Tips From the Other Side, Part 12

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By Meghan Droste, December 18, 2018

One common theme in a few of my articles this year has been timeliness, such as the timely filing of formal complaints and the timely completion of investigations.  One key question in all timeliness issues is: How do you calculate deadlines? After all, how do you know if something is untimely if you don’t know what the deadline is?  This week’s Tips from the Other Side come from two cases in which the agencies incorrectly deadlines, which led them to improperly dismiss complaints as untimely. [1]

In Janay H. v. Army, EEOC App. No. 0120143216 (Feb. 5, 2015), the agency issued the Notice of Right to File on July 18, 2014 and the complainant filed her formal complaint on August 4, 2014. The agency then dismissed the complaint, in part because it deemed it to be untimely. The agency asserted in the dismissal and during the appeal that the 15-day deadline to file a formal complaint was August 2, 2014 and, therefore, the complaint was two days late.  The agency failed to note, however, that August 2 fell on a Saturday and the complainant filed her formal complaint on the first business day after the deadline.  In its decision reversing the dismissal and remanding the complaint for processing, the Commission reminded the agency that when a deadline falls on a weekend or federal holiday, it is automatically moved to the first business day following the deadline. The complaint was timely, the Commission found, because the complainant filed her formal complaint on the Monday following the Saturday deadline.

In Takako Y. v. Army, EEOC App. No. 012016159 (Oct. 19, 2016), the complainant filed multiple motions to amend while her initial complaint was pending the assignment of an administrative judge for one year.  Once the Commission assigned the case to a judge, the judge denied the motions to amend and remanded the new claims to the agency for processing.  The complainant contacted an EEO counselor 14 days after the judge denied the motion to amend.  The agency then dismissed all of the claims as untimely.  In doing so, the agency calculated the 45-day deadline from the date of each incident, and not the date of the judge’s ruling. In its opposition to the appeal of the dismissal, the agency argued that because the Commission had not yet assigned the initial EEO complaint to an administrative judge, the complainant should not have filed motions to amend instead of new complaints. The Commission disagreed and reversed the agency’s dismissal of the claims. It found that the administrative judge erred in not instructing the agency to use the date of remand as the date of EEO contact, and the agency erred in failing to do so on its own.   When confronted with the task of determining whether a complaint, or any other document, is timely filed, be sure to double or even triple check the regulations and a calendar if needed.  While dismissing the complaint might save some time at the outset, it will ultimately create more work once the agency has to respond to an appeal. Droste@feltg.com

[1] Full disclosure: I represented the complainants in both of the featured cases.

How Do You Solve a Problem Like a Breach?

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By Meghan Droste, December 18, 2018

This month’s earworm comes to you from The Sound of Music. Although not a seasonally relevant film, it has been stuck in my head for weeks. That’s why when I read this month’s recent case, I thought of the song “Maria.” In the song, the nuns discuss how to pin down Maria, whose head is always in the clouds. The EEOC’s decision in Shaniqua W. v. U.S. Postal Service, EEOC App. No. 0120182033 (Sept. 11, 2018) left me thinking about what parties can do to pin down a way to specifically perform the terms of an agreement when one party does the very thing they agreed not to do.

In Shaniqua W., the agency and the complainant reached an agreement that included a provision regarding the supervisor’s handling of emails from the complainant. The parties agreed that if the complainant sent an email to her supervisor, the supervisor would not forward the email to other coworkers.  Just over one month after the parties entered into the agreement, the complainant sent an email to her supervisor alerting him to an issue with two of her coworkers. The supervisor then forwarded the complainant’s email to the two coworkers at issue. When the complainant notified the agency of the breach of several provisions of the agreement, the agency determined that the supervisor did violate the agreement but found it had already cured the breach.  The agency stated in its Final Agency Decision that the supervisor “realize[d] the magnitude of the mistake and has assured that this type of error was a single occurrence and will not be repeated.”  The complainant was dissatisfied with the agency’s FAD and filed an appeal.

In its decision on the appeal, the Commission agreed with the finding that the supervisor had violated the agreement.  Unlike the agency, however, it was not persuaded that the supervisor’s assurances were sufficient to cure the breach.  The Commission noted that the breach occurred just over one month after the parties signed the agreement. It also found the supervisor’s lack of explanation for his breach to be concerning. Ultimately the Commission concluded that the supervisor’s “remorse [was] insufficient to demonstrate that the breach was cured.”  It ordered the agency to either reinstate the complaint or specifically perform the terms of the agreement.

