Irony and the EEOC: You Have to Read It to Believe It

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By Deborah Hopkins, January 23, 2019

The Equal Employment Opportunity Commission is now without a quorum. That’s right. As if no quorum at MSPB for more than two years wasn’t enough, and a multi-week government shutdown didn’t do it for you, EEOC is now helmed by only two out of a possible five Commissioners. Who’s left over there? Victoria Lipnic, a Republican, is the acting chair. Charlotte Burrows, a Democrat, is the only other remaining Commissioner.

But Deb, I thought the President reappointed Commissioner Chai Feldblum a year ago, to serve a third term?

Yes, In fact, he did. However, a few days ago, Commissioner Feldblum’s tenure at the EEOC ended. The reason? Senator Mike Lee (R-UT), has stated that he does not agree with Commissioner Feldblum’s positions on marriage and LGBTQ rights.

Nominations to EEOC are generally passed as a group by unanimous bipartisan consent, but Senator Lee made clear he would not vote yes to the confirmation.

The only other way Commissioner Feldblum could have been confirmed, then, would have been for Senate Majority leader Mitch McConnell (R-KY), to call for a full Senate vote – something he refused to do. The result? The nomination died.

Let me be clear: Senator Lee did not ever directly mention Commissioner Feldblum’s sexual orientation in his comments but rather focused his criticism on her views about same-sex marriage. But it is widely known that Commissioner Feldblum was the first open lesbian on the Commission, and spent a large part of her tenure advocating for workplace protections for LGBTQ individuals inside and outside the federal government.

While she served under the Obama administration, Commissioner Feldblum was involved in two groundbreaking cases: Macy v. Attorney General, EEOC Appeal No. 0120120821 (2012), which stated that a federal employee’s transgender status is protected under Title VII’s prohibition against sex discrimination; and Baldwin v. FAA, EEOC Appeal No. 0120133080 (2015), which stated that a federal employee’s sexual orientation is protected under Title VII. A number of federal district and appeals courts have ruled in the same manner for employees of private companies, though there is currently a circuit split on the issue.

Ironic, isn’t it, that more 2 million federal employees and countless private employees now have protections under the law for LGBTQ status – due in large part to Commissioner Feldblum’s tireless work – and now she has been essentially fired for the very same status she fought so hard to protect. And as a political appointee, she has no rights to appeal.

Commissioner Feldblum was also an advocate for disability rights, and co-chaired a bipartisan task force on sexual harassment at the EEOC. She also spoke at numerous EXCEL conferences and even worked with FELTG on a webinar discussing transgender discrimination and harassment. I can say without a doubt in my mind, that her voice on the Commission will be greatly missed.

So what now? Not only is Commissioner Feldblum out of a job (though not for long, I’d guess), EEOC now lacks a quorum. While AJ decisions are still being issued and federal sector EEO appeals are still able to be processed (after the shutdown, that is), some of the Commission’s work will be halted until there are at least three Commissioners seated. The EEOC may not be able to bring certain cases that would be costly, would have a broad reach or affect large numbers of people, or would consider a new question of the law or its interpretation. Other work may be delegated to the regional offices.

Though the impact of a lack of quorum is less significant on the day-to-day operations of federal workers, it’s still a source of frustration and not the way the agency was ever intended to operate.

What is happening in the world of federal employment law – and will the madness ever end? Hopkins@FELTG.com

(The EEO) Process is My Valentine

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By Meghan Droste, January 23, 2019

Happy new year, FELTG readers!  If any of you are looking for new things to pick up in the new year, I strongly recommend podcasts. If you  already listen to some, pick out a new show. I am lucky enough to be able to walk to work, and I listen to a variety of podcasts during my commute. By the time I arrive at the office, I feel very accomplished, I’ve gotten exercise, and I’ve learned something from one of my (somewhat nerdy) podcasts. The title of this article comes from one of the more recent additions to my rotation, a podcast hosted by three women from the national security field who unpack national security and defense issues with a side of pop culture. They regularly say that process is their valentine — meaning that following the established process is an important part of the development and implementation of any new policy or strategy. If we ignore the process, bad things can happen.

