How I Became a Zen Master of Civil Service Law

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By William Wiley, March 13, 2019

Way back in the early ’80s, when I was just a GS-12 ER puppy working for Navy, a brand new MSPB board member named Dennis Devaney spoke at a conference I had helped pull together. In his speech, he announced that the Board was about to issue a decision that would hold that if an employee was having performance problems, the relatively new Civil Service Reform Act of 1978 required that they be dealt with through the relatively new Chapter 43-PIP procedures rather than through the old school adverse action procedures. This issue had been hanging out there since 1978, with OPM providing advice that it was mandatory that agencies use the Chapter 43 procedures and avoid the Chapter 75 adverse action procedures when confronted with bad performance.

Even at that limited-experience point in my career, I already knew that was going to be a bad decision. I recently had been advising a supervisor about a pediatric nurse who was engaging in such bad performance that she was perhaps on the road to killing patients. She failed to give medications if the patient didn’t want to take it. She did not keep an eye on IV needles, thereby ignoring any that had perforated the vein and were infusing fluid into the surrounding tissue. When I asked OPM for advice, the response was that I had to PIP her and could not fire her using adverse action procedures. When I asked how many dead babies I should consider to be an indicator of unacceptable performance, they told me to assign one of my spare nurses to follow her around all day to make sure that didn’t happen. Like I got a closet full of spare RNs. Geez Louise.

Member Devaney and I happened to run into each other the evening after his speech (in the hotel’s bar, of course; I LIKE BEER!). Failing to have the good graces vested in a frog, I confronted Member Devaney about the idiocy of his pending decision, the one that would require that poor performers be given 30 PIP days or so to commit even greater harm to the government. Mr. Devaney graciously ignored my youthful arrogance, thanked me for my opinion, and that was that.

Several weeks later, I got a letter from Mr. Devaney. This is before email, children, a time when adults communicated using paper, ink and stamps. In his note, Dennis described how the more he thought about our discussion, the more he appreciated the problem that would be caused by mandating Chapter 43-PIP procedures for all performance problems. When he returned to his office from the conference, he discussed the issue with the other two Board members, and they decided NOT to limit agencies to using just PIPs when dealing with a poor performer. The decision recognized that since the beginning of our civil service, agencies had been able to use adverse action procedures to fire poor performers, and nothing in the Civil Service Reform Act did away with that option. That principle is still good law. When confronted with a poor performer, supervisors are not limited to Chapter 43 procedures and are free to use discipline/adverse action procedures whenever they see fit. In fact, the Board’s case law is chock-full of removal actions taken under Chapter 75 that are based on bad performance.

Unfortunately, that word didn’t get around very well. For example, maybe a dozen years after that decision, I was dealing with an OSC investigator/attorney. The agency I was representing had reassigned a poor performer to another position in which it thought the employee might succeed. The attorney from OSC argued with me that such a reassignment was illegal, that the employee was entitled to be PIPed instead. Holy moly. Am I the only one who has read the Board’s decisions? And has a smidgen of common sense?

That brings us to today; 35 years deep into Board case law. So, what do I see coming out of EEOC and echoed by some others who opine in this field? This:

“Work product errors and untimely completion of work assignments are not matters of misconduct; they are matters of performance.” EEOC reasoned that “measures designed to address performance problems, such as appraisals, remedial training, non-disciplinary counseling, and Performance Improvement Plans (PIPs)” be used. Marx H., Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency, Equal Employment Opportunity Commission-OFO Appeal No. 0120162333, Agency No. 14-00259-03453 (June 19, 2018)

EEOC appears to be saying that using adverse action procedures for bad performance is somehow “improper.” Well, that was an issue back in the early 80s. But it was resolved back then, and is just as wrong today as when OPM advised me to assign backup nurses to keep a PIPed coworker from harming babies and small children. When it comes to dealing with a poor performer, there are a number of tools available to the supervisor. With all due respect, EEOC should be making decisions based on the answers provided by case law, not what they think the answer should be. In any particular case, using a disciplinary or Chapter  75-type approach vs. using a “performance improvement” type of approach may be the more reasonable way to go, but both approaches remain available.

What does that have to do with my personal career? At the end of Mr. Devaney’s note, he told me that if I ever wanted to move to DC, he could use someone with front-line practical experience as an advisor on his staff.

I was loading the U-Haul before the week was out, heading off to a career that gave me a chance to see civil service law from the inside out. And, what’s the professional-development lesson in here for all you youngsters out there?

Drink beer. Wiley@FELTG.com

Cook-ing a Sick Employee

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By Deborah Hopkins, March 13, 2019

A few days ago I got a nice note from a FELTG customer, who had a question about an employee with excessive absences. Allow me to paraphrase a snippet that you might find interesting.

I recall learning in one of your courses that a supervisor who approves leave cannot then turn around and use the approved leave to support a disciplinary charge of excessive absence. Is this correct – and if so, are there any exceptions?

And here’s the answer: While there’s a fundamental principle that says an agency cannot discipline someone for being on approved leave, there are indeed exceptions. At FELTG, we like to highlight these kinds of exceptions, as they provide us with the coordinates of the outer boundaries of the law, for taking these kinds of actions.