When I reached the end of the Commission’s analysis, but before I continued on to the specific terms of the order, I wondered how the agency would be able to specifically perform the term that the supervisor had already breached, particularly when the supervisor’s promise not to do it again was insufficient. It’s not quite as hard as keeping a wave on the sand, but it does seem a little difficult to pin down. The Commission addressed the question by ordering the agency to issue a written counseling to the supervisor, with a copy to the complainant, reminding him of his duty to abide by the agreement. We don’t have a way to know whether the complainant chose specific performance or reinstatement of the complaint, but hopefully either option addressed her concerns and didn’t leave her feeling like she was trying to catch a moonbeam in her hand. Droste@feltg.com

Get Off the Pot

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By William Wiley, December 18, 2018

As our readers know, we strongly advocate that supervisors use the legal tools of civil service due process when confronted with an employee who is not doing his job. In our training, we describe the tools available to supervisors and explain how to use them. Sometimes we get a little pushback, usually from supervisor-participants who have one reason or another why our recommendations are ineffective. Unexpectedly, in one recent webinar, we got not one, but THREE reasons why the FELTG Way© would not work:

  1. If I do what you’re saying, the employee will go to the union and claim a hostile environment.
  2. My boss rates my performance down if I get EEO complaints or grievances.
  3. I don’t want to do that to my worst employee because I’m afraid that he will attack me physically.

To some, these are valid reasons for not doing what they are paid to do. For others, these are just whining. Here was our response to each of these concerns:

If I do what you’re saying, the employee will go to the union and claim a hostile environment.

Yeah, and if you play football, you’re going to get pushed around every now and then. If you get on a crowded bus, sometimes someone else is going to take the seat that you wanted. Employees have the legally given right to complain to their union representatives. They can say anything they want, characterize your treatment of them any way they choose to characterize it. However, that doesn’t mean that their complaints are justified. That doesn’t mean that you should not do what needs to be done to run your little part of the government. By law, holding an employee accountable because they are doing bad work or disobeying rules is NOT a hostile environment. Oh, the employee might complain that it is, but that doesn’t make it so. The union might get all in your face about how you’re mistreating the employee, but that’s just their job. Union claims do not make things true. If I were to say to you that you owe me $100, would you just hand me $100? No, you would not. You would stand up for yourself. Well,  then, stand up for yourself when confronted by an employee or the union. As a supervisor, you are being PAID to stand up for your obligation to manage. If you do not have the courage or self-esteem to stand up, that’s fine. Just stop taking the government’s money that you are being paid to be a supervisor. Request a demotion and get out of the way to allow someone else to do what needs to be done.

My boss rates my performance down if I get EEO complaints or grievances.

Then you have a horrible boss who should get on board or get off the ship. Congress did not create the various federal agencies to have a place for employees to be stress-free and coddled by their managers. It created the agencies to get the work of the government done. How far do you think a basketball team will get if the coach says, “I don’t care how well you play; just don’t get any fouls.” Employees have the right to file complaints. We cannot take that right away from them. If we do whatever is necessary to avoid the complaint, then we have turned over management of the federal workplace to the employees instead of the supervisors. All an employee would need to do to get a raise, or full-time telework, or any other undeserved benefit would be to threaten to file a complaint. It is stupid and foolish to rate a supervisor’s performance solely on the number of complaints filed (if there is validity to the complaints, then of course that’s another story). If your supervisor rates your performance low because of the number of complaints filed, you should challenge that rating to his supervisor. And if confirmed at the next level, you should grieve your rating as high as possible within the administrative grievance procedure. If you exhaust the grievance procedure and the result is that all levels of supervision above you believe that you are a poor supervisor simply because of the number of complaints filed, send all those decisions to us here at FELTG. We know a guy or two over on Pennsylvania Avenue in DC and a Congress on Capitol Hill that would be interested to know that there is a group of federal managers who is afraid of its employees. The absolute epitome of an inept civil service is one in which the employees run the place and managers cower in the corner. If no one else will stand up for an efficient and fair federal workplace, we will here at FELTG. 

I don’t want to do that to my worst employee because I’m afraid that he will attack me physically.

You know what? Nobody ever promised you that being a federal supervisor was easy. The job announcement under which you applied for your job did not say, “This work will always be a piece of cake.” We don’t promise firefighters that they will never get burned. We don’t tell the applicant to be a bomb squad technician that she will never be scared. We don’t recruit soldiers and guarantee them in their enlistment papers that they will not be shot at. Being a federal supervisor can be a very tough job.

There are measures in place to protect the supervisor from being mistreated by his employees. The Federal Protective Service is available for protection within a federal workspace. The Federal Bureau of Investigation has the jurisdiction to intercede if a federal official is threatened away from the workspace for work-related reasons (I know this first-hand, folks; serving as an Administrative Judge at MSPB ain’t the safest job in the world, either). Although these protections are significant, sometimes federal employees get burned and shot at; it’s just part of the job. If you don’t have the courage to be a federal supervisor, to stand up to employee complaints, bad supervision, or even physical threats, that’s fine. Go do something else. Let someone who has what it takes to be a federal supervisor serve in your place. You owe it to yourself, and you darned sure owe it to the American people. Stop taking a paycheck you do not earn.