The Commission’s decision in Annalee D. v. General Services Administration, EEOC App. No. 0120170991 (Oct. 10, 2018) is a good reminder of why the EEO process should be every agency’s valentine. As anyone who has read a decision in which the EEOC granted sanctions against an agency can tell you, one of the most important factors in the Commission’s view is the effect of the sanctionable conduct on the integrity of the EEO process. Part of the integrity of the process is that the investigation of a formal complaint must be impartial and should not be an adversarial process. As a result, there must be a firewall between the EEO process and any subsequent defense of the agency if the complaint moves into litigation. Unfortunately, the agency in the Annalee D. case did not respect that part of the process.

As the Commission describes in its decision, an attorney from the agency’s Office of General Counsel was present during the EEO investigator’s interview of the complainant’s supervisor.  This attorney stated during the interview that she/he represented the supervisor (rather than the agency).  The Commission also noted that attorneys for the agency “clearly assisted [a]gency witnesses with their affidavit responses during the investigation before they submitted responses to the investigator.”  The Commission found the agency’s overall intrusion into the EEO process, which was apparently standard practice, was “extraordinarily bold and egregious.”

The Commission ordered the agency to provide at least four hours of training to EEO personnel and the Office of General Counsel to remind them how to properly process complaints and the proper role of the agency’s attorneys.  In its decision, the Commission noted that the intrusion did not impact the outcome of the matter so it is reasonable to assume that the sanctions could have been more severe if it had.  As an early valentine to your agency, you should consider reminding everyone about the importance of the integrity EEO process so you do not find yourself receiving sanctions instead of chocolates or flowers next month. Droste@FELTG.com

Tips From the Other Side: January 2019

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By Meghan Droste, January 23, 2019

The first Tips from the Other Side for 2019 comes to you from one of my cases.  One of my colleagues and I filed a formal complaint on behalf of a client last spring.  We didn’t hear a peep in response and after 180 days passed, we filed a request for hearing along with a motion for sanctions.  In the motion, we requested the Commission enter default judgment in favor of our client because the agency clearly failed to meet its deadline for investigating her complaint and issuing a report of investigation.  After we filed the request for hearing and motion, the agency finally acknowledged receipt of the formal complaint and indicated that it would begin processing it.

I have seen this happen several times before — after a complainant requests a hearing, the agency, I assume in an attempt to mitigate its earlier inaction, jumps to investigate the claims.  Unfortunately for the agency, it no longer has jurisdiction over the complaint once the complainant has requested a hearing. See Jones-Sims v. U.S. Postal Serv., EEOC App. No. 01A50251 (March 15, 2006) (“Once a hearing request was made, the AJ had sole jurisdiction over the matter.”).

A complainant has no obligation to participate in the investigation at this point.  See Koch v. Sec. & Exchange Comm’n, EEOC App. No. 01962676 (March 6, 1997) (“An agency may not require a complainant to continue to participate in the agency’s internal investigation of an EEO complaint after the expiration of 180 days from the filing of a complaint.”). If the complainant does not provide information the investigation may be of little value, as the other witnesses may not have much to respond to other than the basic outline of the claims in the formal complaint.

I understand the impulse to try to fix the situation by putting together something, but agencies should also keep in mind that once they have missed that 180-day deadline, they may face default judgment regardless of whether they have produced an ROI.  If you find yourself in this situation, you should keep in mind that you should not dismiss the complaint if the complainant refuses to participate and you should start thinking about what your response will be if asked why the Commission should not issue sanctions for the untimely investigation. Droste@FELTG.com

 

Robbins in Two Roles is Fascinating, but Is It a Potential Conflict?

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By William Wiley, January 23, 2019

While everybody was focused on the shutdown and the holidays, there was a fascinating, and frankly head-scratching, development involving MSPB Acting Chairman Mark Robbins. On December 21, 2018, OPM’s Acting Director Margaret Weichert announced that Mark Robbins will serve as the new General Counsel for OPM. This in itself was not a shock. Robbins previously served as OPM General Counsel from 2001-2006, and it was expected that he’d return there once his MSPB tenure ended in March. However, Weichert’s announcement coincided with President Trump’s memorandum directing Robbins to serve concurrently as OPM General Counsel and Acting Chairman of the MSPB.