The foundational case for excessive absence removals, one that every employment law practitioner should read, is Cook v. Army, 18 MSPR 610 (1984). This case sets out the elements required for an excessive absence removal, where an employee has been on approved leave for a period of time but the agency can no longer allow the absence to continue, and needs to remove the employee for not being able to work. Here they are:

  1. The employee was absent for reasons beyond her control;
    • For example, she was too sick to come in to work.
  2. The absences continued beyond a reasonable time;
    • For example, she was gone for 2 months out of 6 months after her FMLA ran out (see Gartner v. Army, 2007 MSPB 8; Savage v. Army, 2015 MSPB 51).
  3. The supervisor warned the employee that she would be removed if she did not report to work;
    • Send the employee a letter that tells her this.
  4. The agency showed that the position needed to be filled on a regular, full-time basis
    • Your Douglas analysis on the harm caused by the employee being gone is key here.

After you read Cook, take a look at Curtis v. USPS, 2009 MSPB 134, in which a Cook removal was upheld when, over a 21-month period, the employee was absent for 77 days (on approved LWOP) due to PTSD and depression. That works out to about one day per week. If this kind of intermittent attendance happens for a couple of weeks, you don’t have a burden – but this went on for nearly two years and the agency was able to show a hardship in the absences.

You’ll want to be careful here. You can rely on approved annual leave, sick leave, and LWOP but you cannot count FMLA excused absences (these are an entitlement) or AWOL (which is an act of misconduct) when determining what constitutes excessive absence. See McCauley v. DoI, 116 MSPR 484 (2011); Savage, supra.

If you can’t meet even one of the Cook elements listed above, you can’t Cook an employee. Let’s look at a couple of cases that demonstrate this point.

First up is Miles v. DVA, CH-0752-14-0374-I-2 (May 17, 2016). Miles had been out on approved leave for quite some time (1,000 hours, if I remember correctly) and the agency needed him to come back to work, so they sent him a letter telling him so. The warning letter told the employee that if he did not return to work, he would be disciplined – but it did NOT state that absence on approved leave would warrant dismissal. There was the agency’s first problem. Secondly, Miles’ medical documentation said he could return to work in six months, which was a foreseeable end to the absence. The agency had already granted 1,000 hours of approved leave, and the workload was actually getting done in the office despite his absence. The result: MSPB decided the agency did not meet the Cook burden, and Miles got his job back.

Another case to check out where the agency lost an excessive absence removal, is New v. DVA, 99 MSPR 404 (2005). In this case the employee had 12% absences over a five-year period but the MSPB reversed his termination because the Cook criteria were not met – being absent 12% of the time is not excessive enough.

One other approach to consider with an employee who is too sick to work, rather than Cook-ing him, is doing a non-disciplinary Medical Inability to Perform removal. I know it’s not easy on the conscience to fire someone who is in a bad medical place and is too sick to come to work; after all, you’re not dealing with someone who is breaking the rules for fun. But the good news is, these removals almost always help the employee’s case in an application for disability retirement. For information on this, and a whole lot more, join FELTG for Absence, Leave Abuse & Medical Issues Week, March 25-29 in Washington, DC. Hopkins@FELTG.com

I Wanna Be in the Room Where It Happens

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By Meghan Droste, March 13, 2019

As someone who is, shall we say, mildly obsessed with the musical Hamilton, I have to admit that I’m amazed that it took me over a year of writing these articles to work in a reference. We had to wait for it (that’s my favorite song so you’ll have to forgive me) but now I can say that I’m not throwing away my shot (ok, I’ll admit, that one was a reach) and I’m satisfied (that’s the last one, I promise).  Now that I have that out of my system, we can get down to the real purpose of this article.  This month’s Commission decision summary is all about who gets to be in the room where it happens—i.e. the hearing—and who needs to wait outside.

In Katharine B. v. U.S. Postal Service, EEOC App. No. 0120170444 (December 7, 2018), the administrative judge held a two-day hearing and then issued a decision finding no liability.  During the hearing, the administrative judge allowed the complainant’s first line supervisor, who was also named as the harasser in the complaint, to remain in the hearing room as the agency’s representative (the person sitting in for the agency, not the person representing the agency by questioning witnesses or presenting arguments) during the testimony of other witnesses.  The complainant objected to the supervisor’s presence but the administrative judge overruled the objection. Rather than excluding the supervisor outright, the administrative judge asked each witness before the start of their testimony if they were comfortable with the supervisor being present. Four of the witnesses stated that they were not comfortable and the supervisor was excused during their testimony. The supervisor was present for the rest of the hearing.

The Commission reversed the finding of no liability and remanded the complaint for a new hearing based on the decision to allow the supervisor to be present during the testimony of other witnesses. Although, as the Commission noted, administrative judges have broad discretion in regulating what occurs during a hearing, that discretion is not without limits. The Commission found that the supervisor’s presence had the potential to chill the testimony of the complainant or the other witnesses.  As a result, allowing the supervisor to stay in the room “violate[d] the prohibition against interference with the with the EEO process.” The Commission also noted that there is a conflict of interest when the agency’s representative also serves as a witness in the complaint.

Hearings can be interesting; three of my colleagues just finished the first two weeks of a lengthy hearing and I wish I could have been there to just listen in.  The desire to be in the room where it happens is understandable (just ask Aaron Burr), but we can’t let that desire impact the outcome. Droste@FELTG.com

Cases Based on Failure to Meet a Condition of Employment

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By Barbara Haga, March 13, 2019

In training classes on developing performance plans, I am often asked about putting language into standards that state employees are required to complete training or obtain necessary certifications. My response is that typically those measures are not needed. We write standards from the standpoint that they have the necessary qualifications to perform the assigned work. Put another way, we write performance standards about how well the work is performed; failure to meet such a requirement is a conduct matter.