I am at the end of my career. For the past 40+ years, I have tried to help the federal civil service be a better place for all of our citizens, to do what was intended when we decided to govern ourselves rather than comply with the demands of some dictator or king. After all this time, I am convinced that the weaknesses and the faults within our system do not lie with the unions. We don’t need new laws to have an efficient and fair government. Even the leadership from the White House doesn’t make much difference long term. What we need is supervisors and managers who have the courage to do what they are being paid to do and hold bad employees accountable for their bad-ness. We need agency lawyers who understand why delayed action is as bad as no action and who are not afraid of taking chances every now and then. We need human resources professionals who are not fearful of making mistakes and who have the initiative to learn this business that they are expected to know.

If you are one of these people, then FELTG is honored to support you. However, if you are a whiner and complainer, someone who does not do what you are expected to do in your position, then get off the pot. Be gone. Move out of the way so that someone braver than you can take over.  Wiley@FELTG.com

A No-Good-Option Situation

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By William Wiley, December 11, 2018

Here at FELTG, we pride ourselves on knowing the way out of most every civil service law difficulty. Some answers take more steps than we’d like, but eventually we can help a supervisor get her hands around just about any difficult employee situation. Recently, however, we got asked for advice regarding a problem employee case, and although we’ve come up with a solution, we really don’t like it very much. See if you can do better than we did.

  1. The employee has developed both mobility and concentration problems. She falls down at work even though she uses a walker. On three occasions, coworkers have had to call paramedics to her aid. She cannot carry the files she needs to do her job. She cannot carry her personal belongings to her desk. She relies on coworkers to do the carrying for her. She makes mathematical errors in her timekeeping work. She is late accomplishing tasks.
  2. Her supervisor informed her that her medical limitations were preventing her from performing her job satisfactorily and asked if she would obtain a medical evaluation of her disabilities by her physician to identify any accommodations that could be made. Her physician responded that she was medically able to perform all of the essential functions of her position.
  3. After the medical evaluation, she continued to be unable to perform her work without the assistance of coworkers and otherwise in a satisfactory manner. Her supervisor again requested that she obtain disability accommodation information from her physician. The employee failed to do so.

That’s where we got the call for help. In the old days, the answer was easy: Send her for a fitness for duty evaluation by an agency-selected physician who is not likely to rubber stamp that she can do her job. Obtain a more realistic evaluation of her limitations, determine whether they can be accommodated, and assuming that they cannot, remove her for Medical Inability to Perform.

Unfortunately, today we don’t have that option. As you know if you’ve been to our famous FELTG Absence, Leave Abuse, and Medical Issues Week seminar (next offered March 25-29), OPM abolished the fitness for duty regulations back in 1983. Since then, agencies have been without the authority to direct an employee to undergo a medical evaluation except in three limited situations, none of which apply in this case. The FFD option has been foreclosed.

To our read, that leaves the supervisor with two options, neither of which feels particularly good:

  1. In spite of the employee’s physician’s determination that she can perform her duties, reach the conclusion that she cannot based on a lay person’s observations of her limitations. Determine that she is medically unfit to perform one or more essential functions of her position and fire her for Medical Inability to Perform. Or,
  2. Document her failures at work, relate them to one or more critical elements, then initiate a performance demonstration period (PIP) to give her an opportunity to perform. Document her failures during the demonstration period, then fire her for Unacceptable Performance.

Option A runs the risk of lay evidence of medical inability being contradicted by the employee’s physician’s professional opinion that the employee has no medical limitations. Option B seems cruel in consideration of the employee’s obvious medical infirmities. If the employee would accept Option A, she’s almost guaranteed a disability retirement when she applies to OPM. If the agency decides it has to go with B, there’s no similar almost-guaranteed disability retirement.

Here at FELTG, we feel bad for the employee. We also feel bad for the supervisor. It’s just a darned shame that OPM believes it has to constrain an agency’s ability to require an employee to undergo a medical examination. EEOC has said that it is legal for an employer to require an employee to undergo a medical examination if it has a reason for doing so that comports with a “job-related business necessity.” Were that the standard that OPM would allow us to apply, it would yield a much better resolution than either A or B, above. Wiley@FELTG.com

Somebody Should Make These HR Policy Decisions

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By William Wiley, November 14, 2018

I’ve been making improvements in the civil service since before some readers could even spell MSPB or FLRA. In the accompanying photo, you will see me helping unpack the very first computers delivered to FLRA when I was the chief of staff for the General Counsel. Note the high degree of excitement. They were color monitors! I took a lot of heat from the purchasing staff when I insisted on color, reasoning that it was the future of computing. I can still hear them complain, “What’s wrong with black and green, Mr. Wiley?!?” Yes, sometimes you have to be a little pushy to make good change happen.

I hope that some of you readers feel a bit pushy, because the federal workplace still needs innovation. A lot of what you do in your civil service law workplace, and what we teach here at FELTG, is controlled by employee accountability law or regulation: preponderant evidence to fire for misconduct, performance ratings at least annually, 30 days of pay between a proposal to fire and the firing itself. These are decisions made by Congress and OPM. We are bound to them whether we agree with them or not. They are our civil service law.