I cannot understand the rationale. Maybe there’s some need within OPM for there to be a Presidentially appointed General Counsel and Robbins was moved in earlier than he would be otherwise. I see no benefit to doing this from what I know historically. Is there a conflict created by holding these two positions?

As we all know, the MSPB has been without a quorum for over two years. With Robbins as the only current member, the Board has been unable to issue any decisions. However, recent news articles have reported that Robbins has been voting on cases. That is, he’s expressing his opinion as to whether the judge’s decision should be affirmed or modified. As a practical matter, that means that on top of each file for each appeal now pending at MSPB, there is at least a signature from Robbins agreeing with the judge or a legal note arguing why the judge’s decision should be modified. He has expressed his opinion as to the proper outcome. If another member were appointed while Robbins was still in office, the new member could vote in agreement with Robbins after considering Robbin’s action on the case, or express disagreement.

It now appears that there will not be a new member to concur or dissent from Robbin’s opinions before his term expires. Therefore, his work has no legal value. However, I seem to remember Robbins expressing in an interview that he hoped his opinions would be of value to the new members when they arrive. If that is correct, then it WOULD be a conflict if he continues to express an opinion in pending appeals. Here’s why:

  1. When MSPB issues a decision, the appellant who doesn’t agree with it can appeal to federal court.
  2. However, if the agency doesn’t agree with the decision, it cannot go directly to court. Instead, it has to go through the GC’s office at OPM. Only if that office concludes that MSPB’s decision has significant government-wide impact can the matter then be referred to the Department of Justice, who files a petition challenging the Board’s decision in federal court.
  3. If Robbins were to a) express an opinion on cases now pending at MSPB, and b) the new members were to be swayed by that opinion after he’s gone, then c) it could be argued that he would be in a position at OPM to decide whether the case could be appealed to federal court.

Here’s a hypothetical: An agency fires an employee for off-duty sexual misconduct. It’s a close call, but the judge concludes that there is a nexus between the off-duty conduct and the government job, maybe because the misconduct occurred in government-supplied housing. The judge upholds the agency’s removal. Robbins reviews the employee’s PFR that challenges the judge’s nexus finding, and concludes the judge was wrong. Robbins drafts a legal note arguing compellingly that this particular type of off-duty conduct does not support a nexus finding. He argues that the Board should set aside the removal.

New Board members read Robbins’s argument, are swayed by his opinion, and issue a decision finding no nexus. The agency wants to appeal the issue to federal court. They now have to go through OPM’s GC for approval. Robbins would be in a position to block the agency’s appeal if he were to conclude that the matter does not have government-wide significance.

Of course, this will not be a concern if Robbins recuses from making these sorts of decisions on behalf of OPM. Or, if the new members decline to consider any of Robbins’ leftover legal notes.

And, my comment here should in no way be taken as the casting of an aspersion toward Chairman Robbins. It is not his character that is an issue, but rather the potential appearance of a conflict created by the duality of the appointment. Sometimes, even good people can be put in bad situations. Wiley@FELTG.com

 

The Oscars are Here, So Let’s Talk About Douglas Factor 10

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By Dan Gephart, January 23, 2019

It’s Academy Award season. The glitz, the glamour. The flubs, the snubs. The perpetual parade of praise and the incessant asking of the one question that truly grates on me: Who are you wearing? And then it’s all followed the day after the show by column after column criticizing the show’s host. That last part may change this year only because, as of now, there is no host.

Kevin Hart was supposed to host. The Philadelphia-born comedian came under scrutiny when homophobic jokes made several years ago resurfaced. So he backed out of the hosting gig. Hart isn’t the only public figure to suddenly face fire for old tweets, comments, or jokes. The Atlanta Braves’ 25-year-old pitcher Sean Newcomb was basking in the glory of a near no-hitter last season when someone started sharing the racist, homophobic, and sexist comments he tweeted as a teenager. Kyler Murray spent the hours after winning this year’s Heisman Trophy, apologizing for anti-gay slurs he tweeted at friends when he was 15.  There are many more public figures who have had to walk back prior tweets, statements, or jokes in recent months.