Back to Basics

Condition of employment cases under 752 are actually fairly simple. If it is a condition of employment that an employee possess, obtain, and/or maintain a license, certification, or membership status, then failure to comply is often the basis for an adverse action. To win these cases, we need to show the following:

  • The employee occupied a job requiring the certificate/license/status,
  • The employee failed to obtain or lost the certificate/license/status, and
  • If the agency controls granting this certificate/license/status, the agency decision was made in accordance with agency procedures.

The Board deals with the facets of such cases in Gallegos v. Department of the Air Force, 114 FMSR 185 (2014). The Board wrote that the charge of failure to meet a condition of employment contains two elements: (1) the requirement at issue is a condition of employment; and (2) the appellant failed to meet that condition. The key point follows: “Absent evidence of bad faith or patent unfairness, the Board defers to the agency’s requirements that must be fulfilled for an individual to qualify for appointment to, or retention in, a particular position.”

Failure to Meet a Condition of Employment

Gallegos was a GS-1811-13 Criminal Investigator with the Air Force’s Office of Special Investigations (OSI). As a condition of employment in that position, she was required to sign a mobility agreement in which she acknowledged that any failure to accept a geographic reassignment could subject her to separation from federal service. The Board found that the Air Force policy had a legitimate management reason for directed reassignments based upon its need for “civilian mobility” as an essential component of its organizational effectiveness and for employee career progression. The agency policy established that high-level employees were expected to have a variety of work experiences at various locations throughout the Air Force. Thus, mobility agreements for all civilian Criminal Investigators were required.

The agency policy included a provision that it would honor employees’ geographic preferences to the extent that the needs of the Air Force permitted, but did not commit itself to honor all such preferences under all circumstances.

Gallegos had initially been hired in Florida, and moved to Andrews Air Force Base in Maryland in 2008. She obtained a hardship reassignment back to Florida in 2009 where she remained until she was notified in May 2012 that she was required to accept assignment at Quantico, VA. She refused that move. She argued that the agency was required to show that her move to Quantico promoted the efficiency of the service. The Board disagreed, ruling that the removal was effected for not meeting a condition of employment (to rotate) and not whether that directed reassignment was based on legitimate management reasons.

Other Kinds of Cases

There is a great variety of certifications, licenses, memberships, qualifications, and clearances that Federal positions require. In each of the cases listed below, the MSPB upheld the removal. Here are some examples:

Failure to Maintain IT Credentials – Change in Requirements

Sasse was an Information Technology (IT) Specialist, GS-2210-09. He was appointed to that position in 2008. The position description required him to satisfactorily complete the appropriate training and obtain the required certification/recertification as outlined in Department of Defense policy, 8570.01-M (“Information Assurance Workforce Improvement Program”). CompTIA is the certifying body for work in this field.

Prior to his initial appointment, Sasse had passed an IT Security examination and as a result was granted a “Good-for-Life” (GFL) certification by CompTIA. However, DoD changed the requirement in 2011. The GFL certifications went away and employees had two years (2011 and 2012) to enroll in a Continuing Education (CE) program. Once enrolled in the CE program, the certificate holder had three years to complete the CE requirements, which meant submitting proof of completing a minimum number of CE units annually to CompTIA. If the employee allowed the certification to expire, then he would have to pass the current version of the examination and comply with CE requirements.

Sasse allowed his certification to expire in 2014.  He was not allowed to perform any duties requiring privileged access between September 2014 through 2016. He performed administrative tasks during this time frame.  He also tried to pass the current security exam several times, but was not successful. He was given nine written notices in the fall of 2016 that he had to regain the CompTIA Security certification. His removal was proposed in January 2017.

Agency officials testified that privileged access enables users to make substantial changes to agency systems, potentially causing them great harm. There also was testimony that if the facility was found to have violated DoD Information Assurance requirements, the facility’s access to the broader network could be disconnected. Sasse argued that, even without his certification, he still had “many other duties and responsibilities that he could complete without maintaining elevated privileges.” The AJ deferred to the agency’s explanation that the requirements that had to be fulfilled. Sasse v. Army, DA-0752-17-0327-I-1 (2017).

Failure to Maintain EMT Credentials – Agency Not Aware of Lapse

Full-performance level Firefighters in the Department of Defense are required to maintain several types of certifications including that of Emergency Medical Technician (EMT), a certification which must be renewed every other year. The certification was documented in the position description and was also included in the vacancy announcement when Saline was hired. Saline’s EMT certification had expired four years before the agency knew. He never notified his employer that this had occurred. It was noted in the decision that because the certification had lapsed for so long, he would have to re-take the EMT course and re-take the examination to be recertified. When it was discovered that he didn’t have current certification, he was questioned on May 24, 2014. He initially told his employer that he had an updated EMT card but that was not true.

Once the Army established that he was performing EMT duties without a current certificate, he was immediately removed from firefighting duties and his removal was proposed on June 25, 2014.

Saline’s removal response was an extended apology for allowing this to occur, stating basically that he allowed it to lapse and that he had no excuse other than that he was not as diligent as he should have been. One of Saline’s arguments in his appeal was the suggestion that management could have discovered the lapsed certification earlier and notified him of the need to take prompt corrective action.