However, there are other areas of Human Resources that are related to accountability that are not defined by law or regulation that are just as important. And as far as we can tell, these are decisions being left to individual supervisors to make in most every agency, and which would no doubt benefit from a reasoned choice between options and the developmental of formal policy. Here are three:

1 – Performance Rating Distribution – Every supervisor officially rates individual performance within a group of subordinate employees once a year. Which of these possible alternatives is the better policy option?

  • Most all employees get the top rating because by merit selection, we have hired into the government the best and the brightest.
  • Very few employees should receive the top rating as high performance is exceptionally rare in government. In fact, top ratings should be mathematically limited from year to year and dispersed among those who haven’t received one recently

2 – Discipline for Repeated Misconduct – Every supervisor has the responsibility to propose or implement discipline for employee misconduct. Which of these possible alternatives is the better policy option?

  • Discipline should be corrective. If a repeat offender has been reprimanded, then suspended, removal is warranted for the next incident because he has demonstrated that he does not respond to discipline by correcting his behavior. The civil service does not need to retain individuals who do not respond to discipline.
  • Discipline should be punitive. Repeat offenders need not be fired necessarily as each incident of discipline (aka punishment) extracts an eye for an eye. Just because an individual repeatedly violates workplace rules and does not respond by correcting her behavior is not a reason to fire her.

3 – Substantial versus Preponderant Evidence – Management has to defend every removal action by some quantum of proof when the removal is challenged on appeal. Which of these possible alternatives is the better policy option?

  • Substantial evidence: It is possible that the employee deserves the discipline. This is already the law for performance-based removals throughout government and for both performance and misconduct removals at the VA. The law allows an agency to use this level of evidence for reprimands and suspensions. It is exceedingly easy to prove a removal is warranted at this level (the Supreme Court says this burden is a “grain more than a scintilla”)
  • Preponderant evidence: It is probable that the employee deserves the discipline; more likely than not. By law, this is the mandatory burden of proof that agencies (other than VA) must attain to fire an employee for misconduct. Requiring this level of evidence will prevent more removals than would the substantial level of evidence.

Opinions as to which of these options is best are strong on both sides.

  • Congress routinely rails, and the media frequently howls, when statistics show that most federal employees get the top performance rating. At the same time, for 40 years the law has precluded an agency from comparing employees to each other when rating an individual’s performance.
  • We often recite the mantra that “discipline is corrective, not punitive,” but I could not find that as policy anywhere on the web other than on a union’s website. GAO issued a report this summer that was critical of agencies that suspend employees more than once, suggesting a a removal should follow a suspension. Yet, the Merit Systems Protection Board has mitigated removals to second suspensions and imposed 90-120 suspension in lieu of removals without any evidence that long suspensions like that are somehow more corrective than shorter ones.
  • Although preponderant evidence is legally mandated only for removals, demotions, and long suspensions, agencies often incorporate that standard into lesser suspensions and reprimands. Arbitrators routinely apply the “just cause” standard to all discipline, a level commensurate with preponderant evidence according to the literature. At the same time, government agencies are routinely criticized for letting employees “get away” with public misconduct.

Here at FELTG, we certainly have our opinions as to which of these options is the better. However, it is not our role to make these policy decisions. So, whose is it? Is it OPM’s? If so, why haven’t they done it? Is it the head of your agency? If so, do you see these issues addressed in agency directives? How will you coordinate with everyone else in your agency to make sure that everyone is working from the same principles and beliefs?

When you want a team to work together – football, synchronized swimming, or a military unit – you put the individuals in uniforms and make centralized decisions. Somebody in government should be making these decisions centrally and applying the selected options uniformly. Otherwise, you’re just a bunch of smart people working in your own little world, choosing from among options that have good arguments on both sides.

By the way, if you REALLY want FELTG to make these decisions for you, we are happy to oblige. Just send us your requests, along with appropriately dedicated funding, and we’ll delighted to write your policies for you. We’ve even set up a sub-component just to provide this service: the Department of Accountability and Discipline. If you can’t decide for yourself how the government should be run, just leave it up to our DAD. Wiley@FELTG.com

Once Again, MSPB Nominees Fail to Get a Vote: What Happened Today? What Happens Next? 

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By William Wiley, Deborah Hopkins, Dan Gephart, November 28, 2018

 

The MSPB is hanging by a thread.

This morning, the Senate Committee on Homeland Security and Government Affairs recessed without voting on the three US Merit Systems Protection Board nominees. Sen. Ron Johnson, the Committee Chairman, told reporters that he decided to not bring up a vote after a 7-7 roll call vote on member Andrew Maunz. There was not a roll call vote on either of the two other nominees.