Hart, Newcomb, and Murray showed the expected disgust of their previous selves, saying they’ve “grown” and “changed” and that the old comments “didn’t reflect the kind of person” they are now.

This got me to thinking: How do we know that they’ve changed, and they are not just saying it because they’ve been exposed? And I wondered how this would be handled if we were talking about workplace misconduct. This, of course, got me to thinking about the Douglas Factors, specifically the tenth one — potential for rehabilitation.

Isn’t rehabilitation potential what Hart, Newcomb, and Murray are laying claim to? Look, we know we’ve said horrible things in the past, but we’re different now, and it won’t happen again. Immediate apologies and sincere remorse are two of the strongest mitigating factors for rehabilitation potential.

In Wentz v. USPS, 91 MSPR 176, the MSPB named “taking prompt responsibility for the actions” and “giving assurances that the misconduct would not occur in the future” as two indicators of positive rehabilitation. The others include:

  • Having a discipline-free service of more than 10 years
  • Having a good work ethic
  • Immediately reporting the misconduct
    • For example, reporting an accident caused by negligence
  • Seeking medical assistance for medical-related misconduct

On the other hand, the MSPB has found several times that an employee’s defensiveness when confronted with a charge of misconduct reflects a poor rehabilitation potential. But even defensiveness can be overcome when the employee acknowledges wrongdoing, expresses remorse and assures that the conduct won’t be repeated. Von Muller v. DoE, 2006 MSPB; Chavez v. SBA, 2014 MSPB 37.

If only all acts of misconduct were so clear-cut. Determining a person’s authenticity, especially when it comes to remorse, is usually not that easy. It can and has been faked.

Really listen closely to the sincerity of an apology. Does the employee take blame for every piece of his or her act? Is there some shifting of blame, or any hedging taking place?

An Academy Awards gig, product endorsements, or NFL draft status might not be on the line when you’re making discipline decisions. But an employee’s job is. And so is the efficiency of the workplace. Only by thoroughly analyzing all of the Douglas Factors, including the potential for rehabilitation, can you make the right decision.

And if you get it wrong, guess what? There’s a good chance you’ll be doing it all again in the near future. Gephart@FELTG.com

The Graying of the Federal Workforce

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By Jennifer Johnson and George Woods, January 23, 2019

Like many things in life over which we have little control, aging is an inevitable consequence of living. By the year 2030, one in five Americans will be older than age 65, according to the U.S. Census Bureau. Along with the graying of America, we have an aging workforce because people are working longer than ever before. Reasons for this are quite simple: People are working longer because they have to, because they want to, and because they can. Unlike any other time in America’s history, there are multiple generations working side by side in a single work environment. Just what does this mean for federal agencies?

FELTG will be exploring this subject in a March 26 webinar Aging and Cognition: The Graying of the Civil Service, in which we’ll discuss the neurobiology of aging by looking at the structural, chemical and functional changes that take place in the brain as we grow older. We will look at the characteristics of aging and cognitive function, and identify both risk factors and protective factors that influence cognitive aging. We will also look at how those biological changes translate to everyday life, especially in the workplace.

Attention is the human ability to focus on information There are multiple types of attention. Like attention, memory is similarly nuanced. Memory has been understood historically by dividing into two types — “short-term” and “long-term.” However, memory is much more complicated and includes categories such as working memory, semantic long-term memory, procedural memory, and episodic memory. Each type of memory plays an important part in everyday life and relates directly to workplace issues.

Age still holds a tremendous stigma in the workplace. Stereotypes about aging and age-related decline in the workplace are more prevalent and acceptable than similar stereotypes about race and gender. Understanding whether a person who is experiencing age-related decline in work performance is both sensitive and uncomfortable. Often, that individual is not aware of the deficits, or may be unwilling or afraid to disclose impairment to a supervisor or colleague. Managers may not understand the difference between pathological aging and nonpathological aging, and falsely attribute certain behaviors to age rather than other factors. The legal costs for such mistakes can be very high. We should be able to recognize barriers to confronting the issue of aging in the workplace and look for solutions to maximize the skills and talents of older workers.