The AJ wrote that regardless of whether management could have discovered the problem earlier, Saline knew he was not certified. Agency witnesses testified that it would be virtually impossible for a Firefighter to forget to re-certify, particularly given the frequency with which it was discussed at work in the Fire Department.  Saline v. Army, DE-0752-14-0567-I-1 (2015).

In future columns, we will look at more condition of employment cases, including several with issues related to failures to meet qualifications based on medical conditions. Haga@FELTG.com.

The Good News: Ruby Slippers from President Trump

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By Ann Boehm, March 13, 2019

I love The Wizard of Oz  (spoiler alert – this article will be discussing key moments in this movie, so if you have not seen it, I suggest you do so before reading more). In my youth, it came on television once a year. There were no options to watch it like we have now – no DVDs, Hulu, Netflix, Amazon Prime. I waited for it and could not wait to watch it. When I was very young, I was afraid to watch it alone – the witch was very scary. I was so proud when I could finally watch it by myself.

I love when the movie goes from black and white to color. That’s when Dorothy acquires the ruby slippers right off the feet of the deceased Wicked Witch of the East, and the ruby slippers become the key part of the movie. I was so excited when I saw the actual ruby slippers at the Smithsonian Institution’s National Museum of American History in Washington, DC. Although they are just shoes with red sequins on them, they are somehow still magical.

So you know the deal. Dorothy, Toto, the Scarecrow, the Tin Man, and the Cowardly Lion follow the yellow brick road in order to get Dorothy to the Wizard of Oz and eventually back home to Kansas. Along the way, they keep getting harassed by the Wicked Witch of the West, who is pretty ticked off about Dorothy’s house landing on her sister and Dorothy’s acquisition of the ruby slippers. She asks the Scarecrow to “play” with fire, puts everyone to sleep with poisonous poppies, writes threats in the sky (on her broom, of course), and is always lurking. The witch even has terrifying flying monkeys. And she locks Dorothy in this awful tower with an hourglass to count down the time to Dorothy’s eventual doom. Dorothy’s friends rescue her and melt the witch, and then the Wizard of Oz is ready to take Dorothy to Kansas in a hot air balloon. Toto messes that up, and Dorothy is in a crisis. That’s when Glinda the Good Witch drops this bombshell – “you’ve always had the power” to go home. It’s all about the shoes! \

Gee, Glinda. Seriously, you put us through these terrible trials and knew all along the shoes had the power.

Ann – why are you talking about the ruby slippers and this movie?  Get to the point. 

Okay. Executive Order 13839 issued by President Trump on May 25, 2018, is just like the ruby slippers.

Huh? Isn’t it enjoined? What the heck do you mean?

Three Executive Orders were issued on May 25, and only some parts of the orders are enjoined. The employee discipline aspects of Executive Order 13839 are certainly not enjoined. The provisions in the Executive Order give you the power that has always been there and even reinstate some things that had been there and were taken away for a while by the Merit Systems Protection Board.

For those of you who feel like efforts to take care of problem employees have been met with opposition similar to the fire, poisonous poppies, flying monkeys, and hourglass tower, I am here to tell you that you’ve had the power all along – you are wearing the ruby slippers. You don’t have to be scared of the wicked witch any longer.

Okay, Ann.  Explain please.

Executive Order 13839 says that adverse actions should be completed during the 30-day statutory notice period. That means no long extensions. Proposal, reply, decision, suspended or maybe even gone – all done in 30 days. In fact, it further specifies that agencies should issue decisions on proposed removals “within 15 [business] days of the end of the employee reply period following a notice of proposed removal.” The statutory reply period is seven days – just seven!  You should have been following this timeline all along, but you did not know you had the power.  You needed the ruby slippers. The President (the head of the Executive Branch – your boss) is telling you to handle these cases quickly.

Then there’s the matter of suspensions versus removal.  Executive Order 13839 makes it clear that “[s]uspension should not be a substitute for removal in circumstances in which removal would be appropriate.” Further, this Executive Order also says progressive discipline is not required if the misconduct warrants a strong penalty. This is where the Executive Order ruby slippers get things back to where they used to be.

So what does it mean? GET RID OF BAD EMPLOYEES!  Use the ruby slippers!

And then there are the performance matters. How many of you thought Performance Improvement Plans (PIPs) had to be 60-90 days long? Nope. Thirty days is plenty. That’s what the MSPB has said for almost 40 years, and it’s what we here at FELTG teach.  Executive Order 13839 says “no agency shall” give an employee “more than a 30-day period to demonstrate acceptable performance,” unless a union contract requires longer. Thirty days for a PIP, folks. You always had this power. You just did not know it. [Editor’s note: at FELTG we have moved away from using the misleading acronym PIP and instead we use the more legally accurate term Demonstration Period, or DP. The law requires the employee be given an opportunity to show she can demonstrate acceptable performance, and not improve her performance.]

Now join me and say, “I will take care of problem employees.”  Click your heels three times.  You have the power, and you always did.

And that’s the Good News this month. Please send me any good news you have to share:  Boehm@FELTG.com.

Work Now, Grieve Later, and Avoid Having to Testify Before Congress

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By Dan Gephart, March 13, 2019

Two weeks ago, nearly 16 million people watched Michael Cohen tell the House Oversight Committee about the many illegal, unethical, disreputable, and downright nasty things that he did at his boss’s direction.