Wait, you wise FELTG readers are probably saying, “Doesn’t the committee have 15 members? And don’t Republicans have the majority?” Per a source, Sen. Rand Paul voted no by proxy, depriving the majority of an 8-7 vote. Sen. Paul opposes the existence of the MSPB, according to the source.The nominations of Chairman Dennis D. Kirk and Members Julia A. Clark and Maunz will be returned to the administration without a vote and the nomination process will have to begin all over again with a new Senate in January.

Meanwhile, more  than 1,500 cases in the MSPB backlog will go unaddressed. By the time the new Board members, hopefully, get confirmed sometime next spring, there will probably be about 1750 cases waiting to be adjudicated.

Hopefully is the critical word. Sen. Johnson, according to a source, will not review the nominations if they are resent next year unless he can get Sen. Paul or a Democrat to change their minds.Remember: Acting Chairman Mark Robbins, the sole remaining member of the MSPB, turns into a political pumpkin at midnight on March 1. His term will expire, and he cannot be renewed or held over any longer. Unless a miracle occurs in February, it’s likely that come March, the Board will be without any members for the first time in history.Meanwhile, FELTG has been told that there is a legal opinion floating around that if Robbins leaves and no Senate-confirmed Article II person is on board to replace him, then the MSPB as an agency goes out of existence.

Before today, not one nominee to be a member of MSPB was rejected at the committee level in the Senate. Today, that happened to three nominees. It is impossible to predict what will happen next, other than that the federal civil service will continue to suffer and employee appeals will continue to disappear into the gapping void that was formerly the US Merit Systems Protection Board.

These are sad times, indeed, for the federal civil service. With respects to John Donne: “No federal employee is an island, entire of itself; every employee is a piece of the civil service, a part of the main. If a single employee be washed away by the loss of oversight protections, the federal civil service is the less, as well as if an entire agency were, as well as if a position of thy friend’s or of thine own were: any employee’s loss of rights diminishes me, because I am involved in the civil service, and therefore never send to know for whom the bells tolls; it tolls for thee.”

A Holiday Party, Too Much Alcohol, and Poor Decisions

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By Barbara Haga, November 26, 2018

Holiday parties will be held soon and, inevitably, there will be some bad behavior that goes along with them. It seemed prudent to look at a 2017 case that involved all of the items mentioned in the title and a subsequent removal sustained based on them. It is an interesting case that includes the issue of contact between coworkers, not a supervisor per se, he said/she said explanations of what happened, and the use of a general charge of conduct unbecoming. I’m guessing this one may be in that pile of over a thousand petitions for review, but for now let’s see how the AJ ruled.

The case is Doe v. Air Force, DA-0752-16-0100-I-2 (2017). The appellant asked that the case be processed anonymously, and the agency requested that the names of the witnesses be protected. There are three primary players in the case – Doe, his girlfriend, JD, and the person who reported unwanted sexual contact, KB.

Doe was an Air Traffic Control (ATC) Specialist (Terminal), GS-2152-12, working for the Air Force in Oklahoma. He was a former active duty Air Force ATC. JD and KB were also ATCs, except KB was a military member. JD had worked on the same shift with Doe, but once they started dating, she moved to another shift per management’s direction. Doe and KB worked on the same shift. All three were good friends, as stated in the decision. KB was married, but her husband was out of town during the events recounted in the decision.

The 2014 Holiday Party

The events that led to the removal began with the holiday party at a local restaurant and banquet hall. Doe, JD, and KB sat together at the party. From the decision, it is clear that there was a significant amount of drinking throughout the evening and into the next morning. The party at the commercial facility ended and progressed to an after-party in a co-worker’s barn. Later in the evening, the after-party got out of control and the owner ended the party. The owner specifically asked Doe to get KB out of the after-party because “she was out of control and making everyone uncomfortable.” The owner told him that people reported seeing KB kissing another female airman. Doe acknowledged in a statement in response to the proposed removal that KB lacked judgment because she kissed him and JD on the mouth in front of others at the after-party.

Doe arranged for transportation home from the after-party for himself, JD, and KB. The driver stopped at Doe’s house, and everyone went in and continued to party. For an unexplained reason, KB did not continue on with the driver when he left and instead remained in Doe’s house. JD prepared to go to bed and apparently slept through everything that happened thereafter. KB ended up in the bed with JD and Doe.

What occurred next depends on whose version you find more credible. There was either no sexual contact or unwelcome sexual contact. KB eventually called another coworker and his wife to pick her up and take her home after the incident. She called her husband and told him her version of what had happened and reported the contact to her First Sergeant the next day.

Charge and Specifications

The removal — effective in October 2015 — was based on one charge of conduct unbecoming. The specification read as follows:

On or about December 7, 2014, approximately between the hours of 0100 and 0300 hours, you brought Senior Airman (SrA) KB, a junior enlisted Airman, to whom you provided training and on-duty supervisory oversight, to your home. SrA KB was intoxicated from consuming alcoholic beverages. You initiated unwelcome sexual contact with SrA KB in your bed. To wit: While SrA KB was in your bed you kissed her stomach and vaginal area before digitally penetrating her vagina. DNA evidence confirmed she was in the bed in which you sleep, the same bed in which the unwelcome sexual contact occurred. Because of your actions, SrA KB required premature relocation away from Vance Air Force Base to another Air Force Installation in another state. Your conduct was improper and harmed the efficiency of the service.