While we cannot stop the relentless march of time, we can and we should embrace the benefits that come with an aging workforce. By better understanding how aging affects how we live and work, we can better suit federal workers to the tasks of a job, capitalize on years of experience and expertise, and learn to create a thriving and diverse workforce that may have five generations working together in a single agency.

Jennifer Johnson is an attorney and George Woods, MD, is a geriatric neuropsychiatrist.

What Can a Supreme Court Justice Teach Us About Change?

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By Deborah Hopkins, January 2, 2019

Yesterday, as my last official event of the holiday season, I went to see a movie with a friend. Those of you who know me are probably not surprised to learn that my friend and I opted to see On the Basis of Sex, a film focused on Ruth Bader Ginsburg’s fight for gender equality as an attorney in the 1970s, long before she was a Supreme Court Justice. If you don’t recall the history or you haven’t seen the film, then you might be surprised to learn that the key legal case in this fight was a Tenth Circuit appeal over a statute that provided tax deductions for caregivers. Justice Ginsburg’s client was a male caregiver who was exempted from the tax deduction, while similarly situated women who were caregivers were allowed to claim the deduction. Justice Ginsburg viewed this issue as a violation of the 14th Amendment’s Equal Protection Clause, found in Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

The apex of the movie focuses on her oral argument in front of the Tenth Circuit judges. I won’t spoil the film if you don’t know the real-life ending, but I can tell you the primary argument discussed change, and how the interpretation or reach of the law may need to change as society changes; after all, society doesn’t wait for the law to catch up to it before it charges ahead.

During her argument on the topic of gender protection, a judge challenges her: “The word ‘woman’ does not appear even once in the U.S. Constitution.” Justice Ginsburg’s reply: “Nor does the word ‘freedom,’ your honor.”

Now before you start kicking and screaming and writing emails telling me that Hollywood ruins movies by riddling them with inaccuracies, that the Bill of Rights actually does contain the word “freedom” and that the Bill of Rights is a part of the Constitution, just take a deep breath, count to three, and read on. I know the Bill of Rights uses that word, and I know that the Bill of Rights is part of the Constitution. I think the point being made in the argument is this: In the original text of the Constitution, the word “freedom” was never used, and as America grew and changed so did the reach of the Constitution, the highest law in the land. This growth included the Bill of Rights, which was added to the Constitution in 1791, four years after the original document was ratified.

The truth is, America changes every day. Women in America could not vote until 1920, when the 19th Amendment was ratified. Women in America were not given the legal right to serve on a jury until, in some states such as Mississippi, the late 1960s. (Interesting note: Mississippi was the first state to allow women to independently own property, in 1839. Go figure.) In some states, women could legally be denied the right to practice law until 1971. Women could not apply for bank accounts or credit cards unless a husband or male relative approved, until the passage of the Equal Credit Opportunity Act in 1974. And on and on it goes.

I have done all the things listed above, but had I been born century earlier I would not have been able to do any of them because the law forbade it.

Whether by Constitutional amendment, the passing of legislation, or the interpretation of the courts and administrative bodies, the law changes almost every day. While the movie may not be entirely historically accurate (after all, that’s Hollywood), it does highlight this reality. And though the focus of this film was the fight for gender equality, thousands of movies could be made, and articles written, about other struggles Americans have faced, and are still facing today, on the bases of categories that were not legally recognized until the very recent past: race, color, religion, disability, national origin, age, and genetic information, just to name a few. The fight continues.

And at FELTG in 2019, we promise to continue to bring you the most current information about the law as it pertains to you, and as it changes. It’s what we’re here for – after all, it’s in our mission statement.

Here’s to hoping 2019 is the best year yet, despite the rocky start, with whatever changes may come.  Hopkins@FELTG.com

How to Save the Merit Systems? Whitaker-ize!