Whether you believe the president’s former attorney or not, I’m sure you think that you would, as Spike Lee says, do the right thing if your boss asked you to do something wrong. Heck, I know I would. And no psychology text book or Stanley Milgram experiment is going to change my mind.

This got me thinking about orders disobeyed and generally ignored in the federal workplace. Years of reading MSPB decisions involving charges of insubordination and failure to follow orders leaves me thinking the federal workplace’s problem is different than the one faced by the former Trump Organization lawyer. There are some federal employees, it seems, just looking for a reason — any reason — to ignore their supervisors’ orders.

That’s why every federal employee needs to know what “work now, grieve later” means, especially that first tenet – work now. The employee must follow the supervisor’s order. If not, that employee should be disciplined.

“[A]n employee does not have the unfettered right to disregard an order merely because there is substantial reason to believe that the order is not proper; he must first comply with the order and then register his complaint or grievance, except in certain limited circumstances where obedience would place the employee in a clearly dangerous situation.” Taylor v. HHS, 40 MSPB 106 (1989), citing Gragg v. US Air Force, 13 MSPB 296 (1982).

Ah, the exception. An employee does not have to follow an order that would cause him “irreparable harm.” That would mean orders that are:

  • Illegal, whether the order itself is illegal, or obeying the order would be an illegal act.
  • Unsafe.
  • Immoral.
  • An unwarranted psychiatric examination.

An order can also be rejected if it foregoes a Constitutional right.

But let’s be honest here: When we’re talking about orders that cause irreparable harm, we’re talking a miniscule number of cases. The percentage of orders that would fit into the irreparable harm category are so far to the right of the decimal point, they make pi look like a number Count von Count would rattle off on Sesame Street. It’s more likely that an employee would think the supervisor’s order was wasteful, or argue the order falls outside his position description. And in those cases, it’s simple: Work now, grieve later.

Oh wait. We nearly forgot about the Follow the Rules Act, which Congress sneaked through and the president signed in June of 2017. Yes loyal readers, that’s the bill that FELTG Professor Emeritus and Former President Bill Wiley wrote could create a “hellscape scenario” for the federal workplace if passed. Well, it did pass without much fanfare.

The Follow the Rules Act extends whistleblower protections to federal employees who refuse to obey a direct order that would violate a rule or regulation, whereas previous protections extended only to those refusing an order that would violate a law. Bill wrote about a confused employee who thinks she’s being ordered to violate a rule or regulation:

Well, what if it turns out she is wrong? What if her honest belief about what the order meant was simply mistaken? If she is fired for insubordination, if on appeal her argument that the order violated a rule is not affirmed, she has effectively bet her job that her interpretation was correct at the moment she chose to be insubordinate. Why in the world would we want to entice federal employees into this high-risk gamble with their livelihood when there are other ways to protect them from abuse?

It’s a clear no-win situation. It’s something you want to avoid, just like the anarchy that comes from a workforce that disregards supervisors’ orders. That said, if you have a supervisor who has no fear of ordering an employee to something illegal, unsafe, or immoral, then you’re going to be watching someone from your agency testify before Congress while millions watch. Gephart@FELTG.com

Too Many Goose Eggs at MSPB

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By Deborah Hopkins, March 5, 2019

I’m sure by now you have heard that for the first time in its history, we have zero Members at the Merit Systems Protection Board. Acting Chairman Mark Robbins’ term expired March 1, leaving the front office at 1615 M Street NW completely dark.

On his last day at MSPB, Robbins released MSPB’s Annual Report for FY 2018. So while we don’t have a Board (and who knows how long that will last since nobody with decision-making authority on Capitol Hill seems worried about it), we do have some new information to share.

Let’s take a look at some of the impressive numbers out by MSPB last year:

Are you seeing a trend here? That’s a whole lot of goose eggs. (And yes, the term “impressive numbers” above was meant to be sarcastic.) Without a quorum, a huge chunk of the Board’s work cannot get done. In a normal year, those subtotals are usually upwards of 1,000, including approximately 800 Petitions for Review.

I share these numbers not to slam Robbins or any of the dedicated employees at MSPB, because none of this is their fault. In fact, we know they have worked hard every day, despite the lack of quorum. The responsibility for this lack of performance falls directly on the Administration and the Congress, which for over two years have refused to put Board Members in place. This inaction has left the MSPB with over 2,000 cases, sitting in a hallway in cardboard boxes, waiting to be adjudicated. To add insult to injury, all of Robbins’ work on those 2,000 cases became obsolete last week and cannot be used by future Board members.

If I come across as upset, it’s because I am. If you’re tired of reading about this, then maybe you shouldn’t finish this article because I have more. There is NO REASON things at MSPB have to be this way. And yet it’s continued, for 786 days. I have contacted everyone I know – and don’t know – on the Hill and in the White House to try to get the message across that while maybe this doesn’t play on TV as well as national security issues, hot-button committee hearings, or North Korean summits, real people are hurting every day, more people get hurt every day, and the fix is SO EASY. Others have joined in this plea, even testifying before congressional committees and pleading with Congress and the White House to do something. And nothing has changed.

