called.

It is a waste of time, taxpayer money, and supervisory resources to allow someone who fails an opportunity period before the end date to finish it out, and there is legal authority that says you can end it early due to error rate. See, e.g., Luscri v. Army, 39 MSPR 482 (1989). The primary issue the MSPB will look at is whether the employee was given an opportunity to demonstrate acceptable performance. We know from the case law that even 17 days is enough time for an employee to demonstrate whether he can do the job acceptably. Bare v. HHS, 30 MSPR 684 (1986). The only time you have to allow the full length of the demonstration period to run is if it is required by your collective bargaining agreement.

  1. Fallacy. If the supervisor saw an employee engage in misconduct, he can’t discipline the employee unless there is additional evidence to support the charge.
  • The standard of proof for misconduct is preponderance of the evidence – or substantial evidence if the employee is covered by the new VA law. If a supervisor saw the employee violate a workplace rule, that’s a preponderance of the evidence. 5 CFR 1201.56(c); 5 CFR 1201.4(q). If you have witnesses and video logs, that’s great – but if you don’t then you still have enough evidence. The only exception is if the employee is a whistleblower; in that case you’ll need clear and convincing evidence, so those extra witnesses and videos will come in handy.
  1. Risk. Don’t use Notice Leave except in extreme circumstances where you have determined an employee is a threat to safety.
  • Notice Leave is a paid leave status, created by the Administrative Leave Act of 2016, that allows the agency to send the employee home with no duties after a removal is proposed, for the duration of the 30-day notice period. In order to use Notice Leave the agency simply needs to document why retaining the employee at work jeopardizes a legitimate government interest, that reassignment is not appropriate, and inform the employee in the proposal that she will be placed in this pay status.

Why wouldn’t you use Notice Leave it every time you propose a removal? Congress created this category of leave exclusively for this situation. An employee whose removal is proposed will not do anything constructive during the notice period – and may even cause severe problems in the workplace. Don’t believe me? Come to our Emerging Issues Week class this July where we talk about people becoming violent in the workplace after proposed removals; even though there may be warning signs, you can’t always predict it. Plus, some people become violent with NO warning at all. Don’t gamble with your life or your agency resources. Use the gift called Notice Leave every time, and you won’t have to wonder who will become dangerous in the workplace after you’ve proposed their removal.

  1. Apathy. It’s too much work to go through with a misconduct or performance action, and the agency will probably just settle the case anyway, so supervisors should ignore conduct and performance issues unless they are especially harmful or egregious.
  • I cringe every time I hear something like this. This is completely disempowering to supervisors and just plain wrong. If a supervisor wants to take an action, the role of an advisor is to make the supervisor aware of the options and to point out potential legal issues – not to tell the supervisor to forget it. If a supervisor has reason to hold someone accountable, then we should support that supervisor.
  1. Avoidance. If an employee has EEO activity pending, the supervisor must hold off on any discipline until the complaint is resolved.
  • If I had a dollar for every time I heard this, I could have retired years ago. This statement is completely incorrect. EEO activity is not a shield for employees, though in reality it has become one in many agencies. Supervisors can discipline employees who happen to have EEO complaints pending, as long as the discipline is not motivated by, or because of, the person’s EEO activity. And here’s another note: It often takes between 3-5 years for an EEO complaint to be resolved, so you definitely shouldn’t wait to hold employees accountable.

I hope practitioners can understand why these pieces of advice are so detrimental to supervisors, and impact the efficiency of the government workplace. If there are other deadly sins you’ve heard about, feel free to share them and they may show up in a future article. In the meantime let’s all work together to make the federal government a better place to be employed. Hopkins@FELTG.com