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By William Wiley, December 18, 2018

Oh Lordy, we’re about to lose the civil service. Way back in 1883, Congress created a federal civil service based on merit instead of patronage. The protector of that merit-based civil service has evolved over time and today is recognized to be the US Merit Systems Protection Board. The Board itself is composed of three Presidentially appointed, Senate-confirmed individuals who review, among things, the firings of most all federal employees. That review is impartial and designed to ensure that removals are based on merit, not some illegal, biased motivation. Since 1883, the government has had the back of its employees, promising that if you are a civil servant and you do your job, you will not be fired for arbitrary reasons.

That guarantee is now hanging by a thread.

We have had two vacancies and only one remaining Board member since January 2017. That means that the Board has not been able to issue any decisions since then for lack of a quorum. MSPB now has a backlog of 1500 appeals awaiting a decision when its working backlog should be about five. Each removal appeal involves an unfortunate human being whose life is dependent on the outcome of the appeal. Each of those appeals also involves the potential for the government to have to pay out back pay, attorney fees, and compensatory damages to successful appellants. That potential indebtedness increases daily for each work day that an appeal is not resolved.

As we’ve written about recently here at FELTG, on November 28, by the vote of a single Senator, the panel of nominees submitted by the White House to become the three new members of MSPB was rejected by the Senate. The result of that vote is that the backlog of appeals at the Board will continue to grow until the Board again has a quorum.

Separately, the term of the current Acting Chairman, the sole remaining Board member, expires on March 1. As of March 2, there will be no Board members at all. There is defensible legal argument circulating within the administration (we are told) that without any Board members, by law MSPB cannot exist as an agency. If that is the case, on March 2, MSPB would have to begin to furlough (or RIF?) all of its 240 employees: judges, psychologists, and attorneys. It is conceivable that after 135 years of merit systems protection, the federal civil service will have no protector at all.

Fortunately, here at FELTG, we’ve figured out a way to fix all of this. We call it Whitaker-ize.

As many of you know, on November 7, President Trump appointed James Whitaker to be the Acting United States Attorney General. That position, as are the Board member positions, is normally filled by an individual nominated by the President and confirmed by the Senate. However, the President acted to appoint Mr. Whitaker without Senate confirmation of his nomination. He did this by invoking the provisions of a somewhat recent law, the Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345 et seq. That law establishes the procedure for a filling a vacancy in an appointed officer of an executive agency during the time before a permanent replacement is appointed. It bypasses the requirement for Senate confirmation and can cause a vacancy to be filled immediately based solely on the action of the President.

The Act specifies three classes of people who may serve as acting officers:

  1. By default, “the first assistant to the office” becomes the acting officer.
  2. The President may direct a person currently serving in a different Senate-confirmed position to serve as acting officer.
  3. The President can select a senior “officer or employee” of the same executive agency who is equivalent to a GS-15 or above on the federal pay scale, if that employee served in that agency for at least 90 days during the year preceding the vacancy.

Well, if it’s good enough to fill the vacancy of US Attorney General, why would it not be good enough to fill one of the vacant Board member positions? Mr. President, why not Whitaker-ize us a temporary Board member?

Option 1, above, is not relevant at MSPB because no Board member has a “first assistant.” One could argue that the Chief Counsel to a member (the position I held previously) is effectively a “first assistant.” However, there’s no need to make that somewhat tenuous argument because options 2 and 3 are absolutely begging to be implemented:

  • Reassign the current occupant of a different Senate-confirmed position. The Federal Labor Relations Authority, a sister-agency to MSPB, has three Senate-confirmed appointees sitting on it. Two of them always vote together and agree on case decisions while the third member often dissents. The cases that come before FLRA are based on the same law that MSPB interprets, the Civil Service Reform Act of 1978. The Authority members are highly experienced and have deep knowledge of civil service law and how to vote on employment disputes. With the stroke of a pen, the President could reassign the third outlying Authority member to be a temporary Board member, thereby allowing cases on which the current Acting Chairman has already acted to be voted on and issued immediately. That new temporary member would be able to function until March 1 when the current Acting Chairman’s term expires. The backlog could be reduced significantly in that period of time and a possible March 2 shutdown of the agency would be avoided.
  • Appoint a senior “officer or employee” of MSPB who is equivalent to a GS-15 or above. The Board’s staff literally bristles with highly qualified individuals who satisfy this criterion. Every regional office has at least a couple of GS-15 level judges plus an SES chief judge who could vote maybe a million cases a day if given the opportunity. Board headquarters is replete with experienced, talented attorney team leaders and office heads who are GS-15 and above and who already know the code to the rest room door at Board headquarters.