This is one of those rare areas where the inaction hurts both sides involved – the agency and the employee. There now are up to 2,000 people waiting for years to find out if they will get their jobs back. There are agencies on the hook for potential back pay in these cases. I’m not a math scholar but I know that three years (and counting) of back pay for a GS-14 in Washington, DC, plus attorney fees, can easily exceed half a million dollars. And that’s just one case out of 2,000.

But all is not lost. There is some light in all this darkness. As of right now the MSPB is still open and operating, aside from the front office. MSPB’s General Counsel, Tristan Leavitt, is now the Acting Chief Executive and Administrative Officer, so fortunately the career staff in the headquarters, regional offices, and field offices are still at work.

Let’s look at some more numbers from the report that aren’t 0s. In FY 2018, the Administrative Judges issued initial decisions (IDs) on 5,134 appeals. Here are a few significant numbers from within these IDs:

2,267: IDs on disciplinary actions

142:     IDs on performance-based actions

416:     IDs on probationary removals

517:     IDs on Individual Right of Action (IRA) appeals [usually whistleblower reprisal appeals]

325:     IDs on USERRA and VEOA appeals

1,058:  Cases settled before hearing

83.2:    Percentage of agency actions upheld

14:       Percentage of agency actions overturned or requiring corrective action

3,077:  Cases dismissed

The agency with the most cases adjudicated was the VA (1,080), and the agency with the fewest cases adjudicated (excluding those that have no appeals pending) was actually a 13-way tie at one appeal each. You can read the full report to see which agencies those were.

At FELTG, we’ll keep you posted on what’s next. And if you want to hear us rant about these injustices in person – while also teaching the law – join us at an upcoming MSPB Law Week in Washington, DC or Dallas, TX. Hopkins@FELTG.com

 

 

Why the Discipline Process Matters More Than Ever

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By Deborah Hopkins, February 19, 2019

If you’ve been in the federal employment law arena for more than five minutes, or if you’ve read this newsletter in the recent past, you know that we (the People) have been without a quorum at MSPB for more than two years now. In fact, next Friday marks the end of Mark Robbins’ tenure as the sole remaining Board member, at which time the MSPB will have ZERO members for the first time in its 40-year history.

Last week, the Senate Committee on Homeland Security and Governmental Affairs voted to advance two MSPB nominees (Dennis Dean Kirk and Julia Akins Clark) to the full Senate for a confirmation vote – but the vote won’t be held until a third nominee is named (the remaining nominee Andrew Maunz withdrew his name last week), and clears committee to join them for a Senate vote. In case you didn’t know this: It’s not a legal requirement to confirm all the members together. However, the Committee Chairman, Senator Ron Johnson (R-WI) indicated that would be the process used. (Read the full detail of the committee meeting here.)

So, what will happen next? It’s anybody’s guess. Will the MSPB have to shut down until they get some leadership — or will the General Counsel run the place in the interim? Arguments can be made for either option.

As of today, the Administrative Judges are still holding hearings and issuing decisions on agency removal actions, and your cases still need to be as tight as ever to ensure a favorable outcome. Because if anything is appealed from a judge’s decision, it goes into a stack of 2,000+ cases that are sitting in boxes in the hallways, waiting for Board members to read them and issue opinions. Wouldn’t you rather NOT have to appeal a judge’s decision? Me too.

So what’s the best way to have a judge agree with your choice of discipline? Follow the law. In order to discipline a federal employee for misconduct, there are five legally required elements:

  1. A reasonable rule exists
  2. The employee knew the rule
  3. A preponderance of the evidence (more likely than not) that the employee broke the rule
  4. Choose a defensible penalty
  5. Provide due process

If you miss even one element, you lose your entire case. Let’s look the elements in turn and see how easy they are to check off — and how easy they are to screw up, if you’re not paying attention.

1. A reasonable rule exists. You cannot discipline an employee for breaking a rule that does not exist. The very definition of misconduct is a violation of a rule. So, if you want to reprimand, suspend, or remove someone, you can only do it if they have indeed broken a rule. Also note: the rule must be related to the job; you cannot enforce rules that have nothing to do with the workplace. For example, you can set a rule that an employee to always fill up a GOV’s gas tank when it gets below ¼ tank, but you cannot require that rule for the employee when driving his personal vehicle.

Case example: Doe v. DoJ, 565 F.3d 1375 (Fed. Cir. 2009)

2. The employee knew the rule. An agency cannot enforce secret rules against employees – that would violate the fairness federal employees are guaranteed. If you have a rule that employees wear closed-toed shoes in the office but you’ve never bothered to tell them the rule, you cannot discipline them for wearing open-toed shoes. There are some “commonsense” rules where notice is a given (for example, you don’t need a rule that says employees are not permitted to have a campfire in the breakroom), but when in doubt, TELL the employee the rule. Don’t assume the employee knows it.

Case example for further reading: Tudor v. Treasury, 639 F.3d 1362 (Fed. Cir. 2011)

3. A preponderance of the evidence (more likely than not) that the employee broke the rule – unless you’re at the VA in which case you only have a substantial evidence requirement, that the employee might have broken the rule. Preponderant evidence is not a huge burden, but you do have to have some evidence. Whether you saw the misconduct happen, or witnesses saw it, or you have video evidence or a confession, you need something to show the employee broke the rule. This should not be difficult. The employee has a lunch break from 12-12:30 and you, the supervisor, see the employee come back to his desk with a Chipotle bag at 1:10 – that’s evidence. Don’t make this more difficult than it needs to be. But please have evidence.