Credibility

In this 21-page decision, there are roughly nine pages of discussion regarding credibility. The AJ acknowledged that KB was not the “model” airman, but the AJ found KB’s version of the events more credible than Doe’s. If you want to read a very detailed accounting of the AJ’s view of each version of the events, this is a good analysis.

Doe’s Job Duties

In many agencies, the first reaction to the report of this type of conduct would have been that there was not sufficient nexus between the misconduct and Doe’s position to be able to take an adverse action. Some would view this as being outside the range of actionable misconduct because Doe was not classified as a supervisor and clearly not her supervisor. The events recounted were entirely a matter of off-duty misconduct between coworkers, one civilian and one military. However, the Air Force successfully showed that there was a nexus and that the behavior was unbecoming.

The Air Force policy on personal relationships, “Dress, Appearance, and Relationships,” provided:

4.4. Relationships. While personal relationships between Air Force employees or between Air Force employees and military members are normally matters of individual choice and judgment, they become matters of official concern when they violate existing law or impede the efficiency of the service.

4.4.5. Actions in Response to Unprofessional Relationships. When unprofessional relationships impede the efficiency of the service or adversely affect the mission, appropriate corrective action should be taken IAW AFI 36-704.

The AJ noted that the Board generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct; (2) a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers’ job performance, or management’s trust and confidence in the employee’s job performance; and (3) a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. (Kruger v. Justice, 87 FMSR 5004 (1987)).

In this case, the AJ found that the record showed that there was impact on Doe’s job performance. While he was not a supervisor in the classification sense and was not in the military chain of command over KB or other military ATC’s, he performed the duties of a senior level ATC, and those duties required a high level of trust and interaction between him and his co-workers. Because of Doe’s level of experience, he was required to occasionally perform the duties of a controller-in-charge. While performing the duties of a controller-in-charge, the appellant was responsible for the entire Radio Approach Control operation. This included monitoring, and intervening if necessary, in the ATC’s handling of air traffic in and around the base. At any given time, there could be as few as one or two ATC’s handling air traffic, or dozens. During his duties as an ATC, and in an ad-hoc supervisory role as the controller-in-charge, he had to perform these critical duties in two-person teams while controlling many flights.

The deciding official testified that “… it was essential that ATCs not have any distractions because of personal conflicts, animosity of others, or any other type of anxiety.” He testified that it is of paramount importance that the ATCs are focused solely on controlling the (air) environment and keeping planes from running into each other. He explained that anything that would result in an ATC doubting his co-workers or his leadership could result in “taking attention away from their responsibility of monitoring the ‘very complex’ puzzle air traffic on their (radar) scope, which could be devastating.”

Lessons from the Decision

Clearly there were a series of poor decisions on both Doe’s and KB’s part in this unfortunate situation. The deciding official’s testimony noted that Doe never took responsibility for his actions, and that led to a conclusion that there was little potential for rehabilitation. In spite of a policy that talked about personal relationships that could become matters of concern, Doe made choices, in the agency’s view, that were inconsistent with his duties as a trainer and controller in charge. That resulted in a loss of confidence in his ability to meet his job’s requirements.

I hope you don’t have any repercussions from any holiday parties attended by employees of your agency this year. Before the party begins, consider this gentle reminder: After the party when the alcohol wears off, the party clothes are put away, and everyone is back in their appointed places, you still have to be able to look each other in the eye and work together – coworkers and supervisors alike! Haga@FELTG.com

Let’s Address the Misconceptions About Poor Performance

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By Deborah Hopkins, November 14, 2018

If there’s one thing that bothers federal employees more than anything, it’s slackers in the workplace. And if there’s something even worse than that, it’s the supervisors who refuse to deal with slackers in the workplace. I’m not making it up. Last month, OPM released a Federal Employee Viewpoint Survey that showed around 70% of federal employees do not believe that supervisors take the steps necessary to deal with poor performers. This isn’t breaking news; some version of this concept remains one of the highest negative ratings measured each year.

In the federal government, only about 5% of the 10,000-plus removals annually are for poor performance; the rest are for misconduct. But did you know that it’s almost always easier to remove a poor performer than it is to remove an employee who engages in misconduct?

But Deb, my HR office told me performance removals are really hard. They said I need months of performance tracking, then loads of evidence to start a PIP. Pus at my agency, we do 90-day PIPs, during which I have to double-check everything the employee does. Plus I have to give the employee a chance to get better every week. After all that, I need tons of evidence of all the failures during the PIP before I can even propose removal. I don’t have that kind of time.

Well, if all that were true I wouldn’t have that kind of time either. But that entire statement is full of myths. Ready for me to make your day? Read on.