Desperate times call for desperate measures. Our country needs a new Board member NOW (not two new Board members as that will just slow things down). We do not have time for the luxury of vetting and voting. Our career civil service, the very backbone of our government, is sinking. Politics, smolitics. If you know people at the White House, please suggest to them that they recommend one of the above options to the President. Then, with a tweet, he can resolve this impending doom. Act quickly, Mr. President, and the quorum-ed-up Board can get in 75 days of voting before we are again down to one remaining (temporary) member. Hopefully, by then you’ll have a new slate of nominees and the civil service will be saved.

Until … the next time. Wiley@FELTG.com

Who Says AWOL is NBD?

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By Deborah Hopkins, December 18, 2018

A couple of weeks ago, I was teaching a class to supervisors. The topic was discipline. We were discussing AWOL and how serious an act of misconduct it is to just not show up for work, and that, in some instances, a single incident of AWOL could warrant removal.

As is often the case, someone from HR was in the classroom. This person spoke up and said that there was an agency policy that said supervisors could not remove an employee for AWOL unless the AWOL exceeded 10 business days in a year.

Three thoughts went through my mind within a half-second:

  1. Are you kidding me? That policy, if there is one, tells everyone in the agency that AWOL is NBD (no big deal).
  2. Is there really a written policy, or is that one of the “This is the way we do it here” things that is actually NOT a policy? Show me the policy.
  3. So, no matter what happened as a result of the employee being AWOL, that employee gets 80 hours of freebies every year to just not show up? How would that work for an employee who is a surgeon with a patient on the operating table, or an air traffic controller, or a border patrol agent, or a security guard? I don’t even want to think about the harm that would occur in those cases.

AWOL is a pay status (or really, a non-pay status if you want to get technical), but it is also a labeled disciplinary charge. The elements of AWOL are:

  1. Employee was absent without authorization, and
  2. If leave was requested, the denial was reasonable.

Savage v. Army, 122 MSPR 612 (2015)

AWOL is Serious

More than once in my life, I’ve been stuck at work for hours after my shift when the person who was supposed to relieve me didn’t bother to show up. It’s never fun to be in that position. And despite what at least some folks think, AWOL is serious business on top of the inconvenience is causes. There is an inherent relationship between continuous unexcused absences and the efficiency of the service, since an essential element of employment is to be on the job when one is expected to be there. To permit employees to remain away from work without leave would seriously impede the function of an agency, impose additional burdens on other employees, and if tolerated, destroy the morale of those who meet their obligations. Ajanaku v. DoD, 44 MSPR 350, 355 (1990).

Indeed, MSPB has found, for the last 40 years, that even a few hours of AWOL warrants discipline, up to and including removal. In an early AWOL case following the implementation of the Civil Service Reform Act, the MSPB found that four unexcused absences totaling 17 hours in a one-week period warranted termination. Banks v. DLA, 29 MSPR 436 (1985).

AWOL for Employees Actually at Work

Did you know an employee can be AWOL even if she is at work? There are a number of situations that culminate in this kind of scenario. An agency may charge an employee AWOL for conducting personal business while on duty. Mitchell v. DoD, 22 MSPR 271 (1984). Discipline for sleeping on the job or wasting time is imposed in the same manner as discipline for AWOL. Golden v. USPS, 60 MSPR 268, 273 (1994). AWOL is the proper charge when an employee is ordered to another worksite (e.g. training), but instead reports to the regular worksite, or the employee remains on agency premises (e.g. lunch room), but not at the specified work location. Moreover, if an employee is insubordinate and is told to leave the work site until he agrees to follow directives, he is not on approved leave; he is AWOL. Lewis v. Bureau of Engraving and Printing, 29 MSPR 447 (1985).