Case example: Mott v. DVA, No. 2017-1222 (Fed. Cir. 2018)

4. Choose a defensible penalty. Unless you’re at the VA, you have to justify why you selected the penalty (suspension or removal) you did. This is done by looking at the Douglasfactors and explaining the effect of the misconduct. We consider things such as the harm caused or the potential for harm, the person’s job level and type, any notoriety or publicity, any past discipline the employee has received, what we’ve done with comparators who have engaged in the same type of misconduct, and a number of other factors. The penalty must be appropriate for the level or instance of misconduct the employee engaged in. You may not be able to justify a first-offense removal for a person who got to work five minutes late to a job where being on time doesn’t matter because there was no harm. However, if your employee is an ER surgeon and someone died in those five minutes, you have a completely different scenario and removal might very well be justified. Let the Douglas factors be your guide, and keep in mind, the MSPB is only going to mitigate (change to something less) your penalty if it exceeds the bounds of reasonableness.

Case examples for further reading: Jacoby v. USPS, 85 MSPR 554 (2000); Webster v. Army, 911 F.2d 679 (Fed. Cir. 1990); Mott, supra

5. Provide due process. Federal employees who have successfully completed their probationary periods are entitled to due process in disciplinary situations. Due process has three steps:

  1. Notice of the charged misconduct and the proposed penalty (given by a Proposing Official);
  2. An opportunity to respond to the charges, and to be represented; and
  3. An impartial decision based on the information given in the notice and the response (given by a Deciding Official).

If you miss a step, you lose your case EVEN IF you have 50 witnesses and video evidence of the employee stealing the laptop, punching a customer, sleeping on the job, whatever. A due process violation, sometimes referred to as “losing on a technicality,” is literally a loser every single time. While there are cases where agencies don’t give the employee notice of the charges, or don’t notify the employee of her right to respond, we see most cases lost under the third prong — where the deciding official relies on some bit of information that the employee is not privy to. This is why it is crucial to work with your Deciding Officials on their proper role and encourage them not to go looking for extra information about the employee.

Case example for further reading: Kelly v. Agriculture, 225 Fed. Appx. 880 (Fed. Cir. 2007).

I hope this helps. If you want more – and trust me, you definitely want more – then come to our MSPB Law Week in Washington, DC or Dallas, TX, so we can show you how to win your case in front of the judge, and quickly get back to the business of fulfilling your agency’s mission. Hopkins@FELTG.com

Two MSPB Nominees Voted Out of Committee, but Uncertainty Still Looms

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By Deborah Hopkins, February 13, 2019

Committee meeting room, pre-vote

Here’s a quick update from today’s business meeting for the Senate Committee on Homeland Security and Governmental Affairs, which held a scheduled vote on the nominees to the Merit Systems Protection Board (MSPB). I was there, and I am still saying “wow.”

Last night, the Senate was informed that Andrew Maunz, the nominee for Vice Chairman, had withdrawn his nomination for unspecified reasons. This morning, the committee, which is made up of 8 Republicans and 6 Democrats, considered the remaining nominees: Dennis Dean Kirk (R) for Chairman, and Julia Akins Clark (D) for Member. When Committee Chairman Ron Johnson (R – WI) opened the floor for discussion, the only person to speak was Sen. Rand Paul (R – KY).

And boy, did Sen. Paul have a lot to say. He voiced the opinion that the MSPB is failing as an agency, saying that it has become a job protector for federal employees instead of a protector of the merit system. Citing facts from a couple of unnamed cases, he claimed that the MSPB thinks child pornographers and VA leadership who allow veterans to die in the hallways belong as federal employees. He said this type of behavior from employees would never be tolerated in the private sector, and if the government can’t fire people for such egregious acts, then the MSPB should cease to exist and Congress should go back to the drawing board to create an oversight agency that actually works.

Here’s the problem: Sen. Paul (along with countless others) doesn’t understand the system. He didn’t give citations for the cases he mentioned, but I believe I know the cases to which he was referring. And in those cases, the MSPB didn’t put employees back to work because they necessarily wanted to; the MSPB was following the law. In the child pornography case, the agency failed to establish a nexus (a connection) between the employee’s off-duty conduct and his government job. The law requires a nexus to exist. (By the way, come to MSPB Law Week and we will show you how to find nexus in a case like that; the agency did not, but it was most likely doable.) The MSPB never said, “Child pornographers are good people and should be working for every federal agency.” The MSPB found that the agency failed to establish nexus, and nexus is required by law.

Regarding the VA cases Sen. Paul mentioned, I believe those cases dealt with senior leadership who were removed, and the Board members (who are no longer there) mitigated the penalties based on Board leadership’s at-the-time view on comparator employees, which has since been walked back in pieces.

Can someone please tell Sen. Paul – and the rest of America – that the system works IF the agency handles the case correctly? Citing the few cases where terrible employees got their jobs back because of procedural defects, while ignoring the 7,000+ removals that stuck in the last FY, does a disservice to the country. I had a hard time sitting still while he was speaking. I wanted to jump up and tell him that he had it all wrong, but I didn’t think it would be a wise move to get kicked out of a Senate Committee meeting.

I digress (for now).

On to the nominees. Both Kirk and Clark were voted out of committee. Everyone on the committee, Rebublicans and Democrats, voted “yes” to send them to the full Senate for a vote, except for Senator Paul.