Performance-based actions DO NOT require months of performance tracking. In fact, as long as the employee has been on her performance plan for around 60 days (known as a warm-up period), you can put her on a PIP (Performance Improvement Plan) after only one or two instances of unacceptable performance on any critical element. You do not need a pattern of unacceptable performance, or a minimum number of mistakes. Read the performance plan and look at the standards for “Unacceptable” on each critical element. Depending on how the plan is written, one instance of unacceptable performance may be enough to trigger the PIP.

Here’s an example:

Critical Element 1: Answers the telephone

  • Performance Standards

Acceptable: Answers within three or fewer rings

Unacceptable: Answers after more than three rings

As soon as that employee answers the phone after 5 rings, you can PIP her. Boom.

Putting someone on a PIP does NOT require tons of evidence. Did you know the amount of proof you need to put someone on a PIP is so low that there’s not even a name for it? At FELTG, we call it an articulation of the reason. So what does an articulation look like? “The employee answered the phone after five rings and the acceptable level is three rings or fewer.” That’s it. As a defensive strategy, we recommend making a note to yourself that day with what you observed, just in case down the road the employee challenges you on why you put her on the PIP; that contemporaneous documentation will be a helpful memory jogger and a solid piece of evidence for the judge or arbitrator to consider in addition to your testimony. Update: As of March 11, 2021, the agency is now required to show substantial evidence of unacceptable performance in order to justify the PIP – more than an articulation.

During the PIP you do NOT have to baby-sit your employee. The regulation requires you to “offer assistance” to the employee during the PIP. 5 CFR 432.104. Assistance is not doing the work for the employee, assigning a mentor, lowering the standard, or double-checking everything the employee does. We know from the case law that offering assistance means providing feedback to the employee during the course of the PIP. At FELTG, we recommend our legal clients meet once a week with the employee during the PIP, but the MSPB has found that even just one or two meetings during the course of a PIP meets the regulatory assistance requirement.

You do NOT have to give the employee a chance to improve during the PIP.  The name “Performance Improvement Plan” is really a misnomer that has caused all kind of confusion. Back in the early ’80s, OPM created the acronym “PIP” (first, Performance Improvement Period, then Performance Improvement Plan) in reference to the period mandated by law for a demonstration of acceptable performance prior to removal. It takes much less time for an employee to demonstrate whether he can do his job than to see if he can improve in doing his job.

President Trump’s Executive Order, referenced above, clarifies what the law says by dropping the concept of an “improvement” period for poor performers and instead uses the legally correct term “demonstration” period. So while most agencies still call it a PIP, the more correct terminology would be Opportunity Period (OP), Demonstration Period (DP), or what our friends at HHS are calling the Opportunity to Demonstrate Acceptable Performance (ODAP).

The PIP does NOT have to be 90 days. FELTG recommends a 30-day PIP regardless of the employee’s job type or GS level. Never, ever, ever in the history of the MSPB, even when former union attorneys were running the place, has the Board found a 30-day PIP to be too short. Towne v. Air Force, 2013 MSPB 81. If that’s not enough for you, take a look at the President’s May 25 Executive Order 13839, which says the performance demonstration period should “generally” be no more than 30 days. Why “generally”? Well, if your union contract requires 90 days, then you’re stuck with 90.

However, it’s perfectly legal to end a PIP early due to the error rate. See Luscri v. Army, 39 MSPR 482 (1989). For example, your employee is a security screener and the PIP says he cannot let any guns get onto an airplane, and on day 5 he lets a gun get onto an airplane. You can end the PIP there. Why on earth would you allow him 25 more days to let MORE guns onto planes? Which leads me to my next point.

Removal for failing a PIP does NOT require a high level of evidence. In fact, it requires less evidence than a misconduct removal. In performance, the level of evidence is called substantial. Substantial evidence is that which a reasonable person might accept [not would accept] to support a conclusion relevant in an unacceptable performance action – even though others may disagree. 5 CFR 1201.56(c)(1). So if you think the employee answered the phone on the fifth ring, that’s enough. You don’t need three witnesses, a customer complaint, and video evidence showing what she did. How about a squishy critical element like “Professional Conduct” that isn’t quantifiable? If you think the person’s performance is unacceptable as applied to the standard, even if another person might disagree with you, that’s enough.

Contrary to what you might hear or read, I actually don’t think the civil service system is broken and inefficient; it’s just being used improperly. Streamline the process and you, too, can get a poor performer out of the workplace in 31 days. We’ve done it hundreds of times in the last 40 years and would be happy to show you how. Your other employees will thank you, and America will thank you too. Hopkins@FELTG.com

FELTG Modifies the No-Clean-Record Executive Order and OPM’s Interpretative Guidance

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By William Wiley, November 14, 2018

This is the final article of a three-part series.