Leave Restriction and AWOL

Though not a form of discipline, an employee removed for AWOL who has received a Leave Restriction Letter can be disciplined more severely than an AWOL employee who has not been given a leave restriction letter. This is probably most relevant in the “comparator employee” Douglas factor analysis. McNab v. Army, 2014 MSPB 79.

Disciplining for AWOL

You’ll need to do a Douglas factors analysis to determine what the appropriate penalty is for an employee who is AWOL. AWOL charges usually result in progressive discipline, particularly when the amount of AWOL is measured in hours rather than days and the harm is not great. Here’s the FELTG approach.

1st offense AWOL: Reprimand

2nd offense AWOL: Reprimand in Lieu of Suspension

  • Warn that a future act of misconduct will result in removal. This makes far more logical sense than suspending an employee (sending them home) when they didn’t bother to come to work.

3rd offense AWOL: Propose Removal

  • In Douglas analysis, Factor 1, emphasize harm:
    • Coworkers having to do the employee’s work
    • Services not being provided
    • Increased expenses
    • Anything else relevant

And there you have it. Remember, if the AWOL was significant in time or there was great harm or potential for harm in the absence, you can jump right to the removal. Good luck out there. Hopkins@FELTG.com

Restock Your Manager Toolbox in 2019

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By Dan Gephart, December 18, 2018

When my son decided to move from South Florida (a place he’d lived his whole life) to the Northeast last winter, the wife and I bought him everything he would need for the ice, snow, and bitter temperatures that he was sure to face. That included two essential tools that he had never touched in his life — an ice scraper and a snow shovel.

A year later, it was the wife and I, and dog, who made our way back to the North. And it wasn’t long, thanks to the rare pre-Thanksgiving first snow, that we had our own taste of wintry weather. I was thrilled to witness the falling white fluff slowly accumulate on our South Jersey sidewalk. Why not? It was beautiful. And I was inside, warmed by the cup of hot coffee in my hand. But as the snow started to pile up, I came to a sudden and terrifying realization: I never bought a snow shovel for myself.

There was no way I was going to send my son into a situation without the proper tools. Yet, I failed to stock my own toolbox.

When we think of training, we tend to think of our staff, our charges, our teammates. When is the last time you thought about training for yourself? When’s the last time you filled your toolbox with the new strategies and knowledge that could make a difference at your agency? You may be a supervisor. You may be a manager. But are you a leader?

We have all had the unpleasant experience of working for a manager who was not fit to lead. If you haven’t, consider yourself blessed. “Unfit managers” climb the ladder due to skills that have nothing to do with leadership. Their poor leadership takes its toll on the workplace. I need not remind you that the majority of non-supervisory federal employees feel that their managers fail to deal with poor performers and fail to recognize positive performance in a meaningful way. That’s what the Federal Employee Viewpoint Survey tells us every year.

A leader will improve employee engagement, boost morale, and help an agency meet its mission. A leader will find a way to keep his or her best employees. And a leader will act swiftly to rid its agency of poor-performing and misbehaving workers.

My soon-to-be-retired friend Bill Wiley often tells federal managers: You are doing important work. I agree. And there’s absolutely no reason to not show up at your job with every single possible tool at your disposal.

Am I a little biased here? Absolutely. After all, my job title is Training Director. But I will also tell you with no hesitation and with utmost confidence that you’re not going to find better federal employment law training than what you will get from my talented colleagues here at the FELTG. The new year is always a great time to take stock of your personal goals. It’s one of the times when we all are more likely to consider what we need to do for self-improvement. Think of how important training is in your development as a leader and to your agency’s mission.

Back to that snowy day a few weeks ago. I went down to the basement and looked for the closest thing to a snow shovel. What I found was great for digging holes in the backyard, but not necessarily for shoveling snow, particularly when it’s grown past three inches and transformed into a hard icy mix.

I tackled the job as best I could. It didn’t look pretty. It didn’t sound pretty (unless you love the sound of metal scraping against cement). And it left me with a sore back. But I survived. Without the right management tools, you may survive, but it definitely won’t be pretty for your agency or your team. Gephart@FELTG.com