But – don’t get your hopes up on a quorum just yet. After the “ayes” had it, Chairman Johnson said it’s typical that all nominees get voted on together in the full Senate, so now Kirk and Clark will be waiting for a third nominee to be named and voted out of committee before they can be confirmed.

Hold up just a minute, Mr. Chairman. The MSPB members intentionally have staggered terms and to my knowledge, in the 40-plus years since the Civil Service Reform Act created the current MSPB, we have NEVER had all three nominees confirmed together (except, maybe the very first time members were appointed). Occasionally two go together, yes – but not three.

Whether this is intentional or a misunderstanding about how this part of the system works, I don’t know. But are you ready for the real heartbreak?

If Kirk and Clark were to get confirmed by the full Senate before a third nominee is named, they could vote on dozens or (if they put in some really long hours) even hundreds of the 2,000 Petitions for Review (PFRs) Acting Chairman Mark Robbins has voted on, before his term expires on February 28.

But this is not going to happen. So, all of Mr. Robbins’ work on the PFRs since January 8, 2017, will go to waste, as the Committee chose NOT to vote on an amendment that would have allowed for the holdover term for a sitting Board Member to be extended beyond the one year currently permitted under 5 USC § 1202.

To recap: Robbins’ term expires February 28. Nominees Kirk and Clark won’t be confirmed until the full Senate votes. And the full senate won’t vote until a third nominee is named and the committee votes that person to the Senate floor as well. And we don’t have a third nominee yet. For what it’s worth, Chairman Johnson said he is working with the White House to come up with a nominee soon.

Also heard on the Hill this morning: As long as there’s not a shutdown this weekend, the Senate will be in recess next week. So, push the timeline for the vote back until the final week of February, at the very soonest, only if there’s a third person nominated and voted out of committee before then. If all that doesn’t happen before March 1, the Board may have to shut down entirely until the Senate votes on the nominees.

While this may be considered slight progress, it’s not the kind of progress the civil service needs. We’ll keep you posted on what happens next. Hopkins@FELTG.com

Can You Fire a Federal Employee Who Accidentally Eats a Pot Brownie?

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By Deborah Hopkins, February 13, 2019

We know intentional marijuana use, even for medicinal purposes, is a no-no for federal employees (see my recent article here). But what happens to a federal employee who is fired for marijuana use after failing a drug test, when he challenges the removal by stating the intake of marijuana was accidental?

The Federal Circuit recently looked at that very issue in Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018). Hansen, an IT Specialist at the United States Customs and Border Protection, was subjected to a random drug test, and the results showed marijuana in his system. The agency proposed his removal for “positive test for illegal drug use— marijuana.” Regarding nexus, a portion of the proposal read “[t]he use of an illegal drug, such as marijuana, stands in direct conflict with the principles of law enforcement, the mission of the Agency, and the public’s trust.”

In his response to the proposal, Hansen said he had inadvertently consumed drug-laced brownies at a barbeque he had attended, which was hosted by someone he did not know. Hansen revealed that he wasn’t initially aware the brownies had marijuana in them, and though he felt no immediate effects from the brownies, later that evening he felt tired and suffered an upset stomach. He attributed the upset stomach to a bratwurst he had consumed at the party, and as a result he called in sick the day after the barbecue.

The Deciding Official gave Hansen’s response “significant consideration” but ultimately determined it was not convincing. In her explanation, the DO said the employee did not present “any evidence from either the person who purportedly brought the brownies, or from the host” or even “a statement from anyone else who either knew that the brownies contained marijuana or who did not know, but felt the effect of the drug.” The DO subsequently removed Hansen.

Hansen appealed his removal to the MSPB, where it was upheld. The Board said that inadvertent marijuana ingestion would be relevant to its decision, if shown, but it determined that Hansen, not the government, bore the “burden of showing such inadvertent ingestion” and he did not show any evidence to convince the Board. The decision from the Board also said Hansen relied on “thirdhand hearsay” to support his story about marijuana in the brownies, and had not supplied “statements from the hosts, other attendees who observed the presence of the brownies, or the individuals who brought the brownies,” or even any evidence confirming that he ate brownies at all.

The Board further noted that though Mr. Hansen claimed fatigue and upset stomach after consuming the brownies, he attributed those ailments to marijuana consumption only after the deciding official expressed skepticism regarding his lack of symptoms.

Hansen also argued that the removal should be reversed because the agency could not show his “intent” to use marijuana, but the Federal Circuit correctly said the charge as written did not have an intent element. The agency was not required to show intent; it was only required to show by preponderant evidence that the employee tested positive for marijuana. This highlights a fundamental principle we cover in MSPB Law Week and Developing and Defending Discipline: Words matter when drafting a disciplinary charge. Had the agency charged “intentional use of marijuana,” then Hansen might very well be back at work today.

Hansen also argued that the agency violated his Fourth Amendment right against unlawful search and seizure by conducting the drug test because the government failed to show that he occupied a testing designated position, This argument failed because the agency’s “Drug-Free Federal Workplace Program” handbook listed employees with “access to the Customs Law Enforcement Automated Systems” as testing designated, and IT Specialists fall under that designation. The Federal Circuit upheld the removal.

If you’re interested, you can read the full decision here. In the meantime, stay away from the brownies. Hopkins@FELTG.com