As we have discussed previously, one of the Executive Orders (EOs) issued by the White House on May 25 effectively did away with an agency’s ability to resolve an employee controversy by entering into a “clean record” settlement agreement. In a later article, we pointed out the deficiencies in OPM’s “Interpretative Guidance” issued on October 10. OPM intended the guidance to clarify what the EO really means. Our conclusion is that the EO and the interpretation have problems when we try to apply them in a practical front-line situation. And who better to step into the breach and clean things up than little old FELTG?

First, to be perfectly clear: We love clean-record settlements. They are no-fault resolutions in which both sides concede something of value to the other. If they result in a future government employer hiring a formerly bad employee, that’s their problem. There are a number of ways to address that issue without having to take away the flexibility of a clean-record settlement. With that said, if we were trying to implement what appears to be the desires of the White House relative to surfacing prior workplace problems of applicant former employees, here’s what we’d say, in an EO or in interpretative guidance:

To facilitate transparency relative to prior workplace problems job applicants might have had, agencies are to implement the following procedures immediately:

1 – When an adverse action is proposed, the agency will open an adverse action file in the Office of Human Resources. That file is to contain the proposal notice with its attachments, the employee’s response to the proposal, the relevant operative decision letter, a copy of any related appeal, grievance or complaint, and the documents resolving the appeal, grievance, or complaint.

2 – These files on individual employees are to be retained by the agency for at least five years. There is no provision for destroying or altering these documents within this time period. Copies of the files are to be provided to any other federal agency with a need to know on request within seven days of the request.

3 – OPM, as the administer of this provision, may request file copies at any time.

Bottom line: This approach satisfies the goal of the EO to provide real-time information to selecting officials about the government work history of a job applicant. It does not get all wrapped up with what’s a “personnel record,” or the good or not good reasons for altering the document. It allows an agency to honestly offer in settlement that all relevant documents will be removed from the employee’s e-OPF. It even provides that the parties can enter into a settlement agreement, to be incorporated into the adverse action file, in which both management and the individual agree to a no-fault resolution of the matter.

The adverse action record is not thereby “clean,” but it is annotated to show that the parties reached an agreement that the employee should be allowed to go forward with his federal career, albeit at another agency.

What the hiring agency decides to do with that information is up to that agency. At least this way, everything is transparent, above board, and honest. Wiley@FELTG.com

What a Chicken Sacrifice Teaches Us About Religious Accommodation

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By Deborah Hopkins, November 14, 2018

Let’s say your agency is working on a remote project somewhere and there’s a cargo plane that comes every two weeks to drop off supplies.

One of your employees asks you if the agency will allow a family member to bring a chicken to the airport at the point of origination, so the chicken can be flown, along with the rest of the cargo, on the next plane in. When you ask why, the employee tells you that she has a religious belief that requires a chicken sacrifice every fourth Friday, that her work on the remote project will still be in progress during the next required sacrifice, and she has no access to chickens in this remote place.

What do you do?

Hopefully, before you say anything about how strange you might think that is, or before you laugh the request off, you realize that this a request for religious accommodation and that the employee may be entitled to her request.

Here’s what we know from the law. Title VII requires federal agencies to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden (undue hardship) on the agency’s operations. This means an agency may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Religion is broadly defined and includes all aspects of religious observance and practice, as well as beliefs – and not just the major world religions we might think of. According to 29 CFR§1605.1, a religion does not have to be practiced by an organized group and includes moral and ethical beliefs as to what is right and wrong that are sincerely held with strength of traditional religious views. It also includes beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that “seem illogical or unreasonable to others.” EEOC Compliance Manual, Section 12-I, A-1.

The employee requesting religious accommodation has to do the following:

  1. Demonstrate she has a bona fide religious belief or practice that conflicts with work requirement
    • “Every fourth Friday I am required to make a chicken sacrifice, and I am scheduled to be working on this remote project next Friday, and no chickens are around for me to sacrifice.”
  2. Inform the agency of conflict
    • The employee told the supervisor, and asked for a chicken to be allowed on the plane.
  3. Show that the work requirement would force complainant to abandon fundamental aspect of belief or practice.
    • “These chicken sacrifices are a fundamental believe of my religion and if I don’t make this sacrifice I will be out of good standing with my faith.”

Now it’s on the agency to accommodate the request unless doing so would cause an undue hardship. The term undue hardship is not defined the same way in religious accommodation cases as it is in disability accommodation cases. When it comes to undue hardship in religion, we are looking at anything more than a de minimis burden.

The EEOC Compliance Manual § 12-I, C-6, gives us more detail:

To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information … [A]n employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers, because that would pose an undue hardship for the employer.” (emphasis added).

So let’s look at the request for the chicken to fly in on the cargo plane. Is it more than a de minimis burden for the chicken to ride in with the rest of the supplies, so the employee can perform her religious ritual on the day it’s required? Take another look at the undue hardship determination and then decide that for yourself. After all, this newsletter is a place for training information, not legal advice.  Hopkins@FELTG.com